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CR.A/818/1996 1/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 818 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
HIMMATSING
BADJIBHAI PARGI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
JB PARDIWALA for
Appellant(s) : 1,
MR RC KODEKAR, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 03/03/2010
ORAL
JUDGMENT
The
appellant has preferred this Appeal under Section 374 of the Code of
Criminal Procedure, 1973 against the Judgment and order of
conviction dated 19th August 1996 passed by the learned
Special Judge, Panchmahal at Godhra in Special (Corruption) Case
No.08 of 1993, whereby the learned Judge has convicted the
appellant-accused of the charges levelled against him.
The
Short facts of the case are as under:
2.1 The
original complainant had some disputes with regard to taking water
from the well. It is the case of the original complainant that he was
beaten by his brother and his sons at the time of doing agricultural
work. Because of intervention of the neighbours, the original
complainant was saved. The original complainant had lodged a
complaint with Santrampur Police Station for the said assault of his
brother and sons of his brother. After filing the complaint, the
original complainant was admitted in the hospital for treatment.
2.2 The
investigation was carried out by the present appellant-accused in
respect of the complaint filed by the original complainant. It is
also the say of the complainant that when the original complainant
went to the appellant-accused with his treatment certificate, the
appellant-accused told the original complainant that his brother had
also filed a complaint against him, therefore, the original
complainant should come along with his wife at Gothib Outpost on
Monday. On 16th November 1992 the complainant along with
his wife and witnesses went to Gothib Outpost where their statements
were recorded. It is also the case of the original complainant that
after recording statements, the appellant-accused told the original
complainant that he will be taken on remand. The appellant-accused
further added that if the original complainant wants to escape from
the remand, he will have to give an amount of Rs.500/- to the
appellant-accused. It is also the case of the original complainant
that as he was not having money, the appellant-accused arrested the
original complainant and was produced before the Santrampur Police
Station, from where the original complainant got himself released on
bail. At that time also the appellant-accused demanded an amount of
Rs.500/- from the original complainant. It is also the case of the
original complainant that he stated the accused that he would give
the appellant-accused an amount of Rs.500/- on the next day.
2.3 The
original complainant therefore, approached the Anti Corruption Bureau
on 17th
November 1992 at about 11:00 a.m. and filed the complaint against the
appellant-accused. Thereafter, the Investigating Officer called two
panchas and after completing necessary procedure, the raid was
carried out.
2.4 It
is also the case of the original complainant that when he reached to
Gothib Outpost, the appellant-accused asked the original complainant
that whether the original complainant had brought Rs.500/- as
demanded or not and told him to handover Rs.500/-. At that time the
original complainant had handed over the powdered currency notes,
which were given to him by the Anti-Corruption Bureau, to the
appellant-accused. Thereafter, the appellant-accused went to the
adjacent room and placed the said currency notes in one of the books
lying in that room. Thereafter, the original complainant went outside
the room and gave signal to Police Inspector Shri Pathan. Police
Inspector Shri Pathan along with his staff members and panch witness
no.2 immediately rushed inside the room. Thereafter, procedure of
examining under ultra-violet lamp was carried out and search of the
accused was also carried out. Thereafter, panch witness no.1 brought
the said diary from the adjacent room, from wherein the currency
notes of Rs.500/- were traced out. The said notes were also examined
in the light of ultra-violet lamp. It is found that the notes were
shining blue. The fingers of the appellant-accused and original
complainant were also shining blue and the pages of the diary, in
which the currency notes were placed, were also shining blue.
Thereafter, panchnama was prepared and the currency notes were
seized. The statements were recorded and thereafter, the offence was
registered against the appellant-accused.
2.5 After
investigation was over, the Deputy Superintendent of Police had given
sanction for filing the charge-sheet against the appellant-accused
and accordingly, the accused was charge-sheeted for the offences
punishable under Sections 7 and 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act (hereinafter referred to as ‘the
Act’).
Thereafter
the trial was conducted before the learned Magistrate. To prove the
case of the prosecution, prosecution has produced oral as well as
documentary evidence. The prosecution has examined complainant at
Exh. 10 as a Prosecution Witness No.1, Panch Witness No.2 was
examined at Exh.12, Police Inspector Pathan has been examined at
Exh.14 and also produced documentary evidence in support of the
prosecution case.
After
hearing both the sides, the learned Special Judge, Panchmahal at
Godhra, has been pleased to convict the appellant-accused by his
judgment and order dated 19th
August 1996 in
Special (Corruption) Case No.08 of 1993 and sentenced the
appellant-accused to suffer Rigorous Imprisonment for one year and
to pay fine of Rs.1,000/- (Rupees One Thousand Only) for each
offence and in default, to suffer Rigorous Imprisonment for three
months for each offence. It was ordered that substantive sentence
shall run concurrently.
Being
aggrieved by and dissatisfied with the said judgment and order dated
19th
August 1996 passed by the learned Special Judge, Panchmahal at
Godhra in Special (Corruption) Case No.08 of 1993, the appellant has
preferred the above-mentioned Criminal Appeal before this Hon’ble
Court.
I
have heard Mr. Rushabh Shah for Mr. Pardiwala, learned counsel for
the appellant-accused and Mr. R.C. Kodekar, learned Additional
Public Prosecutor, appearing on behalf of the Respondent-State. I
have also gone through the papers and the Judgment and order passed
by the Trial Court.
Mr.
Rushabh Shah has taken me through the evidence of prosecution
witnesses and the documentary evidence and submitted that from the
above evidence it is established that the prosecution has failed to
prove its case beyond reasonable doubt. He has contended that there
was a family dispute between two brothers. The original complainant
was under impression that the appellant-accused is supporting the
other side and because of that impression only, the
appellant-accused was wrongly booked by the original complainant. He
has also contended that the contention of the complaint is also not
proved beyond reasonable doubt. Even total contradictory version was
established and oral evidence of the panchas is also not in
corroboration with the evidence of the present complainant.
He has also read the depositions of the panch witnesses and
vehemently contended that the evidence of the panch witnesses is
also doubtful. Mr. Shah also contended that trapping officer has
committed so many wrong during the so-called trap. He has also
contended that the money was not recovered from the possession of
the accused. The trapping officer has not considered the defence
made to him during the interrogation of the appellant-accused. He
has also contended that demand of bribe is not established beyond
reasonable doubt and explanation given by the original complainant
is also doubtful. He has contended that the appellant-accused has 22
years of dot less service and award was also given to the
appellant-accused for his performance. No departmental inquiry was
ever conducted against the appellant-accused. He has also read the
oral as well as documentary evidence and vehemently contended that
sufficient contradiction is proved before the learned Judge and the
judgment and order of conviction is not legally tenable and hence,
judgment and order of conviction is required to be set aside.
Mr.
R.C. Kodekar, learned Additional Public Prosecutor,
for the respondent-State has supported the judgment and order of the
Trial Court. He has read the oral evidence of the panch witnesses
and trapping officer and vehemently argued that the prosecution has
proved its case beyond reasonable doubt. He has also contended that
the panch witness no.2 is a public servant and he has no grudge
against the appellant-accused and he is an independent witness. He
has also contended that the defence has never bothered to put any
question to this witness and there is no reason for panch witness to
wrongly involve the appellant-accused in the case. He has also read
the oral evidence of the trapping officer and contended that the
trapping officer has successfully carried out the raid. He has
further contended that after receiving signal from the original
complainant, the trapping officer immediately rushed to the place of
the offence and search was carried out by the trapping officer. The
trap amount was recovered from the possession of the
appellant-accused. He has also contended that the Hon’ble Apex Court
has observed in catena of decisions that such type of cases are
required to be dealt with heavily.
I
have
gone through the judgment and order passed by the Trial Court. I
have also perused the oral as well as documentary evidence led
before the Trial Court and also considered the submissions made by
learned Advocate for the appellant.
The
Trial Court, has after appreciating the facts and evidence on
record, found that the sanction to file complaint against the
appellant-accused was given as per the law. It is also observed that
the defence has never tried to establish that sanction was not given
as per the law. From the oral evidence of the original complainant,
it is found that the prosecution has proved his case beyond
reasonable doubt. Even from the perusal of oral evidence of the
panch witness nos. 1 and 2 it can be seen that panchas had proved
beyond reasonable doubt that the appellant-accused demanded Rs.500/-
as bribe. It is also held by the Trial Court that trapping officer
has recovered the said amount of Rs.500/- from the possession of the
appellant-accused in presence of panchas. The Trial Court has also
perused the statement of the appellant-accused recorded under
Section 313 of the Code of Criminal Procedure. It is the duty of the
appellant-accused to rebut the presumption. The Hon’ble Division
Bench of this Court has also considered that it is the duty of the
accused to rebut the presumption.
In
case of State of Gujarat Vs Laxmansinhji Dansinhji Gohil,
reported in GLR 2009(3) 1919, this
Court has held as under :
We
have also considered Sec.8 of the Evidence Act and the statements
recorded under Sec.313 of Cr.P.C. Accused had never bothered to
explain the presence of anthrecene powder as well as recovery of
trap amount. From the evidence of complainant and panch witness, it
is clear that the accused No.1 has demanded illegal gratification
and also made a statement to the complainant that without money his
work will not be done by him. From the conduct of accused No.1, it
appears that he has not explained anything to deny the allegations
regarding demand as well as acceptance of trap money by accused
No.2. Therefore, from the conduct of accused No.1 and accused No.2,
who was present with accused No.1, it is clear that at the event of
direction given by accused no.1 to complainant to give the trap
amount to accused No.2 on the spot. Without any hesitation, the
trap amount was accepted by the accused No.2 in the presence of
panch, then, it was counted by him and again it was placed before
accused No.1, therefore, accused No.1 told him that keep it with
you, he will see later on . So, conduct of both the accused is
established from the oral as well as documentary evidence. So for
as Sec.4 of the Prevention of Corruption Act, 1947 is concerned, it
was the duty of accused to remove the presumption, but we have not
found that they were removed the presumption in a convincing
manner.
Even
the Hon’ble Supreme Court of India in the recent decisino in the
case of State represented by CBI, Hyderabad Vs G. Prem
Raj, reported in (2010)
1 SCC 398, has reiterated
the same ratio.
In
these type of cases, two aspects are important. Firstly, there must
be a demand and secondly, there must be acceptance. It is true that
only demand is not sufficient to establish the offence. There must
be acceptance and it is required to be proved with cogent evidence.
In the present case, from the panchnama, oral evidence of the
panchas, complainant and trapping officer, it is proved beyond
reasonable doubt that demand was made and bribe was accepted by the
appellant-accused. The trapping officer has recovered the trap
amount from the possession of the appellant-accused. The premise is
to be established on the fact from drawing presumption that there
was payment and acceptance of illegal gratification and once the
premise is established, inference to be drawn that said illegal
gratification was accepted as motive and resort for doing
unofficial work in official capacity in a wrong way. Just not to
arrest the original complainant in a bogus case, the
appellant-accused had demanded an unlawful gratification in the form
of Rs.500/- as a bribe amount. These circumstances lead to the
conclusion that the accused has demanded bribe amount and it was
accepted by him. When it is established demand and acceptance of
illegal gratification beyond reasonable doubt, the Court would
certainly be entitled to draw the presumption under the Prevention
of Corruption Act and when the appellant-accused failed to produce
any iota of evidence to rebut the said presumption, the learned
Trial Court has rightly convicted the appellant-accused.
Learned
counsel for the appellant is not in a position to show any evidence
to take a contrary view in the matter or to show that the approach
of the Trial Court is vitiated by some manifest illegality or that
the decision is perverse or that the Trial Court has ignored the
material evidence on record.
In
above view of the matter, I am of the considered opinion that the
Trial Court was completely justified in convicting the
appellant-accused of the charges levelled against him. I find that
the findings recorded by the Trial Court are absolutely just and
proper and in recording the said findings, no illegality or
infirmity has been committed by it.
I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of conviction recorded by the
court below and hence find no reasons to interfere with the same.
Hence, the present appeal is required to be rejected and is hereby
rejected. The
judgment and order dated 19th
August 1996 passed by the learned Special Judge, Godhra in Special
(Corruption) Case No.08 of 1993 holding the appellant-accused guilty
of offences punishable under Sections 7 and 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act, 1988 sentencing
the appellant-accused to suffer Rigorous Imprisonment for one year
and to pay fine of Rs.1,000/- for each offence and in default, to
suffer Rigorous Imprisonment for three months for each offence and
substantive sentences to run concurrently, is hereby confirmed. The
appellant-accused is on bail. This bail bonds shall stand cancelled.
The appellant-accused is, therefore, directed to surrender himself
before the Jail Authority within a period of six weeks from today,
failing which the Trial Court concerned is directed to issue
Non-bailable warrant against the appellant-accused to effect his
arrest. Record and Proceedings to be sent back to the Trial Court.
(Z.
K. Saiyed, J)
Anup
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