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CR.A/455/1997 8/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 455 of 1997
With
CRIMINAL
APPEAL No. 504 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
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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 ?
=========================================================
MUNIKUMAR
DHIRAJLAL PAREKH - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance :
MR
MJ BUDDHBHATTI for
Appellant(s) : 1,
MR H L JANI, ADDL PUBLIC PROSECUTOR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 08/04/2010
ORAL
JUDGMENT
Present
appeal is directed against the judgment and order dated 31/03/1997
passed by the learned Special Judge, Junagadh in Special Case No.9 of
1989 recording conviction of the accused for the offence under
Section 5 (d) (1) of Prevention of Corruption Act and also for
offence under Section 161 of the Indian Penal Code imposing sentence
till rising of the Court and fine of Rs.2,500/- in default simple
imprisonment for two months.
1.1 The
appellant original accused has expired during pendency of the appeal.
However, as per the order passed in Criminal Misc. Application
No.6127 of 2003 in Criminal Appeal No.455 of 1997 dated 27/08/2004
the widow of the deceased appellant accused has been
permitted to continue and pursue the appeal as per Section 394 (2) of
the Code of Criminal Procedure.
2. Criminal
Appeal No.455 of 1997 is filed by the accused challenging the
impugned judgment and order and Criminal Appeal No.504 of 1997 is
filed by the State of Gujarat for enhancement of sentence as the
sentence awarded is less than minimum.
3. It
is the case of prosecution that on 15/10/1986 the case of son of the
complainant was pending in the Juvenile Court at Junagadh regarding a
quarrel with the neighbour. On 15/10/1986 the complainant had visited
the court and met the accused who was Public Prosecutor in the matter
and had asked as to whether the case would proceed and also to have
sympathy for his son. Thereupon the accused is said to be stated to
the complainant that he cannot have a dry sympathy and he must
understand the Vyavahr . Thereafter the accused is said to have
stated and demanded Rs.1000/- as and by way of illegal gratification
for favouring son of the complainant who was juvenile accused stating
that he would not argue so that son of the complainant get acquitted
and released.
3.1 The
complainant thereafter had gone to the ACB Office, Junagadh as he was
not inclined to offer illegal gratification / bribe and lodged a
complaint and the trap was arranged. The basis of the complaint when
the trap was arranged the complainant accompanied by the Panch
Witness No.1 and Trap Laying Officer again went to the Juvenile Court
at 3:30 p.m. When they reached the court compound the accused is
said to have stated that Mr.Makrani have come and then brought the
money. Thereafter, they had gone to one side and the currency note
of Rs.1,000/- tainted with antharacene powder offered to the accused
by taking out from the pocket of the shirt by the complainant. The
said tainted currency note was accepted by the accused with left hand
and placed it in the left side pocket of his pent. Thereafter when
the signal was given the Trap Laying Officer and the Prosecution
Witness No.2 and raiding party had rushed and arrested the accused.
Thereafter, he was taken to the Office of Superintendent in the same
premises where the Panchnama of the second part was made recording
the recovery of the tainted currency note from the accused and also
the clothes i.e. pent which the accused had put on. The test with
regard to marks of anthracene powder was carried out on the accused
as well as the complainant. It is on the basis of this the case was
registered as a Special Case No.9 of 1989 and the charge was framed
at Exh.12 against the accused. Thereafter, the learned Special
Judge, proceeded with the trial. In order to bring home charge
against the accused the prosecution had examined the witnesses i.e.
Prosecution Witness No.1-complainant, Prosecution Witness No.2-Panch
Witness No.1, Prosecution Witness No.3-Trap Laying Officer and also
produced documentary evidence which shall be referred to in the
judgment. After recording of evidence of prosecution witnesses was
over the learned Special Judge, Junagadh had recorded the further
statement of the accused under the provisions of Section 313 of the
Code of Criminal Procedure and after hearing learned APP as well as
learned Advocate for the defence the learned Special Judge, Junagadh
convicted the accused for the offence under Section 5 (2) of the
Prevention of Corruption Act read with Section 161 of the Indian
Penal Code. It is this judgment and order which has been assailed on
the grounds stated in detail inter-alia that learned Judge has failed
to appreciate the material on record and has recorded the conviction
without considering the relevant material.
4. Mr.Buddhbhatti,
learned Counsel referred to the testimony of the complainant
(P.W.No.1) at Exh.19 and his complaint being FIR (Exh.20). Referring
to the testimony of the complainant and the testimony of Panch
Witness No.1 (Exh.24), it is submitted that there are discrepancy in
the evidence of the prosecution. He has emphasized referring to the
time of trap and the manner in which the entire trap hurriedly
arranged. He further referred to the time stating that it is the
case of the prosecution that initially he visited the Court premises
and met the accused and when the demand was made the complainant is
said to have stated that he does not have money. He would have
arranged. He thereafter gone to the ACB Office and the trap is
arranged. It is submitted that there is nothing on record as to how
and from whom he had brought money which is offered by way of illegal
gratification. He has also referred to the testimony of
P.W.No.1-complainant and submitted that it is admitted in the
cross-examination that before this incident no such demand for
illegal gratification was made by the accused. Further, he
emphasized that though he had stated referring to the demand made by
the accused and others on earlier occasion also the same is not to be
found in his complaint (Exh.20). Similarly, it was submitted that
talks of compromise was going on and the matter was adjourned for
that purpose and he has also admitted that whenever the matter used
to get adjourned the accused appearing as a prosecutor had agreed.
He submitted that there is no bargain as Prosecution Witness No.1 has
admitted that when the demand was made for Rs.100/- by the accused he
had not even suggested to reduce which is not possible as it would be
a natural conduct to request for reducing the amount. Mr.Buddbhatti,
therefore submitted that the case of the prosecution cannot be
believed considering the conduct of the accused and the time gap that
after deciding in the morning he went and again came at 3:30 p.m.
after the trap was arranged. He submitted that the chronology of
events and the time does not seem properly and therefore it is not
believable. He emphasized and submitted that the trap is said to be
over just within ten minutes. He has further submitted that in-fact
the complainant is willingly given bribe or offered money and
therefore it cannot be said that there was any demand. He also
referred to the further statement of the accused recorded under
Section 313 of the CrPC and submitted that as stated by him on
earlier occasion as the complainant wanted time though the witnesses
were present, the Court had passed an order for payment of bhathha /
charges to the witnesses and therefore the complainant was annoyed
and he has filed a false complaint.
4.1 Mr.Budhhbhatti,
has also submitted that the Panch is a selected witness and he has
also referred to the testimony in detail and submitted that he is a
government employee and interested witness and he cannot be said to
be an independent witness.
4.2. Mr.Buddhbhatti,
therefore submitted that the so-called demand for the illegal
gratification / bribe and also the recovery thereof is doubtful.
Again for that purpose he has referred to the testimony of
complainant (P.W.No.1) and Panch Witness No.1 (P.W.No.2) and
submitted that though the pocket of the shirt of the complainant is
not marked similarly pocket of the pent of the accused from where
tainted currency note is recovered is not marked and therefore the
recovery is doubtful. He therefore submitted that the learned
Special Judge has committed an error in recording the conviction.
4.3 Mr.Buddhbhatti,
submitted that as the accused has expired, Criminal Misc. Application
No.6127 of 2003 in Criminal Appeal No.455 of 1997 was preferred by
the widow of the accused seeking liberty to continue the appeal only
with a view that if the conviction is set aside she may entitle to
get the financial benefits like provident fund, gratuity, etc., and
therefore it may be considered sympathetically.
5. Mr.Jani,
learned APP has referred to the testimony of complainant, Panch
Witness No.1 and the Investigating Officer. He submitted that the
testimony of complainant is corroborated with regard to the demand,
acceptance and recovery by the testimony of Panch Witness No.1 as
well as Investigating Officer (P.W.No.3). He also referred to the
judgment and submitted that it is not in dispute that the accused was
a public servant. The valid sanction has also been granted. He
therefore submitted that when the testimony of complainant is
corroborated on material aspects like demand, acceptance and recovery
by the Panch Witness No.1 and Investigating Officer which has also
been recorded in the Panchnama (Exh.25), there is no reason to
discard this evidence and it cannot be said that there was no demand
or acceptance. Referring to the Panchnama, testimony of complainant
and Panch Witness No.1 it is submitted that it clearly establishes
that tainted currency note offered as and by way of bribe was
accepted by the accused and it has been recovered from the pocket of
his pent. He submitted that marks of anthracene powder are found on
the finger tips of the accused and also on the pocket of the pent of
the accused which has been recovered. He therefore submitted that it
clearly establishes the acceptance and recovery.
5.1 Mr.Jani,
learned APP has referred to and relied upon the reported decision of
AIR 2001 SC 147 in case of Madhukar Bhaskarrao Joshi Vs. State of
Maharashtra and submitted that once the public servant is found
in possession of smeared currency notes with phenolphthalein powder
it is sufficient to draw legal presumption and prosecution under
section and need not to prove that money was paid to public servant.
5.2. Mr.Jani,
has therefore submitted that discrepancy with regard to so-called
timings and the contentions based on time factor, it must be possible
to believe that such trap would be arranged and money offered must be
accepted. He further submitted that even if there are some
discrepancies, there are no material contradictions and therefore the
judgment and order recording conviction is just and proper. Mr.Jani
has also submitted that even in further statement recorded under
Section 313 of the Code of Criminal Procedure the accused has not
offered any explanation with regard to the tainted currency note
found in his possession and has merely denied about any such demand
or acceptance or recovery. He therefore submitted that as the
appellant original accused has expired the appeal filed by the
State for enhancement of sentence would not survive and even the
appeal filed by the accused has been permitted to continue by the
widow for the limited purpose of availing benefits, if the judgment
and order is reversed. However, he submitted that in light of the
material placed on record the judgment and order recording conviction
is just and proper and may be sustained.
8. In
view of the rival submissions it is required to be appreciated
whether the present appeal calls for any interference or not. As it
is evident that the appellant accused has expired pending the
appeal which would have abated but for the permission granted
pursuant to the order passed in Criminal Misc. Application No.6127 of
2003 in Criminal Appeal No.455 of 1997, the said application and
permission was obviously for the purpose that if the appeal is
allowed the widow may be entitled to financial benefits of provident
fund, gratuity, etc., as the deceased accused was public
prosecutor in a trial Court. The appeal preferred by the State for
enhancement would not survive. Therefore, in this background even
for considering the material and evidence on record the Court has
scrutinized the entire evidence to analyze and appreciate the
submissions made by learned Counsel, Mr.Buddhbhatti. As it
transpires from the material and evidence it is evident that
initially the complainant had met the accused at 12 O’clock in the
Court where the accused is said to have demanded illegal
gratification / bribe of Rs.100/- for favouring son of the
complainant in a Juvenile Court. When the complainant had said that
he does not have money he would arrange for that and thereafter he
lodged the complaint and trap was arranged. Panchnama of the first
part was prepared and thereafter they proceeded for trap in the
Juvenile Court. The accused is said to have been present when he saw
the complainant, he said to have again repeated his demand suggesting
as to as he has come and whether he has brought the money. Thereupon
the complainant has offered currency note of Rs.100/- smeared with
the anthracene powder which is accepted by the accused in presence of
Panch Witness No.1. Thereafter, when the signal was given the
members of the raiding party gathered and in the Office of
Superintendent in the Court premises itself the recovery of the
tainted currency note of Rs.100/- was made from the pocket of the
pent of the accused. The marks of anthracene powder was found on the
finger tips of the hand of the accused as well as the marks of
anthracene powder were found on the pocket of his pent. This
testimony of the complainant is corroborated by the testimony of
Panch Witness No.1. Testimony of Panch Witness No.1 which has also
further corroborated by the testimony of the Investigating Officer.
Therefore, these submissions made by Mr.Buddhbhatti that there was no
demand cannot be believed or accepted in light of the clear evidence
with regard to demand, acceptance and recovery of the tainted
currency note from the pocket of the pent of the accused. It is also
required to be mentioned that there was a motive for such demand that
he could favour the complainant by not representing the case properly
where the son of the complainant was a juvenile accused. Therefore,
this aspect has been clearly established coupled with this motive,
submissions made by Mr.Buddhbhatti that such complaint has been filed
to falsely implicate as the complainant was annoyed when the order
was passed to give Bhathha / charges to the witnesses. There is no
plausible explanation with regard to the acceptance and recovery of
tainted currency note. The another facet of the argument with regard
to the discrepancy and the independent witness has not been examined
is also ill founded as the learned Special Judge has also dealt with
this aspect to which the learned APP has drawn the attention that
Trap Laying Officer has simply suggested the Higher Officer of the
Prosecution Witness No.2 to send anybody therefore there was no
question of selecting any Panch by the Trap Laying Officer. There is
no animosity between the Prosecution Witnesses No.1, 2 and 3 and the
accused. Therefore, these is no reason for these witnesses to support
the complainant and cause any prejudice to the accused by giving
false evidence or falsely implicating accused.
9. The
judgment of the Hon’ble Apex Court referred to and relied upon by
learned APP though refers to the Prevention of Corruption Act, 1988
whereas present case is of Prevention of Corruption Act, 1947.
However, the observations in paragraph No.18 are required to be
considered for the alternative submission made by learned Counsel,
Mr.Buddhbhatti that as the accused has expired the widow who has
persuaded this appeal only with a view to get some benefit may be
considered. This submission is required to be considered in light of
the fact that accused was a Public Prosecutor and his function was to
assist the Court in administration of justice and therefore it was
his obligation to discharge his duty impartially. On the contrary,
he is said to have indulged in such activity for not representing the
case of the Juvenile accused, son of complainant and for such favour
had demanded and accepted the bribe. This has to be therefore
considered also in the background of the object of the Prevention of
Corruption Act. The Hon’ble Apex Court in the judgment reported in
AIR 2001 Page 147 in paragraph No.18 has observed as under:
18.
When corruption was sought to be eliminated from the polity all
possible stringent measures are to be adopted within the bounds of
law. One such measure is to provide condign punishment. Parliament
measured the parameters for such condign punishment and in that
process wanted to fix a minimum sentence of imprisonment for giving
deterrent impact on other public servants who are prone to corrupt
deals. That was precisely the reason why the sentence was fixed as 7
years and directed that even if the said period of imprisonment need
not be given the sentence shall not be less than the imprisonment for
one year. Such a legislative insistence is reflection of Parliament’s
resolve to meet corruption cases with very strong hand and to give
signals of deterrence as the most pivotal feature of sentencing of
corrupt public servants. All public servants were warned through such
a legislative measure that corrupt public servants have to face very
serious consequences. If on the other hand any public servant is
given the impression that if he succeeds in protracting the
proceedings that would help him to have the advantage of getting a
very light sentence even if the case ends in conviction, we are
afraid its fallout would afford incentive to public servants who are
susceptible to corruption to indulge in such nefarious practices with
immunity. Increasing the fine after reducing the imprisonment to a
nominal period can also defeat the purpose as the corrupt public
servant could easily raise the fine amount through the same means.
10. In
the result the judgment and order dated 31/03/1997 passed by the
learned Special Judge, Junagadh in Special Case No.9 of 1989 deserves
to be confirmed and is accordingly confirmed. Criminal Appeal No.455
of 1997 preferred by the appellant accused (deceased) deserves to
be dismissed and is accordingly dismissed. Criminal Appeal No.504 of
1997 preferred by the State of Gujarat for enhancement, as the
sentence awarded was less than minimum, would not survive as the
appellant-accused has expired and accordingly stands disposed of.
(RAJESH
H SHUKLA, J.)
sompura
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