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CR.A/19/1995 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 19 of 1995
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================================
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 ?
=========================================================
SITARAM
CHHOTALAL NAYAK - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KB ANANDJIWALA for
Appellant(s) : 1,
MR LR PUJARI, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 05/08/2010
ORAL
JUDGMENT
The present appeal is directed against
the judgment and order in Special Case No. 31 of 1991 passed by the
learned Special Judge, City Sessions Court
No.2, Ahmedabad, dated 20.12.1994, recording the conviction of the
appellant – accused No.1 for the offence under Sections 7,
13(1)(d)(i)(ii) and 13(2) of the Prevention of Corruption Act, and
imposing rigorous imprisonment for six months and fine of Rs.500/-,
in default rigorous imprisonment for three months and also further
imposing rigorous imprisonment for two years and fine of Rs.500/-, in
default, rigorous imprisonment for three months.
2. The facts of the case, briefly
summarised, are that the complainant is working as a Booking Clerk
with a travel agent making travel arrangements and was giving
vehicles on hire. The complainant’s car met with an accident and it
was brought by the break down service with the crane from Gandhinagar
to Ahmedabad. At that time, the accused No.1 was serving at the
Toll Naka and is said to have stopped the vehicle for verification
and on inquiry, he is said to have stated that the vehicle was being
taken for destroying as a scrap vehicle and the octroi was required
to be paid. It is also alleged that the accused No.1 is said to have
stated to the driver that as per the valuation of the vehicle, the
amount of octroi would be more. However, if some Tea expenses is
paid, the vehicle may be released. It is also stated that the
Registration Book was collected by stating that it may be returned on
payment of the amount. Thereupon, when the driver was having only
Rs.50/-, he offered the same which was accepted by the accused and he
was asked to bring the further amount of Rs.150/-.
Thereupon the complainant lodged the
complaint with ACB, Ahmedabad, on the basis of which, a trap was
arranged. After the trap, it was registered as Special Case No. 31
of 1991. The learned Special Judge, City Sessions Court, Ahmedabad,
after framing the charge, proceeded with the trial.
3. After recording of the evidence of
the prosecution witnesses was over, the learned Special Judge also
recorded the further statement of the accused under Section 313 of th
Code of Criminal Procedure.
4. After hearing the learned APP and
the learned advocate for the defence, the learned Special Judge
recorded the conviction of the accused as stated hereinabove for the
offences with which he is charged under the provisions of the
Prevention of Corruption Act.
5. It is this judgment and order which
has been assailed on the ground inter alia set out in detail in the
memo of the appeal contending that the learned Judge has failed to
appreciate the material evidence on record with regard to the demand
and acceptance. It is also contended that the version of the
prosecution has not been corroborated by the panch witnesses and the
panchnama would not be admissible as the panchas have not supported
the prosecution case fully. It has also been contended that the
learned Special Judge has failed to appreciate the material
contradictions and omissions brought out from the evidence of the
panch witnesses and the Police Inspector Solaria. It has also been
contended that there was no meeting between the complainant and
appellant accused at time prior to the raid and therefore, the
prosecution has failed to establish the demand which is the essential
ingredients for recording conviction for the offence under Prevention
of Corruption Act.
6. Learned counsel Mr. Anandjiwala
referred to the testimony of the witnesses including the testimony of
PW.1 complainant at Eh.13 and submitted that as can be seen from the
evidence, there is no initial demand by the accused. For that
purpose, he pointedly referred to the testimony of PW.1 and submitted
that in his cross examination, the complainant has denied the
suggestion that any demand for Rs.200/- was made by the accused No.1.
It is clearly stated that he had only asked for the RTO book. It is
denied that the accused has demanded Rs.50/- and to bring the
remaining amount. He has strenuously submitted that the witness has
stated in his cross examination that the printed currency notes
smeared with Anthracite powder were accepted by accused No.2. Learned
counsel, therefore, submitted that there is no evidence suggesting
the demand by the accused. He has also referred to the testimony of
PW.2 at Eh.16 and submitted that the panch witness who has
accompanied the complainant to observe as to what has transpired.
Learned counsel Mr. Anandjiwala submitted that his evidence has not
corroborated fully the prosecution case. He has referred to the
testimony of PW.2 at Eh.16-panch witness and submitted that no
panchnama was drawn after inquiring from them. Therefore, learned
counsel Mr.Anandjiwala submitted that he has not supported the
prosecution case with regard to demand for which, he pointedly
referred to the cross examination and submitted emphasizing that he
has stated that the complainant had asked the Officer (A1) in the
lobby that he has brought the money. He specifically stated that
before that the accused had not made any demand. He has also stated
that accused officer (A1) had not stated that the money may be
delivered to him. He has also stated that inside the office, the
officer who was sitting on the table, there was no conversation took
place. He has also stated that there was no talk of any kind in the
room and whatever the talk has taken place in the lobby. Learned
counsel Mr. Anandjiwala therefore, strenuously submitted that one of
the aspects to be considered as per the prosecution case is that the
initial demand was for Rs.50/- which was accepted by Accused No.1 and
thereafter Rs.150/- is accepted by accused No.2. Learned counsel Mr.
Anandjiwala submitted that if the demand is not established, the
whole case of the prosecution would fall to ground. He again
referred to PW.1 complainant at Eh.13 and PW.2 at Eh.16 and submitted
that none of them have corroborated on the material aspect. Learned
counsel Mr. Anandjiwala, therefore submitted that as per the
prosecution the initial demand is made by accused No.1 and when the
driver had only Rs.50/- which he offered, he was asked to bring
further Rs.150/- and therefore, he had brought Rs.150/- which is
offered at the time of trap. However, the fact remains that the
initial demand and the payment of Rs.50/- to the accused and whatever
the conversation taken place between the complainant and the accused
No.1, there is no evidence and the complainant turned hostile and has
not supported the case of the prosecution. Similarly, for the amount
of Rs.150/- which was tendered at the time of trap is concerned, it
was accepted by accused No.2 and it has been admittedly recovered
from him.
6.1 Therefore, learned counsel Mr.
Anandjiwala submitted that the demand which precedes the acceptance
and again there is no evidence as to any initial demand inasmuch as
any only the complainant can say on this aspect, who has not
supported the case of the prosecution. He submitted that PW.2 panch
witness in his testimony at Eh.16 does not say about any demand
having been made by accused No.1. He submitted that the prosecution
has failed to establish the demand and that the acceptance is by
Accused No.2.
6.2 Learned counsel Mr. Anandjiwala
submitted that the prosecution has not established that Accused No.2
had accepted the illicit money or the bribe at the instance of
accused No.1. It is submitted that the panch witnesses have also not
totally corroborated and if the evidence of the panch witnesses at
Eh.16 is relied upon, accused No.2 who is said to have accepted the
bribe money is acquitted.
6.3 Learned counsel Mr. Anandjiwala
therefore, referred to the panchnama also and submitted that the
panchnama also cannot be said to be true as the panchnama cannot be
said to be established by the panch witness PW.2 at Eh.16.
6.4 Learned counsel Mr. Anandjiwala
therefore, submitted that none of the three ingredients for the
offence is established by the prosecution.
7. Learned APP Mr. Pujari referred to
the testimony of the witnesses including PW.1 complainant at Eh.13,
PW.2 panch witness at Eh.16 and the FIR and also the testimony of the
complainant at Eh.13 and submitted that the complainant has not
supported the prosecution case and the testimony of PW.2 at Eh.16
also does not corroborate. Again he referred to the testimony of
both the witnesses and referring to the testimony of the panch
witness, he emphasized that it is clearly stated that at the time of
trap, the complainant had gone to the accused who was sitting there
in the office and he has voluntarily stated to have suggested that
the accused has brought the money and to return the Registration
book. Thereupon, the accused No.1 is said to have stated that his
officer is sitting inside and when the complainant insisted that he
is getting late and is required to go out, the accused came out and
asked accused No.2 to accept the amount of Rs.150/- and accused No.1
is said to have given the registration book. Therefore, learned
counsel Mr.Anandjiwala submitted that this evidence does not disclose
the demand by the present appellant accused No.1 not acceptance. He
further emphasized that it is not even stated in his panchnana at
Exh.16 that accused No.2 had accepted the amount/printed currency
notes at the instance of the present accused No.1. He referred to the
testimony of PW.2 panch witness Exh.16 and the panchnama at Exh.17
and submitted that he has admitted that some of the relevant aspects
are not mentioned in the panchnama which he has admitted like whether
the amount was in the handkerchief, had any stains or not, meaning
thereby the currency notes were smeared with Anthracin powder has
not been clearly stated. He, also referred to the testimony of PW.2
panch witness and submitted that he admitted that the panchnama was
taken down by writer of the Police Inspector. Learned counsel Mr.
Anandjiwala referred to the FIR at Exh.14 as well as the testimony of
the witnesses and again emphasised that none of the three ingredients
as were required to be established by the prosecution has not been
established. Referring to the panchnama, learned counsel
Mr.Anandjiwala submitted that it should be re-exhibited so that the
contents said to have been proved. In support of his submission, he
has relied upon the judgment reported in 2007 (1) GLR 428
(Kalahari Danubian Patel v. State of Gujarat). Similarly, he
submitted that the initial demand or the demand or the acceptance by
the accused is not established and therefore, the judgment and order
of conviction recorded against the accused No.1 is erroneous. He
submitted that more particularly when accused No.2 has been
acquitted of all the charges, the learned Judge has failed to
consider the material evidence properly and therefore, the impugned
judgment recording conviction of the present appellant –
accused No.1 is erroneous. He also submitted that the marks of
Anthracin powder which is alleged to be found has not been properly
described by the panch or other witnesses and they have not supported
or corroborated on this aspect. He referred to and relied upon the
judgment reported in 1960 GLR 113 and emphasized with regard to the
use of Anthracin powder and its characteristics have not been
reflected or stated by the witnesses.
Learned APP Mr.Pujari referred to the
testimony of the complainant at Exh.13 and the complaint being FIR at
Exh.14. He submitted that the testimony of the complainant PW.1 at
Exh.13 is fully corroborated by PW.2 panch witness at Exh.19 on the
relevant aspects. He submitted that merely because the complainant
may have stated a different version, the incident is established and
the recovery of the money from Accused No.2 is also established
suggesting the fact that the money has been passed on to accused
persons. Learned APP submitted that though accused No.2 may not have
the power or authority to do any favour as regards octroi duty, but
he was also on duty at the relevant time and at the instance of
accused No.1, he is said to have accepted the money. Learned APP
submitted that it is required to be noted as stated by PW.2 panch
witness in his testimony at Exh.16 also, accused No.1 had come out
from the office accompanied by the complainant and then he has said
to have stated that the amount may be handed over to accused No.2and
accused No.2 was asked to take the money from the complainant. This
would suggest that there was an arrangement and thereby both have
joined together for such illicit demand of bribe. Learned APP relied
upon the testimony of PW.3-Jayeshkumar, Police Inspector, at Exh.21
and submitted that though he is the trapping Officer, he has stated
about the FIR as well as the panchnama and how the trap was arranged.
He was present and if there was a prior intimation, then only the
present complainant would go to offer. He, therefore, submitted that
much emphasis is given that there is no demand and the complainant is
said to have voluntarily stated that he has brought the money.
Considering the entire circumstances as well as the fact that the
complainant was not a person having such nature, would not certainly
go for making any payment without any demand. Learned APP submitted
that the FIR, panchnama and other testimony of the witnesses have
also been corroborated by the testimony by the Officer at Exh.21 and
his evidence cannot be discarded merely because he is an employee or
Police. Learned APP submitted that in such cases, the evidence of
such Officer can be relied upon. He further submitted that the FIR
may not be a substantial piece of evidence which is corroborated by
the evidence of the witnesses. In support of his submission, he has
referred to and relied upon the judgment of the Hon’ble Apex Court
reported in 2008 (11) SCC 722 (Bathula Nagamalleswara Rao and ors.
v. State) – page 55 and 56.
8. In view of the rival submissions, it
is required to be considered whether the impugned judgment and order
calls for any interference or not.
From the testimony witnesses and the
material evidence on record, the main emphasis given by learned
counsel Mr.Anandjiwala on the aspect of demand is required to be
considered. There is no doubt that demand and acceptance are
required to be proved. However, the demand with regard to the money
as bribe has to be established that the amount was demanded as and
by way of bribe. In close scrutiny of the evidence which has been
referred to and relied upon by both the sides, the same required to
be appreciated. The complainant in his testimony at Exh.12 has stated
a different version what is not found in his complaint FIR at
Exh.14.He though stated about the break-down service and the vehicle
being brought, at that time during the checking, one officer made a
demand for octroi duty stating that octroi is to be paid whether it
is being sent for repairs etc. Thereafter, the said person is said
to have taken the Registration book. He does not say as regards the
demand. Similarly, at the time of the trap, he has stated that when
he entered the Octroi Naka office, one person is said to have asked
him to sit and for a cup of Tea. However, when he refused by stating
that he is in a hurry to go to a hospital, he has stated that at that
time, one person with brown pant and shift had come whom he had met
on the previous day and stated that Rs.150/- may be paid and his
work will be done. He has stated that the said person with brown
pant and shirt (accused No.2) had asked him go pay Rs.150/- so that
the RTO book can be returned. Therefore, the complainant paid
Rs.150/- smeared with Anthracin powder to him which he had accepted
and he had arranged for pre-arranged signal. He has categorically
stated that no person/officer can make any demand of money in the
Octroi Office (emphasis supplied). Further, he has identified
accused No.2 as the same person who had accepted the currency notes.
He has stated that the person who had returned the Book is identified
as accused No.1. He has denied the suggestion that there was any
conversation with regard to the demand of Rs.200/- by the officer and
he has specifically stated that he had only taken the RTO book from
him. He has denied that on the previous day Rs.50/- was paid and at
that time, the RTO book was collected stating that if the remaining
amount of Rs.150/- may be brought, the book will be returned. He has
also denied the suggestion that Rs.150/- was accepted by accused
No.2 (person with brown clothes) at the instance of accused No.1. He
has further stated that at the time of collecting the RTO Book, the
receipt was given which is at Exh.15. As against tis, a close
scrutiny of the testimony panch witness PW.2 at Exh.16 is required to
be made on the aspect of corroboration and this witness has also
remained silent on the aspect of the issue. This witness could not
have stated or clarified anything with regard to the prior demand or
settlement arrived at between the complainant and accused No.1 that
remaining amount of Rs.150/- may be paid and thereafter the
registration book may be returned in view of the release of the
vehicle or levying the octroi duty. The subsequent part of the
transaction as to what transpired during the trap, the panch witness,
in his testimony at Exh.16 stated that when they entered the office,
the accused was sitting and when the complainant made a gesture
towards him, he had taken one booklet from the drawer of the table
and thereafter the complainant is said to have stated as is suggested
that he has brought the money and the registration book may be
returned. Thereupon accused No.1 is said to have stated that as
officers are sitting inside and when the complainant suggested that
he is in a hurry, the accused came out and asked a person who looked
like a watchman to collect Rs.150/- which was accepted by him. Parts
of Anthracin powder were therefore, found on the hand’s finger tips
of Accused No.2. In other words, he has stated that when he entered
the office, he had no conversation with the officer in the room and
the person with the brown uniform, watchman like person, present
accused No.2 was not there inside the room. He has also stated that
he has therefore, come outside the lobby and the conversation took
place. He has stated that whether any instruction was given to the
complainant as regards the payment of octroi, he does not remember
about such conversation had taken place in the lobby. The reference
was only to the book. He has specifically stated that when the
complainant had stated that he has arrived and had brought the money
to the accused, the accused had not made any demand for money nor he
had stated that money should be given to him. This will again to go
establish that neither there is any evidence as regards about any
demand or settlement or there is any evidence with regard to payment
of Rs.50/- and the remaining amount of Rs.150/- to be paid after two
hours and for that purpose the registration book was seized by
accused No.1. Similarly, there is no evidence with regard to the
demand by Accused No.1 even during the trap when the complainant is
said to have made improvement stating that he has brought the money.
The accused has not made any demand at that time or accepted the
money at that time. One another aspect which is required is to be
noted that is if the registration book was seized only for the
purpose that if the remaining amount of Rs.150/- is paid, then the
official receipt for such seizure of the registration book would have
not have been given. One further aspect which again arises in the
face is that even according to the complainant himself, he had met a
person on the previous day who was wearing a brown clothes, a
watchman like person. Accused No.2 is said to have informed he may
pay Rs.50/- and the remaining amount of Rs.150/- when the work is
done. This would further raise a doubt as regards the prosecution
case qua the demand or even initial demand by accused No.1.
It is well accepted that the demand
and acceptance and recovery are integral parts of such cases which
are required to be proved beyond reasonable doubt. Even if the
acceptance is proved, it is expected that it would imply that there
was a demand and in response to such payment is made by the
complainant and such acceptance coupled with the presumption under
Section of the Prevention of Corruption Act would establish the guilt
of the accused and even then the acceptance has to be there by the
accused. In the facts of the present case, admittedly, the
acceptance of the smeared currency notes by Accused No.2 is there.
Therefore, there is a case that accused No.2 had accepted such
currency notes smeared with Anthracin powder at the instance of
accused No.1, there is no corroboration on this aspect by the
complainant who had initially made and settled for such deal with the
accused or panch witness who had accompanied the complainant at the
time of the trap even remotely suggests as regards such kind of
arrangement. Therefore, even if it is accepted or assumed for the
sake of argument it is quite possible that the person like the
accused may not himself accept the money and it could have suggested
that it should be made to somebody else who would accept the same on
his behalf and then also the demand to have been accepted by the
accused. Further, for that purpose, there has to be material
evidence to suggest the nexus or an arrangement which is not to be
found in the facts of the present case. Therefore, as the
prosecution has failed to establish the demand, it cannot be said
that the impugned judgment and order recording the conviction is just
and proper and it cannot be sustained and it deserves to be quashed
and set aside more particularly when accused No.2 who is said to have
accepted the bribe.
In the result, the present appeal
stands allowed. The impugned judgment and order passed in Special
Case No.31 of 1991 by the learned Special Judge, City Sessions Court,
Ahmedabad, dated 20.12.1994 recording the conviction of the present
appellant – accused under the provisions of Prevention of Corruption
Act, is hereby quashed and set aside. The appellant-accused is
acquitted of all the charges levelled against him. The appellant is
on bail. Therefore, the bail bond shall stand cancelled. Fine paid,
if any, shall be refunded the appelant-accused. Muddamal is ordered
to be returned to the complainant in terms of the order.
(Rajesh H. Shukla, J.)
Sreeram.
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