{"id":122519,"date":"2011-03-28T00:00:00","date_gmt":"2011-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arvindbhai-vs-heard-on-28-march-2011"},"modified":"2017-08-21T15:35:19","modified_gmt":"2017-08-21T10:05:19","slug":"arvindbhai-vs-heard-on-28-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arvindbhai-vs-heard-on-28-march-2011","title":{"rendered":"Arvindbhai vs Heard on 28 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Arvindbhai vs Heard on 28 March, 2011<\/div>\n
Author: Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/583\/1998\t 12\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 583 of 1998\n \n\n \nFor\nApproval and Signature:  \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================\n\n\n \n\nARVINDBHAI\nLALJIBHAI PANDYA - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================\n \nAppearance : \nMS\nSHRUSTI THULA FOR MR YN OZA for\nAppellant(s) : 1, \nMR RC KODEKAR, LD. ADDL. PUBLIC PROSECUTOR for\nOpponent(s) : 1, \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\nDate\n: 25\/03\/2011\n \n\nCAV\nJUDGMENT\n<\/pre>\n
By
\n\tway of present appeal filed under Section 374 of the Code of
\n\tCriminal Procedure, 1973, the appellant-original accused has inter
\n\talia payed to quash and set aside the judgment and order of
\n\tconviction and sentence dated 11th June 1998 passed by
\n\tthe learned Special Judge, Bhavnagar, in Special Case No.03 of 1994
\n\twhereby the learned Judge was pleased to convict the appellant.\n<\/p>\n
As
\n\tper the case of the prosecution, on 01st December 1993
\n\tthe complainant had given written complaint to ACB Police Inspector,
\n\tBhavnagar wherein he has stated that since last two months he is
\n\tworking as Senior Clerk in the office of Deputy Executive Engineer,
\n\tWater Resources and Research Sub Division. Prior to that, the
\n\tcomplainant was working as Junior Clerk with Narmada Nigam at
\n\tVillage Patdi, District Surendranagar. It is further the case of the
\n\tcomplainant that as his native is Bhavnagar, he had tried for his
\n\ttransfer to Bhavnagar. Because of his efforts, he was transferred to
\n\tPalitana. He has further stated that Executive Engineer’s office is
\n\tsituated at Multi Storied Building, Bhavnagar and Zonal Office is
\n\tsituated at Rajkot. In the normal circumstances, transfer would be
\n\teffected by the Executive Engineer, but in the present case, as
\n\tthere was a clear and vacant post at Palitana, transfer of the
\n\tcomplainant was effected by the Zonal Office directly. It is further
\n\tthe case of the complainant that because of this, the Assistant
\n\tOffice Superintendent (Division), i.e. the present appellant, called
\n\tthe complainant and told the complainant that as to why without
\n\ttaking any permission from him, the complainant had effected his
\n\ttransfer and asked the complainant to make him happy. Thereafter,
\n\tafter some conversation between the complainant and the present
\n\tappellant-accused, on 25th November 1993 the
\n\tappellant-accused demanded Rs.200\/- from the complainant. At that
\n\tpoint of time, the complainant  told the appellant-accused that he
\n\twill see in the next month after salary would be paid. Therefore,
\n\tthe appellant-accused told the complainant that after the salary
\n\twould be made on 01st December 1993, till the evening
\n\thours on that day, make it convenient to send Rs.200\/- in his office
\n\tand thereafter I will see to it that you will be transferred to
\n\tBhavnagar. It is the case of the complainant that he has tried to
\n\tconvince the appellant-accused to reduce the amount, but as per the
\n\tcase of the complainant, the appellant-accused was not convinced. It
\n\tis further the case of the complainant that thereafter also when he
\n\twent to the office, the appellant-accused again asked for Rs.200\/-.
\n\tIt is the case of the complainant that he does not want to given the
\n\tsaid amount to the appellant-accused, but under the compulsion, he
\n\thas to give this amount to the appellant-accused. Therefore, a
\n\tcomplaint to the said effect was given by the complainant.\n<\/p>\n
It
\n\tis the case of the prosecution that complaint was lodged before the
\n\tACB. Thereafter, the services
\n\tof two panchas were sought. The facts of the case were narrated to
\n\tthem and thereafter the experiment was made on the currency notes
\n\twith the help of anthracene powder.  The basic ingredients of the
\n\tanthracene powder were made understood to the panchas as well as the
\n\tcomplainant. After performing the experiment, preliminary part of
\n\tthe panchnama was drawn. The currency notes were smeared with
\n\tanthrecene powder and the said currency notes, i.e. two notes of
\n\tRs.100\/- each, were put into the left pocket of the bush-shirt of
\n\tthe complainant. Thereafter, the complainant, panchs and members of
\n\tthe raiding party went to the office of the appellant-accused
\n\tsituated at Multi Storied Building. Thereafter the complainant and
\n\tthe panch No.1 went into the room of the appellant-accused and the
\n\tcomplainant seat on the chair lying there and the panch No.1 stood
\n\tnear the table. Thereafter the complainant told the
\n\tappellant-accused that “as per the talk between us in the
\n\tafternoon, I am here.” Therefore, the appellant asked “have
\n\tyou brought?”, to which the complainant replied in
\n\taffirmative. Thereafter, the complainant took out the smeared notes
\n\tusing his right hand and handed it over to the appellant-accused.
\n\tThe appellant has received the said notes by his right hand and put
\n\tit in the right pocket (backside) of his pent. Thereafter, the
\n\tappellant-accused told the complainant that he has already prepared
\n\tthe transfer note and will place it for sanction and your work will
\n\tbe done.\n<\/p>\n
Thereafter,
\n\tthe complainant came outside the office room and gave signal to the
\n\tmembers of raiding party. At that point of time, the panch No.1 was
\n\tstanding near the table in the office room of the appellant-accused.
\n\tThereafter, as the A.C.B. Inspector has given his identity, the
\n\tappellant-accused was shivering. Therefore, the Inspector told him
\n\tto sit as it is and told him not to touch anything. Thereafter the
\n\tInspector asked the name, to which he replied that A.L. Pandya, Head
\n\tClerk, Office of Executive Engineer, Water Resources and Research
\n\tDivision, Bhavnagar. At that point of time, it was 19.00 hours.
\n\tThereafter, when the A.C.B. Inspector asked the appellant-accused
\n\tabout the bribe
\n\tamount of Rs.200\/-, the appellant-accused took out the same from his
\n\tpent’s pocket. Thereafter, the Inspector told the panch No.1 to take
\n\tthe said currency notes and when they matched the number of the said
\n\tnotes, it matched with the numbers mentioned in the panchnama.
\n\tThereafter, when the experiment of UV lamp was carried out, light
\n\tblue fluorescent marks were found on right hand finger as well as on
\n\tthe pocket of his pent. Thereafter, after arranging for another pent
\n\tfor the appellant-accused, pent wear by him was seized as muddamal.
\n\tThereafter panchnama of office room of the appellant-accused was
\n\tdrawn as well as the facts mentioned by the panch No.1 were also
\n\tmentioned in the panchnama. The panchnama was completed on 18.45
\n\thours. Thereafter, after following necessary formalities, second
\n\tpart of panchnama was drawn.\n<\/p>\n
Thereafter,
\n\tthe Investigating Officer recorded statements of various persons.
\n\tThereafter,
\n\tFIR was lodged. Statements of the complainant were recorded. After
\n\tobtaining the sanction from the appropriate authority, charge-sheet
\n\tcame to be filed before the Special Court, Bhavnagar.\n<\/p>\n
Thereafter,
\n\tcharge was framed against the appellant. The appellant-accused
\n\thas pleaded not guilty and claimed to be tried.\n<\/p>\n
In
\n\torder to bring the home the charges levelled against the
\n\tappellant-accused, the prosecution has examined witnesses in support
\n\tof their case.\n<\/p>\n
Thereafter,
\n\tafter examining the witnesses, further statement of the
\n\tappellant-accused under Section 313 of the Code of Criminal
\n\tProcedure, 1973 was recorded in which the appellant-accused had
\n\tdenied the case of the prosecution. The appellant-accused in his
\n\tfurther statement submitted that the complainant was residing
\n\tnearby. There was a talk between the complainant and accused
\n\tregarding marriage of complainant’s sister and son of the
\n\tappellant-accused, but as the same was refused by the appellant’s
\n\tson, therefore, there was animosity between the complainant and the
\n\tappellant-accused. The appellant-accused has also stated in his
\n\tfurther statement that prior to 20 to 25 days from the date of
\n\tincident, the appellant had given Rs.200\/- to the complainant as
\n\tloan and when the appellant demanded back the said amount from the
\n\tcomplainant, the said illegal complaint was lodged.\n<\/p>\n
After
\n\tconsidering the oral as well as documentary evidence and after
\n\thearing the parties, the learned trial Judge vide impugned judgment
\n\tand order dated 11th
\n\tJune 1998 held the appellant-accused guilty to the charges
\n\tlevelled against him under Section 7 of the Prevention of Corruption
\n\tAct, 1988 and sentenced him to undergo rigorous imprisonment for a
\n\tperiod of six months and also imposed fine of Rs.02,000\/-, and in
\n\tdefault of payment of fine, ordered to undergo rigorous imprisonment
\n\tfor a further period of three months. The appellant-accused was also
\n\theld guilty for the offence punishable under Section 13(2) of the
\n\tPrevention of Corruption
\n\tAct, 1988 and was sentenced to undergo rigorous imprisonment for a
\n\tperiod of one year, and also imposed fine of Rs.02,000\/-, and in
\n\tdefault of payment of fine, ordered to undergo rigorous imprisonment
\n\tfor a period of three months. However, it was ordered that both the
\n\tsentences shall run concurrently.\n<\/p>\n
Being
\n\taggrieved by and dissatisfied with the impugned judgment and order
\n\tof conviction and sentence passed by the learned Special Judge,
\n\tBhavnagar, the appellant has preferred the present appeal.\n<\/p>\n
Heard
\n\tMs.Shrusti Thula, leaned counsel for the appellant and Mr.R.C.
\n\tKodekar, learned Additional Public Prosecutor for the
\n\trespondent-State.\n<\/p>\n
Ms.Thula,
\n\tlearned counsel appearing for the appellant has contended that the
\n\tjudgment and order passed by the learned trial Judge is illegal,
\n\tinvalid and improper. She has also contended that the learned trial
\n\tJudge has not considered the case of the defence and evidence and
\n\tmaterial produced on record. It is also contended by Ms.Thula that
\n\tthe evidence of panch No.1 is not corroborating the facts of the
\n\tcase and even the learned trial Judge has also believed the said
\n\tversion of the panch No.1. She has also contended that the judgment
\n\tand order of the learned trial Judge is erroneous and contrary to
\n\tthe evidence on record. She has also contended that the learned
\n\ttrial Judge has failed to appreciate that there is animosity between
\n\tthe appellant and the
\n\tcomplainant as the appellant has refused to get married his son with
\n\tthe daughter of the complainant and therefore, the alleged trap was
\n\tmanaged by the complainant. It is also contended by the leaned
\n\tcounsel for the appellant that when animosity is established and
\n\tproved beyond reasonable doubt and when the panch witness has failed
\n\tto prove the case of the complainant, the judgment and order of the
\n\tlearned trial Judge is required to be quashed and set aside. She has
\n\talso contended that the learned Special Judge has failed to
\n\tappreciate that the appellant was working as Office Superintendent
\n\tand he has no authority to transfer any person and therefore, there
\n\twas no question of asking money for transfer by way of illegal
\n\tgratification. She has also contended that this was done only with
\n\tan intention to settle the score with him. Ms.Thula has also
\n\tcontended that the appellant has given loan of Rs.200\/- to the
\n\tcomplainant and the complainant came to return the said amount of
\n\tRs.200\/- and has taken undue advantage of the situation by saying
\n\tthat this amount is to be paid as illegal gratification and thereby
\n\tthe complainant has taken revenge to settle the old score of refusal
\n\tof the appellant for getting his son married with the sister of the
\n\tcomplainant. She has also contended that this aspect of the matter
\n\tought to have been appreciated by the learned Special Judge and
\n\tbenefit of doubt ought to have been given to the appellant. She has
\n\talso contended that the learned Special Judge has failed to take
\n\tinto consideration the probable defence of the appellant. The
\n\tappellant is innocent
\n\tand he is falsely involved in the present case. She has also
\n\tcontended that there are sufficient oral as well as documentary
\n\tevidence produced on record to say that there was animosity between
\n\tthe appellant and the complainant. She has also contended that
\n\tconduct of the complainant is also required to be looked into. She
\n\thas also contended that the complainant is habitual complainant and
\n\the is in habit of making complaints against his co-staff members.
\n\tShe has also contended that the prosecution has failed to establish
\n\tthe demand beyond reasonable doubt. Prosecution has failed to prove
\n\tdemand through the evidence of panch Nos.1 and 2. Thus, when demand
\n\tis not established, then no question of acceptance would arise. When
\n\tthe appellant has explained the probable defence in his statement
\n\trecorded under Section 313 of the Code of Criminal Procedure, it
\n\tcannot be said that the defence taken by the appellant is an
\n\tafterthought. Ms.Thula has also read Exhibit 19 – Sanction
\n\tOrder and contended that the sanction is given without application
\n\tof mind. She has contended that the present appellant is innocent
\n\tand he has been falsely involved in the present case. Just to take
\n\trevenge, the complainant has filed false complaint against the
\n\tappellant. The learned Special Judge has failed to take into
\n\tconsideration the probable defence of the appellant. She, therefore,
\n\tcontended that the judgment and order of the learned Special Judge
\n\tis required to be quashed and set aside and the appellant is
\n\trequired to be set at liberty. She has also read the oral evidence
\n\tof panch No.1.\n<\/p>\n
As
\n\tagainst this, Mr.Kodekar, learned Additional Public Prosecutor, has
\n\tcontended that the judgment and order passed by the learned Special
\n\tJudge is absolutely just and proper. He has contended that the
\n\tprosecution has proved its case beyond reasonable doubt. He has read
\n\tthe oral evidence of the complainant and contended that if there was
\n\tanimosity between the complainant and the appellant, then it is not
\n\tpossible that appellant would give the loan of Rs.200\/- to the
\n\tcomplainant. He has contended that looking to the overall facts and
\n\tcircumstances of the case, circumstantial evidence and evidence
\n\tproduced on record, the order passed by the learned Special Judge is
\n\tabsolutely just, proper and correct and is not required to be
\n\tinterfered with. He has also contended that the evidence of the
\n\tpanchs are supported the case of the prosecution. In presence of the
\n\tpanch No.1, the appellant asked the complainant about the money and
\n\tin his presence, the complainant has given Rs.200\/- to the
\n\tappellant. Thus, demand and acceptance is proved through the oral
\n\tevidence of the panch No.1.  He, therefore, contended that the
\n\tappeal is required to be dismissed.\n<\/p>\n
I
\n\thave heard the learned counsel for the parties and perused the
\n\tpapers produced before me. I have also perused the submissions
\n\tadvanced by the learned counsel for the parties. It appears that the
\n\tcomplainant and the appellant-accused were residing nearby and there
\n\twas some talk of marriage between the sister of the complainant and
\n\tson of the appellant, but due to some reason, the appellant refused
\n\tto get married his son with sister of the complainant. It also
\n\tappears that prior to the incident in question, the appellant had
\n\tgiven Rs.200\/- to the complainant as loan. From the oral evidence of
\n\tthe panch No.1, it is proved that the appellant has accepted
\n\tRs.200\/- from the complainant, but it is not accepted as a bribe
\n\tamount. It is accepted by the appellant as the complainant has to
\n\tpay Rs.200\/- towards loan given to him. The panch No.1 does not know
\n\tthe fact of loan given by the appellant to the complainant. Thus,
\n\tthe question of demand as illegal gratification is not proved. From
\n\tthe very beginning of the investigation, the appellant has given
\n\tprobable defence, but the said defence was not investigated properly
\n\tby the Trapping Officer.\n<\/p>\n
I
\n\thave gone through the impugned judgment and order passed by the
\n\tlearned trial Judge and  oral as well as documentary evidence
\n\tproduced on the record. I have read the oral evidence of prosecution
\n\twitnesses and also perused the charge framed against the appellant.
\n\tI find that the probable defence made by the appellant is
\n\ttrustworthy, reliable and acceptable. The learned Special Judge has
\n\tfailed to consider this aspect of the matter and has passed the
\n\torder. The prosecution has failed to prove its case beyond
\n\treasonable doubt. It also transpires from the papers that the
\n\tappellant-accused was working as Office Superintendent and he has no
\n\tauthority to transfer any person. It is also transpired from the
\n\tpapers that the complainant is a habitual complainant and he is in
\n\thabit of making complaints against his co-staff members.\n<\/p>\n
It
\n\tis also required to be considered the fact that the defence was
\n\ttaken at an early stage and it cannot be said as an afterthought.
\n\tThe evidence of the defence cannot be ignored because defence of
\n\taccused person can legitimately be taken into consideration while
\n\tassessing the value of evidence and judging the guilt or innocence
\n\tof the accused. Defence can be inferred from the circumstances
\n\tappearing in the case. Thus, it clearly transpires that due to
\n\tanimosity, the appellant is falsely involved in the case. Sanction
\n\tis also not legal and proper and hence, the appellant-accused
\n\trequires to be acquitted.\n<\/p>\n
Hence,
\n\tin view of the foregoing reasons, present appeal is allowed. The
\n\tjudgment and order of conviction and sentence dated 11th
\n\tJune 1998 passed by the learned Special Judge, Bhavnagar, in Special
\n\tCase No.03 of 1994, is hereby quashed and set aside. Since the
\n\tappellant is on bail, no order in respect of setting him at liberty
\n\tis passed. The appellant is hereby acquitted from the charges
\n\tlevelled against him. Fine, if paid, be refunded to the appellant.
\n\tBail bond, if any, shall stands discharged. Record and Proceedings,
\n\tif any, be sent back to the trial Court forthwith.\n<\/p>\n
(Z.\n<\/p>\n
K. Saiyed, J)<\/p>\n
Anup<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Arvindbhai vs Heard on 28 March, 2011 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/583\/1998 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 583 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= 1 Whether Reporters of Local Papers may be allowed to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-122519","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nArvindbhai vs Heard on 28 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arvindbhai-vs-heard-on-28-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arvindbhai vs Heard on 28 March, 2011 - 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