{"id":144056,"date":"2011-04-20T00:00:00","date_gmt":"2011-04-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chimanlal-vs-heard-on-20-april-2011"},"modified":"2018-06-10T11:25:19","modified_gmt":"2018-06-10T05:55:19","slug":"chimanlal-vs-heard-on-20-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chimanlal-vs-heard-on-20-april-2011","title":{"rendered":"Chimanlal vs Heard on 20 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Chimanlal vs Heard on 20 April, 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\/560\/1997\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. 560 of 1997\n \n\n \n\n\n \n\nFor\nApproval and Signature:  \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \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\nCHIMANLAL\nMAVJIBHAI PATEL - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================\n \nAppearance : \nMR\nKB ANANDJIWALA 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: 20\/04\/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 prayed
\n\tto quash and set aside the judgment and order of conviction and
\n\tsentence dated 21st May, 1997 passed by the learned
\n\tSpecial Judge, Kutch-Bhuj, in Special Case No.02 of 1990 whereby the
\n\tlearned Judge was pleased to convict the appellant for the offence
\n\tpunishable under Section 7 of the Prevention of Corruption Act, 1988
\n\tand sentenced him to undergo simple imprisonment for a period of
\n\tone-and-half-year, and also imposed fine of Rs.500\/-, and in default
\n\tof payment of fine; sentenced him to undergo simple imprisonment for
\n\ta further period of three months. The appellant was also convicted
\n\tfor the offence punishable under Section 13(1)(d)(i) and
\n\t13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption
\n\tAct, 1988 and was sentenced to undergo simple imprisonment for a
\n\tperiod of one year, and fine of Rs.400\/-, and in default of payment
\n\tof fine; sentenced to undergo simple imprisonment for a further
\n\tperiod of two months.\n<\/p>\n
As
\n\tper the case of the prosecution, the appellant was serving as
\n\tSuperintending Engineer in the Gujarat Water Supply and Sewerage
\n\tBoard since February, 1988 and since then he was discharging his
\n\tduties at Kutch. As per the case of the prosecution, the complainant
\n\thad allotted contract work of Rudramata Operator Quarter and A-one
\n\tQuarter near Inspection Bungalow at Bhuj in the year 1987. It is
\n\talso the case of the original complainant that thereafter he was
\n\tassigned extra work of wire-fencing of Rudramata Operator and A-one
\n\tQuarters. The original complainant did the said work with
\n\texpectation of approval of the same. It is the case of the
\n\tprosecution that the original complainant has received the bill
\n\tamount of contract work assigned to him; however, the bill amount of
\n\textra work done by him was not paid to him and according to the bill
\n\tamount, the complainant had done total work of Rs.78,700.76 paisa.
\n\tAs per the case of the prosecution, the said bill for extra work
\n\twere sent to the office of the Superintending Engineer by the
\n\tExecutive Engineer for sanction and the same were pending in the
\n\toffice of the Superintending Engineer. It is the case of the
\n\tprosecution that on 03rd May, 1989 when the original
\n\tcomplainant visited the office of the Superintending Engineer and
\n\tcontacted him with regard to his pending bills, the present
\n\tappellant had demanded Rs.500\/- by way of illegal gratification from
\n\thim and he has paid the said amount, which was accepted by the
\n\tappellant.  It is further alleged by the original complainant that
\n\ton 06th July, 1989 in the afternoon, he had gone to the
\n\toffice of the Superintending Engineer and contacted the appellant
\n\tand requested him to sanction the pending bill. At that point of
\n\ttime, as alleged, the appellant told the complainant that he should
\n\tcome to him on Friday in the afternoon, and if the bills are to be
\n\tpassed, then he would have to make the payment of Rs.500\/-. At that
\n\ttime, as alleged by the original complainant, he told the appellant
\n\tthat he would be coming on 07th July, 1989, i.e. on
\n\tFriday, in the afternoon with Rs.500\/- and left the office.\n<\/p>\n
Thereafter,
\n\tas the complainant was not willing to make the payment, he
\n\tapproached the ACB Office on 07th
\n\tJuly, 1989 and lodged his FIR before the police. Thereafter,
\n\tthe services of two panchas were sought. The facts of the case were
\n\tnarrated to them and thereafter
\n\tthe experiment was made on the currency notes with the help of
\n\tanthracene powder.  The basic ingredients of the anthracene powder
\n\twere made understood to the panchas as well as the complainant.
\n\tAfter performing the experiment, preliminary part of the panchnama
\n\twas drawn. The
\n\tcurrency notes were smeared with anthrecene powder, i.e. five notes
\n\tof Rs.100\/- each. Thereafter, the complainant, panchs and members of
\n\tthe raiding party proceeded towards the office of the appellant in
\n\ttwo rickshaw. Thereafter, the complainant and the panch No.1 went
\n\tinside the chamber of the appellant. The appellant asked the
\n\tcomplainant as to for what purpose he had come, to which the
\n\tcomplainant replied that he had come for the bills of extra work
\n\tbeing done by him. It is also the case of the complainant that at
\n\tthat time, as alleged, the appellant told the complainant that if
\n\tthe bills are to be sanctioned, it would cost Rs.1,200\/-. Therefore,
\n\tthe complainant had given the cover containing Rs.500\/- and told
\n\tthat the remaining amount of Rs.700\/- would be paid after passing of
\n\tthe bill. Thereupon the appellant told that his bills would be
\n\tpassed and the same would be sent. Thereafter, the complainant came
\n\toutside the room and gave signal to the members of raiding party.
\n\tThereafter, the amount was recovered from the pocket of the pant of
\n\tthe appellant in a cover. The said cover was taken out and from that
\n\tcover, amount of Rs.500\/- was recovered. Thereafter the second part
\n\tof the panchnama was drawn.\n<\/p>\n
Thereafter,
\n\tthe Investigating Officer lodged FIR, registered the offence and
\n\trecorded the statement of the complainant. Thereafter, the
\n\tInvestigating Officer carried out investigation and recorded
\n\tstatements of various persons. Thereafter, after
\n\tobtaining sanction, charge-sheet came to be filed against the
\n\tappellant-accused.\n<\/p>\n
Thereafter,
\n\tcharge at Exhibit 9 was framed against the appellant for the
\n\toffences punishable under Section 7, 13(1)(d)(i) and (ii) read with
\n\tSection 13(2) of the Prevention of Corruption Act. The
\n\tappellant-accused 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 nine witnesses and
\n\talso produced documentary evidence in support of its 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.\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 21st
\n\tMay, 1997 held the appellant-accused guilty to the charges
\n\tlevelled against him as mentioned aforesaid.\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\tKheda-Bhuj, the appellant has preferred the present appeal.\n<\/p>\n
Heard
\n\tMr.K.B. Anandjiwala, leaned counsel for the appellant and Mr.R.C.
\n\tKodekar, learned Additional Public Prosecutor for the
\n\trespondent-State.\n<\/p>\n
Mr.Anandjiwala,
\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. He 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. He has read the charge at Exhibit 9 and
\n\tcontended that demand of Rs.1,200\/- is not proved. He has read the
\n\toral evidence of PW No.1-complainant and contended that from the
\n\tcross-examination of the said witness, demand is not established. He
\n\thas also contended that the second demand and recovery is also not
\n\tproved beyond reasonable doubt. He has also contended that the
\n\tcontents of Exhibit 9-Charge is not proved. Therefore, corroboration
\n\tof accomplice is necessary for the prosecution and from the oral
\n\tevidence of PW No.2, no corroboration is proved. He has further read
\n\tthe oral evidence of the complainant and contended that there are
\n\tsufficient contradictions in the oral evidence and FIR lodged by the
\n\tcomplainant. The learned trial Judge has not considered the
\n\tcontradiction between the oral evidence and FIR lodged by him. He
\n\thas also contended that even there are sufficient contradiction
\n\tbetween the oral evidence of PW No.1 and PW No.2. He
\n\thas also contended that as per the evidence of the prosecution,
\n\tamount was given in the cover and from the oral version of the
\n\tprosecution, prosecution has failed to prove the said story of the
\n\tcover from the PW No.1. He has also contended that doubt is created
\n\tin favour of the present appellant. He has also contended that from
\n\tthe oral version of the witness, story of the charge regarding
\n\tdemand of Rs.1,200\/- is not proved and even the said disputed cover
\n\tis also not recovered from the appellant, but it is recovered from
\n\tthe possession of the complainant. He has also read the oral
\n\tevidence of PW No.1 regarding conversation and contended that no
\n\tdemand was made by the appellant of Rs.500\/-. Even PW No.1 is also
\n\tnot on the same footing. The learned trial Judge has not considered
\n\tthe said contradiction in the evidence of PW No.1 and No.2.
\n\tMr.Anandjiwala has also contended that the sanction given by the
\n\tAuthority is without application of mind. He has contended that the
\n\tBoard did not pass any Resolution granting sanction to prosecute the
\n\taccused, but left it to the Member Secretary to act as per the
\n\tRules. The Member Secretary has no powers to grant sanction and
\n\tsince the services of the accused have been transferred to the said
\n\tBoard, the Board has to decide about the proposed sanction for
\n\tprosecution. The learned trial Judge has erred in not appreciating
\n\tthis aspect of granting sanction and has passed absolutely unjust
\n\tand illegal order. Thus, when sanction itself is illegal, learned
\n\ttrial Judge has erred in convicting the appellant. He has also
\n\tcontended that provision
\n\tof Section 77(2)(b) as well as Section 11 and 14 of the Gujarat
\n\tWater Supply and Sewerage Board is required to be considered. He has
\n\talso relied upon the judgment reported in 1980 CLR 877 and contended
\n\tthat sanction, which is given by the Authority is without power and
\n\ttherefore also, present appeal is required to be allowed.\n<\/p>\n
Mr.Anandjiwala
\n\thas also contended that the prosecution has failed to establish the
\n\tdemand beyond reasonable doubt. Thus, when demand is not
\n\testablished, then no question of acceptance would arise. He has also
\n\tcontended that the present appellant is innocent and he has falsely
\n\tinvolved in the present case. Just to take revenge, the complainant
\n\thas filed false complaint against the appellant. He, 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 acquitted from the charges levelled against him.\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
\n\tcontended that looking to the overall facts and circumstances of the
\n\tcase, circumstantial evidence and evidence produced on record, the
\n\torder passed by the learned Special Judge is absolutely just, proper
\n\tand correct and is not required to be interfered with. He has also
\n\tcontended that the evidence of the panchas are supported the case of
\n\tthe prosecution. He has read Exhibit 29-Sanction Order and contended
\n\tthat the sanction is proper in eye of law and that act of the Board
\n\titself shows that proper power is given and it is proved beyond
\n\treasonable doubt. He has also read the oral evidence and contended
\n\tthat from the oral evidence of witnesses, demand and acceptance is
\n\tproved beyond reasonable doubt. Mr.Kodekar has relied upon the
\n\tjudgment reported at 2010(1) GLH 597 and contended that even for the
\n\tsanction, if there has been error or omission, it is not proper to
\n\tset aside the conviction. If there may be some finding that sanction
\n\tgranted in a mechanical manner, is not sufficient to set aside the
\n\tconviction. Mr.Kodekar has contended that during the trial also,
\n\tappellant has never made any attempt to say that some prejudice is
\n\tcaused because of sanction granted by the Authority. He has prayed
\n\tthat presumption under Section 20 of the Act is required to be drawn
\n\tagainst the present appellant. The appellant has failed to rebut the
\n\tsaid presumption under Section 20 of the Act. He has also explained
\n\tpresence of anthracene powder on the trap amount recovered from his
\n\tpossession. He, therefore, contended that the appeal is required to
\n\tbe 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 from the
\n\toral evidence of PW No.1 at Exhibit 15, I have found that demand is
\n\tproved beyond reasonable doubt. I have also perused
\n\tcross-examination of the complainant and from the cross-examination,
\n\tacceptance of bribe money and recovery of the bribe money from the
\n\tpossession of the appellant is proved beyond reasonable doubt. Even
\n\tfrom the cross-examination of the said witness, appellant has failed
\n\tto prove his defence. From the perusal of the oral evidence of PW
\n\tNo.2 at Exhibit 19, oral version of this witness has proved the
\n\tcontents of the panchnama. Even demand and recovery is also proved
\n\tbeyond reasonable doubt. It is true that there were some minor
\n\tcontradictions in the evidence of PW No.1 and PW No.2, but the base
\n\tof the present case is depending upon the evidence of demand,
\n\tacceptance and recovery and when it is proved from the oral evidence
\n\tof the independent witness, then defence version cannot be
\n\tentertained. I have found sufficient evidence to connect the
\n\tappellant-accused with the charge levelled against him. So far as
\n\tsanction is concerned, I have perused oral evidence of PW No.3 at
\n\tExhibit 28 and also perused provisions of Gujarat Water Supply and
\n\tSewerage Board and it appears from the perusal of the said provision
\n\tthat sanction, which is given by the Authority is as per the
\n\tprovision of law, proper and acceptable. I have also perused the
\n\toral evidence of Trapping Officer. He has supported the case of the
\n\tprosecution. I have not found anything to accept the defence version
\n\tof the appellant. The learned Special Judge has passed the order
\n\tafter appreciating all the aspects of the matter. The appellant has
\n\tfailed to prove its case beyond reasonable doubt.\n<\/p>\n
As
\n\tper above observation, I found that demand of illegal gratification
\n\tmade by the appellant-accused is proved beyond reasonable doubt
\n\tthrough oral evidence of complainant and panch witness as well as
\n\tthrough documentary evidence produced on record. Even the recovery
\n\tof trap amount from the possession of the appellant-accused is also
\n\tproved beyond reasonable doubt. The presence of anthracene powder is
\n\talso found from the pocket of the present appellant and the
\n\tappellant has failed to explain how anthracene powder is found from
\n\this pocket. As per the provision of Section 20 of the Prevention of
\n\tCorruption Act, presumption is required to be drawn against the
\n\tpresent appellant and when the appellant has failed to rebut the
\n\tpresumption, no defence can be considered, which is tried to
\n\testablish by the learned counsel for the appellant.\n<\/p>\n
Hence,
\n\tin view of the foregoing reasons, present appeal is dismissed. The
\n\tjudgment and order of conviction and sentence dated 21st
\n\tMay, 1997 passed by the learned Special Judge, Kutch-Bhuj, in
\n\tSpecial Case No.02 of 1990, is hereby confirmed. The appellant is on
\n\tbail. This bail bond shall stand cancelled. The appellant-accused
\n\tis, therefore, directed to surrender himself before the Jail
\n\tAuthority within a period of four weeks from today, failing which
\n\tthe
\n\ttrial Court concerned is directed to issue Non-bailable warrant
\n\tagainst the appellant-accused to effect his arrest. Record and
\n\tProceedings, if any, be sent back to the trial Court concerned,
\n\tforthwith.\n<\/p>\n
(Z.\n<\/p>\n
K. Saiyed, J)<\/p>\n
Anup<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Chimanlal vs Heard on 20 April, 2011 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/560\/1997 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 560 of 1997 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-144056","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nChimanlal vs Heard on 20 April, 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\/chimanlal-vs-heard-on-20-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chimanlal vs Heard on 20 April, 2011 - 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