{"id":45676,"date":"2010-10-26T00:00:00","date_gmt":"2010-10-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-unknown-on-26-october-2010"},"modified":"2015-10-09T03:02:38","modified_gmt":"2015-10-08T21:32:38","slug":"jayesh-vs-unknown-on-26-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-unknown-on-26-october-2010","title":{"rendered":"Jayesh vs Unknown on 26 October, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jayesh vs Unknown on 26 October, 2010<\/div>\n
Author: C.K.Buch,&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\n\n \n\n\n\t \n\nCR.A\/435\/1990\t 29\/ 29\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. 435 of 1990\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE C.K.BUCH\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 be\n\t\t\treferred 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\nJAYESH\nGOVINDBHAI CHAVDA - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nKJ SHETHNA for\nAppellant(s) : 1, \nMR AJ DESAI, ADDL. PUBLIC PROSECUTOR for\nOpponent(s) :\n1, \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 C.K.BUCH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/11\/2006 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tThe
\npresent Criminal Appeal under section 374(2) of the Code of Criminal
\nProcedure, 1973 has been preferred by the appellant Govindbhai
\nNathubhai Chavda- original convict accused against the judgment and
\norder of conviction and sentence dated 04.05.1990 passed by the ld.
\nSpecial Judge, Junagadh in Special Case No.3\/1985 whereby the ld.
\nTrial Judge has convicted the appellant accused for the offence
\npunishable under section 5(2) of the Prevention of Corruption Act
\n(hereinafter referred to as the PC Act) and also under section 161 of
\nthe Indian Penal Code and sentenced him to undergo R\/I for 1 Year and
\nto pay a fine of Rs.2000\/- I\/d to undergo further R\/I for 3 months.
\nHowever, the ld. Trial Judge, though convicted the appellant accused
\nfor the offence punishable under section 161 of the Indian Penal
\nCode, has not awarded any separate sentence for the said offence.
\nAfter preferring the present appeal, the appellant-original accused
\nhad expired  on 20.09.1999 on his committing suicide  along with his
\nwife. In the aforesaid unfortunate incident, wife of the appellant
\naccused had also expired. By filing Cri.Misc.Application
\nNo.7341\/1999, son of the deceased accused brought these facts to the
\nnotice of the Court and also prayed to permit him to continue with
\nthe criminal appeal as he has shown his inclination to have final
\noutcome of the appeal preferred by his deceased father. The death of
\nthe original accused was registered under the relevant Registration
\nRules  on 01.12.1999 and thereafter the aforesaid Criminal Misc.
\nApplication  came to be allowed by this Court  vide order dated
\n08.12.1999 and Jayeshbhai- son of the deceased appellant accused was
\npermitted to continue the criminal appeal. Thus, this Court is
\nsupposed to appreciate the legality and validity of the conviction
\nrecorded by the ld. Trial Judge only and no formal finding with
\nregard to the legality and validity of the sentence imposed by the
\ntrial Court is required to be recorded  because there is nobody to
\nserve out the sentence in the event this Court upholds the sentence
\nawarded or reduces the same. So, at present, this Court is to
\nconsider the propriety, legality and validity of the order of
\nconviction passed by the trial Judge only.\n<\/p>\n
2.\tThe
\nld. Sr.Counsel Mr. Shethna has taken this court through the main
\ngrounds of challenge mentioned in the memo of the appeal and it is
\nargued that the ld. Trial Judge has grossly erred in holding the
\nappellant accused guilty of the charges levelled against him.
\nFirstly, it is argued that the version of the original complainant is
\nnot acceptable and is not trustworthy because he has attempted  to
\nimplicate the accused forcibly into the crime, otherwise, there was
\nno motive for the accused to accept the amount of bribe for mutation
\nof entry in the revenue record maintained by the government. The
\nsecond argument advanced by Mr. Shethna is  that there is no evidence
\non record to show that the amount of bribe was ever demanded by the
\naccused so far as the alleged demand made  on 23.05.1985 is concerned
\nand thereafter  on the date of incident in presence of panch No.1
\nSharad Hathi at the instance of the original accused. The third
\nargument advanced by Mr. Shethna  is that there are ample
\ncircumstances to infer that the muddamal currency notes were forcibly
\ngiven in the hands of the accused by the complainant when he realized
\nthat his attempt to book the accused is likely to fail. Undisputedly,
\non second visit, the accused was found in the residence. On first
\noccasion when the complainant along with panch Mr. Hathi visited the
\nresidence of the accused, the accused was not there at 8.30 p.m. and,
\ntherefore, the second attempt was made at 9.00 p.m. after about half
\nan hour. It is argued that Mr. Sarvaiya, ACB Inspector, ought to have
\ndrawn the ?Snil?? panchanama and could have closed the trap
\narranged by him. It appears that this was the joint effort of Mr.
\nSarvaiya and the complainant to see that the accused is trapped and,
\ntherefore, the accused was forcibly given muddamal currency notes of
\nRs.400\/ i.e. four notes of the denomination of Rs.100\/ each as
\nmentioned in the panchanama. One more  argument advanced by Mr.
\nShethna is that  the present case is stained by one more infirmity
\ni.e. infirmity in selecting the panch. It was the duty of Mr.
\nSarvaiya to ascertain from panch Mr. Hathi whether he has ever
\nappeared as a panch in such or similar cases or any other similar
\nantecedents are there against him. No such inquiry was made by Mr.
\nSarvaiya is the admission of Mr. Sarvaiya i.e. the Raiding Officer
\nand the accused has brought on record that on relevant date the panch
\nMr. Hathi was facing two criminal prosecution viz. one for the
\noffences punishable under section 420 R\/w 114 of IPC and other one
\nfor the offences punishable under the provisions  of the Gujarat
\nEssential Services Maintenance Act,1976 as he was found involved in
\njoining the strike against the Reservation Policy of the government
\nin the year 1985. Normally, a person of the repute of having no
\nstigmatic character requires to be selected in such or similar cases
\nand this inadvertence or negligence on the part of the IO has
\nresulted into serious infirmity and this infirmity would go to the
\nroot of the evidence led by the prosecution. No credit can be given
\nto the deposition \/evidence of panch No.1 and other evidence ought
\nnot to have been read as a corroborative piece of evidence qua the
\nevidence led by the complainant. The next point argued by Mr. Shethna
\nis that the ld. Trial Judge has failed in considering the documents
\nproduced by the accused with his explanation and plausibility of the
\nexplanation given by the accused under section 313 of CrPC. On the
\ncontrary, the work of the original accused was appreciated  on more
\nthan one occasion. He was considering  to be reliable person and,
\ntherefore, he was kept in charge of ambulance and the ambulance was
\nalso kept at his residence and was maintaining the accounts in this
\nregard. He was also given a letter of appreciation for his duties
\nthat he had performed in family welfare activities by the Asstt.
\nCollector. The accused had denied the evidence given by the
\ncomplainant and panch No.1 and he has satisfactorily  explained as to
\nwhy some delay has been caused in entering the name of the
\ncomplainant along with his brother and sister in the government
\nrecord after the death of his father Jivrajbhai. The conduct of the
\naccused goes contrary to the allegations made against him. The case
\nof the prosecution ought not to have been accepted by the Court
\nobserving that normally no accused would retain or keep  the muddamal
\ncurrency notes in his hands and would catch hold the same even after
\nthe entry of raiding officer Mr. Sarvaiya and others. Mostly, he
\ncould have thrown the muddamal currency notes any where when after
\nlistening the shouts in the nature of a signal. Therefore, the
\npanchanama of recovery of muddamal currency notes from the right hand
\nof the accused should not be accepted  as reliable piece of evidence
\nand the oral evidence of the complainant as well as of Mr. Sarvaiya
\nalso should not be accepted.\n<\/p>\n
3.\tIt
\nis next argued by Mr. Shethna that ACB Inspector Mr. Sarvaiya has
\nshown unwarranted enthusiasm in the present case and it goes against
\nthe credibility and objective approach  which should be the paramount
\nconsideration in such cases because he is the officer who had
\nprovided special set of cloths to panch No.1 which are being
\ntraditionally put on by the persons residing of the community known
\nas ?SPatel?? of Saurashtra area in the area where the raid is
\ncarried out. Panch No.1 was provided ?SCholi?? and ?SBandiya??.
\nHe was to be introduced as first cousin of the maternal uncle’s son
\nof the complainant. Though district Junagadh has its own ACB Office,
\nsurprisingly, Rajkot ACB Office was selected and both the panchas
\nwere also selected from Rajkot by Mr. Sarvaiya. In this situation,
\nthe investigation carried  out by and the panchanama drawn by this
\nofficer should not be accepted as a reliable piece of evidence and
\nhis oral evidence should be discarded as evidence of a person who is
\ninterested in a particular result.\n<\/p>\n
4.\tIt
\nhas been further argued by ld. Sr. Counsel Mr. Shethna that the
\ngovernment servants have a tendency to support the prosecution in ACB
\ncase so that they can avoid departmental proceedings. By showing
\nrelevant documents i.e. certified copy of the village form No.6, 8\/A
\nand Rojnama drawn in presence of the reputed persons of the village
\nwherein the names of the legal heirs of the deceased Shivrajbhai have
\nbeen mentioned,  it is submitted that the entry in the revenue record
\nin village form No.6 was already entered and nothing further was
\nrequired to be done by the village secretary i.e. the accused and
\nonly the higher officers i.e. first revenue Karkun or the Mamlatdar
\nis authorized to certify the entry entered in village form No.6 and
\nunless any change is made or entry is certified in village form No.6,
\nobviously in village form No.8\/A, the name of the original occupant
\nwould remain there. When it is the case of the prosecution that when
\nthe first demand of bribe was made by the accused on 23.05.1985, then
\nit was possible for the prosecution to examine the witnesses to prove
\nthat allegation because on that day, other three persons were very
\nwell there in the office of the Panchayat and other servants  of
\npanchayat were also there to prove the presence of those three
\npersons including the one Kurjibhai  Bhesania whose name is reflected
\nin the document because he had also paid revenue in the panchayat
\noffice  on 23.05.1985. Complainant has accepted that he is the
\ncousin- distant relative of said political worker Kurjibhai Bhesania
\nand, therefore, under his political motivation, the complainant has
\nagreed to file the complaint and a party in a forged trap case. In
\nthose days i.e. in the year 1984-85, the society at grass-root level
\nwas  divided into groups  of persons and persons from SC & ST
\ncommunity were treated differently especially when  such person  is
\nin a government or semi-government service and the accused being a
\nperson from SC Community, he was targeted by Kurjibhai Bhesania and
\nthe complainant.\n<\/p>\n
5.\tMr.\n<\/p>\n
Shethna has taken this Court through the entire set of evidence,
\nmainly the oral evidence of the complainant, panch No.1  Sharad Hathi
\nand trapping officer Mr. Sarvaiya along with other documentary
\nevidence. To appreciate the say of Mr. Shethna, firstly I would like
\nto state  the basic case of the prosecution in brief which is
\nreflected in para-2 of the memo of the appeal. For the sake of
\nbrevity and convenience, I would like to reproduce the facts stated
\nby the appellant himself in the memo which are mostly similar to the
\nfacts reflected in the first para of the judgment under challenge.
\nPara-2 of the appeal memo reads thus:-\n<\/p>\n
?S2.\tOn
\n22.01.1984, Jivraj Gangdas Bhesania, father of the complainant
\napproached the accused who was the Revenue Talati-cum-Mantri
\n(Secretary) of village Bhesan for the mutation of the entries in the
\nRecords in the names of the heirs of his deceased father Jivrajbhai.
\nHe gave an application to him for that. He approached asked the
\nAccused after about 6 months and thereafter on more than one occasion
\nto know what was done. The Accused told him that work of mutation of
\nentries of others also remained to be done and along with their work
\nhis (the complainant’s) work would also be done. The complainant
\nwanted to obtain loan from Co.Operative Society, for that to become a
\nmember was ?Sa must?? and for that purpose one must be the ?Sthe
\nKhatedar??. On 23.05.85, he went to pay the revenue amount in the
\noffice of the accused. He paid it, for that receipts exh.21 & 22
\nwere given to him. At that point of time, he told him about the
\nmutation of entries. The accused demanded the bribe amount of
\nRs.500\/. The complainant told him  that his work was legal and in
\nsummer season Rs.500\/ was a big amount which he could not afford.
\n?SBefore the work could be done, pay Rs.400\/. After it is done pay
\nRs.100\/?? was the accused’s demand. And he asked the complainant to
\npay Rs.400\/- at 8.00 P.M. on the next date i.e. to say on 24.05.1985
\nat his (the accused’s) residence. The complainant approached P.W.4 &
\nP.I. Bharatsinh Sarvaiya Exh.33 A.C.B. Rajkot on 24.05.1985 at 2.15
\nP.M. at Rajkot. He gave his F.I.R. Exh.24. (1) P.W.3 Sharad Dinkarrai
\nHathi Exh.31 and (2) Mansukhbhai Tapubhai Parmar, Dy. Mamlatdar,
\nRajkot and employee in the District Panchayat, Rajkot respectively
\nwere called as ?Sthe Panchas?? and the first part of the panchanama
\nExh.32 was drawn between 3.30 p.m. and 5-15 P.M. on 24.05.1985. The
\nraiding party went to Bhesan, on the first occasion, the complainant
\nand the Panch No.1 went to the house of the accused. He was not
\nthere. They went to P.I. Sarvaiya. They were instructed to go again.
\nAt 9.10 P.M., they again went to his house. The accused demanded and
\naccepted the bribe amount of Rs.400\/ from the complainant. Second
\npart of the panchanama exh.31 was completed at 11.00 P.M.??\n<\/p>\n
6.\tMr.\n<\/p>\n
AJ Desai, ld. APP appearing for the State has argued that the
\nfindings recorded by the ld. Trial Judge are absolutely legal and no
\nmaterial error can be said to have been committed in appreciating the
\noral as well as documentary evidence led during the course of the
\ntrial. It is argued that there are no material contradiction or
\nomission in the deposition of the complainant and as per the settled
\nlegal position, ignoring all other evidence if the version of the
\ncomplainant in a trap case is found reliable, the accused can be
\nlinked with the crime. It is not necessary to reproduce the comments
\nmade by the Apex Court as to what should be the approach of the Court
\nin corruption cases where the case rests either on the deposition of
\nthe complainant only and\/or panch No.1 and accused has been held
\nguilty on the deposition  of trapping officer only when he himself
\nhas witnessed any material part of the offence that has occurred at
\nthe time of passing of bribe amount from the hands of the complainant
\nto the hands of the accused. In this background, if the impugned
\njudgment of the ld. Trial Judge is read, there is no need to comment
\non the evidence of the raiding party i.e. panch No.1 Sharad Hathi
\nand\/or Mr. Sarvaiya, PI of ACB. However, according to Mr. Desai,  the
\nevidence of Mr. Hathi  should not be discarded merely because he was
\nan accused in two other criminal cases. Of course, his discharge
\napplication was rejected by the ld. Magistrate, but on the date of
\nhis selection as a panch, no such discharge application was rejected.
\nIt was probably was not even filed. Mr. Desai has taken this Court
\nthrough the allegations made in the chargesheet produced by the
\naccused along with his statement under section 313 of CrPC and it is
\nalleged that Mr. Hathi is accused No.3 in the first criminal case
\nregistered against him for the offences punishable under section 420
\nR\/w section 114 of the Indian Penal Code. As pointed out by Mr.
\nDesai, this case is in relation to 141 cement bags. The cement was
\nessential commodity at that point of time and was regularized by the
\nState and only authorized persons were entitled to withdraw the
\ncement from the government godown. Accused Nos. 1 & 2, as per the
\ncase of the prosecution, were responsible in siphoning those cement
\nbags. Accused No.2 was the person responsible  and he has posed him
\nas a person in whose name the permit was granted. Accused No.3 i.e.
\npanch No.1 Mr. Hathi  was in charge of the godown. On seeing permit
\nand the person, he must have  handed over 141 bags of cement. So, he
\nwas the person responsible for the delivery of the cement. This Court
\nis not supposed to comment on the merit of the criminal case because
\nthe Court is not aware about the out come of the said criminal case,
\nif decided, but if the allegations made in the  criminal case are
\nseen, it would not be proper for the Court to discard  the evidence
\nof panch No.1 Mr. Hathi merely because he is an accused in a criminal
\ncase. The allegations in the complaint filed against him can not be
\nsaid to be the allegations against the character or his involvement
\nin an offence against the public morality. In the same way, the
\nsecond prosecution, according to Mr. Desai, is a technical
\nprosecution and in 100s of such or similar cases, ultimately such
\ncases were subsequently withdrawn by the State. Mr. Desai, however,
\nhas shown his ignorance  as to what had happened to the prosecution
\nlodged against panch No.1 Mr. Hathi along with other persons named in
\nthe second complaint. It is true that panch No.1 was actively
\ninvolved  in the agitation against the reservation policy and,
\ntherefore, his involvement or activism   as panch No.1 in a trapping
\ncase and that too against an accused being number of  SC community
\nrequires to be viewed strictly. As per the settled legal position and
\nas observed by this Court in the case of  Ambalal Motibhai Patel
\nv\/s State, Vol.-I 1960 GLR 113, the panch witness is not a
\ntrap witness. Panchas have nothing to do with the raid or the
\noperation of the raid. They are not participators in the act of
\nraiding. It can not be said that the evidence of every panch witness
\nwho takes part in the laying of a trap in cases of bribery can be
\nregarded as evidence of partisan witness.  This would always depend
\nupon the circumstances of each case. If it is found that the witness
\nis otherwise reliable and there is an element of independence, his
\nassociation in a pre-arranged raid should not be viewed with doubt.
\nIt is true that in the present case, the conviction  could not have
\nbeen made  on the sole evidence  of panch witness, but the ratio of
\nthe decision in the case of  Lachman Dass v\/s State  of Punjab,
\nAIR, 1970 SC 405 would help the prosecution.  I do not find
\nany grave fact to dube the panch witness as interested witness in
\nabsence of any adverse material justifying  the interference in the
\nfinding recorded by the ld. Trial Judge. ( Maha Singh v\/s
\nState, AIR 1976 SC 449 ). In these particular facts
\nsituation, it would be the duty of the Court to scan the evidence of
\nthis witness closely. The complainant  is the person aggrieved by the
\nillegal demand  made by the accused and Mr. Sarvaiya has no reason to
\nimplicate the accused in such a serious  offence merely because he
\nbelongs to SC or ST community. According to Mr. Desai,  when evidence
\nof Mr. Hathi gets corroboration from these two persons viz. one
\nperson aggrieved and other who has investigated the crime and drawn
\nthe panchanama, the say of Mr. Hathi should not be rejected in toto.
\nIt is true that if the complainant would not have supported the case
\nof the prosecution in the present case, the accused could have been
\ngiven some benefit because Mr. Hathi was found active in agitation
\nagainst reservation policy, but this is a case where three persons
\nhave deposed that accused when was caught by PI Mr. Sarvaiya, was
\npossessing muddamal currency notes in the closed fist of his right
\nhand. As such, there is no detailed cross-examination of any of these
\nthree witnesses as to the anthracene powder marks that were found on
\nboth the hands of the accused. The accused had attempted to explain
\nthat the complainant forcibly handed over  the muddamal currency
\nnotes to him. The question would be that why he continued and caught
\nhold of those notes even for a while? Any act against the will or
\nwish of a person would automatically get some reaction and it appears
\nfrom the deposition of the complainant  and panch NO.1 Mr. Hathi that
\nno such reaction was there from the accused. During the
\ncross-examination, no such suggestions even were made. When Mr.
\nSarvaiya had entered the house, it was about 9.15 P.M. It being dark,
\nthe complainant was asked to give a signal by raising a particular
\nshout and he was asked to utter a particular set of words. Those
\nwords were uttered. There is no parrot-like similarity in the
\ndepositions of the complainant as well as panch No.1 as to the
\nconversation that has taken place at the residence of the accused.
\nThe material part of the conversation  corroborates the prosecution
\ncase and when the complainant gets corroboration from the deposition
\nof panch No.1 and when the accused was found in possession  of the
\nmuddamal currency notes when he was caught hold by PI Mr. Sarvaiya,
\nthe ld. Trial Judge was entitled to raise presumption against the
\naccused. Of course, there is no cogent evidence as to the demand made
\nby the accused  of illegal gratification on 23.05.1985, but trap was
\narranged  on the demand made on  23.05.1985 and the trap was arranged
\non 24.05.1985. The efforts to get the entries certified  had failed
\ntill 23.05.2006 and there is sufficient evidence to show that on the
\ndate of trap, the accused did demand the amount of bribe. The demand
\nwas for Rs.500\/ and it was decided that initially the complainant
\nshould pay Rs.400\/ and the remaining amount of Rs.100\/ was to be paid
\non certification of the entry in village form No.6.\n<\/p>\n
7.\tThe
\nCourt finds some strength in the arguments of ld. APP Mr. Desai that
\nthe evidence of the prosecution witness namely the complainant should
\nbe appreciated in the background  of the scheme of section 135(c) and
\nsection 135(d) of the Bombay Land Revenue Code ( BLRC for short).
\nSince February-1985, the complainant and his family members were
\ntrying to get the names mutated after the death of the original owner
\nof the agricultural land i.e. Jivrajbhai. The names of three brothers
\nand sister Rambhaben were to be entered in the record of rights i.e.
\nvillage form No.6. Notice required to be served to all concerned was
\nserved to the complainant. Signature of the complainant  in the
\nnotice under section 135(d) of BLRC is shown to the Court by Mr.
\nShethna, ld. Senior Counsel appearing for the appellant accused,
\nwould not help the accused. This signature would simply show that the
\nprocedure of entering the name has started and if any of the family
\nmembers has any objection as to the mutation of entry, can approach
\nthe Panchayat and register his resistance. The scheme provides that
\nif any resistance  is received by the panchayat, then that entry
\nwould be transferred and mutated to the register maintained for the
\npurpose of recording the disputed entry and the revenue authority is
\nsupposed to resolve  the dispute raised against the details given in
\nthe notice served under section section 135(d) of BLRC. The dates are
\nrelevant. The notice under section 135 BLRC was served to the
\ncomplainant in the month of March-1985. This Court has reason to
\nbelieve  that the notice must have been affixed  on the conspicuous
\nplace in the village including  the village panchayat and there is no
\nevidence to show that anybody had formally objected the mutation. The
\nreputed person  of village has certified the names of the heirs and
\nit was available with the village secretary. It was the duty  of the
\nsecretary to get  the entry certified  at the earliest because it has
\nremained only a formality in absence  of any resistance or dispute.
\nThis work was prolonged and it is argued that this was done with an
\nulterior motive to extract some more amount from the family of the
\ncomplainant. It is, therefore, stated in the deposition  by the
\ncomplainant that as the entry was to be mutated in accordance with
\nlaw, why family of the complainant should pay any illegal
\ngratification to the secretary of the village panchayat and that had
\ntaken the complainant to the office of the ACB, Rajkot. There is no
\nconflict in evidence as to the amount demanded and the sequence
\nstated by the complainant and panch No.1 as to the transfer of that
\namount from the hands of the complainant  to the accused. So, it is
\nnot possible for the Court to accept the arguments  of Mr. Shethna
\nthat the ld. Trial Judge has wrongly held that the presumption  can
\nbe raised against the accused under section 4 of the PC Act.\n<\/p>\n
8.\tThe
\nalternative argument advanced  by Mr. Shethna  that the presumption
\nraised by the trial Court has been successfully  rebutted by the
\naccused, is not found acceptable. On the contrary, it appears that
\nthe accused had tried to explain and justify the  delay caused in
\ncertification of the entry made prior to the month of March-1985,
\nthough there were no objections to the mutation of the entry. The
\nfirst entry made by the village secretary  in the village form itself
\nis popularly known as ?Spencil entry?? i.e. ?Skachcha entry??. It
\nis subject to the addition, alteration, rejection including the
\nresolution  of the dispute by the competent authority. Thereafter
\nonly the final entry is being made  and entry gets finality on its
\ncertification either by first revenue karkun popularly known as ?SAval
\nKarkun?? and\/or Mamlatdar. Certified copy taken by the officer  Mr.
\nSarvaiya clearly shows that there is no remarks in the remark column
\nof village form No.6 even  on the date on which the trap was carried
\nout. Obviously therefore, the name of the original owner i.e. the
\nname of the deceased Jivrajbhai is reflected in village form No.8\/A.
\nThe family of the deceased Jivrajbhai normally would not get any
\nadvance of loan by any Bank or Co.Op.Society unless the name of the
\nloanee is reflected in the village form No.8\/A which is popularly
\nknown as ?SKhata??. Agriculturists would be anxious to get the loan
\nat least before monsoon or in the midst  of monsoon so that they can
\nutilize the amount  for the development of the crop. In the present
\ncase, entire things were prolonged and dragged from February 1985 to
\nAugust 1985 for no reason. So, it is difficult for the Court to
\naccept that this is a case of no motive on the part of the village
\nsecretary. It is true that the village secretary has no authority to
\ncertify the entry, but he  is the key revenue officer who can take
\nthe register  to the office of the Mamlatdar or can arrange for visit
\nof a responsible officer to the village  so that all entries either
\ncan be certified or any other order in accordance with rules under
\nthe Code  can be passed.\n<\/p>\n
9.\tI
\nhave carefully gone through the reasons assigned by the ld. Trial
\nJudge for holding the accused guilty. It is true that the
\naccused-village secretary has committed suicide with his wife and it
\nis alleged that because of the financial crunch and hardship, the
\naccused had committed suicide after the lapse of 9 years of filing of
\nthe appeal. The Court feels some unrest for the out-come of the delay
\nthat has taken place in hearing and disposing of the appeal well in
\ntime. But that by itself would not be sufficient to say that the
\nfinding recorded by the ld. Trial Judge is illegal or perverse. Even
\nafter taking out the deposition of Mr. Sharad Hathi when it is not
\npossible for the Court to say that the accused could have been given
\nbenefit of doubt by the trial Court, it is difficult for the Court to
\naccept the appeal.\n<\/p>\n
10.\tIt
\nis true that this Court as well as the Apex Court has made
\nobservations and made comments as to the use of anthracene powder
\nwhile laying the trap in ACB cases. The use of phenolphthalein powder
\nis considered as more reliable, but the cases in which the deposition
\n of the complainant and\/or panch witness as to passing of the
\nmuddamal currency notes to the accused is reliable, then tallying  of
\nthe numbers of the muddamal currency notes with the numbers mentioned
\nin the first part of the panchanama becomes very relevant. In the
\npresent case, it is true that when the accused was caught by PI Mr.
\nSarvaiya, the muddamal currency notes were in the closed fist of
\nright hand and more than one witnesses have consistently said that
\nthe anthracene powder marks were visible on both the hands i.e. on
\nthe fingers of both the hands. So, it is difficult for the Court to
\naccept the submission of Mr. Shethna that  the defence placed by the
\naccused of forcibly handing over the muddamal currency notes is
\neither good or sustainable. It is argued by Mr. Shethna that even
\nafter the entry of ACB Inspector in the room and acceptance of the
\nmuddamal currency notes, would be different than alleged and the
\naccused would not have kept  the muddamal currency notes in his
\nclosed fist. He could have thrown the same. This argument is not
\nfound convincing  because there is evidence as to willful acceptance
\nof the amount  and an individual accused may react in a different
\nway. A confused person may not react at all. One is likely  to become
\na statue. This aspect needs consideration. So, it will be difficult
\nfor the Court to say that the recovery of muddamal currency notes
\nfrom the closed fist  is improbable.\n<\/p>\n
11.\tThe
\ntime period in reference to the initiation of the entry proceedings
\nfrom January 1985 when Pedhinama was prepared  for the first time  on
\n08.01.1985, if considered vis-a-vis the actual date of complaint in
\nthe background of the explanation given by the accused under section
\n313 of CrPC, hidden motive to extract the money can be said to be
\nemerging and, therefore, the oral evidence  of the complainant as to
\nthe demand of money gets some corroboration from this aspect. In the
\nsame way, the evidence given time-wise by the complainant, panch No.1
\nMr. Hathi and PI Mr. Sarvaiya after  the entry second time in the
\nhouse of the accused corroborates each other substantially. There was
\nno need to have any evidence of peon of the Panchayat because he is
\nfound to be in picture only in reference to the service of notice
\nunder section 135(d) of BLRC and it would be difficult to presume
\nthat merely because four or five persons have paid revenue to the
\nSate on 23.05.1985, all of them had entered the office simultaneously
\non that day. In the same way, it is not suggested  directly or
\nindirectly to the complainant that on 23.05.1985 when demand of bribe
\nwas made for the first time, other servants of Panchayat were there
\nin Panchayat office. This aspect could  have been brought on record
\nby some detailed cross-examination  of the complainant in this
\nregard. It is true that the government servant unless it is otherwise
\nproved, are presumed to be available in the office, but considering
\nthe nature of the duty of village panchayat servants, such inference
\ncan not be drawn  and for that purpose, some cogent facts require to
\nbe brought on record that other panchayat servants were also present
\nat the time when the complainant had entered the Panchayat office for
\npaying land revenue on 23.05.1985. In number of cases, when the
\naccused is not available  at the place suggested for accepting the
\nbribe amount, than the raiding officer decides to make one more
\nattempt and this by itself would not make the raiding officer
\ninterested in false implication of the accused. He may be interested
\nin drawing the successful panchanama, but not in implicating the
\naccused falsely.\n<\/p>\n
12.\tThe
\nstatement of the accused made before the Investigating Officer  is
\ninadmissible but in ACB case, the immediate explanation of the
\naccused to the raiding officer is if consistent to the defence taken
\nby him or in other words the defence taken by the accused is
\nconsistent to the immediate first explanation given to the raiding
\nofficer, than such a statement of the accused positively can be used
\nby the Court with a view to appreciate the case of the prosecution
\nand its strength. Here in the present case, it has come on record
\nthat a pointed question was asked to the accused by Mr. Sarvaiya, but
\nthe accused had not responded to that question. The accused being
\nauthorized to recover the village revenue, such question was required
\nto be asked by the IO and when it is impliedly on record to show that
\nthe revenue of the deceased land owner, father of the complainant was
\npaid earlier, there was no scope to accept any amount from the
\ncomplainant so far as the accused is concerned and that too Rs.400\/
\nwhich can be said to be a big amount in those days. Totality,
\ntherefore, in my view, has been correctly appreciated  by the ld.
\nTrial Judge and, therefore, the arguments advanced by ld. Senior
\nCounsel Mr. Shethna, are not found acceptable.  The reasonings given
\nand findings arrived at by the ld. Trial Judge are absolutely just,
\nlegal and based on sound and proper appreciation of the oral as well
\nas documentary evidence and hence no interference is required. Hence,
\nthere is no merit in the present Criminal Appeal and the same
\nrequires to be dismissed.\n<\/p>\n
13.\tIn
\nthe result, present Criminal Appeal is hereby dismissed. The impugned
\njudgment and order of conviction and sentence passed by the trial
\nCourt is hereby confirmed. Since, the appellant accused has expired,
\nno orders as to granting time to him to surrender for serving out the
\nsentence is required to be passed.\n<\/p>\n
\t\t\t\t\t\t\t[
\nC.K. BUCH, J ]<\/p>\n
*rawal<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jayesh vs Unknown on 26 October, 2010 Author: C.K.Buch,&Nbsp; Gujarat High Court Case Information System Print CR.A\/435\/1990 29\/ 29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 435 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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-45676","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJayesh vs Unknown on 26 October, 2010 - 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\/jayesh-vs-unknown-on-26-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayesh vs Unknown on 26 October, 2010 - 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