{"id":50848,"date":"2010-04-08T00:00:00","date_gmt":"2010-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/munikumar-vs-unknown-on-8-april-2010"},"modified":"2015-05-04T18:09:01","modified_gmt":"2015-05-04T12:39:01","slug":"munikumar-vs-unknown-on-8-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/munikumar-vs-unknown-on-8-april-2010","title":{"rendered":"Munikumar vs Unknown on 8 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Munikumar vs Unknown on 8 April, 2010<\/div>\n
Author: Rajesh H.Shukla,&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\n\n \n\n\n\t \n\nCR.A\/455\/1997\t 8\/ 14\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. 455 of 1997\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 504 of 1997\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\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 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 \n\nMUNIKUMAR\nDHIRAJLAL PAREKH - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\nAppearance : \nMR\nMJ BUDDHBHATTI for\nAppellant(s) : 1, \nMR H L JANI, 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 RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 08\/04\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
\t\tPresent
\nappeal is directed against the judgment and order dated 31\/03\/1997
\npassed by the learned Special Judge, Junagadh in Special Case No.9 of
\n1989 recording conviction of the accused for the offence under
\nSection 5 (d) (1) of Prevention of Corruption Act and also for
\noffence under Section 161 of the Indian Penal Code imposing sentence
\ntill rising of the Court and fine of Rs.2,500\/- in default simple
\nimprisonment for two months.\n<\/p>\n
1.1\t\tThe
\nappellant original accused has expired during pendency of the appeal.
\n However, as per the order passed in Criminal Misc. Application
\nNo.6127 of 2003 in Criminal Appeal No.455 of 1997 dated 27\/08\/2004
\nthe widow of the deceased   appellant   accused has been
\npermitted to continue and pursue the appeal as per Section 394 (2) of
\nthe Code of Criminal Procedure.\n<\/p>\n
2.\t\tCriminal
\nAppeal No.455 of 1997 is filed by the accused challenging the
\nimpugned judgment and order and Criminal Appeal No.504 of 1997 is
\nfiled by the State of Gujarat for enhancement of sentence as the
\nsentence awarded is less than minimum.\n<\/p>\n
3.\t\tIt
\nis the case of prosecution that on 15\/10\/1986 the case of son of the
\ncomplainant was pending in the Juvenile Court at Junagadh regarding a
\nquarrel with the neighbour. On 15\/10\/1986 the complainant had visited
\nthe court and met the accused who was Public Prosecutor in the matter
\nand had asked as to whether the case would proceed and also to have
\nsympathy for his son.  Thereupon the accused is said to be stated to
\nthe complainant that he cannot have a dry sympathy and he must
\nunderstand the  Vyavahr .  Thereafter the accused is said to have
\nstated and demanded Rs.1000\/- as and by way of illegal gratification
\nfor favouring son of the complainant who was juvenile accused stating
\nthat he would not argue so that son of the complainant get acquitted
\nand released.\n<\/p>\n
3.1\t\tThe
\ncomplainant thereafter had gone to the ACB Office, Junagadh as he was
\nnot inclined to offer illegal gratification \/ bribe and lodged a
\ncomplaint and the trap was arranged. The basis of the complaint when
\nthe trap was arranged the complainant accompanied by the Panch
\nWitness No.1 and Trap Laying Officer again went to the Juvenile Court
\nat 3:30 p.m.  When they reached the court compound the accused is
\nsaid to have stated that Mr.Makrani have come and then brought the
\nmoney.  Thereafter, they had gone to one side and the currency note
\nof Rs.1,000\/- tainted with antharacene powder offered to the accused
\nby taking out from the pocket of the shirt by the complainant. The
\nsaid tainted currency note was accepted by the accused with left hand
\nand placed it in the left side pocket of his pent.  Thereafter when
\nthe signal was given the Trap Laying Officer and the Prosecution
\nWitness No.2 and raiding party had rushed and arrested the accused.
\nThereafter, he was taken to the Office of Superintendent in the same
\npremises where the Panchnama of the second part was made recording
\nthe recovery of the tainted currency note from the accused and also
\nthe clothes i.e. pent which the accused had put on.  The test with
\nregard to marks of anthracene powder was carried out on the accused
\nas well as the complainant.  It is on the basis of this the case was
\nregistered as a Special Case No.9 of 1989 and the charge was framed
\nat Exh.12 against the accused.  Thereafter, the learned Special
\nJudge, proceeded with the trial.  In order to bring home charge
\nagainst the accused the prosecution had examined the witnesses i.e.
\nProsecution Witness No.1-complainant, Prosecution Witness No.2-Panch
\nWitness No.1, Prosecution Witness No.3-Trap Laying Officer and also
\nproduced documentary evidence which shall be referred to in the
\njudgment.  After recording of evidence of prosecution witnesses was
\nover the learned Special Judge, Junagadh had recorded the further
\nstatement of the accused under the provisions of Section 313 of the
\nCode of Criminal Procedure and after hearing learned APP as well as
\nlearned Advocate for the defence the learned Special Judge, Junagadh
\nconvicted the accused for the offence under Section 5 (2) of the
\nPrevention of Corruption Act read with Section 161 of the Indian
\nPenal Code.  It is this judgment and order which has been assailed on
\nthe grounds stated in detail inter-alia that learned Judge has failed
\nto appreciate the material on record and has recorded the conviction
\nwithout considering the relevant material.\n<\/p>\n
4.\t\tMr.Buddhbhatti,
\nlearned Counsel referred to the testimony of the complainant
\n(P.W.No.1) at Exh.19 and his complaint being FIR (Exh.20).  Referring
\nto the testimony of the complainant and the testimony of Panch
\nWitness No.1 (Exh.24), it is submitted that there are discrepancy in
\nthe evidence of the prosecution.  He has emphasized referring to the
\ntime of trap and the manner in which the entire trap hurriedly
\narranged.  He further referred to the time stating that it is the
\ncase of the prosecution that initially he visited the Court premises
\nand met the accused and when the demand was made the complainant is
\nsaid to have stated that he does not have money.  He would have
\narranged. He thereafter gone to the ACB Office and the trap is
\narranged.  It is submitted that there is nothing on record as to how
\nand from whom he had brought money which is offered by way of illegal
\ngratification.  He has also referred to the testimony of
\nP.W.No.1-complainant and submitted that it is admitted in the
\ncross-examination that before this incident no such demand for
\nillegal gratification was made by the accused.  Further, he
\nemphasized that though he had stated referring to the demand made by
\nthe accused and others on earlier occasion also the same is not to be
\nfound in his complaint (Exh.20).  Similarly, it was submitted that
\ntalks of compromise was going on and the matter was adjourned for
\nthat purpose and he has also admitted that whenever the matter used
\nto get adjourned the accused appearing as a prosecutor had agreed.
\nHe submitted that there is no bargain as Prosecution Witness No.1 has
\nadmitted that when the demand was made for Rs.100\/- by the accused he
\nhad not even suggested to reduce which is not possible as it would be
\na natural conduct to request for reducing the amount.  Mr.Buddbhatti,
\ntherefore submitted that the case of the prosecution cannot be
\nbelieved considering the conduct of the accused and the time gap that
\nafter deciding in the morning he went and again came at 3:30 p.m.
\nafter the trap was arranged. He submitted that the chronology of
\nevents and the time does not seem properly and therefore it is not
\nbelievable.  He emphasized and submitted that the trap is said to be
\nover just within ten minutes.  He has further submitted that in-fact
\nthe complainant is willingly given bribe or offered money and
\ntherefore it cannot be said that there was any demand. He also
\nreferred to the further statement of the accused recorded under
\nSection 313 of the CrPC and submitted that as stated by him on
\nearlier occasion as the complainant wanted time though the witnesses
\nwere present, the Court had passed an order for payment of bhathha \/
\ncharges to the witnesses and therefore the complainant was annoyed
\nand he has filed a false complaint.\n<\/p>\n
4.1\t\tMr.Budhhbhatti,
\nhas also submitted that the Panch is a selected witness and he has
\nalso referred to the testimony in detail and submitted that he is a
\ngovernment employee and interested witness and he cannot be said to
\nbe an independent witness.\n<\/p>\n
4.2.\t\tMr.Buddhbhatti,
\ntherefore submitted that the so-called demand for the illegal
\ngratification \/ bribe and also the recovery thereof is doubtful.
\nAgain for that purpose he has referred to the testimony of
\ncomplainant (P.W.No.1) and Panch Witness No.1 (P.W.No.2) and
\nsubmitted that though the pocket of the shirt of the complainant is
\nnot marked similarly pocket of the pent of the accused from where
\ntainted currency note is recovered is not marked and therefore the
\nrecovery is doubtful.  He therefore submitted that the learned
\nSpecial Judge has committed an error in recording the conviction.\n<\/p>\n
4.3\t\tMr.Buddhbhatti,
\nsubmitted that as the accused has expired, Criminal Misc. Application
\nNo.6127 of 2003 in Criminal Appeal No.455 of 1997 was preferred by
\nthe widow of the accused seeking liberty to continue the appeal only
\nwith a view that if the conviction is set aside she may entitle to
\nget the financial benefits like provident fund, gratuity, etc., and
\ntherefore it may be considered sympathetically.\n<\/p>\n
5.\t\tMr.Jani,
\nlearned APP has referred to the testimony of complainant, Panch
\nWitness No.1 and the Investigating Officer.  He submitted that the
\ntestimony of complainant is corroborated with regard to the demand,
\nacceptance and recovery by the testimony of Panch Witness No.1 as
\nwell as Investigating Officer (P.W.No.3).  He also referred to the
\njudgment and submitted that it is not in dispute that the accused was
\na public servant.  The valid sanction has also been granted.  He
\ntherefore submitted that when the testimony of complainant is
\ncorroborated on material aspects like demand, acceptance and recovery
\nby the Panch Witness No.1 and Investigating Officer which has also
\nbeen recorded in the Panchnama (Exh.25), there is no reason to
\ndiscard this evidence and it cannot be said that there was no demand
\nor acceptance.  Referring to the Panchnama, testimony of complainant
\nand Panch Witness No.1 it is submitted that it clearly establishes
\nthat tainted currency note offered as and by way of bribe was
\naccepted by the accused and it has been recovered from the pocket of
\nhis pent.  He submitted that marks of anthracene powder are found on
\nthe finger tips of the accused and also on the pocket of the pent of
\nthe accused which has been recovered.  He therefore submitted that it
\nclearly establishes the acceptance and recovery.\n<\/p>\n
5.1\t\tMr.Jani,
\nlearned APP has referred to and relied upon the reported decision of
\nAIR 2001 SC 147 in case of Madhukar Bhaskarrao Joshi Vs. State of
\nMaharashtra and submitted that once the public servant is found
\nin possession of smeared currency notes with phenolphthalein powder
\nit is sufficient to draw legal presumption and prosecution under
\nsection and need not to prove that money was paid to public servant.\n<\/p>\n
5.2.\t\tMr.Jani,
\nhas therefore submitted that discrepancy with regard to so-called
\ntimings and the contentions based on time factor, it must be possible
\nto believe that such trap would be arranged and money offered must be
\naccepted. He further submitted that even if there are some
\ndiscrepancies, there are no material contradictions and therefore the
\njudgment and order recording conviction is just and proper.  Mr.Jani
\nhas also submitted that even in further statement recorded under
\nSection 313 of the Code of Criminal Procedure the accused has not
\noffered any explanation with regard to the tainted currency note
\nfound in his possession and has merely denied about any such demand
\nor acceptance or recovery.  He therefore submitted that as the
\nappellant   original accused has expired the appeal filed by the
\nState for enhancement of sentence would not survive and even the
\nappeal filed by the accused has been permitted to continue by the
\nwidow for the limited purpose of availing benefits, if the judgment
\nand order is reversed.  However, he submitted that in light of the
\nmaterial placed on record the judgment and order recording conviction
\nis just and proper and may be sustained.\n<\/p>\n
8.\t\tIn
\nview of the rival submissions it is required to be appreciated
\nwhether the present appeal calls for any interference or not.  As it
\nis evident that the appellant   accused has expired pending the
\nappeal which would have abated but for the permission granted
\npursuant to the order passed in Criminal Misc. Application No.6127 of
\n2003 in Criminal Appeal No.455 of 1997, the said application and
\npermission was obviously for the purpose that if the appeal is
\nallowed the widow may be entitled to financial benefits of provident
\nfund, gratuity, etc., as the deceased   accused was public
\nprosecutor in a trial Court.  The appeal preferred by the State for
\nenhancement would not survive.  Therefore, in this background even
\nfor considering the material and evidence on record the Court has
\nscrutinized the entire evidence to analyze and appreciate the
\nsubmissions made by learned Counsel, Mr.Buddhbhatti.  As it
\ntranspires from the material and evidence it is evident that
\ninitially the complainant had met the accused at 12 O’clock in the
\nCourt where the accused is said to have demanded illegal
\ngratification \/ bribe of Rs.100\/- for favouring son of the
\ncomplainant in a Juvenile Court. When the complainant had said that
\nhe does not have money he would arrange for that and thereafter he
\nlodged the complaint and trap was arranged. Panchnama of the first
\npart was prepared and thereafter they proceeded for trap in the
\nJuvenile Court.  The accused is said to have been present when he saw
\nthe complainant, he said to have again repeated his demand suggesting
\nas to as he has come and whether he has brought the money.  Thereupon
\nthe complainant has offered currency note of Rs.100\/- smeared with
\nthe anthracene powder which is accepted by the accused in presence of
\nPanch Witness No.1.  Thereafter, when the signal was given the
\nmembers of the raiding party gathered and in the Office of
\nSuperintendent in the Court premises itself the recovery of the
\ntainted currency note of Rs.100\/- was made from the pocket of the
\npent of the accused.  The marks of anthracene powder was found on the
\nfinger tips of the hand of the accused as well as the marks of
\nanthracene powder were found on the pocket of his pent. This
\ntestimony of the complainant is corroborated by the testimony of
\nPanch Witness No.1. Testimony of Panch Witness No.1 which has also
\nfurther corroborated by the testimony of the Investigating Officer.
\nTherefore, these submissions made by Mr.Buddhbhatti that there was no
\ndemand cannot be believed or accepted in light of the clear evidence
\nwith regard to demand, acceptance and recovery of the tainted
\ncurrency note from the pocket of the pent of the accused.  It is also
\nrequired to be mentioned that there was a motive for such demand that
\nhe could favour the complainant by not representing the case properly
\nwhere the son of the complainant was a juvenile accused.  Therefore,
\nthis aspect has been clearly established coupled with this motive,
\nsubmissions made by Mr.Buddhbhatti that such complaint has been filed
\nto falsely implicate as the complainant was annoyed when the order
\nwas passed to give Bhathha \/ charges to the witnesses.  There is no
\nplausible explanation with regard to the acceptance and recovery of
\ntainted currency note. The another facet of the argument with regard
\nto the discrepancy and the independent witness has not been examined
\nis also ill founded as the learned Special Judge has also dealt with
\nthis aspect to which the learned APP has drawn the attention that
\nTrap Laying Officer has simply suggested the Higher Officer of the
\nProsecution Witness No.2 to send anybody therefore there was no
\nquestion of selecting any Panch by the Trap Laying Officer.  There is
\nno animosity between the Prosecution Witnesses No.1, 2 and 3 and the
\naccused. Therefore, these is no reason for these witnesses to support
\nthe complainant and cause any prejudice to the accused by giving
\nfalse evidence or falsely implicating accused.\n<\/p>\n
9.\t\tThe
\njudgment of the Hon’ble Apex Court referred to and relied upon by
\nlearned APP though refers to the Prevention of Corruption Act, 1988
\nwhereas present case is of Prevention of Corruption Act, 1947.
\nHowever, the observations in paragraph No.18 are required to be
\nconsidered for the alternative submission made by learned Counsel,
\nMr.Buddhbhatti that as the accused has expired the widow who has
\npersuaded this appeal only with a view to get some benefit may be
\nconsidered. This submission is required to be considered in light of
\nthe fact that accused was a Public Prosecutor and his function was to
\nassist the Court in administration of justice and therefore it was
\nhis obligation to discharge his duty impartially.  On the contrary,
\nhe is said to have indulged in such activity for not representing the
\ncase of the Juvenile accused, son of complainant and for such favour
\nhad demanded and accepted the bribe.  This has to be therefore
\nconsidered also in the background of the object of the Prevention of
\nCorruption Act.  The Hon’ble Apex Court in the judgment reported in
\nAIR 2001 Page 147 in paragraph No.18 has observed as under:\n<\/p>\n
 18.
\nWhen corruption was sought to be eliminated from the polity all
\npossible stringent measures are to be adopted within the bounds of
\nlaw. One such measure is to provide condign punishment. Parliament
\nmeasured the parameters for such condign punishment and in that
\nprocess wanted to fix a minimum sentence of imprisonment for giving
\ndeterrent impact on other public servants who are prone to corrupt
\ndeals. That was precisely the reason why the sentence was fixed as 7
\nyears and directed that even if the said period of imprisonment need
\nnot be given the sentence shall not be less than the imprisonment for
\none year. Such a legislative insistence is reflection of Parliament’s
\nresolve to meet corruption cases with very strong hand and to give
\nsignals of deterrence as the most pivotal feature of sentencing of
\ncorrupt public servants. All public servants were warned through such
\na legislative measure that corrupt public servants have to face very
\nserious consequences. If on the other hand any public servant is
\ngiven the impression that if he succeeds in protracting the
\nproceedings that would help him to have the advantage of getting a
\nvery light sentence even if the case ends in conviction, we are
\nafraid its fallout would afford incentive to public servants who are
\nsusceptible to corruption to indulge in such nefarious practices with
\nimmunity. Increasing the fine after reducing the imprisonment to a
\nnominal period can also defeat the purpose as the corrupt public
\nservant could easily raise the fine amount through the same means.\n<\/p>\n
10.\t\tIn
\nthe result the judgment and order dated 31\/03\/1997 passed by the
\nlearned Special Judge, Junagadh in Special Case No.9 of 1989 deserves
\nto be confirmed and is accordingly confirmed.  Criminal Appeal No.455
\nof 1997 preferred by the appellant   accused (deceased) deserves to
\nbe dismissed and is accordingly dismissed.  Criminal Appeal No.504 of
\n1997 preferred by the State of Gujarat for enhancement, as the
\nsentence awarded was less than minimum, would not survive as the
\nappellant-accused has expired and accordingly stands disposed of.\n<\/p>\n
(RAJESH
\nH SHUKLA, J.)<\/p>\n
sompura<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Munikumar vs Unknown on 8 April, 2010 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print CR.A\/455\/1997 8\/ 14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 455 of 1997 With CRIMINAL APPEAL No. 504 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================================= 1 […]<\/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-50848","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMunikumar vs Unknown on 8 April, 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\/munikumar-vs-unknown-on-8-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Munikumar vs Unknown on 8 April, 2010 - 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