CR.A/1055/1993 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1055 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAHENDRASINH GOBARSINH JHALA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellant(s) : 1, MR LR PUJARI ADDL. PUBLIC PROSECUTOR for Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 23/07/2008 ORAL JUDGMENT 1.0 By way of this appeal, the appellant has challenged the judgment and order of the learned Special Judge, City Sessions Court, 2nd Court, Ahmedabad city, dated 26.07.1993 passed in Special Case No.5 of 1991, whereby the trial Court has CR.A/1055/1993 2/35 JUDGMENT convicted the appellant herein, for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988('Act' for short) and sentenced him to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs.500/- and in case of default, to undergo further Rigorous Imprisonment for a period of three months. The appellant was also convicted for the offences punishable under Sections 13(1)(d)(i) and 13(1)(d)(ii) of aforesaid Act and was sentenced to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs.500/- and in case of default, to undergo further Rigorous Imprisonment for a period of one year. However, the applicant was acquitted qua the offence punishable under Section 13(1)(d)(iii). The aforesaid sentences were ordered to run concurrently. 2.0 The brief facts of the case are that, at the relevant point of time, original complainant- P.W.-1, herein, was doing business of plying auto- rickshaw on hire basis by paying certain rent to CR.A/1055/1993 3/35 JUDGMENT its owner. On 27.12.1989, in the morning at about 8:00 a.m. when P.W.-1 had gone to the Civil Hospital, Ahmedabad in search of passengers, original accused-the appellant herein, approached P.W.-1 and told him that he(the appellant) was attached to Traffic Court(Court No.13), Gheekanta, Ahmedabad and that there are about 15 to 16 N.C. complaints pending against P.W.-1, and hence, P.W.-1 has to come with him(the appellant) to the Court for the disposal of the said complaints. The appellant, then, told P.W.-1 to drive his auto- rickshaw to Kalupur Railway Station. On reaching there, the appellant told P.W.-1 to park the said auto-rickshaw in the parking stand. The appellant obtained the parking coupon for the said auto- rickshaw and instructed the person manning the parking not to release the said auto-rickshaw without his instructions and told P.W.-1 to accompany him. However, since P.W.-1 had no money with him, he(P.W.-1) requested the appellant to let him go so that he can make necessary arrangement for money to be paid towards fine, but, the appellant insisted that P.W.-1 must CR.A/1055/1993 4/35 JUDGMENT accompany him. Thereafter, the appellant told P.W.-1 that looking to the cases registered against him(P.W.-1), the total fine which would be imposed upon him by the Court would come to approximately Rs.500/-, but, if he(P.W.-1)pays Rs.15/- per complaint to him(the appellant) which would come to Rs.225/- as illegal gratification, then the appellant would see to it that the complaints pending against P.W.-1 are disposed of without requiring his(P.W.-1's) presence. But, since P.W.-1 did not have that much money, he(P.W.-1) requested the appellant to reduce the amount, and hence, after some discussion, the appellant agreed to accept Rs.175/- for disposal of all the complaints pending against P.W.-1. The appellant told P.W.-1 to come with the aforesaid amount at about 2:30 to 3:00 p.m. at Court No.13 on the same day. Since P.W.-1 did not want to pay any bribe to the appellant, he decided to approach A.C.B., Ahmedabad. 2.1 At A.C.B., Ahmedabad, I.O.-P.W.-3 registered the complaint of P.W.-1. Thereafter, CR.A/1055/1993 5/35 JUDGMENT P.W.-3 called for two panchas. On arrival of panchas, P.W.-1 produced three currency notes of Rs.50/- each, one currency note of Rs.20/- and one currency note of Rs.5/- respectively total of which comes to Rs.175/-. Thereafter, after following necessary statutory procedures like noting down the Numbers of the currency notes, experiment with ultraviolet lamp and normal light, were conducted on the aforesaid currency notes, after smearing the same with Anthracene powder. A preliminary 'Panchnama' was drawn to the aforesaid effect. The panchas and the raiding party were, then, given necessary instructions by P.W.-3. Thereupon, P.W.-1, panchas and the raiding party left towards the office of the appellant. 2.2 On reaching the Court premises, everybody took their position. P.W.-1 along with Panch Witness No.1 i.e. P.W.-2, herein, went towards the office of the appellant. When P.W.-1 and P.W.-2 reached near the office of the appellant, they saw appellant was sitting there with another person. P.W.-1 then told the appellant that as per the CR.A/1055/1993 6/35 JUDGMENT talk between them he could not bring Rs.175/-, but, he has brought Rs.150/- only. The appellant, then, told P.W.-1 to give the money and P.W.-1 took out the tainted currency notes and gave the same to the appellant which were accepted by the appellant. The appellant put the tainted currency notes in his shirt pocket and held out his hand to give parking coupon to P.W.-1, at that time, P.W.- 1 gave pre-planned signal to the raiding party and the members of the raiding party rushed into the office of the appellant and the appellant was caught red-handed. Then, the tainted currency notes were recovered from the appellant. In pursuance of that statutory procedures like experiment of normal light and ultraviolet lamp with Anthracene powder were done and second part of the 'Panchnama' was completed. 2.3 On completion of investigation and after obtaining necessary sanction, charge-sheet was submitted against the appellant before the trial Court. The trial Court framed, read over and explained charges under Section 7, Section 13(1) CR.A/1055/1993 7/35 JUDGMENT (d)(i), Section 13(1)(d)(ii) and Section 13(1)(d) (iii) of the Prevention of Corruption Act to the appellant. However, the appellant did not plead guilty to the charges and claimed to be tried. 2.4 Thereafter, further statement of the appellant-accused under Section 313 of the Cr.P.C. was recorded after evidence of prosecution side was over. The appellant-accused denied all the charges leveled against him and submitted that he was falsely implicated in the offence by trapping him. After hearing the parties, the trial Court has passed the judgment and order as stated in Para-1 of this judgment. Hence, the present appeal. 3.0 Heard Mr. Shah, learned Advocate for the appellant and Mr. Pujari, learned AGP on behalf of respondent-State. 4.0 Mr. Shah, learned Advocate for the appellant has submitted that the trial Court ought to have appreciated the fact that since there is CR.A/1055/1993 8/35 JUDGMENT very heavy backlog of N.C. Complaints in the courts and since P.W.-1 had violated traffic rules and was not attending the Court, with a view to secure his(P.W.-1's) presence, the appellant told him to park his auto-rickshaw in parking stand at Kalupur Railway Station and instructed P.W.-1 to come to Gheekanta Court, Ahmedabad along with the amount of fine so that the cases pending against P.W.-1 can be disposed of by making payment of token amount of fine. 4.1 Learned Advocate has further submitted that the trial Court has committed an error by holding that the amount of Rs.150/- was accepted by the appellant towards bribe, whereas the same was paid by P.W.-1 for disposal of N.C. cases pending against him. 4.2 Learned Advocate has submitted that the trail Court has failed to appreciate the fact that P.W.-1 was plying the auto-rickshaw by paying certain amount of rent to its owner. On the date of incident, P.W.-1 had obtained the said rickshaw CR.A/1055/1993 9/35 JUDGMENT at about 8:00 a.m. in the morning and was supposed to return the same at about 4:00 p.m. on the same day, failing which he had to pay additional rent to the owner of the auto-rickshaw. Hence, with a view to see that P.W.-1 does not have to pay any additional rent to the owner of the auto-rickshaw, the appellant gave the parking coupon to P.W.-1 on humanitarian ground as P.W.-1 had already handed over the amount to be paid towards fine to the appellant and had also promised the appellant that he(P.W.-1)would come back immediately after handing over the auto-rickshaw to its owner, and hence, the trial court ought to have held that the amount of Rs.150/- received by the appellant was not brib. In support of his case, learned Advocate for the appellant has placed reliance on a decision of the Hon'ble Apex Court in the case of “Khilli Ram Vs. State of Rajasthan” reported in AIR 1985 SC 79 wherein in Para-4, the Hon'ble Apex Court has observed as under, “The restriction on appreciation of evidence in an appeal by special leave is a self-imposed one and is not a jurisdictional bar. While ordinarily the CR.A/1055/1993 10/35 JUDGMENT Supreme Court would refrain from re- examining the evidence, in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self-imposed restrictions.” 5.0 To prove its case, the prosecution has examined following witnesses, 1. VechatbhaiVechatbhai Kanjibhai Patni P.W.-1 Exhibit-7 2. Hasmukh Popatlal Shah P.W.-2 Exhibit-29 3. Jayeshbhai Hirabhai Solanki P.W.-3 Exhibit-34 5.1 The prosecution has also placed reliance on several documentary evidence i.e., Charge Sheet (Exhibit-3), Seizure Memo(Exhibit-9), Panchnama(Exhibit-30), etc.. 5.2 The appellant has also examined the following witnesses in support of his case, 1. Nikhilkumar Vishwanath D.W.-1 Exhibit-61 2. Sankardan Rantnsinh Gadhvi D.W.-2 Exhibit-62 3. Chimanlal Chanabhai Raval D.W.-3 Exhibit-63. CR.A/1055/1993 11/35 JUDGMENT 6.0 Original Complainant-Vechatbhai Kanjibhai Patni-P.W.-1 who was examined at Exhibit-7 in his deposition has deposed that at the relevant point of time, he was earning his livelihood by plying auto-rickshaw on hire, by paying a fixed rent to its owner. He has deposed that on the date of alleged incident, he had gone towards Civil Hospital, Ahmedabad in search of passengers and at that time, the appellant met him there and told him(P.W.-1) that there are about fifteen to sixteen N.C. Cases pending against P.W.-1, and hence, he had to come to the Court with the appellant. Thereafter, as per the instruction of the appellant, P.W.-1 drove the rickshaw to the Kalupur Railway Station and parked the rickshaw in the parking stand. The appellant instructed the person manning the said parking stand not to release the said rickshaw without his permission. Since, P.W.-1 had no money with him at that time, he requested the appellant to grant him time of two or three days so that he can make arrangement for making payment of fine. But, the appellant CR.A/1055/1993 12/35 JUDGMENT denied to grant any further time. The appellant, thereafter, told P.W.-1 that if P.W.-1 would pay Rs.15/- per complaint to him(the appellant), then the appellant would see to it that the complaints pending against P.W.-1 will be disposed of without requiring his presence. However, since the complainant felt that the said amount was higher, after some discussion, the deal was stuck at Rs.175/-. The appellant, then, told P.W.-1 to come to the Court on the same day in the afternoon with the aforesaid amount. 6.1 P.W.-1 has further deposed that since he did not want to pay bribe to the appellant, he approached A.C.B., Ahmedabad as stated earlier. At A.C.B. office after registration of the complaint of P.W.-1, panchas were called and after the necessary statutory procedures, i.e. experiment of ultraviolet lamp upon the currency notes by smearing Anthracene powder etc. were done and the first part of the panchnama was completed. The I.O.-P.W.-3, then, gave necessary instructions to P.W.-1, panchas and the members of the raiding CR.A/1055/1993 13/35 JUDGMENT party and pursuant thereof they all left for the court. 6.2 P.W.-1 has deposed that on reaching the Court premises, everybody took their position and he along with P.W.-2 went towards the office of the appellant situated in the Court premises. When P.W.-1 and P.W.-2 reached near the office of the appellant, the appellant was sitting there along with another person. On seeing P.W.-1, the appellant asked him as to what amount he(P.W.-1) had brought? In reply to that, P.W.-1 told the appellant that he could manage Rs.150/- only. The appellant told him to give the said amount. P.W.- 1 gave the tainted currency notes to the appellant, and then, gave pre-planned signal to the raiding party. On receiving the signal, members of the raiding party rushed into the office of the appellant and the appellant was caught red handed. In pursuance of that the necessary procedures such as the experiment of ultraviolet lamp on the tainted currency notes, tallying of Numbers of the tainted currency notes CR.A/1055/1993 14/35 JUDGMENT with the Numbers mentioned in the first part of panchnama etc., were done and thus the second part of the panchnama was completed. 6.3 P.W.-1, in his cross-examination was confronted with several questions, but, he clung to the version of offence given by him in his complaint as well as deposition. P.W.-1 in his cross-examination denied that the appellant had told him to come in the Court along with the amount of fine and also bring one Dahyabhai with him. He has further denied that when he told the appellant that he has brought Rs.150/- only instead of Rs.175/-, at that time, the appellant had told him that with Rs.150/-, some complaints can be disposed of, but, rest of the complaints will remain as they are. P.W.-1 further denied to have said to the appellant to let him go so that he can handover the auto-rickshaw to its owner, failing which he would have to pay additional rent to the owner of the auto-rickshaw and then he handed over the amount of Rs.150/- to the appellant and requested him(the appellant)to give CR.A/1055/1993 15/35 JUDGMENT the parking coupon to him. He has also denied that since the appellant behaved rudely with him, he has filed a false complaint against him. 7.0 The version of offence given by P.W.-1 is also supported by Panch No.1-Hasmukh Popatlal Shah-P.W.-2, herein, who was examined at Exhibit- 29. In his deposition he has deposed that on 27.12.1989 his senior officer Mr. Chauhan, told him and his colleague Rameshbhai to assist A.C.B. in carrying out a trap. He, therefore, along with Rameshbhai went to the office of the A.C.B., Ahmedabad. On reaching there, they were introduced to the complainant and in pursuance of that, the statutory procedures which are necessary to perform before carrying out a trap were done in their presence and a preliminary panchnama was drawn to that effect. P.W.-3 then gave him instruction to remain with P.W.-1 and to witness the transaction that may take place between P.W.-1 and the appellant. Hence, as per the instruction of P.W.-3, P.W.-2 went to the office of the appellant along with P.W.-1. On reaching there CR.A/1055/1993 16/35 JUDGMENT P.W.-1 told the appellant that he had brought the money as per the talk between them, but, there is shortfall of rupees twenty five. P.W.-2 has further deposed that when the aforesaid conversation was going on between the appellant and P.W.-1, he was standing near P.W.-1. At that time, another person sitting in the office of the appellant i.e. D.W.-1 asked P.W.-2 as to why had he come? In reply to that P.W.-2 told him that he had come for disposal of a complaint regarding scooter. Then, D.W.-1 told P.W.-2 to come in the office, and hence, P.W.-2 went inside the office of the appellant. The appellant, then, told P.W.-1 to give the amount. After giving the amount P.W.- 1 gave signal to the raiding party and the members of the raiding party rushed to the spot and caught the appellant red handed. 7.1 P.W.-2 in his cross-examination has stated that it is not true that the second part of the Panchnama was drawn at Mirzapur Police Station and that the procedures like experiment of ultraviolet lamp and normal light with Anthracene CR.A/1055/1993 17/35 JUDGMENT powder etc. were also done at Mirzapur Police Station. He has further stated that it is not true that when P.W.-1 told the appellant that the amount is less then the deal struck between him and the appellant, the appellant told that it is not proper. On the contrary, the appellant told P.W.-1 that its O.K. and accepted the amount. P.W.-2 has clearly stated that P.W.-1 gave the bribe to the appellant after he went inside the office of the appellant. This witness has denied that he was a chosen witness. 8.0 Jayeshbhai Hirabhai Solanki,I.O.- P.W.-3, herein, who was examined at Exhibit-34 has also supported the case put forward by P.W.-1 and P.W.- 2. In his deposition, he has stated that on the date of alleged offence P.W.-1 had come to his office at about 12:00 noon. He has further deposed that after registering the complaint of P.W.-1, he called for panchas. On arrival of panchas, required statutory procedures were completed and he gave necessary instructions to panchas and, then, they left towards the office of CR.A/1055/1993 18/35 JUDGMENT the appellant. On reaching there, they took their position. P.W.-1 and P.W.-2 went to the office of the appellant. P.W.-1 gave the bribe to the appellant and then gave pre-planned signal to the raiding party. On receiving the signal, he along with the other members of the raiding party rushed into the office of the appellant. He gave instructions to the appellant to stay as he is. He has further deposed that he, then, collected the details about the transaction that had taken place between P.W.-1 and the appellant from P.W.-2. Thereafter, the experiment of ultraviolet lamp was carried out and the presence of Anthracene powder was found on the hands and shirt pocket of the appellant. P.W.-3 then told P.W.-2 to taken out the Notes given as bribe from the shirt's pocket of the appellant and when its Numbers were tallied with the Numbers already noted down in the first part of the panchnama, they were found to be matching. When the experiment of ultraviolet lamp was carried out on the said currency notes recovered from the shirt's pocket of the appellant and on the hands of the appellant and P.W.-2, the CR.A/1055/1993 19/35 JUDGMENT presence of Anthracene powder was found on them also. P.W.-3 then told Panch No.2 to take the parking coupon of the auto-rickshaw which was in the possession of the appellant and when the aforesaid experiment was carried out on the said coupon, the presence of Anthrance powder was found on it. The presence of Anthracene powder was also found on the border of the shirt's pocket of the appellant. In pursuance of that preparation of seizure memo and other procedures were done and the second part of the panchnama was completed. 8.1 P.W.-3, in his cross-examination, has stated that he had instructed P.W.-1 to give the signal as soon as he handsover the amount of bribe to the appellant without waiting to see as to what steps the appellant takes to dispose of the complaints pending against the P.W.-1 since he(P.W.-3) was knowing that the police officials are not authorized to collect the amount of fine themselves, directly. 9.0 So far as the depositions of defence CR.A/1055/1993 20/35 JUDGMENT witnesses are concerned, D.W.-1 who was examined at Exhibit-61 in his deposition has deposed that the appellant herein was entrusted with the work of serving summons and warrants to the auto- rickshaw drivers in Madhupura, Shahibaug, Asarva and Meghninagar areas. He has deposed that, generally, in case of availability of form of warrant and summons, the police officials used to take signature of their superior officers and then used to serve the same to the concerned auto- rickshaw driver. However, if there are more than ten complaints against an auto-rickshaw driver and if the warrants or summons are not issued, then the police officials used to write down the name and Number of such auto-rickshaw and used to produce them before the Court. D.W.-1 has further deposed that on the day of alleged incident, he was present in to the office and was registering the license and the appellant was also present there. At that time, P.W.-1 came there and told the appellant that by 4:00 clock if he will not return the auto-rickshaw to its owner, he (P.W.-1) has to pay additional rent to the owner of the CR.A/1055/1993 21/35 JUDGMENT auto-rickshaw unnecessarily. D.W.-1 has further deposed that P.W.-1 also told the appellant that he would immediately come back after handing over the auto-rickshaw to its owner and if he(the appellant) had no trust in him(P.W.-1), then, the appellant may keep the amount of fine to be paid in the Court with him. He has deposed that while the said conversation was going on between the appellant and P.W.-1, another person i.e. P.W.-2 was also standing there. He, therefore, asked the said person as to why he had come? The said person told D.W.-1 that he had come for disposal of a complaint regarding scooter. D.W.-1, hence, told the said person to come in to the office. At that time, P.W.-1 gave the money to the appellant and as the appellant held out his hand to give parking coupon of the auto-rickshaw to P.W.-1, P.W.-1 gave signal and the members of the raiding party rushed into the office and caught the appellant red-handed. 9.1 D.W.-1 in his cross-examination has stated that the amount of fine was to be CR.A/1055/1993 22/35 JUDGMENT determined by the Presiding Officer of the Court and on sending the 'Yadi' of the same, the amount of fine has to be paid to the cashier. D.W.-1 has admitted that when the appellant was taking money from P.W.-1, he did not tell the appellant not to do so. D.W.-1 has stated that the appellant was not empowered to collect the money. This witness has further stated that he was not aware, at the relevant point of time, as to whether the complaints pending against P.W.-1 were disposed of or not. 10.0 Shankardan Ratansinh Gadhvi-D.W.-2-who was examined at Exhibit-62, in his deposition has stated that seven Head Constables and nineteen Constables were under his charge and their duty was to arrest and produce the persons against whom more than ten complaints are pending for violating traffic rules, from the respective areas allotted to each of them. This witness has further deposed that the person against whom more than ten complaints are registered were to be produced before the Magistrate after they plead guilty. He CR.A/1055/1993 23/35 JUDGMENT has stated that the amount of fine is to be paid in the Court. 10.1 D.W.-2 in his cross-examination has clearly stated that he did not instruct anybody to directly accept the amount of fine from auto- rickshaw drivers and keep it with them. He has further stated that the amount of fine was to be determined by the Court and that only cashier was empowered to accept the same. 11.0 So far as the deposition of D.W.-3 and D.W.-4 are concerned, they are not of much relevance, and hence, the same are not discussed. 12.0 From the above discussion, it transpires that the case put forward by the prosecution is strongly supported by the evidence of prosecution witnesses and by other documentary evidences. Even, the evidence of defence witnesses also supports the prosecution case to certain extent. 12.1 In the case on hand, it has come on CR.A/1055/1993 24/35 JUDGMENT record that there is a general practice in vogue within the traffic police that if there are more than ten complaints pending against any auto- rickshaw driver and