CR.A/268/1991 1/66 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 268 of 1991 With CRIMINAL APPEAL No. 274 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= RAMANLAL CHHOTALAL SANGHAVI - Appellant(s) Versus STATE OF GUJARAT \ - Opponent(s) ========================================================= Appearance : CR.A.268/1991 : MR KB ANANDJIWALA for Appellant(s) : 1, MS DARSHANA PANDIT, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, Appearance : CR.A.274/1991 : MR KJ SHETHNA, for Appellant(s) : 1, MS DARSHANA PANDIT, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 25/04/2007 CR.A/268/1991 2/66 JUDGMENT CAV COMMON JUDGMENT : 1. Both these appeals are under section 374 R/w Section 386 of CrPC challenging the legality and validity of the judgment and order of conviction and sentence passed by ld. Special Judge, Sabarkantha at Himmatnagar in Special Case NO.1/1987 dated 27.03.1991 holding both of them guilty of the offence punishable under section 161 of Indian Penal Code (IPC for short) and also for the offence punishable under section 5(i)(d) R/w section 5(2) of the Prevention of Corruption Act (hereinafter referred to as the Old Act and/or the Act). The quantum of substantive sentence and fine imposed on both the appellants accused are same and they are asked to undergo R/I for 2 years and to pay a fine of Rs.1000/, I/d to undergo further R/I for 6 months for the offence punishable under section 5(i)(d) R/w section 5(2) of the Act and also to undergo R/I for 1 Year and to pay a fine of Rs.500/, I/d to undergo R/I for 3 months for the offence punishable under section 161 of IPC. The ld. Special Judge, of course, ordered that all the substantive sentences to run concurrently. 2. The appellant of Criminal Appeal No.268/1991 is original accused No.2 and the appellant of Criminal Appeal No.274/1991 is the original accused No.1. For the sake of convenience, they are referred to as the accused CR.A/268/1991 3/66 JUDGMENT No.1, accused No.2 and/or accused considering the context of the reference. 3. Both the appellants accused have challenged the order of conviction and sentence on various grounds stating the gist of the evidence led during the course of trial in para-5 of the memo of the appeal. Mr. Shethna, ld. Sr.Counsel appearing for accused No.1 has mainly argued the appeal and ld. Counsel Mr. Anandjiwala appearing for accused No.2 has accepted the arguments advanced by ld. Sr.Counsel Mr. Shethna and has made certain additional submissions in the background of the nature of the evidence led by the prosecution. They have taken me through the various grounds of challenge and so also the judgment and order of conviction and sentence. Ms. Pandit, ld. APP has also placed before the Court various submissions and has supported the finding recorded by the ld. Trial Judge and has attempted to reply the point of resistance placed by Mr. Shethna and Mr. Anandjiwala for the appellants accused. 4.(i) To appreciate the rival contentions, few facts leading to the prosecution against both the accused need to be stated. Of course, the case of the prosecution is reflected in the charge exh.21. It is the say of the prosecution that the complainant Kodarbhai Madhabhai Patel, resident of village Sherpur, Ta: Idar, District: CR.A/268/1991 4/66 JUDGMENT Sabarkantha, an agriculturist by profession, made serious grievances against both the accused before the Police Inspector, Anti-Corruption Bureau (ACB for short) at Himmatnagar. According to the complainant, complainant and his brother Dholabhai are the resident of village Sherpur holding agricultural lands in their joint names. However, they are residing separately. Both the brothers i.e. Kodarbhai and Dholabhai are holding 16 acres of land bearing Survey No.274 Hissa No.2 and Survey No.275 Hissa No.2 respectively. Out of this total land, the land admeasuring about 1 ½ acres have been acquired by the government for the purpose of Guhai Dam as the said land is a parcel of land which was to submerge. Notices under the Land Acquisition Act were issued and one of such notices was received by the complainant in the year 1982. Deputy Collector of Dharoi was making payment of compensation and the question of payment of compensation to the complainant and his brother was also pending with him. The complainant was anxious to get the amount of compensation as the land owner and for the purpose, he was required to produce the copy of the village form No.7/12 and also Form No.8-A popularly known as Hakka Patrak. The revenue record as was being kept and maintained by the accused No.1 being Talati-cum-Mantri (Talati for short), those copies were to be obtained from him. Village Talati was also required to identify the agriculturists- real claimants and on his CR.A/268/1991 5/66 JUDGMENT identification, Deputy Collector was to make payment of compensation amount. It is alleged that the complainant several times requested accused No.1 to expedite the matter, but once when he made request to accused No.1 Talati, accused No.1 asked him to accompany him to Himmatnagar to do the needful for getting compensation. Accused No.1 told complainant that he would accompany him within a day or two. This talk had taken place prior to lodging of the complaint. That on the following next Monday, accused No.1 accompanied the complainant to Himmatnagar with relevant village record. Both of them met one officer in the office of Deputy Collector situated in Ambawadi area of Himmatnagar and that officer was addressed by accused No.1 as Sanghavi Saheb. This Sanghavi Saheb is original accused No.2. He was Deputy Mamlatdar and concerned with the payment of amount of compensation. Accused No.2 inquired from the complainant about his purpose of his visit and in turn accused No.2 was appraised by the complainant that he was to take compensation amount for his acquired land. It emerges from the case of the prosecution that the land of the complainant and his brother was acquired under a voluntary acquisition and under a consensus after publication of the notification under section 4 of the Land Acquisition Act. It is neither the say of the prosecution nor it has come in evidence that any proceedings after publication of notification under CR.A/268/1991 6/66 JUDGMENT section 6 of the Land Acquisition Act as contemplated under section 9 etc. of the Act has taken place. At that time, accused No.2 told accused No.1 that he has not prepared necessary record and both of them should come once again along with necessary copies. Thereafter, accused No.1 asked the complainant to go out of the room and Talati- accused No.1 after spending some time with accused No.2 came out of the office and told the complainant that the accused No.2 would carry out the work, but for that purpose, his efforts must be considered. It is alleged that as the complainant was anxious to know about the nature of consideration for the efforts that accused No.2 was to make, accused No.1 informed the complainant that accused No.2 must be satisfied. The complainant told accused No.1 that he has no money and in turn he was asked by accused No.1 that no work can be done without money and he should decide by giving appropriate thoughts. Thereafter, both of them separated at Himmatnagar. (ii) On the next day, the complainant met Talati-accused No.1 and inquired from him as to what accused thought about doing of his work. At that time, accused No.1 Talati told the complainant that on the next day i.e. on Wednesday he is to go to Himmatnagar and complainant should accompany him and they would meet accused No.2 Mr. Sanghavi. Accused No.1 Talati assured the complainant CR.A/268/1991 7/66 JUDGMENT that he would get things done through accused No.2. On Wednesday, as it was convenient to accused No.1, complainant and accused No.1 went to Himmatnagar. Accused No.1 also informed the complainant that he has brought necessary record also in respect of his land. Thereafter, both of them i.e. complainant and accused No.1 met accused No.2 Mr. Sanghavi in his office. Thereafter, accused NO.2 told accused No.1 and complainant to accompany him outside the office and after they came out, accused No.1 Talati told accused No.2 that Kodarbhai -complainant has come and now what is to be done. At that time, accused No.2 told that he has to carry out the work of the complainant and he shall do it and for that work, Rs.500/ should be paid to him and he would make immediate arrangements for the cheque. On this disclosure by accused no.2, accused No.1 inquired from the complainant as to how much amount the complainant has brought. The complainant replied that he has not brought that much amount and if the cheque is given, he would give money on its encashment. Accused No.2 at that time told the complainant that his work can be done only if he pays the amount in advance. He also said that there are several number of persons who have taken away the cheques and have not returned to pay the amount as agreed. These persons had gone directly and had not paid money to accused No.2. So, accused No.2 told complainant to make arrangements for money if he can do so from the Bazar. CR.A/268/1991 8/66 JUDGMENT Complainant told accused No.1 that nobody knows him in Himmatnagar town and it will not be possible for him to collect the money from Bazar. On this discussion, accused No.2 went inside the office and while going inside, told the complainant to come only after arrangement of money is made. The complainant asked accused No.1 as to what now should be done and accused No.1 told complainant that he must arrange for Rs.500/ to b paid to accused No.2 Mr. Sanghavi and Rs.100/ to be paid to him. According to accused No.1, he should be paid Rs.100/ as remuneration for accompanying him and for identification of the complainant and for supplying copies of revenue record. Accused No.1 told the complainant that this amount of Rs.600/ should be paid to him and only then he would accompany the complainant for the purpose of identification. At that time, the complainant told accused No.1 that whenever the amount is arranged, he will inform accused No.1. On next Friday, the complainant met accused No.1 and requested him to accompany him to Himmatnagar. However, accused No.1 Talati told him that the case of the land of High School was going on and, therefore, it was not possible for him to accompany him for going to Himmatnagar, but assured that they would go to Himmatnagar on Monday and also reminded the complainant to bring Rs.600/. He also told the complainant that unless full amount is brought, he would not come to Himmatnagar as it would be fruitless. Accused CR.A/268/1991 9/66 JUDGMENT No.1 was also requested whether the amount could be reduced, but accused No.1 was not agreeable and repeated once again that the full amount should be brought and only then he would accompany him to Himmatnagar and would identify him. (iii) Considering the insistence of accused No.1 and demand made by accused No.2 for Rs.500/, the complainant decided to lodge a complaint and went to the office of ACB at Himmatnagar and informed PI Mr. Parmar that he is not inclined to make any payment as bribe either to accused No.1 Talati or to accused No.2 Mr. Sanghavi. He also informed Mr. Parmar that Talati has promised him to accompany him to Himmatnagar for getting his work done between 12.00 noon & 2.00 p.m. After listening the complainant, PI Mr. Parmar recorded the formal complaint of the complainant Kodarbhai on 21.04.1985. On 22.04.1985, at about 1.15 p.m., the complainant went once again to ACB Office and informed PI of ACB that Talati had postponed to accompany him to Himmatnagar as there was a case of land of the High School and several persons were to come and gather there in the village and accused No.1 Talati has promised him to accompany him on the next day and accused No.1 had also instructed him to bring money. Police Inspector of ACB instructed the complainant and also complainant told PI of ACB that when he comes on the next day with accused, he would immediately inform CR.A/268/1991 10/66 JUDGMENT him. PI of ACB reduced this in writing in the nature of complaint and asked the complainant to come on the next day along with the money proposed to be paid as bribe. Regular PI of ACB at Himmatnagar was one Mr. Gadhavi who was on leave, but as Mr. Gadhavi was on leave, PI Mr. Parmar of ACB, Mehsana was placed in charge of ACB Police Station at Himmatnagar and Mr. Parmar, therefore, has recorded the complaint. (iv) On 23.04.1985, it is alleged that accused No.1 demanded bribe of Rs.600/ from complainant Kodarbhai i.e. Rs.100/ for him and Rs.500/ for accused No.2 Deputy Mamlatadar Mr. Sanghavi and they obtained the amount of Rs.600/- as illegal gratification. When the amount was obtained, a trap was arranged by PI Mr. Parmar and a formal first part of panchanama was drawn in presence of two panchas, one of them was Mr. Laxmanbhai Mohanbhai Kotwal and another one was Mr. Rakesh Sutaria, both of them are government servants serving in Public Works Department (popularly known as PWD). All the formalities of applying anthracene powder etc. were carried out in presence of panchas as described in first part of panchanama. It is alleged that the complainant with panch No.1 went to the office of accused No.2. Some members of raiding party scattered themselves in the office, Panch Mr. Kotwal took his seat in such a manner that he can visualize the transaction/transfer of bribe money and can CR.A/268/1991 11/66 JUDGMENT listen the conversation. It is alleged that the complainant told Mr. Sanghavi that he and accused No.1 have come, accused No.1 has brought copy of the village form and now their work should be done. At that time, accused No.2 told accused No.1 that first his work should be finished. At that time, accused No.1 asked the complainant to give him money and told the complainant not to worry for his work. Thereupon, the complainant took out currency notes stained with anthracene powder from his pocket and gave it to accused No.1 Talati. Accused No.1 counted currency notes and out of six notes of Rs.100/ denomination, kept one for himself and other notes were offered to accused No.2 – Deputy Mamlatdar Mr. Sanghavi. Accused No.2 Mr. Sanghavi told the complainant to keep the notes with him for the time being. Accused No.1 thereafter again bundled up the notes and kept them in his hands. In the mean time, the complainant came out and gave a signal as per instructions and raiding party rushed inside the room and both the accused were caught. It is alleged that at the time of actual raid, the amount of bribe was found from the hands of accused No.1. The hands of accused No.1 were also found stained with anthracene powder marks when hands were examined under Ultra Violate lamp. The personal bag known as “Theli” of accused No.1 was searched and ACB Inspector in presence of panchas found revenue record and blank forms for preparing copies. In presence of panchas, 2nd part of CR.A/268/1991 12/66 JUDGMENT panchanama thereafter was drawn and accused were intercepted. Thus, according to the prosecution, both the accused have committed above-said offences. 5. The points placed before the Court, if are mentioned in nutshell, they are as under:- (i) The case of the prosecution is highly improbable as it was not possible for accused No.2 to arrange for money and for issuance of a cheque and for this purpose, the amount of total compensation also should be considered. (ii) The conduct of the complainant makes him unreliable and it emerges that under total frustration, he arranged trap as his idea was to get the amount of compensation from the government otherwise the same was to go to Land Mortgage Bank as the complainant was the debtor of the Bank. The Bank had already served with him a notice to pay up the debts and deputy Collector was under obligation to tender entire amount of compensation directly to the Bank. The complainant was in a mood to get out of that contingency and with a view to put pressure, he implicated both the accused falsely. The opportunity to trap both the accused was created by the complainant and ACB PI Mr. Parmar has used the CR.A/268/1991 13/66 JUDGMENT anxiety of the complainant in making out the case so that he can get a feather in his cap for carrying out a successful trap even when he was simply a PI in charge of ACB, Himmatnagar Police Station. (iii) Weekly diary and case diary of Mr. Parmar were not brought before the Court otherwise it could have been successfully pointed out that the trap in the present case is a created trap and the same is not based on a genuine complaint. (iv) The substratum of the story of the prosecution is absurd and highly improbable because no formal possession of the land of the complainant was taken. The land of the complainant is situated on the periphery of the dam and so till the date of taking over the actual possession, there was no scope of paying any amount of compensation and, therefore, the prosecution case should not be believed. The evidence of traveling in a car for some distance brought on record by the prosecution is highly unreliable. Neither the owner of the car nor the driver of the car has been examined and this part of the story brought by the prosecution on record makes the case of the prosecution unreliable. (v) Panch No.1 examined by the prosecution was not CR.A/268/1991 14/66 JUDGMENT there with the complainant though he was asked to remain with the complainant. He had occupied a chair which was at a reasonable good distance and it is not possible to believe that he could see the physical gestures or listen the conversation between the complainant on one side and accused Nos. 1 & 2 on the other. (vi) The absence of nil panchanama on 22.04.1985 makes the prosecution case more doubtful. Why PI Mr. Parmar has selected the panchas from one and some department and especially when PWD is known defamed department? At least, one panch ought to have been selected from some other department. (vii) Ratio laid down in the case of Gulam Mahmood A.Malek v/s State of Gujarat, AIR 1980 SC 1558 should be considered because the background of the case of the prosecution has to be seen and background in the present case does not support the version either of the complainant or of a panch No.1. (viii) The integrated story should be seen and the Court can not dissect one part of the basic story of the case of the prosecution. The demand of Rs.500/ + Rs.100/ and conversation in this regard that has allegedly taken place does not get CR.A/268/1991 15/66 JUDGMENT sufficient corroboration. When the division of the total amount of bribe has not been told specifically, the story of the prosecution should not have been believed by the ld. Trial Judge. (ix) The Court has ignored one set of evidence supported by the document i.e. evidence as to bank debt of the complainant and his brother and the relevant law under which the Deputy Collector was supposed to pay the amount of compensation directly to the Bank. The amount which was to be paid to the Bank was insisted upon the complainant and the ld. Trial Judge has failed in appreciating this part of evidence so also the evidence of Deputy Collector Mr. Gurjar examined. There was no reason for the Court to discard the evidence of Mr. Gurjar wherein he has stated that the complainant was not otherwise entitled to compensation as formal possession of his land was not taken. (x) At the most, the evidence establishes one fact that at the time of raid, muddamal currency notes were with accused No.1 Talati, but mere acceptance or mere recovery is no proof of acceptance of bribe and prosecution is supposed to prove that the amount accepted or recovered was bribe amount and the same has been accepted under some agreement or understanding. CR.A/268/1991 16/66 JUDGMENT 6. The above points of submissions have been adopted by ld. Counsel Mr. Anandjiwala for accused No.2. But here it is necessary to mention that further more points have been advanced by ld. Counsel Mr. Anandjiwala i.e. Deputy Mamlatdar Mr. Sanghavi and if these points are mentioned in nutshell, they are in reference to the fact drawing line of difference between the case of the prosecution against accused No.1 and accused No.2 Deputy Mamlatdar Mr. Sanghavi. It is argued that:- (i) There is no consistency nor enough strength in the evidence as to meeting of the complainant with accused NO.2 when the complainant was accompanied by accused No.1 on the first occasion. As this part of evidence is weak, accused No.2 ought not to have been linked with the demand of the bribe amount. (ii) The ld. Trial Judge has ignored the material contradictions and improvements made by the prosecution witnesses namely the complainant on the point of first meeting and the ld. Trial Judge ought to have observed that there is no legal and satisfactory evidence on the point of such first meeting that had taken place in the office of accused No.2. (iii) 21st April, 1985 was Sunday and there was CR.A/268/1991 17/66 JUDGMENT no scope for conversation between accused No.1 and the complainant as the place of posting of PI Mr. Takahatsingh Mulubha Parmar i.e. PW 3 PI Mr. Parmar was at Mehsana and there was no reason for him to be there in the office of PI, ACB at Himmatnagar. This clearly indicates that PI Mr. Parmar must have some indication that the complainant is going to come to the office of PI, ACB at Himmatnagar, otherwise Mr. Parmar could have explained as to why he was present in the office of PI, ACB at Himmatnagar even on Sunday. (iv) The alleged demand of bribe amount has not been made by accused No.2. The case of the prosecution is that initially the demand was made by accused No.1. No reason for deciding the figure of bribe amount of Rs.600/ has been given by the complainant otherwise it would have been reflected in the complaint. The ld. Trial Judge ought to have seen the sequence of events that had occurred prior to filing of the complaint and the version in the complaint. This makes the evidence of the complainant weak and doubtful. (v) There is no evidence about when demand was made. Accused No.2 probably was not to get anything and there is no evidence about conversation of convincing nature available on the day of trap and CR.A/268/1991 18/66 JUDGMENT so also in the office of accused NO.2 prior to the filing of the complaint and it would be risky for the Court to accept the version of the complainant without any corroboration. The material contents of the complaint exh.39 have not been proved by the complainant during his deposition. So, that part of the complaint ought not to have been read by the ld. Trial Judge while assigning the reasons. Only the legal and admissible evidence can be read and considered and, therefore, the judgment can be said to be erroneous based on improper and illegal appreciation