CR.A/648/1992 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 648 of 1992 With CRIMINAL MISC.APPLICATION No. 6238 of 2001 In CRIMINAL APPEAL No. 648 of 1992 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 ? ========================================================= KALIDAS SOMABHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KB ANANDJIWALA for Appellant(s) : 1, MS DARSHANA PANDIT, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 06/02/2007 CAV JUDGMENT 1. The judgment and order of conviction and sentence passed by the ld. Special Judge of District Panchamahals CR.A/648/1992 2/38 JUDGMENT at Godhara dated 30.05.1992 in Special (ACB) Case No.1/1989 is challenged by the appellant accused by filing present Criminal Appeal under section 379(4) of CrPC. While admitting the Criminal Appeal, this Court also directed to hear Cri. Misc. Application No. 6238/2001 along with the present Criminal Application while extending the bail already granted to the appellant accused earlier till the final disposal of the criminal appeal. 2. After evaluating the oral evidence led by seven prosecution witness and other relevant documentary evidence, the ld. Special Judge held the appellant accused guilty of the offence punishable under section 5(1)(d) of the Prevention of Corruption Act (Old) (hereinafter referred to as the PC Act) read with section 161 of the Indian Penal code and sentenced him under section 5(2) of the PC Act to undergo R/I for 1 Year and to pay a fine of Rs/500/ (Rs. Five hundred only) I/d to further undergo S/I for 1 month. However, no separate sentence was awarded for the offence punishable under section 161 of the Indian Penal Code. 3. Mr. KB Anandjiwala, ld. Counsel appearing for the appellant accused has taken me through the entire judgment under challenge and various grounds assailing CR.A/648/1992 3/38 JUDGMENT the legality and validity of the judgment under challenge mentioned in the memo of the appeal. It is submitted the finding recorded by the ld. Special Judge is erroneous on the grounds mentioned in the memo of the appeal because the prosecution has failed to prove the charge beyond reasonable doubt against the appellant accused. For the sake of convenience, the appellant has been referred to as “the appellant accused” and/or “the accused.” 4. To appreciate the contentions placed before the Court by ld. Counsel Mr. Anandjiwala for the appellant accused as well as by ld. APP Ms. Pandit, it would be appropriate for the Court to state the case of the prosecution in short. It is alleged that the appellant accused was serving as Economic Investigator in District Industries Centre (DIC for short) at Godhara and was a public servant. Complainant Satishkumar Navnitlal Suthar wanted a loan of Rs.23,000/ for the purpose of cottage industry from a nationalized bank and the loan application had to be processed by the DIC of which the present appellant was the Economic Investigator. If the loan application is processed by the DIC, only then the complainant can get the loan expeditiously and also can avail the subsidy as per the scheme. So, the loan application has to be processed by DIC and the accused had some role to play being Economic Investigator in the CR.A/648/1992 4/38 JUDGMENT DIC. The accused had visited the spot mentioned in the loan application and thereafter he demanded Rs.1000/ (Rs. One thousand only) from the complainant Satishkumar Suthar who in turn lodged a complaint with Anti Corruption Bureau (ACB for short). The complainant had no money to tender to ACB Inspector and so necessary arrangements were made by ACB Officers. Thereafter, in pursuance of the demand for illegal gratification, a trap was laid on 10.06.1986. It is alleged that after visit of the spot at the place mentioned in the loan application, the accused was transferred to Bharuch and had left the charge. So, on 10.06.1986, the accused had already taken over the new assignment at DIC, Bharuch. However, he was present/available in the office of DIC, Godhara on 10.06.1986 and was caught immediately after accepting the bribe amount of Rs.1000/ from the complainant in presence of panchas. ACB Officers after investigation, found that it was a fit case to file a chargesheet. So, after obtaining necessary sanction from the competent authority, ACB submitted the chargesheet against the accused. The charge was framed against the accused by referring relevant provisions of the Old Act as well as New Act that has come in force on the date of framing of the charge in the month of October, 1991. 5. Mr. Anandjiwala, ld. Counsel appearing for the appellant accused has taken me through the evidence of the complainant and panch witnesses. Having considered CR.A/648/1992 5/38 JUDGMENT the undisputed facts brought to the notice of the Court emerging from the oral evidence as well as admitted documentary evidence exh.16 & 25 that the accused was transferred from Godhara to Bharuch on 29.05.1986, forcible implication of the accused automatically emerges, is the backbone of the argument of ld. Counsel Mr. Anandjiwala. The entire incident is in the background of the events that had occurred between April- 1986 and May 1986. According to Mr. Anandjiwala, though the case of the prosecution is that the first demand of illegal gratification was made by the accused in the month of April-1986, even then no formal complaint was filed though the complainant from the very beginning was not in a mood to pay any amount as bribe amount for processing his loan application. Assailing the character and conduct of the complainant, it is argued that inaction on the part of the complainant makes the case of the prosecution doubtful. There are material conflicts in the version of the panch as well as complainant. The ld. Special Judge was supposed to consider the entire case in the background of the defence pleaded by the accused and in the present case, even it is doubtful to believe that the second part of the panchanama was drawn at the spot and that too in the office of DIC, Godhara. Actually, on the date of arrangement of the trap, the accused was no more concerned with the loan application submitted earlier as the accused was transferred to Bharuch and it CR.A/648/1992 6/38 JUDGMENT is in evidence of one of the witnesses examined by the prosecution namely PW.6 Mr. Bava that the loan application of the complainant was already rejected and there was no scope for revival as number of such applications were granted by the DIC. In such a fact situation, the complainant was supposed to file a fresh application in the event of availability of the grant etc. But as the complainant was annoyed on account of the rejection of his application, he lodged a false complaint and on 10.06.1986 forcibly tried to plant the muddamal currency in the back side pocket of the pant of the accused. It is argued that the ld. Special Judge of course has referred the written explanation given by the accused after explaining incriminating circumstances under section 313 of CrPC, has not appreciated the evidence in correct perspective. According to Mr. Anandjiwala, there is no iota of evidence as to demand of bribe amount by the accused on the date of incident i.e. 10.06.1986 and there is no convincing evidence about the alleged demand made in the month of April-1986 because even the complainant was not sure that actually on which date the accused had paid the visit at the spot. It would be risky to accept the say of the complainant as gospel truth that initially the demand was made in the month of April-1986 for helping the complainant in processing the application for loan of the accused. There is no consistent evidence on the point of demand of the bribe CR.A/648/1992 7/38 JUDGMENT amount between the complainant and panch witnesses and as the accused had already left the charge much prior to the date of incident, he has no voice even in re-opening the case of the complainant or helping him in processing the application. Earlier application was already rejected. So, mere presence of the accused at the office of DIC, Godhara would not make him liable to explain the circumstances especially when it is the say of the accused that he was there in the office to obtain the Last Pay Certificate. After taking over the charge at Bharuch, he had proceeded on leave and on 10.06.1986, he had gone to his previous place of service i.e. at DIC, Godhara to obtain Last Pay Certificate and other relevant service record where he has been made scape-goat by implicating him in such a serious case. When the presence of the accused in DIC, Godhara is satisfactorily explained by him, then mere alleged recovery of the amount i.e. muddamal currency notes would not make him liable for accepting the bribe because the prosecution is supposed to establish four major aspects in such a case viz. (i) demand, (ii) agreement, (iii) demand of bribe amount immediately prior to the acceptance of the bribe amount, and (iv) actual acceptance of the amount as an illegal gratification. So, the mere acceptance of muddamal currency notes even if found proved, would not make the accused liable for punishment. There is no element of agreement or acceptance of bribe amount by CR.A/648/1992 8/38 JUDGMENT the accused in the evidence led by the prosecution. On account of failure on the part of ld. PP in obtaining permission from the Court to treat PW 6 Mr. Bava as hostile witness under section 154 of Indian Evidence Act, the version of PW Mr. Bava can be relied on by the accused and the ld. Special Judge has failed in appreciating the evidence of PW Mr. Bava in reference to the context of the evidence led by this witness. The story placed by the prosecution, according to ld. Counsel Mr. Anandjiwala, is highly improbable because the character and conduct of the accused reveals that he is not a straight forward honest person. Since April-1986 to June 1986 and till the date the accused left the charge of his office, he had never called the complainant either for work of processing the loan application or for renewal of demand of bribe allegedly made by him in the month of April-1986. In such a situation, the ld. Special Judge ought to have accepted the planting theory placed for appreciation. One of the arguments of Mr. Anandjiwala is that the Investigating Officer ( IO for short) has not remained objective in selecting the panch witnesses. The Court is supposed to see the totality and the totality includes various aspects including the legal issues raised by the accused and defence theory. Quoting relevant para-11 of the decision in the case of Bharatkumar Jaimanishanker Mehta v/s State, 1982(1) GLR 605, it is submitted that the prosecution evidence alone CR.A/648/1992 9/38 JUDGMENT can not be considered for the purpose of coming to the conclusion as to whether the accused accepted the bribe amount or not. The onus lies affirmatively on the prosecution to prove the case beyond reasonable doubt and it can not derive any benefit from the weakness or falsity of the defence theory while proving its case. The ld. Special Judge in the present case, has mainly recorded the finding on the weakness of the defence placed by the accused and on some unconvincing explanation given by the accused. So, the finding recorded by the ld. Special Judge can be said to be based on conjectures and surmises. For the sake of convenience, I would like to quote relevant part of para-11 of the above-referred decision in the case of Bharatkumar Mehta (supra):- “11. It may be stated that in a criminal case whether it be under the Prevention of Corruption Act or under the Indian Penal code, the burden of proving the case beyond reasonable doubt is always on the prosecution. It is true that after it is established that the accused accepted the amount, presumption under section 4(1) of the Prevention of Corruption Act would arise. But for the purpose of coming to the conclusion as to whether the accused accepted the amount or not, the totality of the evidence led at the trial is required to be appreciated. The prosecution evidence alone can not be considered for the purpose of coming to the evidence led by the prosecution, the suggestions made by the defence in cross-examination of the prosecution witnesses, the version given by the defence and the defence witnesses, if any, examined at the trial, every thing is required to be considered in its totality and it is to be seen as to whether the total effect of the entire evidence led before the court is of a nature by which the only conclusion possible was that the accused accepted the amount. If such a CR.A/648/1992 10/38 JUDGMENT conclusion is possible then alone it can be held that the prosecution established the case beyond reasonable doubt. In the first place we may say that all the three prosecution witnesses fully supported the prosecution case.” 6. It is on record that the accused had already recommended in favour of the complainant on 06.06.1986 after investigating the matter. PW 6 Mr. Bava- Manager (Credit) of DIC, Godhara has also taken favourable steps for grant of loan application, but on account of disagreement by the Senior Officer, the application was not found acceptable and, therefore, it was ordered to be filed. When the complainant has a status of an accomplice in a bribery case, his oral evidence was required to be scanned closely and according to ld. Counsel Mr. Anandjiwala, the ld. Special Judge has accepted the say of the complainant as reliable piece of evidence. So, when there was no application pending on 10.06.1986, there was no scope to demand the amount of bribe nor to accept the same and so the evidence led by the prosecution as to the acceptance of the amount of muddamal currency notes under an agreement or prior understanding, was also required to be scanned closes and the ld. Special Judge has ignored the evidence that has come on record. It is in evidence hat there was no electricity supply in the office of DIC, Godhara at the time of laying out the raid and nobody has stated on oath that the ultra-violet lamp used by the trapping officer CR.A/648/1992 11/38 JUDGMENT was a battery operated lamp. In absence of such evidence, it is inferable that it was not possible to carry out the ultra-violate lamp test in the office of DIC, Godhara and the second part of the panchanama, therefore, ought not to have been accepted as reliable and corroborative piece of evidence to panch witnesses examined. 7. It is also the say of ld. Counsel Mr. Anandjiwala for the appellant accused that where there is no evidence of convincing nature as to the demand of the amount of bribe, then evidence of acceptance of the amount of bribe should be viewed with doubt in the cases where the raiding party officer has used anthracene powder instead of phenolphthalein powder because in absence of scientific data, the Court will have to rely upon the description given by the prosecution witnesses about the anthracene powder marks. There is clear inconsistency about the examination of the hands of the persons who were present in the room when the bribe amount was allegedly accepted. Therefore, the defence counsel was once compelled to raise an objection against the question posed by the ld. Presiding Officer of the Court. So, the findings of the ld. Special Judge about the recovery of the bribe amount from the left back side pocket of the pant of the accused requires to be reversed and the accused deserves acquittal. CR.A/648/1992 12/38 JUDGMENT 8. On the other hand, ld. APP Ms. Darshana Pandit has submitted that there is consistency in the evidence led by the prosecution qua the demand of bribe made by the accused. Of course, there is no corroborative piece of evidence qua the demand made by the accused in the month of April-1986 when he visited the place in the capacity of the Economic Investigator, but there is a circumstance on record to show that a favourable endorsement was made by the accused in the month of April-1986. Though the complainant has not given the date of visit of the accused, but he has positively stated the day i.e. Saturday. The Court, therefore, should appreciate the relevant date of favourable endorsement made in the month of April-1986. The place of demand is also proved. The complainant has also narrated the type of negotiations that have taken place while demanding the bribe. There is ample evidence to show that after demanding the amount, the accused had given time limit to the complainant up to 02.06.1986. In the month of May 1986, the complainant had visited the place and till that date the accused was not transferred from Godhara to Bharuch and at his place during the month of May 1986, the complainant was asked to come down to the office of DIC. Godhara on Monday i.e. on 02.06.1986. Even for the sake of arguments it is accepted that there is no evidence of convincing nature qua the demand made in the month of April 1986, there is ample evidence to show that the demand of bribe amount CR.A/648/1992 13/38 JUDGMENT was made by the accused prior to his transfer from Godhara to Bharuch. It is not always necessary to prove the demand by direct evidence. The corroborative piece of evidence, may be of circumstantial nature, can help to prove the prosecution case. The demand made second time is proved by the complainant as well as the say of the complainant is corroborated by panch witness because the panch witness examined by the prosecution has positively stated that the accused had asked the complainant that “whether he had brought the money as discussed earlier or say as per talk with him earlier” (in Gujarati “Vaat Thaya Mujab”). In the same way, the conduct of the accused of accepting the amount of bribe also can be used as corroborative piece of evidence so as to prove the element of demand because the prosecution is supposed to prove that there was an agreement or clearcut understanding in the mind of the accused for acceptance of the illegal gratification. The hostility shown by PW 6 Mr. Bava and to some extent by Mr. Parmar, does not affect the strength of the evidence qua the recovery of the amount from the left side pocket of the pant by the panch witness and by raiding officer Mr. Ranganekar. The close reading of the evidence of PW Mr. Bava helps the prosecution and it is submitted by the ld. APP that the said part of the evidence of PW Mr. Bava convincingly supports the case of the prosecution because there is no inconsistency in the evidence of PW Mr. Bava qua the CR.A/648/1992 14/38 JUDGMENT recovery of muddamal currency notes from the custody/possession of the accused. According to ld. APP Ms. Pandit, the fact that PW Mr. Bava was knowing about the presence of the accused in Godhara town though he was already transferred and had taken over his charge at Bharuch, reveals that PW Mr. Bava was aware that the accused is going to come to the office during after-noon hours. Mr. Bava was enjoying senior position in the managerial cadre and his words about the visit of the accused in DIC, Godhara, are if taken as implied assurance, then neither the complainant nor the raiding officer can be said to have drawn any conjecture or surmises. The conduct of the accused as well as PW Mr. Bava does not look like a conduct of a person who is eager to help the accused in processing the loan application. There is no strength in the say of the accused that his file was closed on account of the rejection of the application because the say of the senior most officer was that the file would not be viable. The conduct of Mr. Joshi instead of helping the defence version, helps the prosecution because in view of the endorsement made while not approving the application, there was a scope for revival of the same file. So, though the accused was transferred, was eager to complete the file and had assured to show some favour to the accused, otherwise there was no need for any of the persons of the department i.e. office of DIC, Godhara to CR.A/648/1992 15/38 JUDGMENT show to the complainant the endorsement made earlier on his file. If the file was really closed, then how the same was lying on the table of one of the responsible officer i.e. P.W.5 Mr. Bava. It is neither the say of Mr. Bava nor of an Accountant who was present at the time of raid that the raiding officer has not drawn the panchanama then and there and no exercise of examination of muddamal currency notes and cloths of the accused under ultra-violate lamp has taken place in their presence, otherwise they could have shown their ignorance on this aspect. Ultra-violate lamp was used is the say of the complainant, independent panch witness and Mr. Ranganekar. So, these words used by the these three witnesses should not be considered as use of lamp with the help of electricity and it is not necessary for the prosecution witnesses to say that how the lamp was operated viz. whether it was by electricity or was a battery-operated lamp. PW Mr. Bava has referred the name of the accused as Mr. Patel and when the complainant had attempted to inquire about the accused, a positive response was given by PW Mr. Bava and according to Mr. Ranganekar, the file of the accused was lying on the table of Mr. Bava. In that fact situation, three different parts of panchanama makes the raid procedure adopted by Mr. Ranganekar, reliable. Pointing out the contents of page 299 from the paper-book, that the complaint of course was in general, but the complainant CR.A/648/1992 16/38 JUDGMENT was sure that Mr. Patel was to be trapped because he was the person who had initially demanded the amount and has given him list of 02.06.1986. The presence of the accused in the office of DIC, Godhara is a strong circumstance against him especially when there is no evidence to show that the Last Pay Certificate was issued by the competent officer on that very day to the accused. Such a piece of evidence could have been collected and produced by the accused to establish his presence as innocence presence at the office from where he was already transferred. It is true that the presence of the accused in the office of DIC, Godhara by itself is not an incriminating circumstance against him, but in reference to the total story unfolded by the complainant and other facts stated by panch witnesses, the Court should observe that as everything was settled and probably PW Mr. Bava was also knowing about the transaction, the complainant was asked to come in the after-noon when it was inquired initially on the day of raid. There is no evidence to show that the complainant was aware or knowing about the transfer of the accused nor Mr. Ranganekar was knowing about this aspect. Therefore only, the accused has been described as Economic Investigator of DIC, Godhara. 9. According to ld. APP Ms. Pandit, theory of planting is