CR.A/672/1990 1/70 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 672 of 1990 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 ? ========================================= RAMESHKUMAR PARSHOTTAMBHAI SAGAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KB ANANDJIWALA for Appellant(s): 1, MS DARSHANA S. PANDIT, LD.APP for Respondent (s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 01/02/2007 ORAL JUDGMENT 1. The appellant is the orig.convict (hereinafter referred to as 'the appellant') of Special Case No.2 of 1987 decided by the learned Special Judge, Sabarkantha at Himatnagar, vide his judgment and order of conviction and CR.A/672/1990 2/70 JUDGMENT sentence dated 10th August, 1990, whereby the appellant has been held guilty for the charge of offence punishable under Section 161 of the Indian Penal Code and also under Sections 5(1) (d) punishable under Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act'). 2. The present appeal is under Section 374 of the Code of Criminal Procedure, 1973, filed by the appellant assailing the legality and validity of the judgment and order of conviction and sentence on various grounds. By way of the judgment and order of conviction and sentence under challenge in this appeal, the appellant is sentenced to undergo rigorous imprisonment for two years and to pay the fine of Rs.1500/- and in default to make payment of fine, rigorous imprisonment for 6 months qua the offence punishable under Section 161 of the Indian Penal Code; and the appellant is also directed to undergo rigorous imprisonment for 6 months and to pay the fine of Rs.1500/-, and in default to make payment of fine to undergo rigorous imprisonment for 6 months qua the CR.A/672/1990 3/70 JUDGMENT offence punishable under Section 5(2) of the Act. Of course, both the sentences are ordered to run concurrently. 3. Shri Anandjiwala, learned counsel appearing for the appellant, has taken this Court through the charge Ex.12 on page 28 of the paper-book. The statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973 and written explanation was also given vide Ex.82, whereby he has denied the charge saying that he has been victimised by the complainant and other members of the raiding party including panch Dr.Prataprai L. Anakhia, PW-2, Ex.27, as well as PW-3 Yusufbhai N. Malek examined vide Ex.30. He has neither demanded nor accepted the amount of bribe amount of Rs.5000/- as alleged, from the complainant on the date of trap i.e. 02nd September, 1984 and only with a view to see that the appellant is trapped, the complainant as well as PW-3 Yusufbhai planted the bribe amount in the teapoy (corner table) lying in his drawing room, when the appellant had gone to instruct his maidservant to CR.A/672/1990 4/70 JUDGMENT collect the cup and saucer which were lying in the drawing room and was not able to see the activities of these two persons of planting the said amount in the teapoy. 4. To appreciate the say of the appellant as well as the case of the prosecution, firstly it would be appropriate to have a look on the basic charge framed against the appellant, which inter alia reads as under : A. That on 02nd day of September 1984 at Himatnagar, District Sabarkantha, you were serving as Deputy Collector (L.N.D.11) Sabarkantha District at Himatnagar, and as such being a public servant demanded and accepted respondent.5000/- as bribe from the complainant Punjabhai Dahyabhai Patel son of Dahyabhai Rangabhai Patel of village Jalodar Taluka Modasa, through Yusufbhai Mohmamadbhai Malek of village Jalodar, Taluka Modasa, a gratification other than legal remuneration as a motive or reward for the issuance of an CR.A/672/1990 5/70 JUDGMENT order in favour of Dahyabhai Rangabhai Patel etc. in Revision Case No.190/84 under the Gujarat Agricultural Land Ceiling Act and thereby committed an offence punishable under Section 161 of the Indian Penal Code. B. That on the aforesaid day, time and place you Rameshkumar Purshottambhai Sagar being a public servant by use of corrupt or illegal means or by abusing your position as as public servant obtained a sum of Rs.5000/- for yourself for pecuniary advantage and thereby committed an offence under Section 5(1)(d) of the Prevention of Corruption Act punishable under Section 5(2) of the said Act. 5. The above charge is framed on the facts placed by the prosecution before the learned trial Court and if the said facts, especially paragraph nos.2, 3 and 4, are reproduced, the say of the prosecution is as under : CR.A/672/1990 6/70 JUDGMENT “2. The prosecution's case stated in brief is that on 1.9.1984 at about 4.0 p.m. the complainant Punjabhai Dahyabhai Patel, resident of Jalodar, Taluka Modasa, District Sabarkantha went to the office of the Inspector of Anti Corruption Bureau, Shahibaug, Ahmedabad and narrated a story amounting to an offence which was reduced into writing at about 4.30 p.m. wherein the complainant alleged that he was professionally an agriculturist and is having agricultural land in the sim of Jalodar village admeasuing 83 acres and 30 Gs. There had been a case before the Mamlatdar and Krushi Panch, Modasa being case No.194/78 u/Ss. 20 and 21 of the Agricultural Lands Ceiling Act, 1960. The case was decided and the judgment was pronounced by the Mamlatdar & Krushi Panch, Modasa on date 24.2.78 in favour of the complainant. The case was once again re-examined and again decided in favour of the complainant on 2.1.84. CR.A/672/1990 7/70 JUDGMENT 3. The accused Mr.R.P. Sagar being in the employment of the State of Government in the Revenue Department, he was posted as a Deputy Collector at Himatnagar and was placed in charge of Modasa Division for examining the land ceiling cases. The land ceiling case which was already decided by the Mamlatdar and Krushi Panch being case No.194/78 was sought to be revised by the present accused and the case was registered as Revision Case No.190/84 U/S.37(c) of the Agricultural Land Ceiling Act, 1960. For the purpose of revising the case, notices were issued against the complainant's father Dahyabhai Rangabhai Patel and complainant's uncle Shivabhai Rangabhai Patel and those notices were served on those farmers through post. The notices were requiring these farmers to appear before the Deputy Collector on 21.8.84 to show cause as to why the case must not be decided against them and the CR.A/672/1990 8/70 JUDGMENT land in access of ceiling should not be dealt with according to the law prevailing. On receiving these notices, the complainant went to seek advice of a person known to him and having a shop in Jalodar village and residing at Modasa. That person was one Yusufbhai Mohmadbhai Malek. The complainant showed the notices received by him and requested Shri Malek to accompany him to Modasa on the date fixed that is to say, on 21.8.84. Shri Malek agreed to accompany the complainant to the of the Deputy Collector, the accused, and accordingly on that date at about 12-0 (noon) both of them had gone to the Government Rest House in Room No.4 where the accused was camping as a Deputy Collector (L.N.D.11). On a call being made, the complainant Punjabhai and his companion Malek went inside the room and met the accused. The accused had initiated a talk with Yusufbhai and procured his identity. The complainant was asked to go out of the room. The CR.A/672/1990 9/70 JUDGMENT complainant Punjabhai following that instruction went out of the room. After about 10 minutes Yusufbhai came out of the room in which the accused was holding his sitting. Yusufbhai Malek informed the complainant that the accused had told him that the access land belonging to the complainant and his family was likely to be confiscated and if they wanted to avoid that confiscation, the complainants and the other owners of the land shall have to pay Rs.6,000/- to the Deputy Collector. The complainant told Yusufbhai Malek that he cannot take any decision independently but he shall have to consult his father and other sharers in the land. He also told Yusufbhai Malek that the demand made by the Deputy Collector/ accused was also very high and therefore, in order to reduce that amount and to make arrangement for the money, sometime may be sought for and Yusufbhai Malek was asked by the complainant to request the Deputy CR.A/672/1990 10/70 JUDGMENT Collector/ accused Mr.Sagar. Yusufbhai Malek and the complainant Punjabhai then went inside the room and Yusufbhai Malek requested Mr.Sagar to reduce the amount and to given an adjournment. Mr.Sagar the accused informed the complainant and Yusufbhai Malek that the amount cannot be reduced because he had to share that amount with his higher authorities and only then the work can be carried out. The accused Mr.Sagar further told the complainant and his companion Yusufbhai Malek to come with money on 28.8.84 at Modasa. In the meantime, another notice was received by the complainant and other sharers in the land informing them about the date fixed for the hearing of the Revision Case on 4.9.84. This notice was received by the complainant and others through post. As directed by the accused-Mr.Sagar, the complainant and Yusufbhai Malek once again went to Modasa Government Rest House and met the accused. Yusufbhai then told the CR.A/672/1990 11/70 JUDGMENT accused Shri Sagar that his companion namely; the complainant was in a position to pay Rs.3000/- only but Sagar was not agreeable to accept that amount. After some negotiation, Sagar ultimately told the complainant and his companion Yusufbhai Malek to give him Rs.5000/-. Yusufbhai then told the accused that as the case was adjourned to 4.9.84, they did not have money with them. The accused Mr.Sagar stated that he was to go to Bayad on the next-day and would return to Modasa in the evening and therefore, they may deliver the money after he returns to Modasa. Yusufbhai told Mr.Sagar that they were not in a position to collect any money and they would require at least four days time to which proposal Mr.Sagar agreed. The accused Mr.Sagar then told the complainant and Yusufbhai to go to his house on 2.9.84, the house being situated near D.S.P.'s bungalow and to pay him Rs.5000/- between 11-0 a.m. and 1-0 p.m. Yusufbhai then asked the CR.A/672/1990 12/70 JUDGMENT accused Mr.Sagar that the adjournment of the case was 4.9.84 and whether they would be required to come on that date at Modasa. To that querry, Sagar replied that he would finish up the case and they would not be required to come at Modasa. Thereafter, Yusufbhai Malek and the complainant had left the place. After they both left the place, the complainant told Yusufbhai Malek that the case was absolutely meritorious in their favour and Sagar was demanding a very big amount, was not proper. The complainant further told Yusufbhai that he was not desiring to pay any bribe to Mr.Sagar and he wanted to make a complaint and that Yusufbhai should accompany him. 4. Accordingly, on 1.9.84, the complainant and Yusufbhai had gone to the office of Anti Corruption Bureau, Shahibaug, Ahmedabad and produced before the Inspector on Duty (intimation of) the judgment given by CR.A/672/1990 13/70 JUDGMENT the Mamlatdar and Krushi Panch in his favour and also the notices received by them. As Yusufbhai was all throughout present, he was also kept present by the complainant with him in that office. The complainant also told the A.C.B. Inspector that as per the demand, he was required to go to pay the amount to Sagar at Himatnagar on the next day. The complainant also told the A.C.B. Inspector that he had no monetary transactions with Sagar and he did not wish to pay any amount by way of bribe. He had not to pay any amount officially to the accused by way of payment to the Government. On taking down this complaint, the complainant was made to sign that complaint after it was read over to him and after he admitted the contents.” After completing the said formalities, the ACB Police Inspector had arranged for the trap by calling the panchas and drawn the first part of panchnama and it is contended by CR.A/672/1990 14/70 JUDGMENT the prosecution that the raid had remained successful as the appellant had accepted the amount of bribe of Rs.5000/- on 02nd September, 1984. 6. Shri Anandjiwala has taken this Court through the deposition of complainant PW-1 Punjabhai Dahyabhai Patel Ex.25; PW-2 Panch Prataprai L. Anakhia Ex.27 and PW-3 Yusufbhai N. Malek Ex.30. He has also taken this Court through the relevant documents while making submissions on the oral evidence of these three witnesses including the panchnama Ex.28. Shri Anandjiwala while developing the arguments of concoction of the case against the appellant has taken this Court through the oral arguments of PW-4 Amrutlal Vithaldas Panchal in whose presence the specimen writing from the appellant was collected in the panchnama while collecting specimen writing from the appellant Ex.39. According to Shri Anandjiwala, the opinion of PW-5 Jagdish Jethalal Patel, who has been examined vide Ex.40, is not helpful at all to the prosecution and the learned trial Judge has CR.A/672/1990 15/70 JUDGMENT committed a grave error in appreciating the opinion evidence of the said Shri Jagdish Patel. Even there is a serious dispute as to the admitted/undisputed handwritings of the appellant Ex.35, and therefore, the finding arrived at by the learned trial Judge, keeping the opinion of the handwriting expert in mind, cannot sustain and thus, on this count also, the judgment and order of conviction and sentence should be held erroneous and bad. The PW-7 Narendrasinh Mulsinh Rathod, examined vide Ex.61 to prove the undisputed writing Ex.35 ought not to have been believed and in the same way, the learned trial Judge has committed gross error in accepting the evidence of PW-6 Rajusinh Kodarsinh Makwana, Deputy Mamlatdar, examined vide Ex.59. The prosecution witness nos.8, 9 and 10 are the trap witnesses and their evidence ought to have been scanned closely. The prosecution witness no.10 Shri Hiwale, Police Inspector, is an interested witness who investigated the crime and, therefore only, he has not even investigated objectively the allegation of the appellant that he has been victimised and CR.A/672/1990 16/70 JUDGMENT wrongly trapped by planting money in the teapoy. As neither Shri Hiwale was cooperating nor the trapping officer, the appellant was constrained to give his explanation through media which was published in a known Gujarati daily “Sandesh” on 05th September, 1984. The learned trial Judge ought to have consider this aspect, whereby the appellant has explained the contingency and has denied about acceptance of the bribe amount of Rs.5000/- from the complainant. The complainant was interested in favourable result in a sensitive case instituted under the Gujarat Agricultural Lands Ceiling Act (hereinafter referred to as 'the Ceiling Act') any how and therefore, he was out to secure favourable result by any means and, therefore only, he has filed a false complaint and trapped the appellant. The learned trial Judge has not considered the admission made in this regard by the complainant and the evidence of the prosecution ought to have been appreciated including the oral say of the PW-2 Dr.Anakhia in this background. When the family of the complainant was holding excess land than the CR.A/672/1990 17/70 JUDGMENT prescribed ceiling, Khatedar/holder of land reflected in village form nos.6 and 8-A were required to satisfy the authority independently by documentary evidence that they were joint holder and as they have major sons and entitled to hold land as if a separate unit and as the appellant was insisting on production of such document, he was trapped. It is true that the father of the complainant namely Dahyabhai Rangabhai, is one of the joint holder of the Khata, however, they were supposed to satisfy the revisional authority i.e. the appellant, about their entitlement to continue with the land beyond the ceiling limit prescribed under the Ceiling Act. 7. One of the arguments of Shri Anandjiwala is that it is not the case of the prosecution that the bribe amount was demanded by the appellant even on the day of trap. The appellant had not even initiated the talk about the case or any understanding arrived at between him and the complainant as well as PW- Yusufbhai qua the amount of bribe. It is also CR.A/672/1990 18/70 JUDGMENT not the case of the prosecution that the appellant had accepted the bribe amount hand to hand. No anthracene powder marks were seen on the file of the appellant. None of the family members, especially the maidservant Noorjahan has been examined. In such a situation, that evidence of the complainant, PW-Yusufbhai and panch witness Dr.Anakhia ought not to have been accepted in toto. When the PW-Yusufbhai is claiming himself to be a social political worker, his say ought not to have been accepted as reliable piece of evidence while appreciating the say of the complainant Punjabhai Dahyabhai. Failure on the part of the prosecution to produce three decisions which were in favour of the complainant and his family, also makes the prosecution case doubtful. On the contrary, it emerges that earlier on two occasions, the family of the complainant was intimated about termination of the proceedings initiated under the Ceiling Act in favour of the family. No judgment out of the said three judgments is either produced or the prosecution has established that any such three proceedings CR.A/672/1990 19/70 JUDGMENT had been initiated in past. Statutorily, the appellant was authorised to initiate revisional proceedings against the decision arrived at by the Tribunal Mamlatdar and he was empowered to reverse the finding recorded in favour of the complainant. In such a situation, as the complainant was interested in favourable result any how he did not care to engage a lawyer but selected an illegal and immoral recourse to pressurise the appellant with the help of PW-Yusufbhai. This totality is sufficient for reversal of the finding recorded by the learned trial Judge. 8. In support of this submission, Shri Anandjiwala, learned counsel appearing for the appellant, has placed reliance on the following decisions : 1. AIR 1995 SC 2178 M. K. Harshan v. State of Kerala. 2. AIR 1987 SC 2402 G.V.Nanjundiah v.State,Delhi Administration CR.A/672/1990 20/70 JUDGMENT 9. One alternative argument advanced by Shri Anandjiwala is that in the event of failure of the appeal so far as challenge qua the conviction is concerned, this Court at least should observe that the learned trial Judge has grossly erred in imposing such a severe punishment. The quantum of punishment in such case is not at all relevant. The conviction by itself or even shortest period of sentence would send the same strong message in the Society to deter other public servants indulging in such activities and criminal misconducts. There was no statutory obligation on the part of the learned trial Judge to impose punishment of particular period. No minimum punishment was prescribed under the Act (old Act). So the period of substantive sentence imposed by the learned trial Judge should be held to be a harsh and unwarranted period of sentence and therefore, the same should be reduced. Placing reliance on the ratio on the decision in the case of Rameshkumar Gupta v. State of M.P., reported in AIR 1995 SC 2121, it is argued by Shri Anandjiwala, learned counsel appearing for the CR.A/672/1990 21/70 JUDGMENT appellant, that the period of imprisonment undergone by the appellant should be treated as sufficient punishment or the quantum of substantive sentence should be reduced to one week or so, if need be, by enhancing some amount of fine. The Court in such or similar cases may not enhance the amount of fine because the Government employee on conviction loses everything, including the financial benefits that he or his family would get. The termination from Government service under an impeachment is a civic death and therefore, if the Court is not inclined to accept the appeal against the judgment and order of conviction, the substantive sentence should be reduced as less as possible. 10. Ms.Darshna S. Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, has strongly resisted this submission made by Shri Anandjiwala on behalf of the appellant. She has taken this Court through the relevant part of evidence appreciated and believed by the learned trial Judge and certain false denials made by the CR.A/672/1990 22/70 JUDGMENT appellant in the statement recorded under Section 313 of the Code of Criminal Procedure, 1973. She has also placed reliance on the statement made by the appellant, whereby he has admitted that the muddamal diary seized and produced during the trial belongs to him, even though he has denied the handwriting of the relevant entry of the diary of the year 1982 at Ex.44. It is submitted that the prosecution has satisfactorily proved the case beyond reasonable doubt and the theory of planting of bribe amount in the teapoy when the appellant had got up and had gone inside another room and when his face was towards the kitchen, the complainant as well as PW- Yusufbhai planted the muddamal currency notes in the teapoy lying in the drawing room of the residential premises of the appellant. The conduct of the appellant is the conduct of a guilty person and, therefore only, he has developed the theory of planting of bribe amount. It is not necessary to make demand of bribe amount by using the words “give”. It may be by gesture or sign. In the present case, it is satisfactorily established that the bribe CR.A/672/1990 23/70 JUDGMENT amount is referred to as “Vastu” (thing) and the complainant when had taken out the amount, was asked to put the same by gesture in the teapoy. The prosecution witness Yusufbhai has been rightly believed by the learned trial Judge in this regard because he was a party in opening the shutter of the teapoy lying in the corner so that the complainant can put the muddamal currency notes in the teapoy, as pointed out by the appellant. This PW- Yusufbhai had thereafter shut the top of the teapoy and both of them had thereafter occupied their respective seat. During the course of cross-examination, it has come on record undisputedly that the panch Dr.Anakhia, PW-Yusufbhai and the complainant were served with a cup of tea on the date of trap i.e. 02nd September, 1984, which was Sunday. The appellant himself was acting as a judicial authority and was a public servant entrusted with quasi judicial functions being a Deputy Collector. The notice issued by him was under the Ceiling Act as he was empowered to issue such notice in exercise of revisional jurisdiction vested with him. It is clear from CR.A/672/1990 24/70 JUDGMENT the evidence that prior to 02nd September, 1984, he had met the complainant Punjabhai Patel as well as PW-Yusufbhai at Modasa Government Circuit House, as he was holding sitting for hearing of cases under the Ceiling Act in the Government Circuit House. So on 02nd September, 1984, except PW-Dr.Anakhia, the other two persons i.e. the complainant and PW- Yusufbhai were known to him and the complainant was also a person in the case pending before him. There was no need for him to welcome them in the residential premises and that too on Sunday and further at odd hours. It was not required for the Deputy Collector and revisional authority to serve tea to these three visitors or to continue talk for a long period for no reason. It is true that the appellant had neither initiated talk,