CR.A/711/1991 1/87 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 711 of 1991 With CRIMINAL APPEAL No. 712 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 ? ========================================= PATEL BABUBHAI ISHWARLAL & 1 - Appellant(s) Versus STATE OF GUJ. - Opponent(s) ========================================= Appearance : MR KB ANANDJIWALA for Appellant(s) : 1 – 2 in Criminal Appeal No.711 of 1991. MR RJ GOSWAMI for Appellant :1 in Criminal Appeal No.712 of 1991. MS DARSHANA S. PANDIT, LD.APP for Respondent in both the appeals. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 12/12/2006 COMMON ORAL JUDGMENT 1. These two appeals are arising out of the judgment and order of conviction and sentence CR.A/711/1991 2/87 JUDGMENT dated 09th September, 1991, passed by the learned Special Judge, Mehsana, at the conclusion of the trial of Special ACB Case No.2 of 1989. The said judgment and order of conviction and sentence under challenge is assailed by the orig.accused persons (hereinafter referred to as 'the accused') on various grounds as mentioned in paragraph no.4 of the memo of the appeals. Before the learned trial Judge the orig.accused nos.1 and 3 (hereinafter referred to as 'the accused nos.1 and 3') and orig.accused no.2 (hereinafter referred to as 'the accused no.2') were defended by different counsel and these accused had placed their defence before the learned Special Judge slightly in a different way. The accused nos.1 and 3 are the appellant of Criminal Appeal No.711 of 1991 and accused no.2 is the appellant of Criminal Appeal No.712 of 1991. The learned trial Judge while appreciating the evidence led by the prosecution, keeping in mind the charge Ex.14, held all the three accused guilty of the charge of offence punishable under Section 7 read with Section 12 of the Prevention of CR.A/711/1991 3/87 JUDGMENT Corruption Act, 1947 (hereinafter referred to as 'the Act') and also under Section 114 of the Indian Penal Code. The accused nos.1 and 2 are sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default to undergo rigorous imprisonment for six months. However, the accused no.3 is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.100/- and in default to undergo rigorous imprisonment for six months. The amount of fine imposed by the learned trial Judge has been paid by the accused. At present all the accused are on bail. 2. I have heard Shri K.B. Anandjiwala, learned counsel appearing for the accused nos.1 and 3, and Shri R.J. Goswami, learned counsel appearing for the accused no.2. I have also heard Miss Darshana Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State. The learned counsel appearing for the accused have taken me through the oral as well as documentary evidence led during the course of trial and CR.A/711/1991 4/87 JUDGMENT the judgment and order of conviction and sentence under challenge. It is the say of the accused that the finding recorded by the learned trial Judge suffers from various infirmities and it based on incorrect appreciation of evidence. The learned trial Judge has failed in appreciating the defence plea taken up and has ignored some relevant documentary evidence and the deposition of Shri J.B. Patel, Deputy Engineer at Ex.7. It is submitted that it was sufficient to record acquittal of all the three accused from the charges levelled against them. For the sake of brevity and convenience, it would be appropriate to state the gist of the charge framed against the accused vide Ex.14, which is read over before this Court, is as under : “(1) On 19.11.1987, you accused no.1 Babubhai Ishwarbhai Patel and you accused no.2 Ranchhodbhai Bechardas Patel, were performing your duty in the Gujarat Electricity Board as Accountant and Junior Engineer and as per your said post, you nos.1 and 2 are public CR.A/711/1991 5/87 JUDGMENT servant. (2) The complainant-Manilal Jethidas had obtained an electricity connection in his factory namely Ram Industry in the name of his wife Pashiben. You no.2 were checking as to whether the complainant is using the additional load of electricity or not and for making the said checking in favour of the complainant, you accused nos.1 and 2 were demanding an amount of Rs.2500/- and after deciding to settle the same at Rs.1200/- after due discussion, as per the said discussion an amount of Rs.500/- was accepted by you no.1 in presence of you no.2. (3) As stated hereinabove, as decided earlier, you accused no.1 along with your brother accused no.3 had gone to the shop of the complainant on 19.11.1987 to accept the amount of Rs.700/-. As you accused no.1 had asked for the amount, the complainant had given the same. As you accused no.1 had CR.A/711/1991 6/87 JUDGMENT told you accused no.3 to accept the said amount, you accused no.3 had accepted the amount of Rs.700/-. (4) As stated hereinabove, you accused persons had demanded an amount of Rs.1200/- immorally, for your personal gain, and not towards your legal dues from the complainant and by accepting the said amount in two parts as Rs.500/- and Rs.700/-, by misusing the post of public servant and by misconducting, you accused nos.1 and 2 have committed an offence punishable under Section 7 of the Prevention of Corruption Act within the jurisdiction of this Court; as well as in the very event, by going along with your brother and by accepting the remaining amount of Rs.700/- as per the say of accused no.1 in view of earlier demand as stated hereinabove to the tune of Rs.1200/-, you accused no.3 have committed an offence punishable under Section 7 of the Prevention of Corruption Act and/or Section 114 of CR.A/711/1991 7/87 JUDGMENT the Indian Penal Code read with Section 12 of the Prevention of Corruption Act.” 3. It is submitted by Shri Anandjiwala that in sum and substance, the acceptance of amount of Rs.700/- by the accused no.3, was not seriously disputed by the accused no.3 and it is never admitted by any of the accused indirectly that the muddamal currency notes of Rs.700/- were ever passed to the accused no.3 as the amount of bribe or illegal gratification, and therefore, there was no scope to raise any presumption against any of the accused mainly the accused nos.1 and 2 being the public servants merely on the ground of defence plea taken of acceptance of amount by the accused no.3. It is not a matter of dispute that the accused nos.1 and 3 are the real brothers and the accused no.1 at the relevant point of time was serving in the Account Branch of the office of the Gujarat Electricity Board, City Sub-Division Office, Mehsana. The accused no.2 was the Junior Engineer in the very office. The complainant- CR.A/711/1991 8/87 JUDGMENT Manilal Jethidas, with the assistance and help of his son-Rambhai was running the industry in the name and style of 'Ram Industries' and dealing in fabrication of various materials from metal mainly iron; and this industry was being run on the electricity supplied by the Gujarat Electricity Board and the electric connection was obtained by the complainant in the name of Pashiben Manilal i.e. wife of the complainant-Manilal Jethidas, and she is the mother of PW-Rambhai Manilal as well as PW- Harish Manilal. 4. This industry was visited by the Electrical Inspector of State of Gujarat on 23rd September, 1987 and it was noticed by the said Inspector that the said industry of the complainant is using additional load than the sanctioned one. The statement of PW-Rambhai Manilal was recorded which was in the nature of admission on the very day of inspection/checking by the Electrical Inspector and in turn, it was sent to the office at Mehsana. As per the system worked out, the office of the Gujarat Electricity CR.A/711/1991 9/87 JUDGMENT Board of City Sub-Division office was to confirm the correctness of the report submitted and to do needful in the matter if it is found that the fact of using the additional load by the consumer is correct. According to prosecution, on 13th/14th November, 1987, the accused nos.1 and 2 had been to the industry of the complainant with the report received by them from the Electrical Inspector and had threatened him of issuance of supplementary bill to the tune of Rs.5000/- for using the additional load and at that time they demanded an amount of Rs.2500/- by way of bribe/ illegal gratification and the complainant was induced that if he pays the said amount, they may help the complainant and tear the the paper i.e. checking sheet prepared by the accused no.2-Junior Engineer because it was found that the consumer is using additional load than sanctioned and on the strength of the said checking sheet, the complainant was threatened of issuance of supplementary bill of Rs.5000/-. It is alleged by the prosecution that the complainant had agreed, after negotiations to CR.A/711/1991 10/87 JUDGMENT pay an amount of Rs.1200/- against the demand of Rs.2500/- and thereafter, on 17th November, 1987, the orig.accused no.1 had demanded the amount of Rs.500/- from the complainant at the grocery shop of Harish (PW-5) son of complainant. The said shop is situated in the outskirts of town Mehsana. 5. Shri Anandjiwala and Shri Goswami, learned counsel appearing for the accused, both have drawn the attention of the Court to the fact that there is no specific charge of the alleged wrong committed by the accused nos.1 and 2. On the contrary, paragraph no.2 of the charge framed to some extent is misleading and one incorrect fact is stated in the charge. It is not specifically stated even in the charge that the accused nos.1 and 2 had visited the industry either on 13th or 14th. It is not even mentioned that the amount of Rs.500/- was collected by accused no.1 from the complainant from the shop of Harish on 17th November, 1987 and though it is not the case of the prosecution that the amount of Rs.500/- allegedly accepted by accused no.1 was CR.A/711/1991 11/87 JUDGMENT accepted in the presence of accused no.2, it is mentioned in the charge which gives an impression that the amount of Rs.500/- was accepted by the accused nos.1 and 2 both, as if both had gone together to collect the amount of bribe/ illegal gratification. As per the say of the prosecution, the remaining amount of Rs.700/- was to be paid to the accused persons on 19th November, 1987. It is neither the case nor the evidence that on the day of trap i.e. on 19th November, 1987, the accused no.2 had accompanied the accused no.1. It is also not the case that the amount was accepted by the accused no.1 from the complainant on the date of the trap. It is alleged that the amount of bribe was tendered to accused no.1 by the complainant but the complainant was asked to hand over the amount to the person accompanying the accused no.1. The person accompanying the accused no.1 who had gone to the shop of PW-Harish along with accused no.1 on a two-wheeler at about 02-30 p.m. for collecting the amount of bribe was the accused no.3, i.e. real brother of the accused no.1. CR.A/711/1991 12/87 JUDGMENT 6. Shri K.B. Anandjiwala, learned counsel appearing for the accused nos.1 and 3, has placed detailed arguments on the point of law as well as facts, which can be summarised as under : (i) This is a case of false implication of the accused nos.1 and 3, and mainly accused no.1 because the accused nos.1 and his real brother accused no.3, had some dispute with PW-Rambhai regarding refund of amount of deposit given to PW- Rambhai-son of complainant-Manilal Jethidas and accused no.1 had never demanded any amount of bribe or illegal gratification in the capacity of a public servant. (ii) The versions of complainant-Manilal Jethidas and PW-Harish-his son, do not get corroboration from the evidence of PW-Rambhai-son of complainant, who was really looking CR.A/711/1991 13/87 JUDGMENT after the business of fabrication and Ram Industry, whose load was checked by the Electrical Inspector and, thereafter by the accused no.2. (iii) The accused no.1, being a person serving in the Account Section of the Gujarat Electricity Board, had no business to check any meter or connection including the load capacity of any customer including small industry and, there is no evidence of satisfactory nature on record to show except the bare words of the complainant that the accused no.1 had been to Ram Industry for checking of load either on 13th or 14th November, 1987. On the contrary, there is clinching evidence to show that the factory of the complainant was checked for the purpose of verification to ascertain the correctness of the report made by CR.A/711/1991 14/87 JUDGMENT the Electrical Inspector on the basis of the checking made by that officer on 23rd September, 1987. One document ex.31 produced by the prosecution clearly shows that on 23rd September, 1987, the Electrical Inspector had inspected and checked the Ram Industry consuming electricity energy from the electricity connection sanctioned in the name of Pashiben Manilal Patel having Consumer No.1533/I- 800. This consumer Pashiben was authorised to use the electrical energy by fixing the maximum load of 15 H.P. However, on that day the electricity motors and heater, etc. attached were of 19.50 H.P. One Shri Suresh Patel was also present, whose signature has been obtained while obtaining “Kabulatnama” of the consumer. On 23rd September, 1987, when the Electrical Inspector had visited the Ram Industry, PW- Rambhai Manilal-son of the CR.A/711/1991 15/87 JUDGMENT complainant, was present and he had signed the “Kabulatnama” on behalf of the consumer Pashiben Manilal. It is in evidence that over and above fabrication activities carried out in the said industry of the complainant, one diamond polishing work was also being done on the first floor. There was no separate connection for the said unit and that unit was using electricity motors, etc. from the very electricity connection sanctioned in the name of Pashiben and this fact situation has come on record. So anticipating some penal action including issuance of supplementary bill, the complainant had probably developed ill-feeling against the Gujarat Electricity Board and that too with the concerned Engineer and Account Department. (iv) There is conflict of evidence as to CR.A/711/1991 16/87 JUDGMENT the exact date of visit by the accused no.2 for the purpose of checking as to actual load attached with the connection. If the say of the complainant is that either on 13th or 14th, the accused nos.1 and 2 had been to his industry for the purpose of checking, then the evidence available on record showing the visit of accused no.2 for the very purpose at the industry of the complainant on 17th November, 1987, would adversely affect the case of the prosecution. It is the say of the complainant that on 17th November, 1987, out of the alleged amount of bribe/illegal gratification of Rs.1200/-, an amount of Rs.500/- was recovered by the accused no.1 from the shop of PW-Harish. It is neither the say of the complainant nor the case of the prosecution that the accused no.2 had checked the industry on 17th November, 1987. When it is the CR.A/711/1991 17/87 JUDGMENT say of the complainant that at the time of checking, the accused nos.1 and 2, both had threatened him for issuance of supplementary bill for using the additional load of 4.50 H.P. against the actual load sanctioned, then it is inferable that the amount must have been asked by the accused persons either on 13th or 14th November, 1987. Therefore, the oral evidence of the complainant as to demand of bribe and acceptance of amount of Rs.500/- from the grocery shop of PW-Harish, is in conflict to one important documentary evidence i.e. checking-sheet prepared by accused no.2 at Ex.32. This document bears the date of 17th November, 1987. Of course, there is no signature of any panch or witness but when genuineness of this document is confirmed by one another prosecution witness i.e. Shri J.B. Patel, Deputy Engineer, the learned CR.A/711/1991 18/87 JUDGMENT trial Judge ought not to have inferred anything against the accused no.1 or accused no.2 that this document was prepared for the sake of preparing it, otherwise it was to be torn of after getting the amount on bribe/illegal gratification. (v) The complainant was habitually violating the conditions of agreement as to use of electricity. Once he was found involved in electricity theft and, therefore, he was compelled to deposit some amount with the Gujarat Electricity Board. Of course, there is no documentary evidence as to on how many occasions he was reprimanded and asked to pay the amount in addition to the regular bill for violating the rules and regulations and/or agreement. But it is admitted by the complainant himself that he has been penalised by the CR.A/711/1991 19/87 JUDGMENT Gujarat Electricity Board for irregularities on more than one occasion. This time the irregularity was noticed by Electrical Inspector who is an independent machinery established by the State, and this statutory authority is sending report of checking made, to the sub-station office of the Gujarat Electricity Board, so that the Gujarat Electricity Board can take appropriate steps to put the things in order and to realise the amount, if the Gujarat Electricity Board is otherwise entitled to. The document at Ex.31 is not disputed by the complainant. This document was seized during the course of drawing of panchnama in the present case and the same has been tendered in evidence by the prosecution. So it is possible to infer that the checking carried out by the accused no.2 is nothing but a confirmation CR.A/711/1991 20/87 JUDGMENT of the wrong found by the Electrical Inspector and in such a situation there was no scope for the Gujarat Electricity Board Officers including the accused nos.1 and 2 to help the complainant in any manner. The accused no.1 has no authority whatsoever to oblige any consumer. He cannot grant concession or offer any special privilege because he has to prepare bills in accordance with the reports submitted by Technical Section, meaning thereby, from the Engineers, to the Account Section. The Gujarat Electricity Board is arranging for sudden checking, directly through the Divisional Office or the Head Office and for that purpose, such Checking Squads are being sent in different areas consisting team of officers. In the present case, the connection of the complainant was neither checked by the Checking Squad, at the instance CR.A/711/1991 21/87 JUDGMENT of the Divisional Office or Head Office nor the accused no.2 was heading such a squad. The evidence available on record mainly of Shri J.B. Patel, Deputy Engineer, clearly shows that the accused no.2 was sent with the Checking Squad to assist the Checking Squad in the area under the City Sub-Division, Mehsana town on 13th November, 1987. The Checking Squad was there at Mehsana town and it is in evidence that the accused no.2 had left the Head Quarter on 14th November, 1987 being a non-working Saturday. It is deposed by the said Shri J.B. Patel, Deputy Engineer, that as the accused no.2 had left the Head Quarter on 14th November, 1987, he had performed the duties required to be performed as technical person including the work of distribution of duties to technical staff,etc. The complainant, therefore, only has not given the exact date and CR.A/711/1991 22/87 JUDGMENT time of visit by accused nos.1 and 2, as no such visit of Ram Industry was made by accused nos.1 and 2 jointly. Two documents i.e. test- sheet-Ex.56 dated 13th November, 1987, show that the checking squad visited two different consumers and both these reports clearly show that on that day i.e. on 13th November, 1987, High Tension Consumers were checked. To believe the version of the complainant, firstly the Court shall have to draw inference that on 13th November, 1987, the accused no.2 had separated from the Checking Squad so that he can go to Ram Industry of the complainant with accused no.1 and prepare the checking-sheet Ex.32. For want of any cogent and convincing evidence, such an inference cannot be drawn. On the contrary, the learned trial Judge ought to have said that the document Ex.56 cuts the case of the CR.A/711/1991 23/87 JUDGMENT prosecution as to presence of accused no.2 at Ram Industry. The industry of the complainant was not industry having any High Tension connection and the accused no.2 was not there in the Head Quarter at all. The accused no.1 being a person serving in the Account Section, it was allegedly inferable that he might not have gone to his office. When Shri J.B. Patel, Deputy Engineer (PW-7) has not been controverted by the Public Prosecutor appearing in the trial, his evidence should not be viewed with doubt. So there is no clear cut evidence even to show that the accused nos.1 and 2 both jointly had visited the Ram Industry either on 13th or 14th November, 1987. There is no convincing corroboration even from PW-Rambhai- son of the complainant as to the visit of accused nos.1 and 2 to Ram Industry on 13th or 14th November, CR.A/711/1991 24/87 JUDGMENT 1987 and it would not be safe for this Court to rely on the evidence of the complainant to believe the case of demand of bribe during the time of those two days. It is alleged by the complainant that initially an amount of Rs.2500/- was demanded but after negotiations, the amount was settled at Rs.1200/-. He has not even named the accused exactly as to who quoted the amount of Rs.2500/- initially and why the place other than the Industry itself was fixed for accepting the amount of bribe, is also not explained by the complainant in a satisfactory manner. Undisputedly, the PW-Harish was not present when the amount of bribe of Rs.2500/- was demanded and the arrival of settlement at Rs.1200/-. In the same way, the evidence of Harish is also hazy qua the acceptance of Rs.500/- on 17th November, 1987 CR.A/711/1991 25/87 JUDGMENT because he has not stated anything in paragraph no.2 of his examination-in-chief that after leaving of the person who had accepted the amount from the complainant-father of PW-Harish, whether he had any conversation with his father about the reason of paying the amount or identity of the accused including the name, etc. On the contrary, it emerges from the conversation between the complainant and the person who had accepted the amount of Rs.500/- that the remaining amount shall be paid within a day or two; and between 12-00 hrs. and 13-00 hrs., the father of PW-Harish would be available at their grocery shop and he should come during that hour. At that time, the said person who had accepted the amount had said that any one of them would come. Here it is necessary to mention the words used by this witness in the CR.A/711/1991 26/87 JUDGMENT vernacular Gujarati language because it is possible to infer more than one meaning of those words, which are as under : “Temne e vakhte em kahelun ke game te ek bhai leva aavshe”. (Translation : “At that time, it was told that “any one person”/”any one brother” will come to receive.”) According to the learned Additional Public Prosecutor, the Court should interpret the aforesaid words as “either accused no.1 or accused no.2, any of these two would come to collect the amount”. On the other hand, the say of Shri Anandjiwala and also of Shri Goswami is, “any