CR.A/486/1996 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 486 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHUPENDRA FARASRAM PETIGARA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1, MR LR PUJARI ASST. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 01/05/2008 ORAL JUDGMENT 1.0 By way of this appeal, the appellant has challenged the judgment and order of the learned Special Judge, Bharuch dated 25.06.1996 passed in Special Corruption Case No.3 of 1991 whereby the trial Court convicted the appellant, herein, for the offence punishable under Section 7 of the CR.A/486/1996 2/30 JUDGMENT Prevention of Corruption Act, 1988 and sentenced him to undergo Rigorous Imprisonment for a period of one and half a year and to pay fine of Rs.1500/- and in case of default to undergo further Rigorous Imprisonment for a period of six months. The appellant was also convicted for the offence punishable under Section 13(1)(d)read with Section 13(2)of aforesaid Act and was sentenced to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs.3000/- and in case of default to undergo further Rigorous Imprisonment for a period of one year. The aforesaid sentences were ordered to run concurrently. 2.0 The brief facts of the case are that, at the relevant point of time, the original complainant-Chimanbhai Vithalbhai Vasava-P.W.-1, herein, was doing business of polishing rough diamonds at Dediapada village in the rear room of the house of one Ramanbhai Chaturbhai Vasava. Ramanbhai Chaturbhai Vasava had purchased the said house from one Motibhai Kalidas Patel who was the original owner of the said house. The house purchased by Ramanbhai Chaturbhai Vasava had electricity connection for domestic use and from the said connection, he had made arrangements for supply of electricity to the diamond polishing workshop of P.W.-1. Since the said house was not transferred in the name of CR.A/486/1996 3/30 JUDGMENT Ramanbhai Chaturbhai Vasava, the bill towards monthly consumption of electricity used to be issued in the name of original owner Motibhai Kalidas Patel, by the Electricity Company . 2.1 On 02.02.1990, the original accused- appellant, herein, who was working as Deputy Engineer in Gujarat Electricity Board at Dediapada, visited place of business of P.W.-1. The appellant told P.W.-1 that he was doing business of diamond polishing from the electricity connection meant for domestic use. The appellant further told P.W.-1 that for the aforesaid purpose he(P.W.-1) should get separate electricity connection and asked him(P.W.-1)as to why he had not taken the separate electricity connection. In reply to that P.W.-1 told the appellant that he has been paying the electricity charges regularly and that he was ready to take separate connection. The appellant, hence, told P.W.-1 that since he was not committing theft of electricity and was regularly paying the electricity charges, he (the appellant) will not raise any objection with regard to his (P.W.- 1's)electricity connection, but, for that P.W.-1 has to pay Rs.2,000/- to him (the appellant). P.W.-1, therefore, requested the appellant to continue his electricity supply and told him(the appellant) that he will pay Rs.2000/- in two- three days. The appellant, then, told P.W.-1 to CR.A/486/1996 4/30 JUDGMENT come to his office on 07.02.1990 to pay the aforesaid amount. 2.2 Since P.W.-1 did not want to pay bribe to the appellant, he registered a complaint with A.C.B., Bharuch on 06.02.1990. After registering the complaint of P.W.-1, the police inspector decided to arrange a trap, and hence, he told P.W.-1 to come with the amount of bribe on 07.02.1990. 2.3 On 07.02.1990, P.W.-1 went to the office of the A.C.B. at Bharuch. Then, the Police Inspector called for two panchas. On arrival of panchas, P.W.-1 produced twenty currency notes of Rs.100/- each totaling to Rs.2000/-. Thereafter, necessary statutory procedures i.e., noting down of numbers of the currency notes, experiment under ultraviolet lamp and normal light were conducted on the aforesaid currency notes after smearing the currency notes with anthracene powder. A preliminary 'Panchnama' was drawn to the aforesaid effect. The panchas and the raiding party were then given necessary instructions by the police inspector. Thereupon, P.W.-1, panchas and the raiding party left for the office of the appellant at Dediapada. 2.4 On reaching Dediapada, as per the arrangement, everybody took their position. P.W.- CR.A/486/1996 5/30 JUDGMENT 1 along with P.W.-4 went into the office of the appellant. However, they were informed that the appellant had gone out and will come back by one o'clock. P.W.-1 and P.W.-4, therefore, came out of the office of the appellant and they waited for the appellant under a Nilgiri tree near the office of the appellant. At about one o'clock, the appellant came back. Thereupon, P.W.-1 and P.W.-4 went into the office of the appellant. The appellant demanded the bribe. P.W.-1 took out the bribe amount from his shirt pocket for giving it to the appellant, the appellant accepted the same and put it in the drawer of his table. P.W.-1, then, gave signal to the raiding party. On receiving the signal, the members of the raiding party rushed into the office of the appellant. Then, the tainted currency notes were recovered from the table drawer of the appellant. In pursuance of that experiment of normal light and ultraviolet light with anthracene powder etc. procedures were done and second part of the 'Panchnama' was completed. 2.5 After the completion of investigation, charge-sheet was submitted against the appellant before the trial Court. The trial Court framed, read over and explained charges under Section 7 and Section 13(1)(d) read with Section 13(2)of the Prevention of Corruption Act to the appellant. However, the appellant did not plead CR.A/486/1996 6/30 JUDGMENT guilty to the charges and claimed to be tried. 2.6 To prove its case, the prosecution has examined following witnesses, 1. Chimanbhai Vithalbhai Vasava P.W.-1 Exh.-22 2. Ramsingbhai Khatriyabhai Vasava P.W.-2 Exh.-26 3. Govindbhai Naranjibhai Patel P.W.-3 Exh.-27 4. Ramanbhai Vithalbhai Parmar P.W.-4 Exh.-30 5. Bhupendra Naginbhai Khambhata P.W.-5 Exh.-54 6. Abhesingbhai Fofabhai Vasava P.W.-6 Exh.-58 7. Arunkumar Nanubhai Desai P.W.-7 Exh.-62 8. Rasikbhai Dahyabhai Patel P.W.-8 Exh.-68 9. Natvarlal Dhaneshwar Bhatt P.W.-9 Exh.-69 10. Haribhai Ambalal Parmar P.W.-10 Exh.-77 11. Thakorbhai Dahyabhai Brahmbhatt P.W.-11 Exh.-80 12. Ramanbhai Chaturbhai Vasava P.W.-12 Exh.-87 13. Bhimsinh Sursinh Vasava P.W.-13 Exh.-91 2.7 The prosecution has also placed reliance on several documentary evidence i.e., Charge Sheet (Exhibit-1), List of Muddamal (Exhibit-9), Muddamal Pavti(Exhibit-32), Zerox Copy of Circular(Exhibit-66), Complaint (Exhibit-92), Panchnama(Exhibit-31)etc.. 2.8 Thereafter, further statement of the CR.A/486/1996 7/30 JUDGMENT appellant-accused under Section 313 of the Cr.P.C. was recorded after evidence of prosecution side was over. The appellant-accused denied all the charges leveled against him and submitted that he was falsely implicated in the trap. He also submitted his Written Submissions Exhibit-129. Then the trial Court heard all the parties and convicted and sentenced the appellant as stated in Para-1 of this judgment. Hence, the present appeal. 3.0 Heard Mr. Shethna, learned Advocate for the appellant and Mr. Pujari, learned AGP on behalf of respondent-State. 4.0 Mr. Shethna, learned Advocate for the appellant has submitted that the sanction to prosecute the appellant was not obtained from the competent Authority. Mr. Shethna, submitted that it was the specific defence of the appellant that only G.E.B. has powers to grant sanction and Chief-Engineer has no powers to appoint or remove the appellant. In support of his submission, he pointed out that P.W.-3 specifically submitted on oath that powers were delegated to Chief-Engineer (i.e., himself) to appoint or to remove the employees and he will produce the documentary evidence through the Government Pleader. In the light of this evidence, it is vehemently argued by Mr. Shethna that since no documents were CR.A/486/1996 8/30 JUDGMENT produced, P.W.-3 has no powers to grant sanction. He further argued that the trial Court ought to have appreciated the fact that the date of sanction was written as 07.10.1990 which creates doubt about the genuineness of the sanction granted by P.W.-3. In support of his case he has placed reliance on the decision of the Hon'ble Apex Court in the case of “State Inspector of Police Vishakhapatnam Vs. Surya Sankaram Karri” reported in (2006) 7 SCC 172 wherein at Para-26 it has been observed that when sanction is granted by a person not authorised in law, the same being without jurisdiction, would be a nullity. 4.1 He has also placed reliance on the decisions of the Hon'ble Apex Court in the case of “K. Devassia Vs. State of Kerala” reported in (2006)10 SCC 447 and in the case of “State of Karnataka Vs. Ameer Jan” reported in 2007(11)SCALE wherein the similar view is taken by the Hon'ble Apex Court. 4.2 There is no substance in the aforesaid argument advanced by the learned Advocate for the appellant. From the evidence of P.W.-7-Arunkumar Nanubhai Desai and D.W.-1-Devidas Haribhai Chaudhry it clearly transpires that the appointment of the Deputy Engineers are made by Chief Engineer and not by G.E.B.. From the record CR.A/486/1996 9/30 JUDGMENT it also transpires that vide order dated 07.01.1985 issued by Chief Engineer, the appellant was promoted to the post of Deputy Engineer, and hence, being appointing authority, Chief Engineer has powers to remove the appellant from the job. Apart from that P.W.-3-Govindhbhai Naranjibhai Patel, Chief Engineer, GEB, Vadodara who was examined at Exhibit-27 has also stated that the Chief Engineer being appointing Authority has powers to remove Deputy Engineers. Here, it is also pertinent to note that the appellant himself could have produced his letter of appointment to show that the G.E.B. has powers to appoint or remove the appellant and not P.W.- 3. But, the appellant has not produced his appointment letter or any other document in support of his case. P.W.-3 has further stated that after going through all the papers pertaining to the case of the appellant supplied by A.C.B. and after applying his mind, he had given sanction. Hence, by no stretch of imagination it can be said that P.W.-3 granted the 'Sanction' mechanically, without any lawful authority and without applying his mind. The said fact also supports the case of the prosecution that P.W.-3 being appointing authority had powers to remove the appellant from the service. Except, the bare words of the appellant, nothing has come on record which shows that P.W.-3 is not the competent Authority to appoint or remove any CR.A/486/1996 10/30 JUDGMENT employee. Hence, the said contention is rejected and the decisions relied on by the learned Advocate for the appellant in the case of “State Inspector of Police Vishakhapatna”(Supra), “K. Devassia”(Supra) and in the case of “State of Kerala”(Supra) will not apply to the facts of the case on hand. 4.3 So far as the aspect of the mistake in date of sanction is concerned, it is submitted by the prosecution that due to typographical error the said mistake has occurred. To prove its case, the prosecution has placed reliance on the evidence of P.W.-5-Bhupendrabhai Naginbhai Khambhata. P.W.-5 in his deposition has stated that his duty was to despatch 'confidential letters'. The said witness submitted that he had received the said letter Exhibit-52 and had despatched the same on the same day i.e. on 07.11.1990. P.W.-5 in his cross-examination, denied the suggestion put forward by the defence that while cleaning his table on 07.11.1990 he found out the letters, and hence, he had put the stamp on the said letter as issued on 07.11.1990 instead of 07.10.1990. Hence, from the evidence of this witness, it clearly transpires that there was typographical mistake in mentioning date as 07.10.1990 instead of 07.11.1990. Hence, the said contention is also rejected. CR.A/486/1996 11/30 JUDGMENT 5.0 Learned Advocate for the appellant further argued that the prosecution has failed to establish that, at the relevant point of time, the complainant was doing the diamond polishing business in the house of one Ramanbhai Chaturbhai Vasava. 5.1 To establish the fact that the complainant was doing the business of diamond polishing in the house of Ramanbhai Chatrubhai Vasava, the prosecution has placed reliance on the evidence of P.W.-2-Ramsingbhai Khatriyabhai Vasava, P.W.-6-Abhesingh Fofabhai Vasava, P.W.-8- Rasikbhai Dayabhai Patel and P.W.-12-Ramanbhai Chaturbhai Vasava i.e., the owner of the house. P.W.-2 in his deposition has stated that about four to five months before the incident in question he had started working in the diamond polishing workshop of P.W.-1 situated in the rear room of the house of one Ramanbhai Chaturbhai Vasava. P.W.-2 has further stated that there about five to six persons were working there including him. P.W.-2 in his cross-examination has stated that it is not true that at the relevant point of time P.W.-1 was not doing business of diamond polishing in the house of Ramanbhai Chaturbhai Vasava and he was not working there. P.W.-6 who was working as Sr. Assistant in the office of the appellant, in his deposition, has stated that P.W.-1 was doing the CR.A/486/1996 12/30 JUDGMENT diamond polishing business in the house of Motibhai Kalidas Patel by using the electricity connection which was meant for domestic use. In his cross-examination, P.W.-6 has clearly stated that it is not true that P.W.-1 was not doing the business of diamond polishing. P.W.-8 who was working as Meter Reader in G.E.B. Sub-Division office at Dediapada has stated that he used to go to the house of Motibhai Kalidas Patel for the purpose of meter reading and at that time he had seen one Chimanbhai Chaturbhai doing business of diamond polishing from the electricity connection bearing Customer No. B/95 which was in the name of one Motibhai Kalidas Patel. Here, it may be noted that since this witness cleverly mentioned the name of the person who was doing business of diamond polishing as Chimanbhai Chaturbhai instead of Chimanbhai Vithalbhai Vasava he was declared hostile. However, so far as the aspect of existence of diamond polishing workshop is concerned he has fully supported the case of the prosecution. P.W.-12 who is the owner of the house has stated in his deposition that he had purchased the said house from one Motibhai Kalidas Patel. But, since the said house was not transferred in his name, the electricity bill used to be issued by the electricity Company in the name of Motibhai Kalidas Patel. He has further stated the he had given the rear room of the said house on rent to P.W.-1 for doing CR.A/486/1996 13/30 JUDGMENT business of diamond polishing. P.W.-12, in his cross-examination, has strongly denied that it is not true that he had not purchased any house from Motibhai Kalidas Patel. Hence, from the evidence of the aforesaid witnesses it clearly transpires that at the relevant point of time P.W.-1 was doing diamond polishing business in the house of Ramnbhai Chaturbhai Vasava. Hence, the said argument is also rejected. 6.0 It was further argued that if the appellant had an intention to accept the bribe, then, he would not have spent 30 to 40 minutes in offering tea to P.W.-1 and P.W.-4 and that he would not have filled up form for a separate electricity connection for P.W.-1, and therefore, the trial Court ought to have held that the prosecution has failed to establish any motive on the part of the appellant for doing some favour to P.W.-1, in exercise of his official duty. In support of the same, he has placed reliance on a decision of the Hon'ble Supreme Court in the case of “Trilok Chand Jain Vs. State of Delhi” reported in AIR 1977 SC 666 wherein at Para-12 it was observed as under, “12. One of the essential ingredients of the offence under Section 5(1)(B) of the Prevention of Corruption Act and Section 161 of I.P.C. is that the CR.A/486/1996 14/30 JUDGMENT gratification must have been received by the accused as “a motive or reward” for committing an act or omission in connection with his official functions. It must be shown that there was an understanding that the bribe was given in consideration of some official act or conduct...” 6.1 The aforesaid submission made by the learned Advocate for the appellant deserves to be rejected. From the depositions of P.W.-1 and P.W.-4 it clearly transpires that after the arrival of the appellant at about 1:00 p.m. when they entered into the office of the appellant, the appellant on seeing P.W.-1 called them and told to take seat and then offered them tea. The appellant, thereafter, advised P.W.-1 to get a separate electricity connection for running the diamond polishing business. Then, the appellant took out application form from his table drawer and he himself filled it up. Thereupon, the appellant inquired from P.W.-1 as to whether he had brought the money or not. P.W.-1, hence, offered bribe which was accepted by the appellant. Thereafter, when P.W.-1 asked the appellant whether he is issuing receipt or not, in reply to that the appellant told P.W.-1 to carry on his business as usual and assured him that nothing adverse would happen. Hence, if we CR.A/486/1996 15/30 JUDGMENT carefully examine the entire conduct of the appellant of calling P.W.-1 and telling him to take seat and then offering him tea and his(the appellant's) further conduct of telling P.W.-1 to take a separate connection and then he(appellant) himself filling up a form for P.W.-1 and then asking P.W.-1 as to what happened to their talk about money and on money being offered by P.W.-1 accepting the same, clearly shows that from the very beginning the appellant had intended to demand and accept the bribe from P.W.-1, but as a precautionary step he behaved as if he was going to grant a separate electricity connection to P.W.-1 and on account of that the time of about 30 to 40 minutes was consumed. Apart from that the assurance given by the appellant, on receipt of the amount of bribe, to P.W.-1 in the presence of P.W.4 that “he(P.W.-1)can continue his business as usual” and the utterance of the words by the appellant that “nothing adverse would happen” clearly suggest the motive of the appellant of taking bribe from P.W.-1 for allowing him to continue his activity of diamond polishing from the electricity connection meant for domestic use. Hence, the said contention is also rejected and the decision relied on by the learned Advocate for the appellant in the case of “Trilok Chand Jain”(Supra) will not come to the rescue of the appellant. CR.A/486/1996 16/30 JUDGMENT 7.0 It was also argued by the learned Advocate for the appellant that the prosecution has failed to prove the 'demand' and 'acceptance' of bribe by the appellant. In support of the same, he has placed reliance on a decision of the Hon'ble Apex Court in the case of “T. Subramanian Vs. State of T.N.” reported in (2006) 1 SCC 401 wherein the Hon'ble Apex Court observed that mere proof of receipt of money by the accused, in absence of demand and acceptance of money as illegal gratification, is not sufficient to establish guilt of the accused. 7.1 So far as the aspect of 'demand' and 'acceptance' of bribe by the appellant is concerned, from the evidence of P.W.-1 and P.W.-4 it clearly transpires that after filling up form for separate electricity connection for P.W.-1, the appellant told P.W.-1 to get signatures of owner of the house and Talati and then he inquired from P.W.-1 as to what happened to our talk about money, P.W.-1, therefore, took out the tainted currency notes from his pocket and gave it to the appellant. The appellant accepted the same with his right hand and then took the said amount in his left hand then put it in right hand drawer of his table. The recovery of the tainted currency notes from the table drawer of the appellant and the presence of the marks of anthracene powder on the hands and finger tips of CR.A/486/1996 17/30 JUDGMENT the appellant, as well as on the glass of the table and on the right hand drawer of the table of the appellant clearly suggest that the appellant had accepted the bribe. Even otherwise, in view of the absence of any satisfactory explanation on the part of the appellant as to how the marks of anthracene powder came on his hands and finger tips and as to how the tainted currency notes came in his drawer, strongly supports the case of the prosecution of demand and acceptance of bribe by the appellant. Hence, the said contention is rejected and the decision relied on by the learned Advocate for the appellant in the case of “T. Subramanian”(Supra) will not apply to the case on hand. 8.0 It was also argued by the learned Advocate for the appellant that the omissions and contradictions in the evidence of witnesses are fatal to the case of the prosecution. In support of the same, he has placed reliance on a decision of the Hon'ble Apex Court in the case of “Kunju Muhammed @ Khumani And Anr. Vs. State of Kerala” reported in (2004) 9 SCC 193 wherein at Para-14 it was observed as under, “14. ... It is seen as per the prosecution case that the deceased after he was dragged to the second place of CR.A/486/1996 18/30 JUDGMENT incident, was placed in a supine position and A-2 cut his neck with MO 2 causing the fatal injury. If really PW 4 had witnessed this incident as observed by the trial Court, we also think it would have been very difficult for him to have forgotten this part of the prosecution case. It is not his case that he did not witness this part of the prosecution case but he stated before the court that he did not remember how the attack took place. In our opinion, the evidence of this witness is not worthy of any credence, hence, has to be rejected.” 8.1 So far as the contention raised by the learned Advocate for the appellant with regard to omissions and contradictions in the evidence of prosecution witnesses is concerned, it is required to be noted that the offence in question took place in the year 1990 whereas the recording of evidence of prosecution witnesses was commenced from the year 1995 i.e. almost after five years of the alleged offence. Hence, some contradictions are bound to occur in the depositions of prosecution witnesses. However, the fact remains that the appellant was caught red-handed while accepting bribe from P.W.-1 in the presence of P.W.-4 which is clear from the evidence available on record and, more CR.A/486/1996 19/30 JUDGMENT particularly, the evidence in the form of Panchnama(Exhibit-31), List of Muddamal (Exhibit- 9) and the depositions of P.W.-4 and P.W.-13. Therefore, even if certain omissions and contradictions are there, the same are not of much relevance in the present case and that the same shall not have any bearing on the merits of the case. In that view of the matter, the said contention raised by the learned Advocate for the appellant deserves to be rejected and the same is rejected and the decision relied on by the learned Advocate for the appellant in the case of “Kunju Muhammed @ Khumani And Anr.”(Supra) will not help the appellant. 9.0 It was further argued by learned Advocate for the appellant that P.W.-4 was specifically asked twice in his cross-examination as to where the second part of the 'Panchnama' was drawn, in reply to that P.W.-4 both the times told that the same was drawn at A.C.B. office. P.W.-4 was not declared hostile and hence it is fatal to the case