CR.A/292/1986 1/59 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 292 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ============================================================== 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 ? ============================================================== STATE OF GUJARAT - Appellant(s) Versus GUNVANTLAL H SHAH - Opponent(s) ============================================================== Appearance : MR KP RAVAL APP for Appellant MR US BRAHMBHATT for respondent – appointed by Legal Aid. ================================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 16/12/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/292/1986 2/59 JUDGMENT 1. The acquittal of the respondent ('the accused') of the offence punishable under Section 161 of the Indian Penal Code ('the IPC' for short) and Section 5 (1) (d) and 5 (2) of the Prevention of Corruption Act ('the Act' for short) recorded by the learned Special Judge, Mehsana vide judgment and order dated 16.10.1985 rendered in Special Case No. 3 of 1984 is the subject matter of challenge in instant appeal which is filed under Section 378 of the Code of Criminal Procedure ('the Code' for short) by the appellant – State of Gujarat. 2. The prosecution case as reflected from the complaint dated 19.12.1983 filed by Nagindas Tulsidas Acharya ('the complainant'), before Police Inspector, ACB, Mehsana and unfolded during trial was as under: 2.1.As per the complaint, since 1.11.1982, the complainant was serving as Manager-cum-Mantri in CR.A/292/1986 3/59 JUDGMENT the fair-price shop run in the Mehsana Police Head Quarters by Police Employees Consumer Cooperative Stores (“Mandali” for short) and he used to manage the affairs related to purchase and sale of the goods in the shop. In the said shop Sadatkhan Husenkhan Pathan was serving as Tolat. Before the complainant took over the charge, one Mahendrabhai Chandulal Joshi was serving in the shop. Mandali was granted loan of Rs.4500/- for purchasing furniture for the said shop but the said loan was not utilized for the purpose for which it was availed but the loan was utilized for purchasing some other items and in this regard necessary entries were made in the daily account book. After that as he got employment as Talati cum Mantri, the charge of the said shop was given to the complainant. After taking over the charge of the said shop, Gunvantbhai Haribhai Shah ('the accused' for short), Officer of the office of the District Registrar, came for inspection in the month of CR.A/292/1986 4/59 JUDGMENT February 1983. He checked up the accounts and informed that the loan amount was not used for the purpose for which it was sanctioned and thereby the said loan amount was misused by the shop. The complainant informed him that he took over the charge of the said shop after the said amount of loan was granted and spent and he did not know anything about it. The accused told him that he should have verified the accounts before taking over the charge of the shop. Thereupon the complainant told the accused that he may make arrangement for repayment of the loan after making inquiries with Mahendrabhai who was serving earlier in the shop. The accused at that time told the complainant that he may do whatever he wanted to do but he must immediately deposit Rs.4500/- otherwise action would be taken against him. At that time the complainant told the accused that some time may be given so that he can make arrangement for depositing the amount but the accused must see to it that nothing would CR.A/292/1986 5/59 JUDGMENT happen to him. At that time the accused told him that if he wanted relief he should pay Rs.2,000/- to him. Therefore the complainant gave Rs.1500/- to the accused. At that time only Sadatkhan, the Tolat, was present. 2.2. Thereafter a letter was received by the complainant before 18.11.1983 from the office of the District Registrar regarding inspection of his shop and the complainant made necessary preparation for the inspection. In the meantime, somewhere before 18.11.1983, the accused came to his shop and inquired whether he received the letter intimating him about the inspection of the shop to which the complainant told that he got it. The accused asked him whether the amount of loan was deposited or not and if not deposited then it may be deposited before the inspection otherwise report will be made about the incident to the higher ups and in case of filing of any case he will be in difficulty. The complainant CR.A/292/1986 6/59 JUDGMENT told the accused that it would be difficult to repay the said amount before 18.11.1983 and hence some change may be made in the programme. Thereupon the accused told him that he understood when the relief was given earlier and if he understands this time also then relief will be given. The complainant told that he was not in a position to make arrangement and after some days he will make arrangement and he will do as told by him. The accused told him that after receiving the salary he may see him and at that time the complainant and Sadatkhan, the Tolat, both were present. Thereafter he did not go to see the accused. 2.3. After that, on 16.12.1983 when the complainant reached his house his wife told him that some Gunvantbhai Shah came and asked the complainant to see him the next day or the day thereafter. Therefore, on that day the complainant went to the office of the District CR.A/292/1986 7/59 JUDGMENT Registrar and met Gunvantbhai Shah and he called him to drink tea and along with him he came down and he took the complainant to one side and told that the said loan amount was not paid by him, so what to do. On that day or the day after they will come for inspection and as told by you earlier why he did not come to see him and even the loan was not paid. The complainant told that it was not possible to repay the loan, and he may give some relief. At that time the accused told that like last time Rs.1500 should be given to which the complainant informed that such a huge amount cannot be given but some reasonable amount may be given. The accused, therefore, asked to give Rs.1,000/- and told that the things will be over. The complainant told that at that time where from he would bring the money but in three different installments the same would be given. The accused told that on that day after office hours at about 6 to 6.30 he will come to his house and he may make arrangement for Rs.300/- CR.A/292/1986 8/59 JUDGMENT and thereafter taking tea they departed. 2.4.The complainant was of the opinion that it was not proper to give illegal gratification demanded by the accused and, therefore, he had contacted P.I. ACB Mehsana who recorded his complaint at Ex.37. 2.5.After recording of the complaint, two panch witnesses were summoned at the instance of the Police Inspector. The panchas and the complainant were introduced to each other. The complainant had read over the complaint to the panch witnesses and thereafter the complainant had produced three currency notes of Rs.100 denomination. The number of the notes were noted in panchnama and thereafter the notes were smeared with anthracene powder and experiment with ultra violate lamp was carried out and after that the said three notes were put in the pocket of the bush-shirt of the complainant by Head CR.A/292/1986 9/59 JUDGMENT Constable Arvindbhai with instruction not to touch them unless and until demand was made by the accused for illegal gratification. Thereafter necessary instructions were given to the raiding party and thus first part of the panchnama was completed at the ACB Office, Mehsana. 2.6.Thereafter the complainant in the company of Panch No.1 and the members of the raiding party proceeded towards his house as the accused had told him that he will come to his house. The complainant, Panch No.1 and the members of the raiding party went to the house of the complainant and Panch No.2 and Head Constable Nathuji and Police Constable Takhuji both sat in the room adjacent to the room in which Panch No.1 and complainant were sitting. The PI and and other members of the raiding party were standing outside the house of the complainant. At about 6.35 PM the accused came to the house of the CR.A/292/1986 10/59 JUDGMENT complainant and verified the presence of the complainant in his house. Since the complainant was in his house he called the accused in the house. The accused came inside the house and inquired as to what happened with regard to their previous talk and asked whether arrangement was made to which the complainant told that he made arrangement. Thereupon the accused asked him to give the money. The complainant told him that he had arranged for Rs.300. The accused demanded the amount and thereupon the complainant took out the three currency notes of 100 denomination from the left side pocket of his shirt. The accused accepted the said currency notes in his hand and put them in the left side pocket of his bush shirt. The complainant gave signal and thereupon the members of the raiding party went inside the house of the complainant. At that time the accused was sitting near the complainant. The PI showed his identity card to the accused and told him to sit in the same position and asked where CR.A/292/1986 11/59 JUDGMENT did he put the currency notes which he demanded and accepted from the complainant. Thereafter three currency notes were taken out from the pocket of the bush shirt of the accused with the help of Panch No.1 and the numbers of the currency notes were tallied with the numbers which were noted in the first part of the panchnama. Thereafter again experiment on the currency notes with the help of ultra violet lamp was performed. The experiment with the ultra violet lamp on the hand of the complainant as well as the accused was also performed. Anthracene powder was found on the currency notes, hands of the accused as well as the complainant. Thereafter second part of the panchnama was concluded. 2.7. Since the trap was successfully carried out, the offence was registered on the basis of the complaint filed by the complainant against the accused at ACB Police Station, Mehsana for CR.A/292/1986 12/59 JUDGMENT commission of the offenses under sections 161 of IPC and under section 5 (1) (d) and 5 (2) of the Act. 2.8.Pursuant to the registration of the complaint, investigation was put into motion. During the course of the investigation, statements of the complainant as well as panch witnesses and other witnesses were recorded. As the accused was a public servant, necessary sanction under the Act from the competent authority to prosecute him was requestioned and on receipt of such sanction and as sufficient incriminating evidence was collected to prosecute the accused for commission of the offenses as alleged, he was charge-sheeted in the court of learned Special Judge, Mehsana. 2.9.The learned Special Judge framed charge against the accused for commission of the offence under section 161 of IPC and also under section 5 CR.A/292/1986 13/59 JUDGMENT (1) (d) and 5 (2) of the Act. The charge was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried and thereupon he was put to trial and tried by the learned Special Judge, Mehsana in Special Case No.3 of 1984. 2.10. To prove the culpability of the accused, the prosecution examined following three witnesses and relied upon their oral testimony: (i) P.W.1, Nagindas Tulsidas, complainant, Ex.18. (ii)P.W.2, Balvantbhai Kachrabhai Chauhan, Panch No.1, Ex.33. (iii)P.W.3, Takhatsing Muluji Parmar, P.I. ACB, investigating officer, Ex.36. 2.11. To prove the charge against the accused, the prosecution has also produced documents like complaint, Ex.37, panchnama Ex.34, letter of section to prosecute the accused, Ex.38, etc., CR.A/292/1986 14/59 JUDGMENT and relied upon the contents thereof. 2.12. After recording of the evidence of the prosecution witnesses was over, the learned Special Judge explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section 313 of the Code. In his further statement he denied the case of the prosecution in toto. Except producing his written statement at Ex.58, he has not led any evidence nor examined any witness to support his defence. 2.13. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the learned Special Judge came to the conclusion that the evidence adduced by the prosecution is unreliable and not trustworthy as there was no reason for the complainant to give the illegal gratification to the accused as he was not responsible for the CR.A/292/1986 15/59 JUDGMENT act of not utilizing the loan amount for the purpose for which it was sanctioned. It was also held that the panchas were selected and therefore they were interested witnesses and hence no reliance can be placed upon their oral testimony. On the aforesaid premises, it was held by the learned Special Judge that the prosecution has failed to prove the charge levelled against the accused beyond reasonable doubt and a doubt was raised on the prosecution case and hence he acquitted the accused of the offence with which he was charged giving rise to this appeal at the instance of the appellant – State of Gujarat. 3. Mr. KP Raval, learned APP for the appellant – State of Gujarat after taking us through the entire testimonial collections on the record has made the following submissions: (a) There is cogent, reliable and trustworthy evidence on record about the demand and CR.A/292/1986 16/59 JUDGMENT acceptance of illegal gratification as a motive or reward by the accused and the said amount was recovered from him. (b) The complainant is compelled to give the bribe. He is an unwilling bribe giver. His evidence is trustworthy, reliable and beyond any reasonable doubt and from his evidence the complaint Ex.37 is proved. He might have made some omissions or contradictions in his oral testimony. But by that fact alone his evidence cannot be discarded. ( c )The evidence of Panch witness No.1 at Ex.33 is also reliable and trustworthy and his evidence is also required to be believed. There may be some discrepancy or contradiction in his evidence to which much weightage may not be given. Merely because both the panchas belong to same community i.e., Scheduled Caste and serving in the same office that by itself cannot impeach CR.A/292/1986 17/59 JUDGMENT their credibility and make their evidence unreliable and untrustworthy. They are not selectee of the complainant or the Investigating Officer. (d) The evidence of the investigating officer is also trustworthy and reliable and he has no reason to speak lie. He cannot be called interested witness as he is an independent witness and so his evidence is required to be believed. (e) The written explanation tendered by the accused at Ex.58 is totally false and no reliance can be placed upon the same. 4. On the aforesaid premises, it is submitted by Mr. Raval, learned APP that case against the accused for demand, acceptance, and recovery of illegal gratification is proved and therefore he should be held guilty of the offence with CR.A/292/1986 18/59 JUDGMENT which he was charged. He therefore submitted that the impugned judgment and order of acquittal of the accused deserves to be quashed and set aside by allowing this appeal. He therefore urged to allow this appeal and the accused may be held guilty of the offence with which he was charged and punish him according to law. 5. Per contra, Mr. U.S. Brahmbhatt, learned advocate appointed by this Court to assist the accused under Legal Aid, has vehemently contended that there is no reliable and trustworthy evidence with respect to motive of demand, acceptance and recovery of the bribe from the accused. He has further submitted that the prosecution evidence on record when minutely perused in face of settled principles of anti corruption case laws as to the appreciation of evidence, showed that the prosecution has utterly and miserably failed to prove the case against the accused and, therefore, accused deserved to CR.A/292/1986 19/59 JUDGMENT be acquitted. He does not rest here. According to him, there is no substratum of the prosecution case and it was neither of the function of the accused to give the account or to satisfy the accused with respect to the loan which was sanctioned for purchase of furniture which was not utilized for the purpose for which it was sanctioned as he joined the service after the loan was sanctioned and utilized for some other purpose. Therefore, this basic significant aspect smashes the persecution case and the witnesses examined by the prosecution all are liers and therefore their evidence is required to be totally disregarded being false and fabricated. 6. His submissions can be catelogued as under: (i) Firstly, he assailed on the complainant himself. According to him, the complainant is a lier and not a witness of sterling quality. CR.A/292/1986 20/59 JUDGMENT (ii)Initial demand of Rs.1500/- and acceptance by the accused is not proved as it does not get corroboration of independent witness, Sadatkhan, Tolat, who was from the office of the complainant and according to the complainant in his presence the amount of Rs.1500/- was demanded by the accused, paid to him and was accepted by him. (iii) The complainant belongs to schedule caste. However, he has identified himself as Brahmin in the society which reflects on his credibility. He has selected two panchas of his own community and therefore the panchas are selectee of the complainant. (iv)Both the panchas are selected by the complainant from the same office and they belong to his caste. Without verifying this aspect the investigating officer accepted both the panchas which reflects on the credibility of the evidence of the investigating officer. CR.A/292/1986 21/59 JUDGMENT (v) The accused is wrongly trapped by the complainant with the help of two panchas who are his caste fellows. (vi)Explanation offered by the accused in written statement is in consonance with the evidence adduced by the prosecution and therefore there is no reason to disregard the said explanation. (vii) On the aforesaid premises, he submitted that the learned Special Judge has very rightly recorded the finding of not guilt and held that doubt is raised on the prosecution case and, therefore, he rightly acquitted the accused of the offence with which he was charged. (viii) It is also submitted that this is an acquittal appeal where the scope to interference of this court is very limited. According to him, even if two views are possible, one leads to CR.A/292/1986 22/59 JUDGMENT innocence and another to guilt then the view favourable to the accused must be accepted and in acquittal appeal the appellate court cannot substitute its own view if the view taken by the trial Judge is found to be reasonable. He therefore submitted that the appeal lacks merit and deserves to be dismissed. He therefore urged to dismiss the appeal. 6. We have considered the submissions advanced by the learned advocates appearing for the parties, taken into consideration testimonial collections in the nature of ocular evidence as well as documentary evidence and reported decisions of the Supreme Court laying down proposition of law with regard to appreciation of evidence in bribe case. 7. The case against the accused was for demanding and accepting illegal gratification to CR.A/292/1986 23/59 JUDGMENT which he was not entitled to in his capacity as a public servant in discharge of his public duties. The ingredients of charge under Section 161 of the IPC and Section 5 (2) of the Act may be briefly stated as follows: (i) That the accused was a public servant; (ii)That he must be shown to have obtained from any person any gratification; (iii) The gratification should be other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in exercise of his official function favour of disfavour to the person. 8. When the first two ingredients are proved by the evidence, a rebuttable presumption arises in respect of the third ingredient and in absence of proof of first two facts, the presumption does not arise. On mere recovery of certain money from CR.A/292/1986 24/59 JUDGMENT the person of accused without proof of payment or on behalf of such person to whom official favour was to be shown, the presumption cannot arise (See Sita Ram v. State of Rajasthan, AIR 1975 SC 1432. 9. It must also be remembered that Section 161 of IPC does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver 'with any other public servant' and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing (See CR.A/292/1986 25/59 JUDGMENT Chaturdas Bhagwandas Patel v. State of Gujarat, AIR 1976 SC 1497). 10. Another important test which must be remembered is that where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received illegal gratification from some person, the Court would certainly be entitled to draw the presumption under Sec.4 (1) of the Act. Even under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, in their relation to the facts of the particular case (See Hazarilal v. The State (Delhi Administration) AIR 1980 SC 973). 11. Where in a trap case, the Judge magnifies every minor detail or omission to falsify or throw even a shadow of doubt on the prosecution CR.A/292/1986 26/59 JUDGMENT evidence, then it would be the very antithesis of a correct judicial approach to the evidence of witnesses in a trap caste Indeed, if such a harsh touchstone is prescribed to prove such a caste, it will be difficult for the prosecution to establish any case at all (See State of Maharashtra v. Narsingrao Gangaram Pimple, AIR 1984 SC 63. 12. Thus, the Court of Special Judge should invariably be aware of the correct judicial approach in a trap caste and see that it does not enter into exercise of magnifying minor details and omissions only with a view to falsify witnesses and throw overboard the prosecution caste. 13. In the back drop of the aforesaid settled principles enunciated by the Supreme Court with regard to appreciation of evidence in a bribe case, we may now advert to the actual evidence on CR.A/292/1986 27/59 JUDGMENT record to find out as to whether the prosecution has established its case against the accused that in his capacity as public servant he demanded and accepted the amount of Rs.300/- as bribe from the complainant for not inspecting the fair-price shop. 14. In this connection, adverting to the oral testimony of the P.W.1, Nagindas Tulsidas, Ex.18, in his chief examination, inter alia, he has testified as per the averments made