CR.A/77519/1993 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 775 of 1993 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 ? ========================================================= KANUBHAI RANCHHODBHAI SHRIMALI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KB ANANDJIWALA for Appellant(s) : 1 - 2. MR UR BHATT ASST. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 30/09/2008 ORAL JUDGMENT 1.0 Before proceeding with the matter, here, it is pertinent to note that during the pendency of the appeal, Kanubhai Dahyabhai Makwana- original accused No.2 i.e., appellant No.2, herein, expired, and hence, wife of respondent CR.A/77519/1993 2/34 JUDGMENT No.2 being his heir and legal representative preferred an application to permit her to continue the proceedings of appeal. Accordingly, vide order passed by this Court in Criminal Misc. Application No.735 on 24.04.2008, the heir of appellant No.2 was granted permission to continue the proceedings of the appeal. 2.0 By way of this appeal, the original accused No.1-appellant No.1, herein, and the heir of original accused No.2 have challenged the judgment and order of the learned Special Judge, Court No.2, Ahmedabad dated 29.06.1993 passed in Special Case No.20 of 1990 whereby the trial Court convicted the accused persons for the offences punishable under Sections 13(1)(d)(i) and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 as well as Section 34 of the I.P.C. and sentenced them to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs.1000/- by each of them and in case of default, each of them to undergo further Rigorous Imprisonment for a period of two months. However, CR.A/77519/1993 3/34 JUDGMENT the accused persons were acquitted qua the offences punishable under Section 7 and Section 13(1)(d)(iii) of the P.C. Act. The aforesaid sentences were ordered to run concurrently. 3.0 The brief facts of the case are that the original complainant-Hemraj Surajmal Sharma, who was dealing in the business of scrap metal, having his place of business at Naroda in Ahmedabad city, was proceeding towards his shop on his scooter along with alumunium metal sheet on 01.12.1989, at that time, he was stopped by the accused persons, who, at the relevant point of time, were serving as constables with the Naroda Police Station. They asked the complainant to produce the receipt or bill of purchase of the aforesaid alumunium sheet, but, the complainant could not produce the same since he had purchased the aforesaid metal sheet from a hawker from village Chiloda. The accused persons, hence, told the complainant that since he(the complainant)has not produced the receipt or bill towards the purchase of the metal sheet, he will CR.A/77519/1993 4/34 JUDGMENT be prosecuted for keeping stolen property and if he wants to avoid such prosecution, then, he has to pay Rs.1,000/- to them. Since, the complainant did not have sufficient money with him on that day, he told the accused persons that he would pay Rs.1,000/- next day. The accused persons, hence, told the complainant that they will visit his(the complainant's)shop tomorrow i.e. on 02.12.1989 between 6:00 p.m. to 7:00 p.m. for collecting the aforesaid amount. Since P.W.-1 did not want to pay any bribe to the accused persons, he decided to approach A.C.B., Ahmedabad. 3.1 At A.C.B., Ahmedabad, I.O.-P.W.-3 registered the complaint of the complainant. Thereafter, P.W.-3 called for two panchas. On arrival of panchas, the complainant produced ten currency notes of Rs.100/-each, totaling to Rs.1000/-. Thereafter, all the necessary statutory procedures like noting down of the numbers of the currency notes, experiment with ultraviolet lamp and normal light etc., were done and a preliminary 'Panchnama' was drawn to the CR.A/77519/1993 5/34 JUDGMENT aforesaid effect. The panchas and the raiding party were, then, given necessary instructions by P.W.-3. Thereupon, the complainant, panchas and the raiding party left for the shop of the complainant. 3.2 On reaching near the shop of the complainant, everybody took their position. The complainant along with Panch No.1 i.e. P.W.-1, herein, went towards the shop of the complainant. They waited there for the accused persons and after about ten minutes two persons came there on a scooter. On seeing them, the complainant stood up and greeted them and told them to have a cup of tea. But, the accused persons told the complainant that they were in hurry and hence finish the transaction. The complainant, hence, took out the tainted currency notes and gave it to one of the appellants. After receiving the amount, the first accused gave it to the second accused and told him to count. While the second accused was counting the tainted currency notes, prearranged signal was given to the members of CR.A/77519/1993 6/34 JUDGMENT the raiding party and they rushed to the spot and the appellants were caught red-handed. In pursuance of that statutory procedures like tallying of numbers of the tainted currency notes with the numbers mentioned in the first part of Panchnama, experiment of normal light and ultraviolet lamp with anthracene powder etc., were done and the second part of the 'Panchnama' was completed. 3.3 On completion of investigation and after obtaining necessary sanction, charge-sheet was submitted against all the accused persons before the trial Court. The trial Court framed, read over and explained charges under Section 7, Section 13(1)(d)(i), Section 13(1)(d)(ii) and Section 13(1)(d)(iii) of the Prevention of Corruption Act and Section 34 of the I.P.C. to the accused persons. However, the accused persons did not plead guilty to the charges and claimed to be tried. 3.4 Thereafter, further statements of the CR.A/77519/1993 7/34 JUDGMENT accused persons under Section 313 of the Cr.P.C. were recorded after evidence of prosecution side was over. The accused persons denied all the charges leveled against them and submitted that they were falsely implicated in the offence by trapping them. The trial Court, hence, after hearing all the parties, acquitted two accused persons out of four accused persons from all the charges and convicted the appellant No.1, herein, and original accused No.2 as stated in Para-2 of the judgment. Hence, the present appeal. 4.0 Heard, Mr. Anandjiwala, learned Advocate for the appellants and Mr. Bhatt, learned APP on behalf of opponent-State. 5.0 In support of its case, the prosecution has examined following witnesses, 1. Kartik Chandrakant-P.W.-1(Exhibit-16) 2. Harjibhai B. Chawda-P.W.-2(Exhibit-20) 3. Jayeshkumar Hirabhai Solanki-P.W.-3(Exhibit- 34) CR.A/77519/1993 8/34 JUDGMENT 5.1 The prosecution has also placed reliance on several documentary evidence i.e., Charge Sheet (Exhibit-7), Muddamal List(Exhibit-13), Trap Panchnama(Exhibit-19), Seizure Memo(Exhibit- 17) etc.. 6.0 Original Panch No.1-Kartik Chandrakant- P.W.-1,herein, was examined at Exhibit-16. He deposed that on 02.12.1989, his superior officer called him and one Purnakant and told them to assist A.C.B. personnels in carrying out a trap. Then, they went to office of the A.C.B. situated in Shahibaug area of Ahmedabad. The I.O.-P.W.-3, herein, introduced him and Purnakant with the original complainant- Hemraj Surajmal Sharma. The complainant, thereafter, read over the complaint to them and then produced ten currency notes of Rs.100/- each totaling to Rs.1000/- which were to be used in the trap. The numbers of the said currency notes were noted down and then they were smeared with the anthracene powder. Thereafter, the said currency notes were produced under the CR.A/77519/1993 9/34 JUDGMENT ultraviolet lamp and under the normal light. When the aforesaid currency notes were seen under the normal light nothing significant appeared, but, when the same were seen under the ultraviolet lamp, the presence of anthracene powder was found on them. Then, P.W.-3 told the police constable to put the aforesaid currency notes in the shirt pocket of the complainant. The complainant was instructed not to touch the said currency notes until the demand is made. P.W.-1 further deposed that he was instructed to accompany the complainant and to witness the transaction that may take place between the complainant and the accused persons. Then, the first part of the Panchnama was drawn to the aforesaid effect. P.W.-1 identified his signature on the first part of the Panchnama. He further deposed that on reaching the shop of the complainant, they waited for the accused persons and after about ten minutes two persons came there on a scooter. The complainant told him that they were accused persons. They were not in uniform. On seeing them, the complaint stood up and greeted them and CR.A/77519/1993 10/34 JUDGMENT told them to have a cup of tea. But, the accused persons told the complainant that they were in hurry and hence finish the transaction. The complainant, therefore, took out the tainted currency notes from his left pocket of the shirt and handed that over to appellant No.1,herein. The appellant No.1, then, passed the said tainted currency notes to the other accused i.e. original accused No.2 and told him to count the same. While the original accused No.2 was counting the tainted currency notes, prearranged signal was given to the members of the raiding party and they rushed to the spot. He deposed that the person who had accepted the money from the complainant and the person who had counted the same, both are present in the Court. The original accused No.2, on seeing the members of the raiding party, dropped the tainted currency notes from his hand which were later on recovered from the floor of the shop. He then narrated the transaction which had taken place between the complainant and the accused persons to I.O.-P.W.- 3. Thereafter, the numbers of the currency notes CR.A/77519/1993 11/34 JUDGMENT which were recovered from the floor of the shop were tallied with the numbers already noted down in the first part of the Panchnama and they were found to be tallying. When the said currency notes were seen under the normal light nothing significant appeared, but, when the same were seen under the ultraviolet lamp, the presence of anthracene powder was found on them. When the similar experiment was carried out on the shirt pocket and hands of the complainant as well as on the hands of both the accused persons, the presence of anthracene powder was found on all of them. In pursuance of that seizure of muddamal and preparation of seizure memo etc. were done and the second part of the panchnama was completed. He further deposed that a detail Panchnama was made of all the procedures. He identified his signature on the said Panchnama. He also identified his signature on the paper in which the tainted currency notes were kept. 6.1 P.W.-1 in his cross-examination specifically stated that it is not true that CR.A/77519/1993 12/34 JUDGMENT while complainant was giving money to the first accused at that time second accused person gave a shove to the hand of the complainant on account of which the currency notes fell down on the ground. He further stated that he had seen the second accused person dropping the money, but, he could not see as to in which direction he(appellant No.2) dropped the money. 7.0 Jayeshkumar Hiralal Solanki-P.W.-3 was examined at Exhibit-22. He deposed that on 02.12.1989 while he was on duty, the complainant- Hemraj Surajmal Sharma came to his office and told him that he wanted to file a complaint against four police personnels of Naroda Police Station. He therefore registered the complaint of the complainant as narrated by him and obtained his signature thereon. After registering the complainant, he called for panchas and on arrival of panchas he introduced them with the complainant. The panchas were read over the complaint lodged by the complainant. In pursuance of that the complainant produced ten currency CR.A/77519/1993 13/34 JUDGMENT notes of Rs.100/- each totaling to Rs.1,000/- which were to be used in the trap. Then, the necessary statutory procedures like noting down of the numbers of the currency notes, experiment with ultraviolet lamp and normal light etc., were done and a preliminary 'Panchnama' was drawn to the aforesaid effect. He then gave instructions to the complainant not to touch the aforesaid currency notes until the demand is made and also instructed him(the complainant) to give signal by raising hands as if he is yawning, after giving money. He then instructed panch No.1-P.W.-1 to accompany the complainant and to witness the transaction between the complainant and the accused persons. He instructed Panch No.2 to remain with the members of the raiding party. Then they left for the shop of the complainant. They left their vehicles near Kubernagar, I.T.I. and instructed the complainant and P.W.-1 to go to the shop of the complainant. He deposed that he along with other members of the raiding party took place around the shop of the complainant. He could see the complainant and panch No.1 from the CR.A/77519/1993 14/34 JUDGMENT place where he was. After sometime, two persons came there on a scooter and had some talk with the complainant. Then, on receiving the signal from the complainant, he along with Panch No.2 rushed to the spot. He gave his introduction to the accused person and told them to remain where they were. Pursuant there to experiment of ultraviolet lamp was carried out on the hands of the both the accused persons and the presence of anthracene powder was found on them. He asked panch no.1 about the tainted currency notes and he was told that the same were dropped on the floor which were recovered from the floor of the shop. When the experiment of ultraviolet lamp was carried out on the said currency notes, the presence of anthracene powder was found on them also. Thereafter, the remaining statutory procedures were carried out in the presence of panchas and the second part of the panchnama was completed. He identified his signature made by him in the presence of panchas on the said panchnama. CR.A/77519/1993 15/34 JUDGMENT 7.1 From the cross-examination of this witness nothing came out which could help the case of the prosecution. 8.0 So far as the evidence of Harjibhai Bababhai Chavda, Executive Magistrate-P.W.-2, herein, is concerned that pertains to the identification of accused Nos. 3 and 4, who are already acquitted by the trial Court from all the offences, by the complainant, and hence, it would not be relevant to discuss the same. 9.0 In the light of the above evidence, now, it has to be examined as to whether trial Court has committed an error in convicting the appellants or not. 9.1 The case of the prosecution before the trial Court was that on 01.12.1989 while the original complainant-Hemraj Surjmal Sharma was proceeding towards his shop on his scooter along with alumunium sheet, some accused persons stopped him and demanded Rs.1000/- for not taking CR.A/77519/1993 16/34 JUDGMENT any legal actions against him since the complainant could not produce the bill or receipt towards the purchase of the alumunium sheet carried by him. Hence, the complainant lodged a complaint with the A.C.B., Ahmedabad. On the basis of the same, it was argued by the prosecution that the filing of the complaint with A.C.B., Ahmedabad by the complainant on 02.12.1989 proves that there was initial demand of bribe by the accused persons on 01.12.1989. However, Mr. Anandjiwala argued that since the original complainant was not examined by the prosecution, the trial Court has committed an error in holding that there was initial demand. 9.2 In view of the aforesaid argument advanced by Mr. Anandjiwala, here, it would be relevant to refer to a decision of the Hon'ble Apex Court in the case of “Kishan Chand Mangal Vs. State of Rajasthan” reported in AIR 1982 SC 1511 wherein at Para-11, the Hon'ble Apex Court observed as under, CR.A/77519/1993 17/34 JUDGMENT “11. It was next contended that once Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on Nov.20, 1974 and it is not open to the Court to spell out the demand from the contents of Ext.P-12. It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial. It is equally true that the F.I.R. lodged by him on Nov.22,1974, cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant. Such an F.I.R. would not be covered by any of the clauses of Ss.32 and 33 of the Evidence Act and would not be admissible as substantive evidence. The question still remains whether there is any evidence of demand of bribe on Nov.20,1974, in this case. A fact may be proved either by direct testimony or by circumstantial evidence. If the appellant did not visit the Factory of Rajendra Dutt on Nov.20,1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy.S.P., A.C.D. On Nov.22, 1974; his producing currency notes worth Rs.150/- and a superior officer like the Dy.S.P. A.C.D., making all arrangements for the trap and the raiding party going to the house of the accused on Nov.22,1974? The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted. Coupled with this, the fact that Keshar Mal, P.W.2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on entering the room asked the appellant, “Hallo, how do your do”. He further stated that the appellant replied, “I am sick and suffering from cold”. He deposed that thereafter the CR.A/77519/1993 18/34 JUDGMENT appellant asked, “have you brought the money?”, whereupon complainant Rajendra Dutt replied, “Yes, I have brought the money”, whereupon complainant Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by P.W.-2 Keshar Mal. But, Mr. Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation. Simultaneously it was pointed out that the other motbir Ram Babu is totally silent in his evidence about this conversation between the appellant and the complainant. Undoubtedly, the omission in the police statement of Keshar Mal and non-mentioning all these facts by the co-motbir would raise some doubt in the mind of the Court about this conversation but as pointed out earlier there are tell-tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant. Therefore, it is not proper to say that there is no evidence of the demand of bribe as on Nov.20, 1974.” 9.3 In the case on hand also, though, sternious efforts were made by the prosecution to secure the presence of original complainant, at CR.A/77519/1993 19/34 JUDGMENT the time of trial, the complainant could not be traced, and hence, the original complainant could not be examined before the trial Court. But, only on the ground that the original complainant did not enter into the witness box before the trial Court, it would not be proper to say that there was no initial demand. As against this, the subsequent events which took place on 02.12.1989 i.e. filing of the complaint with A.C.B. by the complaint, visit of the shop of the complainant by both the accused persons at the appointed time soon followed by the raiding party on acceptance of bribe money by the appellants, are clearly indicating that, in fact, there was initial demand. Hence, the aforesaid contention raised by Mr. Anandjiwala is rejected. 9.4 On demand of Rs.1000/- made by the accused persons on 01.12.1989, the complainant lodged a complaint with A.C.B., Ahmedabad as he did not want to pay any illegal gratification to the accused persons. The complaint filed by the complainant on 02.12.1989 and the carrying of CR.A/77519/1993 20/34 JUDGMENT statutory procedures and drawing of first part of Panchnama is proved by the evidence of P.W.-1 and P.W.-3. P.W.-3 deposed that on 02.12.1989, the complainant came to his office and told him that he wanted to lodge a complaint against four police personnels of the Naroda Police Station. P.W.-3, then, registered the complaint as narrated by the complainant. P.W.-1 also deposed that on 02.12.1989 when he reached office of the A.C.B. along with Panch No.2, they were introduced with the complainant and the complainant, then, read over the complaint to them. Pursuant thereto, the complainant produced ten currency notes of Rs.100/- each totaling to Rs.1000/-. The numbers of the said currency notes were noted down and the experiment of ultraviolet lamp and the normal light was carried out on the said currency notes. On completion of all the necessary statutory procedures, the first part of panchnama was completed. Then, the complainant, panchas and the members of the raiding party left for the shop of the complainant. On reaching there, P.W.-1 CR.A/77519/1993 21/34 JUDGMENT accompanied the complainant to his shop. There, they waited for the accused persons and after about ten minutes, two persons came there on a scooter. On seeing them, the complainant stood up and greeted them and told them to have a cup of tea. But, those persons(i.e. Accused Nos.1 & 2) told the complainant the they were in hurry and hence finish the transaction. The complainant, therefore, took out the tainted currency notes from his shirt pocket and gave it to the accused No.1, the accused No.1 accepted it and in turn gave it to accused No.2 to count the same. The accused No.2 was watchfully counting the aforesaid currency notes at that time he saw the members of the raiding party rushing towards the shop on receiving the signal from the complainant, and hence, he dropped the currency notes from his hands. Then, the accused persons were caught, the currency notes were recovered and the experiment of ultraviolet lamp was carried out on the aforesaid currency notes, on the hands and shirt pocket of the complainant and on the hands of the accused persons and the CR.A/77519/1993 22/34 JUDGMENT presence of anthracene powder was found on all of them. 9.5 At this stage, it was argued by Mr. Anandjiwala that the alleged transaction took place outside the shop of the complainant whereas P.W.-1 was sitting in the shop, and hence, his evidence cannot be believed qua the 'demand' and 'acceptance' of bribe by the accused persons. In support of his case Mr. Anandjiwala has placed reliance on a decision of the Hon'ble Apex Court in the case of “Suraj Mal Vs. the State of Delhi” reported in AIR 1979 SC 1408 wherein the Hon'ble Apex Court observed that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Mr. Anandjiwala has also placed reliance on another decision of the Hon'ble Apex Court in the case “Subhash Parbat Sonavane Vs. State of Gujarat” reported in 2002 Cr.L.J. 2787 and several other decisions of the High Court of CR.A/77519/1993 23/34 JUDGMENT Gujarat in the case of (1)”Ajitkumar Somnath Pandya Vs. State of Gujarat” reported in 1993(1)GLR 753, (2) “Gopal Lal Ghisulal Chhipa & Ors. Vs. The State of Gujarat” reported in 1998(1)GLH 943, (3) “Kanubhai Kantibhai Patel VS. The State of Gujarat” 1998(1) GLH 924 wherein similar principle was