CR.A/611/1991 1/91 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 611 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 ? ========================================= NARENDRA C BHATT - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellant(s) : 1, MR AJ DESAI, LD.APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 07/08/2007 CAV JUDGMENT 1. The appellant-orig.convict (hereinafter referred to as 'the appellant') has preferred this appeal under Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, challenging the judgment and order of CR.A/611/1991 2/91 JUDGMENT conviction and sentence dated 31st July 1991, passed by the learned Special Judge, City Sessions Court, Ahmedabad City, in Special Case No.12 of 1989, whereby the learned trial Judge has held the appellant guilty of the charge of offences under Sections 7 and 13(1)(d)(ii) of the Prevention of Corruption Act. 2. The legality and validity of the judgment and order of conviction and sentence has been challenged on various grounds as mentioned in paragraph no.7 of the memo of the appeal. Shri A.D. Shah, learned counsel appearing for the appellant and Shri A.J. Desai, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, have taken this Court through the judgment and order of conviction and sentence under challenge and so also the basic facts which were placed by the prosecution before the learned trial Judge. At the conclusion of the trial, it has been held that the appellant has committed the said offences on 22nd September 1988 as a public servant in discharge of his duty as Inspector CR.A/611/1991 3/91 JUDGMENT of Food and Civil Supply Department, Zonal Office, Rakhial, Ahmedabad. Ex.2 is the charge framed by the learned trial Judge against the appellant. It would be beneficial to narrate the gist of the said charge framed by the learned trial Judge because it also reflects salient basic features of the story of the case of prosecution, which is as under : (i) You, the accused, were discharging your duties as Supply Inspector in the Rakhial Zonal Office, Food and Civil Supply Authority in the month of September, 1988 and thereby, you were a public servant. (ii) On 20th September 1988, you were In- charge Zonal Officer in the Rakhial Zonal Office of the Food and Civil Supply Department. The complainant of this case had made an application to you for obtaining permission and you had told him to come on the next day; and when the complainant met you even CR.A/611/1991 4/91 JUDGMENT on the next day, you had told him to come on the next day, and the complainant had met Shri Solanki, Zonal Officer of the Zonal Office and the said Shri Solanki had instructed you on telephone that as the Government godown would be closed for a period of eight days, if any businessmen come for obtaining permit, then he should be given permit and his application should not be rejected. On that day i.e. on 21st September 1988 at about 01-45 p.m., this complainant had also asked you, the accused, to give him permit. At that time, you had told him that today I am giving you permit but you don't understand the custom. You will have to give the amount of Rs.200/- per month and if the same is not given, you will not be given permit in future, and by checking your shop occasionally, the stock will be checked and if a minor mistake will be there, then a report will be made to CR.A/611/1991 5/91 JUDGMENT the Director of Food and Civil Supply for cancellation of your licence. Therefore, the complainant had agreed to give you the said amount per month. Therefore, when you had asked to pay the said amount today only, the complainant had said that as the amount at present lying with him is to be deposited in the Bank, no arrangement can be done. Hence, you had told him to pay you the said amount on the next day between 01-00 p.m. and 03-00 p.m. (iii) That on 22th September 1988, when the complainant met you in your office in the noon, you had called him outside your room in the balcony and after calling him in the balcony, when you had demanded the aforesaid amount, the complainant had given the said amount of Rs.200/- which was accepted by you. (iv) Thus, by doing so, you the accused CR.A/611/1991 6/91 JUDGMENT have committed offence under Section 7 of the Prevention of Corruption Act, 1988 by taking illegal gratification being the Government employee from the complainant with a view to give him permit. (v) Further, on the aforesaid date, time and place, you the accused have committed offence under Section 13(1) (d)(ii) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 by demanding the amount towards illegal gratification from the complainant as stated aforesaid and by misusing your post as the Government employee/ public servant, and by obtaining the aforesaid amount illegally and corruptly. 3. Shri A.D. Shah, learned counsel appearing for the appellant, has taken me through the versions of three main prosecution witnesses examined by the prosecution, whose versions CR.A/611/1991 7/91 JUDGMENT have been found reliable by the learned trial Judge i.e. PW-1-complainant, Ex.6; PW-2 Panch Witness Ex.24; and PW-4-Vinod Vyas, Investigating Officer and Police Inspector of Anti-Corruption Bureau (hereinafter referred to as 'the ACB'), Ex.35. Of course the learned trial Judge has also discussed the version of PW-3-Mayur A. Shah Ex.29. According to Shri A.D. Shah, the learned trial Judge has not considered the very important aspects and other facts relevant to such aspects at all which have come on record during the course of cross- examination of all the aforesaid four prosecution witnesses. The material contradictions have not been considered either important or relevant to the probabilities placed by the defence. In the same way, the conflict in the evidence of the complainant and the panch no.1 and the infirmities in the evidence to prove demand in a bribery case also have not been considered in its true and legal perspective. According to Shri A.D. Shah, the finding of guilt recorded by the learned trial Judge is based on erroneous and illegal CR.A/611/1991 8/91 JUDGMENT appreciation of evidence and, therefore, the judgment and order of conviction and sentence is not sustainable in the eye of law. While developing his arguments Shri Shah has also read over to the Court, the complaint Ex.8 and one other vital document i.e. panchnama Ex.25. In the present case, the appellant has examined one witness Mohamadbhai Kasambhai Mansuri as defence witness vide Ex.39 and he has proved and tendered one document in evidence at Ex.40 and according to Shri Shah, this document along with signatures on the document dated 16th June 1988 is important from various angles because the appellant is supposed to show the probability of his innocence. The material conflict in the evidence of the complainant and panch witness needs consideration because the prosecution, in a bribery case, is supposed to lead full proof evidence and our Courts have always expected the most transparent evidence in a bribery case. The prosecution was supposed to prove beyond reasonable doubt the initial demand of illegal gratification made by the appellant as the same has been pleaded CR.A/611/1991 9/91 JUDGMENT specifically with cogent and reliable evidence and so also the demand, if any made immediately prior to the acceptance of the bribe amount from the complainant. If it is the case of the prosecution that prior to or during acceptance of the bribe amount, the appellant has conversed with the complainant in any manner in presence of shadow witness i.e. panch no.1, the prosecution should bring such evidence and if the evidence of this part of story of the prosecution is found hazy or doubtful then the case as to the demand of illegal gratification should not be believed, is the trend of various decisions of this Court as well as the Apex Court. The prosecution is also supposed to prove the acceptance of the bribe amount and it also should prove that the amount tendered by the complainant to the appellant has been witnessed by the panch no.1, if pleaded specifically. The bribe amount was given against the demand or any consequences thereof; and the same was accepted as illegal gratification. It is settled legal position that mere acceptance of amount or mere recovery CR.A/611/1991 10/91 JUDGMENT of the muddamal amount from the appellant is not sufficient to link the appellant with the crime. 4. Of course, Shri A.D. Shah, learned counsel appearing for the appellant, has pressed into service one more point and has argued initially that the investigation by Police Inspector on 02nd September 1988 was illegal as the Police Inspector came to be authorized to investigate such cases under Section 7 of the Prevention of Corruption Act vide notification dated 10th January 1989. But in response to the query raised by the Court and as per the law that has taken shape in this regard, he has not pressed this point of his argument. However, it is submitted that the case of the prosecution is based on very weak and stray pieces of evidence. None of the parts of the evidence individually or all these various pieces of evidence collectively, are sufficient to link appellant with the crime. While reading the evidence of complainant PW-1 Ex.6, Shri A.D. Shah has drawn attention of the Court to CR.A/611/1991 11/91 JUDGMENT certain parts of oral evidence and it is submitted that the version of this witness is highly unnatural and unreliable, especially in the background of the documentary evidence available on record and so also the version of Shri Mayur Shah PW-3 Ex.29. The say of the prosecution is that the appellant being the Inspector of Food and Civil Supply Department, had neither given nor he was in a mood to give necessary permit for 30 bags of wheat and 10 bags of rice, unless his hands were greased, and under the pretend that in future also, the complainant may not have to suffer through proceedings that can be initiated against him by the Civil Supply Department, he should pay an amount of Rs.200/- per month to the appellant. The document Ex.31 dated 19th September 1989 is the document which proves that the permit for 30 bags of wheat and 10 bags of rice was already issued by the appellant on that very day. So the question of saying 'NO' to the complainant against his request to permit on 19th September 1988, ought not to have been believed by the learned trial CR.A/611/1991 12/91 JUDGMENT Judge. In the same way, on 21st September 1988, the complainant had requested to give permit for 30 bags of wheat and 10 bags of rice vide application Ex.32. The complainant had also requested to grant permit for three tins of pamolin oil and necessary orders were passed on 21st September 1988. Though it was not possible for the appellant to issue permit if the quota system is strictly adhered to, the request of the complainant was accepted and he was given transfer of quota from the quota allocated to other distributors for want of demand and necessary permit was granted. Therefore, when the permit as to the wheat and rice bags was ordered along with the transfer release of three pamolin oil tins on 21st September 1988, there was no scope for the appellant to say no to the complainant so far as his demand to issue permit is concerned. When the documentary evidence was sufficient to destroy the backbone of the story of the prosecution and when there is nothing on record to show that certain documents were found missing by the Investigating Officer, and they could not have CR.A/611/1991 13/91 JUDGMENT been procured and produced before the Court by the Investigating Officer, the learned trial Judge ought not to have accepted the oral evidence of the complainant that on 20th September 1988 any demand of bribe amount was made. As such there was no application on 20th September 1988 for permit in respect of wheat and rice, there was no reason for the appellant to refuse to issue permit against the demand made on 20th September 1988. Unless the prosecution proves that a specific application was made on 20th September 1988 and it was kept pending by the appellant and the complainant was asked to come down on the next day, the story of demand of illegal gratification ought not to have been accepted by the learned trial Judge. It is not the case of the prosecution that any bribe amount was demanded by the appellant on 19th September 1988. So a person who had approached the office of the appellant for necessary permit on 19th September 1988 and was granted the same on that very day without demanding any illegal gratification or monthly instalments, why the complainant should be CR.A/611/1991 14/91 JUDGMENT believed qua the story which he has placed before the Court as to the demand of amount of bribe on 20th or 21st September 1988. 5. It is the say of the complainant that as the appellant had said 'NO' against the demand to grant permit qua 30 bags of wheat and 10 bags of rice, the complainant had approached Shri C.V. Solanki, Zonal Officer at his residence. It is the case of the prosecution that the appellant being the Supply Inspector was holding the charge of Zonal Office as the said Shri C.V. Solanki was on leave. It is the say of the prosecution that because of the recommendation made by the said Shri C.V. Solanki, the appellant was compelled to issue permit. It is deposed by the complainant that Shri C.V. Solanki had telephonic conversation with the appellant and he had instructed and informed the appellant that the Government go- down was to remain closed for some days and, therefore, necessary permits should be issued promptly so as to avoid any inconvenience. This version of the complainant is contrary to the CR.A/611/1991 15/91 JUDGMENT documentary evidence Ex.32, which clearly reflects the release of wheat and rice bags along with three pamolin oil tins. Shri C.V. Solanki has not been examined by the prosecution. So on the aspect of so-called demand the evidence of the complainant is silent. When the document shows that on 21st September 1988, the application for permit was made i.e. after 19th September 1988, what had transpired between the appellant and the complainant on 21st September 1988? If the demand of bribe amount was made on 20th September 1988, then some conversation must have taken place on 21st September 1988 because according to the prosecution, the demand was for Rs.200/- and the said amount was to be paid per month. In the deposition before the Court, the complainant has not referred to that he was asked by the appellant to pay the amount of Rs.200/- per month. The evidence only refers to the appellant conveying that the complainant should understand the things and practice; and the complainant was threatened that his failure to pay the amount may result into cancellation CR.A/611/1991 16/91 JUDGMENT of licence and the complainant would have to close his shop. According to Shri A.D. Shah, learned counsel appearing for the appellant, the complainant had committed a number of lapses in running the said shop and therefore, his shop was raided and inspected by the officers of the Civil Supply Department. The appellant was an active participant in the inspection which was carried out by the Department in past and the complainant was facing certain proceedings before the Collectorate and thereafter the State Government. The conduct of the complainant, according to Shri A.D. Shah, is reflected from the document Exs.11 to 17. One document Ex.19 dated 22nd September 1988, states that the complainant was fined with an amount of Rs.250/- by the Food and Civil Supply Controller for the lapses which were found during the inspection carried out by the Department earlier. The complainant was served with the notice in the month of January 1988 and those proceedings had protracted upto 03rd August 1988. The complainant had admitted his CR.A/611/1991 17/91 JUDGMENT mistakes and the allegation as to certain irregularities noticed during inspection and, therefore, he was fined. Coincidently, the date of trap is also 22nd September 1988. Considering the background and mainly the document Exs.31 to 34, the conduct of the appellant improbablizes the theory of demand of illegal gratification and the complainant, therefore, ought not to have been believed qua the initial demand. It is not the case of the prosecution that when the demand was made initially or the so-called threat was given to the complainant, anybody else than the complainant was present; so the Court was supposed to evaluate the evidence of the complainant closely qua the initial demand. It is true that there is no need to lead any corroborative piece of evidence and the complainant can be believed if his version sounds truth. But when the documentary evidence cuts the basic theory as to the demand of bribe amount either on 20th September 1988 or 21st September 1988 and it is a question as to whether the version of a person who is having CR.A/611/1991 18/91 JUDGMENT some questionable background can be believed or not, then it was not safe for the learned trial Judge to believe that part of evidence of the complainant that on a given date i.e. on 20th September 1988, the appellant had demanded the amount of Rs.200/- and the complainant was asked to pay this amount per month. The consistency in the evidence of the prosecution is qua the amount only that the amount of Rs.200/- was demanded by the appellant, otherwise the rest of the parts of the story of prosecution, is surrounded by number of improbabilities and inconsistencies. 6. When it has come on record that one Nandkishor is the close relative of the complainant and he had purchased scooter from the appellant and the consideration was to be paid by Nandkishor to the appellant in instalments after paying the first basic amount and till the date of the trap, the entire amount of consideration towards the said scooter was not paid by the said Nandkishor. Of course, two documents have not been exhibited i.e. writing executed CR.A/611/1991 19/91 JUDGMENT initially for transfer of scooter and one marriage invitation card where the names of Nandkishor and the complainant are reflected as persons hosting marriage ceremony. This marriage invitation card shows that the marriage was arranged in the month of December and if really the relations were estranged and the appellant was harassing the complainant or the family of the complainant, then after the date of complaint and the trap, the appellant would not have received invitation card of the marriage in the family of the complainant and Nandkishor. These documents were shown to the complainant during the course of cross- examination. According to Shri A.D. Shah, learned counsel appearing for the appellant, the prosecution ought to have examined the said Nandkishor as witness considering the suggestions made to the complainant and the documents produced while recording evidence. In reality, the work of the complainant whereby he had prayed for permit was over but under apprehension of cancellation of licence on account of the search carried out by the CR.A/611/1991 20/91 JUDGMENT raiding party where the complainant was present, the complainant perhaps had developed inimical feelings. It is very likely that the work of the complainant on the relevant days may have been carried out by the appellant on recommendation of Shri Solanki who was on leave but this probability by itself cannot be considered as circumstantial evidence against the appellant to presume that he had agreed to do work of issuing permit on asking monthly instalment of Rs.200/-. When the case of prosecution, in the FIR, is that the amount of Rs.200/- was to be paid as the first instalment, neither the complainant nor panch has proved this case. Plain reading of the evidence creates an impression that the amount of Rs.200/- was demanded for a particular work and on a particular day i.e. 21st September 1989, and that too after intervention of Shri Solanki. As in those days it was not so easy or possible to get the print out from the Telephone Exchange for any local call, if dialed from a given number to a particular number. But according to Shri A.D. Shah, the CR.A/611/1991 21/91 JUDGMENT prosecution could have examined Shri Solanki to prove that the complainant had approached him making grievance against the approach of the appellant and after considering the grievance or complaint, Shri Solanki had telephoned the appellant who was in charge of office of Shri Solanki to issue permit because Shri Solanki was aware that the Government godowns were to remain close for some days and non-issuance of permit may create inconvenience to the licensee traders and in turn, public at large i.e. potential purchasers-card holders. For want of evidence of Shri Solanki, the learned trial Judge ought to have considered the variation found in the evidence of the complainant and the direct conflict between his oral version and the documents produced by the prosecution itself because they show different dates and different kinds of endorsements made while granting permit to the complainant. 7. Shri A.D.Shah, learned counsel appearing for the appellant, has drawn the attention of the Court to one material contradiction which was CR.A/611/1991 22/91 JUDGMENT pointed out to panch no.1, where this panch no.1-Ramniklal in his deposition Ex.24 has admitted that he has stated in his police statement of 22nd September 1988 (i.e. statement recorded immediately after the trap) that thereafter the appellant had told to sit for sometime and asked the complainant as to what has been done. The complainant in turn told, “Sir, everything is done/over, come out.” According to this witness, the complainant had requested the appellant to come out of his office saying that everything is over. Thereafter, the appellant had dialed one telephone number. This witness has also stated that after entering into the office of appellant about 10 to 12 minutes must have passed and thereafter, the appellant was raided. This witness has claimed that he had also come out of the office room of the appellant to the corridor along with the complainant and the appellant, and this witness claims that he was at a distance of about five feet from the appellant when the agreed signal was given by the complainant. When Police CR.A/611/1991 23/91 JUDGMENT Inspector Shri Vyas reached to the appellant, at that time the appellant was in the room where the clerks were sitting, and the ultraviolet lamp examination was carried out in that very room, meaning thereby, the staff room only. At that time, three to four persons were there who were staff members and they were also asked not to move from their respective seats. 8. According to Shri A.D. Shah, the version of this witness i.e. panch no.1 in paragraph no.8 of his deposition is inconsistent to the story told by this very witness in the examination- in-chief. In examination-in-chief this panch no.1 has said that when he and the complainant entered into the office of the appellant, the appellant was talking on telephone and when the complainant had told that they had come, the appellant had asked them to sit. At that time, the appellant had asked as to who the