CR.A/76/1996 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 76 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 ? ========================================================= ROSHANLAL SHRIRAM SHARMA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR BM GUPTA with MR SANJAY GUPTA for Appellant(s) : 1, MR LR PUJARI PUBLIC PROSECUTOR for Opponent(s) : 1, MR YN RAVANI for Opponent(s) :2. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 11/02/2008 ORAL JUDGMENT 1.0 By way of this appeal, the appellant has challenged the judgment and order of the learned Special Judge, Court No.4, Ahmedabad dated 29th CR.A/76/1996 2/20 JUDGMENT December, 1995 passed in Special Case No.23 of 1992 whereby the trial Court convicted the appellant, herein, for the offence punishable under Section 7 of the Prevention of Corruption Act and was sentenced to undergo Simple Imprisonment for a period of six months and to pay fine of Rs.200/- and in case of default to undergo further simple imprisonment for a period of two months. The appellant was also convicted for the offence punishable under Section 13(1)(d) (ii) read with Section 13(2)of aforesaid Act and was sentenced to undergo Simple Imprisonment for a period of one year and to pay fine of Rs.200/- and in case of default to undergo further imprisonment for a period of two months. 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 appellant was working as Fitter Chargeman at the Loco Shed Office, Western Railway, Anand and the complainant-P.W.-1, herein, was working as CR.A/76/1996 3/20 JUDGMENT 'Cleaner' under him. It is alleged that since the appellant had authority to change the duties of the employees working under him, he(the appellant) told P.W.-1 to pay Rs.50/- per month for continuing P.W.-1's posting as Train Notice Clerk(for short 'T.N.C.'). 2.1 Since P.W.-1 did not want to pay bribe to the appellant, he registered a complaint with A.C.B., Nadiad on 20.04.1992. After registering the complaint of P.W.-1, the police inspector called for two panchas. Thereupon, the police inspector produced currency notes of Rs.50/- arranged from S.S. Fund, since the complainant did not have sufficient money for arranging the trap. On arrival of panchas, necessary statutory procedures i.e., experiment under ultraviolet lamp and normal light were conducted on the 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. Thereafter, CR.A/76/1996 4/20 JUDGMENT P.W.-1, panchas and the raiding party left for the office of the appellant. 2.2 On reaching there, P.W.-1 along with P.W.-2 went to the office of the appellant. After entering into the room, they saw that the appellant was sitting. P.W.-1 told the appellant that he had brought the money for the current month and requested the appellant to continue him(P.W.-1) on the post of T.N.C.. The appellant nodded his head in affirmation and accepted the said amount with his left hand and put it in the left-hand side pocket of his shirt. P.W.-1 then came out of the room and gave signal to the raiding party as per the arrangement. Thereupon, the members of the raiding party rushed into the office of the appellant. Then, the tainted currency notes were recovered from the shirt pocket of the appellant and experiment of normal light and ultraviolet light with anthracene powder etc. were done and second part of the 'Panchnama' was completed. CR.A/76/1996 5/20 JUDGMENT 2.3 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)(ii) read with Section 13(2)of the Prevention of Corruption Act to the appellant. However, the appellant did not plead guilty to the charges and claimed to be tried. 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. Learned Advocate for the appellant has submitted that the trial Court ought not to have taken the cognizance of the offence against the appellant since sanction to prosecute the appellant was not obtained from the competent Authority. 3.1 Learned Advocate for the appellant has further submitted that the trial Court ought not to have held that the prosecution has CR.A/76/1996 6/20 JUDGMENT successfully proved that the appellant on 20.04.1992 had accepted an amount of Rs.50/- from P.W.-1, abusing his position as a public servant, as illegal gratification, since there was no verbal demand of bribe by the appellant. 3.2 Learned Advocate for the appellant has submitted that the trial Court ought to have held that the prosecution has failed to establish that the appellant had demanded and accepted the amount in question as a motive or reward for doing some favour to P.W.-1, in the exercise of his official duty. 3.3 Learned Advocate for the appellant has lastly submitted that taking into consideration the long time i.e. of about 16 years which has elapsed from the date of incident till the disposal of the appeal as well as the mental, physical and financial agony undergone by the appellant during the aforesaid period, a lenient view should be taken in regard to the sentences of the appellant. CR.A/76/1996 7/20 JUDGMENT 4.0 On the other hand, Mr. Pujari, learned APP for respondent No.1 and Mr. Ravani, learned Counsel for respondent No.2 have supported the case of the prosecution and have stated that after taking into consideration all the facts and circumstances of the case and the documents placed on record i.e. Complaint (Exhibit-40), Panchnama(Exhibit-37) and Muddamal Receipt (Exhibit-36) etc., the trial Court has passed the order of conviction, and hence, no interference is called for by this Court. 5.0 The case of the prosecution before the trial Court was that the appellant, herein, on 20.04.1992 had demanded and accepted an amount of Rs.50/- as illegal gratification from P.W.-1, for continuing him on the post of T.N.C.. The prosecution, in support of its case, has examined four witnesses i.e. Shri. Ramchandra Khusalbhai Solanki-original complainant-P.W.-1, Shri. Kantilal Shankarlal Bahurupi-P.W.-2, Shri. Jayantilal A. Patel-P.W.-3 and Shri. Dhananjay CR.A/76/1996 8/20 JUDGMENT Avinash Chaudhary-P.W.-4. The prosecution has also placed reliance on certain documentary evidence i.e., the Complaint (Exhibit-40), Panchnama(Exhibit-37) and Muddamal Receipt (Exhibit-36). In above view of the matter, here, it would be relevant to refer to deposition of the complainant-P.W.-1. 5.1 P.W.-1 in his deposition has stated that he had joined the service as a 'Cleaner' in the year 1979 and he was working under the appellant who was working as Fitter Chargeman. He has further stated that since he was the senior-most amongst the other cleaners, he was entitled to continue as T.N.C.. But, since the appellant had authority to change the duty of the employees under him he told P.W.-1 to pay Rs.50/- to him (the appellant)if P.W.-1 desired to be continued on his posting as T.N.C.. However, P.W.-1 did not want to pay bribe to the appellant, and hence, he decided to register a complaint with A.C.B., Nadiad. CR.A/76/1996 9/20 JUDGMENT 5.2 P.W.-1 has stated that on reaching Office of the A.C.B. at Nadiad on 20.04.1992, his complaint was recorded. Investigating Officer- P.W.-3,then, called for the panchas and on arrival of the panchas they were introduced to P.W.-1. In pursuance of that P.W.-1 narrated the facts of the complaint in brief and the complaint given by P.W.-1 was read over to panchas and then they signed it. Since, P.W.-1 did not have the amount of Rs.50/- for arranging the trap, P.W.-3 arranged for the amount of Rs.50/- consisting of two currency notes of Rs.20/- each and one currency note of Rs.10/ from S.S. Fund. The numbers of the aforesaid currency notes were noted down in the first part of 'Panchnama'. Thereupon, the said currency notes were given to one Mr. Powar, Police Constable for carrying out experiment under ultra violet lamp and under ordinary light after smearing the currency notes with anthracene powder. Thereafter, Mr. Powar, placed the currency notes in the pocket of P.W.-1 and necessary instructions were also given. On completion of all the necessary statutory CR.A/76/1996 10/20 JUDGMENT procedures i.e., experiment of ultraviolet light and normal light with anthracene powder, drawing of preliminary 'Panchnana' etc., P.W.-1, panchas and the members of the raiding party left for the office of the appellant at Anand. 5.3 On reaching Anand, as per the arrangement, everybody took their position. P.W.- 1 along with P.W.-2 went towards T.N.C. room. When they reached near the office, they saw the appellant was sitting. P.W.-1 told P.W.-2 that the person sitting there was his boss Mr. Roshanlal Sharma i.e. the appellant, herein. P.W.-1 then told the appellant that he had brought the amount of Rs.50/- for the current month and requested the appellant to continue him on the post of T.N.C.. He, then, took out the tainted currency notes from his pocket to give it to the appellant. To that the appellant nodded his head in affirmation and accepted the bribe amount with his left hand and put it into his left-hand side shirt pocket. In pursuance of that, as per the arrangement, P.W.-1 gave signal CR.A/76/1996 11/20 JUDGMENT to the raiding party and the members of the raiding party immediately rushed to the spot. 5.4 P.W.-1 has stated that on reaching the spot, the Investigating Officer-P.W.-3 gave his introduction to the appellant and, then, P.W.-2 narrated the transaction which had taken place between P.W.-1 and the appellant and the same was recorded in 'Panchnama'. Thereupon, on instructions of P.W.-3, Panch No. 2 took out tainted currency notes from the left hand side shirt pocket of the appellant. The numbers of the said currency notes recovered from the shirt pocket of the appellant were, then, tallied with the numbers already noted down in the preliminary Panchnama and they were found to be matching. Thereafter, the hands of the raiding party were exposed to the normal light as well as to the ultra violet light, but, nothing significant appeared. Thereupon, the hands of P.W.-1 and the appellant were exposed to the normal light as well as to the ultra violet light. When the hands of P.W.-1 and the appellant were exposed to the CR.A/76/1996 12/20 JUDGMENT normal light nothing significant appeared, but, when their hands were exposed to the ultra violet light, dots of white-blue colour appeared on their hands. When the similar experiment was carried out on the currency notes recovered from the shirt pocket of the appellant as well as on the shirt put on by P.W.-1 and on the shirt put on by the appellant, the same result was found i.e., the presence of anthracene powder was found on them. Then, the 'Muddamal' which was recovered, including the shirt put on by the appellant, were attached and a Panchnama to the aforesaid effect was prepared. 5.5 The version of offence given by P.W.-1 that the appellant demanded and accepted an amount of Rs.50/- from him (P.W.-1) for continuing him on the post of T.N.C. is also supported by the evidence of one Kantilal Shankarlal Bahurupi–Original Panch No.1-P.W.-2, herein, as well as one Jayantilal Ichhubhai Patel, Investigating Officer, P.W.-3. P.W.-2 and P.W.-3 have strongly supported the case of CR.A/76/1996 13/20 JUDGMENT prosecution of demand and acceptance of bribe by the appellant from P.W.-1. The conduct of the appellant of nodding his head in affirmation on being told by P.W.-1 that he(P.W.-1) had brought the amount of Rs.50/- for the current month and hence to continue him on the post of T.N.C. and the further conduct of the appellant of stretching out his hand to accept the amount of Rs.50/- from P.W.-1 and after taking the same to put it in his shirt pocket in the presence of P.W.-2, strongly support the case of the prosecution that the appellant had demanded and accepted bribe from P.W.-1 for continuing him on the post of T.N.C.. Even, otherwise, in view of the absence of any satisfactory explanation on the part of the appellant as to how he came into possession of tainted currency notes to rebut the case put forward by the prosecution, strongly suggests that the appellant pressurized P.W.-1 to make him(P.W.-1)pay bribe money. The evidence of P.W.-3 and P.W.2-who is an independent witness, are natural and trustworthy, and hence, the trial Court has rightly relied on the same. CR.A/76/1996 14/20 JUDGMENT 6.0 Apart from that the case of the prosecution is also supported by the documentary evidence i.e. Complaint (Exhibit-40), Panchnama(Exhibit-37) and Muddamal Receipt (Exhibit-36. From the above said documentary evidence, the ingredients of bribe i.e. the demand, offer and acceptance are proved beyond doubt by the prosecution. 7.0 Since the evidence discussed hereinabove are found to be sufficient in deciding the Appeal, I am not discussing the depositions of other witnesses, as they are not of much relevance. 8.0 So far as the contention with regard to the 'Sanction' raised by the learned Advocate for the appellant is concerned, it is required to be noted that the offence in question took place on 20.04.1992 whereas the appellant had already retired from the service, before the cognizance of the offence was taken by the trial Court, and CR.A/76/1996 15/20 JUDGMENT hence, since the appellant had ceased to be a Government Employee, the Authority was not required to take any sanction as provided under Section 19 of the Act. Hence, the said contention is rejected. 8.1 So far as the contention raised by the learned Advocate for the appellant that the trial Court ought not to have held the appellant guilty since there was no verbal 'demand' of bribe money by the appellant is concerned, in the case on hand it is not in dispute that from the evidence of P.W.1 and P.W.-2 it does not transpire that the appellant had verbally demanded the bribe. However, at the same time if the evidence of P.W.-1 and P.W.-2 are taken into consideration together as a whole it becomes clear that on 20.04.1992 when P.W.-1 and P.W.-2 entered into the office of the appellant and P.W.-1 told the appellant that he had brought the amount of Rs.50/- as per demand and requested the appellant to continue him on the post of T.N.C., the appellant nodded his head in affirmation to the CR.A/76/1996 16/20 JUDGMENT same and then accepted the amount of Rs.50/- offered by P.W.-1 with his left hand and put it in his left side shirt pocket. Even, the subsequent recovery of the bribe money from the left side shirt pocket of the appellant and discovery of presence of anthracene powder on the hand and shirt pocket of the appellant as well as absence of any satisfactory explanation on the part of the appellant as to how he (the appellant) came into possession of the amount of Rs.50/- with the presence of anthracene powder on the same, clearly suggests that the appellant had, in fact, demanded and accepted bribe money, though not verbally, but, through gesture or sign. Therefore, the said contention is also rejected. 8.2 So far as the contention raised by the learned Advocate for the appellant that the prosecution has failed to establish the motive for demanding and accepting the bribe by the appellant is concerned, it would be relevant to refer to a decision of the Hon'ble Apex Court in CR.A/76/1996 17/20 JUDGMENT the case of “State of Andhra Pradesh Vs. R. Jeevaratnam” reported in 2005 AIR SCW 3132. In that case, accused demanded bribe for clearing file of tender of complainant and repeatedly made demands. The complainant, therefore, called the accused in a hotel to give the amount of bribe. When the accused entered into the hotel room, he inquired whether the complainant has brought the amount or not. The complainant offered the money and the same were accepted by the accused. On receipt of the amount, the accused gave assurance that the file of the complainant would be cleared. At that time, the accused was caught red-handed. The Hon'ble Apex Court held that the assurance given by the accused, on receipt of the money, to the complainant that the file of tender shall be cleared, clearly establishes that the amount received by the accused was bribe. 8.2.1 In the case on hand, from the record it transpires that the appellant had authority to change the duties of employees working under him and since P.W.-1 was working under the appellant CR.A/76/1996 18/20 JUDGMENT as 'Cleaner', he(the appellant)had demanded an amount of Rs.50/- from P.W.-1 for continuing him on the post of T.N.C.. P.W.-1, in his deposition, has stated that there was difference of about Rs.100/- in the grade of 'Cleaner' and 'Train Notice Clerk' and apart from that the job of cleaner involved physical work whereas the work of a 'Train Notice Clerk' was of table work type. Therefore, it is apparent that P.W.-1 was interested in continuing his posting as T.N.C. and by taking advantage of the aforesaid situation, the appellant had demanded and accepted an amount of Rs.50/- from P.W.-1, in the presence of P.W.-2, which was not his(the appellant's) legal remuneration for continuing P.W.-1 on the post of T.N.C.. Hence, the said contention is rejected. 8.3 So far as the contention raised by the learned Advocate for the appellant to take lenient view in regard to the sentences of the appellant is concerned, the law on the point is settled. In a given case, the Court can reduce CR.A/76/1996 19/20 JUDGMENT the quantum of sentence or may even refuse to draw an inference of acceptance of bribe by exercising discretionary powers, if it comes to the conclusion that the amount in question was so meagre that no inference of corruption can fairly be drawn. In the case on hand, taking into consideration the fact that the appellant is an aged person and that upon conviction he will have to lose his pensionary benefits etc., the trial court has already taken a lenient view and has imposed statutory minimum punishment of six months and one year for the offences punishable under Section Section 7 and Section 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act respectively. Hence, since the trial Court has already taken a lenient view and has imposed the statutory minimum punishment, the same cannot be reduced further, and therefore, the said contention requires to be rejected and the same is rejected. 9.0 In the result, the appeal is dismissed. The bail bonds of the appellant stand canceled. CR.A/76/1996 20/20 JUDGMENT The appellant shall surrender to the custody, within a period of EIGHT WEEKS from today. (M.D. Shah,J.) Umesh/