IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 779 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JAGDISHCHANDRA BHIMARAO JADAV Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 779 of 1991 MR KB ANANDJIWALA, Advocate for the Appellant MS. HARSHA DEVANI, Addl.PP for the Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI Date of decision: 19/07/2003 ORAL JUDGEMENT #. The appellant who was serving at the relevant time as Zonal Officer of Khadia Zone in the Ahmedabad office of the Civil Supplies Department, challenges his conviction for the offences under Section 161 of the I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and sentence of simple imprisonment for one year and fine of Rs. 500/- imposed for each of the offences by the learned Special Judge, Ahmedabad by her judgment and order dated 30th August, 1991 in Special Case No. 2 of 1989, with a direction that the substantive sentences imposed shall run concurrently. #. As per Charge exh. 2, it was alleged against the appellant that while he was working as Zonal Officer in the Khadia Zone of the office of the Civil Supplies Department in the City, he had demanded Rs. 300/- by way of illegal gratification from the complainant Fakir Mohammed for issuing permit of Pamolien oil and accepted the same on 10.2.88 in his office, and thereby, committed an offence under Section 5(1)(d) read with Section 5 (2) of the Prevention of Corruption Act and Section 161 of the I.P.C. 2.1 The prosecution version was that the complainant Fakir Mohammed was running a Fair Price Shop at Jamalpur in the City in the name of Lucky Kirana Stores, and for the purpose of his business, he was required to approach the Zonal Officer, situated in the multi-storey building, Lal Darwaja, Ahmedabad, for obtaining permit for the quota of Pamolien oil which was to be sold to the ration card holders, who were registered with his Fair Price Shop. Since the complainant was not getting required quota of Pamolien oil for some months, he went to the accused-Zonal Officer on 20th January, 1988 for release of the quota of wheat, rice and Pamolien oil. He told the accused that the people in the locality were becoming impatient and furious due to insufficient supply of Pamolien oil. The accused thereupon told him that if he wanted sufficient quota of Pamolien oil to be regularly released to him, he would have to pay Rs. 500/- each month. The complainant expressed his inability to pay such high amount and after some bargaining, the figure was struck at Rs. 300/-. At that time, the complainant was having Rs. 150/-, which he paid to the accused, telling him that he would bring Rs. 300/- when he comes next time for the release of further quota. On getting Rs. 150/-, the accused released the quota of the commodity. Thereafter, on 5th February, 1988, the complainant sent his brother Ahmed for the release of the quota, for the month of February, 1988, of 20 bags of wheat and 4 barrels of Pamolien oil. Permit for wheat was issued, but the accused informed his brother that for the issuance of permit for Pamolien oil he should send the complainant. Therefore, in the afternoon, the complainant met the accused and was told that unless he paid Rs. 300/-, permit will not be issued. The complainant pleaded that he did not have enough amount. Thereafter, on 9.2.'88, he again sent his brother to the accused for release of 20 bags of wheat and 4 barrels of Pamolien oil. But the accused asked his brother to send the complainant to meet him. In the afternoon, the complainant went to the accused who told him that unless he was paid Rs. 300/-, the quota will not be released. He, however, accepted the application of the complainant for release of quota and issuance of permit. The accused gave him permit for wheat, but the permit for Pamolien oil was not given and he was told that unless he paid Rs. 300/-, Pamolien oil will not be released. The accused was infuriated with the complainant and threatened him that his Fair Price Shop would require to be checked and inquiry be made for reporting to the higher officer. The complainant thereupon was upset over the behaviour of the accused and he therefore approached the Anti-Corruption Bureau on 10.2.'88 and lodged his complaint against the accused for demanding illegal gratification from him. A trap was successfully laid on 10.2.'88, and the accused was apprehended having demanded and accepted the bribe amount of Rs. 300/- which currency notes were coated with anthracene powder. The accused was charge-sheeted on 19.1.'89 and tried by the Special Judge for the aforesaid offences. #. The defence version of the accused as reflected in his statement recorded under Section 313 of the Code of Criminal Procedure was that he had demanded the amount of Rs. 500/- on 5.2.'88 towards payment of fine which was imposed on the complainant. According to the accused, on 9.2.'88, he had refused to issue permit for 4 barrels of Pamolien oil and asked the complainant's brother Ahmed to send the complainant, because, the complainant was not paying up the fine. The accused in his statement also admitted that on 10.2.'88, the complainant had come to his office along with the Panch witness, and that the accused asked him in presence of the Panch witness, whether he had brought the amount; but has explained by stating that the demand of the said amount was towards fine which was required to be paid by the complainant. The accused also gave a statement in writing, which too contains his defence version. In that statement at Exh.3 collectively, he stated that the work of realising fines imposed under the orders made against the permit holders by his higher officers was to be done at the Zonal Office level and for that purpose, the licensees were being reminded to pay up the fine and when they did not pay the fine despite such reminder, they were coerced to pay the amount for its recovery at the time of issuance of permits. In para-4 of the said statement, it was stated that between 1982 and 1987, action was taken against the complainant and fines were imposed on him. On 12.11.'87, fine of Rs. 500/- was imposed on the complainant for unauthorised sale and irregularity in the distribution of sugar. The complainant was avoiding payment of that fine. Moreover, an amount of Rs. 138/- was also due from the complainant towards the price of the ration cards which was not being paid by him despite his being reminded to pay this amount. Ultimately, the complainant had paid up the amount on 22.8.'88. In para-5 of the statement, it is stated that around February, 1988, pressure was brought on the complainant to pay up the fine amount by the accused and at times, permit of lesser quota was issued. Therefore, the complainant was very displeased with the accused and wanted to harass the employees of the Zonal Office. In para-12 of the statement, it was stated that the complainant had come to the office of the accused at 12.00 noon when the Inspectors Shri B.R. Goswami and Smt. Vibhabhen Mehta of the Civil Supplies Department were sitting with him. Some businessmen who had come to get permits were also there. The complainant had given him application for release of quota of Pamolien oil and he had put his endorsement on that application. The complainant took the application with endorsement to Shrimali who prepared the permit. At that time, the accused got up and went near the table of Shrimali to sign the permit. The table of Shrimali was on the other side of the wall from the table of the accused. He had gone to Shrimali to ensure that the permits were immediately issued so that no inconvenience was caused to the customers. He had signed the permit and when he was bending and signing the permit, the complainant had taken out a wad of hundred rupee notes from his own pocket and tried to put them in the pocket of the accused whereupon the accused got startled and straightened himself preventing the complainant from putting notes in his pocket by covering his shirt pocket with his hand, as a result of which, the currency notes, instead of getting into the pocket, fell on the ground. In para-13 of his statement, the accused has stated that he had not demanded any bribe from the complainant on 20.1.'88 nor accepted Rs. 150/- on that day. According to him, on that day, he had asked for Rs. 500/- which was the amount of fine and there was no talk about taking of any bribe. He had deleted items of Pamolien oil from the permit earlier, because, the fine amount was not being paid. In para 14 of the statement, he stated that the currency notes fell on the ground when the complainant was trying to put them in his pocket. #. The learned Trial Judge, on the basis of the material on record, came to a finding that the accused had, by corrupt and illegal means, and abusing his position as a public servant, obtained pecuniary advantage, rendering himself liable for the offence under Section 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and that he had accepted illegal gratification which was not his legal remuneration as a motive or reward to do an official act and to show favour to the complainant in exercise of his official functions, rendering himself liable for the offence under Section 161 of the I.P.C. In the process, the Trial Court held that there was reliable and substantial evidence, adduced by the prosecution, of the complainant, Panch witness, Police Inspector as well as the documentary evidence to pinpoint the guilt of the accused. It was held that the testimony of the witnesses was not shaken in their cross-examination and the trivial aspects that were emphasized did not affect the veracity of their version. It was held that the evidence on record established beyond any reasonable doubt the guilt of the accused on both the counts. The defence put up by the accused that he had demanded the amount towards fine, which the complainant was required to pay and tried to ward off the attempt of the complainant to put the amount in his pocket, was found to be not acceptable by the Trial Court. The Trial Court held that the fact that on 9.2.'88, application for release of Pamolien oil was rejected, but on 10.2.'88, it was immediately granted, was eloquent to suggest that the application of the complainant was rejected on 9.2.88 for no reason and it came to be granted on 10.2.'88 without there being any change of circumstance, and that it was illegal gratification received on 10.2.'88, which prompted the accused to release the quota of Pamolien oil. It was also observed that it was not shown that the Zonal Officer was authorised to accept any fine or penalty amount. The Trial Court also held that it was not possible to believe the defence version that the Zonal Officer had got up and gone to the table of the Clerk Shrimali, where, according to the defence of the accused, the complainant tried to thrust Rs. 300/- in his pocket and he pushed the currency notes away which fell on the ground. It was held that there was no substance in the defence version that the accused had required the complainant to bring the fine amount before permit could be issued, because, no such fine amount was paid by the complainant before issuance of the permit on 10.2.'88. #. The learned counsel for the appellant contended that there was no reliable independent evidence to bring home the offences against the accused. He submitted that the complainant was the person who was habitually committing breach of the licensing conditions and the provisions of law for which he was being imposed fine from time to time. By exh. 14, made by the Director of Civil Supplies, he was imposed a fine of Rs. 500/- which he had not paid and that material fact he had suppressed in the complaint. Moreover, even on his own admission, a sum of Rs. 138/- was still due to be paid by him to the department, because, he had paid only Rs. 2000/- towards the amount of Rs. 2,138/- which was collected by him for issuing ration cards. Such type of witness would not inspire any confidence and strict corroboration would be required to support his version. It was further argued that the complainant was an accomplice, because, his say was that on 20th January, 1988, he had requested the accused for releasing the quota of the commodities, including the Pamolien oil and when Rs. 500/- was demanded by the accused he had agreed to pay Rs. 300/per month, and in fact, paid Rs. 150/- for the release that he obtained on 20th January, 1988. It was submitted that the reliance on a complainant of this type required corroboration from an independent source. It was further submitted that regarding initial demand, alleged to have been made on 20th January, 1988, there was no charge against the accused, nor any corroboration to the version of the complainant on that count from any independent source. He further argued that conflicting versions were coming forth in the deposition of the complainant and the Panch, which created doubt over the correctness of the prosecution version. He submitted that as regards the counting of notes to which Panch deposes, the complainant was silent. Moreover, silence of the Panch witness as well as the complainant about the anthracene powder marks inside the pocket of the bushirt of the accused which was seized, was very significant, and the deposition of the Investigating Officer alone, could not be relied upon, nor could the statement made in the Panchnama be accepted in view of such silence of the complainant and the Panch witness in that regard. He further pointed out that in the cross-examination, the Panch witness had stated that the currency notes were picked up by him from the floor and, therefore, there was a material discrepancy in the prosecution version that the notes treated with anthracene powder were recovered from the pocket of the accused and in the version of the Panch witness in his cross-examination that they were picked up from the floor. He submitted that such discrepancy goes to the root of the prosecution case and created a grave doubt on it. The learned counsel further argued that the Panchnama was not correctly recorded, because, the complainant in his deposition had stated that he was asked and had narrated the version, while the Panch does not say that he was asked about the occurrence. It was argued that it has not come on record that the Panchnama was dictated by the Panch, nor was it coming forth that when the raiding party entered the cabin of the accused, the Panch had disclosed the facts. The Panchnama, exh.17, therefore, could not be trusted as genuine. It was then contended that though independent persons were present at the time of the incident and their statements were recorded, particularly of Shri Goswami and Smt. Vibhaben Mehta, who were two Inspectors working under the accused, they were not examined at the trial. It was submitted that these were material witnesses who could not have been dropped, as they would have thrown light on the incident. It was further argued that the factum of demand by the accused of any bribe was not established. He submitted that even the complainant had admitted that in the month of January, 1988, as against his requirement of 19 barrels of Pamolien, he was, in fact, released 20 barrels of Pamolien oil. According to the learned counsel, investigation was biased, because, the officer, who conducted the trap, carried out further investigation which could not have been done. Such an officer was interested in seeing that the trap succeeds and, therefore, would mould the investigation in that direction. Moreover, he had selected Panch witnesses from the R.T.O. office in which office, earlier, five or six officers were trapped for corruption offences. Since earlier, number of Panchas were selected from the same office, it was reasonable to infer that the Investigating Officer had selected the Panch witnesses from the office where the employees were under pressure because of the earlier traps conducted in that office. The counsel finally submitted that as against this type of prosecution case and the biased investigation, the defence version that the accused had asked the complainant to pay up the fine which was imposed on him under the order exh. 14, issued by the Director of Civil Supplies, and that he had not demanded any bribe was highly plausible. He submitted that the version of the accused that he had tried to ward off when the complainant was attempting to thrust currency notes in his shirt pocket as a result of which the notes fell down on the floor, validly explained the presence of anthracene powder on the edge of his shirt pocket and on his hands and on the pen, and that version was, in fact, was gaining support from what the Panch witness had said in the cross-examination that the currency notes were picked up from the floor. Since the defence version was plausible, the accused cannot be convicted for the offences with which he was charged, as the prosecution had failed to prove that the accused had demanded the amount towards illegal gratification or accepted it from the complainant on 10th February, 1988. #. The learned counsel for the appellant, in support of the contentions, relied upon the following decisions:- [a] Decision of Kanubhai Kantibhai Patel v. The State of Gujarat, reported in XVIII (1) GLH 924 was cited for the proposition that the Panchnama which was not the record prepared on the basis of what was told by the Panch witnesses and what the Panch witnesses heard and saw, could not be relied upon. It was also held that if the demand of bribe is not clearly established and there were discrepancies in the testimony of the witnesses, the accused cannot be held guilty. It was pointed out from para-5 of the judgment that the Court relied upon the decision of the Supreme Court in Bhagvan Singh v. State of Rajasthan, reported in AIR 1976 Supreme Court 985, stating that it was held therein that if everything is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. This Court held that the credibility of the case of prosecution was certainly suspicious and on that count the prosecution must fail on the ground that the Police Inspector had done everything in the matter right from recording of complaint till the filing of the chargesheet. [b] The decision in Bhagvan Singh v. State of Rajasthan, reported in AIR 1976 Supreme Court, 985 was cited in support of the contention that the Investigating Officer who had led the raiding party and had conducted the trap could not have carried on the investigation and since in the present case, same person had conducted the trap and the investigation, the credibility of the prosecution case was lost. At this stage, it may only be observed that no such proposition emerges from the decision of the Supreme Court in this case, as has been tried to be argued by the learned counsel who had made similar contention in Kanubhai Patel's case (supra) on the basis of this decision. [c] Decision of this Court in Kishorchand Mansukhlal Joshi v. State of Gujarat, reported in 1985 G.L.H 103 was cited for the proposition that there should be no doubt left in the mind of the Judge in regard to the credibility and acceptability of the evidence of the complainant and the Panch witnesses in a corruption case, because, career of a public servant depends upon the evidence of these two persons. It was held that it was required to be borne in mind that the Panch witness was not connected in any manner whatsoever with the complainant, he was not connected with any member of the raiding party, he was independent in so far as his capacity to act as a Panch was concerned and that he was not amenable to any pressure from the complainant side or from the investigating agency. [d] Decision in G.V. Nanjundiah v. State (Delhi Administration), reported in AIR 1987 Supreme Court 2402, was cited to point out that it was held in para-21 of the judgment that it was common sense that a person would not accept a bribe in the presence of a stranger. In that case, allegation of the contractor and other members of the raiding party was that the contractor had purchased a basket of fruits and some cartons of sweets to justify entrance of the person who would also be witness to handing over of the bribe money. The Court observed that although it was alleged that the appellant had agreed to be present in his house at 7.00 p.m. for the purpose of taking bribe, he was absent and had come back at 8.00 p.m. It was observed in para-22 of the judgment that it was difficult to believe that the payment of the bribe money could be deferred for ten minutes till the arrival of fruits and sweets after they had been in the drawing room on the floor of the house of the appellant. [e] Decision in Bharatkumar Jaimanishanker Mehta v. State, reported in XXIII (1) GLR 605 was cited for the proposition that the prosecution evidence alone cannot be considered for the purpose of coming to a conclusion as to whether the accused accepted the amount or not. The evidence led by the prosecution, the suggestions made by the defence in cross-examination of the prosecution witnesses, the version given by the defence and the defence witnesses, if any, examined at the trial, everything was required to be considered in its totality and it is to be seen as to whether the total effect of the entire evidence led before the court is of a nature by which the only conclusion possible was that the accused accepted the amount. If such a conclusion is possible then alone it can be held that the prosecution established the case beyond reasonable doubt. [f] Decision in Gulam Mahmood A. Malek v. State of Gujarat, reported in A.I.R. 1980 Supreme Court 1558 was cited for the proposition to point out that in the case where the complainant in a prosecution for acceptance of bribe, was an accused in four cases and had stated without compunction that he used to give money to the accused, a Bench Clerk in Court, on several occasions and had launched complaint about demand of bribe after ten days after the alleged demand, though the payment of bribe was made in court-hall the money was recovered in another room after about twenty minutes and no independent witness from the hall was examined, it was held that the accused could not be convicted for accepting bribe on the corroborating testimony of the Panch witness as to recovery of money. It was