CR.A/1299/1993 1/81 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1299 of 1993 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 ? ============================================================== SWAMI DHANJIBHAI BALCHANDRA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ============================================================== Appearance : MR KB ANANDJIWALA for Appellant(s) : 1, MR AY KOGJE, LD.APP for Opponent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 13/03/2006 CAV JUDGMENT 1. The present appeal is preferred by the appellant-convict-accused of Special Case No.4 CR.A/1299/1993 2/81 JUDGMENT of 1991, decided on 30th September, 1993 by the learned Special Judge (Court No.2) of City Ahmedabad. The appellant-accused (hereinafter referred to as 'the accused') stood trial for the offences punishable under Sections 13(1)(d) (i) and (ii) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act'). The accused came to be convicted vide judgment and order under challenge for the offence punishable under Section 7 of the Act and has been imposed sentence to undergo simple imprisonment for three years and to pay a fine of Rs.100/-, in default to undergo further simple imprisonment for a period of three months. The accused is also found guilty by the ld.trial Judge for the offences punishable Sections 13(1)(d)(i) and (ii) of the Act and for that offence, the ld.trial Judge has imposed simple imprisonment for a period of three years and a fine of Rs.500/-, in default to undergo further simple imprisonment for three months. Of course, these sentences are ordered to run concurrently. Thus, the judgment and order of CR.A/1299/1993 3/81 JUDGMENT conviction and sentence is under challenge and the same has been assailed on various grounds mentioned in paragraph no.4 of the memo of the appeal and the appellant has tried to point out various aspects where according to the appellant, the learned Special Judge has erred either in appreciating the evidence and also in applying relevant legal aspects. 2. The facts of the accused's case are that the accused at the relevant point of time was a Senior Clerk working in the office of the Gujarat Housing Board in Estate Department and he came to be prosecuted on the basis of the complaint lodged with Anti-Corruption Bureau by one Rajnikant Muljibhai Patel (hereinafter referred to as 'the complainant') on 30th April, 1990. The allegation in the complaint is that the brother-in-law (wife's brother) of the complainant wanted to purchase a flat constructed by Gujarat Housing Board situated in one of the schemes known as 'Vandan Apartment', Nr.Ankoor Cross Roads, Naranpura, Ahmedabad, CR.A/1299/1993 4/81 JUDGMENT bearing No.36/259. The said flat was standing in the name of original owner Vasantben and she had purchased the said flat on higher purchase basis from the Gujarat Housing Board. It is alleged that in connection with transfer of said flat in the name of Hasmukhbhai, certain formalities were required to be performed and the accused was dealing with such transfer of flats from one person's name to the proposed transferee and the accused demanded illegal gratification of Rs.1000/- for helping the cause. It is the say of the prosecution that when Hasmukhbhai decided to purchase the said flat from Vasantben, both of them had gone to the office of the Gujarat Housing Board situated near Pragatinagar, Naranpura at Ahmedabad, whereby they were asked to produce requisite form signed by the seller and the prospective buyer and they were asked to file an affidavit on an appropriate stamp paper. They had visited the said office on 26th April, 1990 and at that time, along with the complainant, the said Vasantben her son and Hasmukhbhai were there with the complainant CR.A/1299/1993 5/81 JUDGMENT apart from a friend of the complainant. On inquiry this group of persons was asked to go to the table of one Mr.Swamy i.e. present appellant-orig.accused as he was dealing with transfer of flats of Housing Board. The papers were shown to the accused who scrutinized the same and put initials on them. However, they were advised that the affidavits are required to be sworn before the learned Magistrate and the affidavits were prepared. As per the requirement and advice given by the accused, an amount of Rs.3001/- was deposited with the office of the Housing Board as transfer charges and thereafter all papers were given to the accused on the same day. It is the case of the prosecution that on that day the accused told the complainant that if the complainant wanted to get the flat duly transferred in the name of Hasmukhbhai, then the complainant will have to pay him Rs.1000/- as illegal gratification but the complainant had expressed his inability to pay such a huge amount. The accused on that day tried to convince the complainant that he had to disburse CR.A/1299/1993 6/81 JUDGMENT the said amount and the accused would get only Rs.200/-. Thereafter, when the complainant was not left with any another alternative, the complainant agreed to pay him Rs.500/-. The office of the Housing Board was closed from 27th April, 1990 to 29th April, 1990 and it was opened on 30th April, 1990. On that day, the complainant went along with papers but as he had not paid the amount of Rs.500/- towards illegal gratification, the papers were given back by the accused to the complainant. The case of the prosecution is that the complainant never wanted to make payment of any bribe money and, therefore, he approached the office of the Anti Corruption Bureau (ACB), Ahmedabad on 30th April, 1990 and lodged the complaint to the above effect, whereupon the trap ultimately was arranged. It is the case of the prosecution that the raid was successful and it was carried out in the canteen of the office of the Gujarat Housing Board. However, the accused fled away from the site where he had accepted the amount, the muddamal currency notes. A formal panchnama CR.A/1299/1993 7/81 JUDGMENT of recovery of amount was carried out at Gandhinagar and smeared bribe money came to be recovered from Gandhinagar and that too from the house of one employee of Gujarat Housing Board with whom the accused had exchanged the smeared notes after accepting them from the complainant. On conclusion of the trial, the ld.Special Judge found that the prosecution has successfully established the charges levelled against the accused. 3. I have carefully gone through the judgment and order under challenge and Mr.K.B. Anandjiwala, learned counsel appearing for the appellant- orig.accused, has taken me through the memo of the appeal and documentary evidence led by prosecution. Mr.Anandjiwala, learned counsel appearing for the appellant, has submitted that the finding of the learned Judge is erroneous and certain important relevant aspects have been ignored. On the contrary, in the present case, it was not safe to conclude that the raid was carried out by the prosecution successfully and CR.A/1299/1993 8/81 JUDGMENT non-examination of certain important witnesses to prove initial demand and actual demand goes to the root of the case placed by the prosecution. The accused was required to be acquitted or this is a case where the accused ought to have been acquitted saying that the evidence led by the prosecution is not beyond shadow of doubt. 4. The prosecution has examined four witnesses namely (i) complainant-Rajnikant Muljibhai Patel, Exh.7; (ii) Nathabhai Ramabhai Vankar, Panch no.1, Exh.8; (iii) Bhanuprasad Keshavlal Mevada, from whom the smeared currency notes were recovered from Gandhinagar, Exh.12 and (iv) Vinod J. Vyas, Police Inspector, Anti-Corruption Bureau, who according to the case of the prosecution carried out the entire exercise including drawing of panchnama relied upon by the prosecution. In ACB trap cases, the contents of the panchnama, places of drawing the entire panchnama and the exercise carried out by the raiding party reflected through panchnama are CR.A/1299/1993 9/81 JUDGMENT always found relevant by the Courts and, therefore, the role of the Police Officer, who has drawn panchnama or the part of such panchnama in the entire exercise of raid is also seen and appreciated as vital part of the evidence. The defence of the accused is total denial. According to accused, neither demand was made by him nor he has accepted the said amount. The prosecution is supposed to prove (i) initial demand, (ii) demand soon before the acceptance (if made) and the nature of conversation that has been placed by the prosecution in each good case, (iii) acceptance of illegal gratification and (iv) recovery of muddamal currency notes or the article of gratification accepted, if need be. It is argued that none of these four aspects is fully established and, therefore, the accused should be acquitted as the whole career of a public servant is at stake. In such case, the case of prosecution should be free from all doubts and strictest proof is required to be brought on record by cogent and convincing evidence. The Court should avoid inferences or CR.A/1299/1993 10/81 JUDGMENT surmises and should not commit any error in raising presumptions unless there is scope to raise such presumption against the accused; otherwise onus would never shift on the shoulders of the accused. Transparency at all stages is one of the most essential things in ACB cases. The complainant should be transparent in lodging the complaint. The procedure should also be followed in a transparent manner including selection of panchas. The panchas should be independent and should have a transparent sterling character. In the same way, drawing of second part of panchnama also should be carried out with utmost care and normally it should be drawn by the officer who has been active in carrying out the raid and drawing the first part of panchnama. It is argued that to prove initial demand, the prosecution ought to have examined either Hasmukhbhai or Vasantben or her son Narendra. Surprisingly none of these persons was knowing about the procedure for transfer of flat and, therefore, a peon was asked as to whom they should contact for CR.A/1299/1993 11/81 JUDGMENT transfer of flat and as per the case of the prosecution, the peon led this group of persons to the table of the accused. Mr.Mevada, from whom the muddamal currency notes were recovered, is also an employee of the Gujarat Housing Board. Undisputedly, having his seat and work place in the different area and storey of the building of the office of the Gujarat Housing Board, it is argued by Mr.Anandjiwala that on 26th April, 1990, the complainant went to the office of the Gujarat Housing Board, Estate Manager No.2, for the first time along with Vasantben, her son Narendra, her brother-in-law Hasmukhbhai and Manubhai Patel, with regard to the transfer of a Flat in Vandan Apartment. A peon was asked as to whom they should contact for transfer of the Apartment. Thereupon, they were led to the table of Mr.Swami-orig.accused and an application for transfer of the Apartment was given to the accused along with other papers. It is also stated in the complaint that the accused demanded an amount of Rs.1,000/- for transfer of the said Apartment/Flat. This talk CR.A/1299/1993 12/81 JUDGMENT must have taken place in presence of the above mentioned four persons, however, none of them is examined in this case. It also transpires from the complaint that the first meeting with the accused took place on 26th April, 1990 and not prior to that. Therefore, the evidence of the complainant with regard to the demand that the said demand was made around 11th or 12th April, 1990, and subsequently the said demand was repeated is falsified. There is no corroboration to the evidence of the complainant on this aspect as none of those persons who had accompanied him has been examined in this case. It also transpires that the complainant never knew the accused prior to 26th April, 1990. Therefore, regarding initial demand the evidence of the complainant is doubtful. There is no corroboration to his deposition. On the contrary, it appears that he is modulating his deposition with a view to explaining other aspects which had emerged. The evidence of complainant is also more or less the evidence of an accomplish. Regarding the the agreement to CR.A/1299/1993 13/81 JUDGMENT pay and accept the amount of Rs.500/- also, the evidence is conflicting and, therefore, no reliance can be placed on the evidence of the complainant with regard to the initial demand. 5. The other backbone of argument of Mr.Anandjiwala is that the prosecution is under great obligation to prove the demand made during conversation prior to acceptance of illegal gratification. This small piece of evidence has to be proved beyond reasonable doubt as the words uttered during conversation that had taken place before the accused and the complainant; and while appreciating this part of evidence, the evidence of complainant as well as Panch No.1 who is supposed to hear the conversation between the accused and the complainant, needs close scanning in the background of the explanation given by the accused if any. In the present case, according to Mr.Anandjiwala, the complainant has deposed about this aspect in his examination-in-chief (Para:5). If the conversation regarding demand of illegal CR.A/1299/1993 14/81 JUDGMENT gratification prior to acceptance had taken place either twice or thrice and except on the date and time of the trap, the Panch no.1 is not a witness to such conversation, then the chain of such pre-acceptance conversation as to the demand of illegal gratification also requires to be established beyond reasonable doubt. According to Mr.Anandjiwala, the complainant contacted the accused first and handed over the papers to him. The accused saw the papers and separated the affidavits, undertaking, pay-slips of Hasmukhbhai, etc. from the bunch. At that time, the accused asked about the panch, therefore, the complainant introduced the panch as brother of Hasmukhbhai. Thereafter, the accused asked the question to the panch as to where he was working, to which he replied that he is working in Kathwada private firm. Thereafter, the accused asked as to whether he has brought the amount, to which the complainant replied and thereafter, the accused told the complainant to go to the canteen and he would be following the complainant. Thereupon, the CR.A/1299/1993 15/81 JUDGMENT complainant and the Panch went to the canteen which is situated on the ground floor. In his cross-examination, he has deposed that on 30th April, 1990, he tried to give relevant papers to the accused, but he refused to accept. He further says that he had gone to the office of the accused to hand over the papers at 11-00 a.m. on that day and at that time, the accused told him that he would not accept the papers unless the amount is paid. He has further stated that he never told anybody including Hasmukhbhai about the demand of Rs.1,000/- prior to 30th April, 1990. He has further deposed that it is not true that the accused took the papers from him and separated some papers and thereafter, the pin was applied. As there was no signature of Vasantben on transfer application and other necessary documents, the accused handed over the papers to him. On this aspect, the evidence of Panch is that the accused took the papers, but as there was no signature of Vasantben on undertaking form and transfer application form, the accused after applying the pin on certain CR.A/1299/1993 16/81 JUDGMENT documents returned the same to the complainant. He has further denied that at the time of returning the papers to him, the accused told him that the papers are incomplete and thereafter, the accused told him to come on 01st May, 1990 after obtaining necessary signatures on certain documents. On this aspect, his attention was drawn towards his statement before the police regarding the same. He has also admitted that he had stated before the police that the accused told him to come on 01st May, 1990 at 11-30 a.m. after completing the undertaking and other documents. He has also admitted that on 30th April, 1990, when he had gone to the accused along with the papers, undertaking form was blank. It is pertinent to note that according to the complainant he had been to the accused on 26th April, 1990. At that time, the accused told him to get the signature of Vasantben on Undertaking form as well as on transfer application form. Vasantben was very much present along with the complainant on that day. She had gone to the Court of Magistrate for CR.A/1299/1993 17/81 JUDGMENT swearing, but surprisingly her signature was not obtained or taken on undertaking form as well as on application form. It clearly shows that Vasantben must not have been told about putting her signature on such forms. It is borne out from the muster roll which is regularly maintained in the office of the Gujarat Housing Board that on that day the accused was not present, so there is no question of contacting the accused on that aspect in his evidence and so far as this aspect is concerned, there is no corroboration to the evidence of the complainant from any other independent source. 6. According to Mr.Anandjiwala, the Panch witness- Mr.Vankar has tried to corroborate the complainant but while doing it, he has made material omissions amounting to contradiction and at some places he has made certain improvements, only with a view to support the say of the complainant. Before the complainant, the Panch and the accused met on the table of the canteen situated in the office of the CR.A/1299/1993 18/81 JUDGMENT Gujarat Housing Board at the instance of the accused and some conversation had taken place, as per the say of Mr.Vankar, the accused told the complainant to complete the documents and thereafter to see him on the next day at 11-30 a.m., and after 11-30 a.m., he (accused) would go out to make one affidavit-for his personal work. The complainant was also informed that if it is not convenience to go at 11-30 a.m. on the next day, then he may go on the day after. But the accused had not demanded any amount even as per the conversation of Panch No.1-Mr.Vankar. As per the evidence of Mr.Vankar, the complainant told the accused that as per the talk he has brought the amount and at that time, the complainant had posed himself to be a poor man and requested him to waive the rest of the amount and he would give the same after the work is done. So the case of the prosecution is that the location of the trap anticipated by the prosecution changed because the accused had told the complainant and the panch to go to the canteen. It has come on record that one CR.A/1299/1993 19/81 JUDGMENT undertaking which was required to be brought duly signed and by completing details was blank. But Mr.Vankar-Panch has tried to hide this aspect only with a view to corroborate the complainant. Further attempt to give unconvincing explanation by panch makes independence and objectivity doubtful, is also one of the arguments of Mr.Anandjiwala. Undisputedly, the ACB staff, part of raiding party were all the while in the office and three members of the ACB staff had entered the canteen much prior to the actual conversation that had taken place between the accused and the complainant on the table of the canteen and they were present when the accused left the canteen. Even then the accused could not be intercepted by the ACB staff members and he was able to go out of the canteen and it emerges from record that the accused had moved at more than one place out of the canteen and had met more than one person before he could be apprehended by the ACB staff. The ld.trial Judge has appreciated this part of evidence saying that after CR.A/1299/1993 20/81 JUDGMENT pocketing the currency notes, the accused suddenly fled away from the canteen even before the pre-arranged signal could be given to the ACB officers and he was able to go to some other portion of the building of the Office of the Gujarat Housing Board being a very huge complex. But the fact remains that the accused was ultimately traced in the office building itself. But the ACB officers found that smeared muddamal currency notes were not with the accused. However, his hand and pant pocket were found smeared with anthracene powder when the ultraviolet lamp test was carried out. So according to Mr.Anandjiwala, muddamal currency notes have not been recovered from the accused and ultimately, they have been recovered from the residence of another employee of the Gujarat Housing Board namely Mr.B.K.Mevada and that too from Mr.Mevada's residence at Gandhinagar. It is in the evidence that Mr.Mevada resides at Gandhinagar and he had left for Gandhinagar. There is no exact convincing evidence as to after how many minutes or hours of reaching of CR.A/1299/1993 21/81 JUDGMENT Mr.Mevada to his residence, the ACB officers were able to recover the muddamal-smeared currency notes and the part of the panchnama whereby the whole exercise was carried out to find out anthracene powder marks at various places by doing ultraviolet lamp test. It is argued that the second part of the panchnama is not genuine and trustworthy. In reality, to lead convincing and cogent evidence, the raiding party ought to have drawn this panchnama in three parts. No independent person from the office of the accused has been examined on the point of tracing out the anthracene powder marks on the hands and pant pocket of the accused. He has also tried to point out that the main officer namely the head of the raiding party had never been to Gandhinagar for recovery of muddamal currency notes from Mr.Mevada and absence of evidence that ultimately who bear the burden of giving Rs.500/- to Mr.Mevada and when the amount was paid to Mr.Mevada, is also a question which has not been satisfactorily replied by the prosecution. It is not a matter CR.A/1299/1993 22/81 JUDGMENT of dispute that it was a day of salary for the employees of the Gujarat Housing Board and for his personal convenience Mr.Mevada had given change of Rs.500/- out of his salary amount to the accused. It was possible for the prosecution to either lead negative or positive evidence as to the availability of anthracene powder marks on the hands of Mr.Mevada, on hand or pant pocket and other currency notes of his amount of salary but there is no reference about this in the panchnama. So when the second part of panchnama is found doubtful and a document to show that the raiding party had remained successful, it ought not have been used as an important corroborative piece of evidence to the oral version of the prosecution witness namly Panch No.1-Mr.Vankar and the raiding party ACB Police Inspector Mr.Vinod Vyas. Since three police personnel from the raiding party were very well there inside the canteen, there is no convincing evidence as to the passing of muddamal currency notes from complainant to the accused from any of these three police CR.A/1299/1993 23/81 JUDGMENT personnel. The fact that neither the complainant nor the accused has paid for the tea that they had consumed, makes the entire second part of panchnama doubtful from the very beginning, is also one of the arguments of Mr.Anandjiwala. So according to Mr.Anandjiwala, the learned Special Judge has grossly erred in accepting the evidence led by prosecution that the hands as well as pant pocket of the accused when tested under the ultraviolet lamp, they were found smeared with anthracene powder and evidence of Mr.Mevada that he had accepted the muddamal currency notes