CR.A/62/1992 1/103 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 62 of 1992 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 ? ========================================= JASHWANTSINH I VAGHELA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1, MS DS PANDIT, LD.APP for Respondent-State. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 01/05/2007 CAV JUDGMENT 1. The present appeal is preferred by the appellant-orig. accused (hereinafter referred to as 'the appellant') under Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, challenging the legality and validity of the judgment and order of CR.A/62/1992 2/103 JUDGMENT conviction and sentence dated 30th December 1991, passed by the learned Special Judge, Ahmedabad City, in Special (ACB) Case No.25 of 1989, whereby at the end of trial, the appellant came to be convicted for the offence punishable under Sections 7 and 13(1)(d)(i), (ii) and (iii) read with Section 13(2) of the Prevention of Corruption Act, 1947 and was asked to undergo sentence of simple imprisonment for two years for each offence proved and also to pay a fine of Rs.1000/- for each offence; and in default to make payment of fine, he is directed to undergo simple imprisonment for three months. Of course, the learned trial Judge has held that the substantive sentence shall run concurrently. 2. Heard Shri K.J.Shethna, learned counsel for the appellant and Ms.D.S.Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State. Shri K.J.Shethna, learned counsel for the appellant and Ms.D.S.Pandit, learned Additional Public Prosecutor for the respondent-State, both have taken me through the oral as well as CR.A/62/1992 3/103 JUDGMENT documentary evidence led during the course of trial and have made detailed submissions. To appreciate the rival contentions, firstly it would be proper to state the brief facts of the case placed by the prosecution before the trial Court. 3. The brief facts leading to filing of the present appeal in nutshell are as under : 3.1 The present appellant at the time of offence i.e. in September, 1988 was serving as Junior Inspector of Weights & Measures Department of Government of Gujarat, Ahmedabad and was a public servant. The complainant was a businessman dealing in iron, cement and other materials at Naroda in the name and style of M/s.Raj Trading Company and for the business purpose, the complainant was keeping in maintaining weighing equipment at his business premises. The complainant under a statutory obligation to get a necessary instruction of the said weighing scale done under the supervision of the officer of the Weights and Measures Department. It is alleged that for CR.A/62/1992 4/103 JUDGMENT this work of verification of testing of the weighing scale there are licenced agents and they are doing the work of correcting / repairing the weighing scales and sold to get clearance from the officer of the Weights & Measures Department, so a business men may not have to spend their valuable time in getting the equipment verified from the officers under the Bombay Weights and Measures Act. 3.2 It is the say of the prosecution that the complainant was getting his work done through one of his authorized agent i.e. M/s.Mukesh Scale Repairing Works, Dariapur. It is the case of the prosecution that the time limit of the said inspection of the weighing scale was over in June, 1988 and, therefore, the Peon of the department had served a notice to the complainant in the month of July, 1988. The complainant was called upon to get the scale repaired and passed. The complainant, thereafter, had to got this weighing scale checked and approved. The appellant had gone for the purpose of inspection to the business premises of the complainant on 13th September CR.A/62/1992 5/103 JUDGMENT 1988 and it was found that though intimated earlier, the complainant did not get passing of the weighing scale and had not communicated to the department for the scale being ready for approval. According to the prosecution case, the appellant ordered to freeze the weighing scale and the same was sealed and the complainant was asked that he was committed the offence of using the weighing scale without getting it passed as per the provisions of the Bombay Weights and Measures Act. 3.3 It is further the say of the prosecution that the complainant had informed the appellant that the scale had been given to M/s.Mukesh Scale Repairing Works for necessary repairs and there is no fault on the part of the complainant. The requests made by the complainant were not considered by the appellant. On the contrary, complainant was served with the memo and his signature was obtained. On account of freezing of the scale and as the seal was applied on the scale, the complainant was suffering day to day financial loss and, therefore, he decided to approach the CR.A/62/1992 6/103 JUDGMENT appellant and went to his house on 23rd September 1988. According to the prosecution that the complainant inquired from the appellant as to what was required to be done in the matter and upon such inquiry, he told the appellant that he had assured to see that the seal is removed. In term, the complainant was called upon to deposit the compounding fees. It is alleged that appellant had assured that he will take necessary steps to see that the case is wound-up within 2-3 months and that in future the complainant shall not to face any hardship or convenience. The complainant was assured also that the appellant now would visit his business premises on 26th September 1988 any time between 10.00 a.m. and 12.00 Noon. The complainant was also asked to make necessary arrangements for amount. 3.4 As per the say of the prosecution that the complainant was not inquired to make any payment to the appellant and was simultaneously apprehending some harassment to him and, therefore, he decided to approach ACB Office and he approached ACB Office on 25th September CR.A/62/1992 7/103 JUDGMENT 1988 and filed the complaint i.e. FIR in the present case. 3.5 It is the of the prosecution case that on receipt of the complaint, ACB Police Inspector Shri Vyas called two panch witnesses and after following the procedure applying anthracene powder on muddamal currency note and its demonstration, arranged a trap. As per the arrangement made, he drew the panchnama and completed the first part of panchnama in the ACB Office and proceeded further to carry out the raid. It is the prosecution case that the complainant and panch witness No.1 went to the business premises of the complainant along with the members of the raiding party and in company of one Mr.Mukesh. It is alleged that there was talk between the appellant and the complainant and, thereupon the complainant was called and asked to make payment of Rs.1,000/-. In response to the same, the complainant tendered muddamal currency notes of Rs.1,000/-. However, he requested the appellant to reduce the said amount as demanded by him and the appellant, in turn, had willingly accepted some CR.A/62/1992 8/103 JUDGMENT less amount of Rs.100/- and accepted an amount of Rs.900/- as illegal gratification. It is alleged that the complainant, thereafter, gave the agreed signal and on receiving such signal, the members of the raiding party immediately rushed at the shop of the complainant and the appellant was apprehended on the spot. Thereafter, the Police Inspector Shri Vyas called upon panch No.1 to take out the amount and after completing the necessary formality of ascertaining the anthracene powder marks and ascertaining the details as to how the amount was demanded and the currency notes were passed from the complainant to the appellant. The complainant, panch No.1 and the said Mukesh were present there and the second part of the panchnama was drawn. 4. On completion of the investigation and obtaining necessary sanction, a charge-sheet came to be filed by the police against the present appellant in Special Court, Ahmedabad City, for the aforesaid charges. After recording of oral as well as documentary evidence, the learned trial Judge has recorded CR.A/62/1992 9/103 JUDGMENT the findings of conclusion and that very judgment and order of conviction and sentence is under challenge. 5. On 04.12.1990, vide Ex.6 a charge came to be framed against the appellant for the offences punishable under Section 7 to r/w. Section 13(1)(d)(i)(ii) and (iii) of the Prevention of Corruption Act, 1947. The appellant pleaded not guilty to the aforesaid charges and, therefore, the prosecution led the evidence to establish the case against the appellant. 6. The learned trial Judge, after examining the appellant under Section 313 of the Code of Criminal Procedure, 1973, heard both the sides and came to the aforeaid conclusion of guilt, against which the present appeal is directed. 7. Shri K.J.Shethna, learned counsel appearing for the appellant, has taken me through the impugned judgment under challenge in this appeal and shown the grounds for challenging as mentioned in para-13 of the memo of the appeal. While ascertaining legality and CR.A/62/1992 10/103 JUDGMENT validity of the judgment and order, which is under challenge. Shri Shethna has argued at length. The first submission of Shri Shethna is that there is no convincing evidence as to initial demand of Rs.1,000/- and it would not be, either legal or proper to rely on the evidence of the complainant, who is a trap witness and a highly interested witness. The complainant developed inimical feeling towards the appellant, because he had sealed his weighing scale was feeling and apprehending by prosecution and, therefore, he has deposed that appellant had demanded bribe amount of Rs.1,000/-, and such bald words of complainant should not be believed as gospel truth. It is submitted by Shri Shethna, learned counsel for the appellant that it is true that the version of the complainant has been accepted, but the Court tried to seek some corroboration from independent and reliable sources and in absence of such corroboration, the learned trial Judge ought not to have been accepted the evidence of the complainant on the point of initial demand of illegal gratification. CR.A/62/1992 11/103 JUDGMENT 8. It is submitted by Shri Shethna that the complainant and panch No.1 have not supported the prosecution case and both have declared as hostile witnesses. He has also submitted that it is true that the evidence of hostile witnesses, if is reliable and useful to the prosecution, the certain part of the evidence of the hostile witnesses also can be considered and looked into by the Court, while evaluating the strength of the case of the prosecution. But here the complainant and panch No.1 both have posed themselves as very weak witnesses and nothing has been stated by the panch No.1 supporting the prosecution, in the cross-examination, cannot be treated as reliable and substantiate piece of evidence. On the contrary, the learned trial Judge ought to have observed that both these witnesses are self-contempt and they are not capable of carrying the prosecution case further. It is submitted that the said Mukesh, who was in the company of the complainant has not been examined with the reasons best known to the prosecution. It appears that the said Mukesh, who was the person, was engaged in repairing CR.A/62/1992 12/103 JUDGMENT and correcting the scale of the complainant and was an agent to get scale of the complainant approved / verified from the department of Weights and Measures. In the same way, when panch No.1 has not supported the case of the prosecution, the second panch ought to have examined to prove and add on the strength in the case of the prosecution qua in the second part of the panchnama drawn by trapping officer, so the effect of trapping, is of two important witnesses namely the said Mukesh and panch No.2, would be fatal. The learned trial Judge ignored the important and relevant aspects. 9. One another point advanced by Shri Shetha is that the allegations submitted to the department and mainly to the appellant were proved by witness–Mukesh. So the said Mukesh could have thrown light on the correct facts and when no independent witnesses have supported the case of the prosecution, the evidence of Investigating Officer Shri Vyas would not help the prosecution case. He has also submitted that Police Inspector Shri Vyas CR.A/62/1992 13/103 JUDGMENT has not acted in a transparent or fair manner and conduct of the Police Inspector Shri Vyas is found to be conduct of a person, who was interested in trapping the appellant any how, otherwise he would have to explain that why the complainant failed in complying the instruction, which was given to him at the time of treating first part of panchnama. It is submitted that there was no reason to the complainant to request the appellant to reduce the amount of bribe demanded by him. In the same way, he has not remained objective, while selecting the panchas. Shri Shethna has drawn attention to this Court to the evidence of Police Inspector Shri Vyas at Ex.19. He has submitted that in para-4 of the deposition of Police Inspector Shri Vyas, he admitted that on arrival of panch witnesses, he had realized that one of the person had been to ACB Office and had taken as panch witness in arranging the trap at village Vadad and that trap had failed. He has also accepted that he was serving in the very office from where the panchas were called, is his first cousin. That Shri Vyas is a store keeper in the office from CR.A/62/1992 14/103 JUDGMENT where panchas were called. Both the panchas were called from the office of the P.W.D. The second panch Mr.Patel was a Junior clerk and panch No.1 was also a clerk in the very office. In such a situation, the evidence of Shri Vyas ought not to have been accepted as reliable piece of evidence. On the contrary, one fact which came on record about the use of walky-talky set in arranging and processing the trap, Shri Vyas must not have been there near investigated and when the panch No.1 has not supported the case of the prosecution, the learned Judge ought not to have accepted the evidence of the recovery of currency note to panch from the appellant. He has also drawn the attention to this Court the document Ex.21, which is closing purshis. The effect of the closing purshis was that the prosecution was satisfied with the evidence led during the trial meaning thereby that they did not want to examine the final report submitted under the provision of the Cr.P.C. As such no formal trap has been given to the appellant in the present case, otherwise, the appellant might have objected such trap. It is true that it CR.A/62/1992 15/103 JUDGMENT was open for the appellant to examine panch No.1 and the said Mukesh as defence witnesses, but according to Shri Shethna non-examination of the important witnesses, who were competent to lead the evidence in the fact finding mission by the prosecution is nothing but absence of accepted fairness. When the appellant had not reduced the amount of originally demand in time prior to passing of the muddamal currency notes, otherwise, it would have reflected in the first part of panchnama then why the complainant attempted to negotiate with the appellant, is the question. This attempt nullifies the case of the prosecution qua initial demand and the initial demand is found not proved beyond doubt that second part of the panchnama would come under the thick shed of doubts. The explanation given by the appellant in his statement recorded under Section 313 of the Criminal Procedure Code would have considered in its correct perspective with emerges that the appellant have been falsely implicated. The basic case of the prosecution is that the demand of illegal gratification was made CR.A/62/1992 16/103 JUDGMENT through the said Mukesh, the Agent dealing in such matters. If the said Mukesh is not examined then the learned trial Judge ought to have said that there is no convincing evidence qua initial demand. If the deposition of the complainant is read, it is clear that the complainant has taken two sharp turns and that has made by complainant as self-condemned witness. 10. Shri Shethna has drawn the attention of the Court the certain contradictions in the deposition of the complainant Ex.10 (relevant page Nos.47 and 48). When the complainant has said that he had informed the said Mukesh about his intention to file complaint with ACB and the things delivered by the said Mukesh was considered by him for filing complaint, the learned trial Judge ought to have observed that in absence of evidence of the said Mukesh no weight should be given to the version of the complainant. It is in an evidence that the seal was removed on 29th September 1988 and he himself has paid Rs.2,000/- on 28th September 1988. The complainant was given four forms CR.A/62/1992 17/103 JUDGMENT i.e. chalan by the appellant on the very day. These chalans were used for paying the amount with the Government were given by Shri Waghela, when they were coming out of his office and proceedings towards the weighing scale. He has admitted in his deposition (para-12) that he has not stated before the police that “thereafter Shri Waghela was asked to accept the amount of Rs.1,000/- as agreed earlier.” He was also not stated that in the statement that he had also asked to release weighing scale immediately. In para-13 in his deposition, he has admitted that when he attempted to give the amount of Rs.900/- to appellant, he has refused to accept the same. The complainant in his deposition in para-13, has stated that “it is true that I tried to give Rs.900/- to Shri Waghela, but he had refused to accept the same. It is also true that therefore, I gave the amount to the said Mukesh”. The plain reading of the deposition of the complainant of para-13, it emerges that the bribe amount of Rs.900/- had given to the said Mukesh first through complainant and thereafter the said Mukesh had paid that CR.A/62/1992 18/103 JUDGMENT amount to appellant. Of course, the complainant has denied that the said Mukesh had forcibly place the bribe amount in the pocket of Shri Waghela, but there is no confusion on the point that the bribe money either had given and accepted or forcibly granted by the said Mukesh and by the complainant. This is the version of the complainant in his the cross-examination. So, integral story placed by the prosecution cannot be said to have been proved beyond doubt and, therefore, this Court should interfere with the findings recorded by the learned trial Judge and the appellant should be given benefit of doubt. 11. As against that Ms.D.S.Pandit, learned Additional Public Prosecutor, supporting the conclusion as to the conviction of the appellant by the trial Court, submitted that there is nothing in the evidence of the complainant to disbelieve him. According to the learned APP, the prosecution has established beyond reasonable doubt. The three facts which are very relevant; the demand of CR.A/62/1992 19/103 JUDGMENT bribe amount immediately prior to its acceptance from the complainant; the Court should look to the element of hidden demand in the background of the status of the appellant and the situation that has taken shape because of negligence on the part of the complainant in getting his weighing scale certified / approved to the conduct of the appellant immediately prior to the acceptance of the amount of bribe on the date of trap and his inconveniencing explanation qua the recovery of the muddamal currency notes from him; and the fact of passing of the amount from the complainant to the appellant and its acceptance under some understanding, because the appellant was not entitled to accept cash from the complainant. Learned APP drawn attention to this Court that the conversation that had taken place before handing over the muddamal currency notes to the appellant makes the prosecution case more trustworthy and the reduction of Rs.100/- in the bribe money demanded provides sufficient corroboration to the appellant of the prosecution qua the initial demand was made of Rs.1,000/- by CR.A/62/1992 20/103 JUDGMENT appellant. After evidence was over, the circumstances appearing against the appellant were brought to his notice and statement was recorded of the appellant under Section 313 of the Code of Criminal Procedure. In his further statement his stand about the prosecution evidence is of total denial. Learned APP has submitted that the appellant has admitted his presence at the place where he was trapped, but according to the said Mukesh, he had taken him to the office of the complainant and it was contended by him that as he was very strict and had filed two cases against the customers of M/s.Mukesh Scale Repairing Works. He i.e. the said Mukesh has implicated him falsely. Learned APP has submitted that the say of the appellant is that the superior officer was also not happy because of his strict approached and his union activities within the department prior to the incident, once he was in the District : Kheda and the Traders of District: Kheda had created problems against him only because he was strict and, therefore, he had sought police protection. According to Ms.D.S.Pandit, the CR.A/62/1992 21/103 JUDGMENT appellant attempted to pose himself as honest, bright and strict officer, but in view of the natural evidence led by the prosecution, such explanation should not be treated as reasonable or probable explanation which can be said to be sufficient for the purposes of rebuttal of the presumption raised under Section 20 of the Prevention of Corruption Act. Learned APP has submitted that this rebutting of presumption if is considered in the totality of the evidence the conduct of the appellant, the appeal must fail and the judgment and order of conviction and sentence should be upheld. 12. To appreciate the rival contentions and four decisions cited by Shri K.J.Shetha, the Court shall have to look to the nature and quality of the evidence led by the prosecution. The documents tendered in evidence have not been seriously assailed except the panchnama drawn by the trap officer. The trap panchnama has been assailed from all corners, as complainant including the recovery part and panch No.1 has not supported the case of the prosecution CR.A/62/1992 22/103 JUDGMENT substantively and material part of the panchnama has remained “not proved”. So this vital document or entire incriminating part of this document whether can be used to link the appellant with the alleged crime, is one of the main questions posed before the Court. 13. In an ACB Trap Case, the prosecution is supposed to establish the fact of demand and acceptance of the bribe amount, beyond reasonable doubt. In the present case, the prosecution has examined complainant- Rajubhai Aasandas Tirthani, P.W.1 at Ex.10, a business man dealing in steel, cement and welded material and, therefore, using the weighing scale, he was under statutory obligation to see weighting scales were maintained properly and scale requires and it gets approval of the officer of Weights and Measurements Department of the State of Gujarat. When he failed in getting his weighing scale corrected and approved, it was frozen and sealed by the appellant. It is not the say of the complainant that before freezing or sealing the scale, the demand of illegal gratification CR.A/62/1992 23/103 JUDGMENT was made by the appellant. On receipt of two memos from appellant, the complainant had called his agent M/s.Mukesh Scale