CR.A/674/1989 1/139 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 674 of 1989 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 ? ========================================================= PRAVINKUMAR AMRATLAL GAJJAR - 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 : 28/12/2006 ORAL JUDGMENT 1. The present appeal is preferred by the appellant-convict (hereinafter referred to as 'the appellant') under Section 374 of the Code of Criminal Procedure, 1973, assailing the judgment and order of conviction and sentence passed by the learned Special Judge, Ahmedabad CR.A/674/1989 2/139 JUDGMENT City, dated 27th September, 1989, whereby the appellant has been held guilty for the offence punishable under Section 161 of the Indian Penal Code and also under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act'), on various grounds mentioned in paragraph no.8 of the memo of the appeal. The learned Special Judge after recording the evidence of the prosecution and defence, and hearing the arguments, convicted the appellant for the aforesaid offences and sentenced the appellant to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default to undergo rigorous imprisonment for three months qua the offence punishable under Section 161 of the Indian Penal Code and imposed punishment under Section 5(2) of the Act to undergo rigorous imprisonment for two years and a fine of Rs.1000/- and in default to undergo rigorous imprisonment for three months. The substantive sentence is ordered to run concurrently by the learned Special Judge. 2. Shri A.D. Shah, learned counsel appearing for CR.A/674/1989 3/139 JUDGMENT the appellant, has taken this Court through the grounds of challenge and has read over the oral evidence of all the three important witnesses namely the complainant-Ayubbhai Chhotubhai Shaikh-PW-1, Ex.9; Narendrakumar Maganlal Soni-Panch no.1, PW-2, Ex.16; and Shri Kanchanlal Ratilal Jadav-Police Inspector and Investigating Officer-PW-4, Ex.24; along with the evidence of three defence witnesses examined i.e. DW-1 Sumanbhai Ratilal Joshi Ex.34, DW-2 Navinbhai Mohanlal Patel Ex.44 and DW-3 Nafisaben A. Karkhanawala Ex.45. 3. It is necessary to state the facts of the prosecution case in brief. It is the case of the prosecution that the appellant was serving as Assistant Engineer, Water Department, in the Ahmedabad Municipal Corporation at Ahmedabad. One Munshibhai Chandbhai Lokhandwala, residing near Char Toda Kabrastan, Behind Ramkumar Mills, Ahmedabad, had applied for water connection in Ahmedabad Municipal Corporation on 17th May, 1986 with the help of complainant, who is son-in-law of the said Munshibhai. The requisite amount of CR.A/674/1989 4/139 JUDGMENT Rs.243-47 ps. to be paid was paid to the Ahmedabad Municipal Corporation. The complainant thereafter had often inquired about the progress but the said application was not sanctioned under some pretext. On 29th December, 1986, at about 03-00 p.m. the complainant met the appellant being a responsible officer in his cabin and requested him for giving him water connection. During his repeated visits, he was asked that his work cannot be done without making the payment. The complainant, therefore, inquired as to what he was required to do and appellant told him that the complainant shall have to pay the amount of Rs.100/- to the appellant and Rs.200/- as per the rules. Thus, on payment of the aforesaid total amount of Rs.300/-, he will send the employee of the Ahmedabad Municipal Corporation for connection. The complainant then told him that at present he had no money and the appellant, therefore, told him to come in the evening between 03-00 p.m. and 04-00 p.m. with an amount of Rs.300/- within a day or two, and his work will be done. As the complainant had CR.A/674/1989 5/139 JUDGMENT no intention to pay the amount demanded illegally, he approached the ACB Police Inspector and filed a complaint on 31st December, 1986 at about 12-30 p.m. The ACB Police Inspector Shri Jadav arranged for two panchas and by completing the formalities required for arrangement of trap, the complainant along with the panchas and raiding party personnel went to the office of the appellant. The complainant found that the appellant had proceeded on half day leave and, therefore, he was not available. So the complainant and raiding party personnel returned to the jeep car parked near Khamasa Gate, where Police Inspector Shri Jadav was waiting for the signal. The currency note of Rs.100/- stained with anthracene powder was taken back from the complainant on a piece of paper and the same was wrapped by the Police Inspector and thereafter, necessary formalities for closure of the trap were carried out. The complainant was informed that he should see that if the appellant again demands for bribe, the said Police Inspector is contacted. On 05th January, 1987, the CR.A/674/1989 6/139 JUDGMENT complainant again approached the ACB Police Inspector Shri Jadav informing him that he had again contacted the appellant on 03rd January, 1987, and when the appellant has again made a demand of amount of bribe, and he is informed by the appellant to see him in the evening between 03-00 p.m. and 04-00 p.m. on Monday, then ACB Police Inspector Shri Jadav recorded the further complaint of the complainant below the original complaint dated 31st December, 1986. Thereafter, he called for panchas other than those who were called on 31st December, 1986 and these panchas were explained about experiment and effect of anthracene powder on the currency note, earlier which was kept in the pocket of the complainant and the same was to be handed over, on demand, to the appellant. The panch no.1 was informed to remain in company of the complainant and was asked to see and hear whatever happens between the complainant and the appellant. After reaching the Water Department, the complainant along with the panch no.1 first went to the table of one Navinbhai-DW through whom the file pertaining to the water connection of the CR.A/674/1989 7/139 JUDGMENT complainant was taken and as per the rules, they paid the amount of Rs.200/- to Nafisaben DW-3, Account Clerk of the Water Department and she issued a receipt and retained the file with her. The complainant and panch no.1 then went to the said Navinbhai with the receipt of Rs.200/-. The said Navinbhai prescribed for certain articles to be purchased for water connection on the reverse side of the said receipt and, thereafter, the complainant and panch no.1 went to the cabin of the appellant. There was only one spare chair in the said cabin of the appellant which the complainant occupied and the panch no.1 stood there. The complainant asked about the water connection and the appellant inquired about the panch no.1. The complainant introduced the panch no.1 as his friend. The complainant requested the panch no.1 to go out. The panch no.1 went out of the cabin and stood near the half flap door of the cabin of the appellant. It is alleged that he was able to hear the talk between the appellant and the complainant, and demand of money by the appellant and saw the payment made by the complainant and acceptance CR.A/674/1989 8/139 JUDGMENT of the same by the appellant. The complainant then came out of the cabin and gave a signal as instructed and on receiving the signal, the members of the raiding party including the panch no.2 asked the appellant not to move from his position. The ACB Police Inspector Shri Jadav came there and gave his introduction and thereafter, necessary formalities as to search of muddamal currency note of Rs.100/- was carried out and in turn, the experiment of ultraviolet lamp and seizure was completed. The appellant was issued a seizure memo for the articles seized from the appellant. The ACB Police Inspector thereafter recorded the statements of witnesses including Navinbhai, Nafisaben and members of the raiding party; and on obtaining necessary sanction from the Commissioner of Ahmedabad Municipal Corporation to prosecute the appellant, filed a charge-sheet on 13th June, 1988. 4. After reading the oral as well as documentary evidence, Shri A.D. Shah, learned counsel appearing for the appellant, has concentrated CR.A/674/1989 9/139 JUDGMENT his arguments and drawn the attention of the Court to the following relevant dates : 17th May, 1986 Date of making application for water connection. 29th December, 1986 The complainant, son-in-law of Shri Munshibhai-orig.applicant, when approached the appellant, the appellant had allegedly made demand of Rs.100/- as bribe/ illegal gratification. 31st December, 1986 The complaint came to be filed and a trap was arranged but the same could not be materialised as the appellant was on half day leave. 01st January, 1987 The order sanctioning water connection was received by the said Shri Munshibhai, father-in- law of the complainant. As the water connection was already sanctioned much prior to the time of alleged demand of Rs.100/- made by the appellant. 03rd January, 1987 The complainant went to the office of the Water Department for inquiry and he was informed that the water connection is sanctioned and it is alleged that CR.A/674/1989 10/139 JUDGMENT he repeated the demand of Rs.100/- and asked the complainant to make the payment of Rs.200/- towards water connection charges. 05th January, 1987 Further complaint came to be registered by ACB Police Inspector Shri Jadav and at about 03-00 p.m. a trap was arranged and on that day it is alleged that the appellant demanded and accepted the said amount in his cabin of water department of Ahmedabad Municipal Corporation. 5. I have carefully gone through the charge Ex.3 (page no.47 of the paper-book) and the evidence of PW-1 Ex.9, PW-2 Ex.16, PW-3 Ex.20 and PW-4 ACB Police Inspector Shri Jadav Ex.24, along with the other documents tendered in evidence by these witnesses. I have also gone through the contentions raised by the appellant in the written explanation given after answering the questions put by the Court under Section 313 of the Code of Criminal Procedure, 1973 while examining the appellant i.e. Ex.31. CR.A/674/1989 11/139 JUDGMENT 6. It is argued by Shri A.D. Shah, learned counsel appearing for the appellant, that the evidence of prosecution should be read in reference and background of the evidence led by the defence witnesses. Out of these three witnesses two witnesses were initially prosecution witnesses and their statements were recorded by the ACB Police Inspector Shri Jadav. However, for the reasons best known to the prosecution they were not examined. So they have been examined by the appellant as defence witnesses because both these witnesses had played some role in the actual process of the application submitted by the complainant on behalf of his father-in-law Shri Munshibhai. Shri A.D. Shah, learned counsel appearing for the appellant, has scanned the evidence while canvassing his main points of arguments and if the submissions of Shri A.D. Shah are summarised and the same are mentioned in nut-shell, then they can be placed as under: (i) The story of demand of bribe on 29th December, 1986, on reading of total CR.A/674/1989 12/139 JUDGMENT evidence is found highly unnatural and improbable because the process of application to grant water connection took more than reasonable time as Sunni Wakf Committee had raised an objection to grant water connection to the said Shri Munshibhai on various grounds and the contention of the said objection was to be considered by the Sanctioning Authority and processing machinery, and this Wakf Committee was intimated by the Ahmedabad Municipal Corporation that their objection cannot be sustained on 29th November, 1986. The Deputy City Engineer who is the Sanctioning Authority had sanctioned the connection on 16th December, 1986 and nothing was required to be done by the Water Department and unless the objections raised by the Wakf Committee are resolved or otherwise overruled, there could not have CR.A/674/1989 13/139 JUDGMENT been reason for the appellant to demand the bribe and it is not the case of the prosecution that the appellant had any time demanded the bribe to help the complainant and the orig. applicant Munshibhai in getting out of the clutches created by the Wakf Committee and the letter as to the sanction of the water connection was already signed by the Section Officer and the same was given to Navinbhai for despatch. The document Ex.48 in the background of the oral evidence of DW-2 Navinbhai Ex.44, clearly suggests that the file was with Navinbhai till 26th December, 1986 and the same was sent to Despatch Clerk. After 26th December, 1986, the file was with one Shri Joshi i.e. DW-1, Ex.34. Undisputedly, after receipt of sanction order, the orig.applicant Shri Munshibhai was supposed to pay an amount of Rs.200/- as water connection CR.A/674/1989 14/139 JUDGMENT charges and the same was not paid till 29th December, 1986 or at early hours on 31st December, 1986. It is not the say of the complainant that after paying the water connection charges to the tune of Rs.200/-, he had been to the appellant either with a request or with grievance that for no reason the Department is not giving water connection and at that point of time, the appellant had demanded the bribe amount of Rs.100/-. Thus, according to Shri A.D. Shah, the demand itself is highly unnatural and improbable. (ii) It is further argued by Shri A.D.Shah that the evidence of the complainant ought not to have been accepted as reliable and believable by the learned trial Judge, especially when he has deposed that on 29th December, 1986, the appellant took out the file and CR.A/674/1989 15/139 JUDGMENT informed the complainant that his water connection is sanctioned and he should deposit the amount because the file at the relevant point of time had already reached to the Despatch Clerk and the orig.applicant Shri Munshibhai was informed about the sanction of his water connection. There is no challenge as to the evidence of DW- 2 Navinbhai, wherein he has stated that the file was with DW-1 Shri Joshi on the relevant date. There is evidence to show that the orig.applicant had already received the letter dated 26th December, 1986, sanctioning the connection and in fact, the complainant being the representative of the orig.applicant had contacted the supervisor DW-Navinbhai on 03rd January, 1987. The evidence of Navinbhai establishes that the complainant after taking file had gone to pay up the amount of CR.A/674/1989 16/139 JUDGMENT Rs.200/-. So it is clear that till 03rd January, 1987, the amount required to be paid by the complainant was not paid and it is not the case or allegation by the complainant that anybody in the Water Department was tossing him or the file, so that he cannot pay the amount of Rs.200/- towards the water connection charges. On the contrary, it is the say of the complainant that he had been to the Account Clerk on 03rd January, 1987 for paying up the amount of Rs.200/- but as the time fixed for receipt of cash was over, he could not pay the amount and the file was returned to the said Navinbhai by the complainant. The complainant when had approached straight way to Navinbhai even on 05th January, 1987, to take out the file for the purpose of depositing the amount of Rs.200/-, his oral evidence of demand of Rs.100/- made by the CR.A/674/1989 17/139 JUDGMENT appellant could not have been believed. (iii) On plain reading of the evidence of the complainant, it transpires that on 03rd January, 1987, in the cabin of the appellant, nothing must have happened. The appellant was not in picture at that relevant point of time. So the evidence of the complainant about the event that had allegedly occurred in the cabin of the appellant on 03rd January, 1987, appears to be highly improbable and it is not the say of the complainant that the appellant directed the complainant to approach Navinbhai for arrangement of payment of Rs.200/- first. The version of the complainant that again on 03rd January, 1987, the appellant has some talk for demand of Rs.100/- which he had made on 29th December, 1987, is again highly unnatural. On the contrary, this CR.A/674/1989 18/139 JUDGMENT version of the complainant clearly exhibits the anxiety of the complainant to make out a case for lodging further complaint and arrange a trap and it also appears that he was out to trap the appellant for the reasons best known to him. (iv) The presence of anthracene powder on coat of the complainant totally falsifies the complainant as to how he handled the coat. Simply return of the receipts of Rs.200/- by the appellant to the complainant and that the complainant going out of the cabin is falsified by absence of anthracene powder on these receipts. The Investigating Officer Shri Jadav had not even cared to examine the receipts under the ultraviolet lamp. Certain admissions made by the complainant as to his leading role in the society and his wish and endeavour CR.A/674/1989 19/139 JUDGMENT to help the people at large clearly poses him to be a man with some ego and as his work was not done in couple of hours after the order of sanction was issued, he had decided to trap the appellant probably on a suspicion that he is the officer responsible for the delay in implementing the order of sanction of water connection and, therefore, he had determined to trap the appellant. So on 03rd January, 1987, he again went to the office of the ACB and lodged the second complaint, which came to be recorded as further complaint. (v) The other point argued by Shri A.D. Shah is that the evidence of prosecution witnesses on the point of anthracene powder test and the alleged marks, is conflicting and the learned trial Judge ought not to have placed any reliance on such evidence. The learned trial Judge CR.A/674/1989 20/139 JUDGMENT did not find the evidence of panch as to the anthracene powder to be reliable. The Court should consider the observations made by the learned trial Judge wherein he has stated that : “Therefore, the evidence of PW.2 that when that note was seen prior to application of anthracene powder, no light blue fluorescent was seen, in my opinion, is not correct and I will say that it is only out of either some confusion or misunderstanding or out of some wrong apprehension of facts. Actually the anthracene powder was applied to the currency note on 31/12/86 and there was no question of demonstration of the said powder test again on 5/1/87.” (vi) The panch examined before the Court i.e. panch no.1 had neither CR.A/674/1989 21/139 JUDGMENT participated at all nor he was present when the anthracene powder was applied on the muddamal currency note. So he had no opportunity to see the currency note prior to the application of anthracene powder. So there was scope for him to see the muddamal currency note without anthracene powder marks under the rays of ultraviolet lamp. The learned trial Judge has interpreted the evidence in his own way and asked a question in the nature of cross-examination so that a clarification can be sought from the witness. Shri A.D. Shah has drawn the attention of the Court to the question asked by the learned Presiding Judge of the Court and in answer to this question, the panch witness answered that at that time on that note no shining light was seen. Thereafter, the anthracene powder was applied to that note. Meaning CR.A/674/1989 22/139 JUDGMENT thereby, the say of the panch witness is that once a note was seen by him under the ultraviolet lamp and at that time, it was not smeared with anthracene powder marks and, thereafter, the anthracene powder was applied. So according to Shri A.D. Shah, the demonstration of anthracene powder test in the evidence of the panch on that aspect on 05th January, 1987, i.e. on the day of trap ought to have been treated unreliable. This witness has also not described exactly the anthracene powder marks that he must have seen. In the same way, the complainant has also not described the anthracene powder marks on the currency note in the correct manner. According to the complainant, after application of the anthracene powder on the currency note, it reflected light blue florescent colour under ultraviolet lamp. The marks of CR.A/674/1989 23/139 JUDGMENT anthracene powder under the ultraviolet lamp would not look light blue florescent. The marks are seen glittering white in the light blue florescent rays of the ultraviolet lamp. It appears that this part of panchnama has been drawn mechanically, otherwise this witness ought not to have committed such a vital mistake. The evidence of Investigating Officer Shri Jadav discloses one more vital aspect and he has admitted that he is neither the expert in respect of the test of anthracene powder nor he had taken any training or read any book as to the use of anthracene powder. The police personnel Shri Bhavanji Nathuji, who performed the demonstration of anthracene powder probably a person who must have been trained by the Department, has not been examined. (vii) The third major point advanced by CR.A/674/1989 24/139 JUDGMENT Shri A.D. Shah is that the learned trial Judge ought not to have accepted the say of the panch witness on the vital aspects as to the talk between the complainant an the appellant and on the point of passing of muddamal currency note from the complainant to the appellant, or its handling prior to the actual entry of the complainant in the cabin of the appellant and its ultimate seizure. Admittedly, the panch was not present in the cabin and he was standing outside. The position of the half flap shutter to the cabin assumes importance and the defence produced photograph at marked 'E' to show the nature of half shutter. The panchnama indicates that the panch witness saw the entire incident from the crevice between the frame of the shutter and half shutter. The said description tallies with the description of shutter shown in CR.A/674/1989 25/139 JUDGMENT the photograph marked 'E'. However, the substantive evidence of panch witness shows that the cabin of the appellant had half shutter with two flaps, and the panch witness claimed to have witnessed the passing of muddamal currency note from the said crevice between the two flaps of the shutter. This discrepancy ought not to have been ignored as minor discrepancy and the learned trial Judge ought to have held that the evidence of panch witness about his attempt to peep inside the cabin from any crevice or witnessing the event is not accepted on the ground of this material conflict. The evidence of Investigating Officer also is not consistent on this vital aspect and the claim of the panch witness to have seen the entire incident from the crevice of the half shutter and adjoining frame was not possible at all. The situation outside the CR.A/674/1989 26/139 JUDGMENT cabin of four cupboards in a line also makes the position of the panch standing near the shutter unrealistic. It is in evidence that the spare chair was just opposite to the appellant. The length and width of the cabin has also come on record, and so a person if is at 180 degree, and if the cabin had actually two flap shutters, could not see the actual passing and acceptance of bribe amount. Normally the people or at least the bribe taker would not talk with high volume or in a tone which can be overheard by anybody. It is in evidence that