CR.A/366/1989 1/145 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 366 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ================================================= 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 ? ================================================= HARJIVANBHAI POPATLAL PATEL Versus STATE OF GUJARAT ================================================= Appearance : MRS KRISHNA V BAROT for Appellant MR HRIDAY BUCH for Appellant MR SS PATEL APP for Respondent ================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 06, 07, 09, 10, 11 and 12/10/2006 CR.A/366/1989 2/145 JUDGMENT ORAL JUDGMENT Date: 06.10.2006 [1] The instant appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 and is directed against the judgment and order dated 25th May, 1989 delivered by learned Special Judge, Surat in Special Case No.2/1988 whereby the present appellant came to be convicted for the offences punishable under Section 161 of the Indian Penal Code as well as under Section 5(1)(d) to read with Section 5(2) of the Prevention of Corruption Act, 1947. For the offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947, the appellant was sentenced to undergo simple imprisonment of one year and to pay fine of Rs.1000/- and in default to undergo simple imprisonment of one month, while no separate sentence was imposed upon the appellant for the offence punishable under Section 161 of the Indian Penal Code. CR.A/366/1989 3/145 JUDGMENT [2] The facts leading to the prosecution against the appellant can be stated as under:- [2.1] The appellant at the relevant juncture was discharging his duties as a senior clerk in the office of the Housing Board situated at Surat and as such he was public servant. One of his duty was to refund the amount to the applicants to whom the buildings were not allotted to them. He was incharge of various other duties. One Shri Arvindbhai Pranshanker Vaidya, uncle of the complainant Shri Shaileshkumar Thakorlal Vaidya, previously was residing at the town of Bilimora and at that time, in 1981-82, he applied to the Housing Board for allotment of housing in pursuance of M.I.G. Scheme and he deposited the amount of Rs.500/- in Bank of India, Bilimora to be the deposit for the scheme for allotment of housing. As always there were more claimants than the availability of the housing and, therefore, Housing Board arranged a draw for allotting housing amongst the claimants. In the said draw, the appellant – Shri Arvindbhai Pranshanker CR.A/366/1989 4/145 JUDGMENT Vaidya could not succeed and, therefore, he was informed by the Housing Board vide letter dated 27th March, 1984 that he could not be allotted housing and that he should obtain the amount of deposit by way of refund from the Board. This letter was addressed to Shri Arvindbhai Pranshanker Viadya at Bilimora at his the then address. It appears that in 1981-82, Shri Arvindbhai Pranshanker Viadya shifted to Navsari for his personal circumstances. He had received the above said letter from the Housing Board, but since he had lost the said letter, he could not take any steps to obtain refund of Rs.500/- deposited by him. Somewhere in January, 1988, his nephew, complainant of this case Shri Shaikeshkumar Thakorlal Vaidya, came to Navsari to reside with Shri Arvindbhai Pranshanker Viadya as he was in need of medical treatment to his son. Shri Shaileshkumar Thakorlal Vaidya was doing a job at Surat as Laboratory Assistant in Institution named as “Mantra”. It appears that the letter received from the Housing Board for refund of the deposit might have been found by CR.A/366/1989 5/145 JUDGMENT Shri Arvindbhai Pranshanker Viadya and before 27th January, 1988, he entrusted all the papers to his nephew Shri Shaileshkumar and requested him to do the needful for obtaining refund of Rs.500/- from the office of the Housing Board situated at Surat. Complainant – Shri Shaileshkumar on 27th January, 1988 visited the office of the Housing Board and met with the appellant, as the appellant was incharge of the affairs. The appellant took all the papers from Shri Shaileshkumar and had been told by the appellant that the case was very old and Shri Shaileshkumar was required to met him after a weeks time. Accordingly complainant Shri Shaileshkumar visited the office of the Housing Board at Surat on 5th February, 1988 to inquire about the refund of his uncle Shri Arvindbhai Pranshanker Viadya. Shri Shaileshkumar met the appellant, the appellant replied that though the papers were searched, but could not be found and advised him to come after three days. Shri Shaileshkumar, therefore, met the appellant on 8th February, 1988 and on that day, according to the case of the CR.A/366/1989 6/145 JUDGMENT prosecution, the appellant stated to Shri Shaileshkumar that the case was very old and it was not possible to get refund of the deposit. It is further prosecution case that the appellant stated that nevertheless, if the complainant paid money to the appellant for his labour, the appellant would be in a position to obtain refund for the complainant. Thereupon, complainant asked the appellant as to what amount he was required to pay to the appellant. The appellant stated that the complainant was required to pay Rs.25/- to him and further stated that appellant should visit next day along with the authority letter of the uncle of the complainant during 1.30 p.m. to 2.30 p.m. and the work of the complainant would be finished. It is the prosecution case that on next day i.e. on 9th February, 1988, complainant approached ACB Office, Surat at 10.15 a.m. as he was not willing to give any amount to the appellant for obtaining refund. It is the prosecution case that complainant also discussed this aspect with his uncle Shri Arvindbhai Pranshanker Viadya, who also advised him not to CR.A/366/1989 7/145 JUDGMENT pay money to the appellant and to file complaint before the Anti Corruption Bureau against the appellant. Therefore, when the complainant reached at ACB Office at Surat, he met with Police Inspector Shri Khoda and informed him about the demand of money made by the appellant. Since the complainant was prepared to give complaint, P.I. Shri Khoda recorded his complaint and wrote one yadi to the office of Electrical Inspector, Surat for two panchas. In response to the said yadi, one Shri Shardulsinh Dhokalsinh Champavat and other Shri Bhagwandas Harkishandas Bhavsar, employees of the office of the Electrical Inspector at about 11.40 came in the office of ACB and reported to P.I. Shri Khoda. After following normal procedure, a first part of panchnama was prepared and completed in which the complainant produced an amount of Rs.25/- in three notes, two of domination of Rs.10/- each and one note of Rs.5/-. Head Constable Shri Aadhar Tulsi smeared anthracene powder upon the said muddamal currency notes and the experiment of ultra violet lamp were carried out. The CR.A/366/1989 8/145 JUDGMENT utility of the anthracene powder as well as of ultra violet lamp had been explained to panchas and to the complainant by Head Constable Shri Aadhar Tulsi. Thereafter, under the instruction of P.I. Shri Khoda, Head Constable Shri Aadhar Tulsi put the said muddamal currency notes in left side bushirt pocket of the complainant. It was ensured that the said pocket of the bushirt of the complainant was kept vacant. P.I. Shri Khoda instructed the complainant – Shri Shaileshkumar that unless and until, the appellant demanded the amount, the complainant was not to touch the said pocket of the bushirt and if at all the appellant made demand then the complainant to pay the muddamal currency notes. It was also instructed that on acceptance of the amount by the appellant, the complainant was to give a signal by coughing. Panch No.1 – Shri Shardulsinh Dhokalsinh Champavat was instructed to remain with the complainant, while panch No.2 – Shri Bhagwandas Harkishandas Bhavsar was to remain with P.I. Shri Khoda and other personnel of police. Head Constable Shri Aadhar Tulsi, CR.A/366/1989 9/145 JUDGMENT thereafter, secured the anthracene powder, cotton etc. in a cupboard and after burning the paper used for smearing anthracene powder, washed his hands by soap. Ultra violet lamp experiment was, thereafter, carried out. The hands of all of them were found clean. Thus, completing the first part of panchnama, in a Government vehicle, complainant, both panchas, P.I. Shri Khoda and other members of the raiding party reached near the office of the appellant and from Rajkumar Cinema, complainant – Shri Shaileshkumar and panch No.1 – Shri Shardulsinh Champavat walked towards the office of the appellant, which was situated on 2nd Floor of the said building. The members of the raiding party and panch No.2 took their position out side the office of the appellant. According to the prosecution case, when complainant and panch No.1 reached near the table of the appellant, they found the appellant sitting there. The complainant – Shri Shaileshkumar demanded the refund amount, as per the previous talk which had taken place between the appellant and the complainant. The appellant CR.A/366/1989 10/145 JUDGMENT replied that whether the complainant had brought the money for his labour in pursuance of the talk which they had on previous day. The complainant replied in affirmative. Thereupon, the appellant stated to wait and that he would return shortly and, thereafter, with registers and with one cheque book, he went to the office of the accountant. After sometime, the appellant returned from the office of the accountant and came to his table, conveyed to the complainant that he was called by accountant Shri Topiwala. It is the prosecution case that thereafter, complainant, panch No.1 and appellant all three went to the chamber of accountant Shri Topiwala. Accountant Shri Topiwala stated to the complainant that he was required to give one application detailing that the old cheque was to be cancelled and new cheque to be issued to him. This instruction was given by the accountant Shri Topiwala to the appellant, also that such application was to be obtained from the complainant and, therefore, the appellant, complainant and panch No.1 returned to the table CR.A/366/1989 11/145 JUDGMENT of the appellant. Thereafter, the appellant in his own handwriting through a ball pen wrote one application as directed by the accountant and he obtained signatures of the complainant on behalf of the uncle of the complainant. Thereafter, the appellant with cheque went to the chamber of officer Shri Shah and returned after sometime to his table. Resuming his seat, appellant asked the complainant as to whether in pursuance of the talk took place between them on previous day, whether complainant had brought the amount of Rs.25/- for his labour. The complainant, thereupon took out the muddamal currency notes from his bushirt pocket and offered to the appellant. The appellant accepted the said muddamal currency notes by his hand and put the same in his (appellant) left side shirt pocket. Thereafter, the appellant tore out the cheque of refund from the cheque book and handed over the same to the complainant, which the complainant – Shri Shaileshkumar after folding the same put in back pocket of the pant. Thereafter, the appellant obtained receipt of the complainant CR.A/366/1989 12/145 JUDGMENT mentioning the cheque number and date on the application which the appellant had prepared in his own handwriting. The complainant, thereafter, suggested to the appellant that he had brought the authority letter and was prepared to give. The appellant replied that the said authority letter was not needed. The complainant thereupon went out side of the office and gave pre-arranged signal by coughing. After giving signal, complainant again came in the office and reached to the table of the appellant, in the meanwhile, the members of the raiding party, P.I. Shri Khoda and panch No.2 reached at the table of the appellant. P.I.Shri Khoda introduced himself and instructed the appellant to remain as he was. The names and details of the appellant were asked. P.I. Shri Khoda inquired from panch No.1 that what had taken place and, thereafter, P.I. Shri Khoda instructed Head Constable Shri Tulsi to start experiment in ultra violet lamp. Except the complainant and appellant, the hands of all of them were seen in the said ultra violet lamp, but no marks were found in the hands of anybody. CR.A/366/1989 13/145 JUDGMENT Thereafter, the hands of the appellant were seen in ultra violet lamp, an anthracene power marks were found on the right hand of the appellant. On examining body of the appellant in the said ultra violet lamp, it was found that on left side of the bushirt there were powder marks on brink of the pocket. The powder marks were also found inside the said pocket. Thereafter, panch No.1 was directed by P.I. Shri Khoda to take search of the person of the appellant and during that search, muddamal currency notes of Rs.25/- were found from the left side shirt pocket of the appellant. Those notes were seen and examined in ultra violet lamp and powder marks were found. The numbers of the notes were compared with the first part of the panchnama and they were tallied. From the pant pocket of the complainant, handkerchief, key chain etc. were found, which were not seized, while muddamal currency notes as well as ball pen were found from the shirt pocket of the appellant, were seized. A search of the person of the complainant was also conducted and it was found that the left side shirt pocket of CR.A/366/1989 14/145 JUDGMENT the complainant was empty and muddamal currency notes were not there. The cheque was found from the back pant pocket of the complainant and at the corner of the said cheque had anthracene powder marks as well as the back pocket of the pant of the complainant had also powder marks. The authority letter was given by his uncle in original was found from the complainant, which was also seized from the complainant. In examination in the light of the ultra violet lamp right hand fingers and thumb of the complainant were found tainted with powder marks. The left side shirt pocket of the complainant was also had powder marks. From there, one old cheque register, cheque book and other papers in respect of refund of his uncle including advance receipt given to the appellant by the complainant were seized by the police. The panchnama of the second part was completed there at about 16.30 hours. Thereafter, at about 19.00 hours, in the office of accountant Shri Topiwala in presence of panchas, one memo of cheque register and one cheque book from which a cheque was issued on 9th CR.A/366/1989 15/145 JUDGMENT February, 1988 were seized by the police through panchnama and offence came to be registered at the ACB Police Station. The investigation was carried out by P.I. Shri Khoda and he recorded the necessary statements and obtained sanction to prosecute the appellant and he received the said sanctioned on 10th October, 1988 and on the same day, he preferred the charge-sheet against the appellant in competent Court and arrested the appellant. [3] Vide Ex.3, learned Special Judge framed charges levelled against the appellant on 15th April, 1989 for the above said offences to which the appellant denied and pleaded not guilty and hence, the prosecution was asked to tender the evidence to prove its case. 07.10.2006 [4] The prosecution examined four witnesses to prove the case. P.W.1 – Shaileshkumar Thakorlal Vaidya is examined at Ex.6, who is complainant, P.W.2 – Shardulsinh Dhokalsinh CR.A/366/1989 16/145 JUDGMENT Champavat is examined at Ex.14, who is panch No.1 of panchnama at Ex.16, P.W.3 – Arvindbhai Pranshanker Vaidya is examined at Ex.19, who is uncle of the complainant and whose deposit was to be refunded, P.W.4 – Ahmed Mohmmadkhan Khoda is examined at Ex.20, who was the then Police Inspector, ACB Police Station, Surat and investigated the offence. [5] In addition to the above all evidence, the prosecution also tendered documentary evidence in bulk. At Ex.7 application dated 9th February, 1988 was given by the complainant and written by the appellant is produced. At Ex.8 letter dated 27th March, 1984 addressed to P.W.3 - Shri Arvindbhai Pranshanker Vaidya by Housing Board is produced by which it is intimated that Shri Arvindbhai Pranshanker Vaidya was to obtain the amount of deposit paid by him. At Ex.9 cheque issued and delivered to the complainant on 9th February, 1988 is produced. At Ex.10 original authority letter given by P.W.3 - Shri Arvindbhai Pranshanker Vaidya to the complainant CR.A/366/1989 17/145 JUDGMENT for receiving the refund of Rs.500/- is produced. At Ex.11 the receipt of Bank of India of having paid Rs.500/- by Shri Arvindbhai Pranshanker Vaidya by way of deposit to the Gujarat Housing Board is produced. At Ex.12 an intimation in this respect from the Housing Board to P.W.3 - Shri Arvindbhai Pranshanker Vaidya is produced. Advanced stamp receipt blank and typed on revenue stamp by P.W.3 - Shri Arvindbhai Pranshanker Vaidya and delivered to the appellant by the complainant is produced at Ex.13. Office copy of seizure memo prepared at the time of the raid for the articles seized from the accused is produced at Ex.15 and accused had signed the same in token of having received original copy of seizure memo. panchnama in two parts prepared in presence of panchas is produced at Ex.16. Vide Ex.17 second panchnama by which muddamal article No.16 register was seized by Investigating Officer in presence of panch from accountant Shri Topiwala, is produced. This panchnama was drawn on 9th February, 1988 at about 19.00 hours after the raid was over. By this panchnama, cheque book, CR.A/366/1989 18/145 JUDGMENT muddamal article No.17 which is a cheque book from which the cheque issued and delivered to the appellant on 9th February, 1988 was also seized. Office copy of receipts of these two articles as signed by Shri Topiwala, accountant is produced at Ex.18. Complaint filed by Shri Shaileshkumar Thakorlal Vaidya before P.W.4 – Shri Khoda is produced at Ex.21, sanction to prosecute the appellant as given by Housing Commissioner on 27th July, 1988 is produced in original at Ex.22. At Ex.23 xerox copy of Ex.10 original letter which was attached with the complaint by the complainant is produced. Vide Ex.24 a report made by P.W.4 – P.I. Shri Khoda to the Commissioner of ACB in Special Case No.1/1984 [not related with the present case] is produced. It appears that in the said report, when panchas of the said Special Case No.1/1984 were not consistent in their depositions, P.I. Shri Khoda reported this matter to the Commissioner of ACB to take action against the panchas of the said case. [6] After the prosecution case was over, a CR.A/366/1989 19/145 JUDGMENT statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. In his statement, he admitted that he was serving as a Senior Clerk and was public servant at the relevant juncture. He admitted that the complainant met him about the refund of his uncle on 27th January, 1988 at 1.30 p.m. He admitted that the refund papers were old and were of 1984. He admitted that the complainant met him on 5th February, 1988 and on 4th February 1988 also. He denied other allegations made in the evidence. He denied that he had told the accused to bring the authority letter on 8th February, 1988 and he stated in fact that on 27th January, 1988 itself, he had stated to the complainant to bring the authority letter. In question put to him, he stated that the application Ex.7 was not written by him as stated by the complainant. But after the cheque was delivered to the complainant as instructed by Shri Topiwala, he requested the complainant to write an application and the complainant told him that he could not write. The accused stated that therefore, he wrote the CR.A/366/1989 20/145 JUDGMENT application. He further explained that when he wrote the application, the cheque had already been delivered to the complainant and from that cheque the details were written in the application at Ex.27 and the writing of the body of the application and the receipt below that were written by him at the same time and, thereafter, raid was carried out. In the question put to him that whether the appellant wanted to say anything further, he stated as under: “As I have said before the case of the uncle of the complainant was very old. Even then till 5th February, 1988, I had completed all the procedures relating to the case after searching out the papers. On 4th February, 1988 and on 5th February, 1988, our Assistant Manager Shri Shah was in district and he resumed the office in the afternoon on 5th February, 1988. I had instructed the complainant to come on 5th February, 1988 in the afternoon. That was not convenient to the complainant CR.A/366/1989 21/145 JUDGMENT and, therefore, I had instructed him to come on 6th February, 1988. The complainant had visited me on 6th February, 1988, but he had not brought authority letter which I told him to bring. I told him that why the complainant had come without authority letter. On account of this, I had hot conversation with the complainant and complainant had said to me that I was making him coming to the office frequently and on 9th February, 1988 raid was arranged. On 8th February, 1988, complainant had not come to me and no conversion had taken place between me and complainant as stated by him. On the day of the raid I had inquired from the complainant as to whether he had brought the authority letter which he stated that he had brought the same and was lying in Luna parked near the building and which he would bring after going down. This false case is filed against me. I am CR.A/366/1989 22/145 JUDGMENT innocent. I have not demand bribe nor I have accepted the bribe after demanding the same.” The appellant accused denied to examine defence witness. But he submitted his written statement which is at Ex.26. Free translation of the explanation given in writing by the appellant is as under: “I accused is innocent. I accused has not committed any crime. I accused was demanding right from 27th January, 1988 authority letter of his uncle and on that day, I had also searched old record. On 4th February, 1988, Estate Manager was in district and, therefore, without his signature, old cheque which was ready in the name of the uncle of the complainant would not be cancelled and, therefore, the complainant was called again on 5th February, 1988. On that day also, Estate manager was in CR.A/366/1989 23/145 JUDGMENT district and was to come in the afternoon and hence, the signature of Divisional Accountant Shri Topiwala was obtained on 5th February, 1988 on necessary papers and in cheque. This muddamal produced in the Court, which may be taken into consideration. On 5th February, 1988, complainant came before recess and at that time Estate Manager still had not resumed the office and was to come in the afternoon. I instructed the complainant to come in the evening on that day, but he refused to come in the evening on that day. Accordingly on 5th February, 1988, when Estate Manager resumed the office in the afternoon, his signature was obtained on necessary papers and cheque. The old cheque could not have been cancelled without the signatures of the above two officers and till then no procedure could be initiated to issue new cheque. The complainant came on 6th February, CR.A/366/1989 24/145 JUDGMENT 1988, on that day had he brought authority letter, he would have obtained cheque for refund.