CR.A/579/1993 1/52 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 579 of 1993 with CRIMINAL APPEAL NO.628 Of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= ASHWINBHAI HARIBHAI ANAND & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for appellant(s) : 1 and 3 in Cr.a579/1993. Mr.M.J.Budhbhatti, for appellant no.2 in Cr.a628/1993 Mr.L.R.Pujari, for opponent-State in Cr.a579/93 & Cr.a 628/93. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 26/10/2007 ORAL JUDGMENT 1. Both these appeals arise out of the judgment and order CR.A/579/1993 2/52 JUDGMENT of conviction and sentence dated 31-3-1993 rendered by the learned Special Judge, Ahmedabad, in Special Case no.31 of 1990 whereby the appellant-original accused no.1 was sentenced to undergo simple imprisonment for two years and fine of Rs.1000/- , in default, simple imprisonment for three months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (“the Act: for short). He was also sentenced to undergo S.I. for two years and fine of Rs.1000/-, in default, simple imprisonment for three months for the offence under Section 13(1)(d)(i) and (ii)of the Act punishable under Section 13(2) of the Act. The substantive setences against the appellant-original-accused no.1 was also ordered to run concurrently. Similarly, each of the appellants -original accused no. 2 and 3 were sentenced to undergo simple imprisonment for two years and to pay fine of Rs.1000/-,in default, each of them to undergo further simple imprisonment for three months for the offence under Section 12 of the Act. 1.1 In Criminal Appeal no.579 of 1993, the appellants- original accused nos.1 and 3 challenge their conviction and sentence while in Criminal Appeal no.628 of 1993, the appellant-original accused no.2 challenges his conviction and CR.A/579/1993 3/52 JUDGMENT sentence as stated above. They are therefore, being disposed of by this common judgment. 2. The facts giving rise to the present appeal as emerging from the record of the case can be summarized as under: 2.1 On 1-12-1989, the complainant Laxmanji Odhavji Goyani had lodged a complaint before the P.I., ACB, Ahmedabad against the appellant-original accused no.1-Ashwinbhai Haribhai Anand alleging therein that he is a resident of Bungalow no.10, Bhagat Bapanagar, Vastral Road, Sureliya Estate, Near Rabari Colony, Ahmedabad, since last eleven years and that the said Bungalow was constructed in the name of his father who is also residing with him. The complainant has further stated that six years back one more room was constructed behind the said Bungalow; that the annual Municipal tax in respect of the said property assessed at Rs.92/- were being paid by the complainant regularly. It is further the case of the complainant that on 29-11-1989 , the appellant-original accused no.1- an employee from the Tax Department, Rakhial Zone, visited the said house of the complainant to serve the tax bill. At that time, the accused no.1 noticed that machines and other articles meant for diamond cutting were lying in the said additional room which CR.A/579/1993 4/52 JUDGMENT was constructed six years back, and therefore, the accused no.1 told the complainant that the premises is being used for commercial purpose and that the tax bill has to be issued accordingly. According to the complainant, so saying, the accused no.1 left his residence without handing over the tax bill to him, however, the accused no.1 had shown the complainant the tax bill, according to which, gross rateable assessment was shown as Rs.400/- while the net rateable assessment was shown as Rs.360/- as in the previous year also. The complaint then realized that though he was not doing the business of diamond cutting or using the premises for commercial purpose, the tax bill will he assessed on commercial basis resulting which he would have to pay higher tax, and therefore, on the same day, at 3.00 p.m., the complainant went to the Tax Department of the Municipal Corporation where he met the appellant-original accused no.1 and requested him to make proper assessment of tax bill as he is not using the premises for diamond cutting industry. According to the complainant one Bharatbhai was also present with him (complainant) at that time. Then, the appellant- original accused no.1 came outside from the office and told the complainant that till then the tax bill is not put up before the superior officer for examination and promised to do the CR.A/579/1993 5/52 JUDGMENT needful if the complainant was prepared to pay Rs.400/- The complaint then expressed his inability to pay the amount, there and then, as he was not having sufficient moneys with him, whereupon, the appellant-original accused no.1 suggested that the complainant meet him in the office on the next day i.e. 30-11-1989 with the amount of bribe between 3.00 p.m. and 6.00 p.m. and assured the complainant that he would be present. However, the complainant did not go to the office of the appellant-original accused no.1 on 30-11-1989 as he had some work at his house. According to the complainant, he was not willing to give the bribe amount of Rs.400/-, and therefore, he lodged the complaint with the P.I. Anti Corruption Bureau, Ahmedabad, on 1-12-1989 who recorded the same. The P.I. ACB, thereafter, called for two Panchas, the Panchas were introduced to each other as also to the complainant. The P.I. also introduced himself to the Panchas. The Panchas having shown their willingness to act as Panchas, the contents of the complaint were read over and explained to the Panchas. The complainant also narrated the facts of the complaint to the Panchas, the Panchas were then made to understand the use of anthracene powder on the currency notes in a trap. The P.I. thereafter, asked the complainant to produce the bribe amount whereupon the complainant had CR.A/579/1993 6/52 JUDGMENT given four currency notes of the denomination of Rs.100/- each. These currency notes were then smeared with anthracene powder by Police Constable Balchandra under the instructions of P.I. Vyas and necessary experiment under ordinary light and ultra violet lamp was carried out. Presence of anthracene powder were noticed on both sides of the currency notes when viewed under ultraviolet lamp but not when seen under ordinary light. The Police Constable then put these currency notes smeared with anthracene power on the left pocket of the bush-shirt of the complainant as instructed by the P.I. It was also ensured that no particle of anthracene powder was let out on the person of the Panchas and all other members of the raiding party. The complainant was advised not to touch the currency notes until demand is made by the appellant-original accused no.1 and to give the pre-arranged signal as and when the demand is made by the appellant-original accused no.1 and the bribe money is accepted by him. Panch no.1 was asked to remain with the complainant all throughout and to see and hear the conversation that takes place between the complainant and the appellant-original accused no.1. The preliminary Panchnama was drawn and completed wherein the serial number of the tainted currency notes were mentioned. CR.A/579/1993 7/52 JUDGMENT Ultimately, after following all the statutory procedures for the laying of a successful trap, the Panch witnesses and all the members of the raiding party proceeded to the office of the appellant-original accused no.1 on that very day on 1-12-1989. They stopped their vehicle near Sindhi High School. The Panch no.2 and other members of the raiding party took their position near the office of the appellant-original accused no.1 i.e. Office of the Muncipal Corporation, Rakhial Zone, Ahmedabad while the Panch no.1 and the complainant went inside the said office in the cellar where the appellant-original accused no.1 and other employees of the tax Department were present. The complainant told the appellant-original accused no.1 that he had come as per the talk with him the other day. The appellant-accused no.1 searched for the tax assessment papers of the complainant and then told the complainant that he had left the papers in the dicky of his scooter and that the scooter had been taken away by one of his friends, and therefore, the complainant may meet him after an hour or at 5.00 p.m. Thereupon, the complainant and Panch no.1 informed the P.I, ACB, accordingly, and all of them then went to Bapunagar Maleksaban Stadium where they waited till 17.05 hours, then came back and again stopped the vehicle near Sindhi High School and in the same manner, the CR.A/579/1993 8/52 JUDGMENT complainant and Panch no.1 went into the office of the appellant -original accused no.1, however, since the friend of the appellant-original accused no.1 had directly gone to his house, and therefore, the complainant may meet him on 2-12- 1989 between 11.00 a.m. and 4.00 p.m. As a result the trap could not materialise on 1-12-1989. Again on 2-12-1989 at about 10.00 a.m. to 10.30 a.m trap was arranged in a similar fashion after completing all the required formalities under law, but since the appellant-original accused no.1 was on leave on that day, the trap was not successful. On both these occasions entries were made in the Panchnamas which were drawn to that effect and the tainted currency notes which were to be offered as bribe to the appellant-original accused no.1 were deposited back in the ACB Office. The P.I., ACB then told the Panchas that they will be informed as and when the trap is to be laid. The complainant was asked to contact the appellant -original accused no.1 and if he again demands bribe to approach the ACB Office. Thereafter, on 4-12-1989 at 10.00 a.m. when the complainant and his friend Babubhai Vallabbhai Patel were passing from Rakhial Crossing, the appellant-original accused no.1 called the complainant and asked the complainant as to what is to be done regarding the taxes to which the complainant replied that he was in a hurry. CR.A/579/1993 9/52 JUDGMENT The appellant-original accused no.1 then told that it was alright and asked the complainant to meet him(appellant- original accused no.1) in his office with the moneys in the noon hours as per the previous talk to which the complainant agreed. The complainant then contacted the P.I. Vyas, ACB, when a further complaint was recorded wherein the complainant has stated with regard to the failure of the earlier two traps and that a fresh trap is to be arranged. Thereupon, on that day i.e. 4-12-1989 itself the complainant and Panch Witnesses were called and the entire procedure of laying a successful trap as per details mentioned in respect of the trap attempted on 1-12-1989 was followed and the tainted currency notes were put in the right pocket of the Jabha worn by the complainant. Thereafter, the complainant, Panchas and all the members of the raiding party went by Government jeep and the jeep was halted near Monogram Police Chowky, Rakhial. As per instructions of P.I. Mr. Vyas, the complainant and Panch no.1 went on foot to the cellar of office of the appellant-original accused no.1 and the other members of the raiding party took their possession nearby the said office. On making enquiries, the complainant was told by an employee sitting near the table of the appellant-original accused no.1 that the appellant -original accused no.1 had gone outside for CR.A/579/1993 10/52 JUDGMENT tea. Then, the complainant and Panch no.1 went out of the office near the gate of the building. The appellant-original accused no.1 came from the opposite side, met the complainant and enquired of him as to why he had not turned up the other day to which the complainant replied that he had been to his office but appellant-original accused no.1 was not present. The appellant-original accused no.1 then told the complainant that as per the previous talk, he had told the appellant-accused no.3 who was sitting behind the table of the appellant-original accused no.1 to do his work as he (the appellant-original accused no.1) was out of station. The appellant-original accused no.1 then told the complainant that his work will be done. Thereafter, the complainant, Panch no.1 and the appellant-original accused no.1 came inside the office of the appellant-accused no.1. The complainant and Panch no.1 took their seat against the table of the appellant- original accused no.1. The appellant-original accused no.1 suggested to one Bhavsarbhai that they may go out. Thereupon, appellant-accused no.3 Bhavsarbhai, the complainant, Panch no.1 and the appellant-accused no.1 went out of the office and were chatting with each other. At that time, the appellant-original accused no.1 told the appellant- original accused no.3 that as per the previous talk which took CR.A/579/1993 11/52 JUDGMENT place on Friday between them (appellants original -accused nos.1 and 3), the work of the complainant be done. Thereupon, the appellant-original accused no.1 took out one bill of Ahmedabad Municipal Corporation from his pocket and handed it over to the appellant-accused no.3 who read the said bill. The appellant-original accused no.1 then told the appellant-original accused no.3 that previously the work of the complainant was agreed to be done at Rs.400/- but now the work be done at Rs.300/- including the tax amount. Thereafter, all of them went inside the office of the appellant -original accused no.1. The appellant -original accused no.3 took his seat against the seat of appellant-original accused no.1 while complainant and Panch no.1 stood behind the appellant-original accused no.1. On the basis of the bill which was handed over by the appellant-original accused no.1 to the appellant-original accused no.3, the appellant-original accused no.3 prepared a white coloured receipt and handed it over to the appellant-original accused no.2-Merubhai who was having his seat nearby the table of the appellant-original accused no.3 . The appellant-original accused no.3 also told the appellant-original accused no.2 to accept Rs.300/- from the complainant. After going through the said receipt the appellant-original accused no.2 asked the complainant to pay CR.A/579/1993 12/52 JUDGMENT Rs.300/-. The complainant then took out currency notes of Rs.300/- from the right pocket of his Jabha and after counting it handed it over to the appellant-original accused no.2 who in turn counted the same and put these notes in the cash box. The appellant-original accused no.2 then handed over the white receipt along with the tax bill to the complainant. Soon the complainant came out from the office of the appellant- original accused no.1 and gave the signal as pre-fixed. Thereupon, all the members of the raiding party including PI Vyas ACB, Ahmedabad came there and PI Vyas after necessary introduction of all the members of the raiding party and Panchas to the appellants-original accused asked the accused persons not to move. Panch no.1 narrated the said conversation between the complainant and all the appellants- accused to the P.I.. The P.I. then ascertained the names of all the appellants -accused and instructed the lamp operator to carry out the experiment of ultraviolet lamp on all the members of the raiding party except the complainant and the appellant-original accused no.2. Accordingly, on carrying out such experiment on all these persons under normal light as well as under ultraviolet lamp nothing significant appeared. Thereafter, when similar experiments were carried out presence of anthracene power was found on the tips of the CR.A/579/1993 13/52 JUDGMENT fingers of the appellant-original accused no.2, on the fingers, palm of both the hands of the complainant, on the right pocket and the border of the Jabha worn by the complainant, in the inner portion of the cash box, on the currency notes of Rs.300/- i.e. three currency notes in the denomination of Rs.100/- each recovered from the cash box, when viewed under ultraviolet lamp. The numbers of these currency notes when compared with the numbers of the currrency notes mentioned in the trap Panchnama of 4-12-1989 they tallied. Another currency note of Rs.100/- was also recovered from the right pocket of the Jabha worn by the complainant and when this currency note was viewed under ultraviolet lamp, presence of anthracene powder was noticed. Similarly, apart from the above currency notes of Rs.300/-, a currency note of Rs.20/- was recovered from the cash box which also showed presence of anthracene powder when viewed under ultraviolet lamp, however, the number of this currency note of Rs.20/- did not tally with the numbers of currency notes mentioned in the trap Panchnama. On personal search of the complainant tax bill and receipt was also recovered. The cash box was locked through Panch no.2 and the keys were kept with Panch no.2. The seizure memo in respect of the articles seized are at Exhs.20 and 21. A detailed second part of the Panchnama of 4- CR.A/579/1993 14/52 JUDGMENT 12-1989 was prepared. The appellants-accused were thus caught red-handed accepting the bribe amount of Rs.300/- from the complainant on 4-12-1989. The PI, ACB, Ahmedabad then commenced investigation and on completion of investigation as the appellants-accused were public servants,necessary sanction was sought and obtained vide Exh.27 from the competent authority for prosecuting the appellants-accused. Thereafter, charge-sheet came to be submitted to the Court of the learned Special Judge, City Sessions Court, Ahmedabad. The learned Special Judge framed charge Exh.2 on 10-1-1991 against the appellant- original accused no.1 for the offence under Section 7 and Section 13(1)(d)(i) and (ii) of the Act and against the appellants-original accused nos.2 and 3 for the offence punishable under Section 12 of the Act. The charge was read over and explained to the appellants-accused who pleaded not guilty to the charge and claimed to be tried. 3. To prove its case against the appellants-accused the prosecution has examined – (1) PW 1 complainant Laxmanbhi Odhavji Goyani at Exh.13, PW 2 Panchwitness Bharatkumar Kuberbhai Solanki at Exh.17, PW 3 P.I Vinod Jashwantray Vyas, Investigating Officer at Exh.23. The prosecution has also produced documentary evidence such as sanction to CR.A/579/1993 15/52 JUDGMENT prosecute Exh.27, the complaint -Mark A (Exh.24) dated 1-12- 1989; the complaint -Mark B (Exh.25) dated 4-12-1989, trap Panchnamas which failed dated 1-12-1989 and 2-12-1989 at Exhs.18 and 19 respectively, the trap Panchnama dated 4-12- 1989 at Exh.20, the seizure memo in respect of the appellant- original accused no.1 dated 4-12-1989 at Exh.21, the seizure memo in respect of the appellant-original accused no.2 dated 4-12-1989 at Exh.22 and the trap Panchnama in respect of appellant-original accused no.3 at Exh.14, the Muddamal Municipal bills produced by the defence at Exhs15 and 16. After recording the evidence of prosecution witnesses closing Purshis was filed by the prosecution and the further statement of the appellants-accused under Section 313 of the Criminal Procedure Code came to be recorded the sum and substance of which is to the effect that they were falsely involved in the case and his case was of total denial. It was also their defence that the amount of bribe as thrust into the cash box. The appellant original-accused no.1 in his defence has stated that he had kept the tax bill with him as the complainant had refused to accept the same. The appellant-original accused no.3 has denied that any conversation had taken place between him and the appellant-original accused no.1 on 4-12- 1989 or that he had handed over the tax bill to the appellant- CR.A/579/1993 16/52 JUDGMENT original accused no.2 and asked him to collect Rs.300/-, but the tax bill was received by the complainant. The appellant- original accused no.2 has stated in his defence that the complainant had told him that the tax bill was of Rs.300/- and so he accepted Rs.300/-before he received the tax bill. He also submitted that he had not received the tax bill from the complainant. 4. On appreciation, evaluation , analysis and scrutiny of the evidence adduced by the prosecution both oral as well as documentary, the learned Special Judge held that the prosecution has established beyond reasonable doubt that the appellant-accused no.1 did initially demand Rs.400/- towards bribe money from the complainant and thereafter reduced the bribe amount to Rs.300/- including tax amount and as per the suggestion made by the appellant-original accused no.3, the appellant-original accused no.2 demanded and received the bribe amount of Rs.300/- from the complainant on 4-12-1989, and therefore, held all the appellants-original accused nos.1, 2 and 3 guilty for the offence with which they were charged and passed the judgment and order of conviction and sentence as stated in para-1 of this judgment. 5. I have heard the learned Counsel Mr. A.D.Shah for the CR.A/579/1993 17/52 JUDGMENT appellants-original accused nos.1 and 3, learned Counsel Mr. M.J.Budhbhatti for the appellant-original accused no.2 and learned A.P.P. Mr. Pujari for the respondent -State at length and in great details and have also perused the record with due care and caution. 6. Learned Counsel Mr. A.D.Shah for the appellants- original accused no.1 and 3 as also learned Counsel Mr. M.J.Budhbhatti for the appellant-original accused no.2 while taking me through the entire evidence on record as also the reasons assigned and the conclusions reached by the learned Sessions Judge have submitted that the whole case of the prosecution is improbable, highly exaggerated and prayed that the appeal be allowed, the order of conviction and sentence passed by the learned Special Judge be set aside and the appellants-accused be acquitted of the offence in question. In support of their submission, they have raised several contentions. I may state here, that since I am in complete agreement with the views expressed by the learned Special Judge, I do not deem it necessary to discuss the evidence of all the witnesses in great details and burden the record, but would only discuss the evidence and documents as are necessary for the disposal of these appeals on merits. CR.A/579/1993 18/52 JUDGMENT 7. Firstly, it was contended by the learned Counsel Mr. A.D.Shah for the appellants-original accused nos.1 and 3 that there are major contradictions in the evidence of the complainant regarding the date, place and time in reference to the demand of illegal gratification made by the appellant- original accused no.1. According to the learned Counsel, in the complaint Exh.18, the complainant has stated that when the appellant-original accused no.1 came to the house of Laljibhai, the neighbour of the complainant also, the appellant-original accused no.1 called the complainant and asked the complainant to come with the amount of illegal gratification during the office hours, however, this fact does not find place in his testimony before the Court which is a major omission which has been ignored. The learned Counsel next contended that at the first point of time when the alleged demand of Rs.400/- was made, one Bharatbhai, friend of the complainant was present, but he was not examined by the prosecution which is fatal to the case of the prosecution. The learned Counsel next contended that as per the evidence of the complainant and Panchwitness, after lodging of the complaint, the appellant-original accused no.1 met them twice. According to the learned Counsel on those two occasions also the appellant-original accused no.1 has not CR.A/579/1993 19/52 JUDGMENT made any demand of illegal gratification, and hence, the prosecution has failed to prove the demand of illegal gratification from the complainant. The learned Counsel next contended that even though traps had failed on two occasions and only on the third occasion, the trap held on 4-12-1989 had succeeded, the same Panchas were used in all the traps, and therefore, the Panchas were selected ones with an ulterior motive to falsely rope in the accused in the commission of the offence in question. The learned Counsel next contended that the receipt of Rs.58.12p (Exh.59) and the tax bill (Exh.60) were handed over by the appellant-original accused no.2 to the complainant, however, experiment of ultraviolet lamp was not