CR.A/388/1988 1/87 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 388 of 1988 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 ? ======================================== KANTILAL H PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================== Appearance : MR MR BAROT, LD.SENIOR COUNSEL WITH MR.JM BUDDHBHATTI for Appellant. MR AJ DESAI, LD.APP for Respondent. ======================================================== CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 11/12/2006 ORAL JUDGMENT 1. The appellant-orig.accused has been held guilty for the offence punishable under Section 161 of the Indian Penal Code as well CR.A/388/1988 2/87 JUDGMENT as under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (old Act) [hereinafter referred to as 'the Act']. The appellant has challenged the legality and validity of the judgment and order of conviction and sentence dated 22nd April, 1988, passed by the learned Special Judge, Ahmedabad (Rural) at Narol, in Special Case No.8 of 1986, whereby he has been asked to undergo simple imprisonment for one year and to pay fine of Rs.250/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 5(1) (d) read with Section 5(2) of the Act. No separate sentence was ordered for the offence punishable under Section 161 of the Indian Penal Code proved against the appellant. 2. The judgment and order under challenge is assailed on various grounds mentioned in paragraph no.2(B) of the memo of the appeal and the learned senior counsel Shri M.R. Barot, appearing with Shri J.M. Budhbhatti, has taken me through all these grounds and has submitted that the judgment and order of CR.A/388/1988 3/87 JUDGMENT conviction and sentence is erroneous and the learned trial Judge ought to have acquitted the appellant. At least the appellant could have been given benefit of doubt in view of the facts emerging from record. I have heard Shri A.J. Desai, learned Additional Public Prosecutor, appearing on behalf of the State, who has also replied to all the submissions made by the learned senior counsel appearing for the appellant. 3. To appreciate these submissions, it would be first necessary to have a look on the basic facts which were placed before the learned trial Judge. According to the prosecution, the appellant was serving as Talati-cum- Mantri at village Santhal of Taluka Dholka. The complainant-Becharbhai had approached him as he wanted to get the name of his brother and himself entered in the record of rights after the death of his father. As the complainant and his brother had inherited all the properties of their late father, the names of complainant and his brother were required to be mutated in all the relevant CR.A/388/1988 4/87 JUDGMENT revenue records. For this purpose, the complainant had given an application on 07th February, 1986. But the appellant instead of accepting the application asked the complainant to pay an amount of Rs.500/- for doing the said work towards illegal gratification and assured him that his work shall be done. As the complainant was not in a position to make the payment, it is alleged that he negotiated with the complainant and ultimately agreed that the appellant would be paid an amount of Rs.150/- and the names of the complainant and his brother shall be mutated in the record of rights. This demand of Rs.150/- was an amount of bribe/ illegal gratification. It is further the say of prosecution that the complainant was of the opinion that he should not succumb to the demand of illegal gratification of the appellant and the appellant will not be paid. The complainant, therefore, approached the Anti Corruption Bureau (hereinafter referred to as 'the ACB') at Ahmedabad and lodged a complaint stating the details and after necessary preliminary inquiry and procedure, CR.A/388/1988 5/87 JUDGMENT the ACB Inspector arranged for the trap. It is alleged that the complainant was asked to go on 14th February, 1986 and, therefore, he had gone to the office of the ACB on that day and at about 03-00 p.m., the appellant was trapped. It is stated by the prosecution that the complainant and the Panch no.1-Rameshbhai Kantilal Modi entered into the office of the Panchayat, where according to the prosecution, the appellant demanded the amount of illegal gratification and on such demand, the muddamal currency notes stained with anthracene powder and marred numberwise were passed over to the appellant, who accepted the same and put them into the drawer of his table. Soon thereafter, on receipt of the signal, from the complainant, the office of the appellant was raided with trap leader ACB Inspector Shri Desai. The amount of illegal gratification was recovered from the drawer of the table besides where the appellant was sitting on the chair. It is further the say of the prosecution that on experiment which was carried out with the ultraviolet lamp (hereinafter referred to as CR.A/388/1988 6/87 JUDGMENT 'the U.V. Lamp'), it was noticed by the members of the raiding party including the Panch no.2 that the finger tips of all the fingers of the right hand of the appellant were shining and other places like the articles lying in the drawer where the muddamal currency notes were kept along with some other papers written and prepared in the office of the appellant were also found stained with anthracene powder. The numbers of muddamal currency notes were thereafter compared with the numbers of those currency notes mentioned in the first part of panchnama and the trapping officer Shri Desai completed other formalities of seizure of muddamal documents, etc. and on completion of the investigation, the trapping officer found that the appellant has committed the aforesaid offence and, therefore, submitted his final report. 4. Shri M.R. Barot, learned senior counsel appearing for the appellant, after taking this Court through the entire evidence led by the prosecution and mainly the deposition of CR.A/388/1988 7/87 JUDGMENT the complainant as well as the panch no.1- Rameshbhai Modi, submitted that the prosecution has not proved the demand allegedly made on 07th February, 1986 for Rs.500/- with cogent and convincing evidence and the story of the alleged demand made on 07th February, 1986 is a created or got up story. Therefore, the ultimate settlement of the demand of bribe of Rs.150/- should be viewed with utmost doubt. The learned trial Judge ought not to have accepted the evidence led by the prosecution that the demand of bribe either for Rs.500/- or Rs.150/- was made on 07th February, 1986, as alleged and the appellant had called the complainant to come to his office on 14th February, 1986 on that day i.e. on 07th February, 1986. The defence of the appellant is that the complainant had come to his office against the demand of land revenue including the House Tax raised against him and his family. The demand was raised against the two different heads and to show the same there are documents on record. Under one head, the complainant and his family members were CR.A/388/1988 8/87 JUDGMENT required to pay something more than Rs.148/- and the learned trial Judge has failed in appreciating the explanation given by the appellant while placing his say under Section 313 of the Code of Criminal Procedure, 1973 and the documents tendered along with the explanation. It is alleged that the complainant had met appellant on 07th February, 1986 for getting the names of his brother and himself mutated in the record of rights after the death of his father. The father of the complainant had expired on 08th January, 1985, before about more than one year from the date of trap. It is neither the case of the prosecution nor the say of the complainant that he had ever met the appellant before 07th February, 1986 for getting their names mutated in the record of rights. There is sufficient evidence as to the demand of Rs.500/- or Rs.150/- on 07th February, 1986. In support of this submission, by reading evidence of the complainant as well as the Investigating Officer-Raiding officer Shri Desai, Shri Barot, learned counsel appearing for the CR.A/388/1988 9/87 JUDGMENT appellant, has pointed out the following facts : (i) After the death of father of the complainant on 08th January, 1985, he had not approached the appellant for mutation or requested him to help him in this work. He had opportunity to see and meet the appellant for other work. It is the say of the appellant and has been admitted by the complainant that the appellant was meeting him and the family members of the complainant for recovery of Government revenue. (ii) On 14th February, 1986, when the complainant approached the ACB Officer, he had not taken any document in support of his grievance like the death certificate of his father, obtained from the village Panchayat or any other document. CR.A/388/1988 10/87 JUDGMENT (iii) When it is specifically alleged by the prosecution that on 07th February, 1986, by the complainant the complainant had approached the appellant with a written application (Ex.31) for mutation of entry, the appellant had not accepted the said application and he was possessing the original application which was returned to him by the appellant, he had not taken the document to the office of the ACB while lodging the complaint. (iv) For the reasons best known to the trapping officer, he took the complaint and had not insisted for the original application dated 07th February, 1986 allegedly written and prepared by him prior to the arrangement of the trap or trapping procedure on 14th February, 1986. CR.A/388/1988 11/87 JUDGMENT (v) The application (Ex.31) allegedly given to the appellant on 07th February, 1986 was recovered by the Investigating Officer from the complainant on 15th February, 1986, while recording his further statement at Ahmedabad. When the date 07th February, 1986, is found corrected by overwriting figure '7' in vernacular language Gujarati and when it is also found seeing the original that by erasing the day i.e. 'Wednesday', 'Friday' was written, no reliance could have been placed on such a document, and if this document is viewed with suspicion, the evidence of alleged demand of illegal gratification made by the appellant on 07th February, 1986, would not sustain. The prosecution is supposed to prove the allegation of demand made and it has failed, is the submission. CR.A/388/1988 12/87 JUDGMENT (vi) To strengthen the case of demand allegedly made on 07th February, 1986, the complainant has led conflicting evidence. On one hand, it is said that the complainant had gone to the office of the Talati-cum-Mantri i.e. appellant, and met him at about 01-00 p.m. when the demand in question of Rs.500/- was made by the appellant for work of mutating the entries in the record of rights and to justify the same, it was argued that his duty is in a private factory at a distance of about 7 kms. from his village and he had started from 03-55 p.m. but when the very complainant had admitted in the cross-examination that as he was to go for work of entry in record of rights in the office of the Talati-cum-Mantri i.e. appellant, he had not gone for his work on 07th February, CR.A/388/1988 13/87 JUDGMENT 1986. (vii) Nobody had prevented either the complainant or his brother to obtain the death certificate of the father of the complainant prior to approaching the Talati- cum-Mantri for the purpose of entry on 07th February, 1986 and it is in evidence that such certificate was obtained for the first time by the Investigating Officer himself as the applicant perhaps had not tendered it to the officer prior to the raid. The certified copy of the death certificate shows that it was obtained on 14th February, 1986. 5. The complainant has admitted in his evidence that he was interested in getting the names of his brother and himself entered in the revenue record and not of his mother or sisters. In the cross-examination, this fact has been admitted by him in paragraph no.17 CR.A/388/1988 14/87 JUDGMENT of his deposition. He has further admitted that he had told the appellant that the names of his mother and sisters should not be entered in record of rights, though he has admitted that he had informed the appellant that his mother and sisters are alive. In turn, the appellant had told the complainant that the names of his mother and sisters shall have to be entered into the record of rights, and thereafter, their names can be deleted (dropped). He has also admitted that the appellant had told the complainant that for getting the names of his mother and sisters deleted, he will have to bring their signatures. It is the say of the complainant that he had not informed or requested the appellant to prepare the 'pedhinama' (pedigree). He has further submitted that he had obtained the death certificate of his father (Ex.90) on 14th February, 1986, but the appellant had insisted that the death certificate will be necessary for mutation of names on 'Varsai' (inheritance). The conversation that has come on record in paragraph no.17 creates clear cut impression CR.A/388/1988 15/87 JUDGMENT that the appellant was not going to do any favour to the complainant and he had insisted for legal way. According to Shri Barot, learned senior counsel appearing for the appellant, the complainant had falsely implicated the appellant in a serious case because he had developed enmity firstly by insisting on the point of entrance of names of mother and sisters of the complainant in the record of rights; and secondly, by making a constant demand of arrears of land revenue and House Tax and other Government dues, etc., for which the appellant was entitled to inflict the recovery. So the status of the complainant is not of an innocent citizen but of a person who had developed animosity internally and, therefore, he might have developed reasons to implicate the appellant in any serious offence. In support of this submission, Shri Barot has taken me through the relevant part of cross-examination at paragraph no.23, wherein he has admitted that when they were (he and panch no.1) in the office of the appellant (on 14th February, 1986), the appellant had told him that the CR.A/388/1988 16/87 JUDGMENT amount towards the land revenue and House Tax of the complainant is due and he was in arrears; and in response thereof, the complainant had told the appellant that he is aware about the arrears. He has also admitted that the Talati-cum-Mantri i.e. the appellant, had asked him to pay up the said amount and he was also threatened of attachment. In response of the same,the complainant has further admitted that he had told the appellant that he will pay the amount after making arrangements. However, he has denied that thereafter he had given Rs.150/- to the Talati-cum-Mantri i.e. appellant herein. In paragraph no.12 of the deposition, it has come on record that in the year 1985, he had paid an amount of Rs.200/- as part payment against the arrears of revenue. At that time, an amount of Rs.297-48 ps. was to be paid and since then, they have not paid any amount against the land revenue. He has admitted that as on 31st July, 1986, the total arrears of land revenue only was of Rs.147-83 ps. and they were also in arrears of Rs.283-00 ps. of House Tax CR.A/388/1988 17/87 JUDGMENT uptill 01st April, 1986. He has admitted that the land revenue and House Tax remained in arrears as they had interse family disputes and the amount of Rs.200/- was paid in the year 1985 by one of his brothers namely Babubhai. In paragraph no.13 of his deposition, the complainant has further admitted that because of one litigation pending in the Court of Mamlatdar, Dholka, which was a tenancy case, he was often meeting the appellant. He was also meeting the appellant in the office of the Panchayat at village Santhal. The say of Shri Barot is that when the appellant was meeting the complainant frequently, why he was not asked or requested to help the complainant in getting the names of his brother and himself mutated in the record of rights till 07th February, 1986, is the crucial question. Though the complainant has denied the suggestion, it is the say of the complainant that he had requested the appellant to help him in the tenancy case which was pending before the Mamlatdar. But the appellant had denied and he was informed that he cannot CR.A/388/1988 18/87 JUDGMENT help the complainant or his family in a tenancy proceeding. 6. Shri Barot, learned senior counsel appearing for the appellant, has drawn attention of the Court that one admission made by the complainant wherein he has accepted that on 13th February, 1986 i.e. a day prior to the day on which the trap was arranged, his family was served with a notice through the peon of the Panchayat and this notice was served/ collected by his cousin brother Ambalal Manilal. The notice dated 13th February, 1986 has not been produced by the complainant. The Investigating Officer has not produced his case diary of investigation and the Court can reasonably believe that this notice must have been recovered during the course of investigation by Shri Desai. If Shri Desai has recovered the said notice and not produced before the Court, it would become a question of material suppression and if such recovery was made on 13th February, 1986, this infirmity would positively go against the prosecution because the CR.A/388/1988 19/87 JUDGMENT complainant himself has admitted that such a notice on previous day was served. Prior to 13th February, 1986, a detailed statement of brother of the complainant i.e. Ambalal Manilal, was recorded by the appellant and the signature of Ambalal Manilal was also obtained. This Ambalal Manilal ought to have been examined by the prosecution as witness. The learned trial Judge could not have ignored the document dated 13th February, 1986, which is detailed statement without accounts and figures produced with the written explanation given by the complainant. This document at Mark 48/6 clearly shows that the family of the complainant was in arrears of certain amount under two different heads; one for Rs.147-82 ps. towards land revenue and another Rs.282/- towards three other minor heads like House Tax, Light charges, etc. In this document, some amount is shown as an amount of arrears of last years, which has been referred to as “Pa-ba” in vernacular Gujarati, meaning thereby, “past dues”. 7. The Court while appreciating the say of the CR.A/388/1988 20/87 JUDGMENT appellant and evaluating the case of the prosecution ought to have considered the scheme of Section 5(1)(d) of the Act, where the word 'obtain' is used. While making this submission, Shri Barot has placed reliance on one decision of the Apex Court in the case of Bhagwan Singh v. State of Rajasthan, reported in AIR 1976 SC 985. He has taken the Court through the relevant paragraph no.7 of the cited decision. According to Shri Barot, the prosecution is under legal obligation to prove beyond doubt that the amount or valuable thing or pecuniary advantage obtained by the accused is an illegal gratification and he has obtained it for himself or for any other person. In the present case, the appellant has reasonably established that the amount given to him and kept in the drawer by him, was tendered to him against the land revenue; otherwise in the present case of a stranger who was introduced as a person serving with the complainant in a factory, who was not residing at village Santhal, the appellant CR.A/388/1988 21/87 JUDGMENT neither would have given threat of attachment to the complainant, nor he would have accepted the amount in presence of the third person, a stranger. It is not the say of the complainant that when he entered into the office of the Panchayat and they were talking, the appellant had not attempted to know as to what is the identity of the third person accompanying the appellant. The complainant is emerging as an unreliable witness, is also the argument of Shri Barot because he has suppressed some important aspects even from the Investigating Officer and only with a view to corroborate the complainant, Shri Desai, Investigating Officer, has also not tried to depose objectively. Shri Desai is an important trap witness and his evidence is required to be scanned closely because he is the person interested in the result of the trap i.e. success of the trap, like the complainant. The complainant says that he had obtained certified copy of the death certificate from the appellant on 14th February, 1986 and he has denied the suggestion that he had never CR.A/388/1988 22/87 JUDGMENT obtained the death certificate even on 14th February, 1986. The Investigating Officer Shri Desai states that he has obtained the certified copy of the death certificate from the appellant. The complainant himself admits that his family is in arrears of land revenue and frequent demands were made by the appellant. The brother of the complainant was served with a notice on 13th February, 1986. It is in evidence of the very cousin brother Ambalal Manilal that his statement was recorded on 10th February, 1986. It is not a matter of dispute that the family of the complainant and his cousin brother Ambalal Manilal is owning agricultural lands and residential premises in joint names of heirs of their ancestors and it emerges that therefore only there were some disputes as to the liability to pay up the amount of land revenue. Even then the Investigating Officer Shri Desai has stated in his deposition that he was not aware about any arrears of land revenue on the complainant or his family. This say of Shri Desai, Investigating Officer, is sufficient to disbelieve his CR.A/388/1988 23/87 JUDGMENT version for being unfair in carrying out investigation. The Court is not supposed to or legally authorised to ascertain any fact or aspect by reading police statement of any witness and only source with the Court would be of case diary through which the transparency of the Investigating Officer can be ascertained. A pointed question could have been asked to the Investigating Officer Shri Desai that he had recovered the notice dated 13th February, 1986, served to the family of the complainant through peon of the Panchayat and signed by the appellant and he has suppressed the same because it is reflected in the complaint i.e. FIR (Ex.42) that the complainant has disclosed that he is in arrears and he has to pay the House Tax of about Rs.200/- and he is going to pay this amount subsequently and the appellant-Talati- cum-Mantri has not to recover the amount of House Tax. This statement made in the complaint if is appreciated in the background of the evidence led by the complainant as well as Shri Desai, both are found saying falsehood. As discussed earlier, the CR.A/388/1988 24/87 JUDGMENT complainant has suppressed that he is also to pay the land revenue to the tune of Rs.147-83 ps. and about Rs.283/- against the House Tax, etc. and the notice was served by the appellant- Talati-cum-Mantri, even then he disclosed before the police that the appellant is not entitled to recover the House Tax. If the appellant had no authority to recover the House Tax, which authority was entitled to recover the same, was the question which ought to have been replied by the prosecution. In paragraph no.18 of the deposition, Shri Desai has audacity to say that for the land in question, meaning thereby, for which the