CR.A/360/1989 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 360 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 ? ========================================= NATVARLAL VALLABHBHAI PRAJAPATI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS RV ACHARYA for Appellant(s) : 1, MR AJ DESAI, LD.APP for Respondent (s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 02/03/2007 ORAL JUDGMENT 1. The present appeal is preferred by the appellant-orig.accused (hereinafter referred to as 'the appellant') of Special Case No.1 of 1987, tried by the learned Special Judge, Valsad at Navsari for the offences punishable under Section 161 of the Indian Penal Code and CR.A/360/1989 2/40 JUDGMENT Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act'). The learned trial Judge vide his judgment and order of conviction and sentence under challenge dated 06th June, 1989, has held the appellant guilty of the charge levelled against him and sentenced him to undergo rigorous imprisonment for one year and a fine of Rs.1000/- for each offence punishable under Section 161 of the Indian Penal Code and Section 5(2) of the Act, and in default of making payment of amount of fine, shall undergo simple imprisonment for three months. 2. Ms.R.V. Acharya, learned counsel appearing for the appellant, has taken this Court through the grounds of challenge mentioned in paragraph no.3 of the memo of the appeal and so also relevant part of the oral well as documentary evidence led during the course of trial. According to Ms.R.V. Acharya, the finding recorded by the learned trial Judge is based on erroneous appreciation of evidence CR.A/360/1989 3/40 JUDGMENT and the same is nothing but a guess work and conjecture. This is a case wherein the appellant even as per the story of the prosecution had never demanded the amount of bribe/ illegal gratification and, therefore, the alleged recovery of muddamal currency notes of Rs.60/- cannot be equated with the recovery of bribe amount or the amount received as illegal gratification by the appellant. This case falls in the category of mere recovery of the amount and therefore, the appellant was at least required to be given benefit of doubt. 3. Shri A.J. Desai, learned Additional Public Prosecutor, appearing for the respondent-State by reading the relevant part of the oral evidence as well as the documents referred to by the learned trial Judge, has submitted that the finding recorded by the learned trial Judge is based on sound reasons. There is no element of either conjectures or surmises. The panchnama has been rightly appreciated. Some CR.A/360/1989 4/40 JUDGMENT part of evidence of the complainant if is considered in the background of the evidence led by the panch no.1 and the answers given by the panch no.1-PW-4 in the cross-examination, it emerges clearly beyond reasonable doubt that the bribe amount of Rs.80/- was to be given to the appellant by the complainant. The appellant had agreed to accept the said amount. However, on account of request extended by the complainant, the appellant had tried to return the amount of Rs.20/- from the total bribe amount of Rs.80/- and the appellant pocketed the remaining amount of Rs.60/- in presence of panch no.1-PW-4, who is an independent witness. When there is neither any allegation against the panch no.1 nor there is any allegation against the Investigating Officer of substantive nature, whereby it can be inferred that this panch no.1 was selected purposefully, there was no reason for the learned trial Judge to discard the panchnama, mainly the second part of panchnama. It is in evidence that when the CR.A/360/1989 5/40 JUDGMENT hands of the appellant were seen under the ultraviolet lamp rays, both hands of the appellant were found stained with anthracene powder and the amount of Rs.60/- as narrated in the panchnama was recovered from the pocket of the appellant, which was lying with one small plastic wallet of the appellant. It is proved beyond reasonable doubt that the appellant was on duty in his office and as a public servant, he was discharging his duty. It is a case where the prosecution has not come forward with a case at all that a particular amount was demanded by the appellant on a particular day or a place. The story of the prosecution is consistent that the appellant was demanding and accepting the extra charge of 40% of the actual Government fees, which was otherwise payable to the State for the exercise which is required to be carried out by the officials of the Weights and Measures Department. The fees are prescribed, is not the matter of dispute since the competent officer is issuing certificate CR.A/360/1989 6/40 JUDGMENT qua the instruments of Weights and Measures. In the present case, the legitimate fees payable by the complainant to the Government was of Rs.200/- and how and why the complainant was required to pay an amount of Rs.200/- to the appellant has been described by him in the complaint itself. So the acceptance, according to Shri A.J. Desai, has been satisfactorily proved by the prosecution and obviously therefore, the learned trial Judge was entitled to raise the presumption against the appellant. The only crucial question before the learned trial Judge was whether the appellant has successfully rebutted this presumption or not ? If the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, 1973, is appreciated, there is no element of explanation capable of rebutting the presumption qua the amount accepted by him. On the contrary, the appellant has claimed that because of some inimical feelings and as he had acted against the complainant in the CR.A/360/1989 7/40 JUDGMENT recent past, the complainant created a false case and implicated the appellant in the ACB trap with the help of the Trapping Officer. 4. Firstly at this stage, the facts of the prosecution case, which are reflected in the charge Ex.6 framed by the learned trial Judge, are required to be stated in brief which are as under : “First : That on 5.11.85 you were working as a public servant being Senior Weights and Measures Inspector in Navsari and in the capacity of such a public servant, you have demanded or tried to accept an amount of Rs.80/- from the complainant, who is holding the licence of repairing the Weights and Measures and who had come to you for getting his instruments stamped, over and above the Government fees, except any legal fees, and by doing so you have committed an offence CR.A/360/1989 8/40 JUDGMENT punishable under Section 161 of the Indian Penal Code, which falls under the jurisdiction of this Court. Second : On the aforesaid date at 04-00 p.m. in your office at Navsari, you, by way of corruption or illegally misusing your post being a public servant, have obtained an amount of Rs.80/- in cash from the aforesaid complainant in response to your demand and by doing so, you have committed an offence punishable under Section 5(2) of the Prevention of Corruption Act.” 5. Ms.R.V. Acharya, learned counsel appearing for the appellant, has pointed out that it is neither the case in the complaint Ex.17 recorded on the very day of trap i.e. 5th November, 1985, nor in the deposition of the complainant that the amount of bribe of Rs.80/- was demanded prior to drawing of the first part of panchnama or the second part of CR.A/360/1989 9/40 JUDGMENT panchnama. The narration in the complaint is that the appellant is in the habit of extorting bribe amount from the persons who come to the office of Weights and Measures Department to get their work done or to obtain the certificate. The appellant had developed a practice that everybody whomsoever comes to him shall have to pay 40% charge towards bribe of the actual fees. The prosecution was under obligation to prove this corrupt practice developed by the appellant. It was possible for the Investigating Agency to collect the evidence in this regard that such practice was developed, by examining the witnesses coming to the said Department for such or similar work. The names of such persons could have been traced from the record of the office of the appellant. On bare words of the complainant, the Court ought not to have accepted that the appellant had developed such a corrupt practice to extort bribe of 40% of the actual fees to be paid to the Government; otherwise he would linger the matter and try CR.A/360/1989 10/40 JUDGMENT to harass the visiting citizen approaching him to have necessary licence/ permission or certificate required to be obtained under the statutory scheme of Standard of Weights and Measures Act, 1976. So this is a case where the prosecution cannot be said to have proved one of the basic element of demand. While reading the relevant part of the panchnama Ex.24 drawn by the Investigating Officer in presence of two panchas, which is at page No.107 of the paper-book, Ms.R.V. Acharya has drawn attention of the Court at page Nos.50, 115, 116 and 117 and has submitted that there is no consistency in the evidence of panch no.1-PW-4-Kalidas Patel and the complainant, qua the sequence of events that had occurred. It is clear from the evidence that the receipt Ex.12 was prepared and torn out from the book by the appellant after receipt of bribe amount of Rs.80/- and placing one currency note of Rs.20/- on the table with a view to return the same to the complainant. This crucial document Ex.12 i.e. receipt, was not brought under the CR.A/360/1989 11/40 JUDGMENT ultraviolet lamp rays and therefore, there is no evidence whether it was stained with anthracene powder or not. In the same way, the complainant had started marking stamps on the articles he had brought for certification before the complainant left the office room with a view to give signal to the raiding party officials, who were outside the office premises. Neither these articles nor the stamps used by the complainant were brought under the ultraviolet lamp rays. It is obvious and the panch no.1 has admitted that all these articles normally would have stains of anthracene powder. The Investigating Officer has intentionally attempted to put curtain on this fact by not doing that exercise or by not incorporating the same in the panchnama. It is admitted by panch no.1-PW-4 as well Shri Brahmbhatt, Police Inspector and Trapping Officer that certain things are not mentioned specifically in the panchnama and such an error has been committed by the Investigating Agency. The learned trial Judge ought to have CR.A/360/1989 12/40 JUDGMENT given benefit of this infirmity to the appellant. In an ACB trap case, the prosecution is supposed to put and prove a clear cut case and there should not be any shadow of doubt. The status of the complainant -PW-1, who has been examined vide Ex.16, is of accomplice nature. It is clear from his evidence that he was aware about the practice developed by the appellant and he had paid the amount in past also. His one machine was cleared by the very appellant. Therefore only, he has stated that even after paying the amount of bribe, he was harassed by the appellant and, therefore, he had decided on that particular occasion that an ACB trap is required to be laid down and the appellant is required to be dealt with appropriately. It is clear from the evidence that the complainant was supposed to disclose the names of the customers whose instruments of weights and measures were being brought before him for repairing and certification and it is in evidence that the amount paid as bribe amount CR.A/360/1989 13/40 JUDGMENT to the appellant was ultimately adjusted and the customers were charged accordingly. It is mentioned by the complainant and his father that they were also even adjusting their books of accounts and they were considering the amount paid as bribe while stating the miscellaneous expenses incurred by them. So when such a complainant and his father were there before the Court, their evidence was required to be scanned closely and their versions ought not to have been accepted as gospel truth. It is the say of the appellant himself and so also the complainant that the relation between the appellant and the complainant was inimical or at least was not cordial. This factor was ignored by the learned trial Judge while accepting the version of the complainant. The evidence of Pws-2 and 3 does not carry the case of the prosecution any further. It is argued by Ms.R.V. Acharya, learned counsel appearing for the appellant, that certain answers given by the PW-4 panch no.1, who was the Range Forest CR.A/360/1989 14/40 JUDGMENT Officer, that the entire panchnama was not dictated either by him or by the panch no.2, were required to be taken into consideration. When he has admitted that some part of the panchnama does not describe the actual exercise which was carried out and some important crucial aspects, which ought to have been mentioned in the panchnama, are not mentioned. So the panchnama ought not to have been accepted as reliable piece of evidence and the learned trial Judge ought not to have used this panchnama as corroborative piece of evidence while evaluating the evidence of the panch witness i.e. panch no.1. There is confusion as to whether the receipt Ex.12 was lying on the table when the raiding party entered into the office of the appellant on receipt of the signal given by the complainant or not ? The amount of fees of Rs.200/- was lying on the table, and in the same way, the currency note of Rs.20/- initially given to the appellant as part of bribe amount was also lying on the table. The complainant himself CR.A/360/1989 15/40 JUDGMENT was not sure whether the receipt Ex.12 was lying on the table or it was with him or it was recovered during the course of drawing second part of panchnama. The panch no.1 is also not sure about the same and the same is the case with the Police Inspector Shri Brahmbhatt (Ex.26, page no.125 of the paper- book). The amount of bribe is paid qua the work which was required to be done by the appellant on 05th November, 1985 and for which the complainant was required to pay fees of Rs.200/-. So the recovery of receipt of Rs.200/-, Ex.12, would be relevant and when the recovery of a particular document is found relevant, then the Court should ascertain that from where or from whom it is being recovered. These articles were lying at the same place at the time of their recovery or their seizure, whether these articles were stained with anthracene powder or not ? The confusion which is emerging from the evidence throws shadow of doubt on the strength of the case of the prosecution. Same is the situation qua stamps, CR.A/360/1989 16/40 JUDGMENT which might have been used for affixing the same on the articles which were brought for certification. It is clear from the evidence as well as the explanation given by the appellant that the complainant was out to see that the appellant is removed or otherwise relieved from the post. It is in evidence even of the father of the complainant that more than one attempts were made to see that the appellant is transferred from the very department. It is admitted position that as the complainant had not got a favourable result, depite making two written complaints, the father of the complainant had advised him accordingly. Of course, the complainant has not admitted that the complaint was made to the ACB Police Station on account of advice given by his father but he has also not denied this aspect and, therefore, the scope of false implication ought to have been accepted by the learned trial Judge and the appellant could have been given benefit of doubt. Placing reliance on one decision reported in 2006(1) CR.A/360/1989 17/40 JUDGMENT SCC 401, in the case of T.Subramanian v. State of T.N., it is submitted that this is a case of mere recovery of the muddamal currency notes from the appellant and not a recovery of the amount of illegal gratification received. The prosecution was under obligation to prove beyond reasonable doubt as to the demand made immediately prior to passing of bribe amount from the complainant to the appellant and there is an element of inconsistency. It is the say of the prosecution that even before taking out the bribe amount from pocket by the complainant with a view to giving the same to the appellant, there was no verbal demand of money and the alleged demand which the prosecution has attempted to prove is a demand made by gesture by playing with eyes. In vernacular Gujarati language, the witnesses have mentioned two different words; one witness has used the word “Isharo” (indication) and the other witness has used the phrase “Aankh Minchamana” (indication with eyes). For the sake of argument, if it is CR.A/360/1989 18/40 JUDGMENT accepted that any gesture was made by the appellant, then in what response the said gesture was made, is also the question, which was required to be considered by the learned trial Judge. It may not be a gesture to confirm the demand or to reiterate the practice developed by him. So there is clear missing of evidence qua the demand and in all such cases, if the prosecution is not able to successfully prove the element of demand, the appellant deserves acquittal. 6. Shri A.J. Desai, learned Additional Public Prosecutor, while arguing each of the points placed by Ms.R.V. Acharya, learned counsel appearing for the appellant, has pointed out that the alleged inconsistencies in the evidence of the panch no.1-PW-4 and the complainant are of minor nature. It is not the case of the prosecution from the very beginning that the specific amount was demanded on a specific day. The grievance of the complainant was against the corrupt CR.A/360/1989 19/40 JUDGMENT practice developed by the appellant. It is the say of the complainant from the very beginning that he was even being harassed, that part has been narrated by him in his deposition and he has replied the question asked by the defence counsel. The local competent authorities had not issued licence to the complainant to do the business of repairing of instruments of Weights and Measures, but it emerges that the complainant had approached the higher officers of the Department in the State and the said higher/superior officers had issued necessary licence/ authorisation to carry on such business. It is in evidence that one big machine repaired and tendered for certification was cleared by the Local Authorities. It is also emerging from the evidence that on account of either complaint made by the complainant or for some other reason, the senior officers had made inquiry about the decision taken by the appellant and not cleared two big machines. So the relations, even for the sake of argument if it CR.A/360/1989 20/40 JUDGMENT is accepted that, were strained, by itself would not make the complainant condemnable witness. A person who goes to the office of the ACB obviously would have developed some ill-feeling or feeling of grievance, otherwise there is no reason for a complainant to approach the ACB office. Exception is decoy trap in the ACB cases where a person is giving bribe and ultimately he is made the complainant who is not the person aggrieved, but he is the helping hand to the ACB. The appellant ought to have given satisfactory evidence with documents to justify the stand taken by him as a defence plea in response to the last question asked by the learned trial Judge at the time of recording his statement under Section 313 of the Code of Criminal Procedure, 1973. It is rightly submitted that some part of this explanation is not clear and there is an element of vagueness. It is true that the appellant is not supposed to prove anything and can successfully show or point out a probability capable of uprooting the CR.A/360/1989 21/40 JUDGMENT case of the prosecution or making the case of the prosecution doubtful. So even if the principle of preponderance of probabilities is applied, the explanation given by the appellant is not found satisfactory because he was under obligation to rebut the presumption raised against him. 7. According to Shri Desai, learned Additional Public Prosecutor, the prosecution has satisfactorily proved the passing of bribe amount to the appellant. There may not be any verbal conversation but in number of cases, this Court and the Apex Court has also observed that successful proof as to the acceptance of illegal gratification automatically proves a demand hidden in it. Here in the present case, certain gestures were made by the appellant by giving indication with his eyes and it is in evidence that this gesture was made in response to one statement made by the complainant, whereby he has requested that “he would also charge him CR.A/360/1989 22/40 JUDGMENT accordingly ?, even though these instruments which have been tendered for issuance of necessary certificate are being used mainly by themselves or their family members”. In response thereof, this gesture was made and panch as well as complainant both have consistently stated in the deposition that the appellant had shown inclination to do something. Thereafter, the receipt of payment of Rs.200/- was prepared. In the present case, the entire bunch of currency notes was not handed over, which is neither the case of the prosecution nor it was submitted to any of the witnesses examined. It is clear from the evidence, according to Shri A.J. Desai, that an amount of Rs.200/- was paid and thereafter, certain conversation had taken place. In the mean time, the appellant was asked a question whether he would accept the amount from him ?, and in response of that question, the said gesture was made by the appellant. This part of the evidence when is found consistent and reliable, the learned trial Judge was right in CR.A/360/1989 23/40 JUDGMENT saying that the element of demand has been satisfactorily proved within the meaning of scheme of the Act. There was no scope for the appellant to accept a single rupee beyond the amount of Rs.200/- towards Government fees because the table of account was already with him and, therefore only, he had prepared the receipt of Rs.200/-. There is ample force in the say of Shri Desai, learned Additional Public Prosecutor. In the present case, it was not even possible for the appellant to take up a plea that this is a case of forcible planting of amount because part of the bribe amount has been recovered from the pocket of the appellant and one muddamal currency note of Rs.20/- was found lying on the table. Why one currency note was found on the table was required to be replied by the prosecution. In absence of any explanation in respect of the same, it could have been argued by the defence side that because of the attempts made by the complainant to plant the amount forcibly, one of the currency notes might have missed and it CR.A/360/1989 24/40 JUDGMENT may have fallen down on the table. But because there is consistency in the evidence of panch no.1 and the complainant that the appellant after accepting the entire amount of bribe of Rs.80/- decided to return the amount of Rs.20/- i.e. one currency note of