CR.A/1129/1993 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1129 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 ? ========================================================= RASHMIKANT MANGULAL MEHTA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellant(s) : 1, MR LR PUJARI PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 03/09/2007 ORAL JUDGMENT 1.0 By way of this appeal, the appellant has challenged the judgment and order of the learned CR.A/1129/1993 2/42 JUDGMENT Special Judge, Ahmedabad (hereinafter referred to as 'trial Court') dated 1st September, 1993 passed in Special Case No.19 of 1991 whereby the trial Court convicted the appellant, herein, for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs.500/- and in case of default to undergo further imprisonment for a period of three months. The trial Court also convicted the appellant for the offence punishable under Section 13(1)(d)(i) and (ii)of the Prevention of Corruption Act punishable under Section 13(2) of the said Act and sentenced to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs.500/- and in case of default to undergo further imprisonment for a period of three months whereas the other two co- accused were acquitted by the trial Court. The aforesaid sentences were ordered to run concurrently. 2.0 The brief facts giving rise to the CR.A/1129/1993 3/42 JUDGMENT present appeal are that one Mr. Babulal Mohanlal Shah-original complainant-P.W.-1 who was residing at Kundan Apartments, Division-II of Vasna Area of Ahmedabad city, was having the problem of supply of water at his residence. Hence, P.W.-1 approached Office of the Ahmedabad Municipal Corporation (hereinafter referred to as 'Corporation') at Fatehpur Water Tank from where the water was supplied to the area in which his residence was situated and there he (P.W.-1), for the first time, met accused No. 1-the appellant, herein, and accused No.2 who were working with the Corporation in their capacity as Jr. Supervisor and Sr. Supervisor, respectively. The appellant and accused No.2 told P.W.-1 that they shall send accused No.3 who was working as fitter with the Corporation, at the residence of P.W.-1 and accused No.3 would do needful to solve the problem of supply of water at the residence of P.W.-1. At that time, the appellant and accused No. 2 told P.W.-1 that for the aforesaid work, P.W.-1 has to pay Rs.300/- to accused No.3. CR.A/1129/1993 4/42 JUDGMENT 2.1 Thereupon, accused No.3 visited residence of P.W.-1 and made necessary changes to solve the problem of supply of water. It is the say of P.W.-1 that, at the relevant point of time, he had paid Rs.300/- to accused No.3, as advised by the appellant and accused No. 2, for the aforesaid work. However, the problem of P.W.-1 was not solved. 2.2 P.W.-1, therefore, again approached the appellant and accused No.2 and showed his desire to have direct water connection at his residence. Therefore, P.W.-1 was advised by the appellant and accused No.-2 to have a fresh connection with meter. Hence, P.W.-1 approached the Usmanpura Zonal Office after obtaining form from Paldi Zonal Office. P.W.-1 completed all the necessary formalities i.e. filling up of form and payment of requisite charges and obtained permission from the Usmanpura Zonal Office for getting direct water connection at his residence with meter and then went to Paldi Zonal Office. CR.A/1129/1993 5/42 JUDGMENT 2.3 At Paldi Zonal Office P.W.-1 again met the appellant and gave him the form and Rs.100/- towards the connection charges, as against the normal charges of Rs.70/-, as advised by the appellant, since P.W.-1, desperately wanted to have the direct water connection. Thereupon, accused No.3 again visited the residence of P.W.- 1 to connect it with direct water pipeline of the Corporation with meter. However, even after obtaining direct water connection with meter, problem of P.W.-1 was not solved. 2.4 P.W.-1, hence, again approached the appellant and accused No.2 and told them that though he has done all the needful, as advised by the appellant and accused No.2, his problem of supply of water was not solved. The appellant and accused No.2, therefore, assured P.W.-1 that they shall visit his residence and accordingly they visited the residence of P.W.-1 and found that the water was not coming. Hence, they advised P.W.-1 to obtain direct water connection from the main pipeline from the road. At that time, the CR.A/1129/1993 6/42 JUDGMENT appellant and accused No.2 told P.W.-1 that for having such connection, P.W.-1 has to bear some extra expenses. Since, P.W.-1 was badly in need of water connection, he agreed to the advise given by the appellant and accused No.2. Thereupon, P.W.-1 completed all the necessary formalities and got permission to have direct water connection from the main pipeline from the road. It is only then the problem of supply of water of P.W.-1 was solved. 2.5 It was the case of the prosecution before the trial Court that in pursuance of grant of permission for direct water connection from the main pipeline from the road at the residence of P.W.-1, the accused persons started demanding an amount of Rs.300/- towards the aforesaid work from P.W.-1. However, since P.W.-1 had obtained the water connection from the main pipeline from the road after facing great difficulties and after paying regular charges as well as extra money by way of illegal gratifications to the accused persons, he was not willing to pay any CR.A/1129/1993 7/42 JUDGMENT further money to them. But, with a view to see that the supply of water to his residence did not get affected in any way by the accused persons, P.W.-1 told the accused persons that he shall pay the amount of Rs.300/- later. Thereafter, the accused persons continued to demand Rs.300/- from P.W.-1. The appellant visited the residence as well as place of business of P.W.-1 several times for collecting Rs.300/- for the work of water connection. Hence, being aggrieved with the same, P.W.1 decided to approach Anti Corruption Bureau, Ahmedabad with a view to lodge a complaint against the accused persons. 2.6 Accordingly, on 24.07.1990, P.W.-1 approached Anti Corruption Bureau, Ahmedabad and lodged a complaint under the Prevention of Corruption Act against the accused persons. After the recording of the complaint of P.W.-1 on 24.07.1990, a trap was arranged for 25.07.1990. On 25.07.1990, Mr. Virsinhbhai Kalubhai Ambaliyar- Investigating Officer-P.W.-3, herein, summoned panchas. On arrival of panchas, P.W.-1 CR.A/1129/1993 8/42 JUDGMENT and the panchas were introduced to one another. In pursuance of that P.W.-1 narrated the facts of the complaint in brief and the complaint given by P.W.-1 was read over to the panchas and then panchas signed it. P.W.-1, thereafter, produced three currency notes of Rs.100/- each. The said currency notes were given to one Mr. Ramkrishna Mulsinh Pawar, Police Constable for experiment of ultra violet light and anthracene powder. 2.7 Mr. Pawar, thereafter, showed the said currency notes to P.W.-1 and Panchas in normal light as well as in ultra violet light but nothing significant appeared. Mr. Pawar, thereafter, with the help of a paper smeared the aforesaid currency notes with anthracene powder and exposed it to normal light as well as to the ultra violet light. When the said currency notes were exposed to the normal light nothing significant appeared, but, when the same were exposed to ultra violet light, dots of white-blue colour appeared on the said currency notes. Then, the similar experiment was carried out on the CR.A/1129/1993 9/42 JUDGMENT hands of Mr. Pawar. When the hands of Mr. Pawar were exposed to the normal light nothing significant appeared, but when the same were exposed to the ultraviolet light, dots of white- blue colour appeared on the hands of Mr. Pawar. The said paper was, thereafter, burnt and the bottle of anthracene was kept back in the cupboard. In pursuance of that Mr. Pawar, searched P.W.-1 and an amount of Rs.11.25/- was found in the pocket of P.W.-1 which was kept as it is. Thereafter, P.W.-1 was given the currency notes of Rs.300/- treated with anthracene powder and was instructed not to touch the said amount until the same were demanded by the appellant. Thereupon, a preliminary 'Panchnama' was carried out to the aforesaid effect. Then, P.W.-1 and the panchas were given necessary instructions by P.W.-3. P.W.-2 was instructed by P.W.-3 to accompany P.W.-1 and to witness the transaction that may take place between P.W.-1 and the appellant. Thereafter, raiding party along with P.W.-1 and panchas, left for the residence of P.W.-1. On reaching the residence of P.W.-1, as CR.A/1129/1993 10/42 JUDGMENT per the arrangement, everybody took their position. However, as it was raining heavily on that day i.e. on 25.07.1990, none of the accused persons turned up to collect the amount. Hence, the raid was called off and a Panchnama to the said effect was carried out. P.W.-3, thereafter, told P.W.-1 that he would keep the amount of Rs.300/- treated with anthracene powder with him and told P.W.-1 to inform him as and when the accused persons approached P.W.-1 for the money so that the raid could be arranged at that time. But, on account of heavy rain during the whole day on 25.07.1990, none of the accused persons turned up to collect the amount. 2.8 However, on the next day i.e., on 26.07.1990, the appellant went to the place of business of P.W.-1 and demanded money. P.W.-1, hence, paid an amount of Rs.150/- to the appellant, after secretly noting down the numbers of the said currency notes. The appellant, then, told P.W.-1 to come to his office next day and to pay him remaining Rs.150/- and P.W.1 assured the CR.A/1129/1993 11/42 JUDGMENT appellant that he shall come. 2.9 Thereupon, on 26.07.1990, P.W.-1 again approached Office of the A.C.B., Ahmedabad and informed P.W.-3 about the aforesaid incident. P.W.-3, therefore, arranged for a trap on 27.07.1990. Before setting off for the raid on 27.07.1990, all the statutory procedures required for carrying out a raid i.e. experiment of normal light and ultraviolet light and anthracene powder, preparation of preliminary 'Panchnama etc., were completed. Thereupon, the raiding party left for office of the appellant at Fatehpura Water Tank. 2.10 On reaching Fatehpura Water Tank, the members of the raiding party took their position as per the arrangement and P.W.-2 accompanied P.W.-1, as per the instructions of P.W.-3. Then P.W.-1 and P.W.-2 went into the office of the appellant and as soon as they entered, the appellant called the P.W.-1 by name. P.W.-1, then, asked the appellant as to what happened to CR.A/1129/1993 12/42 JUDGMENT his water connection, at that time the appellant told P.W.-1 to give him the form and assured P.W.-1 that he shall get the work done and when P.W.-1 replied that the form was not signed and tend to stand up, the appellant gave signal for money to P.W.-1, hence, P.W.-1 produced the currency notes of Rs.100/- and Rs.50/- each treated with anthracene powder and gave it to the appellant and the appellant accepted the same and put it in the pocket of his shirt. Then, as per the arrangement, signal was given to the raiding party and the raiding party immediately rushed to the spot. 2.11 In pursuance of that the Investigating Officer-P.W.-3, gave his introduction to the appellant. Then, P.W.-2 narrated the transaction which had taken place between P.W.-1 and the appellant and the same was recorded by way of 'Panchnama'. Thereafter, on instructions of P.W.- 3, P.W.-2 took out two bundles of currency notes of Rs.150/- each, from the left hand side pocket of the shirt of the appellant. Each pair CR.A/1129/1993 13/42 JUDGMENT contained one currency note of Rs.100/- and one currency note of Rs.50/-. The currency notes recovered from the pocket of the shirt of the appellant were, then, counted and its numbers were tallied with the numbers already noted down in the preliminary Panchnama and they were found to be matching. 2.12 In pursuance of that the hands of the raiding party were exposed to the normal light as well as to the ultra violet light, but, nothing significant appeared. Thereafter, the hands of P.W.-1, P.W.-2 and the appellant were exposed to the normal light as well as to the ultra violet light. When the hands of P.W.-1, P.W.-2 and the appellant were exposed to the normal light nothing significant appeared, but, when their hands were exposed to the ultra violet light, dots of white-blue colour appeared on their hands. Similar experiment was also carried out on the shirt worn by the appellant and when the said shirt was produced under the normal light nothing significant appeared and when the same was CR.A/1129/1993 14/42 JUDGMENT exposed to the ultraviolet light, the dots of white-blue colour appeared thereon. Thereafter, the 'Muddamal' recovered from the appellant, including the shirt worn by the appellant, was attached and a Panchnama was drawn to the aforesaid effect. 2.13 Thereupon, offence was registered against the accused persons under the Prevention of Corruption Act. After the completion of investigation and after obtaining sanction, charge-sheet was submitted against the appellant as well as accused Nos. 2 and 3 before the trial Court. The trial Court framed, read over and explained charges under Section 7, 13(1)(d)(i) and (ii) and Section 13(2)of the Prevention of Corruption Act to the appellant and the accused Nos.2 and 3. However, they did not plead guilty to the charges and claimed to be tried. Then the trial Court heard all the parties and convicted and sentenced the appellant as stated in Para-1 of the judgment and acquitted accused Nos. 2 and 3. Hence, the present appeal. CR.A/1129/1993 15/42 JUDGMENT 3.0 Mr. Shah, learned Advocate for the appellant has submitted that the trial Court ought to have held that the amount of Rs.300/- received by the appellant, in two installments of Rs.150/- each, on 26.07.1990 and on 27.07.1990 was towards the payment of supply of meter and was not an illegal gratification. 3.1 Learned Advocate, in support of his case, has placed reliance on a decision of the Hon'ble Apex Court in the case of “T. Subramaniam Vs. The State of Tamil Nadu” reported in JT 2006(1)SC 101 wherein it was held that mere receipt of money is not sufficient to fasten guilt under Section 5(1) (a) or 5(1)(d)in the absence of any evidence of demand and acceptance of the amount as illegal gratification and if the reason for receiving the money is explained and the explanation is probable and reasonable, then the person has to be acquitted. 3.2 Learned Advocate has further submitted CR.A/1129/1993 16/42 JUDGMENT that, though, the work of transfer of connection was done on 07.06.1990 and new connection for water supply from main pipeline from the road was given on 16.06.1990, there were no demands for bribe during the period from 18.06.1990 to 23.06.1990. The said aspect has not been taken into consideration by the trial Court. 3.3 Learned Advocate has submitted that the trial Court has committed an error by not taking into consideration the fact that the P.W.-1 was in the habit of filing false complaints of similar nature against the public servants and that in connection with the earlier complaint filed by the P.W.-1, all the accused were released by the trial Court. 3.4 Learned Advocate has further submitted that even as per the version given by P.W.-1- himself, on the day of alleged incident, when P.W.-1 inquired from the appellant as to what happened to his water connection, the appellant told P.W.-1 to give him the form and assured him CR.A/1129/1993 17/42 JUDGMENT (P.W.-1) that he (the appellant) shall get the work done and when the complainant replied that the form was not signed and tend to stand up, the appellant gave signal to P.W.-1 for money, and hence, the complainant took out the amount of Rs.150/- from his pocket and gave it to the accused and accused in turn took the same and put it in his pocket, and hence, the trial Court ought to have held that, admittedly, there was no demand of money by the appellant. The said aspect has not been taken into consideration by the trial Court. 3.5 In support of his case, learned Advocate has placed reliance on a decision of the Hon'ble Supreme Court in the case of “Subash Parbat Sonvane Vs. State of Gujarat” reported in 2002 SCC (Cri)954. In that case, when the complainant went to Police Station and approached accused, accused told the complainant as to why the complainant had come to Police Station at that time. To that the complainant replied that he had been waiting for the accused for about one CR.A/1129/1993 18/42 JUDGMENT hour since he had come with a witness who is required to be examined. However, as writer was not present, accused told the complainant to come in the evening and, thereafter, accused started proceeding towards toilet. At that time, the complainant went after accused and took out something from his pocket and gave that thing to accused, accused took the same and put in his pocket. 3.6 In that case, accused was convicted and sentenced for the aforesaid offence punishable under Sections 7 as well as Section 13(1)(d) and 13(2) of the Prevention of Corruption Act by the trial Court and the same was confirmed by the High Court. Being aggrieved with the said orders, accused moved Hon'ble Supreme Court. The Hon'ble Apex Court, confirmed the conviction of the accused under Section 7 of the Prevention of Corruption Act and set aside the conviction of accused under Section 13(1)(d) on the ground that merely on the basis of the fact that the complainant took out something from his pocket CR.A/1129/1993 19/42 JUDGMENT and gave it to the accused and accused in turn took the same and put in his pocket, it cannot be inferred that the accused had demanded and accepted anything from the complainant as illegal gratification. 4.0 On the other hand, Mr. Pujari, learned APP has supported the case of the prosecution and has stated that after taking into consideration all the facts and circumstances of the case and the documents placed on record, the trial Court has passed the order of conviction, and hence, no interference is called for by this Court. 5.0 Heard, Mr. Shah, learned Advocate for the appellant and Mr. Pujari, learned APP on behalf of respondent-State. In the case on hand, since the appellant has admitted the fact that he had received amount of Rs.300/- from P.W.-1, in two installments of Rs.150/- each, on 26.07.1990 and on 27.07.1990, the only question which requires consideration by this Court is as to whether the amount of Rs.300/- received by the appellant from CR.A/1129/1993 20/42 JUDGMENT P.W.-1 was illegal gratification or not. The prosecution, in support of its case, has examined three witnesses and has placed reliance on the complaint-Exhibit-24, Seizure Memo-Exhibit-21 and the Panchnama-Exhibit-22. 5.1 It was the case of the appellant before the trial Court that the amount of Rs.300/- received by him from P.W.-1, in two installments of Rs.150/- each, on 26.07.1990 as well as on 27.07.1990, was towards outstanding payment of meter which was supplied by one Shailesh Rambhai- D.W.-2 to P.W.-1 at the instance of the appellant. In that view of the matter, here, it would be relevant to refer to Exhibit-29 wherein the duties of Supervisor(s) and Sr. Supervisor(s) of Water Department are mentioned, which reads as under, “ Duties of Supervisor(s)/Sr. Supervisor(s) of Water Department: On receipt of routine complaints from their Superior Officers, general public or Councilors in written or orally(i.e. through telephone) regarding CR.A/1129/1993 21/42 JUDGMENT leakage of water, insufficient pressure of water in residential areas, construction of taps with meter or to give new connection or to transfer the old one or for setting up of new public taps, they shall distribute the work among the fitters and labourers and supervise the same. Apart from that they shall mark attendance of staff members of different stores, fill indent form for obtaining material for day to day work, collect such material and send at the place of work, keep account of such material, make payment as per musters and keep account of leaves. They also help their Superior Officers in the matter of grant of new water connections or transfer of old ones by visiting and collecting information about such places, by examining numbers of existing connections, pressure of water etc. at such places, prior to obtaining sanction in regard to such works.” 5.2 Hence, from the above it clearly transpires that the appellant was neither empowered nor was duty-bound to direct D.W.-2 to supply motor to P.W.-1 and to collect the outstanding amount towards supply of meter from P.W.-1, directly. Here, it may be noted that P.W.-1, in his deposition, has clearly stated that he had already paid the amount of Rs.300/- towards the payment of supply of meter, and hence, there was no question of payment of any CR.A/1129/1993 22/42 JUDGMENT amount towards the supply of meter and the same remains un-controverted. Moreover, from the evidence of P.W.-2 also it transpires that when the appellant received amount of Rs.150/- from P.W.-1 on 27.07.1990, there was neither any conversation between the appellant and P.W.-1 about any outstanding payment towards supply of any meter nor the appellant said anything to the effect that he was accepting the said amount towards the outstanding payment of supply of meter. Here, it may also be noted that the contention raised by the learned Advocate for the appellant that the amount of Rs.300/-, received by the appellant, in two installments of Rs.150/- each, on 26.07.1990 and on 27.07.1990 was towards the outstanding payment of meter, was raised for the first time at the time of trial only and prior to that, at no point time, the appellant took defence that he had accepted the amount of Rs.300/- towards outstanding payment of supply of any meter which clearly suggests that the same is nothing but an afterthought. Apart from that the fact admitted by the appellant-himself that he CR.A/1129/1993 23/42 JUDGMENT had received an amount of Rs.300/-, in two installments of Rs.150/- each, from P.W.-1 on 26.07.1990 and on 27.07.1990, and recovery of the said amount treated with anthracene powder from the pocket of the shirt of the appellant, also supports the case of the prosecution that after receiving amount of Rs.150/- on 26.07.1990, the appellant instructed P.W.-1 to come to his office on 27.07.1990 to pay the remaining Rs.150/- and accordingly P.W.-1 went to the office of the appellant, the appellant gave signal for money, P.W.-1 offered the money and the appellant was caught red-handed and when the numbers of the currency notes recovered from the pocket of the shirt of the appellant were tallied with the numbers already noted in the 'Panchnama', they were found to be matching. Hence, the said fact points out that the amount of Rs.300/- received by the appellant, in two installments of Rs.150/- each, on 26.07.1990 and on 27.07.1990, was not towards the outstanding payment of supply of meter, as is claimed by the appellant. CR.A/1129/1993 24/42 JUDGMENT 5.3 P.W.-1 in his deposition-Exhibit-11 has stated that since there was problem of supply of water at his residence, he had approached officials of the Corporation at Fatehpura Water Tank from where the water was supplied to the area in which his residence was situated and at that time he had met the accused persons for the first time. P.W.-1