Gulam Mahmood A. Malek vs State Of Gujarat on 10 June, 1980 Equivalent citations: AIR1980SC1558, 1980CRILJ1096, (1980)0GLR965, 1980SUPP(1)SCC684, 1980(12)UJ878(SC), AIR 1980 SUPREME COURT 1558, (1980) CURLJ(CCR) 141, 91 GUJLR 965, 1980 SC CRI R 404, 1981 SCC (CRI) 586, 1980 UJ (SC) 878, 1980 CRILR(SC MAH GUJ) 504 Author: P.S. Kailasam Bench: P.S. Kailasam, R.S. Sarkaria JUDGMENT P.S. Kailasam, J. 1. This appeal is by special leave by the appellant against the Judgment of the Gujarat High Court in Crl. A. No. 827/73 dt. 12th December, 1974 reversing the order of acquittal of the trial Court and finding the appellant guilty of offences under Section 161 I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him to three months rigorous Imprisonment, 2. The appellant is a Bench Clerk in the Court of the City Magistrate, 3rd Court, Ahmedabad. The charge against him is that on 7-7 72 he accepted from one Natvarlal Govindlal Patel a sum of Rs. 2/- as illegal gratification for the favour of granting an adjournment to 18-7-72 In Crl. Case No. 497/72 and for accepting another sum of Rs. 2/- on 18-7-72 from Natvarlal Govindlal Patel for showing favour in granting a date for the next hearing 3. The prosecution case in brief is that the complainant Natvarlal Govindlal Patel was accused in the Court in about four cases before the City Magistrate. Out of these four cases, three cases were committed to the Court of Sessions and the trial was pending against Natvarlal Govindlal Patel. In the fourth case Natvarlal Govindlal Patel was convicted of an offence under Section 420 IPC and sentenced to imprisonment for 9 months and to a fine of Rs. 1,000/-. An appeal against conviction and sentence by Natvarlal Govindlal Patel also failed. Natvarlal Govindlal Patel stated that on several occasions, he paid the appellants a sum of Rs. 2/-. 4. It is alleged that on 7-7 72 Natvarlal paid a sum of Rs. 2/- to the accused for getting the case adjourned to 18-7-72. Apart from the fact that the evidence of Natvarlal is not corroborated, the trial Court found that on bis own showing the case was adjourned to 18-7-72 on 4-7-72 and there was no need for any request by the complainant on 7-7-72 for posting it on 18-7-72. The trial Court observed "there is absolutely no reason for him to go to the Bench Clerk on that date i,e. 7-7-72 because he knew that next date was 11-7-72". He was not required to go to Court on 7-7-72. The High Gulam Mahmood A. Malek vs State Of Gujarat on 10 June, 1980  1 Court accepted finding of the trial Court that the evidence of the complainant that he paid Rs. 2/- to the accused on 7-7-72 cannot be accepted. 5. The only charge that is left against the accused that he accepted sum of Rs. 5/- on 18-7-72. Though the accused demanded sum of Rs. 2/- on 7-7-72 itself, the complainant went to the police only on 17-7-72 after an interval of 10 days and complained about the demand of bribe by the accused. The usual trap was Bet up and two-marked noted disped in anthracene powder were handed over to the complainant for being given to the accused on demand. The case of the complainant in that he went to the Court hail in the first floor where the accused was seated and asked for a date and when the accused demanded Rs. 2/- he gave it to him. The evidence is said to be corroborated by Panch witness Kirti Kumar Ext. 10. After the preananged signal was given by the complainant the police officer end others came in. Regarding the recovery of Rs. 2/ the evidence is that after the money was paid by the complainant to the accused, the police caught hold the bands of the accused. Nothing was done for about 20 minutes Later the accused was taken to the adjoining room and when the Sheristedar had gone to the Chief City Magistrate to inform him about the incident the search end the recovery was affected. The search was concluded within 15 minutes. The trial Court was of the view that the entire story about the complainants giving Rs. 2/ and its recovery is highly artificial and evidence of the Panch witness Kirti Kumar is unacceptable. The trial Court pointed out that in the Court room there were several independent persons present when the offer of the bribe was made and accepted, Curiously even after the police came the money was not recovered immediately from the accused. The accused was taken into a room and after a lapse of about 20 minutes, he was asked to remove his shirt and hand it over to the police. When the pocket of the shirt was searched Rs. 2/- was recovered. 6. In appreciating the evidence in the case the background should not be forgotten. The complaint was prepared by Natvarlal who was accused in atleast four cases. He did not have the least in saying that be used to give money to the accused on several occasions. His case that he gave a briba on 7-7-72 was rejected. His complaint that bribe was demanded on 7-7-72 was lodged only on 17-7-72. Apart from the fact that the complainant is in the nature of an accomplice, his story prima facie is suspect. Before any Court could act on his testimony, corroboration in material particulars is necessary. The prosecution relies only on the evidence of Kirti Kumar, the panch witness for corroboration. Kirti Kumar is a student and employed in the office of Tube Well Maintenance Department which Is in the same building as that of the Anti Corruption Department. No doubt there is no evidence that he is inimically disposed against the accused but he admitted that though his office usually starts at 10.30 A.M, he came to his office on that date at 1.45. A.M. and joined the party who conducted the raid. Though the panch witness corroborates the complainant, regarding the recovery, the delay in effecting the recovery of the money, the failure to examine independent witnesses who were admittedly in the Court hall and in the next room to which the accused was taken and the recovery made makes the entire prosecution case unacceptable. 7. The High Court while agreeing with the trial Court that the evidence of Natvarlal is suspicious and that it cannot be acted upon without sufficient corroboration found that the testimony of the Panch witness was acceptable and afforded sufficient corroboration. The High Court based the conviction mainly on the ground that marked notes were recovered from the person of the accused and that Gulam Mahmood A. Malek vs State Of Gujarat on 10 June, 1980  2 Panch witness has spoken to the recovery of the money .In assessing the evidence of a witness the entire background of the prosecution story should be kept in mind. It is seen the complainant has no regard for truth and his preferring a false complaint about payment of bribe on 7-7-72 and making the present complaint after tea days of the alleged demand cannot be ignored. In the circumstance, we do not think that it was safe for the High Court to base the conviction solely on the testimony of the panch witness. The trial Court has given convincing reasons as to why the evidences of the panch witness cannot be accepted. In reversing the order of acquittal the High Court must find sufficient grounds for holding that the appreciation of the evident by the trial Court is unsupportable. On going through the evidence in the case. We feel that the trial Court was right is not accepting testimony of the complainant and the panch witness and the High Court was not justified in interfering with the order of acquittal. 8. In the circumstances we allow this appeal, set aside the conviction and sentence passed by the High Court and restore the order of acquittal by the trial Court. Gulam Mahmood A. Malek vs State Of Gujarat on 10 June, 1980  3