Arvindbhai Laljibhai Pandya vs State of Gujarat

Z.K. Saiyed, J.—By way of present appeal filed u/s 374 of the Code of Criminal Procedure, 1973, the Appellant-original accused has inter alia payed to quash and set aside the judgment and order of conviction and sentence dated 11th June 1998 passed by the learned Special Judge, Bhavnagar, in Special Case No. 03 of 1994 whereby the learned Judge was pleased to convict the Appellant.

As per the case of the prosecution, on 01st December 1993 the complainant had given written complaint to ACB Police Inspector, Bhavnagar wherein he has stated that since last two months he is working as Senior Clerk in the office of Deputy Executive Engineer, Water Resources and Research Sub Division. Prior to that, the complainant was working as Junior Clerk with Narmada Nigam at Village Patdi, District Surendranagar. It is further the case of the complainant that as his native is Bhavnagar, he had tried for his transfer to Bhavnagar. Because of his efforts, he was transferred to Palitana. He has further stated that Executive Engineer''s office is situated at Multi Storied Building, Bhavnagar and Zonal Office is situated at Rajkot. In the normal circumstances, transfer would be effected by the Executive Engineer, but in the present case, as there was a clear and vacant post at Palitana, transfer of the complainant was effected by the Zonal Office directly. It is further the case of the complainant that because of this, the Assistant Office Superintendent (Division), i.e. the present Appellant, called the complainant and told the complainant that as to why without taking any permission from him, the complainant had effected his transfer and asked the complainant to make him happy. Thereafter, after some conversation between the complainant and the present Appellant-accused, on 25th November 1993 the Appellant-accused demanded Rs. 200/- from the complainant. At that point of time, the complainant told the Appellant-accused that he will see in the next month after salary would be paid. Therefore, the Appellant-accused told the complainant that after the salary would be made on 01st December 1993, till the evening hours on that day, make it convenient to send Rs. 200/- in his office and thereafter I will see to it that you will be transferred to Bhavnagar. It is the case of the complainant that he has tried to convince the Appellant-accused to reduce the amount, but as per the case of the complainant, the Appellant-accused was not convinced. It is further the case of the complainant that thereafter also when he went to the office, the Appellant-accused again asked for Rs. 200/-. It is the case of the complainant that he does not want to given the said amount to the Appellant-accused, but under the compulsion, he has to give this amount to the Appellant-accused. Therefore, a complaint to the said effect was given by the complainant.

It is the case of the prosecution that complaint was lodged before the ACB. Thereafter, the services of two panchas were sought. The facts of the case were narrated to them and thereafter the experiment was made on the currency notes with the help of anthracene powder. The basic ingredients of the anthracene powder were made understood to the panchas as well as the complainant. After performing the experiment, preliminary part of the panchnama was drawn. The currency notes were smeared with anthrecene powder and the said currency notes, i.e. two notes of Rs. 100/- each, were put into the left pocket of the bush-shirt of the complainant. Thereafter, the complainant, panchs and members of the raiding party went to the office of the Appellant-accused situated at Multi Storied Building. Thereafter the complainant and the panch No. 1 went into the room of the Appellant-accused and the complainant seat on the chair lying there and the panch No. 1 stood near the table. Thereafter the complainant told the Appellant-accused that "as per the talk between us in the afternoon, I am here." Therefore, the Appellant asked "have you brought"", to which the complainant replied in affirmative. Thereafter, the complainant took out the smeared notes using his right hand and handed it over to the Appellant-accused. The Appellant has received the said notes by his right hand and put it in the right pocket (backside) of his pent. Thereafter, the Appellant-accused told the complainant that he has already prepared the transfer note and will place it for sanction and your work will be done.

Thereafter, the complainant came outside the office room and gave signal to the members of raiding party. At that point of time, the panch No. 1 was standing near the table in the office room of the Appellant-accused. Thereafter, as the A.C.B. Inspector has given his identity, the Appellant-accused was shivering. Therefore, the Inspector told him to sit as it is and told him not to touch anything. Thereafter the Inspector asked the name, to which he replied that A.L. Pandya, Head Clerk, Office of Executive Engineer, Water Resources and Research Division, Bhavnagar. At that point of time, it was 19.00 hours. Thereafter, when the A.C.B. Inspector asked the Appellant-accused about the bribe amount of Rs. 200/-, the Appellant-accused took out the same from his pent''s pocket. Thereafter, the Inspector told the panch No. 1 to take the said currency notes and when they matched the number of the said notes, it matched with the numbers mentioned in the panchnama. Thereafter, when the experiment of UV lamp was carried out, light blue fluorescent marks were found on right hand finger as well as on the pocket of his pent. Thereafter, after arranging for another pent for the Appellant-accused, pent wear by him was seized as muddamal. Thereafter panchnama of office room of the Appellant-accused was drawn as well as the facts mentioned by the panch No. 1 were also mentioned in the panchnama. The panchnama was completed on 18.45 hours. Thereafter, after following necessary formalities, second part of panchnama was drawn.

Thereafter, the Investigating Officer recorded statements of various persons. Thereafter, FIR was lodged. Statements of the complainant were recorded. After obtaining the sanction from the appropriate authority, charge-sheet came to be filed before the Special Court, Bhavnagar.

Thereafter, charge was framed against the Appellant. The Appellant-accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charges levelled against the Appellant-accused, the prosecution has examined witnesses in support of their case.

Thereafter, after examining the witnesses, further statement of the Appellant-accused u/s 313 of the Code of Criminal Procedure, 1973 was recorded in which the Appellant-accused had denied the case of the prosecution. The Appellant-accused in his further statement submitted that the complainant was residing nearby. There was a talk between the complainant and accused regarding marriage of complainant''s sister and son of the Appellant-accused, but as the same was refused by the Appellant''s son, therefore, there was animosity between the complainant and the Appellant-accused. The Appellant-accused has also stated in his further statement that prior to 20 to 25 days from the date of incident, the Appellant had given Rs. 200/- to the complainant as loan and when the Appellant demanded back the said amount from the complainant, the said illegal complaint was lodged.

After considering the oral as well as documentary evidence and after hearing the parties, the learned trial Judge vide impugned judgment and order dated 11th June 1998 held the Appellant-accused guilty to the charges levelled against him u/s 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of six months and also imposed fine of Rs. 02,000/-, and in default of payment of fine, ordered to undergo rigorous imprisonment for a further period of three months. The Appellant-accused was also held guilty for the offence punishable u/s 13(2) of the Prevention of Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for a period of one year, and also imposed fine of Rs. 02,000/-, and in default of payment of fine, ordered to undergo rigorous imprisonment for a period of three months. However, it was ordered that both the sentences shall run concurrently.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Bhavnagar, the Appellant has preferred the present appeal.

Heard Ms. Shrusti Thula, leaned counsel for the Appellant and Mr. R.C. Kodekar, learned Additional Public Prosecutor for the Respondent-State.

Ms. Thula, learned Counsel appearing for the Appellant has contended that the judgment and order passed by the learned trial Judge is illegal, invalid and improper. She has also contended that the learned trial Judge has not considered the case of the defence and evidence and material produced on record. It is also contended by Ms. Thula that the evidence of panch No. 1 is not corroborating the facts of the case and even the learned trial Judge has also believed the said version of the panch No. 1. She has also contended that the judgment and order of the learned trial Judge is erroneous and contrary to the evidence on record. She has also contended that the learned trial Judge has failed to appreciate that there is animosity between the Appellant and the complainant as the Appellant has refused to get married his son with the daughter of the complainant and therefore, the alleged trap was managed by the complainant. It is also contended by the leaned counsel for the Appellant that when animosity is established and proved beyond reasonable doubt and when the panch witness has failed to prove the case of the complainant, the judgment and order of the learned trial Judge is required to be quashed and set aside. She has also contended that the learned Special Judge has failed to appreciate that the Appellant was working as Office Superintendent and he has no authority to transfer any person and therefore, there was no question of asking money for transfer by way of illegal gratification. She has also contended that this was done only with an intention to settle the score with him. Ms. Thula has also contended that the Appellant has given loan of Rs. 200/- to the complainant and the complainant came to return the said amount of Rs. 200/- and has taken undue advantage of the situation by saying that this amount is to be paid as illegal gratification and thereby the complainant has taken revenge to settle the old score of refusal of the Appellant for getting his son married with the sister of the complainant. She has also contended that this aspect of the matter ought to have been appreciated by the learned Special Judge and benefit of doubt ought to have been given to the Appellant. She has also contended that the learned Special Judge has failed to take into consideration the probable defence of the Appellant. The Appellant is innocent and he is falsely involved in the present case. She has also contended that there are sufficient oral as well as documentary evidence produced on record to say that there was animosity between the Appellant and the complainant. She has also contended that conduct of the complainant is also required to be looked into. She has also contended that the complainant is habitual complainant and he is in habit of making complaints against his co-staff members. She has also contended that the prosecution has failed to establish the demand beyond reasonable doubt. Prosecution has failed to prove demand through the evidence of panch Nos. 1 and 2. Thus, when demand is not established, then no question of acceptance would arise. When the Appellant has explained the probable defence in his statement recorded u/s 313 of the Code of Criminal Procedure, it cannot be said that the defence taken by the Appellant is an afterthought. Ms. Thula has also read Exhibit 19 - Sanction Order and contended that the sanction is given without application of mind. She has contended that the present Appellant is innocent and he has been falsely involved in the present case. Just to take revenge, the complainant has filed false complaint against the Appellant. The learned Special Judge has failed to take into consideration the probable defence of the Appellant. She, therefore, contended that the judgment and order of the learned Special Judge is required to be quashed and set aside and the Appellant is required to be set at liberty. She has also read the oral evidence of panch No. 1.

As against this, Mr. Kodekar, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Special Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He has read the oral evidence of the complainant and contended that if there was animosity between the complainant and the Appellant, then it is not possible that Appellant would give the loan of Rs. 200/- to the complainant. He has contended that looking to the overall facts and circumstances of the case, circumstantial evidence and evidence produced on record, the order passed by the learned Special Judge is absolutely just, proper and correct and is not required to be interfered with. He has also contended that the evidence of the panchs are supported the case of the prosecution. In presence of the panch No. 1, the Appellant asked the complainant about the money and in his presence, the complainant has given Rs. 200/- to the Appellant. Thus, demand and acceptance is proved through the oral evidence of the panch No. 1. He, therefore, contended that the appeal is required to be dismissed.

I have heard the learned Counsel for the parties and perused the papers produced before me. I have also perused the submissions advanced by the learned Counsel for the parties. It appears that the complainant and the Appellant-accused were residing nearby and there was some talk of marriage between the sister of the complainant and son of the Appellant, but due to some reason, the Appellant refused to get married his son with sister of the complainant. It also appears that prior to the incident in question, the Appellant had given Rs. 200/- to the complainant as loan. From the oral evidence of the panch No. 1, it is proved that the Appellant has accepted Rs. 200/- from the complainant, but it is not accepted as a bribe amount. It is accepted by the Appellant as the complainant has to pay Rs. 200/- towards loan given to him. The panch No. 1 does not know the fact of loan given by the Appellant to the complainant. Thus, the question of demand as illegal gratification is not proved. From the very beginning of the investigation, the Appellant has given probable defence, but the said defence was not investigated properly by the Trapping Officer.

I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witnesses and also perused the charge framed against the Appellant. I find that the probable defence made by the Appellant is trustworthy, reliable and acceptable. The learned Special Judge has failed to consider this aspect of the matter and has passed the order. The prosecution has failed to prove its case beyond reasonable doubt. It also transpires from the papers that the Appellant-accused was working as Office Superintendent and he has no authority to transfer any person. It is also transpired from the papers that the complainant is a habitual complainant and he is in habit of making complaints against his co-staff members.

It is also required to be considered the fact that the defence was taken at an early stage and it cannot be said as an afterthought. The evidence of the defence cannot be ignored because defence of accused person can legitimately be taken into consideration while assessing the value of evidence and judging the guilt or innocence of the accused. Defence can be inferred from the circumstances appearing in the case. Thus, it clearly transpires that due to animosity, the Appellant is falsely involved in the case. Sanction is also not legal and proper and hence, the Appellant-accused requires to be acquitted.

Hence, in view of the foregoing reasons, present appeal is allowed. The judgment and order of conviction and sentence dated 11th June 1998 passed by the learned Special Judge, Bhavnagar, in Special Case No. 03 of 1994, is hereby quashed and set aside. Since the Appellant is on bail, no order in respect of setting him at liberty is passed. The Appellant is hereby acquitted from the charges levelled against him. Fine, if paid, be refunded to the Appellant. Bail bond, if any, shall stands discharged. Record and Proceedings, if any, be sent back to the trial Court forthwith.