Bhikhabhai Morabhai Parmar vs State of Gujarat

Z.K. Saiyed, J.—The present appeal, filed u/s 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 30th April, 1997 passed by the learned Additional Sessions Judge, Surat, in Special Case No. 08 of 1992, whereby the learned Additional Sessions Judge was pleased to convict the Appellant for the offence punishable u/s 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo simple imprisonment for a period of six months, and also imposed fine of Rs. 500/-, and in default of payment of fine; sentenced him to undergo simple imprisonment for a further period of one month. The Appellant was also convicted for the offence punishable u/s 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 and was sentenced to undergo simple imprisonment for a period of one year, and also imposed fine of Rs. 500/-, and in default of payment of fine; sentenced to undergo simple imprisonment for a further period of one month. However, both the sentences were ordered to run concurrently.

As per the case of the prosecution, the complainant was residing with his family comprising of three brothers and father at village - Kathor, Taluka - Kamrej. The elder brother of the complainant-Prakashbhai, had purchased plot No. 1 situated in Shivam Park Society, which is owned by Mukundbhai Vakil of village Kathor. As the said plot was to be transferred in the name of Bhabhi of the complainant, prior to three months of 14th August, 1991, the complainant met Shri Bhikhubhai Morarbhai Parmar, Talati of Nagar Panchayat, village Kathor and told him to transfer the said plot in the name of his Bhabhi in Panchayat record. Therefore, the present Appellant-Talati of Nagar Panchayat, village Kathor, told the complainant that he has to understand something to show the name of his Bhabhi in the record of Panchayat. It is the case of the prosecution that thereafter the complainant talked with the Appellant and it was agreed by the Appellant that if the complainant would pay Rs. 300/-, then name would be transferred in the record of panchayat. Therefore, the Appellant told the complainant to arrange for the amount and also told that he would inform the complainant when he has to come to pay amount. Thereafter, as nothing was heard from the Appellant, on 12th August, 1991 at about 16.00 hours the complainant went to meet the Appellant at his office and asked him regarding transfer of name, to which the Appellant replied that first he should bring Rs. 300/- and thereafter only the plot would be transferred as per the documents. Therefore, the complainant told that he is ready to pay the amount as demanded, but presently he has no money. The Appellant therefore told the complainant to come after two days after 16.00 hours to his office with the amount.

As the complainant was not willing to make the payment, he approached the A.C.B. office at about 11.00 hours and informed the P.I. about the matter. Therefore, the P.I., A.C.B. office has lodged the complaint of the complainant. Thereafter, services of two panchas were sought. The facts of the case were narrated to them and thereafter the experiment of U.V. Lamp was carried out with the help of anthrecene powder. The basic ingredients of the anthrecene powder were explained and made understood to the panchas as well as the complainant. Thereafter, currency notes, i.e. three notes of Rs. 100/- each, produced by the complainant were smeared with anthrecene powder. Thereafter, the Police Inspector, A.C.B., gave necessary instructions to the complainant as well as to the panchas. Thereafter, preliminary part of the panchnama was drawn in the office of A.C.B. and signature of the panchas were taken below the panchnama. Thereafter, the complainant, panchas and members of the raiding party proceeded towards the office of the Appellant.

On reaching the office of the Appellant, the complainant asked the Appellant regarding transfer of name. Therefore, the Appellant asked the complainant as to whether he had brought money as per agreement or not? At that point of time, the complainant took out the currency notes smeared with anthrecene powder and produced before the Appellant. Thereafter, as the Appellant told the complainant to put the said notes in the drawer of the table, the complainant put the currency notes in that drawer. Thereafter, the complainant gave signal to the members of raiding party as agreed. Thereupon the members of the raiding party rushed into the office where the Appellant was sitting and after giving his identity, the P.I. told the Appellant to sit in the same position. Thereafter, the P.I. told the panch No. 2 to took out the notes from the drawer and was checked in U.V. Lamp. The number of notes got tallied with the numbers mentioned in the preliminary panchnama. Thereafter the second part of the panchnama was drawn.

Thereafter, the Investigating Officer lodged the FIR and registered the offence. The Investigating Officer carried out investigation and recorded statements of witnesses and after obtaining sanction, charge-sheet came to be filed against the Appellant-accused.

Thereafter, charge was framed at Exhibit 4 against the Appellant for the offences punishable u/s 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and read over to the Appellant. The Appellant pleaded not guilty to the charges levelled against him and claimed to be tried.

In order to bring home the charges levelled against the Appellant, the prosecution has examined in all 12 witnesses and also produced documentary evidence in support of its case.

Thereafter, after filing closing pursis by the prosecution, further statement of the Appellant u/s 313 of the Code of Criminal Procedure, 1973 was recorded, in which the Appellant had denied the case of the prosecution. He has submitted in his further statement that on the day of incidence, he was in the adjoining room of his office where inspection work was going on and he was standing near the Inspection Officer. At that point of time, P.I. Shri Rana came to him and told to take out the amount from the drawer of table lying in the front room. The Appellant refused to do so and replied that he had no knowledge about the same. Therefore, the P.I. Shri Rana got excited and assaulted the Appellant. The Appellant had taken treatment at Primary Health Center, Kathor and produced on record the Certificate dated 14th August, 1991 issued by Medial Officer, Primary Health Center, Kathor, Bill towards purchase of medicine and prescription. The Appellant has further submitted that he has neither demanded any money nor accepted the same.

After considering the oral as well as documentary evidence and after hearing the parties, the learned Additional Sessions Judge, Surat vide impugned judgment and order dated 30th April, 1997 held the Appellant-accused guilty to the charges levelled against him as mentioned aforesaid.

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

Heard Mr. B.R. Gupta, leaned Counsel for the Appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State.

Mr. Gupta, learned Counsel appearing for the Appellant, has contended that the judgment and order passed by the learned Additional Sessions Judge is illegal, invalid and improper. He has also contended that the learned trial Judge has not considered the case of the defence and material evidence produced on record. He has contended that though the prosecution has miserably failed to prove its case beyond reasonable doubt, the learned trial Judge has not considered the probable defence of the Appellant and he was wrongly convicted by the learned trial Judge. Mr. Gupta has contended that the prosecution has examined in all 12 witnesses in support of its case, but, has not examined material witnesses, who were present at the time of incident. He has contended that though at the time of incident, Vice President of Kathor Nagar Panchayat and a Committee Member were present, the prosecution has not examined these witnesses. Even prosecution has not examined the members of R.T.S., who had come for inspection work. Even their names have not been referred in the panchnama. Similarly, the prosecution has not examined the Clerk and the Peon, who were present at the time of incident. Thus, though the prosecution has not examined important witnesses, the learned trial Judge has wrongly believed the case of the prosecution. The prosecution has adopted practice of pick and choose and had examined only interested witnesses. Thus, presumption drawn by the learned trial Judge is contrary to the facts of the case and not tenable at law. The learned trial Judge has committed grave error in convicting the Appellant and there were material irregularities, which resulted into failure of justice. He has read the oral evidence of PW No. 2 and contended that as per the evidence of this witness, the Appellant was always liked to sit in the second room and on the day of incident, inspection work was going on in the second room, in which the Appellant likes to sit. This witness has also contended that he has no knowledge about recovery of Rs. 300/-. Mr. Gupta has contended that this shows that the Appellant was not in the front room from where money was recovered from the table. Thus, the prosecution has failed to prove recovery from the evidence of this witness. He has also contended that though the Inspection Officer was present in the second room, prosecution has not examined the Inspection Officer. Non-examination of this witness is fatal to the case of the prosecution. He has read the oral evidence of PW No. 5-complainant and contended that conduct of this witness creates some doubt. He has also contended that evidence of this witness is not reliable, trustworthy and acceptable. He has also contended that the prosecution has failed to prove the case of demand through oral evidence of this witness. Mr. Gupta has further read the oral evidence of panch No. 1-PW No. 10 and contended that as per the evidence of this witness, the Appellant was sitting in the front room whereas as per the evidence of PW No. 2, the Appellant was always sitting in the second room and on the day of incident also, the Appellant was sitting in the second room. Thus, there is material contradiction in the evidence of these witnesses. Mr. Gupta has further read the oral evidence of PW No. 3 and contended that the trap amount of Rs. 300/- was recovered from the table of Additional Talati, who was not present on that day. Thus, the prosecution has failed to prove the recovery beyond reasonable doubt. He has further contended that the Appellant was beaten by the Trapping Officer on the day of incident and therefore, the Appellant had taken treatment at Primary Health Center, Kathor and medical certificate of injury is also produced on record. He has further contended that the learned trial Judge has failed to consider the probable defence of the Appellant. The Appellant in his probable defence clearly stated that he was beaten by the Trapping Officer and he had taken treatment at Primary Health Center. Mr. Gupta has read the contents of complaint at Exhibit 15 and contended that demand is not established. Mr. Gupta has further read the second part of panchnama and contended that from the contents of panchnama, demand and acceptance is not proved beyond reasonable doubt. He has contended that when recovery is not made from the possession of the Appellant, then it cannot be said that the prosecution has proved its case beyond reasonable doubt. He has also read the oral evidence of Trapping Officer-PW No. 12 at Exhibit 27 and contended that this witness is a Police Officer and his evidence can be considered with a great caution. This witness is interested in successfully completion of trap.

Mr. Gupta therefore, contended that the prosecution has failed to prove the case of demand and acceptance beyond reasonable doubt. Looking to the evidence produced on record and circumstantial evidence, prosecution has failed to prove the case beyond reasonable doubt against the Appellant and therefore, prayed that present appeal is required to be allowed and the Appellant is required to be acquitted from the charges levelled against him.

As against this, Mr. Jani, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Additional Sessions Judge is absolutely just and legal. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, circumstantial evidence and evidence produced on record, the learned Additional Sessions Judge has passed absolutely just and legal order and is not required to be interfered with. He has also contended that the evidence of the panchas have supported the case of the prosecution. Mr. Jani has read the oral evidence of panch Nos. 1 and 2 and contended they are independent witnesses and they have supported the case of the prosecution. They have no animosity against the Appellant to involve him in a false case. The panch No. 1 in his evidence clearly stated that in his presence the Appellant had asked a specific question to the Appellant that as to whether as per the agreement, have you brought the money? Therefore, the complainant took out the currency notes from his pocket and produced before the Appellant and said that count it, to which the Appellant replied that I have trust and also told to put the currency notes in the drawer. Therefore, the complainant put the said notes in the drawer and closed the drawer. Thus, from the oral evidence of PW No. 1 demand and acceptance is proved beyond reasonable doubt. He has also read the oral evidence of panch No. 2 at Exhibit 20 and contended that from the oral evidence of this witness, recovery is proved beyond reasonable doubt. Thus, the prosecution has successfully proved the case of demand an acceptance beyond reasonable doubt. Mr. Jani has further contended that the panch Nos. 1 and 2 are independent witnesses and their evidence are trustworthy, reliable and acceptable and are in corroboration with the evidence of the complainant. He, therefore, contended that presumption u/s 20 of the Prevention of Corruption Act, 1988 is required to be drawn against the present Appellant that the Appellant has accepted the amount from the complainant and it is the duty of the Appellant to rebut the said presumption by offering reasonable and probable defence. In the instant case, the Appellant has failed to prove his probable defence. He, therefore, contended that present appeal is required to be dismissed and judgment and order of conviction and sentence is required to be confirmed.

I have heard learned Counsel for the parties and perused the papers produced before me. I have also considered the submissions advanced by the learned Counsel for the parties. So far as the question regarding demand is concerned, I have considered oral evidence of complainant - Pareshkumar at Exhibit 13. This witness in his evidence has clearly stated that when first time he met the Appellant for showing the name of his Bhabhi in panchayat record, the Appellant has told him to understand something. Thereafter when on 14th August, 1991 this witness-complainant again went to meet the Appellant to inquire about his work, the Appellant has specifically asked him "as per your promise, whether you brought the money?" This shows the conduct of the Appellant. Thus, demand is proved through the oral evidence of this witness. This witness has also specifically stated that at the time when the Appellant asked him about the money, panch No. 1-PW No. 10 was also present. I have also considered the oral evidence of panch No. 1-PW No. 10 in connection with the evidence of the complainant. The panch No. 1 has also narrated the same version as of the complainant. Thus, demand is clearly established beyond reasonable doubt. The evidence of PW No. 5-complainant is corroborated by the evidence of PW No. 10-panch No. 1, who is an independent witness. Thus, it clearly transpires that the Appellant had demanded the illegal gratification from the complainant for the work, which officially assigned to him. It appears from the evidence of PW Nos. 5 and 10 that their evidences are free from all doubt and infirmities about the demand raised by the Appellant on 14th August, 1991. PW No. 5-complainant is not having any enmity with the Appellant. He is not biased and he has no interest to involve the Appellant in a false case. A close and careful scrutiny of the evidence of PW No. 5 suggests that this witness has not made any mistake in narrating the entire episode in his deposition at Exhibit 13, which inspires confidence about his credibility and reliability. In the instant case, main part of the prosecution in relation to the demand raised by the Appellant is corroborated by the evidence of PW Nos. 5 and 10 coupled with the contents of panchnama at Exhibit 21. So far as the question regarding acceptance is concerned, it clearly transpires from the papers that when the Appellant asked the complainant about the money as agreed and when the Appellant took out the money from his pocket and produced before the Appellant, the Appellant told the complainant to put it into the drawer of the table. Therefore, the complainant put the said amount of Rs. 300/- into the drawer of the table and thereafter, he gave the signal to the members of raiding party. This evidence of the complainant is also corroborated by the evidence of panch No. 1-PW No. 10. Thus, acceptance is also proved beyond reasonable doubt. The Appellant has failed to rebut the said presumption by leading probable defence. Thus, when demand and acceptance is proved and when the Appellant has failed to rebut the presumption u/s 20 of the Prevention of Corruption Act, 1988, I am of the opinion that prosecution has proved its case beyond reasonable doubt. So far as argument of Mr. Gupta, learned Counsel for the Appellant, that the Appellant has contended in his further statement recorded u/s 313 of the Code of Criminal Procedure regarding ill-treatment given to him and he has also produced medical certificate of the medical expert, I have perused the medical certificate produced on record. As per the said certificate, the doctor of Primary Health Center, Kathor had examined the Appellant at around 17.40 hours whereas as per the evidence of P.I. Shri Rana coupled with the contents of panchnama at Exhibit 21, it revealed that on the day of incident, trapping procedure was concluded at 18.30 hours. The Appellant was throughout present during the procedure of trap. Thus, when procedure was concluded at 18.30 hours, how it was possible that the Appellant had taken treatment at 17.40 hours. The Appellant has failed to prove this contradiction. Thus, I am of the opinion that the Appellant has failed to prove the probable defence. The defence has failed to prove the probable defence. I have not found anything to accept the defence version of the Appellant. I am of the opinion that the learned Additional Sessions Judge has passed the judgment and order after appreciating all the aspects of the matter. I have also considered the oral evidence of Trapping Officer. It is true that he is a police officer, but the defence has not produced any evidence to suggest that the Trapping Officer is biased or that he has committed any illegality. The Trapping Officer is an independent witness and he is not having any ill-intention to involve the Appellant falsely. He has supported the case of the prosecution.

I have also considered the argument of Mr. Gupta, learned Counsel for the Appellant, that on the day of incident inspection work was going on in the office of the Appellant and the Appellant was with the inspection officer. The prosecution has not examined the inspection officer and non-examination of the inspection officer creates some doubt. From the perusal of the papers, it appears that inspection work was going on in the second room whereas the Appellant was sitting in the front room and the procedure of trap was carried in the front room. Thus, the inspection officer was not present in the room where the trap was carried out. Thus, when the inspection officer was not present in the room, non-examination of inspection officer is not fatal to the case of the prosecution or it creates some doubt.

So far as the question regarding acceptance of bribe money is concerned, it is recovered from the drawer of the table. The Appellant had asked the complainant to put the bribe money into the drawer. Thus, recovery is also proved beyond reasonable doubt.

As per above observation, I found that demand of illegal gratification made by the Appellant-accused is proved beyond reasonable doubt through the oral evidence of complainant and panch witness as well as through documentary evidence produced on record. As per the provision of Section 20 of the Prevention of Corruption Act, 1988, presumption is required to be drawn against the present Appellant-accused and when the Appellant-accused has failed to rebut the said presumption, defence version cannot be considered, which is tried to be established by the learned Counsel for the Appellant.

Hence, in view of the foregoing reasons, present appeal is dismissed. The judgment and order of conviction and sentence dated 30th April, 1997 passed by the learned Additional Sessions Judge, Surat, in Special Case No. 08 of 1992, is hereby confirmed. The Appellant is on bail. His bail bonds shall stand cancelled. The Appellant-accused is, therefore, directed to surrender himself before the Jail Authority within a period of six weeks from today to undergo the remaining sentence, if any, failing which the Court concerned is directed to issue Non-bailable warrant against the Appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.