Chunilal Chhimabhai Patel 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 19th February, 2001 passed by the learned Special Judge Valsad District at Navsari, in Special Case No. 08 of 1992 whereby the learned Special 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 rigorous imprisonment for a period of six months, and also imposed fine of Rs. 5,000/-, 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(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for a period of three years, and also imposed fine of Rs. 10,000/-, and in default of payment of fine; sentenced him to undergo simple imprisonment for a further period of six months. However, both the sentences were ordered to run concurrently.

As per the case of the prosecution, the Appellant was serving as Talati-cum-Secretary in-charge of village Jamanpada, Taluka Chikhli, District Valsad. The complainant was cultivating land of his father-in-law, which falls under Survey No. 491. The complainant had constructed a pakka well in the year 1992 with 100% monetary assistance of the Government under a scheme. It is the case of the prosecution that in the year 1991, the complainant wanted to install an electric engine on his pakka well with full monetary assistance of the Government under the scheme. For being granted full monetary assistance for electric engine, it is required to be proved that the complainant had a pakka well in his land and the same can be ascertained by Entry in 7/12 extract to that effect. Therefore, the complainant wanted Entry in the 7/12 extract relating to the land in question of pakka well. He, therefore, approached the Appellant herein but the Appellant was not giving satisfactory answer. In the last week of November, 1991 the complainant approached the Appellant for the Entry of pakka well in 7/12 extract. The Appellant demanded Rs. 500/- from the complainant for the said Entry.

As the complainant was not willing to make the payment, he approached the office of the Anti Corruption Bureau at Valsad and lodged a complaint. Thereafter, services of two panchas were sought for. On 28th November, 1991 the complainant, Investigation Officer along with staff and panchas get together at Kherwada Irrigation Guest House in the early morning. 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, as the complainant was having only Rs. 250/-, remaining amount of Rs. 250/- was provided by the Investigating Officer. Thereafter, the Investigating Officer gave necessary instructions to the complainant as well as to the panchas. Thereafter, preliminary part of the panchnama was drawn and signature of the panchas were taken below the panchnama. Thereafter, the complainant, panchas and members of the raiding party proceeded towards the house of the Appellant and saw that the appellant standing in his Wadi.

Therefore, the complainant and the panch No. 1 approached the Appellant. Thereafter discussion regarding Entry of pakka well in 7/12 extract took place between the complainant and the Appellant. The Appellant demanded Rs. 500/- from the complainant and asked the complainant to collect 7/12 extract in the evening. On being demanded, the complainant gave Rs. 500/-, which was accepted by the Appellant and put the same in his shirt''s pocket. Thereafter, the complainant gave pre-decided signal to the members of raiding party. Thereupon the members of the raiding party rushed to the place of incident and caught the Appellant. On seeing the members of raiding party, the Appellant thrown the currency notes on the land. It is the case of the prosecution that number of the said currency notes thrown by the Appellant on the land got tallied with the number mentioned in the first part of the panchnama. Thereafter, experiment of U.V. Lamp was carried out by examining hands of the Appellant. On fingers of both the hands and on palm of the Appellant, light blue fluorescent marks were found. Even inside and outside of the shirt''s pocket also, light blue fluorescent marks were found. Thereafter the second part of the panchnama was drawn.

Thereafter, panchnama at Exhibit 17 of above-stated facts came to be prepared. Thereafter, the Investigating Officer carried out investigation and recorded statements of various persons including the complainant and the panchas. Thereafter, after obtaining sanction, on 23rd April, 1992 charge-sheet came to be filed against the appellant-accused.

Thereafter, charge was framed at Exhibit 6 against the appellant for the offences punishable u/s 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and read over to the Appellant. The appellant pleaded not guilty and claimed to be tried.

In order to bring home the charges levelled against the appellant, the prosecution has examined in all five 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 came to be recorded on 18th October, 2000 wherein the Appellant has denied the case of the prosecution and has pleaded his innocence. The Appellant has also submitted that he has not demanded any amount from the complainant. It is the complainant who has forcibly tried to insert the said currency notes in his shirt''s pocket and therefore, he tried to stop the complainant from doing so. In the said process his hands touched the said currency notes and therefore, light blue fluorescent colour marks were found on his hand and the said currency notes fell down. The Appellant has submitted that he has been falsely implicated in the present case.

After considering the oral as well as documentary evidence and after hearing the parties, the learned Special Judge vide impugned judgment and order dated 19th February, 2001 held the Appellant-accused guilty to the charges levelled against him as mentioned hereinabove.

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

Heard Mr. Prashant Desai, leaned senior counsel with Mr. Murgen Purohit, Learned Counsel for the Appellant with and Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State.

Mr.Desai, learned senior counsel appearing for the appellant has contended that the judgment and order passed by the learned Special Judge is illegal, invalid and improper. He has also contended that the learned Special Judge has not considered the case of the defence and material evidence produced on record. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Special Judge has not considered the probable defence of the Appellant and he was wrongly convicted by the learned Special Judge. He has read the oral evidence of Trapping Officer, PW No. 5 at Exhibit 31 and contended that this witness has never investigated that at Survey No. 491 as to whether there was pakka well or not. He has further contended that this witness has also not drawn the panchnama of the said place. This witness has admitted that from the Gram Sevak, he has obtained record and from the record, it is admitted by him that at Survey No. 492 there is only kachchha well and not pakka well. Mr. Desai has contended that looking to the admission of PW No. 5, who is a Trapping Officer and Investigating Officer, he had committed some negligent act in connection with trap and investigation and therefore, prosecution has no right to say that prosecution has proved its case beyond reasonable doubt. He has also contended that reading the panchkam and other documents, it is clearly revealed that everything was done by the Investigating Officer without consulting or being dictated by the panchas. The depositions of the complainant as well as panchas established that it was the Investigating Officer who did everything from recording of the complaint to search and seizure followed by the investigation. All the reports and other documentary evidence have been prepared by the Investigating Officer in complete disregard of the law. This creates infirmity in the case and reflects non-credibility of the prosecution case. Thus, from the oral evidence of the Investigating Officer it clearly appears that the judgment and order of conviction and sentence is erroneous and is required to be set aside. Mr. Desai has also read oral evidence of PW No. 3 - Gunvantbhai Kikabhai Patel at Exhibit 20 and contended that from his evidence, root of the prosecution case is distorted straightway. He has also contended that this witness is a Gram Sevak. He has also carried out some inquiry and is evidence is reliable evidence. Mr. Desai has also contended that prosecution has never examined Panch No. 2 and non-examination of material witness is fatal to the case of the prosecution. Mr. Desai has read oral evidence of PW No. 2 - Ratilal Harjibhai Patel at Exhibit 16 as also oral evidence of PW No. 1 - Kanubhai Jayrambhai Patel at Exhibit 14 and contended that sufficient contradiction is proved through oral evidence of both these witnesses. Mr. Desai has read the oral evidence of complainant, i.e. PW No. 1, and contended that it is admitted fact by the complainant that trap amount was lifted by PW No. 2 and it was handed over to the Trapping Officer and the Trapping Officer has inserted the said amount in his pocket. Thus, from the oral version of the complainant, who is a material witness for the prosecution, created some contradictory version and therefore, benefit of doubt is required to be given to the appellant. Mr. Desai has read oral evidence of PW No. 2 and contended that this witness in his evidence admitted that complainant has used four fingers and thumb to pick out the currency notes from his pocket, but, this witness was unable to say that whether on the backside of the fingers and thumb, light blue fluorescent marks were found or not. This witness has also submitted that the fact of throwing currency notes by the Appellant was dictated by Panch No. 2 in the panchnama and not by him. Mr. Desai has contended that to prove this fact, prosecution has to examine Panch No. 2, but prosecution has not done so, which is fatal to the case of the prosecution. Mr. Desai has also contended that when pakka well was not there, as per the record of the Gram Sevak, non-availability of pakka well also creates some doubt. Mr. Desai has also contended that the prosecution has failed to prove the demand and even date of demand is also not clear. At some place the date is shown as 26th November, 1991 and at some place, it is shown as 27th November, 1991. He has read the complaint and also contended that when sufficient doubt is created, benefit of doubt is required to be given to the Appellant. Mr. Desai has read contents of the prosecution case and contended that from the evidence itself it appears that the complaint was lodged by the Investigating Officer on a blank paper and it was not registered as per the procedure in diary, which also creates some doubt and when complaint is on a blank paper, it is fatal to the case of the prosecution.

Mr. Desai has contended that so far as question of recovery is concerned, the currency notes were found lying on the land and not from the possession of the appellant. He has further contended that at this stage, defence of the Appellant is required to be considered. The appellant in his further statement recorded u/s 313 of the Code of Criminal Procedure, 1973 submitted that the complainant has forcibly tried to put the currency notes in his pocket and because of resistance from the appellant, the said notes were fell down on the land. In the process of resistance from the Appellant, hands of the appellant might have been touched the currency notes and therefore, light blue fluorescent marks were found on the hands of the Appellant. Thus, prosecution has even failed to prove the case of acceptance beyond reasonable doubt. Thus, the Appellant has proved his defence version and therefore, presumption u/s 20 of the Act cannot be drawn.

Mr. Desai therefore, contended that the prosecution has failed to prove the case of demand and acceptance beyond reasonable doubt and even sanction is also without application of mind. Therefore, 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 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 Special Judge is absolutely just and proper. 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 order passed by the learned Special Judge is absolutely just and legal and is not required to be interfered with. He has also contended that the panchas have supported the case of the prosecution. Mr. Jani has read complaint at Exhibit 15 and contended that from the complaint itself, first demand is proved beyond reasonable doubt. In the complaint the complainant had stated that on 26th November, 1991 when he met the appellant and told him that he is in need of 7/12 extract along with Entry regarding pakka well in the said extract. Therefore, the Appellant told the complainant that "after obtaining 7/12 extract from me, you will get Rs. 10,000/- as loan subsidy to purchase engine and it will be benefited to you. Therefore, if you want extract as per your choice, you have to oblige me." The complainant, therefore, told the Appellant that "after receiving loan subsidy, I will oblige you", to which the Appellant replied that "first Rs. 500/- should be given to me and thereafter only 7/12 extract of your choice will be given to you." Therefore, with dissatisfaction the complainant told yes and said that "at present I do not have Rs. 500/-. At what time I have to come", to which the Appellant replied that "tomorrow bring Rs. 500/- and meet me at 08.00 hours at my house or at my wadi wherever I will be." Mr. Jani contended that this itself prove the initial demand made by the Appellant. He has read oral evidence of PW No. 2 and contended that from the oral evidence of this witness, second demand is proved beyond reasonable doubt. This witness has supported the case of the prosecution and evidence of this witness is in corroboration with the evidence of the complainant, i.e. PW No. 1. This witness in his oral evidence has contended that when they reached the place of Appellant, demand was made by the Appellant in his presence. When they reached at the place of appellant, the complainant told the Appellant that he came to take 7/12 extract, to which the Appellant replied that take it in the evening and asked a specific question that "what about money?" Thus, the second demand through the oral evidence of PW No. 2 is proved beyond reasonable doubt. The PW No. 2 has, in his evidence, narrated the fact of demand. Thus, the prosecution has proved its case of demand beyond reasonable doubt through the oral evidence of PW Nos. 1 and 2. Mr. Jani has further contended that the PW No. 2 is an independent witness and his evidence is trustworthy, reliable and acceptable and is in corroboration with the evidence of the complainant. Mr. Jani has further contended that in furtherance to the demand made by the Appellant, the appellant had accepted the said amount from the complainant and put the same in his shirt''s pocket, but when signal was given by the complainant to the members of the raiding party and when he saw the members of raiding party to come in his side, he tried to run away and thrown out the said amount, which was accepted by him from the Appellant, on the land. He has further contended that the conduct of the Appellant shows that he has committed wrong and he is wrongdoer. This conduct of the Appellant is required to be looked into. This shows that just to obtain illegal gratification and pecuniary advantage from the complainant, the Appellant had made demand. This shows that the Appellant is guilty of the charge levelled against him. He has also read oral evidence of PW No. 5-Trapping Officer and contended that from the oral evidence of this witness, contents of panchnama as well as complaint is proved beyond reasonable doubt. Mr. Jani has contended that no doubt this witness is a Trapping Officer, but he is an independent witness and he has no ill-intention to falsely implicate the present Appellant in a case. Even it is not the case of the Appellant that the Trapping Officer is biased. He has further contended that during the search, light blue fluorescent marks were found on his both the hands and inside and outside of his shirt''s pocket. 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 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 was not able to offer any probable defence regarding presence of anthrecene powder inside and outside of his shirt''s pocket. Mr. Jani has contended that thus, the prosecution has successfully proved the ingredients of Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Mr. Jani has also contended that thus when the Appellant has not come out safely from the provision of Section 20 of the Act, judgment and order of conviction and sentence can be confirmed on that point only.

Mr. Jani has further read the oral evidence of PW No. 2 at Exhibit 16 and contended that it is admitted by this witness, who is an independent witness and a public servant, that complaint was read over to both the panchas and even contents of the complaint was also told by the complainant. Thus, the argument advanced by Mr. Desai that the Investigating Officer at his own done everything is false.

Mr. Jani has further read the sanction and contended that the sanctioning authority after appreciating the whole case, has accorded the sanction. Therefore, question of according sanction without application of mind would not arise. The sanctioning authority has after gone through the entire case, accorded the sanction. He has relied upon judgment in the case of State of M.P. v. Jiyalal reported at 2010 (1) GLH 597 and contended that there may be some omission, contradiction or illegalities, yet it is not fatal to the case of the prosecution. Mr. Jani has also placed reliance on the judgment in the case of Narayana v. State of Karnataka reported in 2011 (3) G.L.H. (N.O.C.) 3 and contended that minor discrepancies inter-se between the witnesses would not affect the case of the prosecution. Mr. Jani therefore, contended that thus the first demand, second demand, acceptance and recovery is proved beyond reasonable doubt and when the Appellant has failed to rebut the said presumption drawn against him u/s 20 of the Act, 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 respective 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 argument of Mr. Desai that F.I.R. is written on the blank paper is fatal to the case of prosecution and it creates some doubt is concerned, I have perused judgment in the case of Sone Lal and Others Vs. The State of U.P., in which the Supreme Court has observed that F.I.R. on a plain paper does not appear to be such a defect that it destroy the prosecution case regarding the lodging of the F.I.R. I have perused oral evidence of PW No. 5-Trapping Officer at Exhibit 31. It appears from the oral evidence of this witness, legal presumption would be that official act have been duly performed. Thus, when proper procedure is adopted by the Trapping Officer, I am not in agreement with the submission of Mr. Desai, Learned Counsel for the Appellant, that F.I.R. on a blank paper is fatal to the case of the prosecution. Even the Apex Court in the case of The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, has observed that though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Thus, looking to the observation made by the Apex Court in abovestated both the judgments, question regarding F.I.R. on a blank paper cannot create any doubt against the case of the prosecution. I am not hesitate to say that complaint on a blank paper is not an illegal act, which can be considered against the prosecution. I have also perused oral evidence of PW No. 1-complainant at Exhibit 14. It appears from the evidence of this witness that when the complainant met the Appellant for taking 7/12 extract, the appellant specifically told the complainant that "after obtaining 7/12 extract you will get Rs. 10,000/- as loan subsidy to purchase engine and it will be benefited to you. Therefore, if you want extract as per your choice, you have to oblige me." Thereafter further conversation took place between both of them and the Appellant further told the complainant that "first Rs. 500/- should be given to me and thereafter only 7/12 extract of your choice will be given to you." This clearly shows the initial demand made by the Appellant. The evidence of PW No. 1 further clearly reveals the second demand. When the complainant and Panch No. 1 went to meet the Appellant, the Appellant asked the complainant that "what about money?". It is further revealed from the oral evidence of PW No. 1 that when he asked the Appellant as to whether he has to give full amount, the Appellant replied in affirmative. Thus, the second demand is also proved through oral evidence of PW No. 1-complainant. I have also perused oral evidence of PW No. 2-Panch No. 1 at Exhibit 16 in connection with the second demand made by the Appellant. It appears from the evidence of this witness that he was present at the place when the conversation going on between the appellant and the complainant regarding 7/12 extract. This witness is an independent witness and a public servant. This witness has supported the case of the prosecution and deposed that in his presence, the appellant had made the demand. The PW No. 2-Panch No. 1 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. 2 suggests that this witness has not made any mistake in narrating the entire episode in his deposition at Exhibit 16, 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. 1 and 2 coupled with the contents of the panchnama at Exhibit 17. I have also considered the argument of Mr. Desai, Learned Counsel for the Appellant, that there are contradictions in the oral evidence of PW No. 1 and PW No. 2, but I have no hesitation to say that when substance of the depositions appears to be same so far as demand is concerned, I am not in agreement with the argument made by Mr. Desai. Thus, prosecution has proved its case so far as demand is concerned. The Appellant has demanded the money from the Appellant in the form of illegal gratification. Thus, ingredient of Section 7 of the Act is proved beyond reasonable doubt.

I have further perused the oral evidence of PW Nos. 1 and 2 in connection with the acceptance and recovery. It clearly transpires from the evidence of both these witnesses that on being demanded by the Appellant, the complainant-PW No. 1 took out the currency notes from his pocket, which were accepted by the Appellant and had put the said notes in his shirt''s pocket. Thereafter, when the complainant had given pre-decided signal to the members of the raiding party, the Appellant smelt that something is going on and when he saw the members of the raiding party rushing towards him, he tried to run away from the place of trap and in the process he thrown the currency notes on the land. This conduct of the Appellant clearly suggest that he has committed wrong and therefore, to save himself, he tried to run away from the place of trap. Thus, it is proved that the Appellant is wrongdoer and it can be said that ingredient of Section 13(1)(d) read with Section 13(2) is proved. I have further perused the papers and it is evident from the papers produced before me that the said currency notes were recovered from the land in presence of both the panch witnesses. It also appears from the papers that light blue fluorescent marks of anthrecene powder was found on the hands and inside and outside the shirt''s pocket of the Appellant. Therefore, presumption u/s 20 of the Act is required to be drawn against the Appellant. It is the duty of the Appellant to rebut the said presumption. In this connection, I have perused further statement of the Appellant recorded u/s 313 of the Code of Criminal Procedure. In the further statement the Appellant has tried to explain his defence version but the Appellant has failed to establish the defence version beyond reasonable doubt. The Appellant has failed to explain as to why he tried to run away from the place of trap and as to how light blue fluorescent marks of anthrecene powder was found outside and inside his shirt''s pocket. 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. I have also perused 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. 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. 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 Special Judge has passed the judgment and order after appreciating all the aspects of the matter.

So far as argument of Mr. Desai that sanction is given without application is mind is concerned, I have perused the sanction at Exhibit 30. Looking to the contents of Exhibit 30-sanction, it appears that the competent authority has gone through the entire episode by mentioning the facts in the sanction order. It would not have been possible unless and untill the sanctioning authority would have gone through the entire record of the case. Thus, the sanction accorded by the authority is absolutely just and proper. It clearly transpires from the papers that the Appellant had demanded the illegal gratification from the complainant for issuance of 7/12 extract.

A public servant is expected to serve or to perform his/her duties with utmost honesty and devotion. In the instant case, the Appellant, who is a public servant, had demanded the amount of Rs. 500/- and accepted the same from the complainant. This conduct of the Appellant is required to be looked into. This shows that the Appellant is guilty of criminal misconduct.

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. Presence of anthrecene powder is also found on the hand and inside and outside of the shirt''s pocket of the Appellant and the appellant has failed to explain as to how anthrecene powder is found inside and outside of his shirt''s pocket. As per the provision of Section 20 of the Prevention of Corruption Act, 1988, presumption is required to be drawn against the present Appellant and when the Appellant has failed to rebut the said presumption, defence version cannot be considered, which is tried to establish 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 19th February, 2001 passed by the learned Special Judge Valsad District at Navsari, 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 four weeks from today to undergo remaining sentence, if any, failing which the Court concerned is directed to issue Nonbailable warrant against the Appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.