Mahendrakumar Manilal Patel vs State of Gujarat and Another

Z.K. Saiyed, J.—Since the present appeals are arising out of the common judgment and order dated 24th April, 1997 passed by the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special Case No. 01 of 1993, both the appeals are decided by this common judgment.

So far as Criminal Appeal No. 450 of 1997 is concerned, the same is filed by the original accused against the judgment and order of conviction and so far as Criminal Appeal No. 591 of 1997 is concerned, the same is filed by the State of Gujarat for enhancement of sentence.

Appellant of Criminal Appeal No. 450 of 1997 has preferred the appeal u/s 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 24th April, 1997 passed by the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special Case No. 01 of 1993, whereby the learned Special Judge has convicted 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 one year with fine of Rs. 2,000/-, and in default of payment of fine; sentenced him to undergo simple imprisonment for a further period of one month. The learned Special Judge has also convicted the Appellant for the offence punishable u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo simple imprisonment for a period of one year with fine of Rs. 2,000/-, and in default of payment of fine; sentenced him to undergo simple imprisonment for a further period of one month. Both the sentences were ordered to run concurrently.

As per the case of the prosecution, the Appellant was working as Engineer in Jamnagar Municipal Corporation. At that time, the complainant with other persons had done drainage work in partnership with main contractor, who had taken contract from the Jamnagar Municipal Corporation. As per the Agreement, the complainant and other partners received Rs. 1,93,000/-from the main Contractor for the work done by them; out of which, as per the case of the prosecution, the Appellant had demanded Rs. 5,500/-as illegal gratification. As per the case of the prosecution, Shantibhai, one of the partners, had paid Rs. 5,000/-to the Appellant as per his demand out of Rs. 5,500/-and Rs. 500/-was kept outstanding. It is further the case of the prosecution that the Appellant thereafter, two to three times, demanded the said remaining amount from Shantibhai, but Shantibhai did not pay the said amount. Thereafter on 20th April, 1992 the main Contractor informed the complainant that the Appellant had demanded his remaining amount of Rs. 500/-, which you have to pay on the next day. Thereafter on 21st April, 1992 when the Appellant met the complainant near Chetna Lodge, he again demanded Rs. 500/-, to which the complainant told that he has no money. Therefore, the Appellant told the complainant to come to Chetna Lodge in the evening hours and give him his remaining amount.

As the complainant was not willing to give Rs. 500/-to the Appellant, he approached the Police Inspector, A.C.B. and lodged his complaint. Thereafter, services of two panchas were sought, 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 to the complainant. Thereafter, currency notes, i.e. five notes of Rs. 100/-each, produced by the complainant were smeared with anthrecene powder. Number of these notes were noted in the preliminary part of panchnama. The said currency notes were put in the left pocket of the shirt of the complainant. 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 and signature of the panchas were taken below the panchnama. Thereafter, the complainant, panchas and members of the raiding party proceeded towards Chetna Lodge in Government vehicle at 18.40 hours.

After reaching to Chetna Lodge, the complainant and panch No. 1 waited for the Appellant at Sadhna Pan House, adjacent to the stairs of Chetna Lodge. Thereafter at 21.05 hours the Appellant came at Chetna Lodge and on seeing the complainant, stood there and asked the complainant as to whether he has brought remaining amount of Rs. 500/-of Bill No. 4, to which the complainant replied that he has brought. The complainant further asked the Appellant that as to whether he should give the amount here or the same shall be paid in Chetna Lodge, to which the Appellant replied that give it here. Therefore, the complainant requested the Appellant to reduce the amount, but the Appellant had told that it is proper as per percentage. Therefore, the complainant took out Rs. 500/-by his right hand from his left pocket of shirt and gave the same to the Appellant, which was accepted by the Appellant by his right hand and put the same in his shirt pocket. Thereafter, the complainant gave pre-decided signal to the members of raiding party. Thereupon the members of the raiding party rushed at that place and caught the Appellant. Thereafter, after giving his identity, P.I. told the Appellant that he has been caught in trap. Thereafter, as they are on public road, one room of Chetna Lodge came to be opened to carry out panchnama. Thereafter, experiment of U.V. Lamp was carried out on the members of raiding party excluding complainant, Appellant and panch No. 1, but anthrecene powder was not found. Thereafter, the said experiment was carried out on the hands complainant, Appellant and panch No. 1. On right hand fingers and inside the pocket of the complainant, light blue fluorescent marks were found. On both the hands of panch No. 1 anthrecene powder was found as well as on currency notes also, anthrecene powder was found. On the right hand fingers as well as inside the shirt pocket of the Appellant, light blue fluorescent marks of anthrecene powder was found. The number of the currency notes were got tallied with the number noted in the preliminary panchnama. Thereafter, shirt of the Appellant came to be seized and receipt to the said effect was given to the Appellant. Thereafter, second part of panchnama came to be drawn in Chetna Lodge and signature of both the panchs were obtained on the same.

Thereafter, a complaint against the present Appellant came to be registered for the offences punishable under the Prevention of Corruption Act, 1988. Thereafter Investigating Officer carried out investigation and recorded statements of various persons. Thereafter, after obtaining sanction, charge-sheet came to be filed against the Appellant-accused in the Court of Sessions, Jamnagar.

Thereafter, charge was framed at Exhibit 14 against the Appellant. The charge was read over and explained to the Appellant, to which 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 six witnesses and also produced documentary evidence in support of its case.

Thereafter, after completing the evidence of prosecution, further statement of the Appellant u/s 313 of the Code of Criminal Procedure, 1973 came to be recorded wherein the Appellant has submitted that he has been working honestly since 30 years. He has never demanded any amount from the complainant as bribe. He has further submitted that the complainant is working as contractor under him and he has to give Certificate certifying that the complainant is timely making payment to the labourers. But as the complainant has given work on lump sum basis, he has denied to give Certificate to the said effect. Therefore, a concocted complaint is filed against him. He has been falsely implicated in the present case.

After considering the oral as well as documentary evidence produced on record and after hearing the parties, the learned Special Judge vide impugned judgment and order dated 24th 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 Special Judge and Additional Sessions Judge, Jamnagar, the Appellant has preferred the present appeal.

Heard Mr. Yogesh Lakhani, leaned senior counsel for the Appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State.

Mr. Lakhani, learned senior counsel appearing for the Appellant has read the charge at Exhibit 14 and contended that it is the duty of the prosecution to prove the three essential ingredients of the offence, viz. demand, acceptance and recovery beyond reasonable doubt. He has contended that in the instant case, the prosecution has failed to prove the said three essential ingredients beyond reasonable doubt. Therefore, the judgment and order of conviction and sentence is required to be quashed and set aside. He has read the oral evidence of P.W. No. 1 - complainant at Exhibit 17 and also read the complaint at Exhibit 32. This witness in his oral evidence stated that Ukabhai Tribhovanbhai, Contractor, told him to give Rs. 500/-to the Appellant. He has also admitted in his oral evidence that he has no idea as to for what purpose the said amount has to be given to the Appellant. This witness has also admitted in his oral evidence that he has not remembered the date on which he has given the said amount to the Appellant. This witness further admitted in his oral evidence that he has not filed any complaint, but only signed the papers in A.C.B. Office. He has admitted his signature, but at the same time also admitted that he has not read the complaint and at that time except him and P.I., nobody was present in the office. He has also admitted that on the insistence of Contractor, he had signed the papers. P.I. has not explained anything to him. This witness in his cross-examination admitted that he has not paid any amount of bride for passing his bill. This witness in his evidence has never stated that the present Appellant had demanded bribe amount from him. Mr. Lakhani has contended that this witness, viz. Complainant, turned hostile and not supported the case of the prosecution. Mr. Lakhani has also read oral evidence of P.W. No. 2 at Exhibit 18 and contended that the complainant is working for him and he is not the partner. Complainant is handling the work of supervision and receiving Rs. 1,400/-as salary. This witness has also admitted in his evidence that he has never filed complaint against the Appellant. He has never stated in his evidence that the Appellant had demanded any bribe amount for clearing the running bill. Mr. Lakhani has contended that thus, this witness has also not supported the case of the prosecution. This witness is also declared hostile. Thus, when prosecution has failed to prove the case of demand from oral evidence of P.W. No. 1-complainant and P.W. No. 2-contractor, who are the main witnesses of the prosecution, then presumption u/s 20 of the Act cannot be drawn against the Appellant. He has further contended that if the presumption is to be drawn, then demand has to be proved by the prosecution beyond reasonable doubt, which is not at all proved. Mr. Lakhani therefore contended that the order passed by the learned Special Judge is required to be set aside on this ground also.

Mr. Lakhani further read the oral evidence of P.W. No. 6-Head Constable at Exhibit 31 and contended that this witness in his cross-examination admitted that at about 19.00 hours they reached at Chetna Lodge and about 21.00 hour trap was arranged. This witness also admitted in his cross-examination that neither he has heard any talk which took place between the Appellant and the complainant nor he had seen passing of currency notes. Mr. Lakhani has further read oral evidence of P.W. No. 3-panch witness at Exhibit 21 and contended that this witness in his cross-examination stated that bribe was accepted by the Appellant at 19.05 hours. Thus, there is contradiction about the time of trap. Even in the police statement and panchnama, the time of trap was shown as 21.00 hours. Mr. Lakhani, therefore, contended that the prosecution has miserably failed to prove the acceptance also. Even the oral evidence of panch witness is not specific regarding talk about Rs. 500/-between the Appellant and the complainant and this contradiction is proved by the defence. Thus, oral evidence of P.W. No. 3-panch witness whose evidence is found contradictory with regard to time of trap and about the talk took place between the Appellant and the complainant which is not corroborated by police officer and also by the complainant, then that evidence cannot be relied upon to base the conviction of the Appellant. He, therefore, contended that under these circumstances, the judgment and order of conviction and sentence passed by the learned Special Judge is bad in eye of law and therefore, the same deserves to be quashed and set aside. Mr. Lakhani has further contended that prosecution has not examined Panch No. 2 to prove the panchnama at Exhibit 22. Even prosecution has not examined Investigating Officer in support of its case.

Therefore, looking to the evidence produced on record and circumstantial evidence, prosecution has failed to prove its 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 contended that looking to the nature, gravity and seriousness of the offence, the learned Special Judge has passed the order. He has also contended that the Appellant was Executive Engineer and he was caught during the trap accepting the bribe from the complainant for getting bill passed in connection with drainage scheme. Mr. Jani has read charge, oral and documentary evidence produced on record and contended that it is true that the complainant and P.W. No. 2 turned hostile, but that could not be sufficient reason to acquit the Appellant from the charges levelled against him. Mr. Jani has contended that the complainant has no animosity with the Appellant to falsely implicate him in the present case. Mr. Jani has contended that panch No. 2 has supported the case of the prosecution. He has narrated entire facts of the prosecution case. He has further contended that public servant, i.e. the Appellant in the instant case, is found in possession of currency notes smeared with anthracene powder and therefore, it is sufficient to draw legal presumption u/s 20 of the Prevention of Corruption Act against him and prosecution need not require to further prove that money was paid to a public servant. The Appellant, in the instant case, has neither produced any rebuttal evidence nor during the course of evidence adduced by the prosecution could prima-facie rebut the presumption. In the instant case, the Appellant was not able to offer any probable defence regarding presence of anthrecene powder. Mr. Jani has contended that thus, the prosecution has successfully proved the ingredients of Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Mr. Jani 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. It appears from the papers that P.W. No. 1-complainant himself, P.W. No. 2-Ukabhai and P.W. No. 5-Shantilal turned hostile. They have not supported the case of the prosecution. The complainant in his oral evidence admitted that he has not filed any complaint against the Appellant. He has also admitted that the Appellant has never demanded any bribe amount from him for passing the bill. It is true that this witness had signed the papers, but he has not read a single line of that paper. Even P.I. has not explained anything to him as per the say of this witness. Even P.W. No. 2 has also admitted in his evidence that he has not filed any complaint against the Appellant. Thus, when both the material witnesses in the present case have not supported the case of the prosecution, I am of the opinion that prosecution has failed to establish the demand made by the Appellant beyond reasonable doubt. I have also perused oral evidence of P.W. No. 3 at Exhibit 21 and oral evidence of P.W. No. 6 at Exhibit 31. P.W. No. 2 has tried to support the case of the prosecution, but there are material contradiction between the oral evidence of P.W. No. 2 and P.W. No. 6-Head Constable. As per the say of P.W. No. 2 trap was laid at about 19.05 hours whereas as per the say of P.W. No. 6, trap was laid at about 21.00 hours. Thus, there is material contradiction regarding the time of trap. Even in the panchnama as well as police statement, time of trap was shown as 21.00 hours. Thus, it clearly transpires that there is contradiction about the time of trap. Thus, in my opinion the prosecution has failed to prove acceptance also. I have also gone through the oral evidence of P.W. No. 3-panch witness. Oral evidence of this witness is not specific regarding the talk took place between the Appellant and the complainant and the defence has successfully proved this contradiction. Thus, oral evidence of P.W. No. 3-panch witness cannot be considered, which is not corroborated by police officer and also by the complainant.

Looking to the evidence produced on record, it appears that prosecution has failed to prove demand and acceptance of illegal gratification beyond reasonable doubt. When, the prosecution has failed to prove ingredients of Section 7 of the Act, it cannot be said that ingredients of Section 13(2) is proved. From the perusal of evidence on record, I am of the opinion that presumption u/s 20 of the Prevention of Corruption Act, 1988 cannot be drawn against the Appellant.

As per above observation, I am of the opinion that the judgment and order of conviction and sentence passed by the learned Special Judge is bad in eye of law. The defence has successfully proved its case before the learned Special Judge, but the learned Special Judge has failed to consider the case of the defence. Defence has produced sufficient evidence on record to prove that the Appellant has falsely involved in the case. The learned Special Judge has committed error in convicting the Appellant for the offence punishable under the Prevention of Corruption Act, 1988.

Hence, in view of the foregoing reasons, Criminal Appeal No. 450 of 1997 is hereby allowed. The judgment and order of conviction and sentence dated 24th April, 1997 passed by the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special Case No. 01 of 1993, is hereby quashed and set aside. The Appellant is on bail. His bail bond shall stand discharged. Since the Appellant is on bail, no order with respect to setting him at liberty is passed. The Appellant is hereby acquitted from the charges levelled against him in the present Special Case. Fine, if paid, be refunded to the Appellant. Record and Proceedings, if any, be sent back to the Court concerned, forthwith.

So far as Criminal Appeal No. 591 of 1997, i.e. appeal filed u/s 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence, filed by the Appellant-The State of Gujarat is concerned, the same is hereby dismissed in view of judgment and order passed in Criminal Appeal No. 450 of 1997.