Natvarbhai Bhayjibhai Patel vs State of Gujarat

Honourable Mr. Justice MD Shah

By way of this appeal, the Appellant - original accused challenges the judgment and order dated 19.02.1997 passed by the learned Special Judge, Bharuch in Sessions Case No. 1 of 1992 by which the learned Judge has convicted the Appellant for the offence punishable u/s 7 read with Section 13(1)(g) and Section 13(2) of the Prevention of Corruption Act and he was sentenced to suffer rigorous imprisonment for 4(four) years and to pay fine of Rs. 4000/- and in default of payment of fine, further rigorous imprisonment for 1(one) year for the offence u/s 7 and sentenced to suffer rigorous imprisonment for 4(four) years and to pay fine of Rs. 4000/- and in default of payment of fine, further rigorous imprisonment for 1(one) year for the offence u/s 13(1)(g) and Section 13(2) of the Prevention of Corruption Act. Trial Court also passed order that the sentence to run concurrently.

The facts in brief are as under:

2.1. That complainant Shri Ilyas Ibrahim Patel had lodged complaint in the ACB Police Station against the Appellant accused on 16.08.1990. That the police had set a trap and thereafter, police raided as per the trap and seized an amount of Rs. 200/- alleged to have been accepted by the Appellant. The police had filed charges-sheet against the Appellant on 18.01.1992 and the case was registered as Special Case No. 1 of 1992. It is stated in the complaint that prior to 16.08.1990, Appellant had approached the complainant and had told him that goods for the complainant had arrived and that there were no bills and therefore, he would lodge complaint against the complainant. It is alleged to have been said to the complainant that if the complainant did not want to face prosecution, he should pay Appellant an amount of Rs. 200/-. Thereafter, the complainant had gone to the office of Appellant on 16.08.1990 in the morning at about 11.30 a.m. and told him to collect the amount at about 4.00 p.m. from the office of complainant. Pursuant to said complaint, police had prepared panchanma and anthracene powder was put on the currency notes to be given to the Appellant. That in the evening at about 4.28 p.m. on motorcycle Appellant came to the office of complainant and demanded an amount of Rs. 200/- from the complainant. That the complainant gave the currency notes, on which anthracene powder was put, to the Appellant and the Appellant accepted the same and put them in right pocket of his safari dress. That the complainant signaled to the police and that the police had thereafter raided and had recovered said currency notes from the possession of the Appellant. Accordingly, Appellant was arrested and necessary formalities like drawing panchanama and other procedure were completed by the police. Thereafter, charge sheet was filed against Appellant vide Exh.4 on 10.04.1995. Plea of the Appellant was recorded vide Exh.5 where he pleaded not guilty.

2.2. The prosecution in order to prove its case had examined 8 witnesses namely:

PW1-Ilyas Ibharim Patel, complainant Exh. 10.

PW2-Narendrabhai Shantilal Shah Exh.21

PW3-Shirshbhai Kalidas Rajput Exh.34

PW4-Rambhai Mansinghbhai Vasava Exh.42.

PW5-Ramdas Shridhar Pathak Exh. 43

PW6-Mohamedi Sadikali Kagdagi Exh.44

PW7-V.V. Subbarao Exh. 45

PW8-Laxmansingh Chabildas Barot Exh. 47.

2.3 To prove its case, the prosecution has also produced documentary evidence such as Panchanma, complaint and sanction etc.

On appreciation, evaluation and scrutiny of evidence adduced by the prosecution both oral as well as documentary, the learned Judge held that the prosecution had established beyond reasonable doubt that the Appellant accused demanded illegal gratification and accepted the bribe money and convicted the accused as referred above. Hence, present appeal.

Mr. C.L. Soni, learned advocate for the Appellant accused took this Court through entire evidence of prosecution witnesses, the complaint, oral as well as documentary evidence as well as judgment of the Court below. He submitted that learned Judge has not appreciated the defence of the Appellant in its true perspective. He argued that Appellant had never demanded any money from the complainant. The prosecution thus failed to prove demand or acceptance of the alleged bribe. Learned Judge ought to have appreciated the conduct of the complainant as demonstrated by the Appellant. Learned Judge ought to have appreciated that the prosecution had failed to bring home charges against the Appellant. A person of the cadre of Inspector of Sales Tax Department could not indulge in corruption of Rs. 200/-. It is submitted that sanction granted by PW-7 Exh.45 - V.V. Subbarao is not legal and valid and without application of mind said sanction is granted. Learned Advocate for the Appellant took this Court through the deposition of Mr. Subbarao PW-7 who granted sanction and submitted that names of two persons viz. Shabirhusen Fazelhusain Pipwala and Ahmedi Siddiqiki Bibi were mentioned in the sanction letter. However, from the papers of charge sheet nothing is found that their statements were recorded. It is also argued that in the cross examination of this witness, he has stated on oath that before granting sanction, he read over the statements of above referred persons and as their names are important they are referred in the sanction. Therefore, learned Judge has committed error in coming to the conclusion convicting the Appellant. It is also submitted that it has also come on record that panchas were ''selected panchas'' as they were close relatives of the complainant. It is submitted that panch witnesses were chosen panchas. So there is no independent witnesses and reliance cannot be placed on the evidence of panchas and the Trial Court has ignored the same and committed error in convicting the Appellant accused. It is also submitted that Appellant accused is falsely implicated. It is submitted that conduct of the complainant and the Investigating Officer during trap creates doubt about their credibility. It is also submitted that as far as demand is concerned, it is not proved beyond reasonable doubt and therefore, Trial Court committed error by not considering this aspect. Making above submissions, it is requested to allow present appeal. It is also submitted that no other demand was made by the accused. In the alternative it is submitted that the sentence imposed on the accused may be reduced.

Appeal is opposed by Mr. L.R. Poojari, learned APP for the Respondent State. It is submitted that after scrutinizing the evidence of the complainant and other witnesses including the panch witnesses and the Investigating Officer, Trial Court has rightly convicted the Appellant accused and the judgment and order passed by the Trial Court is legal and proper and it is not required to be interfered with by this Court and the appeal deserves to be dismissed.

If we discuss argument advanced by learned advocate for the Appellant in reference to sanction then, on perusal of record it transpires that in further cross of the witness PW-Exh.45 - V.V. Subbarao the Court has passed order to the effect that in cross examination words used "statement recorded" are deleted. So the contention of the Appellant accused that sanction is granted without application of mind is concerned, from the said evidence it appears that he referred above names in reference to goods of those persons brought through truck of complainant and as bill of said goods were not found, amount of Rs. 200/- was demanded by the accused. Evidence of PW-7 Exh.45 - V.V. Subbarao inspire confidence and nothing has come out from this evidence which suggest that without application of mind sanction has been granted. On the contrary it suggest that after perusing each and every paper and on perusing report of Investigating Officer, sanction was granted. So argument of learned advocate for the Appellant accused that sanction is not legal and valid is hereby negatived.

As per the defence put forward by the accused as construction of his house was going on and he went to purchase cement from Raj Textiles and at that time complainant came there and handed over Rs. 200/- to him and when he refused to accept it, meantime, Inspector of ACB came there and caught him and false case was filed against him, to prove his defence he has produced bill of purchase at Exh.20. Now if we gone through the evidence of this witness, this witness has categorically stated on oath that he does not have knowledge of office of complainant situated near to his office. In his cross examination he has stated that he is residing at Baroda and he is not able to say that shop of complainant is situated near to his office. Considering evidence of this witness, in opinion of this Court, it is not helpful to accused to rebut burden. Learned Trial Judge has discussed this evidence in great detail. It is rightly observed by the Trial Court that as per movement register, present accused left the office at about 12.00 p.m. and it is to be presumed that he left the office to purchase cement. It is to be noted that Appellant accused was working as Sales Tax Inspector and it also rightly held by the Trial Court that how it came within the knowledge of the complainant and members of the raiding party that accused has come at 4.48 p.m. to purchase cement from the shop of Raj Textiles and so also defence of the accused is not probable. Currency notes of Rs. 200/- recovered from the accused were smeared with anthracene powder and seen in ultraviolet lamp and shining lights were seen on the hands of the complainant and on the currency notes. Therefore, it proved beyond reasonable doubt that marks of antherance powder was found on the hands of accused as well as on notes and also on shirt and Rs. 200/- was recovered from the accused, so it is proved that accused accepted Rs. 200/- from the complainant. As per the evidence, accused Rs. 200/- was taken out from the shirt of the accused and thereafter, experiment of ultraviolet lamp was carried out and anthracene powder marks were found on the bands, shirt worn by the accused. Considering evidence of PW-2 it is totally corroborative with the evidence of complainant and panchanama. Considering evidence, nothing has come from the evidence which shows that false trap is arranged. This shows that the evidence of complainant is very natural and found trustworthy.

The complaint was recorded by the Investigating Officer. Panchas were called by the Investigating Officer and they were introduced to the complainant as well as each other. The complaint was read over to them and preliminary panchnama was drawn. This evidence of the complaint is also corroborated by the panch witness. So far as submission of learned advocate for the Appellant accused that panchas were chosen panchas etc., there is no substance in the this argument because it has come out from the evidence of panch witnesses that for the first time they were remaining as panchas in a trap case. Documentary evidence is also there in this regard. Trial Court after discussing the entire evidence on record, rightly held that both the panchas were independent witnesses and rightly rejected the defence of the accused that panchas were ''selected'' panchas. Nothing has come on record which creates doubt about the character of the panchas. It is pertinent to note that there was no enmity between the accused and panchas and so there is no reason to depose against the accused person.

As per evidence of PW-2 Narendrabhai Shantilal Shah Exh.21, he was superior of the accused and he never asked accused to perform duty outside office and he has also stated that there was no field work.

It was submitted by the learned advocate for the accused that to verify entry collection and checking, on 16.08.1990, accused visited Octorio Naka and transport companies as part of his duty. But there is no substance in this argument. As per evidence of PW-2, duties to visit outside office were closed by Circular of Commissioner vide Exh.24 since 1988. For performing duty, accused is not required to go outside office and he was not allotted the said work. Trial Court has considered the evidence in great detail and on considering entry No. 245 (Exh.25) and movement register Exh.18, Trial Court has held to the effect that accused left the office at 12.00 p.m. and thereafter about 4.00 p.m. left office. As per evidence of PW-2, register is stopped since 01.10.1988 and last endorsement is made on 16.04.1987 (Exh.30). Thereafter, endorsement is made by the accused only to escape from liability.

It is not disputed that accused was a public servant at the relevant time when the incident in question took place. The sanction to prosecute the accused is also produced and it is valid sanction. While scrutinizing the evidence of panch witnesses, the complainant and evidence of Investigating Officer, it is found that their evidence is trustworthy and credible. In opinion of this Court, when evidence of complainant and panch witnesses is found trustworthy the defence put forward by the accused is neither probable nor believable.

When the facts of demand, acceptance and recovery have been satisfactorily established beyond reasonable doubt, the prosecution has become statutorily entitled to benefit of the presumption u/s 20(1) of the Act i.e. prosecution has to be held to have proved that Appellant accused accepted money in question as illegal gratification. From the oral evidence of panchas, Investigating Officer, panchnama and FIR, the fact that Appellant accused demanded the money and Appellant accused accepted said illegal gratification, stands strengthened. Once the prosecution evidence is found to be acceptable and reliable and once it is found that it inspires confidence, then there is no option for this Court but to dismiss the appeal.

It is submitted by Mr. Soni, learned advocate for the Appellant accused that if the Court is to confirm conviction of present Appellant accused, then, in that case, he requested that sentence may be reduced. It is further submitted that father of the accused expired since long back and responsibility of mother, his wife and children are on the shoulder of the Appellant accused. This is first offence of the Appellant accused. It is also submitted that since from the date of filing of the case, for a long period of time, the Appellant accused had to suffer mental agony. In the facts and circumstances, he requested to reduce the sentence.

In the case of State of Maharashtra v. Rashid Babubhai Mulani reported in AIR 2006 SCW 162, Hon''ble Apex Court in para 16 has observed as under:

In regard to sentence, we find that the incident occurred about 19 years ago. The matter was pending for about 3 years before the Special Judge, and about 8 years before the High Court and, thereafter, for 8 years before this Court. The accused was hardly 32 years old when the incident occurred and now more than 50 years old. The accused was a Talathi coming from a poor background with a family to support. In the circumstances, while restoring the conviction, we reduce the sentence from one year to four months both u/s 161 Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Act. Both the sentences to run concurrently. The accused, who is on bail, shall surrender forthwith to serve out the sentence.

In the present case, incident took place on 16.08.1990 i.e. about 20 years back and at that time age of the Appellant accused was about 50 years. The matter was pending before the Special Judge for 6 years and about 13 years before this Court. Now at present age of the Appellant accused is 70 years old. Considering all this aspects, if the sentence is reduced it will meet the ends of justice.

In the facts and circumstances of the case, the appeal is partly allowed. Judgment and order dated 19.02.1997 passed by the learned Special Judge, Bharuch in Sessions Case No. 1 of 1992 is modified to the extent that sentence of four years rigorous imprisonment each imposed on the Appellant accused for the offence punishable u/s 7 and Sections 13(1)(g) and 13(2) of the Prevention of Corruption Act is reduced to one year and six months. Rest of the judgment of the Trial Court including fine etc. is not altered. Bail bond stands cancelled. Appellant accused to surrender before the Jail authorities within 8(eight) weeks from today. Office to send Record and Proceedings to the Trial Court forthwith.