Vinodchandra Ambalal Barot 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 20th March, 1999 passed by the learned Special Judge and Additional Sessions Judge, Kheda at Nadiad, in Special Case (ACB) No. 03 of 1995 whereby the learned trial 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 one year, 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 six months. 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 one year, and fine of Rs. 5,000/-, and in default of payment of fine; sentenced 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 complainant was resident of Maholel, residing with his family comprising of father, mother and three brothers. They were residing in a joint family and therefore, there was one ration card. The elder brother of the complainant thereafter started living separately and independently from other family members and therefore, he was required to have a separate ration card. Accordingly, on 10th August, 1994 the complainant approached the Appellant, who was discharging his duty as Deputy Mamlatdar and Card Checking Inspector in Supply Department. It is the case of the prosecution that the Appellant had demanded certain documents for the purpose of production along with application for separate ration card. Therefore, on 11th August, 1994 the complainant again met the Appellant with documents and application, which as per the case of the prosecution, were checked and verified by the Appellant and the Appellant kept the said documents with him. It is further the case of the complainant that the Appellant demanded Rs. 150/- from the complainant as reward for issuing new ration card in the name of elder brother of the complainant. The Appellant had also told that if the complainant fails to pay the amount , then separate ration card will not be issued. At that point of time the complainant was having only Rs. 125/- and therefore, he paid the said amount to the Appellant. The Appellant told the complainant to pay the remaining amount of Rs. 25/- to him on 16th August, 1994 between 12.00 noon and 13.00 hours.

As the complainant was not willing to make the payment, he approached the Police Inspector, A.C.B. at about 21.30 hours. Thereafter, services of two panchas were sought from State Transport Divisional Office. 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. two notes of Rs. 10/- each and one note of Rs. 5/-, 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 to the office of Mamlatdar, the complainant and the panch No. 1 approached the accused. At the relevant point of time, all the officers were working on their respective table. At that point of time, about 10 officers were present and about 20-30 persons were present in the office for their work. The complainant inquires about his ration card and asked the Appellant as to what has happened. Therefore, the Appellant asked the complainant as to whether he has brought the remaining amount of Rs. , to which the or not? Therefore, the complainant took out Rs. 25/- with his right hand from his shirt pocket and gave it to the Appellant. The said amount was accepted by the Appellant and kept the said amount in his right hand. 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 and his hands were caught. The amount was found lying on the floor and therefore, the panch No. 1 was told to lift the amount and to put the same on the table. Number of the said currency notes 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 right hand finger and palm of the Appellant, blue fluorescent marks were found. Thereafter the second part of the panchnama was drawn.

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

Thereafter, charge was framed at Exhibit 7 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 four 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 wherein the Appellant has denied the case of the prosecution and has pleaded his innocence. 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 trial Judge vide impugned judgment and order dated 20th March, 1999 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, Kheda at Nadiad, the Appellant has preferred the present appeal.

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

Mr. Anandjiwala, learned Counsel appearing for the Appellant has contended that the judgment and order passed by the learned trial 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 the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned trial Judge has not considered the probable defence of the Appellant and he was wrongly convicted by the learned trial Judge. He has read the oral evidence of P.W. Nos. 1 and 2 and contended that their evidence are not consistent. He has also contended that there are material contradiction between the evidence of P.W. Nos. 1 and 2. He has also contended that in the case of corruption, nature of conversation, which took place between the accused and the complainant is very vital. In the present case, as per the evidence of complainant, he and panch No. 1 went to the accused where the complainant went to the accused and the panch No. 1 stood at the door. The door is at the distance of more than five feet. He has also read the oral evidence of both these witnesses and contended that there are discrepancy in the oral evidence of both these witnesses. Mr. Anandjiwala has contended that the panch No. 1 has failed to support the case of the complainant. Thus, the prosecution has failed to prove the demand through oral evidence panch No. 1. Thus, when prosecution has failed to prove the demand, probable defence is required to be considered in favour of the Appellant. The Appellant in his defence contended that he has never made demand from the complainant and even not accepted Rs. 125/- on 11th August, 1994. The Appellant is not the authority to issue new ration card and therefore, he had not talked with the complainant. On 11th August, 1994 again the complainant met the Appellant and insisted for issuance of new ration card and therefore, the papers which were given to the Appellant, were thrown by him. This is the motive behind the complaint and absolutely a false complaint is filed against the Appellant. Mr. Anandjiwala has also contended that the office is very small and at that time, about 10 officers were present and performing their work and round about 20-30 persons were in the office for their respective work and it is absolutely not possible that in presence of so many persons, the Appellant had made demand and/or accepted the amount as per the say of the complainant. He has further contended that P.I. had interrogated the staff members but what was reveled from their statements, has not been produced on record for the reasons best known to the prosecution. He has further contended that the P.I. had handed over the record, which was seized under the panchnama, pertaining to the case of the complainant to Mr. Punjabi, who was sitting adjoining to the table of the Appellant, was not examined for the reasons best known to the prosecution. Thus, the prosecution has failed to prove the case of demand beyond reasonable doubt.

Mr. Anajdjiwala has further contended that in the present case, complainant is an accomplice and he is not in a better position than an accomplice. The say of the complainant must need corroboration from independent witnesses. In the present case, except the evidence of the complainant, evidence of independent witnesses is not available. Thus, the prosecution has failed to prove its case beyond reasonable doubt.

Mr. Anandjiwala has contended that so far as question of recovery is concerned, the currency notes were found lying on the floor 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 as the complainant was determined to trap the Appellant, because of the reasons mentioned above, the currency notes were thrown by the complainant by the side of the table. The trap is arranged trap. As per the evidence of panch No. 1 as well as complainant, the Trapping Officer asked the panch No. 1 to lift the currency notes from the floor and to put on the table. The Trapping Officer in biased manner, neither examined hands of the panch No. 1 in U.V. Lamp nor examined the table, on which the panch No. 1 had put the currency notes. Thus, prosecution has even failed to prove the case of acceptance beyond reasonable doubt.

Mr. Anandjiwala has further read oral evidence of P.W. No. 4 at Exhibit 22 and contended that sanction accorded by the sanctioning authority is without application of mind. He has contended that as per the evidence of this witness, State Government has appointed the Appellant and therefore, only the appointing authority has power to accord the sanction. In the instant case, sanction is accorded by the Collector and he is not the competent officer to accord the sanction. Thus, even sanction is also not in accordance with law. Mr. Anandjiwala 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 evidence of the panchas are supported the case of the prosecution. Mr. Jani has contended that as per the case of the Appellant if he was not the authorised officer to issue a new ration card, then why the Appellant has accepted the papers from the complainant. This conduct of the Appellant is required to be looked into. This shows that the just to obtain illegal gratification and pecuniary advantage from the complainant, the Appellant has accepted the papers and then he had made demand. This shows that the Appellant is guilty of the charge levelled against him. He has further contended that the papers, which were recovered from the cupboard, the said cupboard was in possession of the Appellant. Thus, when the Appellant was not the authorised officer to issue new ration card and when he has accepted the papers from the complainant, it is very clear that the same was done just to demand illegal gratification from the complainant. He has further contended that the Appellant had demanded Rs. 150/- at the first instance and had accepted Rs. 125/- on 11th August, 1994. This first demand is proved through the oral evidence of the complainant- P.W. No. 2. Thereafter, on August, 1994 the Appellant demanded the remaining amount of Rs. 25/- from the complainant. The evidence of P.W. No. 2-complainant with regard to demand of Rs. 25/- is receiving corroboration from the evidence of P.W. No. 1-Panch No. 1. This witness is an independent witness and has lead unimpeachable evidence connecting the Appellant with the commission of crime. The Appellant has asked a specific question in presence of P.W. No. 1-panch No. 1 to the complainant as to what about the remaining amount and had he brought the remaining amount or not. The P.W. No. 1 has in his evidence narrated this fact of demand. Thus, the prosecution has proved its case of demand beyond reasonable doubt through the oral evidence of P.W. Nos. 1 and 2. Mr. Jani has further contended that the P.W. No. 1 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 from the right hand of the Appellant, presence of anthrecene powder is found. 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 by his right hand 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 on his hand. 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 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, 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 question regarding sanction is concerned, I have perused sanction at Exhibit 23. Looking to the contents of Exhibit 23-sanction, it appears that the competent authority has covered 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. Mentioning of entire facts and circumstances of the case suggests that P.W. No. 4-Girishbhai Murmu at Exhibit 22 had applied his mind and accorded sanction. 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 new ration card. The evidence of P.W. No. 2-complainant is corroborated by the evidence of P.W. No. 1-panch No. 1, who is an independent witness. It appears from the evidence of P.W. Nos. 1 and 2 that their evidence is free from all doubt and infirmities about the demand raised by the Appellant on 11th August, 1994 and 16th August, 1994. The P.W. No. 2-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 P.W. 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 P.W. Nos. 1 and 2 coupled with the contents of panchnama. It is true that witnesses have not deposed the conversation in verbatim, but the substance of the depositions appears to be same so far as demand is concerned. A close scrutiny of depositions suggest that the Appellant had demanded remaining amount of Rs. 25/- from the complainant. Simply because the P.W. No. 2 has made a counter inquiry as to how much amount is required to be paid, will not cause any doubt about the case of the prosecution. It appears from the evidence of P.W. Nos. 1 and 2 that their evidence is in corroboration in relation to the demand raised by the Appellant-accused for illegal gratification of Rs. 25/-on 16th August, 1994 and this Court has not hesitated in coming to the conclusion that it is the Appellant, who has demanded illegal gratification. So far as question regarding presence of anthrecene powder is concerned, in examination-in-chief, P.W. No. 1 has deposed that the complainant took the currency notes from his pocket by right hand and extended towards the Appellant, who accepted the same by right hand and thereafter, when the Appellant saw the personnels an officers of A.C.B., threw the currency notes on the floor and therefore, the currency notes were found lying on the floor. 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.

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, was not satisfied with the amount of Rs. 125/- received from the complainant as illegal gratification on 11th August, 1994 and again demanded the amount of Rs. 25/- 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 and therefore, I am of the opinion that no lenient view is required to be taken.

I have also considered the judgments relied upon by Mr. K.B. Anandjiwala, learned Counsel for the Appellant. Mr. Anandjiwala has relied upon the judgment reported in G.V. Nanjundiah Vs. State (Delhi Administration), As per the facts of this case, factum of acceptance of bribe is not properly established, whereas in the present case, demand as well as acceptance, both are established beyond reasonable doubt. The Appellant has failed to rebut the presumption u/s 20 of the Prevention of Corruption Act, 1988. The facts of this case is different than the facts of the present case. Mr. Anandjiwala has also placed reliance on the judgment reported in Gulam Mahmood A. Malek Vs. State of Gujarat, and contended that the learned Special Judge has not considered the defence version. In my opinion, as stated above, defence has failed to prove his version. Even the defence has failed to prove probable defence regarding presence of anthrecene powder on the right hand of the Appellant. Mr. Anandjiwala has also placed reliance on the judgment reported in Hari Dev Sharma Vs. State (Delhi Administration), In the present case, demand and acceptance is 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. Presence of anthrecene powder is also found on the hand of the Appellant-accused and the Appellant has failed to explain how anthrecene powder is found on his hand. 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 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 20th March, 1999 passed by the learned Special Judge and Additional Sessions Judge, Kheda at Nadiad, in Special Case (ACB) No. 03 of 1995, 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, 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.