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2006 DIGILAW 441 (GUJ)

BHALABHAI KARSANBHAI DHUMADA v. STATE OF GUJARAT

2006-07-21

S.R.BRAHMBHATT

body2006
( 1 ) RULE. Shri. Pandya learned APP waives service of rule for respondent State. ( 2 ) THE learned Special Judge (ACB), Gandhinagar, in his order dated 4. 07. 2006 has convicted the applicant, original accused No. 3 in Special (ACB) Case No. 14 of 2001 for commission of offences under Sections 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988. The applicant is sentenced to undergo Rigorous Imprisonment for a period of one year and to pay fine of Rs. 10,000=00, in default thereof, to undergo further Simple Imprisonment for a period period of two months for commission of the offence under Section 7 of the Corruption Act, 1988. The applicant is also sentenced to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs. 10,000=00, in default thereof, to undergo further simple imprisonment for two months for commission of offences under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. The sentences are ordered to run concurrently. ( 3 ) BEING aggrieved and dissatisfied with the impugned conviction order dated 4. 07. 2006 passed in Special (ACB) Case No. 14/2001, the applicant has preferred Criminal Appeal No. 1233 of 2006. The Court has admitted the appeal. The applicant has made present application in the Criminal Appeal seeking suspension of conviction and sentences and prayed for bail during the pendency of the main appeal. The applicant has already paid the amount of fine. ( 4 ) SHRI A. D. Shah, learned counsel for the applicant has urged that in view of the peculiar facts and circumstances of this case, the entire order of conviction and sentence deserves to be suspended so as to enable the applicant to continue to receive and retain the provisional pension and other benefits, which were admissible to him during the trial. Shri Shah, learned counsel has taken this court through the relevant documents and testimony of some of the witnesses while making submission for admission of appeal. ( 5 ) SHRI Shah has submitted that complainant lodged complaint with ACB on 15. 05. Shri Shah, learned counsel has taken this court through the relevant documents and testimony of some of the witnesses while making submission for admission of appeal. ( 5 ) SHRI Shah has submitted that complainant lodged complaint with ACB on 15. 05. 1993 that one of his acquaintances informed him that he has received information from the accused No. 1, a clerk in Narmada and Water Resources Department that ACB has forwarded the papers pertaining to the ACB trap case involving the complainant to the offence of the Vigilance Commission, Gandhinagar for making recommendation to his Head of the Department as to whether the complainant be proceeded departmentally or he be prosecuted under the criminal law. The complainant immediately got interested and went to meet the accused No. 1. The accused No. 1 informed the complainant that he had a friend i. e. Accused No. 2, a Section Officer working in General Administration Department, who is known to some officer in Vigilance Commission who can help in making suitable recommendation for dropping proceedings under the criminal law on payment of money. The complainant s first meeting was only with accused No. 1 on 15th or 16th of March, 1993. On 20. 03. 1993 the complainant paid Rs. 8000/- to the accused No. 1 and he in turn took the complainant to the accused No. 2, where the accused No. 1 informed the accused No. 2 that more than half of the amount is received. The accused No. 2 also promised the complainant that he would do his work provided the complainant pays the remaining amount. On 29. 03. 1993 the complainant met the accused No. 1 and made payment of Rs. 2000/- and requested for favourable recommendation from the office of the Vigilance Commission. Thereafter, the complainant met the accused No. 1 on 13. 04. 1993, who informed him that the desired order is passed in previous day wherein only Departmental Proceedings have been recommended and its copy is lying at his residence. On the same day, the complainant received from the accused No. 1 the purported copy of the order dated 12. 04. 1993, which is produced at, exhibit 57 on the record. The accused No. 1 also informed that it was typed from the original order. The accused No. 1 promised the complainant that the order should reach the office of District Panchayat within a week. 04. 1993, which is produced at, exhibit 57 on the record. The accused No. 1 also informed that it was typed from the original order. The accused No. 1 promised the complainant that the order should reach the office of District Panchayat within a week. The complainant kept on inquiring with his office but no such letter or order had been received hence he met the accused No. 1 again on 5. 05. 1993 who informed him that the complainant must pay at least Rs. 1500/- out of remaining amount of Rs. 2000/- then only the order would reach his office. Again on 11. 05. 1993 the accused No. 1 met the complainant and demanded remaining money. The complainant ultimately lodged the complaint with ACB on 12. 05. 1993. The trap was laid wherein the accused No. 1 alone was said to have received the amount. The Investigating Officer during the course of investigation came to the conclusion that the office referred by the accused No. 2 for desired recommendation must be the accused No. 3, who happened to be Section Officer in the office of the Vigilance Commission. Thus, accused No. 3 present applicant has been arraigned in the case. ( 6 ) SHRI Shah invited attention of this Court to the complaint filed by the complainant dated 12. 05. 1993 before ACB and submitted that the present applicant, i. e. The accused No. 3 is not named anywhere nor has he been referred to by his designation in the entire complaint. The other two accused Nos. 1 and 2 have not named him anywhere nor have they referred to the accused No. 3 even by his designation. The complainant in his deposition before the trial Court has also not referred to the accused No. 3 either by name or by his designation. Shri Shah has submitted that looking to the testimony of prosecution witnesses especially the complainant, Panch Witnesses and even the panchnama, it can be said that accused No. 3 was not involved at all in the entire incidence. It is submitted that the Apex Court has also in case K. C. Sareen Vs. C. B. I. Chandhigarh reported in AIR 2001 SC at page 3320 observed that in a given case the discretion under Section 389 of the Code may be exercised for suspending even the conviction pending the appeal. It is submitted that the Apex Court has also in case K. C. Sareen Vs. C. B. I. Chandhigarh reported in AIR 2001 SC at page 3320 observed that in a given case the discretion under Section 389 of the Code may be exercised for suspending even the conviction pending the appeal. Shri Shah has submitted that the trial Court has proceeded on the unsupported presumption that the accused No. 3 being Section Officer was sole custodian of the file containing the recommendation allegedly promised by accused No. 1 and 2 to the complainant. The trial Court has not considered testimony of the defense witness-1 at exhibit No. 77, who has in terms deposed that this type of papers are moving from two to three tables. The file was received on 30. 01. 1993 from the office of ACB. The defence witness No. 2 has deposed at Exhibit 78 that he was working in the office of the Vigilance Commission at that relevant time and he in fact had received the copy of the order dated 12. 04. 1993 on 13. 04. 1993 and they were lying with him till 16. 04. 1993. Shri Shah has submitted that the original order containing the so called recommendation was produced at exhibit 68 which is signed by the Under Secretary, Vigilance Commission and it also contains recommendation of resorting to even criminal proceedings in case of charges in departmental proceedings were proved. Shri Shah has submitted that exhibit 57 cannot be said to be even gist of original document at exhibit 68. The trial Court has erroneously treated the same to be the copy of the original document. The trial Court has erroneously held the accused No. 3 responsible for its leakage to the accused No. 1, 2 and the complainant. ( 7 ) SHRI I. M. Pandya, learned APP has submitted that in view of the observation of the Apex Court in para 22 and 23 this Court may not suspend the conviction. The Apex Court has observed that in corruption cases the convict may not be permitted to hold the public office once he is convicted, by keeping the conviction in abeyance during the pendency of his appeal. However, Shri Pandya could not effectively resist the submission made on behalf of the accused No. 3 applicant on other aspects. The Apex Court has observed that in corruption cases the convict may not be permitted to hold the public office once he is convicted, by keeping the conviction in abeyance during the pendency of his appeal. However, Shri Pandya could not effectively resist the submission made on behalf of the accused No. 3 applicant on other aspects. ( 8 ) THIS Court has heard the counsels of the parties at considerable length and perused the documents submitted by them. At this stage, no elaborate discussion of evidence is required. The Apex Court in case of K. C. Sareen (Supra) in terms observed that Section 389 of the Code provides discretion in this court to suspend even the conviction during pendency of appeal by the convict. But this discretion is to be exercised sparingly and only in given case so as to prevent the convict public servant from holding the public office again. The real thrust in the aforesaid decision is against exercising the discretion in favour of the convict appellant so that they may not get chance to hold such public offences again. But in a given case, where there is no such possibility of the convict appellant to hold the public post or office on suspension of his conviction and when the compelling facts exist showing that non suspension of conviction is likely to result into depriving the aged retired appellant and his dependant family members of the meager amount of provisional pension of Rs. 7900/- every month which he received on his superannuating from 31. 08. 2002 during the trial, the non use of discretion for suspending the conviction might result into miscarriage of justice. This Court is therefore inclined to suspend the conviction in respect of the present applicant for the following reasons. ( 9 ) DURING the pendency of the trial the applicant has retired on 31. 08. 2002 and therefore no question of his again holding the same post or office on suspension of his conviction arises. ( 10 ) AS against this, if the conviction were not suspended then the meager amount of provisional pension that he receives every month would be stopped affecting him and his dependants adversely in this days of galloping inflation. These factors become more relevant when prima-facie the following appear. ( 10 ) AS against this, if the conviction were not suspended then the meager amount of provisional pension that he receives every month would be stopped affecting him and his dependants adversely in this days of galloping inflation. These factors become more relevant when prima-facie the following appear. ( 11 ) THE complainant has not named the present applicant accused No. 3 either in his complaint or in his deposition. The complainant has not attributed any overt act or omission to the accused No. 3. ( 12 ) NEITHER the accused No. 1 nor accused No. 2 is alleged to have anywhere referred the accused No. 3 either by his name or by his designation during the entire incidence. ( 13 ) THE communication dated 12. 04. 1993 at Exhibit 57, said to be the copy of the original letter dated 12. 04. 1993 at exhibit 68 cannot be characterized even as true gist of the original. ( 14 ) IT primafacie appears from the testimony of the defence witnesses that the file containing the original letter dated 12. 04. 1993 copy whereof is at exhibit 68 cannot be said have remained inaccessible to other concerned staff members of the Vigilance Commission. ( 15 ) THE brief discussion on merits is of course only prima-facie and tentative for the purpose of considering the prayer for suspending the conviction during pendency of the main criminal appeal. It shall have no bearing when the matter may be heard finally. ( 16 ) THE applicant was enlarged on bail during the trial and after the impugned order of conviction and sentence the trial Court has suspended its order of substantive sentence for the period of thirty days from the date of the order i. e. 4. 07. 2006 and enlarged the accused applicant on bail so as to enable him to approach this Court with appeal. The applicant s prayer for bail during the pendency of the appeal also deserves to be granted in view of the Apex Court s decision in case of KIRANKUMAR VS. STATE OF M. P. Reported in 2001 (9) SCC 211 . ( 17 ) IN the result, this application is allowed. The impugned order of conviction and sentencing the applicant as aforesaid passed on 4. 07. STATE OF M. P. Reported in 2001 (9) SCC 211 . ( 17 ) IN the result, this application is allowed. The impugned order of conviction and sentencing the applicant as aforesaid passed on 4. 07. 2006 by the learned Special Judge (ACB) Gandhinagar is hereby suspended in respect of the present applicant during the pendency and till the final disposal of the Criminal Appeal No. 1233 of 2006. The applicant is also admitted to bail during pendency and final disposal of the Appeal No. 1233 of 2006 on the same terms and consideration but he shall furnish the fresh bonds. Rule made absolute. Direct service permitted.