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Gujarat High Court · body

2010 DIGILAW 153 (GUJ)

RAGHUVIR AGGRAWAL v. STATE OF GUJARAT

2010-03-15

Z.K.SAIYED

body2010
JUDGMENT 1. The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 31.8.1994 passed by the learned Special Judge, Court No. 2, Ahmedabad in Special Case No. 8/1992, whereby, the learned Special Judge, Ahmedabad has convicted the appellant under sec. 7 of the Prevention of Corruption Act and sentenced to undergo S/I for a period of 3 years and to pay a fine of Rs. 1500/-, in default, to undergo further S/I for three months. The appellant is also convicted under sec. 13(1)(d)(i)and (ii) punishable under sec. 13(2) of the Act and sentenced to undergo S/I for a period of three years and to pay a fine of Rs 1500/-, in default, to undergo further S/I for three months, which is impugned in this appeal. 2. The brief facts of the prosecution case is as under: 3. That on 22.3.1991, the complainant Jignesh Rameshchandra Shah of Ahmedabad, lodged a complaint with the ACB, at Ahmedabad to the effect that the present appellant-accused who is the Ward Inspector of Ellis Bridge Division, Western Zone of the Ahmedabad Municipal Corporation is demanding from him illegal gratification for issuance of the cheque of refund to which he is entitled to from the Corporation in connection with payment of excess taxes of property paid by him to the Corporation. It is alleged that the complainant along with his mother is staying in a flat and against the fixation of unreasonable tax payable to the corporation, he was required to file an Appeal before the Court of Small Causes at Ahmedabad, wherein, decision was rendered by the Court in his favour and as by that time the Corporation had recovered more taxes than what was recoverable from him, he was entitled to receive the refund for the amount of taxes paid in excess from the Corporation. For the purpose he gave an application to the Tax Department and on 23.2.1991 he had received the letter of Assessor and Collector, Tax Deptt. Of the Corporation intimating him to see the authority concerned and, therefore, he contacted that authority in person in the Usmanpura Zonal Office of the Corporation. For the purpose he gave an application to the Tax Department and on 23.2.1991 he had received the letter of Assessor and Collector, Tax Deptt. Of the Corporation intimating him to see the authority concerned and, therefore, he contacted that authority in person in the Usmanpura Zonal Office of the Corporation. There, the complainant was shown his refund file and was asked to see the person concerned either on 22.3.1991 or on 23.3.1991; the complainant was told that the officer concerned is going to take personal interest in the matter to see that the complainant is issued the cheque immediately and if the complainant wants to try to obtain the cheque himself, then in that case, he shall have to go all around, but that if the complainant pays him some gratification, his case will be dealt with soon. It was also represented to complainant that the said official normally charges Rs. 500/- for the said purpose as gratification, but that from him he will accept only Rs. 300/-. After these talks and representations, the complainant was advised to contact that person in the said office on 22.3.1991. Thereupon, on 22.3.1991, the complainant along with his friend Jayeshbhai Balmukunddas Mehta went to the Corporation's Office in the morning. The person who had demanded the illegal gratification from complainant saw him and told the complainant that he should pay him Rs. 300/- and immediately the cheque will be given to him. The complainant told him that he had not brought the amount and he has to go to the Bank for withdrawal of the money. Thereupon, he was advised by that official that he should come between 2.00pm and 2.30pm on the same day and in the meanwhile he is trying to get the cheque issued. Thereafter, he took him to the office of the Treasury wherein the complainant gave the authority for receiving the cheque as he was to receive the same on behalf of his mother. He was also asked to sgn some voucher and he was given token No. 113 which after the complainant came out of the office was taken from him by that official. Thereafter the complainant came out of the office of the Corporation and as he was not a willing party to pay the gratification he decided to contact the ACB Office and accordingly contacted the PI incharge and lodged his complaint. Thereafter the complainant came out of the office of the Corporation and as he was not a willing party to pay the gratification he decided to contact the ACB Office and accordingly contacted the PI incharge and lodged his complaint. Thereupon, the complaint was taken, two panch witnesses were requisitioned and after following all the due preliminaries for carrying out such raid and after giving due instructions to the complainant to tender the bribe money as and when demanded by the concerned official of the Corporation, the raiding party along with the complainant and the panch witnesses reached the office of the Corporation and the raid was carried out which was successful. Then investigations were carried out, after registering the complaint given, and after carrying out the investigations, the papers of investigations were transmitted to the higher-ups in the ACB for obtaining the requisite sanction to prosecute the present appellant-accused and upon obtaining the sanction, the charge-sheet against the accused came to be filed before the Special Court on 17.11.1992, which was given Special Case No. 8/1992. 4. Thereafter, the charge was framed at Ex. 2 against the appellant. The appellant accused has pleaded not guilty and claimed to be tried. 5. In order to bring home the charge levelled against the appellant- accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court. 6. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution. 7. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Court No. 4, Ahmedabad vide impugned judgment and order dated 31.11.1994 held the appellant accused guilty to the charge levelled against him under sec. 7 and 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, and convicted and sentenced the appellant accused, as stated above. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Court, Court No. 4, Ahmedabad, the present appellant has preferred this appeal. 9. Heard Mr. HC Buch learned advocate for the appellant and Mr RC Kodekar learned APP for the respondent-State. 10. Mr Buch has read the charge at Exh. 2 and argued that the prosecution has not proved the demand, acceptance and recovery beyond reasonable doubt. 9. Heard Mr. HC Buch learned advocate for the appellant and Mr RC Kodekar learned APP for the respondent-State. 10. Mr Buch has read the charge at Exh. 2 and argued that the prosecution has not proved the demand, acceptance and recovery beyond reasonable doubt. After going through the evidence of PW-1 Jignesh R Shah Ex.7, he has argued that the defence has properly established his defence version before the learned Special Judge, but it was not considered by the learned Judge. Mr Buch has read the panchnama and complaint also and from the contents of complaint Ex. 8, he argued that there was no previous demand and the complaint is concocted by the complainant and present appellant was serving in some other department and he was not attached with the Treasury work also and proper explanation was also given by the appellant. Even in the cross-examination of PW-1, it is established beyond reasonable doubt that the demand is not proved beyond reasonable doubt. Mr Buch has also read the oral evidence of PW-2 Baldevbhai S. Desai Ex. 15 and argued that he is a selected panch and interested witness and from the cross-examination of this witness, he has argued that the contents of panchnama Ex. 16 and the oral evidence of PW-2, is totally in contradictory in nature and from the conduct of this witness, it appears that he has not explained real facts of the case before the Trapping Officer also and before the learned Judge defence has already proved that how that trap amount was thrusted inside the pocket of the shirt of the present appellant. The appellant has also explained that the Trapping Officer who is also an interested witness and every time the Trapping Officer came to the Court with an intention to convict the appellant-accused. Mr Buch further argued that even from the evidence of Trapping Officer, it appears that during the panchnama, the appellant has already explained before the Trapping Officer, but intentionally the explanation of the present appellant was not noted in the said panchnama. After reading the oral evidence of I.O. PW-4 Bhamarsinh V. Puvar Ex. 19, Mr Buch has argued that the investigation is also not carried out in a fair manner. After reading the oral evidence of I.O. PW-4 Bhamarsinh V. Puvar Ex. 19, Mr Buch has argued that the investigation is also not carried out in a fair manner. Mr Buch has read the sanction order and argued that the Sanctioning Authority has not applied its mind and looking to the sanction, it cannot be said that the same was issued as per the provisions of law. Mr Buch has also read the further statement of the appellant-accused recorded under sec. 313 of CrPC and contended that presence of anthracene powder which was found by the Panch, complainant and Trapping Officer on the tips, fingers, clothes and inside pocket of the present appellant etc., it was properly explained before the learned Special Judge, but the same was not considered by the learned Special Judge and as per the provisions of sec. 20 of the Prevention of Corruption Act, the presumption is already removed by the appellant during the examination of the witnesses as well as examination of appellant-accused and presumption cannot be drawn against the appellant-accused when proper explanation is given by him before the concerned Court, however it was not considered. Mr Buch has relied upon the decision of the Supreme Court in the case of Union of India through Inspector, CBI, Vs. Purnandu Biswas, reported in (2005) 12 SCC 576. 11. Mr. Buch has also vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt before the learned Judge, but it is considered in favour of the prosecution and, therefore, the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Court No. 4, Ahmedabad is required to be quashed and set aside. Lastly, Mr Buch has submitted that during the pendency of this appeal, the appellant has expired and therefore, legal heirs of the appellant have filed Criminal Misc. Application No. 14526/2008 under sec. 394(2) of CrPC seeking leave to continue the main appeal, which was allowed vide order dated 26.11.2008 and legal heirs of the appellant are joined as the appellants. Today, spouse and near relative of the appellant are present and in their presence, this court has heard Mr. Buch learned advocate appearing for the appellant. Application No. 14526/2008 under sec. 394(2) of CrPC seeking leave to continue the main appeal, which was allowed vide order dated 26.11.2008 and legal heirs of the appellant are joined as the appellants. Today, spouse and near relative of the appellant are present and in their presence, this court has heard Mr. Buch learned advocate appearing for the appellant. No doubt, the appellant has already expired and is no more, yet only just to get clear acquittal, the legal heirs of the appellant are joined as appellants as per the order dated 26.11.2008 passed in Criminal Misc. Application No. 14526/2008 filed under sec. 394(2) of CrPC. 12. On the other hand, learned APP Mr RC Kodekar has read the oral evidence of PW-1 and argued that on the day of trap PW-1 and his friend Jayesh met the appellant-accused and asked him for cheque and at that time the appellant has made a demand for money for issuing cheque. The appellant told the complainant that cheque is ready, and he come in canteen and there we will settle the matter. Therefore, they went to the canteen and in the presence of PW-1 and his friend Jayesh, the cheque was given to the complainant PW-1 and then appellant-accused has demanded the amount of bribe which was decided between them. So, the trap amount which was found in the right-side pocket of the shirt of appellant was given by the complainant to the appellant, which was accepted by the appellant and then the trap amount was inserted by the appellant in the right-side pocket of his shirt. Thereafter, on the signal being given by the complainant, the raiding party rushed to the place of offence and all practicals under UV lamp were carried out upon the appellant, complaint, panch witness and other members of the raiding party and during the practical under UV Lamp, the anthracene powder was found on the tips, fingers, hands and clothes as also inside the pocket of the shirt of appellant and the trap amount which was put by the appellant in his pocket, was recovered in the presence of panch and thereafter the panchnama was drawn and seizure memos were also issued to the appellant. The shirt of the appellant was also seized and signatures of the panchas were also obtained because the anthracene powder was found on the pocket of the shirt of the appellant-accused. The shirt of the appellant was also seized and signatures of the panchas were also obtained because the anthracene powder was found on the pocket of the shirt of the appellant-accused. Mr Kodekar learned APP has read the evidence of PW-2 who is a star witness of this case. No doubt, learned advocate Mr Buch has argued that the panch witness is a public servant and interested witness and just to protect his own skin and not to face any consequences, he has deposed in favour of the prosecution before the learned Special Judge. Mr. Kodekar learned APP has read the oral evidence and panchnama and argued that in cross examination the learned advocate for the appellant-accused never bothered to make any question to the panch witness as well as complainant. Mr. Kodekar has also argued that no animosity was established from the oral as well as documentary evidence and therefore, he raised a question that as to how the present appellant was wrongly booked in the case. Mr Kodekar has also read the oral evidence of Trapping Officer and argued that no doubt prior to giving of a signal by the complainant, the Trapping Officer was not present inside the place of offence and when signal was given by the complainant, Trapping Officer along with the members of the raiding party rushed to the canteen and obtained the information from the panch witness regarding the transaction made between the appellant and complainant and thereafter, practicals under UV lamp were carried out and amount was also recovered from the possession of the accused-appellant. Mr. Kodekar learned APP has also argued that no doubt prior to this, the Trapping Officer was not an eye witness, but the practical was carried out by the Trapping Officer himself. So, the oral evidence of Trapping Officer is also totally in corroboration with the oral evidence of complainant and panch witness. Mr. Kodekar learned APP further argued that no doubt learned advocate Mr. Buch has argued before this Court with regard to the conduct of the Trapping Officer is not proper and against the law, but prior to this, detailed complaint was taken by this officer and from the contents of complaint, it appears that specific demand was established from the complaint. So, no question can arise so far as the conduct of the Trapping Officer is concerned. So, no question can arise so far as the conduct of the Trapping Officer is concerned. He has read the provisions of Sec. 8 of the Evidence Act and submitted that when the appellant was not assigned or attached with the work of issuing refund cheques, yet he has been involved in the said work and refund cheque was obtained by him and just to get the illegal gratification, it was handed over to the present complainant and demanded illegal gratification, which was accepted by the appellant. Mr Kodekar learned APP has read further statement of the appellant recorded under sec. 313 of CrPC and argued that it was the duty of the appellant to explain the presence of anthracene powder which was found on the tips, fingers, clothes of the appellant. The only explanation given by the appellant is that the complainant has thrusted the said amount in the pocket of his shirt, which was opposed by the appellant and that is how the anthracene powder was found inside the pocket of his shirt. Mr. Kodekar learned APP has further argued that in view of provisions of sec. 20 of the Prevention of Corruption Act, when the presumption is not removed by the appellant beyond reasonable doubt, then judgment and order of conviction and sentence cannot be quashed and set aside. Mr. Kodekar learned APP has relied upon the decision of the Division Bench of this Court in the case of State of Gujarat vs. Laxmansinhji Dansinhji Gohil & Anr., reported in 2009(3) GLR 1919 and submitted that presumption is already established beyond reasonable doubt and therefore, the appellant is convicted accordingly. Mr. Kodekar Ld. APP has further relied upon the decision of the Apex Court in the case of State represented by CBI, Hyderabad vs. G. Prem Raj, reported in (2010) 1 SCC 398 and submitted that the impugned judgment and order of conviction and sentence is required to be confirmed. 13. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant and considered the submissions made by learned counsel for the parties. I have perused the complaint ex. 13. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant and considered the submissions made by learned counsel for the parties. I have perused the complaint ex. 8 and it appears from the complaint that the complainant has explained before the Trapping Officer during the recording of the complaint on 22.3.1991 that he has received one letter from the Corporation on 23.2.1991 and he was directed to receive refund amount by cheque from the department. So, the complainant went to Usmanpura Zonal Office of the corporation and at that time, the appellant met him and file was shown to him and thereafter he told the complainant again to come on 20.3.1991 or 21.3.1991. So, on 21.3.1991 in the evening, he met the appellant. The appellant told him that refund will be given to him and he will not face any problem if he (complainant) gives some Dakshina i.e. illegal gratification in the form of bribe of Rs. 500/- but the complainant agreed to give Rs. 300/- and thereafter the complainant went to the ACB Office and lodged a complaint against the appellant. I have also perused the evidence of PW-1 and it appears from the evidence that the complainant has already established before the learned Special Judge that prior to the trap, a demand which was made by the appellant which has been established beyond reasonable doubt. Mr Kodekar has also read the cross-examination of the complainant and argued that the evidence of complainant is totally in corroboration with the complaint Ex. 8. I have also perused panchnama Exh. 16 and evidence of PW-2 Ex. 15 and it appears that the demand is also established by this witness. He has deposed that when he met the appellant along with the complainant, at that time, appellant has demanded illegal gratification asking to give Rs. 300/- to him (appellant) and thereafter the trap amount was handed over to the appellant by the complainant and thereafter signal was given. So far as the demand is concerned, it is proved beyond reasonable doubt by the evidence of panch witness. No doubt, Mr. 300/- to him (appellant) and thereafter the trap amount was handed over to the appellant by the complainant and thereafter signal was given. So far as the demand is concerned, it is proved beyond reasonable doubt by the evidence of panch witness. No doubt, Mr. Buch learned advocate has argued that due to fear the panch witness has deposed supporting panchnama but learned advocate for the defence has never bothered to put any question to this panch witness. I have also perused the cross-examination of PW-2 and it appears that the prosecution has proved the demand beyond reasonable doubt. Even from the oral evidence of complainant PW-1 and PW-2 Panch witness, the recovery, search and seizure of muddamal are concerned, the panch witness has also explained the same in corroboration of panchnama. Even from the further evidence of PW-1 and PW-2 with regard to the recovery, search and seizure, it appears that in the light UV Lamp appellant-accused was searched by the Trapping Officer in the presence of panch witness and members of the raiding party and anthracene powder was found on the tips, fingers, clothes and inside and outside pocket of the shirt of the appellant. In cross-examination, the appellant has never bothered before the trial Court to explain the presence of the anthracene powder inside the pocket of shirt of the appellant. No doubt, I have read the defence of the appellant that trap amount was thrusted by the complainant in the pocket of the appellant, but it was not accepted by the appellant. Considering the oral as well as documentary evidence, I am of the opinion that defence has never tried to remove the presumption which is established under sec. 20 of the Prevention of Corruption Act. From the oral evidence of Trapping Officer PW-3, I have not found any substance to say that the appellant has established his case beyond reasonable doubt. I have also gone through the authority cited by Mr Buch in the case of Union of India vs. Purnandu Biswas, reported in (2005)12 SCC 576 (supra). 20 of the Prevention of Corruption Act. From the oral evidence of Trapping Officer PW-3, I have not found any substance to say that the appellant has established his case beyond reasonable doubt. I have also gone through the authority cited by Mr Buch in the case of Union of India vs. Purnandu Biswas, reported in (2005)12 SCC 576 (supra). It is true that some facts of the cited decision are similar to some facts of the present case, but basis facts are not similar and in the present case when demand made in the presence of independent witness is already proved and previous demand which was made by the appellant before the complainant is also established and when recovery, search and seizure is established by the complainant and PW-2 beyond reasonable doubt, then the defence has no right to say that the learned Special Judge has committed any error while convicting the appellant. I have gone through the decisions cited by Mr. Kodekar learned APP. In the case of Gujarat vs. Laxmansinhji Dansinhji Gohil & Anr., reported in 2009(3) GLR 1919 , the Division Bench of this court has observed that so far as presumption is concerned, it is the duty of the appellant to remove the presumption and when he failed to remove the presumption, then he has to face the consequences of the Prevention of Corruption Act. In the present case, I have not found any substance in the argument that the presumption is removed by the appellant. Even the second decision of the Apex Court relied on in the case of State represented by CBI, Hyderabad vs. G. Prem Raj, reported in (2010) 1 SCC 398 , the same ratio is laid down by the Apex Court. In the present case, the defence has miserably failed to prove its verssion before the learned Special Judge. 14. I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and I am of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 15. In the result, this appeal is dismissed. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 15. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 31.8.1994 passed by the learned Special Judge, Court No. 2, Ahmedabad in Special Case No. 8/1992 is hereby confirmed. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith. 16. As the appellant ori. Accused has expired, no order to surrender before the Jail Authority is passed.