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2011 DIGILAW 579 (GUJ)

HARSHADRAI PRANJIVAN MEHTA v. STATE OF GUJARAT

2011-08-02

Z.K.SAIYED

body2011
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 26.5.1999 passed by the learned Special Judge, Mehsana, in Special Case (ACB) No. 15/1992, whereby, the learned Judge has convicted the appellant under sec. 7 of the Prevention of Corruption Act and sentenced to undergo R/I for 2 ½ years and to pay a fine of Rs.10,000/- in default, to undergo further R/I for six months. The appellant is also convicted under sec.13(2) of the Prevention of Corruption Act and sentenced to undergo R/I for a period of 3 ½ years and to pay a fine of Rs. 14000/-, in default, to undergo further R/I for eight months, which is impugned in this appeal. 2. The brief facts of the prosecution case is as under: 3. The appellant-accused was elected member of Nagarpalika since 1988 and he was declared elected vide Ex. 52 by the Collector. The accused was also discharging his duties as the Chairman of Town Planning Committee. One Purshottambhai C. Patel - PW-2 Ex. 25, who is the head of Town Planning Office used to prepare plans/map of Town Planning and Development of Mehsana city and Banaskantha district. The plans of Mehsana town were prepared and they were under implementation and after every 10 years such plans are to be revised. The revised plans were also prepared and the scheme drawn by Purshottambhai was handed over to the Nagarpalika by addressing a letter to the President of Nagarpalika advising the President to follow the necessary procedure as per Sec. 9 of the Act by sending a copy to the Government, and as per sec. 13 by showing the notification and calling for the objections within two months and thereafter to finalise the proposal. As advised by Purshottmabhai Patel, the objections were called for. After the objections were received, the committee meeting was held, headed by the appellant-accused being the Chairman. All the committee members thought over the objections and after giving sufficient opportunity to the affected persons and after hearing and considering their representations and objections, rejected the objections. Necessary resolutions were passed vide ex. 74 dated 3.2.1989 by the Town Planning Committee. After the objections were received, the committee meeting was held, headed by the appellant-accused being the Chairman. All the committee members thought over the objections and after giving sufficient opportunity to the affected persons and after hearing and considering their representations and objections, rejected the objections. Necessary resolutions were passed vide ex. 74 dated 3.2.1989 by the Town Planning Committee. So far as the procedure is concerned, the Town Planning Committee (TPC) had accepted almost all proposals/opinions of the town planning officer and they were in agreement. The final authority to take final decision on development plan is the General Body of Nagarpalika. The decision of the TPC is not the final decision, more or less no individual member is authorised to take the final decision. Therefore, the final authority is the General Body of the Nagarpalika and not the TPC. On 22.6.1989 vide Resolution No. 22, Ex. 77, the TPC got extension to submit plans to the Government from 30.6.1989 to 31.12.1989. The resolution was passed as per sec. 9(1) of the Town Planning Act, vide Ex. 50 on 27.12.1990. The same was published in the Government Gazette Ex. 47 on page-667, calling for the objections. On 19.2.1991, the owners of survey No. 1685 and 1686 gave their objections vide Ex. 66 to the President of Mehsana Nagarpalika. The same is mentioned in the objection register vide Ex. 75 and 56. On 21.2.1991 Ex. 66, the objection application was registered in Inward Register at Sr. No. 3852 vide Ex. 48. On 8.5.1991, the TPC was constituted consisting of six members for the period during 8.5.1991 to 7.5.1992. The accused was appointed as the Chairman. The meeting of the TPC was held on 30.5.1991 at 1.00p.m., in that meeting, the objection applications were rejected and the resolutions were passed accordingly. On 30.7.1991, the General Meeting of the Nagarpalika was held and vide Resolution No. 154 Ex. 49 it was decided to produce the revised plan after necessary modification by the TPC. On 8.8.1991, a request was made to Nagarpalika to take appropriate action. Thereafter, the meeting was called on 29.10.1991. 4. So far as the complainant is concerned, he was holding the plot bearing S. No. 1684 admeasuring about 1 Hector 8 Are 75 mtr. Out of the said survey number, 90 Are and 38 mtr. was belonging to the father of the complainant viz. Thereafter, the meeting was called on 29.10.1991. 4. So far as the complainant is concerned, he was holding the plot bearing S. No. 1684 admeasuring about 1 Hector 8 Are 75 mtr. Out of the said survey number, 90 Are and 38 mtr. was belonging to the father of the complainant viz. Jethabhai Madhubhai, rest of the field admeasuring 90 are and 37 mtr. was belonging to his maternal uncle Kanji Vaghji. It is further the case that for going to the field bearing S. no. 1684, a way was proposed from s. No. 1685 and 1686 in a Plan which was prepared before about 4 years from 25.10.1991. The said plan was accepted by the Nagarpalika and it was implemented. It is alleged that the accused, who was the then Chairman of the TPC and member of Nagarpalika, told the complainant that the objections have been submitted and he assured the complainant that he would make the way permanently, after filing the said objection applications, but for that work, Rs. 1,50,000/- would be required to be paid. This talk had taken place before about one month prior to 21.10.1991, as alleged in the complaint. At that time, the complainant was called at the dispensary of the accused and, as alleged, such talk had taken place. The deal was ultimately settled at Rs 1.00 lakh. It was also agreed to make payment of Rs. 1.00 lakh in 2/3 installments as the complainant was not having sufficient arrangement for the same. It is alleged that the accused was often demanding the amount from the complainant. 5. On 25.10.1991, at about 8.00 or 8.30pm, the accused came to the residence of the complainant and informed the complainant that his work was being done and as per the agreement he had not paid the amount, that was not proper and told the complainant to make payment on that very day otherwise he would spoil his work. Thereupon, as alleged, the complainant told the accused that it would not be possible for him to make necessary arrangement and therefore, he told the accused that he would make the payment in installment as early as possible. Thereupon, it is alleged that the accused told the complainant to make payment in installment of Rs. 25,000/-. Thereupon, as alleged, the complainant told the accused that it would not be possible for him to make necessary arrangement and therefore, he told the accused that he would make the payment in installment as early as possible. Thereupon, it is alleged that the accused told the complainant to make payment in installment of Rs. 25,000/-. Thereupon, the complainant told the accused that he would make some arrangement by evening and the accused told that he would come to receive the amount at about 4 or 5 pm on 25.10.1991 and told him to make arrangement of Rs. 25,000/-. 6. Thereafter, the complaint was filed before PI ACB and panchnama of first part was completed and the trap was arranged and the accused was trapped, as stated above, accepting the amount of Rs. 25,000/-. Thereafter, necessary second panchmama was also prepared in the presence of panchas and statements of witnesses were recorded and on completion of investigation, the charge-sheet was filed in the Court, which was given number as Special (ACB) Case No. 15/1992. 7. Thereafter, the charge was framed at Ex. 29 against the appellant. The appellant – accused has pleaded not guilty and claimed to be tried. 8. In order to bring the home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses: 1. PW-1 Ganeshbhai Jethabhai Ex. 35 2. PW-2 Parsottambhai C. Patel Ex. 55 3. PW-3 Mahesh Pandha Ex. 53 4. PW-4 PI Parmar,I.O., Ex. 59 5. PW-5 Kokilaben W/o the complainant Ex 70 6. PW-6 Navnitbhai I Patel Ex. 73 9. The prosecution has also produced, in all, 31 documentary evidences, as mentioned in the impugned judgment, before the trial Court. 10. 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. 11. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 26.5.199 held the appellant – accused guilty to the charge levelled against him under sec. 7 and 13(2) of the Prevention of Corruption Act and convicted and sentenced the appellant accused, as stated above. 12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Mehsana, the present appellant has preferred this appeal. 13. Heard Mr. 7 and 13(2) of the Prevention of Corruption Act and convicted and sentenced the appellant accused, as stated above. 12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Mehsana, the present appellant has preferred this appeal. 13. Heard Mr. KB Anandjiwala learned advocate for the appellant and Mr HL Jani learned APP for the respondent-State. 14. Mr Anandjiwala has read the charge, oral evidence of the witnesses as well as the documentary evidence and vehemently argued that on the face of the judgment, it is proved beyond reasonable doubt that the learned Judge has committed grave error and the judgment and order of the learned Judge is not proper, legal and unwarranted on the facts and circumstances of the case. Mr. Anandjiwala has argued that the learned Judge has not properly construed and appreciated the sanction order passed by the Director of Municipality. He has also contended that such sanction is non-application of mind. He has also contended that from the evidence, it appears that the Sanctioning Authority has not considered all the investigation papers which were placed before him. He has also read the papers and vehemently argued that the statement of the appellant-accused was the part of the investigation papers and his statement was recorded by Police Inspector soon after the trap. Mr Anandjiwala has further contended that had it been taken into consideration by the Sanctioning Authority, he would have not passed the order for prosecution as the same was disclosing that the amount was towards the sale proceeds of the shares which the complainant wanted to purchase, and therefore, the amount was not towards the illegal gratification but the same was towards the sale proceeds of the sale of shares. He has further contended that so far as doing of business in the share is not prohibited by a public servant. He submitted that the present appellant is practicing doctor and, therefore, there is no bar in doing the business in shares. He has also contended that the sanction order is against the provisions of law and when it is established beyond reasonable doubt that the sanction is given without application of mind, then, it is fatal to the prosecution case. Mr. Anandjiwala, has contended that from the contents of the complaint, the prosecution has failed to prove its case beyond reasonable doubt. Mr. Anandjiwala, has contended that from the contents of the complaint, the prosecution has failed to prove its case beyond reasonable doubt. He has read Ex. 29 charge and argued that it is the allegation of the prosecution that demand was made by the present appellant of Rs. 1,50,000/-, and later on, it was decided to accept Rs. 1 lakh and the present appellant was agreed to accept that amount. But, from the oral version of the witness, it is the duty of the prosecution to prove its case beyond reasonable doubt. Mr. Anandjiwala has read the oral evidence of PW-1 Ganeshbhai Jethabhai Panch No. 1, Ex. 35 and vehemently argued that in his evidence it is admitted by this witness that at 4.00 O'clock, when this witness and complainant were sitting in the room, at that time, the present appellant came there and complainant has produced one file and shown it to the present appellant and asked him that what about his work. Then, the present appellant told him that his work will be done. Thereafter, the complainant asked the present appellant that what he will take. Then, in connection of that question, the present appellant had never replied anything. Mr. Ananadjiwala has also contended, from the oral evidence of this panch witness, who is independent witness, that through the evidence of this witness also, the demand is not proved beyond reasonable doubt. He has also contended that even from the panchnama also, it is specifically explained that complainant has asked to the present appellant that “Sir, how much will be taken”, and in reply, the present appellant never said anything in connection of that suggestion asked by the complainant in the presence of panch witness no. 1 and at that event, the present appellant was looking at the face of complainant and panch no. 1. He has contended that even from the contents of panchnama, the prosecution has failed to prove that the demand was made by the present appellant from the complainant. Mr Anandjiwala has read the oral evidence of PW-3 Mahesh Pandha Panch no. 2, Ex. 53 and argued that from the oral evidence of this witness, the demand is not proved beyond reasonable doubt. Mr Anandjiwala has also argued that the complainant is not examined by the prosecution due to his death. Mr. Anandjiwala has argued that wife of complainant PW-5 Kokilaben Ex. 2, Ex. 53 and argued that from the oral evidence of this witness, the demand is not proved beyond reasonable doubt. Mr Anandjiwala has also argued that the complainant is not examined by the prosecution due to his death. Mr. Anandjiwala has argued that wife of complainant PW-5 Kokilaben Ex. 70 has been examined by the prosecution, who has deposed that her husband told her that Mehta Saheb is demanding money of Rs. 25,000/- but in light of this evidence, Mr Anandjiwala has read the oral evidence of PW-4 Police Inspector Mr Parmar, I.O., Ex. 59 and contended that at para-30, it is admitted by the I.O. that PW-5 Kokilaen has never stated before him that her husband has told her that for the purpose of way of the land, Mehta Saheb is demanding Rs. 25,000/- as bribe amount or illegal gratification. Mr Anandjiwala has read the explanation which is given in writing by the present appellant during the recording of his statement under sec. 313 of CrPC and contended that it is explained by the present appellant-accused that there were always transactions between the present appellant and complainant for the purpose of sale and purchase of shares and as per the telephonic talk with the complainant, when he called him at his residence for the share of Narmada Cement, that amount was given to him just for the purpose of shares and he was trapped by the Trapping Officer in connection of the said offence. He has also contended that this is not an explanation which can be considered that it is made by the appellant after-thought. He has argued that prima-facie, when the demand is not proved beyond reasonable doubt, then the question regarding the acceptance cannot arise. Mr Anandjiwala has also contended that the present appellant is a municipal councillor and therefore, is not covered within the meaning of public servant. In that view of the matter, Mr. Anandjiwala has contended that the impugned judgment and order of conviction and sentence passed by the learned Special Judge deserves to be quashed and set aside. 15. As against this, learned APP Mr. HL Jani appearing for the State has vehemently argued against the submissions of learned advocate Mr. In that view of the matter, Mr. Anandjiwala has contended that the impugned judgment and order of conviction and sentence passed by the learned Special Judge deserves to be quashed and set aside. 15. As against this, learned APP Mr. HL Jani appearing for the State has vehemently argued against the submissions of learned advocate Mr. Anandjiwala for the appellant, and contended that it appears from the oral evidence of witnesses that the sanction which was given by the sanctioning authority was given after considering all the investigation papers and after applying mind. Mr. Jani learned APP has also contended that when prima facie, it is established beyond reasonable doubt that the sanction given by the sanctioning authority, after applying mind, then no question would arise that the sanction is illegal. Mr. HL Jani learned APP, in reply to the contention raised by Mr. Anandjiwala that the present appellant is not a public servant, has contended that as per the provisions of law, municipal councillor is covered within the meaning of public servant. As against this, Mr. Ajandjiwala has argued that so far as special case under the Prevention of Corruption Act is concerned, the remuneration of the present appellant is not proved beyond reasonable doubt. Mr Anandjiwala has also contended that in the definition of public servant, municipal councilor cannot be considered as a public servant. Mr. Jani learned APP has relied upon the decision of Full Bench of this Court, in the case of Mustaq Ahmed Hasanbhai Mansuri vs. V.C. Trivedi, reported in 2003(1) GLH 572 and the decision of this Court in the case of Bharatbhai R. Bhavsar vs. Director of Municipalities and others, reported in 2008(2) GLH 752 . Mr Jani has also read section 73 of the Gujarat Municipalities Act, 1963, which reads as under: 73. Councillors, etc., to be deemed public servants:- (1) Every municipal councillor, officer or servant and every lessee of the levy of any municipal tax, and every servant or other person employed by any such lessee shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (XLV of 1860). (2) The word “Government” in the definition of “legal remuneration” in section 161 of that Code shall, for purposes of sub-section (1) of this section, be deemed to include a municipality. Mr. (2) The word “Government” in the definition of “legal remuneration” in section 161 of that Code shall, for purposes of sub-section (1) of this section, be deemed to include a municipality. Mr. Jani also relied upon section 482 of the Bombay Provincial Municipal Corporation Act, 1949, which reads as under: 482. Councillors, etc. to be deemed to be public servants.- (1) The Commissioner and the Transport Manager and every councillor and every member of the Transport Committee who is not a councillor and every municipal officer or servant appointed under this Act, and every contractor or agent for the collection of any municipal tax and every servant or other person employed by any such contractor or agent shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860). (2) For the purposes of sub-section (1) the words “Government” in the definition of “legal remuneration” in section 161 of the Indian Penal Code (45 of 1860) shall be deemed to include the Corporation.” 16. Mr. Jani has also read sec. 130 and 135 of the BPMC Act, 1949 and section 21 of IPC and contended that in light of the provisions of sec. 73 of the Gujarat Municipalities Act, the ingredients of sec. 21 of IPC is also considered and present municipal councillors, who are getting honorarium from the Local Bodies, like, Nagarpalika or Municipal Corporation, it can be considered that they are getting legal remuneration. Mr. Jani has also contended that the complainant is not examined but panch no. 1 is examined and money was given to the appellant-accused and when acceptance is proved, the demand is followed by the acceptance. Proof of Notes in panchnama is also tallied. Panch No. 2 has also supported the case of the prosecution and complaint is also exhibited. He has contended that the present appellant has misused his position of public servant and that issue is also not challenged by the present appellant. He has also contended that as per the judgment of the Division Bench of this Court, when the complainant and panch turned hostile, even though the oral evidence of Panch no. 2 and Trapping Officer are required to be considered and circumstantial evidence is also required to be considered. He has also contended that as per the judgment of the Division Bench of this Court, when the complainant and panch turned hostile, even though the oral evidence of Panch no. 2 and Trapping Officer are required to be considered and circumstantial evidence is also required to be considered. The Division Bench of this Court in the decision reported in GLR 1996(3) 620, while considering the said question, has quashed and set aside the acquittal and appellant of that case was convicted. In that view of the matter, Mr. Jani has contended that the impugned judgment and order of conviction and sentence passed by the learned Special Judge is just, proper and legal, the same deserves to be confirmed. 17. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant. From the evidence of the case is concerned, it is true that in this case, the complainant is not examined by the prosecution but it is the say of the learned APP that the oral evidence of panch is required to be considered in the light of the complaint given by the complainant. In the present case, I have perused the contents of the complaint and considered the same. It is established beyond reasonable doubt that at the event when the present appellant came into the room and took place on the sofa in the presence of panch and when complainant had asked to the appellant that how much to be paid, to which, appellant had never said anything and it is also proved that in the presence of panch, no demand was made by the present appellant from the complainant. I have perused the contents of panchnama and from the contents of panchnama, it appears that no demand is made by the present appellant from the complainant. Even panch is also unable to say that the appellant has made demand for illegal gratification. The probable defence is established by the present appellant beyond reasonable doubt. In the decision of the Hon'ble Supreme Court in the case of Banarsi Das vs. State of Haryana, reported in 2010 SC 1589, wherein, Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused not sufficient to prove the offence. The probable defence is established by the present appellant beyond reasonable doubt. In the decision of the Hon'ble Supreme Court in the case of Banarsi Das vs. State of Haryana, reported in 2010 SC 1589, wherein, Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused not sufficient to prove the offence. I have also perused the oral as well as documentary evidence produced before me. It is also proved beyond reasonable doubt that the prosecution has failed to prove the demand which is alleged to have been made by the present appellant-accused. It is true that the trap amount was recovered from the possession of the present appellant, but the defence made by the appellant is required to be considered whether it is a probable defence or not. The appellant-accused in his statement recorded under section 313 of CrPC, has explained that the complainant is a regular visitor and there was some business transactions of sale and purchase of shares and from the oral evidence of wife of the complainant also, it is proved beyond reasonable doubt that the probable defence made by the appellant is required to be considered and accepted. In that view of the matter, I am of the opinion that the prosecution has not proved the demand which is alleged to have been made by the present appellant and when the demand is not proved beyond reasonable doubt, then simply acceptance is not sufficient to convict the appellant. I have also perused the meaning of criminal misconduct of public servant. It is true that the appellant is a public servant, yet, looking to the evidence produced before this Court, I am of the opinion that the defence made by the present appellant in his statement recorded under section 313 of CrPC cannot be said to be made an afterthought. In that view of the matter, I am of the opinion that impugned judgment and order of conviction and sentence passed by the learned Special Judge requires to be quashed and set aside. 18. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 26.5.1999 passed by the learned Special Judge, Mehsana in Special Case (ACB) No. 15/1992 is hereby quashed and set aside. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith.