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2017 DIGILAW 361 (GUJ)

Virsingh Salubhai Rathod v. State of Gujarat

2017-02-13

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The present Criminal Appeal is preferred by appellant - Virsingh Salubhai Rathod - original accused against the judgment and order dated 5.5.2000 passed by learned Special Judge, Panchmahal at Godhra in Special Case No. 6 of 1994 whereby original accused - appellant herein was convicted for the offence under section 7(e) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment for three months and also convicted him for the offence under section 13(1) and sentenced him to undergo rigorous imprisonment for four years and to pay fine of Rs. 250/-, in default, to undergo rigorous imprisonment for three months and also ordered to run both the sentences concurrently. 2. The short facts giving rise to the present appeal are that the accused appellant who was serving as primary teacher since last years in the primary school met the complainant in the year 1991 at his house and stated to the complainant to use his influence for appointment of the complainant as non-teaching teacher and also demanded Rs. 20,000/- to be given to the District Education Officer and also Rs. 2000/- for using the influence from the complainant. Therefore, the complainant filled in the form and given it to the PTC College, Junagadh but his interview was not done. Thereafter, the accused arrived at the home of the complainant and demanded the amount, but the complainant given him Rs. 5400/- and asked the complainant to meet the District Education Officer along with remaining amount. Thereafter, the complainant went in the office of the District Education Officer along with Rs. 4000/-, but the complainant gave Rs. 3600/- to the appellant accused. The appellant accused also given the receipt of Rs. 9000/- wherein the revenue receipt has also been affixed. It is alleged that again the appellant accused demanded Rs. 2000/- from the complainant. As the complainant did not want to pay the illegal gratification, he approached the ACB office and lodged the complaint. It is alleged that during the trap, the accused was caught red handed. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the original accused. The charge was framed against the accused. It is alleged that during the trap, the accused was caught red handed. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the original accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the guilt, the prosecution has examined the witnesses and also produced documentary evidences. 4.1 At the end of the trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 5. Being aggrieved by the same, the appellant - original accused has preferred the aforesaid Criminal Appeal before this Court. 6. By way of preferring the present appeal, the appellant - original accused has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. Whereas, the State has preferred the appeal for enhancement of sentence awarded by learned trial Judge. 7. Mr. B.Y. Mankad, learned advocate appearing for Mr. U.M. Shastri, learned advocate for original accused has taken this Court through the evidence on record and argued that the prosecution miserably failed to prove vital ingredients as regards to demand, acceptance and recovery of bribe amount beyond reasonable doubt and hence, benefit of doubt is required to be extended to the appellant accused. He submitted that there appears some contradictions as regards to recovery either from the right or left side pocket of the pant of the accused and that the panchnamas which were prepared on the day of incident, but the signatures of the panchas were obtained on the subsequent day at the time of recording their statements. He submitted that test of anthracene powder on the currency notes was not scientific and therefore, recovery of tainted currency notes should not be believed. He submitted that test of anthracene powder on the currency notes was not scientific and therefore, recovery of tainted currency notes should not be believed. He submitted that the letters as well as receipt for accepting illegal gratification are not proved in accordance with law as the same were not sent to the handwriting expert and therefore the said letters at Exhs. 25 to 30 are required to be discarded, as such. Lastly, Mr. Mankad submitted that the impugned judgment and order of conviction is required to be quashed and set aside. 8. On the other-hand, Mr. K.P. Rawal, learned APP has supported the judgment rendered by learned trial Court. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. He further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court may dismiss the appeal filed by the original accused. He submitted that the evidence of the complainant is also getting corroboration by the evidence of Panch No. 1 who accompanied the complainant at the time of trap. He also put reliance on the letters and receipt at Exhs. 25 to 30 which came to be issued by the accused himself and the said documentary evidences are duly proved during the course of trial. He, therefore, submitted that taking into consideration the oral evidence as well as aforesaid documentary evidence, the prosecution has successfully established that the appellant accused demanded illegal gratification of Rs. 22000/- for getting the work done for appointment of the complainant as a teacher. He submitted that this a unique case wherein not only the oral evidence is sufficient to confirm the judgment and order of conviction, but exceptionally the letters as well as receipt acknowledging illegal gratification are also on record which clearly prove the factum as regards to demand and acceptance. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction. 9. This Court has heard Mr. B.Y. Mankad, learned advocate for the appellant - original accused and Mr. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction. 9. This Court has heard Mr. B.Y. Mankad, learned advocate for the appellant - original accused and Mr. Rawal, learned APP for the State. 10. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 11. As per the prosecution version, the appellant accused in order to give the job as untrained teacher to the complainant demanded Rs. 20,000/- to be given to the District Education Officer and Rs. 2000/- for himself and out of the same, Rs. 9000/- has been received from the complainant by the appellant accused. It is alleged that out of Rs. 2000/-, it was decided by the appellant to receive the said amount in installment of Rs. 500/- and on demanding the said amount of Rs. 500/- towards illegal gratification, the trap was arranged on 5.7.1993 by the Police Inspector, ACB, Godhra and on 5.7.1993, the appellant accused demanded and accepted the said amount of Rs. 500/- from the complainant and caught red handed and thereby the accused committed the offence as alleged against him. 12. PW 1 - Ramanlal Chunilal Kamboliya has been examined at Exh. 23. The witness has deposed that he is holding agricultural land and residential house at village Garadu and while he was studying in Ashram school, the appellant accused was also studying therein before two - three years ahead. The witness has deposed that the appellant accused who was serving as teacher in the primary school has arrived at his home and asked the witness to give the job of untrained teacher and also told the witness to bring Rs.22,000/-. The witness has deposed that it was told by the appellant accused that out of the said Rs. 22,000/-, Rs. 20,000/- was to be paid to the District Education Officer and Rs. 2000/- for the accused. The witness has deposed that on making arrangement, he has paid Rs. 5400/- to the appellant accused and thereafter he paid Rs. 3600/- to the appellant accused. The witness has deposed that thereafter the appellant accused issued receipt of Rs. 9000/- in favour of the witness. 2000/- for the accused. The witness has deposed that on making arrangement, he has paid Rs. 5400/- to the appellant accused and thereafter he paid Rs. 3600/- to the appellant accused. The witness has deposed that thereafter the appellant accused issued receipt of Rs. 9000/- in favour of the witness. The witness has deposed that as he did not get appointment, he used to write to the accused and thereafter he met the accused wherein the accused demanded Rs. 2000/- from the witness which was agreed to be paid in four installments of Rs. 500/- each. The witness has deposed that as he was not willing to pay the said amount as illegal gratification, he approached the ACB office, Godhra and lodged the complaint. The witness has deposed that ACB office initially demanded the amount of illegal gratification to be given to the accused, but as the witness was having only Rs. 100/- rest of the amount of Rs. 400/- was added by the ACB official from the reserve fund maintained by the ACB office and thereafter test of anthracene powder as well as ultra violate lamp test was also carried out in the presence of the panchas. The witness has deposed that thereafter he was directed by the ACB office to report on 5.7.1993 and while he proceeded towards the appointed place, the panch No. 1 was accompanied with him where they made extensive search of the accused and he was found from Rambharose Hindu Hotel situated at Ganj Bazar. The witness has deposed that at that time, the witness was asked by the accused to take the seat and thereafter the accused ordered for tea. The witness has deposed that thereafter the accused initiated the talk as regards to appointment of the witness as teacher and told him that if he is in hurry, then he would have to pay unpaid amount immediately, at that time, on being asked the witness to pay, the witness delivered Rs. 500/- to the accused and the accused accepted the said tainted currency notes from the witness and thereafter the said currency notes were inserted in the pocket of the pant by the accused. Thereafter, the witness raised alarm and hence other members of the raiding party arrived there. In the cross examination, letters addressed by the accused to the complainant at Exhs. Thereafter, the witness raised alarm and hence other members of the raiding party arrived there. In the cross examination, letters addressed by the accused to the complainant at Exhs. 25 to 29 were came to be admitted as the complainant identified his handwritings. Similarly, receipt for payment of Rs. 9000/- as illegal gratification to the accused was also came to be admitted. In the cross examination of this witness, nothing worth has come out except the suggestion was put forward as regards to letters which came to be written by somebody else in place of the accused which the witness has not accepted. 13. PW 2 - Jayantilal Vadilal Shah has been examined at Exh. 45. The witness has deposed that he was serving as Senior Clerk in the office of the Executive Engineer, Water Supply and Sewage Board and he was requisitioned as official panch along with other panch. The witness has deposed that the complainant was introduced to him and that the complaint was recorded in his presence and thereafter the complainant produced Rs. 100/- and rest of the amount of Rs. 400/- was provided by the ACB office. The witness has deposed that test of anthracene powder was carried out in his presence and he was directed to view and hear the conversation between the complainant and the accused at the time of trap. The witness has deposed that he accompanied the complainant on 5.7.1993 and when they reached Rambharose Hindu Hotel at Ganj Bazar, Jhalod, at that time, the accused was found sitting over the bench in the hotel. The witness has deposed that the accused initiated the talk with the complainant and also ordered for tea and the accused told the complainant that he has already handed over Rs. 9000/- to Mr. Barot and if the complainant pays remaining money, then his work would be done. The witness has deposed that the complainant told that as agreed, he has already brought Rs. 500/- and then he took out the money from his pocket and handed over to the accused and that the accused counted the same and thereafter placed it in the right side pocket of the pant. The witness has deposed that the complainant told that as agreed, he has already brought Rs. 500/- and then he took out the money from his pocket and handed over to the accused and that the accused counted the same and thereafter placed it in the right side pocket of the pant. The witness has deposed that thereafter the members of the raiding party arrived due to prearrange signal and recovery was carried out and that test of ultra violate lamp was carried out which was found to be positive. In the cross examination, nothing worth has come out and the evidence given by the panchas in the examination-in-chief remains intact except the fact that the witness has admitted that he signed over the second part of the panchnama on the following day when his statement was recorded. The said fact has also been established in the cross examination of the Investigating Officer Mr. Pathan. 14. PW 3 - Nadirkhan Jamalkhan Pathan has been examined at Exh. 49. The witness has deposed the details as to how he recorded the complaint, how the test of anthracene powder was carried out as well as to how the trap was carried out. In the cross examination, the witness has admitted that he recorded the statements of the panchas on the following day, at that time, he obtained signatures on the second part of panchnama. The witness has admitted that he has not obtained any opinion from the handwriting expert so far as the letters written by the accused to the complainant are concerned. 15. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994), while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 16. 16. In State of Kerala and another v. C.P. Rao, (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable Apex Court reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 17. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 18. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 19. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 19. In the backdrop of the aforesaid factual as well as legal position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. 20. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. In the present case, as per the prosecution version, the complainant was required to pay Rs. 22000/- towards illegal gratification, out of which, Rs. 20,000/- was to be paid to the District Education Officer Mr. Barot and rest of Rs. 2000/- was to be paid to the accused himself in order to influence Mr. Barot for getting appointment of untrained teacher in Junagadh district. It has also come on record that against Rs. 20,000/-, the complainant has already paid Rs. 9000/- for which the receipt was also issued by the accused in favour of the complainant which came to be proved at Exh. 30, whereas in order to influence Mr. Barot, the accused demanded Rs. 2000/- from the complainant and if the complainant pays the said amount expeditiously, then the work will be expedited and therefore it was agreed by the complainant to pay the said amount in four installments, each of Rs. 500/- to the appellant accused. As the complainant was not willing to pay the said amount, the complaint was lodged and trap was arranged, at that time, the accused was found in the hotel situated in the market area of Jhalod. After initial talk, the accused demanded the amount which was handed over by the complainant to the accused which came to be recovered from the pocket of the pant of the accused. The numbers of the tainted currency notes were tallied which were noted in the preliminary panchnama. At this stage, Mr. After initial talk, the accused demanded the amount which was handed over by the complainant to the accused which came to be recovered from the pocket of the pant of the accused. The numbers of the tainted currency notes were tallied which were noted in the preliminary panchnama. At this stage, Mr. Mankad has fairly submitted that whether tainted currency notes were placed in the right or left pocket of the pant is immaterial and it has nothing to do with the recovery which is proved. 21. So far as the contention as regards to not referring of the letters/documents at Exhs. 25 to 30 for examination of the handwriting expert are concerned, on that point, the evidence on record is clear. When the complainant was examined, in his deposition, the aforesaid documents came to be proved by the prosecution. In the cross examination, the accused has not questioned the writings and his signature thereon. In this view of the matter, once the documents are proved in accordance with law, there was no dispute as regards to its admissibility. Therefore, the contention raised by Mr. Mankad is of no help to the appellant accused. 22. As stated above, this Court has minutely examined the evidence of the witnesses and the evidence of the witnesses has been read over in the presence of learned advocates for the parties and on overall analysis of their evidence, it leaves no manner of doubt of constituting vital ingredients as regards to demand, acceptance and recovery. So far as the evidence of panch No. 1 who accompanied with the complainant at the time of trap is concerned, his evidence is duly getting corroboration as he has also stated the same thing in his oral evidence wherein the factum regarding demand, acceptance and recovery are duly proved. 23. In the present case, over and above the aforesaid oral evidence, the prosecution has successfully brought on record and proved the letters from Exhs. 25 to 29 which speak as to how the demand of illegal gratification was raised and was paid in part wherein Rs. 9000/- has also been paid by the complainant to the accused as illegal gratification which was duly acknowledged by the accused by issuing receipt with revenue stamp which came to be proved at Exh. 30. 24. 25 to 29 which speak as to how the demand of illegal gratification was raised and was paid in part wherein Rs. 9000/- has also been paid by the complainant to the accused as illegal gratification which was duly acknowledged by the accused by issuing receipt with revenue stamp which came to be proved at Exh. 30. 24. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in convicting the appellant - original accused. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of conviction recorded by learned court below and hence finds no reasons to interfere with the same. 25. Now, on the point of sentence, as argued by Mr. Mankad, learned advocate for the appellant accused that since the accused came to be arrested in the year 1993, almost for about 23 years have already passed and he was enlarged on bail and thereafter after conviction, he was on bail and now he has attained over 50 years of age. It is submitted that the appellant accused has also faced departmental as well as criminal prosecution for about 23 years wherein he is sufficiently punished and therefore, taking into consideration the period spent in the proceedings and time lag of the proceedings, it is urged to reduce the sentence imposed upon the appellant accused to the minimum which was prescribed at the relevant time. Taking into consideration the facts and circumstances of the case, sentence inflicted upon the accused is required to be reduced as per the final order herein below. 26. In view of the above discussion, the following final order is passed. Criminal Appeal No. 536 of 2000 filed by appellant accused is partly allowed. Taking into consideration the facts and circumstances of the case, sentence inflicted upon the accused is required to be reduced as per the final order herein below. 26. In view of the above discussion, the following final order is passed. Criminal Appeal No. 536 of 2000 filed by appellant accused is partly allowed. The impugned judgment and order dated 5.5.2000 passed by learned Special Judge, Panchmahal at Godhra in Special Case No. 6 of 1994 is modified to the extent that instead of sentence of rigorous imprisonment for three years for the offence under section 7(e) of the Prevention of Corruption Act, the appellant accused shall undergo the sentence of rigorous imprisonment for one year and instead of sentence of rigorous imprisonment for four years for the offence under section 13(1) of the said Act, the appellant accused shall undergo the sentence of rigorous imprisonment for one year. Rest of the impugned judgment is not disturbed. Appellant accused - Virsing Salubhai Rathod is ordered to surrender to custody within a period of ten weeks from today for undergoing the remainder sentence, if he has not undergone so far, failing which the investigating agency shall be at liberty to take necessary action in accordance with law. The impugned judgment and order stands modified accordingly. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith. Appeal Partly Allowed.