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2017 DIGILAW 898 (GUJ)

Manilal Kuberdas Thakkar v. State of Gujarat

2017-04-26

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The present Criminal Appeal is preferred by appellant - Manilal Kuberdas Thakkar - original accused No. 1 against the judgment and order dated 31.8.2000 passed by learned Special Judge, Court No. 13, Ahmedabad City in Special Case No. 11 of 1994 whereby original accused No. 1 - appellant herein was convicted for the offence under section 7 of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 2000/-, in default, to undergo simple imprisonment for two months and also convicted him for the offence under section 13(1)(d)(i) and (ii) and sentenced him to undergo rigorous imprisonment for four years and to pay fine of Rs. 3000/-, in default, to undergo simple imprisonment for six months and also ordered to run both the sentences concurrently. 2. The short facts giving rise to the present appeal are that the complainant who was serving as driver in S.T. Corporation had unauthorizedly proceeded on leave and therefore, with a view to not dismissing him from service, the amount of Rs. 5000/- was demanded by the accused No. 1. It is alleged that the complainant agreed to pay Rs. 2500/- towards illegal gratification which came to be handed over to accused No. 2 on 28.8.1993. As the complainant did not want to pay the amount of illegal gratification, he approached the ACB office and lodged the complaint against the accused persons. 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 No. 1 has preferred the aforesaid Criminal Appeal before this Court. 6. 5. Being aggrieved by the same, the appellant - original accused No. 1 has preferred the aforesaid Criminal Appeal before this Court. 6. By way of preferring the present appeal, the appellant - original accused No. 1 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. 7. Mr. K.B. Anandjiwala, learned senior advocate assisted by Mr. Rajdip Chaudhary, learned advocate appearing for the appellant - original accused No. 1 has taken this Court through the evidence on record and argued that there appears no uniformity in the evidence of the complainant as well as panch No. 1 and hence the prosecution case suffers from lots of contradictions as regards to demand and acceptance. He submitted that even the prosecution case is not clear as regards to recovery, whether recovery came to be effected either from the hands of accused No. 1 or accused No. 2 and therefore the prosecution has miserably failed to establish vital ingredients i.e. demand and acceptance. He further submitted that the accused was not in a position to help or favour by any means to the complainant as he was not the competent authority as the competent authority was the Depot Manager for sanctioning the leave and for taking disciplinary action, the Traffic Inspector is the competent authority and therefore, the accused No. 1 has nothing to do and therefore, there was no occasion to raise any demand by the accused No. 1 from the complainant. He, therefore, submitted that the entire case of the prosecution is concocted due to rivalry between two unions because the complainant and accused both are the members of two different unions. He submitted that material contradiction regarding establishment of demand and acceptance goes to the root of the case and, therefore, benefit could have been extended to the appellant accused, however, learned trial Judge has not properly appreciated the evidence on record. He submitted that learned trial Judge has not properly appreciated and considered the defence raised by the appellant accused as regards to wrongly implicated him in the alleged offence. He submitted that learned trial Judge has not properly appreciated and considered the defence raised by the appellant accused as regards to wrongly implicated him in the alleged offence. He submitted that the appellant accused was not accepting the amount of illegal gratification and therefore tainted currency notes were thrusted upon the accused No. 2 in order to rope the present accused in the crime in question and the said aspect has not been properly appreciated by learned trial Judge. He submitted that PW 3 has recorded the complaint and thereafter he proceeded to hold the trap and he himself has investigated the case and filed the charge and therefore, as per the decisions in the case of "Bhagwan Singh v. State of Rajasthan" reported in AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel v. State of Gujarat, reported in 1998 (1) GLH 924 , the entire investigation in the case on hand stands tainted and vitiated. Lastly, Mr. Anandjiwala submitted that the impugned judgment and order of conviction is required to be quashed and set aside. 8. On the other-hand, Mr. K.L. Pandya, 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 there appears consistent evidence on the material aspect of instant demand and acceptance so far as the complainant as well as shadow witness are concerned. He submitted that even recovery is also established as the numbers of the tainted currency notes noted in the preliminary panchnama are tallied with the panchnama prepared at the time of search and seizure and, therefore, link is clearly established so far as the recovery of tainted currency notes is concerned. He submitted that even recovery is also established as the numbers of the tainted currency notes noted in the preliminary panchnama are tallied with the panchnama prepared at the time of search and seizure and, therefore, link is clearly established so far as the recovery of tainted currency notes is concerned. He submitted that there appears no reason to take a different view than the view taken by learned trial Judge as the evidence on record is consistent on material aspect. He submitted that minor discrepancy and variance in the evidence of the complainant and shadow witness are bound to occur due to time lag between recording the evidence as well as trap, but so far as the material aspect is concerned, evidence of both the witnesses is corroborated with the contemporaneous record i.e. panchnama prepared at the time of trap. 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 and accepted illegal gratification. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction. 9. This Court has heard Mr. K.B. Anandjiwala, learned senior advocate for the appellant -original accused No. 1 and Mr. Pandya, 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, while the accused was serving as traffic controller in the month of August 1993 with the S.T. Corporation, the complainant met him on 25.8.1993 and requested him to get his leave sanctioned for the period from 28.7.1993 to 24.8.1993, at that time, the accused demanded Rs. 5000/- for helping him in getting leave sanctioned as well as for not making any adverse report for his unauthorized absent from duty and directed him to pay Rs. 2500/- on 28.8.1993 towards first installment at his office or nearby Bhagya Laxmi Restaurant. As the complainant was not willing to pay the bribe, he lodged the complaint and in pursuance thereto, trap came to be arranged, during the course of trap, the accused caught red handed along with tainted currency notes and thereby the accused committed the offence as alleged against him. 12. PW 1 - Dineshbhai Motibhai Patel - complainant has been examined at Exh. 12. PW 1 - Dineshbhai Motibhai Patel - complainant has been examined at Exh. 35. The witness has deposed that he was working as driver in the S.T. Corporation in the year 1993. The witness has deposed that as he was suffering from heart problem, he was undergoing treatment on 25.8.1993 and while he reported for duty, he met the accused wherein the accused asked him as to why he was on unauthorised absence and as to why, he should not be dismissed and if he wants to save his service, he would have to pay Rs. 5000/- as the amount of illegal gratification. The witness has deposed that though he was not in a position to hand over the said amount, but he agreed to pay Rs. 2500/- initially and there after he will pay rest of the amount. The witness has deposed that thereafter the accused took two plain papers and gave two separate reports to his superior, but the witness did not know what was written in it, but at that time, the witness was directed to come along with Rs. 2500/-. The witness has deposed that as he was not willing to pay the amount of bribe, he lodged the complaint at Exh. 47. The witness has deposed that on the day of trap, shadow witness accompanied with him and they met the accused at Gita Mandir, at that time, the accused asked the witness as to whether he brought the money and thereafter they were made to sit on the bench. The witness has deposed that thereafter the accused left his office and went to another office and then went for taking pan masala, at that time, he met the accused wherein the accused asked whether he has brought money and if yes, then give him and, therefore, the complainant handed over the money to the accused and in turn, the accused handed over the said amount to one milk vendor who was directed to count and send to his office. Thereafter, the witness raised prearranged signal and hence other members of the raiding party arrived there. Search and seizure took place and test of ultra violate lamp was carried out which was found positive so far as persons of both the accused are concerned. The witness has identified both the accused before learned trial Court. Thereafter, the witness raised prearranged signal and hence other members of the raiding party arrived there. Search and seizure took place and test of ultra violate lamp was carried out which was found positive so far as persons of both the accused are concerned. The witness has identified both the accused before learned trial Court. In the cross examination, the witness has admitted that since 1973 he was serving as driver. The witness is involved in several cases of misconduct and he used to remain absent unauthorizedly and he has been inflicted punishment of stoppage of increments several times. The witness has admitted that his nephew was taken to Madras for treatment and he was at Madras in that connection from 29.7.1993 to 25.8.1993. The witness has admitted that he did not sanction leave for the aforesaid period. The witness has admitted that he did not mention such things while lodging the complaint. The witness has admitted that leave reports used to be addressed to the Depot Manager and not to the accused, however, the accused was processing the same and that the accused had no authority to report against him; similarly, the accused had no authority to dismiss him. The witness has admitted that as soon as he handed over the tainted currency notes to the accused, he raised prearranged signal and hence raiding party arrived there, at that time, the accused handed over the amount to the milk vendor and directed him to hand over him again. The witness has admitted that said milk vendor (accused No. 2) handed over the said amount to accused No. 1 in his office and he did not ask accused No. 2 to return the said amount to accused No. 1. The witness has admitted that it is established that at the time of carrying out test of ultra violate lamp, money was in the hands of accused No. 1. The witness has admitted that the police recovered tainted currency notes from the hands of accused No. 1. In the cross examination of this witness, some minor contradictions have been brought on record so far as establishment of demand and acceptance is concerned, however, the same have not been detailed herein. 13. PW 2 - Sureshbhai Sampatlal Dantania has been examined at Exh. 39. In the cross examination of this witness, some minor contradictions have been brought on record so far as establishment of demand and acceptance is concerned, however, the same have not been detailed herein. 13. PW 2 - Sureshbhai Sampatlal Dantania has been examined at Exh. 39. The witness has deposed that at the relevant time, he was serving as Clerk in the office of Ahmedabad Urban Development Authority and he was requisitioned as shadow panch. The witness has deposed that he was directed to render service as shadow panch and therefore he reported on 28.8.1993 wherein he was appraised as regard to the contents of the complaint, as to how the trap is to be carried out as well as test of ultra violate lamp and he was directed to remain all throughout with the complainant as he was to hear and view to the incident of trap. The witness has deposed that on the day of trap, while he reached to the office of the accused at Gita Mandir, he and the complainant met the accused, at that time, the accused asked the complainant as to whether he has brought Rs. 2500/-, if yes, then hand over to accused No. 2 who was selling milk and then the accused would do needful for sanction of leave and other issues of the complainant and thereafter the complainant handed over the tainted currency notes to accused No. 2 and in turn, the accused No. 2 asked the accused No. 1 that he is about to go out and therefore, accused No. 2 handed over the amount of bribe to accused No. 1. Thereafter, accused No. 1 told accused No. 2 let the amount be remained with him and he would collect thereafter and thereafter the complainant gave prearranged signal and hence, other members of the raiding party arrived there. The witness has deposed that the raiding party recovered tainted currency notes from accused No. 2 and test over the persons of both the accused was found positive. In the cross examination, the witness has admitted that in the office of traffic controller till the Pan galla, the accused did not demand from the complainant. The witness has admitted that from the office of the ACB till the completion of raid, he accompanied with the complainant. In the cross examination, the witness has admitted that in the office of traffic controller till the Pan galla, the accused did not demand from the complainant. The witness has admitted that from the office of the ACB till the completion of raid, he accompanied with the complainant. In the cross examination of this witness at pages 193 to 195, minor contradictions as regards to demand and acceptance by accused No. 1 and moving the said tainted currency notes from accused No. 1 to accused No. 2 and from accused No. 2 to accused No. 1, wherein some questions were asked, have been brought on record. However, in bringing such minor contradictions, the defence has established demand and acceptance on the part of accused No. 1 in paragraph 8 of the cross examination. 14. PW 3 - Abdul Mohid Abdul Vahidkhan has been examined at Exh. 46. The witness has deposed that he was serving as Police Inspector, ACB, Ahmedabad at the relevant time. The witness has deposed that he recorded the complaint on 27.8.1993 and thereafter he carried out necessary formalities for laying the trap. He requisitioned panchas, arranged the trap and he detailed as to how the trap was carried out. The witness has deposed that after conclusion of investigation, he filed the chargesheet. In the cross examination, the witness has admitted that since the time of recording the complaint till filing of the chargesheet, he was involved in the procedure. The witness has admitted that at the time of trap, tainted currency notes were recovered from the hands of accused No. 2 who was taken to the office of the traffic controller, at that time, the said tainted currency notes were in the hands of accused No. 2. 15. The defence has also examined DW 1 - Juvansing Punamsing Thakor at Exh. 53. The witness has deposed that he was serving as Assistant Traffic Inspector in S.T. Corporation, whereas accused No. 1 was serving as Traffic Controller and the table of accused No. 1 was nearby his table. The witness has deposed that it was the duty of the accused to keep note with regard to functioning of drivers, whereas leave sanctioning authority of the drivers is Depot Manager and that leave report never goes to the Traffic Controller. The witness has deposed that it was the duty of the accused to keep note with regard to functioning of drivers, whereas leave sanctioning authority of the drivers is Depot Manager and that leave report never goes to the Traffic Controller. The witness has deposed that the complainant has approached him and on humanitarian ground, he requested accused No. 1 to write leave report on his behalf and the said leave report was written by the accused as per the instructions of the complainant who signed over it and it was to be processed after receiving medical certificate. The leave reports at produced at Exhs. 45 and 46. The witness has deposed that the accused is member of employees' union and the complainant is also one of the members of another employees' union and there was no cordial relations between the members of both the employees' unions. 16. 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. 17. 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. 18. 18. 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. 19. 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. 20. 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. 21. 20. 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. 21. 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, on evaluation of the evidence of the complainant as well as shadow witness i.e. PW 1 and PW 2, it is noticed that the evidence as regards to predemand, the complainant has clearly and categorically stated and proved in his deposition. So far as the actual demand at the time of trap is concerned, the evidence of both the witnesses is materially consistent. It has come on record in the evidence of the said witnesses that while the accused reached nearby the shop of the milk vendor (accused No. 2) nearby pan galla and upon his demand, the complainant handed over the bribe amount to accused No. 2 and the said tainted currency notes were recovered from the hands of the accused No. 2 which is getting due corroboration from the contemporaneous panchnama. However, there appears some minor contradictions on record, as noted above, but so far as material aspect of demand and acceptance is concerned, the same is established in the oral evidence, examination-in-chief as well as in the cross examination of both the witnesses i.e. PW 1 and PW 2. 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 shadow witness 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. It is also the contention of Mr. So far as the evidence of shadow witness 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. It is also the contention of Mr. Anandjiwala, learned senior advocate for the appellant accused that the entire investigation in the present case is vitiated as PW 3 has assumed all the roles right from recording the complaint, till the filing of the chargesheet in view of the decisions in the case of "Bhagwan Singh v. State of Rajasthan" reported in AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel v. State of Gujarat, reported in 1998 (1) GLH 924 . This Court has minutely gone through the evidence on record as well as the decisions referred hereinabove. What is held in the aforesaid decisions is that the police officer who himself has become the complainant and thereafter he himself has recorded the complaint before himself, carried out the trap and investigation and thereafter the filed the charge-sheet, in that eventuality, the entire investigation has become tainted. In the present case, as noted above, the complainant is a private person and the shadow witness is also associated and their evidence is an independent evidence. Even, in their evidence, the defence has established the ingredients of demand and acceptance beyond reasonable doubt and, therefore, the decisions relied upon by Mr. Anandjiwala are of no help and are not applicable to the facts of the present case. 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. Anandjiwala, learned advocate for the appellant accused that the incident is of the year 1993, and almost for about 24 years have already passed. 25. Now, on the point of sentence, as argued by Mr. Anandjiwala, learned advocate for the appellant accused that the incident is of the year 1993, and almost for about 24 years have already passed. It is submitted that the appellant accused has also faced departmental as well as criminal prosecution for about 24 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. 865 of 2000 filed by appellant accused is partly allowed. The impugned judgment and order dated 31.8.2000 passed by learned Special Judge, Court No. 13, Ahmedabad City in Special Case No. 11 of 1994 is modified to the extent that instead of undergoing rigorous imprisonment for two years for the offence under section 7 and undergoing rigorous imprisonment for four years for the offence under section 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, the appellant accused shall undergo the sentence of rigorous imprisonment for one year. Rest of the impugned judgment is not disturbed. Appellant accused - Manilal Kuberdas Thakkar is ordered to surrender to custody within a period of twelve 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.