Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 631 (GUJ)

STATE OF GUJARAT v. MAHENDRABHAI JIVRAJBHAI MEHTA

2018-04-19

G.R.UDHWANI

body2018
JUDGMENT AND ORDER : G.R.Udhwani, J. Judgment and order dated 31.7.2010 rendered by learned Special Judge (ACB) and Additional District and Sessions Judge, Porbandar, in Special Case (ACB) No. 2 of 2006 recording acquittal for the respondent for the offences punishable under Sections 7, 13(1) (3), 13(2) of the Prevention of Corruption Act, 1988, (for short "the Act") has been assailed in this appeal under Section 378(2), (3) of the Code of Criminal Procedure (for short "Cr.P.C."). 2. The record would reveal the fact that the respondent - Mahendrabhai Jivrajbhai Mehta was discharging his duties as Gazetted Officer i.e. Taluka Development Officer, Ranavav, District Porbandar on 16.10.2004 i.e. date of incident in question. The complainant was Talati-cum-Mantri of Una Taluka, District Junagadh. He was under suspension in connection with some other case on the date of the incident. 2.1 The complainant was pursuing the grievance regarding non-release of increments in his salary for the period between 1990 and 1993 while he was discharging his duties as Talati-cum-Mantri with Aniyani and Bhod Group Gram Panchayat, Porbandar District. For the release of the said increments, he contacted the respondent-accused, who, initially told him that since he was nearing superannuation, he would not be able to do his work, and when the complainant persisted and requested, he agreed to do the work for remuneration of Rs.5,000/- which was scaled down to Rs.3,000/- upon negotiation. The complainant did not want to pay the illegal gratification and therefore approached the Anti Corruption Bureau complaining the demand of illegal gratification by the accused respondent. It is the prosecution case that, on revelation of the said incriminating facts by the complainant, necessary procedure was followed by explaining the mode and method of raid, summoning of two panchas, demonstrating to the complainant and the panchas the method and mode of the raid, collection of the currency notes from the complainant, noting down their serial numbers in the panchnama, smearing the currency notes with phenolphthalein powder etc., and then proceeding to conduct the raid in the office of the accused. 2.2 It is the case of the complainant that the above-stated initial demand of illegal gratification was made by the respondent at Kutiyana Taluka Panchayat Office. It is the prosecution case that the raid was carried out at the residence of the respondent where the deal was sought to be struck, on 16.10.2004. 2.2 It is the case of the complainant that the above-stated initial demand of illegal gratification was made by the respondent at Kutiyana Taluka Panchayat Office. It is the prosecution case that the raid was carried out at the residence of the respondent where the deal was sought to be struck, on 16.10.2004. That the complainant and the panch witness No.1 entered into the house of the accused where the complainant repeated his request for release of the increments. Initially the accused told him that he would not be able to do his work as he was nearing superannuation and subsequently on the complainant persisting with the request, he agreed to do the said official work on the condition of payment of money settled earlier. It is the prosecution case that the respondent told the complainant that he may try to do the work, and if he is unable to do the work, he would return the money. Thereupon the complainant made payment of Rs.3,000/- and then the respondent offered a glass of water to the complainant, and to fetch the water for him, he went inside, and before that he made a gesture of putting the money in his pocket but did not actually put it and went to fetch the water for the complainant. After drinking the glass of water, the complainant with an excuse that he was required to gargle, came out of the house of the respondent. Raiding party received the signal from the complainant and panch witness No.2 and other members of the raiding party arrived at the scene of offence. Necessary procedure of testing the hands of all concerned including the complainant and the respondent was carried out by dipping their hands in separate bowls of clean water, one after the other. The water turned pink as that would be the reaction if phenolphthalein powder is added to the water; when both the hands of the complainant one by one were dipped into the water, as also that of the respondent in separate water bowls. After that, accused was asked about the location of money and he stated that they were in the suitcase. It may be stated here that it is the case of the prosecution that when the raiding party entered into the house of the complainant he was found doing something with the suitcase. After that, accused was asked about the location of money and he stated that they were in the suitcase. It may be stated here that it is the case of the prosecution that when the raiding party entered into the house of the complainant he was found doing something with the suitcase. The suitcase was checked wherefrom, apart from smeared currency notes, the details of which were noted in the panchnama, the currency note of Rs.100/- and other currency notes and other articles as well were found and noted in the panchnama and the incriminating currency notes were seized while other articles and currency notes were returned to the respondent. 2.3 Phenolphthalein test was also carried out on the currency notes by sprinkling few drops of water which turned pink confirming the presence of phenolphthalein powder on the currency notes. Thereupon the respondent was arrested and complaint was registered around 3:00 p.m. on 17.10.2004. 2.4 The case was submitted to the court and the charge was framed at Exh.10 against the respondent, and he having opted for trial rather than pleading guilty to the charge, was tried and acquitted. 3. Learned APP has drawn attention of this court to the testimony of P.W.1 complainant, P.W. 2-panch witness, the panchnama recording description of the tainted currency notes, the evidence of trapping officer, and submitted that the initial demand, the demand during the raid, acceptance of illegal gratification by the respondent and its recovery was proved through the said evidence, beyond reasonable doubt with corroborative scientific evidence above-referred and there was no justification for the trial court to discard such cogent evidence on the insignificant discrepancies or immaterial contradictions, omissions or improvements. It was contended that the findings of the trial court that the evidence regarding demand of illegal gratification in presence of panch witness no.1, by respondent was inadequate, is erroneous and perverse to the evidence on record. It was contended that most crucial evidence was the demand, acceptance and recovery of illegal gratification by the respondent, and apart from the fact that the learned trial Judge was not right in recording the finding about insufficiency of the evidence as regards demand, he fell in error by holding that only recovery was established. It was contended that most crucial evidence was the demand, acceptance and recovery of illegal gratification by the respondent, and apart from the fact that the learned trial Judge was not right in recording the finding about insufficiency of the evidence as regards demand, he fell in error by holding that only recovery was established. It was contended that the authorities cited with the court below were not applicable to the facts of the present case inasmuch as, that case law reiterated the settled legal position that a mere recovery would not bring the case within the four corners of Sections 7 and 13 of the Act. It was contended that the respondent was unable to dispute recording of the occurrences in the panchnama and the trial court also could not find any reason to discard the said aspect but erroneously relied upon insignificant fact like exact time and person writing the panchnama, on the basis of the testimony of panch witness No.1, who, unfortunately could not make accurate statement about the timing but did state that the recording of the occurrence was done in the panchnama. 3.1 Learned APP also contended that the statement of the P.W. No. 1 that he did not see the suitcase when he entered the house of the respondent and that the rubber tied to the currency notes was not recovered when the suitcase was opened by P.W.1 and that time duration of the stay of the raiding party after completion of the procedure were all immaterial so-called discrepancies which could not have overridden the material evidence regarding demand, acceptance and recovery of tainted currency notes. Similarly learned APP would contend that the facts like what happened before the signal was given to P.W.2 was not relevant for ascertaining the acceptance of illegal gratification. 4. Learned counsel for the respondent Mr. Prachchhak invited attention of this court to the testimony of P.W.1 complainant and would contend that the prosecution has failed to prove initial demand. Learned counsel would also contend that the complainant in no uncertain terms admitted in the cross-examination that no initial demand was made by the respondent, and on the contrary the respondent refused thrice, to do the work as he was nearing superannuation and thus, when he was not interested in the work, the demand by him was out of question. Learned counsel would also contend that the complainant in no uncertain terms admitted in the cross-examination that no initial demand was made by the respondent, and on the contrary the respondent refused thrice, to do the work as he was nearing superannuation and thus, when he was not interested in the work, the demand by him was out of question. It was contended that the complainant was not a reliable witness and that his conduct is not above board as he made contradictory statements in examination-in-chief and cross-examination when he stated about his meeting with the trapping officer before 16.9.2004. Learned counsel would contend that in the examination-in chief he stated that he had contacted the trapping officer before 16.9.2004, whereas, in the cross-examination he admitted that he never contacted him before lodging the complaint on 16.9.2004. Learned counsel also criticised the conduct of the informant. He would contend that number of departmental inquiries were initiated against the complainant and in one of such inquiry the respondent was discharging his duties as presenting officer, and when confronted with such facts, he went against the record, and not only denied the said fact but ventured to say that it was not the inquiry against him but against one Mr. Sharma. Learned counsel would contend that the witness who has no respect for truth cannot be relied upon. He would also contend that the complainant is also facing criminal proceedings. 4.1 Learned counsel has invited attention of this court to the fact that though raid was carried out on 16.10.2004, the FIR was registered only on 17.10.2004. The learned counsel also submitted that the complainant has stated that when he went at about 7:00 a.m. on 16.9.2004 in the office of the trapping officer, he was present, whereas the trapping officer in his evidence reveals that he was not present at that point of time but was called by his staff members. The learned counsel would submit that thus a doubt exists about the meeting of the complainant with the trapping officer for the purpose. 4.2 Inviting attention of this court to the statement of the complainant that he had not made any complaint for initial demand, before the FIR, it was contended that there was no initial demand by the respondent. The learned counsel would submit that thus a doubt exists about the meeting of the complainant with the trapping officer for the purpose. 4.2 Inviting attention of this court to the statement of the complainant that he had not made any complaint for initial demand, before the FIR, it was contended that there was no initial demand by the respondent. Further inviting attention of this court to the testimony of P.W.1 where he states that when the complainant inquired about the arrival of service book at Ranavav Taluka Panchayat Office, no demand was made by him for illegal gratification, it was contended that initial demand is not proved. It was contended that the complainant knew about the pendency of the appeal in connection with release of increments ordered by the civil court in favour of the complainant, and thus, during the pendency of the appeal there was no possibility of release of the increments by respondent and the whole story was got up and concocted against the respondent. The learned counsel would contend that there were inconsistencies about demand, acceptance and recovery in the evidence and therefore the case was not proved against the respondent beyond reasonable doubt and there is nothing on record warranting interference with the order of acquittal recorded by the court below. 5. Having perused the record with the assistance of the learned APP and the learned counsel for the respondent and having considered the rival submissions, this court proceeds to appreciate the case. 5.1 Before appreciating the evidence on record, it would be appropriate to note that the fact that between 1979 and 1997, the complainant was employed as Talati-cum-Mantri with Aniyani and Bhod Villages of Ranavav Taluka between 1979 and 1997 is not disputed. It is not disputed that on the date of incident i.e. 16.10.2004 the respondent was Taluka Development Officer of Ranavav Taluka and was authorised by law to fix the salaries of the employees of Aniyani and Bhod Villages of Ranavav Taluka amongst other locations. It also cannot be disputed that for redressal of grievance about non-release of increments and for compliance with the judicial order directing to release the increments, the respondent was the competent officer to be approached. 5.2 The complainant had pursued the matter of increments with the application Exh.80 p.135 on 16.01.2004. It also cannot be disputed that for redressal of grievance about non-release of increments and for compliance with the judicial order directing to release the increments, the respondent was the competent officer to be approached. 5.2 The complainant had pursued the matter of increments with the application Exh.80 p.135 on 16.01.2004. The complainant P.W.1 has come out with the case in his testimony that the respondent had met him at Kutiyana Taluka Panchayat Office and informed him that he is ready to release the increments and that he demanded a sum of Rs.5,000/- initially for the purpose, which was settled by negotiation to Rs.3,000/-. It is not the case of the complainant that said initial demand was made by respondent at Ranavav and that fact was confirmed by the complainant in his crossexamination. When it was not the case of the complainant that illegal gratification was demanded at Ranavav, it was obvious for the witness to accept that demand was not made at Ranavav. The statement made by the complainant on oath that such initial demand was made by the respondent at Kutiyana was not successfully challenged by the respondent in the cross-examination and thus the fact that demand was made by respondent at Kutiyana stands established beyond reasonable doubt. 5.3 The complainant has further testified that his complaint was recorded on 16.10.2004 by Police Inspector of Anti Corruption Bureau. It is, however, borne out from the testimony of the trapping officer of Anti Corruption Bureau that no complaint was recorded by him on 16.10.2004 but it was recorded on 17.10.2004. Harping upon the said fact the doubt is sought to be raised about recording of FIR itself. It is required to be appreciated that the provisions of Sections 7 and 13 punish the act of demand and acceptance of illegal gratification. Mere demand without acceptance is not a cognizable offence. Therefore it is possible that when the complainant approached PSI of Anti Corruption Bureau, he might have taken down his complaint in writing, without taking it on record in absence of the disclosure of the cognizable offence. The trapping officer then appears to have proceeded to carry out the raid in the house of the respondent to confirm whether he commits a cognizable offence or not. The trapping officer then appears to have proceeded to carry out the raid in the house of the respondent to confirm whether he commits a cognizable offence or not. During the raid, the respondent was found to have committed cognizable offence, and by the time the procedure for raid was completed, it was about 8:00 p.m. It thus appears that the complaint was delayed or was postponed to the next day and was recorded at about 3:00 p.m. That apart, the overall evidence of the complainant, the two panch witnesses and the trapping officer and other witnesses accompanying him fortify the fact that the complainant had approached the Anti Corruption Bureau on 16.10.2004 and entire pre-raid panchnama and panchnama during raid was noted on 16.10.2004. Therefore the mere ground that actual recording of the complaint was delayed to 3:00 p.m. of the next day, in absence of the demonstrable prejudice to the respondent, cannot form the basis for discarding the prosecution case. 5.4 The P.W.1, P.W.2, P.W.3 and P.W.4 have explained, without any discrepancies or material omissions or contradictions, the manner and method of noting the happenings at ACB Police Station, in the panchnama. No dispute has been raised on such facts, emerging from the evidence of the witnesses above-referred. 5.5 No dispute is also raised about the raid in the house of the respondent. 5.6 P.W.1 and P.W.2 have testified that they entered into the house of respondent and P.W.1 reminded the respondent that, as discussed earlier, his increments may be released; upon which the respondent told him that he is nearing superannuation, he may approach some other person for the purpose. Complainant persisted with the request and stated that it would be better that he does the work; upon which the accused stated that as discussed earlier if the complainant has brought the money, he would do the work and if he is not in a position to do it, he would return the money. Thereupon the complainant drew the money from his pocket and gave it to the respondent. At that point of time the respondent went to fetch the water. The complainant then came out with the glass of water and signalled to the raiding party for raid. Thereupon the complainant drew the money from his pocket and gave it to the respondent. At that point of time the respondent went to fetch the water. The complainant then came out with the glass of water and signalled to the raiding party for raid. He has stated that, upon his signal, Police Inspector of ACB and his staff rushed to the scene of offence, and the complainant went out, and that rest of the procedure was done by the ACB. The complainant has produced in his testimony the complaint at Exh.16, application dated 17.10.2003 pursuing the release of increments addressed to Kutiyana Taluka Development Officer Exh.17 and the application dated 16.01.2004 addressed to Taluka Development Officer of Ranavav Taluka for the similar purpose Exh.18. The complainant has also explained in his examination-in-chief that, after acceptance of the currency notes, the respondent went to fetch the water and therefore he did not know where the money was kept by respondent. 5.7 The evidence of P.W.2, P.W.3 and P.W.4 would show that the currency notes in question were described in the panchnama and they were smeared with phenolphthalein powder and were put in the pocket of the complainant. It is found from the evidence of P.W.3 and P.W.4 that when the right hand of the complainant was dipped in the bowl of water it turned pink evidencing the presence of phenolphthalein powder in the water. This phenolphthalein powder thus was sourced from the currency notes drawn by the complainant from his pocket, in order to give it to the respondent. The left pocket of the complainant caught pink stains when the water was sprinkled on that, evidencing the presence of phenolphthalein powder in his left pocket, which obviously was sourced from the currency notes on to his pocket. The evidence of P.W.3 and P.W.4 would further show that when both the hands of respondent were dipped in the water contained in the separate bowl, one after the other, it turned pink on both the occasions, confirming the presence of phenolphthalein powder which obviously was sourced to the tainted currency notes. The evidence of P.W.3 and P.W.4 would further show that when both the hands of respondent were dipped in the water contained in the separate bowl, one after the other, it turned pink on both the occasions, confirming the presence of phenolphthalein powder which obviously was sourced to the tainted currency notes. Similarly sprinkling of few drops of water from the bowl on the currency notes in question also made the said notes turn pink evidencing the presence of phenolphthalein powder and the description of the notes tallied with the description recorded in the panchnama when such notes were delivered by the complainant to the trapping officer in the police station before raid. The above evidence proved beyond reasonable doubt the fact that the currency notes were delivered by the complainant to the trapping officer before raid, they were smeared with phenolphthalein powder and were placed in the left pocket of the complainant and the demand was reiterated by the respondent with a promise to do the work and with a further promise to return the money in absence of his doing the work; and the acceptance of tainted money by the respondent. 5.8 So far as the recovery is concerned, the explanation given by the complainant about the location of the money after acceptance, is crucial. He has in no uncertain terms stated that, after accepting the tainted money, the respondent made a gesture initially to put them into his pocket and then without putting the money in his pocket, the respondent went inside and fetched the water for the complainant and thus the complainant did not know where the money was kept by the respondent. Once a cogent evidence, evidencing demand, acceptance and recovery forms the record, the placement of money by the accused at subsequent stage at any other place is hardly material. The evidence shows that when the members of the raiding party entered into the house of the respondent, he was noticed besides the suitcase, and when asked about the location of money, the respondent point out that they were in the suitcase and were actually recovered therefrom. The evidence shows that when the members of the raiding party entered into the house of the respondent, he was noticed besides the suitcase, and when asked about the location of money, the respondent point out that they were in the suitcase and were actually recovered therefrom. 5.9 The trial court appears to be unmindful of the fact that for holding a person liable under Sections 7 of the Act, evidence about demand, acceptance and recovery would be most crucial, and unless by cogent evidence or circumstances such evidence is discredited, it is entitled to its due weightage. The trial court seems to have been swayed away by immaterial discrepancies detailed above and reiterated by the learned counsel for the respondent, for acquitting the respondent. 5.10 So far as motive is concerned, as indicated above, undisputedly the respondent was the competent officer to look into the grievance raised by the complainant, above-stated. The evidence would show that the service book of the complainant was lying with Una Taluka Panchayat which was requisitioned by the respondent, and after looking into the service book of the complainant, the respondent had informed the complainant that he was ready to release the increments in his favour, for illegal gratification. 5.11 The complainant cannot be discredited as suggested by the learned counsel for the respondent. The facts for discrediting him suggested by the learned counsel are not relevant for discrediting him. He has stood by his version in the cross-examination and has confirmed all the material facts stated by him in the complaint Exh.16. There is no cogent reason to discredit him. 5.12 The fact as to whether the trapping officer was called after arrival of the complainant at ACB Police Station or that he was present before the said arrival is insignificant and the prosecution version cannot be doubted on such insignificant aspect. 5.13 It is not the case of the complainant that, before the complaint, he had made any grievance about the demand made by the respondent and therefore the statement made by him in his testimony that he did not make such complaint, is of no consequence. 5.13 It is not the case of the complainant that, before the complaint, he had made any grievance about the demand made by the respondent and therefore the statement made by him in his testimony that he did not make such complaint, is of no consequence. 5.14 May be that the appeal questioning the civil court direction to release the increments in favour of the complainant was pending to the knowledge of the complainant, that fact by itself would not lead to the conclusion that the complainant did not approach the respondent for redressal of his grievance above-stated and that the respondent did not make the demand of illegal gratification. It is not the case of the respondent that the direction of the civil court were stayed by the appellate court, and thus it is possible that in absence of the stay, the respondent might be willing to consider the case of the complainant, for illegal gratification. 5.15 True that the respondent told the complainant that since he was nearing superannuation, he may consult some other person for the work in question but it is not possible to read the said statement in isolation in ignorance of the fact that later on he agreed to do the work for illegal gratification with a promise that if he is not able to accomplish, the money would be refunded. 6. Having regard to the above-referred findings, in the opinion of this court, the trial court was not justified in holding that the evidence of demand was deficient. The findings in this regard, according to this court, is perverse. It was also not justified in holding that only recovery was proved. The trial court also fell in error in relying upon the insignificant aspect like the timings of the noting in the panchnama, non-recovery of the rubber tied to the currency notes in question, not doing the act of drawing of currency notes out of suitcase by the trapping officer but by his staff. The trial court was also not justified in discrediting the panch witness no.1 who has elaborately stated how the incident occurred. The trial court was also not justified in holding that it was on the basis of complaint of the complainant only, without any incriminating circumstances, the money was recovered only from the suitcase in presence of panchas. 7. The trial court was also not justified in discrediting the panch witness no.1 who has elaborately stated how the incident occurred. The trial court was also not justified in holding that it was on the basis of complaint of the complainant only, without any incriminating circumstances, the money was recovered only from the suitcase in presence of panchas. 7. In the light of the above discussion, it is not possible to sustain the impugned judgment and order. There is cogent and considerable evidence establishing demand, acceptance and recovery of the tainted currency notes from the respondent who could not account for the same during his statement recorded under Section 313 of the Cr.P.C. However in absence of the evidence for the offence punishable under Section 13(2) of the Act, no case is made out against the respondent and the order of acquittal qua the said provision is upheld. 8. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order is quashed and set aside. The respondent is found guilty for the offence punishable under Section 7 of the Prevention of Corruption Act. Post this matter tomorrow for hearing of sentence. FURTHER ORDER DATED 19.4.2018 The judgment finding the respondent Mahendrabhai Jivrajbhai Mehta guilty for the offence punishable under Section 7 of the Prevention of Corruption Act was rendered on 18.4.2018 and at the request of the learned counsel representing the respondent, the order for sentence was postponed to 19.4.2018. The learned counsel for the respondent has filed an affidavit of the respondent urging for the minimum prescribed sentence mainly on the ground of the advanced age of the respondent i.e. 72 years and on the medical ground of himself and his wife. It appears that on 01.6.2017 he had some complaints relating to right lumber and penumbilical region and was diagnosed for choleritirasis, fatty liver, bilrenal connections etc. and was treated for the same. He was also diagnosed as suffering from hydronephrosis, hydroureter, left renal calculus, borderline prostatomegly, echogenic sludge in GB and fatty liver on 11.5.2017. However no documents are produced evidencing his current medical condition. The offence under Section 7 of the Prevention of Corruption Act is one of the serious most offences. Judicial note of the fact can be taken that the public servants are paid better than the private servants and also enjoy better security of job as compared to private services. However no documents are produced evidencing his current medical condition. The offence under Section 7 of the Prevention of Corruption Act is one of the serious most offences. Judicial note of the fact can be taken that the public servants are paid better than the private servants and also enjoy better security of job as compared to private services. They have benefit of legal safeguards as well. It is nothing but a sheer greed for money that leads some of the public servants to the offence under Section 7 of the Act. Expecting the illegal gratification over and above the legal remuneration payable to such greedy public servants demonstrate their unfaithfulness and disloyalty to the public institutions they are expected to serve. The menace of corruption has gone so deep in the society that every single individual has become conscious of the fact that for getting even the lawful work done from the public servant, he would be required to pay. This has brought down the image of upright, straight forward honest and loyal public servants, in the eyes of the society. This not only the society is suffering, but also such honest officers or servants. The people, often do not make complaints when illegal gratification is demanded only to safeguard their individual interest and to see that, for refusal of payment, their work is not installed by the public servant. They are caught only after one out of thousands venture to complaint against them, and before that, the greedy public servants who indulge into the offence under Section 7 of the Act, might amass huge wealth. Therefore it is not the question of illegal gratification of Rs.3,000/- but the question is wider. The minimum prescribed sentence under Section 7 of the Act was six months at the relevant point of time which, according to this court, was inadequate and had no deterrent effect. The provision was thereafter amended by Act 1 of 2014 substituting three years for six months. This court is conscious of the fact that the amended provisions cannot be applied to the facts of this case which arose pre amendment, for awarding minimum sentence, but, having regard to the fact that the unamended provision also provided for maximum sentence of five years, in the opinion of this court, the imprisonment for three years in the facts and circumstances of the case would be the appropriate sentence. Therefore the respondent is ordered to suffer simple imprisonment for three years with fine of Rs.5,000/-, and in default, he must suffer a simple imprisonment for one month. At this stage, learned counsel for the respondent requested to keep this order in abeyance for a period of 12 weeks to enable the respondent to explore further legal remedy. Request is accepted. The order shall remain in abeyance for 12 weeks.