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2018 DIGILAW 666 (GUJ)

STATE OF GUJARAT v. CHHOTALAL CHATURBHAI NAYI

2018-05-01

G.R.UDHWANI

body2018
JUDGMENT/ORDER : G.R. Udhwani, J. Judgment and order dated 16/04/2004 passed by the learned Special Judge, Fast Track Court, Patan in Special ACB Case No.13 of 2002 recording acquittal for the respondent for the offences punishable under Sections 7, 12, 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short the Act) is assailed in this appeal. 2. The complainant came out with the case in his complaint that he was a jeep operator plying passengers from one place to other for fare. Since two months, before the date of the complaint, accused-Chhotulal met him near Patan busstand laying fetters to ply the jeep in absence of the installment of Rs.300/- a month. He told him that in absence of the payment, case would be registered against him. After unsuccessful negotiation, he paid Rs.300/- to him. He also pleaded in the FIR that on 25/10/1999, accused-Chhotubhai met him again and reiterated the demand of Rs.300/- towards installment. The complainant had Rs.200/- only which he paid and promised to pay the remaining Rs.100/- later. The accused allegedly told him that remainder may be paid to him on 03/11/1999 between 9:00 a.m. and 2:00 p.m. near Patan Bus Stand. 3. The complainant has narrated similar such demands by other Constable, Vishnubhai two months since the date of FIR. He told him that in absence of installment of Rs.350/- out of which he would pay Rs.100/- to one Goswami, a Police Official, he would not permit him to ply the jeep and the jeep would be seized. Upon unsuccessful negotiation, he complied with the demand and paid Rs.350/- to Vishnubhai. The complainant, thereafter, states that said Goswami and Vishnubhai met him on the date of the complaint in the morning and told him not to ply his vehicle in absence of payment of Rs.350/-. The complainant was asked to pay Rs.350/- between 9:00 a.m. and 2:00 p.m., by 03/11/1999. As he was not inclined to pay anymore, the complaint was lodged. 4. Upon lodgment of the above complaint, necessary procedure was followed; Panchas were requisitioned, in whose presence demonstration Panchnama was recorded wherein the procedure for proposed trap was explained to the Panchas as well as the complainant. Panch Witness No. 1 was asked to accompany the complainant to approach the accused and observe the happenings there. 4. Upon lodgment of the above complaint, necessary procedure was followed; Panchas were requisitioned, in whose presence demonstration Panchnama was recorded wherein the procedure for proposed trap was explained to the Panchas as well as the complainant. Panch Witness No. 1 was asked to accompany the complainant to approach the accused and observe the happenings there. The complainant was advised to offer illegal gratification to the respondent on demand. Currency note in the denomination of Rs.100/- was collected from the complainant, smeared with anthracene powder and was placed in the pocket of the complainant. 5. Accordingly, The Trap Was Arranged And The Panch No.1 (PW 2) accompanied the complainant. The complainant, however, turned hostile by coming out with entirely a new case in his testimony, pleading that after reaching the respondent, who was sitting beside the bus-stop at the scene of the offence, he offered a cup of tea to the accused while holding the currency not jointly with the accused. He, then, gave the signal and the trap party arrived. The complainant has however deposed that one person from amongst the trap party (presumable panch witness No.1) had accompanied him. 6. Pw 2 (Panch No.1) In His Testimony Has Come out with the case inter-alia that when he and the complainant reached the scene of offence, the accused was found sitting opposite to bus-stand on the road side of the closed shop. He was identified by the complainant. PW 2 has testified that upon meeting the respondent, he asked the accused to accept the amount towards installment as agreed earlier and should have mercy on him as after paying installment, no income is left with him; whereupon the accused advised him to employ a good driver to save the income. Thereafter, as deposed by PW 2, the complainant took out one currency note of the denomination of Rs.100/- from his left pocket of the shirt and extended to the accused who accepted the same by his right hand and; thereupon the signal was given by him; upon which ACB trap party arrived and PSI, ACB introduced himself to the respondent and told him to hold on to the same position. 6.1 PW 2 (Panch No.1) has further deposed that as it was public place and the vehicles were plying, a private auto-rickshaw was hired and the accused, complainant and raiding members went to the government guest house. 6.1 PW 2 (Panch No.1) has further deposed that as it was public place and the vehicles were plying, a private auto-rickshaw was hired and the accused, complainant and raiding members went to the government guest house. The respondent was instructed to close his finger and hold on to the currency note. After they reached the guest house, Panch No.2 (PW 3) arrived who carried out the search on the person of the accused and thereafter one Samratkhan, carried out the ultraviolet lamp procedure under the instructions of ACB Patel Saheb. Panch No.2 (PW 3) thereafter collected the currency note from the hand of the respondent. The currency note was shown with and without the ultraviolet lamp. No stains could be found on it and thereafter when the same procedure was carried out after shutting down the doors and windows of the room, the white stains/spots could be noticed on the right hand, as also on the currency note recovered from the accused. 7. Pw 3 (Panch No.2) inter-alia testifies, almost on the similar lines as PW 2 (Panch No.1) for the occurrences post signal, from the complainant, until the recovery of the currency note from right hand of the respondent, as also regarding testing of the currency note with the help of ultraviolet lamp. 8. In the cross-examination, Pw 2 (Panch No.1) admits that he was required not to touch the currency note until it's acceptance by the accused. He has reiterated that the closed shop at the scene of the offence was on the right side of the bus-stand and that fact has been recorded at his instance in the Panchnama and that he has not instructed to record in the Panchnama that the shop was situated on the left side of the bus-stand. He has further stated that the Panchnama was being written by the Constable on his own and that he as well as Panch No.2 (PW 3) has no experience of writing the Panchnama and that they have not dictated the Panchnama. 8.1 PW 2 (Panch No.1) has disputed the omission in the Panchnama that "please have mercy on me by accepting the money towards installment as agreed earlier". 8.1 PW 2 (Panch No.1) has disputed the omission in the Panchnama that "please have mercy on me by accepting the money towards installment as agreed earlier". He has also disputed the omission that, "Chhotubhai boarded the auto-rickshaw with them in the same condition, with the closed finger" and admits that the words "with closed finger" were omitted by him from the Panchnama and admitted that he had stated that he boarded the auto-rickshaw with both hands open. He has reiterated that the accused was instructed to fold his fingers. 9. Pw 4 Is The Trapping Officer Who Has Inter-alia clarified that the Panchas did not state the exact words that "have mercy by accepting the money towards installment as agreed earlier" in the Panchnama. 10. Learned APP has assailed the impugned judgment and order on the ground that all the occurrence of facts right from the lodgment of the complaint until recovery of tainted currency note, as also demand and acceptance were established by cogent evidence. It was contended that the trial Court was unnecessarily swayed away by the factum of complainant turning hostile and on few minor contradictions and omissions. He would contend that findings rendered by the trial Court that the demand was not proved was perverse to the evidence on record; inasmuch as, not only the oral testimony established the said fact; but the contents of the Panchnama also revealed that the demand was made by the accused and the installment was accepted by him towards illegal gratification. 10.1 Learned APP would submit that may be that Panchas did not use the exact phrase as in their testimony; in the Panchnama while explaining or describing the gist of the demand; the gist of the demand has been described in the Panchnama in the words different than those used by the Panch No.2 (PW 3) in his testimony. Learned APP pointed out that even the statement made by the trapping officer in the cross-examination that Panch No.1 did not use the exact words to describe the demand was misinterpreted as the admission by trapping officer as if the said fact itself was omitted from the contents of the Panchnama. Learned APP pointed out that even the statement made by the trapping officer in the cross-examination that Panch No.1 did not use the exact words to describe the demand was misinterpreted as the admission by trapping officer as if the said fact itself was omitted from the contents of the Panchnama. 10.2 Learned APP would also contend that the omissions other than those touching the crucial aspects like demand, acceptance and recovery of the tainted currency note corroborated by scientific evidence were minor contradictions and omissions and unfortunately, the trial Court emphasized on such minor contradictions rather than the other cogent evidence. 10.3 Learned APP also contended that evidence of hostile complainant was unnecessarily emphasized by the trial Court to discredit the creditworthy evidence of PW 2 (Panch No.1). He would contend that as per the settled legal position, even in absence of evidence of the complainant, the case can be established on the other cogent reliable and trustworthy evidence. 10.4 Learned APP would contend that except the minor contradictions and omissions, the defence was unable to point out any infirmity in the testimony of the witnesses, more particularly, PW 2 (Panch No.1) who was present with the complainant at the time of demand, acceptance and recovery of the tainted currency note. He, therefore, urged to interfere with the impugned judgment and order. 11. Supporting the impugned judgment and order of acquittal, learned Counsel for the respondent would contend that even if two views were possible, this Court may not substitute its view for the possible view expressed by the Court below. 11.1 In his submission, the Panchnama was a concocted document. To buttress the said submission, learned Counsel relied upon the statement of PW 2 (Panch No.1) that neither he nor PW 3 (Panch No.2) dictated the Panchnama to the Police Constable and the Police Constable was writing the Panchnama of his own. 11.2 Learned Counsel would also contend that clearly PW 2 admitted the crucial omission regarding the demand of money by accused, from the Panchnama. He would contend that in absence of removal of the ambiguity, if any, in this regard, the evidence tendered by PW 2 (Panch No.1) admitting the omission, is required to be accepted. Learned Counsel contended that even on reading of the Panchnama, no demand is proved. He would contend that in absence of removal of the ambiguity, if any, in this regard, the evidence tendered by PW 2 (Panch No.1) admitting the omission, is required to be accepted. Learned Counsel contended that even on reading of the Panchnama, no demand is proved. 11.3 It was contended that against the advise given to the complainant, by the trap officer, that the money should be given by him to the respondent only after demand is made, the complainant allegedly voluntarily offered the same, without demand by the respondent. It was contended that under such circumstances, nothing except recovery can be said to have been proved and in absence of the proof of other necessary ingredients i.e. demand and acceptance, the case was not proved beyond reasonable doubt and the Court below was justified in acquitting the respondent. 12. This Court has given thoughtful consideration to the facts emerging from the record of the case, as also the rival submissions. 12.1 So far as the contents of the Panchnama (Exh.16) is concerned, this Court is unable to accept the submission made by the learned Counsel for the respondent that the contents of the Panchnama are concocted. True that, PW 2 (Panch No.1) has made statement in the cross-examination that Panchnama was not dictated by him or by Panch No.2 (PW 3). The testimony of the witnesses however cannot be considered by selecting one or two statements in isolation. Immediately preceding the said statement, in the cross-examination itself, when the witness was confronted with certain facts, he has reiterated that he had dictated those facts to be taken in Panchnama. He has also admitted certain other facts as the omissions, from the Panchnama. While doing so, at several places, in the cross-examination, the witness has reiterated that he dictated or omitted to dictate certain aspects, thus indicating that the witness was present and that the Panchnama was being written in his presence. Respondent has not been able to falsify the witness, on the contents of the Panchnama. 12.2 It appears that the occurrences or happenings were being recorded by the Police Constable in the Panchnama in presence of Panchas, as also to the knowledge of Panchas and none of the Panch Witnesses have disowned the contents of the Panchnama. Respondent has not been able to falsify the witness, on the contents of the Panchnama. 12.2 It appears that the occurrences or happenings were being recorded by the Police Constable in the Panchnama in presence of Panchas, as also to the knowledge of Panchas and none of the Panch Witnesses have disowned the contents of the Panchnama. It appears that the Panchas have subscribed to its contents and have signed the Panchnama while accepting the truthfulness of its contents. 12.3 The moot question is whether the crucial part of occurrence i.e. demand by the respondent was omitted from the Panchnama. If the words in relation to demand as quoted herein above, coming from the mouth of PW 2 (Panch No.1) are proved to be an omission, certainly, it can be said that the demand is not proved. To ascertain whether it was omission or not, the close look at the testimony as well as the contents of the Panchnama is necessary. 12.4 The trapping Officer PW 4 was confronted with such omission and his explanation was that the statement in the exact above quoted words are not mentioned in the Panchnama. This guarded statement ought to have invited the attention of the trial Court to the contents of the Panchnama. PW 4 does not say that there is omission as regards the demand of money by accused. What he has stated is that the exact words used in relation to demand by PW 2 (Panch No.1) in his testimony have not been used in Panchnama. The bare look at the Panchnama (Exh.16) indicates that following words, if translated into English, were used : "The complainant told the Policeman that Sir, my entire earning gets spent into the payment of installment to the Police, nothing is saved, have mercy on me. Thereupon, Chhotubhai Policeman said "employ a good driver, money would be saved". The bare look at the Panchnama (Exh.16) indicates that following words, if translated into English, were used : "The complainant told the Policeman that Sir, my entire earning gets spent into the payment of installment to the Police, nothing is saved, have mercy on me. Thereupon, Chhotubhai Policeman said "employ a good driver, money would be saved". Thereupon the complainant pulled out one currency note of Rs.100/- denomination from smeared currency notes and extended to Chhotubhai and told him "take it, this is my installment of Rs.100/- for plying the vehicle, as decided earlier, I have brought, please accept it and on this Chhotubhai stated that "O.K. give me" and then he accepted the same and held it in his right hand....." 12.5 It can be seen that, may be, PW 2 (Panch No.1) did not use the exact phrase as has been used by him in his testimony in relation to the demand made by the respondent; but he has very clearly mentioned in the Panchnama that in continuation of the earlier agreement, offer was made to respondent, who readily accepted the same in approval of the earlier demand, without raising any objection or demur. Even, the advise to employ an efficient driver so as to make savings out of the income of plying vehicle has been referred to in the Panchnama, as testified by PW 2 (Panch No.1). Thus, in the opinion of this Court, the trial Court, by merely relying upon the so-called nonexistent omission, fell into a serious error in ignoring the fact that the demand and acceptance of tainted money by accused was clearly mentioned in the Panchnama. 12.6 The Court below ought not to have swayed away by the fact that exact words as employed by the PW 2 (Panch No.1) in his testimony, in relation to demand, were not used by him in the Panchnama. It ought to have borne in mind that no person on the earth can have videographic memory and the witnesses are not expected to use exact phrase used in the document, also in his testimony. Suffice it would be for him to justify the contents of a document by describing its gist, may be in the words different than those used in the document, in the testimony. Suffice it would be for him to justify the contents of a document by describing its gist, may be in the words different than those used in the document, in the testimony. It must be borne in mind that witness while in the box is not to be tested for his memory; but he is tested for the credibility of his evidence. It is thus too much to expect from a witness to use the same words in the testimony, as in the document. Moreover, the witness was not confronted with the above quoted contents of the Panchnama and thus it was not the case of the respondent that the said words were not used by PW 2 (Panch No.1) while dictating the Panchnama. Thus, in the opinion of this Court, there was considerable evidence to justify the fact that the demand was made by the respondent, he also accepted the illegal gratification and the same was recovered from him during the trap. 12.7 The ambiguity was introduced by the defence by confronting PW 2 (Panch No.1) with the exact words in relation to the demand, as detailed herein above. This ambiguity could have been cleared by the prosecutor either by confronting PW 2 (Panch No.1) with the contents of the document, in the reexamination or by the Court itself by reading the contents of the Panchnama quoted herein above. There is no rule that the ambiguity can be cleared only in the reexamination of the witness. If the document is admitted in evidence and the contents are loud and clear, the Court would be justified in reading the contents to meet with the ambiguity created in the cross-examination of a witness. Therefore, in the opinion of this Court, learned Counsel for the respondent is not right in contending that in absence of clearance of the ambiguity in reexamination of the witness, the benefit should go to the respondent. 12.8 It is also not possible to accept the submission of the learned Counsel for the respondent that offer was made voluntarily by the complainant. Be it noted that, PW 2 (Panch No.1) quotes complainant quoting the previous deal between him and the respondent. The demur of the respondent, as quoted by PW 2 (Panch No.1) shows that he did not dispute the fact that there was a deal between the complainant and himself, earlier. Be it noted that, PW 2 (Panch No.1) quotes complainant quoting the previous deal between him and the respondent. The demur of the respondent, as quoted by PW 2 (Panch No.1) shows that he did not dispute the fact that there was a deal between the complainant and himself, earlier. Not only that, in the approval of the said deal, the respondent proceeded to accept the money, without any objection. It is not always necessary that the exact positive words of demand may be used by the accused. It would be sufficient, if by cogently proved attending circumstances, the demand can be inferred. Therefore, merely because the respondent did not use the words demanding the money, it cannot be said that no demand was made by him. 12.9 Other contradictions or omissions like situation of the bus-stop near the scene of offence, etc., are not material and sufficient to brush aside other cogent and creditworthy evidence on record. Therefore, the trial Court was not justified in emphasizing on such insignificant contradictions and omissions. It ought to have borne in mind that when there was a cogent evidence supporting the material facts like demand, acceptance and recovery of the tainted money, no weightage could be given to such insignificant omissions and contradictions. 12.10 The trial Court also ought to have borne in mind that though the complainant had turned hostile, other cogent material evidence can form the basis for conviction. The trial Court must be cautious in dealing with the evidence of hostile witness, more particularly, when the evidence of the creditworthy witness forms the record of the case. If such evidence is creditworthy, there can be no reason to discard it only on the ground that complainant has turned hostile. The Court must appreciate the evidence as a whole and find out whether the prosecution story is creditworthy or gets corroboration from other reliable cogent evidence and then proceed to take a final decision. It is unhealthy way of appreciation of evidence to lay more emphasis on the evidence of hostile witness or on the evidence of witness who does not get corroboration from other evidence as compared to other creditworthy and cogent corroborated evidence. 12.11 In the light of the above discussion, the trial Court has totally misconstrued and misread the evidence on record. 12.11 In the light of the above discussion, the trial Court has totally misconstrued and misread the evidence on record. The findings that there was no demand is perverse to the evidence as pointed out in detail herein above. 13. In above view of the matter, the impugned judgment and order cannot be sustained insofar as it relates to acquittal of respondent for the offence punishable under Section 7 of the Act. Accordingly, the same is quashed and set aside. Respondent-accused-Chhotalal Chaturbhai Nayi is convicted for the offence punishable under Section 7 of the Act for agreeing to accept and for obtaining illegal gratification as motive for allowing the complainant to ply his jeep in exercise of his official functions. However, no evidence is found on record to support the charge under Section 12 and 13 of the Act and to that extent the acquittal of respondent recorded by the Court below deserves to be upheld. Accordingly, ordered. 13.1 Learned Counsel for the respondent urged for lenient view in the facts and circumstances of the case so far as sentence is concerned. 13.2 Corruption is a menace to the society and has now become a monster. It has gone so deep into the society that the people have accepted it as a rule. Honest public servants are shadowed by the greedy public servants who reiterate the same as if it is their right, though paid handsomely, as compared to the private servants who even after putting a tedious labour, do not get as much as the greedy public servant do. This Court is at pains to observe that when a citizen, without any flaws in his file, contacts a greedy public servant, he has a clear understanding in his mind that he would be required to pay the illegal gratification for his lawful work. 13.3 As can be noticed from the evidence on record, the demand was not a one time affair. It was in the form of regular monthly installment. From tenor of the complaint, it appears that helpless people like the complainant are required to pay installments through their nose, not merely to one person; but all who may meet him during the plying of the vehicle. Thus, the greedy public servants like the respondent has been milking the persons putting in the hard work to make their two ends meet. Thus, the greedy public servants like the respondent has been milking the persons putting in the hard work to make their two ends meet. When told that hardly anything is left with him after payment of monthly installment, the respondent was unmoved and unbothered of the plight of the complainant and advised him to employ a good driver who can save for him. Thus, it is not the question of only Rs.300/- but a menace where the poor subjects are milked by the greedy. The power with such government servants meant for public is used to their detriment, for encashing money under the threat of misuse of power. No leniency can be shown in faovur of such offenders. This Court therefore would sentence such an offender to rigorous imprisonment for three years with a fine of Rs.10,000/- (Rupees Ten Thousand Only) in default of which; the respondent should suffer further simple imprisonment for six months. Accordingly, the respondent is sentenced. The appeal is thus allowed to the aforesaid extent. 14. As Requested By The Learned Counsel For The respondent, time of six weeks to respondent to surrender is granted.