STATE OF GUJARAT Vs. BHAVJIDAN CHANDIDAN CHARAN

JUDGEMENT

(1.) THE State by this appeal challenges the acquittal of the respondent recorded by the Special Judge, Himatnagar on 27 -8 -1981 for an offence punishable under Section 161 of the Indian Penal Code and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act in Special Case No. 1 of 1981. The facts which gave rise to this appeal may be briefly stated as under :

(2.) THE respondent at the relevant time was serving as Talati -cum -Mantri in village Mangadh in Idar Taluka in Sabarkantha District. The prosecution case against the respondent was that one Gulambhai died some time in the year 1972 -73 leaving behind him four sons and also 23 acres of land. One of the sons P.W.I, Hafzur Raheman Gulambhai exh. 20 wanted the land to be mutated in his name and the name of his brothers. According to him the land was partitioned amongst the brothers and, therefore, the entries were required to be made in the register which is maintained by Talati -cum -Mantri. He, therefore, approached the respondent for that purpose and the prosecution case is that the respondent demanded a sum of Rs. 500/ - for doing this work. Ultimately on 8 -12 -1980 after the discussion between the complainant and the respondent, the respondent according to the prosecution case agreed to accept the sum of Rs. 250/ - for the above purpose and he also gave five papers to the complainant. The five papers according to the prosecution were of giving the Pedigiri, statement, notice under Section 135D of the Bombay Land Revenue Code and the said papers were necessary for the purpose of mutating the names. The prosecution case is that the complainant decided to trap the accused -respondent and, therefore, he approached the A. C.B. and lodged the complaint on 9 -12 -1980 in the morning. After recording the complaint, P.W. 3, Police Inspector Suldhakar Hivale called two panchas and the panchas were apprised of the facts which were narrated by the complainant, took the currency notes of Rs. 250/ - from the complainant and those currency notes were treated with anthracene powder and numbers of the currency notes were noted in the panchnama and the preliminary panchnama was prepared. All formalities to lay down the trap were completed and thereafter Police Sub -Inspector in company of the members of the raiding party which included the complainant, the two panchas and other officers of the department went to the office of the respondent. The respondent was sitting in the office on the chair and according to the prosecution the complainant and panch No. 1 who is examined as prosecution witness No. 2 went to the office of the respondent. The complainant sat on one chair and panch no. 1 sat on another chair which was on the other side. Thereafter there was a talk between the complainant and the respondent in regard to the mutations which were to be carried out and according to the prosecution the complainant gave those five papers to the respondent which were placed on the table which was in front of the respondent. Thereafter the respondent according to the prosecution asked the complainant as to whether he had brought oxygen and at that time the complainant took out the currency notes from the pocket and gave it to the respondent which the respondent accepted and put them in his pocket. As soon as the money was put in the pocket the complainant on the pretext that he was going out to order tea went out and gave the agreed signal. Panch No. 2, Police Inspector and the members of the raiding party rushed in and Police Inspector disclosed his identity to the respondent. Panch No. 1 was asked to take out the currency notes from the pocket of the respondent and Police Inspector started to prepare the final panchanama and for that purpose he called for the ultra violet lamp which could not be started because the electric current was not available. On inquiry it was learnt that on that day in the whole village electric current was not available. Ultimately they went to one field where there was a well and there was an engine. With the help of that engine they got the electric connection or electric power and ultra violet lamp was started. There ultimately the hands of every one were seen in rays of ultra violet lamp and according to the prosecution shining blue colour was seen on the hands of the respondent so also on the currency notes and other papers and on the hand of the complainant also and ultimately the final panchnama was completed at that place. Thereafter usual investigation was carried out by recording the statements of so many persons and after obtaining sanction charge -sheet was submitted against the accused in the Court of Special Judge. Three witnesses were examined : the complainant, panch No. 1 and Police Inspector. The accused denied the guilt and he stated that he did not demand any money and according to him Taluka Authorities were pressing from June onwards to show good work in regard to recovery and, therefore, as the complainant was not paying the dues he had gone to serve the notice to him which the complainant did not accept and which was required to be served by affixing and, therefore, according to the respondent the complainant was angry. He further stated in his statement under Section 313 of the Criminal Procedure Code that he had gone to the field of the complainant for preparing the village form 7 and 12 and as the tractor was moving and it was found that the complainant himself was not personally cultivating the land in village form he had mentioned in column Reet -2 and, therefore, the complainant was angry with him. He further stated that he used to go on several occasions for demanding dues and, therefore, also the complainant was unhappy with him. According to him he had made a report to the Taluka Headquarters against the Sarpanch because he did several acts which were not according to law and, therefore, the Sarpanch also told him that he would see that he was transferred. He was actually transferred thereafter but Jilla Panchayat suspended the order of transfer and, therefore, he had to continue and thinking that he would so continue the respondent stated that false case was made out against him. He however in his statement admitted that the currency notes were taken out from his pocket. According to him the revenue dues were paid to him at that particular point of time and after taking the money he stood up to take out a receipt book and at that time the complainant had gone out and thereafter members of the raiding party entered in. Thus the case of the respondent is that he was falsely involved, that what he accepted was the revenue dues and not the amount of bribe as alleged by the prosecution.

(3.) NOW in order to appreciate the evidence it is not necessary to state as to what each witness stated. The reason is obvious. The learned Special Judge has in his judgment clearly brought out as to what each witness stated in regard to the incident. To begin with if one looks at the broad facts it would appear that the complainant was not a person who was unwilling to pay the bribe. He never wanted to pay Rs. 500/ -but ultimately agreed to pay Rs. 250/ -. Therefore, though he was not willing to pay Rs. 500/ - he was not as such opposed to pay the bribe. Such a person requires corroboration of a very high degree. How in this particular case the case of the complainant from the beginning is that at the time when the accused agreed to accept the sum of Rs. 250/ -he was given bunch of papers. Those bunch of papers are Article 2. Police Inspector in his evidence admitted that Article 2 - the bunch of five papers were sent by the panchayat through one peon Naran who delivered the same to the complainant at his house. This would mean that the accused did not give him those five papers. Yet in the complaint the complainant knowingly made a false statement in regard to those five papers which though he had received from the peon he stated in his complaint and convinced Police Inspector that the accused had given him those papers at the time when the accused agreed to accept the amount of Rs. 250/ -. Now that, therefore, this was a method by which the complainant could prompt the Police Inspector to lay down a trap and create a false belief in the mind of the Police Inspector that the papers which were required for the purpose of mutating the entries were given to the complainant by the accused and for the purpose of doing that work the amount was being asked for. Now what the Police Inspector did after recording the complaint was to find out or select the panchas. In a corruption case choosing of panchas is most material and most important aspect in the case. The reason is that the evidence of this witness alone ultimately makes or mars the whole future of a public servant. Normally the evidence of the complainant is not accepted without corroboration. Normally the police officers are not believed in toto in most of the cases because they are considered to be interested witnesses. Now, therefore, the whole case hangs on one individual and that individual is the panch and that, therefore, choosing of a panch is the most important aspect in a trap case and what the learned Special Judge found was that the Police Inspector chose the panch from Irrigation Department. There is nothing wrong in choosing the panch from any Government office. But in this particular case the Police Inspector had to admit that in another case which was filed against Talati of Virpur, the panch was chosen from the Irrigation Department and that panch was Somji Lalji. Another case where Talati of Lalpur was trapped from the Irrigation Department was chosen. He was asked as to whether when he trapped P.S.I. of Prantij whether he chose panch from the Irrigation Department, the answer could have been either in affirmative or in negative but here the Police Inspector stated that he did not remember. Thus this was in any case a third occasion where the Police Inspector chose a panch from the Irrigation Department. This is not all. The Police Inspector was conducting an inquiry against one Mr. C. C. Shah who was the Head of North Irrigation Circle and he was the Head in Irrigation Department at Sabarkantha. In that inquiry he had recorded the statement of the panch whom he had chosen. The inquiry was on the allegation that Shri Shah accepted the money in appointments and this panch who is chosen as panch in this case was one of the persons who secured his employment by giving bribe to Mr. Shah and this panch witness first of all when cross -examined on this point stated that he did not remember but on the next day he had to admit that his statement was recorded on such allegations. Now if the allegations pertained to him that he secured employment by paying the bribe he would never forget that his statement was recorded on that count. That, therefore, he was telling lies when he stated that he did not remember. He hesitated and ultimately admitted. Now if Police Inspector were to choose a panch from the Irrigation Department in such a situation continuously on three occasions it would mean that as there was inquiry against Shri Shah which this Police Inspector was conducting, Shri Shah was under the thumb of the Police Inspector, he would supply the panchas who would depose to the satisfaction of Police Inspector so that Police Inspector may be able to oblige Shri Shah. In any case Shri Shah would believe that he must supply a panch who must depose in accordance with the wishes of the Police Inspector. That panch cannot be considered to be an independent panch witness. In a criminal trial particularly in corruption case the whole life of a public servant depends on what this independent witness is to say in the Court. The mere fact that the amount of Rs. 250/ - was found from the pocket of the accused it cannot be suggested that he accepted that amount and here was a case where a presumption under Section 4 of the Prevention of Corruption Act must arise. The reason is simple. Rs. 247.50 were due from the complainant. That was the amount which he was expected to pay. If, therefore, he paid Rs. 250/ -, normally the accused was expected to accept it and pass a receipt. Before the receipt could be passed if there is raid and if the amount is found it cannot be believed that the amount was accepted as a bribe and money normally if money is found from a public servant and it is established that he accepted the amount, the presumption would be that he accepted the amount as bribe unless that presumption is rebutted. But in a case of this nature where neither the complainant nor panch No. 1 could be believed in regard to what talk took place at the time when the transaction occurred, it would be difficult to raise the presumption more so because there was explanation clearly coming from the start that the amount of Rs. 247.50 was due as land revenue. If that amount was not due and for that amount no notices have been issued the matter would have been entirely different. Here the accused produced papers which are exhibited from exhibits 35 to 41 which established that the taluka authorities were pressing hard for recovery he had issued notices. He was transferred. His transfer order was suspended. All these papers would show that what the respondent was telling in the court was correct. Therefore, even if any presumption arose that presumption was rebutted by cross -examination and by making the statement because the evidence of the panch in regard to the talk is such which cannot be accepted. The learned Special Judge, therefore, after giving anxious considerations rejected the evidence of the complainant and the panch and in this acquittal appeal no other view is possible because the learned Special Judge took not only a possible view but a reasonable and correct view.