NARESHKUMAR KIKABHAI TANDEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant is Junior Engineer working in Sub-Divisional Officer (Telephones) in Ellisbridge Ahmedabad. The learned Special Judge convicted the appellant for the offence punishable under Section 5(2) read with Section 5 of the Prevention of Corruption Act 1947 and also for the offence punishable under Section 161 of the Indian Penal Code and sentenced him to suffer R.I. for two years and to pay a fine of Rs. 500 in default to suffer further. R.I. for one month on each count. The substantive sentences are ordered to run concurrently. The appellant has challenged his conviction and sentence by filling this appeal.

(2.) The prosecution case shortly stated is as under : There is Federal Bank Ltd. which is a scheduled bank and it had a branch in National Chambers of Ashram Road at Ahmedabad. They wanted to shift their premises and go on the opposite side on the same road. The premises to which they were going to shift were situated near Ahok Karnavati Hotel. This was to be done some time in the month of May 1980 Now the bank had a telephone No. 78133 and also the Telex machine which was given No. 343. Now in due course they had applied and it appears that ultimately on 26-7-1980 the telephone was shifted. The bank in fact shifted premises on 28 Further prosecution case is that one Jawahar Abraham (P.W. 8) exh. 63 was working in the Federal Bank Ltd. and the accused demanded Rs. 200 for shifting the telephone and the telex. Now this Abraham was in fact incharge Manager also. But the new Manager took over from him as Manager and that person is P.W. 1 George exh. 44. Mr. George took over some time around 28th July 1980 as Manager. Abraham continued to work as Accountant. Now when Mr. George took over as Manager of the bank it is the case of the prosecution that Abraham told George that the accused had demanded Rs. 200/- for shifting the telephone and the telex and that amount he had not given to him. Further prosecution case is that in the new premises the bank also wanted one more telephone and for that purpose also under the O.Y.T. scheme the bank had submitted an application with deposit which is necessary for the purpose the deposit amount being Rs. 5 0 It appears that in the new building Telex was shifted some time in the month of October 1980 According to the prosecution case when this Telex was shifted the accused demanded Rs. 300/- from Abraham and Abraham told him that the bank cannot pay any bribe and Abraham did not pay any attention to the demand made by the accused. Thereafter it appears from the evidence on record that the Telephone Department demanded a sum of Rs. 115/- for installation charges and that amount was paid on 4-12-1980. The Bank received the information on 8-12-19 80 that they would be given new telephone connection. Thereafter the prosecution case is that on 15-12-1980 the accused at some time at noon went to the Bank and met Abraham and asked him as to where the new telephone was required to be installed. Abraham after consulting Mr. George told him that the new telepone was required to be installed in Managers cabin. Again on that day a sum of Rs. 300/- was demanded from Abraham for shifting the old telephone and the Telex and installing a new telephone. Abraham again did not pay any heed to this demand but informed George and George told him that he should inform the accused that the bank was agreeable to pay the bribe. Now the prosecution case is that on that day the accused had insisted on payment and asked Abraham to tell him as to whether the bank was willing to pay or whether the bank was not willing to pay and the answer in affirmative or in negative must be given and the prosecution case is that the accused threatened Abraham that unless the bribe amount was given to him new telephone will not be installed. When George was apprised of all this talk he told Abraham that the bank was agreeable to pay the amount and such information should be sent to the accused. Thereafter the prosecution case is that Abraham telephoned to accused but the telephone operator told him that he was not available at that particular point of time and Abraham told Telephone Operator that he should tell the accused to ring the bank. Ultimately at about 4-30 the accused rang up the bank and Abraham picked up the phone and at that time also according to the prosecution the accused demanded the amount and Abraham told him that he could collect the amount on 16-12-1980 from the bank. Thereafter the prosecution case is that George (P.W.I.) exh. 44 went to the office of the C.B.I. on 16-12-1980 in the morning and filed complaint exh. 40. The result was that after recording the complaint the officers of the C.B.I. decided to arrange for a trap. Currency notes of Rs. 300/- were treated with phenolphthalein in powder and number of the currency notes were noted. After showing the effect of phenolphthalein powder to the complainant the panchas and the members of the raiding party a preliminary panchnama was prepared. All arrangements for laying down the trap were completed and ultimately on 16-12-1980 C.B.I. officers went to the Federal bank premises with two panchas. However they had to wait there upto 4-P.M. and the accused did not turn up. Nill panchanama was prepared and the C.B.I. officers with panchas returned back. Further prosecution case is that on 17-12-1980 the accused went to the bank for getting the amount. The Manager of the Bank told him that he had come late and he should come on the next day at about 12-00 noon. The accused left. Again George informed the C.B.I. officers who prepared another panchanama on 12 new panchas were called. Other currency notes were taken and phenophthalein powder was suplied. The effect of the same was shown the complainant the panchas and the members of the raiding party and the preliminary panchnama was prepared. All arrengements for laying down the trap were completed and the members of the raiding party the two panchas went to the tank at about 11 A.M. on 18-12-1980. Panch No. 1 was made to sit in the cabin just opposite the Manager. Panch No. 2 and other members of the raiding party were in the bank premises and one Thomas who was also an officer of the C.B.I. and who was one of the members of the raiding party moved to and from some-times went in the cabin sometimes outside the cabin and he was just waiting for the accused to come. It is the prosecution case that before the accused came Thomas also had gone to the cabin and he was also sitting in the cabin. Ultimately at about 12-30 noon the accused went to the Federal Bank. He met Abraham. Ultimately he went to the cabin of the Manager and threafter to the next adjoining room where Telex machine was installed and from that place he made a telephone call to one Makwana but as Makwana was not present he had a talk with P.W. 6 Kantilal Patel and thereafter according to the prosecution case he came back from the place where Telex machine was installed. Again he had a talk with Abraham and went in Managers cabin. He set just opposite the Manager in one chair and after sitting in the chair he demanded the amount by making gesture without speaking any word. The Manager who had three currency notes of Rs. 100/- each already treated by A.C.B. office with phenophthalein powder and which were placed in his pocket by the C.B.I. officer took out those notes and handed over the same to the accused who accepted the same in his right hand and placed them on the papers which he had in his left hand. At that time Thomas stood up and he went out. As soon as he went out the C.B.I. Officers and the members of the raiding party alongwith panch No. 2 rushed in the cabin and they cuaght both the hands of the accused but according to the prosecution the accused threw away the amount which fell in one of the drawers which was open and which was on the right side from where George was sitting. The solution of sodium carbonate was prepared and the hands of the two panchas the members of the raiding party and others except the complainant-George and the accused were dipped in that solution and the colour did not change. That water was thrown away. The glass was cleaned and thereafter it was again filled with solution of sodium cabonate and the two hands of the accused were dipped in that solution and the colour became pink. That pinlk colour solution was sealed in a bottle which ultimately the prosecution sent to the Forensic Laboratory for examination and report. Ultimately the currency notes also were seized their numbers were tallied with the prelimianary requisite formalities the panchnama was completed. Investigation was completed by Shivkumar Thaker (P.W. 9) Exh. 64 and after obtaining the sanction as required under Section 6 of the Prevention of Corruption Act 1947 chargesheet was submitted against the accused person in the court of Special Judge in City of Ahmedabad. At the trial 9 witnesses were examined. The accused denied the guilt.

(3.) In his statement to several questions which were asked to him for explanation in answer to question No. 74 the accused admitted that his two hands were dipped in the solution which was prepared. However he was not in a position to say as to what they did of that solution. Ultimately in a question which was generally asked as to what he wanted to say he stated that because of monsoon in Paladi area 1000/- telephone were out of order and there were several faults and the instructions from the head office were that new connection should not be given in monsoon and only faults should be attended to. According to him when he was asked by the head office to install the Telex line he installed it on 30th September 1980 Thereafter according to him he learnt on 8-12-1980 that new telephone connection was also to be given to the bank and therefore laying down the line work was completed by 18-12-1980 and as soon as all the arrangements were made he went to the bank on 18-12-1980 and inquired as to where the new telepone was to be placed in the cabin of the Manager. In those circumstances according to him he met the Manager and the Manager told him to place the telephone on his table. At that time according to the accused the Manager took out the money and showed it to him for giving and he told him what are you doing So saying according to the accused he refused to take the amount and that refusal was done by pushing the money with his hand and the amount fell down and he did not know as to where that amount fell and at that particular point of time several persons rushed in and he was informed that the persons belonged to C.B.I. and they prepared one solution and asked him to dip his fingers in that solution and therefore did so. According to him therefore he neither demanded the amount nor accepted the amount and therefore did not commit any offence.