KISHORECHAND MANSUKHLAL JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant is an Assistant Security Officer working in S.T. Corporation and he is convicted for an offence punishable under Section 161 of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/ - in default to suffer R.I. for two months for each count. The prosecution case in brief is as under :

(2.) THE accused -appellant was working as Assistant Security, Officer in S.T. Corporation and his duty was to check the buses for the purpose of finding out as to whether proper tickets are issued by the conductors or whether the per - sons are allowed to travel without tickets or whether moneys are misappropriated by the conductors and he had also to check as to whether the conductors perform their duty in the manner laid down by S.T. Corporation. These duties might as well include whether the conductors are in proper dress, they are carrying licence and so many other small details. He was in a squad where he was not expected to check all buses or he was not a person who was expected in routine to do things but he was given a particular programme and according to that programme he was expected to check only those buses on those routes he was asked by order to do so. The complainant in this particular case Chatrabhu (D.W. 1) is working as conductor and on 9 -10 -1981 the accused had checked the bus of this particular conductor. It was found that one passenger had not purchased the ticket in Rajkot city. The fare was 20 paise only. The passenger was fined ten times the amount meaning thereby Rs.2/ - were collected from the passenger. Now the case of the complainant was that the accused demanded a sum of Rs. 250/ - and told him that if that amount was given to him he would not check his bus for one year. This amount was often demanded from the complainant and ultimately the last demand was made on 27 -11 -1981 at about 8 -00 P.M. when the accused had come to Rajkot from Dhrangadhra and ultimately the complainant agreed that the amount would be paid to the accused on the next day at 12 -00 noon in Bhaktinagar Chowk. Thereafter the complainant on 28 -11 -1981 went in a rickshaw to A.C.B. office and lodged the complaint. He produced currency notes of Rs. which were treated with anthracene powder in presence of the two panchas who were called and all formalities which were required to lay down the trap were completed and the preliminary panchnama was drawn. Thereafter the members of the raiding party went to Bhaktinagar Chowk where the complainant and panch No. were together and panch No.2 with Inspector of A.C.B. and other members of the raiding party remained at some distance. The prosecution case is that after waiting about few minutes the accused came there on a cycle. The complainant told him that he was waiting for him. At that time the complainant paid a sum of Rs. 250/ - which according to the prosecution the accused accepted and the complainant told him that he should not now harass him and as soon as these words were spoken by the complainant the prosecution case is that the accused demanded money which was paid. The signal by lighting a bidi was made and the members of the raiding party with panch No. rushed at the place. Thereafter in a jeep -car they all went to A.C.B. office where the accused was taken. With the help of ultra violet lamp in presence of the panchas the hands of the accused, the currency notes, the pocket of the accused were seen and blue light emanated and the currency notes were seized from the pocket of the bush -shirt of the accused and the members tallied with the numbers which were noted in the preliminary panchnama as a result final panchnama was completed at that place. Police Inspector Dave thereafter recorded certain statements and ultimately after obtaining the sanction to prosecute the accused, charge -sheet was filed in the Court of Special Judge.

(3.) IN the court of Special Judge at Rajkot the prosecution examined four witnesses. The accused denied the guilt. According to him the conductor was doing business of selling stainless utensils which he was bringing to Rajkot in S.T. bus itself. According to the accused he wanted to purchase a drum (peep) and for that purpose in May, 1981 he had given him Rs. 250/ -, as the complainant could not bring the drum in question the amount was returned to him at 12 -00 noon on 28 -11 -81 and he was falsely implicated. He also in his defense examined himself and gave evidence. He examined three wit - nesses to establish that some of them had purchased the utensils from the complainant and a labourer was examined to establish the fact that the utensils were being brought to Rajkot which the labourer took from S.T. bus stop to the house of the complainant. The learned Special Judge came to the conclusion that it was established that the accused accepted the amount. Thereafter the learned Special Judge came to the conclusion that as the amount was accepted presumption under Section 4 of the Prevention of Corruption Act would arise and it was for the accused to prove that he had given the amount for purchasing the drum and that it was that amount which was re - paid to him. The learned Special Judge came to the conclusion that that aspect of the case is not proved by the accused and the reasons given by the learned Special Judge are that the complainant did not know that on 28 -11 -1981 the accused would be pre - sent at 12 -00 noon at Bhagtinagar unless the two persons met on 27 -11 -1981. Therefore, when the complainant filed the complaint in the morning of 28 -11 - 1981 it would be natural that both persons had met some time on 27 -11 -1981 and the accused had agreed to accept the amount at 12 -00 noon and, therefore, only the complaint could be filed and the trap could be arranged. Further the learned Special Judge thought that an Assistant Security Officer would not give a sum of Rs. 250/ - to a conductor who was dealing in utensils. He would only pay when the drum which he required was given to him because it would be a transaction of purchase and sale. There was no question of depositing or giving amount prior to the purchase or giving the amount for the purpose of purchasing. If one looks in this particular way in a normal transaction prima -facie one would believe that such a situation would normally not exist. But here the case was required to be examined in a more careful manner. The reason is that here was a conductor working in S.T. Corporation itself. As many as 13 cases were made out against him during the period between 1974 and 1981. He was fined and his increments were required to be stopped. Now this person who is working in S.T. Corporation committed so many defaults during his career; that he was not a person who could be implicitly trusted upon and one has to read his evidence with greater care and caution. Though of course merely because there were 13 cases against him during the period, his evidence without scrutiny cannot be thrown away, so also it cannot be accepted. What we say is that one should be careful in regard to such person before accepting his evidence. Thereafter if one tries to read his evidence it would be clear that on several points he was not willing to tell the truth. His case is that in the morning of 28 -11 -1981 he went to the A.C.B. office and one police constable Naran Trivedi was present at the A.C.B. office and he told him that he wanted to file the complaint and Naran Trivedi thereafter asked him to wait and he called Police Inspector Dave and thereafter the complaint was filed. A show was being made as if this complainant never knew Narayn Trivedi. Thereafter when cross -examined he hesitatingly admitted that he knew Naranbhai Trivedi. Ultimately it came out that Naranbhai was a member of Sardar Patel Yuvak Mandal. He thereafter admitted that he was also a member of that Organi sation for the last five or six years. Ultimately he admitted that he knew Naran Trivedi very well. In the beginning his stand was that he never knew Naran. Thereafter his stand was that he was knowing him very well and both the persons were members of an organisation in Rajkot. Thereafter he admitted that in December, 1981 he had become a member of the Executive Committee of which Naranbhai was also a member. Now Naran also ultimately became the Secretary of the Organisation. It is true that this election took place in December, 1981 while this particular transaction took place in November, 1981 but one could easily assume from the evidence if read that Naran and the complainant knew each other very well. Now to know Naran very well is not a ground for rejecting the evidence of the complainant but if he knew Naran Trivedi very well and if he was a witness of truth he would not begin by saying that he did not know Naran Trivedi. Now that, therefore, though he knew Naran Trivedi he wanted the Police Inspector to believe and ultimately the Court to believe that he did not know Naran Trivedi that he was thoroughly innocent, knew nothing and went to file a complaint and if he met Naran for the first time in his life such a falsehood was not required to be stated unless there was a reason for it. Now this Naran is a friend of one Nathalal who was serving in Municipal Corporation and who after resigning from that post had become Corporator. This Nathalal got himself elected in Municipal Corporation from Ward No. 11. Now this Nathalal is also a member of Sardar Patel Yuvak Mandal. Now Naran and Nathalal are also friends and so also the complainant who knows them very well. They are all members of Sardar Patel Yuvak Mandal. There is nothing wrong if one becomes a member of a social organization and works for it but then one has to come out openly that he is the person who is the member and doing social work. One should not be shy about it and deny the fact. This wit - ness also started saying that he did not know Police Inspector Dave. Ultimate - ly it transpired that he knew Dave very well. This fact again was required to be admitted and the witness admitted that he knew Police Inspector Dave for the last one year. Now that, there - fore, we are dealing with a person who is a conductor in S. T. Corporation. The accused who is an Assistant Security Officer of S.T. Corporation has made out a case by checking the bus. Depart - mental inquiry was pending. When this departmental inquiry is pending the complainant filed complaint before the A.C.B. and at the time of giving evidence he narrated several things which were patently false Apart from the fact that the complainant in law is an accomplice and his evidence requires corroboration, here we are dealing with the person who is not only an accomplice but a liar. On the evidence of such a person it would be absolutely unsafe to rely. The reason is this: In a corruption case the whole case depends upon the credibility of only two persons, the complainant and the panch. The career of a public servant depends on the evidence of the two persons and when examined carefully ultimately it would depend upon one person and then that one person would be a person who would be a panch witness in the case. Credit worthiness of that person would be most important criteria. One un - scrupulous complainant if could find out one person to support him the career of any public servant could be put to an end. Under these circumstances caution demands that the evidence of the complainant and the panch should be such by which no doubt is left in the mind of a Judge in regard to the credibility and ultimately, therefore, acceptability of the evidence of those two persons. Here was a conductor who was trying to trap his own officer, a person against whom 13 cases were made out, a person who was not telling truth in regard to the most important aspect of the case. Such a complainant has filed the complaint. Primarily it would appear that he was not filing the complaint but making out a case to save himself in a departmental inquiry. He was perhaps more interested in that. He naturally, therefore, could find out the persons who could be helpful to him. One such person was Naran Trivedi. The witness goes to the extent of saying that he never knew where the A.C.B. office was. He stated in the Court that he told the rickshaw driver to take him to A.C.B. office because he never knew the address. Thereafter he paid him Rs. 3/ and ultimately could locate the office of the A.C.B. Ultimately when cross -examined it transpired that Naran Trivedi was on several occasions found travelling in a bus where the complainant was conductor, and Naran was getting down at A.C.B. office and at times at some other place where perhaps his house was situated. Therefore, this complainant very well knew where the A.C.B. office was and yet he was not willing even to admit such an innocuous fact because he wanted to make a show that he never knew where the A.C.B. office was, he never knew as to who Naran is and he was such a person as if he for the first time had to go to the A.C.B. office to lodge the complaint because he was asked to pay such a large amount for one year for only work that he would not be harassed for one year only and under these pitiable circumstances he had no other alternative but to file the complaint. He tries to have sympathy in his favour which he did not deserve any.