JILUBHAI MANUBHAI VAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant has filed this Appeal challenging the judgment and order of conviction and sentence passed by the learned Special Judge, City Sessions Court, Court No.2, Ahmedabad, in Special Case No.15 of 1994 dated 15.2.2000, by which the appellant accused is convicted and sentenced for the offences punishable under Sections 7, 13(1)(d) which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "The Act"). The learned Special Judge has convicted the appellant accused for the offence punishable under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer simple imprisonment for six months and to pay a fine of Rs.500/, i/d, to further undergo simple imprisonment for one month, whereas the appellant was ordered to suffer 18 months simple imprisonment for the offence under Section 13(1) (d) which is punishable under Sections 13(2) of the Act and to pay a fine of Rs.500/, i/d. to suffer one month simple imprisonment. The learned Special Judge has ordered that all the sentences shall run concurrently.

(2.) THE prosecution version as reflected in the complaint to be briefly stated, is the effect that the complainant Ramjaysingh Parasnath Rajput gave complaint on 25.10.1993 before the ACB office, Ahmedabad stating that he run Government fair price shop in the name of "Santosh Sahkari Bhandar Ltd." Jivrajpark. The said society is registered vide Sr. No.3423/88 with the District Registrar, Cooperative Societies, Ahmedabad. The complainant was Chairman of the said society and there were 11 managing committee members. The District Collector issued necessary permit to run said fair price shop. According to the complainant, the audit of the said registered society was required to be done by the auditors of the District Registrar, Cooperative Societies as the audit of the society could not be done from the year 1988 -92. The complainant wanted to have cash credit facility for the society from the Ahmedabad District Cooperative Bank Ltd. in the year 1992 and for the same purpose, audit report was required to be submitted in the bank and in absence of audit work, no credit facility from the bank could be obtained. For doing audit work, several letters were written by the society. The complainant also wrote letter to the District Registrar to permit the society to get the audit work done through the private auditor. By this time, the complainant got the audit work done for the year 1988 -91 through Government approved private auditor Shri K.T. Patel Associates, Ahmedabad. According to the complainant, in the month of July, 1993, one officer came to the office of the society and told that there were dues of the society and inspite of that, how you have changed from Odhav to Jivrajpark ? In this regard, the complainant stated that their society was never working at Odhav and it is at Jivrajpark from the very beginning and the society has not obtained any loan. Inspite of the said fact, the officer told the complainant to come with him at the office of District Registrar and on enquiry from the records, it came to know that there were no dues pending in the name of the society, but there was another society in the name of the complainant's society in whose name due amount was shown. Thereafter, the complainant made representation to the District Registrar to do the audit work of the year 1992 -93 and the District Registrar assured that it would be done shortly. According to the complainant, in the month of August, 1993, present appellant came to the shop of the complainant and introduced himself as auditor in the Cooperative Societies and stated that he was appointed as Special Auditor to audit the work. The appellant demanded the books of accounts of the society. The complainant produced Rojmel, Khatavahi, vouchers etc. from the year 1988 till date before the present appellant and the appellant took away with him all the account books at his office by saying the complainant to come later on to his office. On 19.9.1993, the complainant went the office of auditor of District Registrar, Ahmedabad at Relief Shopping Center and met the appellant, who told the complainant that audit of five years were pending and therefore, audit fees of Rs.1,298/ - was required to be paid and for not raising objection in the five years audit, present appellant told the complainant that at the rate of Rs.2000/ - per year, the complainant would have to pay Rs.10,000/ - for five years. Therefore, the complainant told the appellant that he would pay the official amount but for the amount of Rs.10,000/ -, he will have to ask the managing committee members. Thereafter, present appellant told the complainant to come on 22.9.1993. Therefore, on 22.9.1993, the complainant along with the members of the managing committee went to the office of the appellant, but they found that the present appellant was on leave for 10 days. On 6.10.1993, when the complainant was not at this office, the appellant came to the shop where Narsinh Ramdhari who used to weigh the articles of the fair price shop, was present to whom one letter was given by the appellant. In the said letter, the appellant demanded certain information and also called the complainant at his office. Accordingly, on 11.10.1993, when the complainant went to the office of the appellant, the appellant demanded Rs.10000/ - as earlier. Therefore, the complainant told that the society ran on no profit no loss basis and therefore, he could not give such amount even though appellant went on demanding the amount. According to the complainant, on 23.10.1993 at about 11:00 a.m., the appellant came on scooter at the shop of the complainant, where the complainant and cashier Brijnath Shamsunder Pathek were present. The appellant told the complainant that you did not give the amount so what he wants to do. To this, the complainant told that the society was not having black money and society was not doing any profit business and therefore, there was no possibility of giving amount. Therefore, the appellant told the complainant to pay Rs.200/ - towards scooter petrol and Rs.500/ - for Diwali. Therefore, the complainant agreed and as he was not having money, he took Rs.200/ - from Mr. Pathak, Secretary and gave to the appellant 2 currency notes of Rs.100/ - each. The appellant told the complainant to give him Rs.500/ - on 25.10.1993 at his office by saying that on receiving said amount, he would complete the audit work. The complainant was not ready and willing to pay the amount of bribe to the appellant, therefore, he approached the ACB office and registered the complaint against the appellant. Therefore, ACB officer called two panchas from the office of Sale Tax Department, Laldarwaja, Ahmedabad. The ACB Officer Mr. H.K. Patel introduced the complainant to the panchas and the panchas showed their willingness as panchas in the case. Thereafter, the complainant produced 5 currency notes of Rs.100/ - each which numbers and denominations were noted down. The said currency notes thereafter were given to the lamp operator for experiment of anthracene powder and ultra violet lamp and then anthracene powder was applied to currency notes and introduced the characteristics of said articles and experiment was carried out by ultra violet lamp. Then trap was arranged and the complainant was instructed about the talk with the appellant and at time of acceptance made by the appellant, the complainant would have to raise both the hands and also tainted currency notes should be given to the appellant. The panch No.1 was also instructed to remain with the complainant and hear and see the transaction of bribe amount. Thereafter, first part of the panchnama was completed at the ACB office duly signed by the panchas and P.I. ACB officer Mr. Patel. Thereafter, the complainant, panchas and members of raiding party went near GPO office and then, the complainant and panch No.1 came to know that the appellant went out from the office and second part of panchnama was completed duly signed by the panchas and P.I. Mr. Patel. Thereafter, on next day i.e. on 26.10.1993, as per the instructions of ACB officer, the panchas, complainant and other members of raiding party came to ACB office, where they were informed about the earlier complaint and facts of the panchnama. The complainant's left pocket of shirt was kept vacant, wherein 5 currency notes of Rs.100/ - each were placed after carrying out the experiment. The panchas and members of raiding party were given the instruction as per the earlier day and then first part of panchnama was completed at ACB office duly signed by the panchas and P.I. Mr. Patel. As per the case of the complainant, thereafter, the complainant, panchas and ACB members of raiding party reached near GPO at 11:05 a.m. and as decided earlier, went to the commercial center. At about 12:25 p.m., when the complainant and panch No.1 were waiting at the main gate for the appellant, the appellant came and after making initial talk, the appellant went to his office to put his briefcase. Thereafter, the appellant, the complainant and panch No.1 went towards S.V. College and occupied seats in a hotel. The panch No.2 and other ACB party members also followed them and took their position without causing any doubt on anyone. According to the complainant, at about 13:15 hrs., the complainant made agreed signal by raising his two hands and therefore, raiding party members rushed there and said Mr. Patel, P.I. Introduced himself and told the person not to make any move and on enquiry, the appellant told his name as Mr. Vaghela, Auditor (Grade II), District Cooperative Societies, Ahmedabad and residing at Sargasan village. The panch No.1 told that the tainted currency notes are in the left pocket of shirt of appellant. Thereafter, the members of raiding party, complainant, panchas and appellant as well as lamp operator went to the office of the appellant, where experiment of currency notes in ultra violet lamp was carried out. Thereafter, the ultra violet lamp was thrown on the hands of appellant, tips of fingers, thumb, below portions, palm portion of right hand as well as the borders of inside portion of the left pocket of shirt were showing the white shining marks in the light blue colour. At the instruction of P.I. Mr. Patel, panch No.1 was told to take out the articles from the left pocket of shirt worn by the appellant and under the light of ultra violet lamp, both the sides of tainted currency notes and flower designed calender which was near currency notes showing the light blue marks. Thereafter, the numbers and denominations of currency notes were tallied as per the first part of the panchnama. Then the tainted currency notes were seized by keeping paper duly signed by the panchas and said P.I. Mr. Patel for further investigation. The left pocket of shirt wore by the appellant where the shining marks were shown were encircled with pen duly signed by panchas and P.I. Mr. Patel. Then the receipts for the articles seized were given to the accused appellant and same receipts were duly signed by panchas, P.I. Mr. Patel and the appellant. Thereafter, second part of panchnama was completed including hotel boundaries. Said Mr. Patel, P.I. Thereafter recorded the statements of witnesses and the appellant prepared the report under Section 157 of the Code of Criminal Procedure, upon which the offence at C.R. No.10 of 1993 was registered at ACB Police Station. Thereafter, on further investigation, said P.I. Mr. Patel recorded the statements of rest of the witnesses including panchas, obtained the documents. By that time, said P.I. Mr. Patel was transferred. After investigation, for obtaining necessary permission for prosecution, the papers were sent to the competent authority of the appellant through the head office. It appears that on transfer of P.I. Mr. Patel, P.I. Mr. Barot received the necessary sanction for prosecution and kept in the record. Ultimately, the appellant was charge -sheeted.

(3.) IN order to bring home the charge, prosecution had examined the witnesses and got exhibited a large number of documents. The following witness examined by the prosecution during the trial. <FRM>JUDGEMENT_179_LAWS(GJH)2_2015.htm</FRM>