JAYNTILAL KUBERDAS SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The instant Appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 and is directed against the judgment and order delivered on 30th of September, 1991, in Special Case No. 5 of 1988 of the Court of learned Special Judge, District - Panchmahals at Godhra. The present appellant being accused of said Special Case No. 5 of 1988, came to be convicted for the offences punishable under Section 5(1)(d) to read with Section 5(2) of the Prevention of the Corruption Act, 1947 and also for the offence punishable under Section 161 of the Indian Penal Code. Vide impugned judgment and order, the learned Special Judge was pleased to sentence the present appellant to undergo RI for one year and fine of Rs. 2,000/-, in default, to undergo RI for six months for the offence punishable under Section 5(1)(d) to read with Section 5(2) of the Prevention of Corruption Act, 1947, while no separate sentence was awarded for the offence punishable under Section 161 of the Indian Penal Code.

(2.) The facts leading to the prosecution against the appellant can shortly be depicted as under : The present complainant Atmaram Solanki was working as Head Constable at Garadu Outpost of Zalod Police Station in 1980. A departmental proceedings came to be initiated against him by Police Sub-Inspector in pursuance of an application and in the said proceedings by disciplinary authority, he was exonerated on 21st of July 1983. This proceedings were in respect of allegations of demanding bribe by complainant. Before this departmental proceedings, one more departmental proceedings came to be initiated against the complainant for insubordination in respect of evading the orders of superior officer and in respect of this departmental proceedings, disciplinary authority, i.e. concerned D.S.P. punished the complainant vide order dated 5th of April, 1984 and he was directed to undergo punishment of reduction in rank and was ordered to serve as Police Constable for six months. While he was serving as Police Constable as such, in earlier departmental proceedings in pursuance of one application of bribe though he was exonerated by disciplinary authority, the higher authority, i.e. D.I.G., Baroda, punished the complainant and he was dismissed from service from 7th of April, 1984. The complainant resorted to hierarchical appeals and representations and remedies and ultimately the final authority, i.e. the Government of Gujarat directed to reinstate the complainant in service vide Order dated 01st of October, 1985 and thus in departmental proceedings where he was dismissed, came to be reinstated. Though in other departmental proceedings wherein the complainant was reduced to a rank remained final. On coming to know that the State Government allowed the Appeal of the complainant and ordered him to reinstate, the complainant Atamaram Shankarbhai Solanki visited DSP office at Godhra on 7th of October, 1985. The present appellant at the relevant juncture was working as Sheet Branch Clerk and was dealing with the departmental proceedings and, therefore, the complainant met him on 7th of October, 1985, in DSP Office. Appellant informed the complainant that since the State Government has directed to regulate the absence of the complainant from duty as against his leave at his credit, after calculating the said period and regulating it and counting the period of reversion, the complainant would be given an order of posting of Head Constable as early as possible and for doing so, the appellant demanded bribe of Rs. 500/- from the complainant. Complainant informed the appellant that after the orders were passed, he would see the appellant. Again complainant visited DSP office on 11th of October, 1985 and his order of reinstatement and posting as Constable was given to him by the appellant. The complainant obtained this order from registry Clerk signing in the Outward Register and those orders were handed over to the complainant. Appellant on that day reiterated his demand of bribe of Rs. 500/- and informed to the complainant that if complainant wanted order of posting of Head Constable, he would have to pay Rs. 500/- to the appellant as bribe. It was further stated by the appellant that the amount should be handed over to him till next Wednesday. Complainant agreed before the appellant that he would meet the appellant till next Wednesday. On further conversation, appellant stated that complainant should come during recess to make payment. Thereafter since the orders of posting of the complainant as Constable was passed by the concerned DSP and was given to the complainant by hand delivery, the complainant resumed his duty as Police Constable at Dhanpur Police Station on 12th of October, 1985. It is the case of the complainant that for last considerable period, the complainant was not on duty and, therefore, he was not in position to manage wherewithal to give bribe amount to the appellant. The complainant, therefore, obtained leave for two days and came to Godhra and went to Anti Corruption Bureau Office on 16th of October, 1985. The complainant met with P.I. Ranganekar and declared the facts of the complainant. Ranganekar was requested by the complainant that for taking legal action against the appellant, the complainant had no wherewith. Thereupon, a complaint came to be recorded by P.I. Ranganekar as stated by the complainant, which is placed at Exh. 12. After recording the complaint. P.I. Ranganekar arranged to call PSI Patel and two panchas for setting a trap against the appellant. In 20-25 minutes, PSI Patel brought two panchas from ART Office of Godhra. Both the panchas were appraised of the facts of the First Information Report and introduction of the complainant and the panchas were made. PI Ranganekar stated that the complainant had no money to pay bribe amount and, therefore, the amount of Rs. 500/- in denomination of 5 notes, each of Rs. 100/- were provided by P.I. Ranganekar. As usual, utility and property of anthracene powder was explained to panchas and complainant and all the five notes, each of Rs. 100/-, after noting the numbers in panchnama, were smeared by anthracene powder. PSI Patel thereafter destroyed the paper on which the said muddamal notes were kept and washed his hands by soap. The hands of all present were clean in ultra violet lamp and the notes smeared with anthracene powder were placed in left side bush shirt pocket of the complainant. The left side bush shirt pocket of the complainant was empty. The complainant thereafter was instructed by P.I. Ranganekar that along with panch No. 1 Ramanbhai Nanabhai Raval complainant was to approach appellant in DSP Office and give muddamal notes on making demand by appellant. It was directed that till the demand is made, the complainant must not touch amount of muddamal notes put in his shirt pocket. Panch No.1 Ramanbhai Nanabhai Raval was also instructed to accompany complainant at DSP Office in Sheet Branch and to hear the conversation between the complainant and the appellant as well as to observe what might take place. Other staff members of the raiding party as well as panch No. 2 were instructed to conceal them around DSP Office scattered and on signal being made by panch No. 1 to rush to the concerned branch of the DSP Office. Panch No. 1 was instructed to give signal if the amount is accepted by the appellant. Thereafter, at about 2.45 panch No. 1 and complainant went to DSP Office in Sheet Branch at the table of the appellant. The complainant stood before the table and panch No.1 stood nearby. Some other two persons were also present at that time, but they immediately left and thereafter in the office there were only three persons, i.e. appellant sitting in the chair, complainant was standing and panch No.l was also standing behind the complainant. Complainant inquired from the appellant: that when his order for Head Constable was to be issued. Appellant stated that whether complainant had brought the amount. The complainant replied that he had brought the amount and with this he took out muddamal notes from his shirt pocket and delivered to the appellant, which he took with his left hand. The appellant put the amount of muddamal notes in his left bush shirt pocket. At the time, panch No.1 went out of the office and gave signal. In the meanwhile, the complainant requested Peon to bring tea, but the appellant refused to take tea. On signal being received, the raiding party rushed to the spot and reached near the appellant. PI Ranganekar directed the accused to remain status quo. Thereafter, Ranganekar took out a wallet from the pocket of the appellant, which contained currency notes of 189 rupees. Thereafter, as per the direction of PI, panch No.1 searched pant pockets of the appellant and he found muddamal notes from right hand pant pocket of the appellant, which were the same notes, numbers of which were noted in the first part of panchnama. Thereupon, i except complainant and appellant, the hands of all raiding parties were examined in ultra violet lamp. Thereafter, the hands of panch No. 1 were found with the marks of anthracene powder in ultra violet lamp. Right hand of the appellant also contained anthracene powder in ultra violet lamp. In right hands of the complainant, anthracene powder marks were also found. Anthracene powder marks were also found on the pocket of the bush shirt as well as on right hand side pant pocket of the appellant. The said notes and pant of appellant were seized by PI, after arranging other clothes for the appellant and detailed panchnama of this procedure was prepared and signed by panchas as well as PI. Thereafter, the investigation was carried out by P.I. Ranganekar and a crime came to be registered against the appellant on 16th of October. 1985 at about 18.00 hours. A charge sheet in pursuance of the above investigation came to be filed against the appellant in the court of Special Judge at Godhra.

(3.) At Exhibit-1, on 29th of May 1990, a charge came to be framed by the Special Judge, Godhra. against the appellant for the offences punishable under Section 5(1)(d) to read with Section 5 (2) of the Prevention of Corruption Act, 1947 as well as under Section 161 of the Indian Penal Code. The appellant pleaded not guilty to the charge.