KANUBHAI KANTIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant was placed on trial, before the Special Judge for the District of Sabarkantha at Himatnagar to answer the charge of the offence under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 in Special Case No. 2 of 1986. The trial ended in convection and appellant was sentenced to rigorous imprisonment for one year of the offence under Section 161 of Indian Penal Code, and rigorous imprisonment for one year and fine of Rs. 50/-, in default rigorous imprisonment for one month more, with regard to the offence under Section 5(1)(d) r/w. Section 5(2) of the Prevention of Corruption Act. Shorn of unnecessary details, the case of the prosecution is as under.

(2.) Kodarbhai Revabhai Chamar was having agricultural land as well as houses. The agricultural lands were bearing Survey Nos. 72/1 and 73/2, while the houses numbers were 61 and 62. The properties of Kodarbhai Revabhai are situate within the local limits of Navagam Group Gram Panchayat. The appellant at the relevant time was serving as Talati-cum-Mantri at Navavas. Kodarbhai Revabhai Chamar died in 1984 leaving behind him five sons inclusive of the complainant Govindbhai Kodarbhai, and Santokben the widow. The names of the heirs of Kodarbhai Revabhai were required to be mutated in the relevant record with regard to the property the deceased had left. Govindbhai Kodarbhai who was at that time residing at Ahmedabad because of his service. On the third day of the death of his father met the appellant for the purpose of necessary mutation. At that time the appellant gave him a blank paper with the instruction that he should thereon get the signatures of all the heirs, and if any of the heirs was illiterate, the thumb impression might be taken. At that time the appellant demanded Rs. 500.- by way of illegal gratification to show favour. Taking the blank paper Govindbhai went to his home. He informed his mother. His mother was not ready to pay the amount of Rs. 500/- because of heavy expenses the family had to incur for the obsequies. Thereafter Govindbhai went to Ahmedabad and resumed his duties. About one month thereafter he again went to the appellant and talked about the mutation. At that time the appellant demanded Rs. 200/- for showing favour and have mutation as per the desire of Govindbhai. Govindbhai haggled and appellant then showed his willingness to exercise his power and show favour to him provided Rs. 150/- were paid to him by way of illegal gratification. Govindbhai then went to the A.C.B. office and lodged the complaint against the appellant. Shri Gadhvi the police officer then called two panchas and explained them the purpose of the mission. They were also apprised about the fact, what role they had to play, and after the bribe was given what sign the complainant would make so as to convey the acceptance of bribe amount. On the next day, i.e. on 5th June 1985 he went to the ACB office. The Police Inspector, Shri Gadhvi requisitioned the services of two panchas and Govindbhai then gave three currency notes, each of Rs. 50/-. Anthracene powder was applied on both the sides of all the notes and they were placed in the bush shirt pocket of Govindbhai with necessary direction that he would pay the amount only after demand was made. First part of the panchnama was then written and signatures of panchas were taken. Thereafter Shri Gadhvi, Govindbhai, two panchas and police constable Arvindbhai along with ultra-violet lamp and other equipment, went to Navavas by a jeep. As per the plan, Deveshbhai, the panch No. 1 and Govindbhai the complainant went into the office of the appellant, while rest of the members of the raiding party were deployed at different places and were waiting for the signal from the complainant. Going into the office of the appellant, the complainant Govindbhai talked about the mutation entry, and on being demanded he brought out Rs. 150/- from his pocket applied with anthracene powder and gave the same to the appellant. The appellant accepted the currency notes and counted with the aid of his both the hands and then put the currency notes into his bush shirt pocket. The complainant went out of the office and moved his hand over his head and thereby gave the signal to the members of the raiding party deployed at different places. Receiving the signal, Mr. Gadhvi and others immediately rushed into the office of the appellant. Seeing them coming, the appellant brought out the currency notes given to him from his bush shirt pocket and threw the same on the floor. Mr. Gadhvi apprised the appellant why he was there and what position he was enjoying. Thereafter the amounts lying on the ground were lifted. The hands of appellants were then checked with the ultra-violet lamp. His both the hands were found glittering with light blue flourescent marks. The hands of the person who lifted the currency notes were also found glittering with light blue flourescene marks. The notes were seized and when tallied with the numbers noted in the panchnama. The notes found on the floor were the same noted in the panchnama. Thereafter second part of the panchnama was drawn and signatures of the panchas were taken. The currency note of Rs. 10/- which was found along with other currency notes in the pocket of the appellant was seized because it was found glittering with light blue flourescent marks. Shri Gadhvi the Police Inspector then registered the offence and took the investigation on hand. He then recorded the statements of concerned persons, and at the conclusion of the investigation he filed the charge-sheet against the appellant of the abovestated offences before the Court of the Special Judge for the District of Sabarkantha at Himatnagar which came to be registered as Special Case No. 2 of 1986. After hearing both the parties, the Special Judge framed the charge at Exh. 13 to which appellant pleaded not guilty. The prosecution then adduced necessary evidence. At the conclusion of the hearing, appreciating the evidence on record the learned Judge reached the conclusion that the prosecution had succeeded in proving the charge beyond every reasonable doubt. He therefore held the appellant guilty and convicted and sentenced him as aforesaid. Being aggrieved by the order of conviction and sentence the appellant has preferred the present appeal before this Court.

(3.) Mr. Anandjiwala, the learned Advocate representing the appellant submitted that the learned Judge below fell into error in appreciating the evidence and reaching to a wrong conclusion though from the evidence on record it was crystal clear that the prosecution had failed to establish the charge. The learned Judge overlooking infirmities in the record obsessed with conviction held against the appellant. According to him demand and acceptance, the main ingredients of the offence were not established. Mr. Divetia, the learned Addl. Public Prosecutor representing the State refuted the contentions advanced submitting that there was no infirmity in the evidence, and on appreciation of the evidence, every thing was quite in consonance with law and there was no reason for me to interfere with the findings and the order passed by the lower court.