SADARUDIN ALIBHAI LALANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 30.9.1996 passed by the learned Special Judge, Junagadh in Special Case No.6 of 1989 whereby the present appellant -Sadarudin Alibhai Lalani was convicted and sentenced for the offence punishable under section 5(1)(d) read with section 5 (2) of the Prevention of Corruption Act, 1947 (for short, "the Act") as well as for the offence punishable under section 161 of the Indian Penal Code. The appellant -accused was sentenced to suffer simple imprisonment for one year and fine of Rs. 3,000/ - (Rupees Three thousand only), in default, simple imprisonment for the offence punishable under section 5 (1) (d) of the Act. No separate sentence is awarded for the offence under section 161 of the Indian Penal Code.

(2.) THE appellant -accused, Sadarudin Alibhai Lalani was residing at Junagadh and was working as Biogas Organiser in Gujarat Agro Industrial Corporation, Junagadh at the relevant time. The complainant -Ravjibhai Kantibhai, resident of Visavadar Taluka, was working as bio -gas agent. As a bio -gas agent, the complainant gives information regarding bio -gas plant to the farmers and he was also doing work of installing bio -gas plant. As a bio -gas agent, the complainant receives Rs. 250/ - towards installation charges per bio -gas plant. After installation of the bio -gas plant, he puts his claim of bio -gas plant before the bio -gas organiser and after verifying the said claim, the bio -gas organiser prepares the bills and forward it to the Head Office at Ahmedabad. In this particular case, the complainant kept claim of 93 bio -gas plants before the accused who was the bio -gas organiser. The accused told the complainant that he will take appropriate steps to prepare the claim bill of the complainant for the 93 bio -gas plants expeditiously and for that, the organiser demanded Rs. 50/ - per plant from the complainant -agent. The complainant agreed to this proposal and told the accused that he will make such payment after receiving the cheque of the said claim bill. Thereupon the accused told the complainant that the complainant has to pay Rs. 4650/ - towards passing of the bill of 93 bio -gas plants @ Rs.50/ - per plant. The complainant agreed to this proposal.

(3.) AS the accused was transferred on promotion and posted as Manager in Gondal and Junagadh office was also covered under his area of operation, he was commuting from Junagadh to Gondal every day. According to the case of the prosecution, the complainant received the cheque of claim bill in the month of August, 1987. In spite of receiving the claim amount, the complainant did not make payment as demanded, to the accused. One Laxmanbhai Vallabhbhai, cousin brother of the complainant was carrying on business of steel utensils in the name of 'Satyavijay Vasan Bhandar'. It is the case of the prosecution that Laxmanbhai also knew the accused person. On 16.9.1987, the accused had gone to the shop of Laxmanbhai and asked him about Ravjibhai, the present complainant and told him to convey a message to Ravjibhai to make payment to the accused within three days, else, he will fight with Ravjibhai. Laxmanbhai conveyed the said message to his brother -the complainant. But the complainant neither met the accused nor made any payment. On 22.9.1997, the accused met the complainant on the way to Junagadh railway station and asked him to give the money. In reply, the complainant told him that at present he had no money but he will pay the money to the accused later. Thereupon the accused told him not to be under the impression that as he was transferred, he will not be able to do anything against the complainant, especially when Junagadh district was also under his area of operation. He also threatened the complainant that he will cancel all his work of supervisor/agent of bio -gas plant. Thereupon the complainant told him that he never said that he will not make the payment. Then the accused told the complainant that he did not want to hear anything and asked him to make payment of Rs.4650/ - as already decided, at his residence between 8.00 p.m. and 9.00 p.m. on that day i.e. on 22.9.1987. The accused also warned the complainant that if the payment was not made, the complainant would face the dire consequences. As the complainant was not willing to make any payment towards illegal gratification to the accused, he approached the office of the Anti Corruption Bureau, Rajkot on the same day. The complaint was recorded by the Police Inspector, Mr B.P. Sarvaiya, PW 4 at 2.15 p.m. After recording the complaint, to arrange trap, two panchas were called from the office of the Collector, Rajkot. The complainant and the panchas were introduced with the members of the raiding party. The complainant narrated the facts before the panchas and the complaint was also read over to the panchas and both the panchas were made to sign the complaint (Exh.15). Thereupon the complainant produced Rs. 4650/ - (100 x 46, 1 x 50 denominations) before the P.I., ACB. The currency notes as also the hands of the complainant, panchas and other staff were observed in ordinary light and nothing significant appeared. Thereafter, the currency notes were smeared with anthracene powder and inspected in the light of ultra violet lamp and glowing marks of bluish powder were seen. Head Constable Mr Vaghela put the said tainted currency notes in the left pocket of the bush shirt worn by the complainant and was instructed not to touch the currency notes except for the purpose of giving them to the appellant -accused. The preliminary panchnama Exh.14 was drawn in which also the number of the currency notes were mentioned. Necessary instructions were given to the complainant as well as both the panchas how to act during the trap. Thereupon the complainant, panchas and the members of the raiding party proceeded to Junagadh from Rajkot. They reached at 20.30 hours at Junagadh in the vicinity of Joshipura, where the accused was residing. Thereupon the complainant and panch No.1, Kishorebhai went near the house of the present accused as per the instructions. The remaining members of the raiding party waited there. As the door was closed, the complainant shouted for Lalani, the accused. Then the accused opened the door and came outside and invited the complainant into the house. At that time the accused was wearing a baniyan and lungi. The accused enquired about the identity of the person who accompanied the complainant. The complainant told the accused that he was his relative. The complainant and the panch no.1 occupied the chairs. There was one cot in the said room and the accused sat on the cot. The accused asked the complainant as to what happened to the money he was supposed to bring. The complainant replied that though he has got the claim bill and used the money long back, there was much delay in making the payment to the accused. On saying this, he took out the currency notes from his bush shirt and handed them over to the accused which the accused received with his left hand and after counting with both the hands, he put the said currency notes under the pillow which was kept on the cot. Thereupon the complainant asked for the toilet. The accused told the complainant that the toilet is outside and thus, the complainant opened the door and came outside the house and signalled the members of the raiding party. The raiding team rushed there and P.I., Mr Sarvaiya, after giving introduction to the accused, asked about the money which was given by the complainant. The accused replied that he has not taken any money. Thereupon the complainant told the accused that he had given the money and that it was kept by the accused under the pillow on the cot. Thereupon, as per the instructions of the I.O., panch No.1, PW 2. took out the money kept under the pillow and handed it over to the P.I. The P.I. inspected the hands of the accused in the ultraviolet lamp and bluish marks were seen. Panch No.1 narrated everything which had taken place between the complainant and the accused in the room to the P.I. In the presence of both the panchas, the tainted currency notes were counted and tallied and the hands were seen under the ultra violet lamp. No marks of anthracene powder was seen in their hands, but when the hands of the complainant and the left pocket of the bush shirt were seen under the ultraviolet lamp, the powder marks were found. Similarly, the particular portion of the cover of pillow and the bed sheet were circled with red colour and when seen in the ultraviolet lamp, anthracene powder marks were found. The pillow cover, bed sheet and the tainted currency notes were seized. Thereupon second part of panchnama was drawn and then the I.O., during the investigation recorded the statements of the concerned persons and also recovered the necessary documents in connection with the crime. At the end of the investigation, charge sheet was filed in the Special Court. The learned Special Judge framed charge at Exh.11 on 15.5.1996 for the offences punishable under section 161 of IPC and under section 5 (2) of the Act and it was read over to the accused and the accused denied the charges levelled against him and claimed to be tried.