2005 Supreme(Guj) 355

Gujarat High Court
Judgename :C.K.BUCH
JITENDRAKUMAR JAYANTILAL DHRUVA - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL 894 of 1988
Decided On : 05/10/2005

Headnote:Point in Issue :

       Prevention of Corruption Act, 1947 - Conviction - Appreciation of evidence - Finding of.

       Head Note :

       (a) [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Section 161 - Prevention of Corruption Act, 1947 (Central Act 2 of 1947) - Sections 5(1)(A), 5(1)(D) & 5(2) - Conviction - Appreciation of evidence - Complainant wanted bore in his land and lay down pipeline for irrigation - In order to get sanction appellant accused demand money and agreement was made for payment of Rs. 1,200/- - Out of amount he paid Rs. 500/- and for the rest of the amount of Rs. 700/- of illegal gratification complainant contacted concerned authorities of Anti-corruption Bureau and got accused appellant trapped taking illegal gratification - Admittedly in the case complainant had already made encroachment on land and wanted sanction from TDO for which appellant accused was the main link - Merely because complainant was a wrong door/encroached his evidence cannot be discarded - On the contrary he may be inferred to be anxious and eager to get sanction - Appellant has also not properly explained the presence of anthracene on his hands - Transfer of money from complainant to accused appellant is fully established by prosecution witnesses including complainant and Panch No. 1 - There is no defence on behalf of appellant that amount accepted was not illegal gratification or bribe amount and it was a genuine acceptance - Some of the contradictions in the statement of witnesses pointed out by the learned Counsel for appellant are not material and not sufficient to destroy prosecution story - In view of the facts Court found no illegality or impropriety in convicting the appellant accused.

       Held :

       Though has enlarged this argument in detail and enlargement made is with a view to condemn the conduct of the complainant and to assail his credibility, but following facts are found relevant to the Court after reading the depositions of all the witnesses examined by the prosecution and the judgment under challenge :

       (i) No role of the appellant in actual permission granted by TDO was there, however, he being a Talati-cum-Mantri is the main link between the Revenue Administration of the State and the villagers including the complainant.

       (ii) This is a case of encroachment of land already made and the complainant was anxious to have formal permission.

       (iii) The Executive Committee of the Taluka Panchayat has passed a formal resolution and it would not be possible for this Court to infer that the complainant was not knowing this aspect.

       (iv) The appellant though had taken over as Talati-cum-Mantri in the year 1983, he himself has never reported any encroachment prior to the date of the application for permission made by the complainant to the higher officials or he requested to initiate summary eviction proceedings. The regularization of encroachment if is not uttered then at least the appellant could have informed the TDO and Executive Committee of the Taluka Panchayat that the case placed by the complainant is not of fresh permission but of regularization of an encroachment already made and, therefore, it is not possible for this Court to accept the say of Mr. Anandjiwala that the accused had no role to play in the entire procedure.

       (v) Merely because the complainant was a wrongdoer/encroacher, it would not be legal to discard his version in toto. On the contrary, the Court should accept that such a person must be more anxious and eager to have a letter of formal sanction/permission from the competent authority i.e. TDO.

       (vi) Why a villager was asked to come down to appellants residence or accorded permission to come down to his residence at odd hours of the day i.e., at night hours and that too in the District Head Quarter at Jamnagar. This conduct of the accused cannot be ignored.

       (vii) If a farmer even visits the residential premises of a Talati-cum-Mantri of his village, Secretary of the Panchayat, then at least he should not be treated as a guest though he was at his dinner. The conversation that had taken place, as narrated above, between the appellant and the complainant when the complainant visited the said house second time, even is not accepted to be true, then also the act of asking the complainant as well as the panch No. 1 to go upstairs discloses element of some hidden understanding between the complainant and the appellant.

       (viii) The explanation as to the presence of anthracene powder on both the hands given by the appellant is not found satisfactory. Even if a person shakes hands, then normally both the hands would not have indicated the presence of anthracene powder under U.V. lamp. The recovery of muddamal currency notes from the cupboard and that too from one file corroborates with the say of the complainant and the panch No. 1 that the amount was accepted and the muddamal currency notes were counted by the appellant.

       (ix) Transfer of money from the complainant to appellant in presence of panch No. 1 clearly establishes acceptance of illegal gratification. It is not a defence that the amount accepted was not an illegal gratification or a bribe amount and the same was a genuine acceptance towards some other transaction.

       (x) The appellant has failed in rebutting the legal presumption and the learned trial Judge is found right in raising the presumption and this Court also does not find any strength in the submission of Mr. Anandjiwala that the presumption is reasonably rebutted and there are other infirmities in the case of prosecution.

       (xi) The contradictions and omissions pointed out by Mr. Anandjiwala are not found material and they are not found fatal to the case of the prosecution. On the contrary, this is a case where the prosecution has remained consistent from the very beginning and as per the Rule of best evidence, the story unfolded by the prosecution gets corroboration from the evidence of panch No. 1 as well as Revenue Officers and the documents produced and proved by them. [Para 7]

       In view of totality of facts and circumstances of the case, and reasons above recorded, Court does not find any merit in this appeal and the present appeal is required to be rejected.

        [Para 8]

       (b) [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Section 161 - Prevention of Corruption Act, 1947 (Central Act 2 of 1947) - Sections 5(1)(A), 5(1)(D) & 5(2) - Conviction - Sentence - Imposition of punishment less than minimum prescribed - Scope of - The facts indicates that when petitioner was caught he was a young man and since he remained under suspension and thereafter lost the job and has grown enough old - In case he is allowed to go under imprisonment for one year he shall be disabled in his life lossing all chances of resettlement - Court considering the protraction of the proceedings and other fact situation of continuous pressure on his mind ordered him to undergo the substantive sentence for a period of six months only and also ordered the same to run concurrently - Court however did not disturb the sentence of fine.

       Held :

       In view of the peculiar facts and circumstances of the present case, there is some force in the alternative oral submissions advanced by Mr. Anandjiwala that when the petitioner was caught, he was a young man and since then he remained under suspension and thereafter, he has lost his job. The period of one year imprisonment would make him practically disabled in resettling his life. On confirmation of the conviction, the appellant would suffer tremendous financial loss and other benefits that have been earned by other Government employees in last several years and the rigorous imprisonment of one year is likely to add further instability, not only to the petitioner but also to the socio-economical life of the entire family. The sword of uncertainty on account of pendency of present appeal for several years has also hammered the head of the appellant and that fact situation has resulted into tremendous mental stress and discomfort, which should be taken into account. Considering the protraction of the proceedings and other fact situation as well as circumstances emerging from record, it would be sufficient if the petitioner is asked to undergo the substantive sentence for a period of six months only and to order that the same should run concurrently. The Court is not inclined to disturb the order imposing fine for the offences committed by the appellant, which would meet the ends of justice. [Para 8]

       Law Laid Down :

       Criminal Trial - Prosecution under Prevention of Corruption Act - Complainant - He could not be disbelieved merely because he was himself a wrong door/encroacher in the case.

       Cases Referred :

       Hari Dev Sharma vs. State, Delhi Administration, AIR 1976 SC 1489;; Anantrai Lalji Pandya, 1982 CrLJ 1883;; Mohindro vs. State of Punjab, 2001 (3) Crimes 190;; State of Andra Pradesh vs. V. Vasudev Rao, AIR 2003 SCW 6555.

       Decided in Favour of :

       Respondent

       Appeal Partly Allowed