advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, October 3, 2014

Section 7 & Section 13(d)(i)(ii)(iii) read with Section 13(2) of the Prevention of Corruption Act, 1988 - Trial court convicted the accused - High court confirmed the same - Apex court held that the Special Judge had convicted the appellant-The appellant is said to be 60 years old and suffering from heart disease, facial nerve palsy and speech disorder. Copies of medical reports have been filed in this regard. We are of the view that the imposition of minimum sentence prescribed for the offences for which the conviction is made would meet the ends of justice. In the result the sentence of one year rigorous imprisonment imposed on the appellant-accused for the conviction under Section 7 of the Act is set aside and instead he is sentenced to undergo rigorous imprisonment for a period of six months and the sentence of fine and default sentence imposed on him for the said conviction is retained. Sentence of two years rigorous imprisonment imposed on the appellant-accused for the conviction under Section 13(1)(d) read with Section 13(2) of the Act is set aside and instead he is sentenced to undergo rigorous imprisonment for a period of one year and the sentence of fine and default sentence imposed on him for the said conviction is retained. The sentences are to run concurrently. The Criminal appeal is allowed to the extent indicated above.= CRIMINAL APPEAL NO.1864 OF 2011 Somabhai Gopalbhai Patel … Appellant versus State of Gujarat … Respondent = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41954

 Section 7 & Section 13(d)(i)(ii)(iii) read with Section 13(2)   of the  Prevention  of Corruption Act, 1988  - Trial court convicted the accused - High court confirmed the same - Apex court held that  
the Special Judge had convicted the  appellant-The appellant is said to be  60  years  old  and suffering  from heart disease, facial nerve palsy and speech disorder.   Copies  of  medical
reports have been filed in this  regard.   We  are  of  the  view  that  the imposition  of minimum sentence prescribed for the offences  for  which  the conviction is made would meet the ends of justice. In the result the sentence of one year rigorous imprisonment imposed on  the
appellant-accused for the conviction under Section  7  of  the  Act  is  set aside and instead he is sentenced to undergo  rigorous  imprisonment  for  a period of six months and the sentence of fine and default  sentence  imposed on him for the said conviction is retained.  Sentence of two years  rigorous imprisonment imposed on  the  appellant-accused  for  the  conviction  under Section 13(1)(d) read with Section  13(2)  of  the  Act  is  set  aside  and instead he is sentenced to undergo rigorous imprisonment  for  a  period  of one year and the sentence of fine and default sentence imposed  on  him  for the said conviction is retained.  The sentences  are  to  run  concurrently.
The Criminal appeal is allowed to the extent indicated above.=

accused  for the offence  punishable
under Section 7 of the  Prevention  of
Corruption Act, 1988, and sentenced him to undergo Rigorous Imprisonment  of
one year and to pay  a  fine  of  Rs.1000,  in  default  to  undergo  simple
imprisonment  for  six  months  and
further  convicted  him
under  Section 13(d)(i)(ii)(iii) read with Section 13(2) of the said Act and sentenced  him
to undergo Rigorous Imprisonment   for a period    of two years and  to  pay
a fine of Rs.1500, in default to undergo simple imprisonment for six  months
with stipulation that the sentences  would run concurrently.=
High court confirmed the appeal

Now before the Apex court
Grounds raised 
There is no evidence to prove demand and  voluntary  acceptance  of  illegal
gratification

The recovery of the currency notes  from  the  accused  had  also  not  been
proved inasmuch as panchas are not independent witnesses and their  evidence
did not merit any acceptance.

Without prejudice to the  above  contentions  it  is  also  urged  that  the
sentence awarded to the appellant is unreasonably  excessive   and  deserves
reduction.
whether  there  is  sufficient
legal evidence on record to bring home the guilt of the  appellant  for  the
offence under Sections 7 and 13(1)(d) read with Section 13(2)  of  the  Act.=

The accused has not  substantiated  the  said  plea  by  producing  any
document relating to tax due and it appears to be only an afterthought.  The
Courts below have rightly not accepted the said explanation offered by  him.
 We have no hesitation in stating  that  the  accused  miserably  failed  to
dislodge the presumption under Section 20 of the  Act.   Thus  analysed  and
understood, there remains no shadow of doubt that the appellant-accused  had
demanded the bribe and accepted the same to  provide  the  documents  sought
for by the complainant.  Therefore, the conviction recorded by  the  learned
trial judge which has been affirmed by the learned single Judge of the  High
Court does not warrant any interference.

What remains is the plea made on behalf of the appellant  for  reduction  of
sentence.  The appellant is said to be  60  years  old  and  suffering  from
heart disease, facial nerve palsy and speech disorder.   Copies  of  medical
reports have been filed in this  regard.   We  are  of  the  view  that  the
imposition  of minimum sentence prescribed for the offences  for  which  the
conviction is made would meet the ends of justice.



In the result the sentence of one year rigorous imprisonment imposed on  the
appellant-accused for the conviction under Section  7  of  the  Act  is  set
aside and instead he is sentenced to undergo  rigorous  imprisonment  for  a
period of six months and the sentence of fine and default  sentence  imposed
on him for the said conviction is retained.  Sentence of two years  rigorous
imprisonment imposed on  the  appellant-accused  for  the  conviction  under
Section 13(1)(d) read with Section  13(2)  of  the  Act  is  set  aside  and
instead he is sentenced to undergo rigorous imprisonment  for  a  period  of
one year and the sentence of fine and default sentence imposed  on  him  for
the said conviction is retained.  The sentences  are  to  run  concurrently.
The Criminal appeal is allowed to the extent indicated above.
 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41954

                                                          REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1864 OF 2011


Somabhai Gopalbhai Patel                …     Appellant

                                   versus

State of Gujarat                            …    Respondent


                               J U D G M E N T

C. NAGAPPAN, J.



This appeal is preferred against the judgment dated 14.2.2011 passed by  the
learned single Judge of the High Court of Gujarat at  Ahmedabad  whereby  it
has confirmed the  judgment  of  conviction  and  sentence  dated  21.3.1997
passed by the learned Special Judge,  Banaskandha  at  Palampur  in  Special
Case No.215 of 1992, wherein the Special Judge had convicted the  appellant-
accused  for the offence  punishable  under Section 7 of the  Prevention  of
Corruption Act, 1988, and sentenced him to undergo Rigorous Imprisonment  of
one year and to pay  a  fine  of  Rs.1000,  in  default  to  undergo  simple
imprisonment  for  six  months  and  further  convicted  him  under  Section
13(d)(i)(ii)(iii) read with Section 13(2) of the said Act and sentenced  him
to undergo Rigorous Imprisonment   for a period    of two years and  to  pay
a fine of Rs.1500, in default to undergo simple imprisonment for six  months
with stipulation that the sentences  would run concurrently.



Briefly the facts are  stated  thus:  PW1  Girishbhai  is  the  son  of  PW2
Ranchhodbhai and they owned 28  bighas  of  agricultural   land  in  village
Ratanpur.  There was a borewell in the said land fitted  with  10  HP  motor
and it was not bailing out  sufficient  water  and  hence  they  planned  to
replace it with 15 HP motor.  In order to  submit  an  application  for  the
said purpose to the Electricity Board, they needed  documents  like  village
form No.7, 12, 8-A,  map  from  revenue  record  and  certificate  regarding
sufficiency of the water in the  borewell,  and  therefore,  PW1  Girishbhai
approached the appellant/accused Somabhai Gopalbhai Patel  who  was  Talati-
cum-Mantri  at Ratanpur village and requested   for  issuance  of  documents
and the accused asked PW1 Girishbhai to come with money and meet him in  his
office at Ratanpur.  When PW1 inquired the accused as to how much  money  he
has to bring, the accused told him to pay the amount as per his desire.  PW1
Girishbhai lodged Exh.12 complaint in the office of  Anti-Corruption  Bureau
at Palanpur against the accused.  The  Investigation  Officer  on  receiving
the complaint on 20.11.1991 sought assistance of  two  Panch  witnesses  who
were  government  servants  and  made  them  to  understand  the  case   and
thereafter experiment of  U.V.  lamp  was  carried  out  with  the  help  of
anthrecene powder. Thereafter the complainant  produced  currency  notes  of
Rs.300 comprising of two notes of  Rs.100  denomination  and  two  notes  of
Rs.50 deomination  and  a  preliminary  part  of  Panchnama  was  drawn  and
signature of Panchas were taken and anthracene powder was   applied  to  the
said notes in the presence of Panch  witnesses.   PW1  Girishbhai  took  the
said currency notes in his shirt pocket and alongwith  PW3  Ismailbhai  went
in his scooter to the office of the  Ratanpur  Panchayat.  The  accused  was
sitting in his chair in the office and both  of   them  occupied  chairs  in
front of the accused. PW1 Girishbhai  told  the  accused  that  as  per  the
earlier talk he had come to take the documents and the accused  handed  over
the documents and PW1 Girishbhai asked the accused as to what is the  amount
he should give for it and the accused told him to pay whatever he  wants  to
give.  PW1 Girishbhai gave Rs.250/- and the  accused put  the  same  in  his
left side shirt pocket. On giving signal, the raiding party came  there  and
the experiment of U.V. lamp was carried out on the hands  and shirt   pocket
of the accused and light blue fluorescent marks of anthrecene were found  on
the right hand thumb and the pocket also. Pancha No.2 took out the  currency
notes from the left side pocket of the accused and on those  currency  notes
light blue florescent marks of anthrecene powder were found and the  numbers
tallied with the numbers mentioned on the first part of the Panchnama.   The
second copy of the panchnama was  prepared  and  the  Investigation  Officer
carried out further investigation and after  obtaining  requisite  sanction,
laid the chargesheet against the accused.



   The learned trial judge framed the charges in  respect  of  the  offences
mentioned hereinbefore.  The accused pleaded not guilty  and  sought  to  be
tried.  The prosecution examined  six  witnesses  and  produced  documentary
evidence.  The accused was  examined  under  Section  313  of  the  Code  of
Criminal Procedure and answers  were recorded.  Exh.  50  is  the  statement
given by him.  The trial court  found the accused guilty of the charges  and
convicted and sentenced him as stated supra.  The accused  preferred  appeal
and the High Court dismissed the same by impugned judgment.  That  is  under
challenge before us.



The learned counsel appearing for the appellant has raised challenge to  the
impugned judgment, inter alia, but primarily on the following grounds:



There is no evidence to prove demand and  voluntary  acceptance  of  illegal
gratification



The recovery of the currency notes  from  the  accused  had  also  not  been
proved inasmuch as panchas are not independent witnesses and their  evidence
did not merit any acceptance.



Without prejudice to the  above  contentions  it  is  also  urged  that  the
sentence awarded to the appellant is unreasonably  excessive   and  deserves
reduction.



Reliance was placed on the following decisions of this Court : 1. A.  Subair
vs. State of Kerala (2009) 6 SCC 587;  2. State of Kerala  and  another  vs.
C.P. Rao (2011) 6 SCC 450; 3. Banarsi Dass vs. State  of  Haryana  (2010)  4
SCC 450 and 4. B.Jayaraj vs. State of A.P. 2014 (4) SCALE 81.



Per contra the learned counsel appearing for the State  contended  that  the
judgment of conviction and sentence  is  duly  supported  by  the  oral  and
documentary evidence produced by the prosecution and does not call  for  any
interference.   Emphasis was made to the version  of  panch  witnesses,  the
scientific proof and the testimony of  the  Investigation  Officer  and  the
principle of presumption was pressed into service to bring home the  charges
leveled against the accused. In support of the   submission   reliance   was
placed on the decision of this Court  in  Narendra  Champaklal  Trivedi  vs.
State of Gujarat (2012) 7 SCC 80.



The primary requisite of an offence under Section 13(1)(d)  of  the  Act  is
proof of demand or request of a valuable thing or pecuniary  advantage  from
the public servant.  In the first two decisions relied  on  by  the  learned
counsel for the appellant cited supra, on  facts,  the  complainant  in  the
case was not examined and this Court  held  that  there  is  no  substantive
evidence to prove the factum of demand.  The  complainant   in  the  present
case has been examined  and hence those decisions would not be of  any  help
to the appellant  herein.   In the remaining two decisions relied on by  the
learned  counsel  for  the  appellant  referred  to  supra,  on  facts,  the
complainant did not support the prosecution case insofar as demand  made  by
the accused is concerned and disowned his complaint and declared hostile  by
the prosecution and in such circumstances,  this  Court  held  that  in  the
absence of any proof of demand for illegal gratification the use of  corrupt
or illegal means or abuse of position as a  public  servant  to  obtain  any
valuable thing or pecuniary advantage cannot be held to be established.



 The core question in this appeal is  as  to  whether  there  is  sufficient
legal evidence on record to bring home the guilt of the  appellant  for  the
offence under Sections 7 and 13(1)(d) read with Section 13(2)  of  the  Act.
The prosecution examined the complainant Girishbhai as PW1 in the  case  and
in his examination-in-chief he has testified that he met the  Talati  namely
the accused and asked him to issue the documents he has applied for and  the
Talati asked him to come with money and meet him in his office  at  Ratanpur
and the Talati had not told him as to how much money he  has  to  bring  and
since Talati was asking for bribe from him, he went to  the  office  of  ACB
and informed the demand of bribe made by accused  to  the  police  inspector
and also gave Exh. 12 complaint  which  bears  his  signature.   It  is  his
further testimony that the  police  inspector  on  receiving  the  complaint
sought assistance of two panch-witnesses who were  made  to  understand  the
case and he gave two currency  notes  of  Rs.100  in  denomination  and  two
currency notes of Rs.50  in  denomination   and  the  Investigation  Officer
noted the numbers of the said currency notes and a  powder  was  applied  to
the said notes and as per instruction he had put the notes in his left  side
pocket of the shirt and along with one panch witness went to the  office  of
Talati at Ratanpur in his scooter.  According  to  the  complainant,  Talati
was sitting in his chair in the office and they also  took  their  seats  in
front of him and he demanded the documents and the accused handed  over  the
same in the presence of panch witness and at that time he asked the  accused
as to what amount he has to give to him and thereafter he put Rs.250 on  his
table and the accused told him that he has to take about Rs.100 but he  went
from there and gave signal upon which the raiding  party  came  in  and  the
Investigation Officer took the currency notes  from  the  accused.  At  this
point  of  time  during  the  chief  examination,  public  prosecutor  asked
permission of the Court to put questions in the nature of  cross-examination
to PW1 and permission was granted.  It is relevant to  point  out  that  PW1
was not declared hostile but the  prosecution  sought  permission  to  cross
examine him and that was granted.  As  seen  above  in  the  examination-in-
chief  itself  PW1  Girishbhai  has  supported  the  prosecution   case   by
testifying about the demand of money made by the accused and the  giving  of
Rs.250 by him to the accused.  There is also corroboration in  the  form  of
testimony  of  shadow  witness.   PW  3  Ismailbhai  was  summoned  by   the
Investigation Officer to act as Panch witness and  made  to  understand  the
case as well as the experiment of U.V. lamp and he  has  testified  that  he
went along with the complainant  PW1  Girishbhai  in  his  scooter   to  the
office of Ratanpur panchayat and they went in and found  the  Talati  namely
the accused sitting in his chair and they sat opposite to him.   It  is  his
further testimony that PW1 Girishbhai told  the  accused  that  as  per  the
earlier talk he had come to take the documents and the accused  handed  over
the same to him and PW1 Girishbhai asked  him  as  to  how  much  amount  he
should give him for it and the accused told him to pay whatever he wants  to
give and PW1 further asked him as to whether Rs.250  would  be  proper   and
the accused said it would be o.k. and thereupon PW1 Girishbhai  took  Rs.250
from his shirt pocket and gave it to the accused and  the  accused  put  the
same in his left pocket by his right hand and PW1 Girishbhai  went  out  and
gave signal  while  he  was  sitting  there.   PW3  Ismailbhai  has  further
testified that  the raiding party rushed in and in the light of  U.V.  Lamp,
light blue colour was shining on the right thumb of  the  accused  and  also
inside his shirt pocket and the other panch witness took the currency  notes
from the pocket of the accused and the light  blue  fluorescent  marks  were
found in the light of U.V. Lamp on the currency notes  and  the  numbers  of
the said notes were tallied with the numbers of the notes mentioned  in  the
first part of the panchnama and the  documents  namely  Exh.  6  to  9  were
seized along with other articles by the Investigation Officer.



The shadow witness has clearly stated in his testimony about the  demand  of
bribe and giving of the same to the accused.  Nothing   has   been   brought
on record  to doubt the presence of the shadow witness. His testimony  fully
corroborates  the  testimony  of  the  complainant  namely  PW1  Girishbhai.
Though the prosecution was permitted to  put  questions  in  the  nature  of
cross-examination to PW1, he  was  never  declared  hostile.   In  fact,  as
already  seen,  PW1  Girishbhai  has  fully  supported  the  case   of   the
prosecution by testifying  about the demand of  illegal  gratification  made
by the accused  to  him  and  acceptance  of  the  same.  In  our  view  the
prosecution has established the demand and the acceptance of the amount   by
the accused  as illegal gratification.



In the same way the recovery of the currency notes from  the  possession  of
the  accused  stood  proved  by  the  testimonies   of  PW3  Ismailbhai  PW6
Madarsing and the Investigation Officer  PW7.   The  serial  number  of  the
currency notes recovered tallied with the  serial  numbers  written  in  the
first part of the panchanama and on the experiment of U.V.  Lamp  anthracene
powder  was found on the toe of right thumb of the accused  and  the  pocket
of his shirt. The accused in his statement given under Section  313  Cr.P.C.
has stated that a sum of Rs.100 was due towards land revenue tax  from   the
complainant and he had only  taken the said  amount  from  him  towards  the
tax. The accused has not  substantiated  the  said  plea  by  producing  any
document relating to tax due and it appears to be only an afterthought.  The
Courts below have rightly not accepted the said explanation offered by  him.
 We have no hesitation in stating  that  the  accused  miserably  failed  to
dislodge the presumption under Section 20 of the  Act.   Thus  analysed  and
understood, there remains no shadow of doubt that the appellant-accused  had
demanded the bribe and accepted the same to  provide  the  documents  sought
for by the complainant.  Therefore, the conviction recorded by  the  learned
trial judge which has been affirmed by the learned single Judge of the  High
Court does not warrant any interference.



What remains is the plea made on behalf of the appellant  for  reduction  of
sentence.  The appellant is said to be  60  years  old  and  suffering  from
heart disease, facial nerve palsy and speech disorder.   Copies  of  medical
reports have been filed in this  regard.   We  are  of  the  view  that  the
imposition  of minimum sentence prescribed for the offences  for  which  the
conviction is made would meet the ends of justice.



In the result the sentence of one year rigorous imprisonment imposed on  the
appellant-accused for the conviction under Section  7  of  the  Act  is  set
aside and instead he is sentenced to undergo  rigorous  imprisonment  for  a
period of six months and the sentence of fine and default  sentence  imposed
on him for the said conviction is retained.  Sentence of two years  rigorous
imprisonment imposed on  the  appellant-accused  for  the  conviction  under
Section 13(1)(d) read with Section  13(2)  of  the  Act  is  set  aside  and
instead he is sentenced to undergo rigorous imprisonment  for  a  period  of
one year and the sentence of fine and default sentence imposed  on  him  for
the said conviction is retained.  The sentences  are  to  run  concurrently.
The Criminal appeal is allowed to the extent indicated above.


                                                             …….…………………...J.
(Madan B. Lokur)


                                                               .…………………………J.
(C. Nagappan)



New Delhi;
September 24, 2014.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.