Upgrad LLM

demanding rs. 50 for copies

ADVISOR

 

                                                                  REPORTABLE
 
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
 
                       CRIMINAL APPEAL NO. 97 OF 2012
 
 
NARENDRA CHAMPAKLAL TRIVEDI                        …..Appellant
 
                                   Versus
 
STATE OF GUJARAT                                  ….Respondent
 
                                    WITH
 
                       CRIMINAL APPEAL NO. 98 OF 2012
 
HARJIBHAI DEVJIBHAI CHAUHAN                  … Appellant
 
                                   Versus
 
STATE OF GUJARAT                                        ….Respondent
 
 
                               j u d g m e n t
 
Dipak Misra, J.
 
 
      The present appeals are directed against the  judgment  of  conviction
and order of sentence dated 14.10.2011 passed by the  learned  Single  Judge
of the High Court of Gujarat at Ahmedabad     in Criminal Appeal No.  31  of
1999 whereby the appellate court      has confirmed the judgment  and  order
of conviction and       sentence dated 1st of December, 1998 passed  by  the
learned Additional Special  Judge,  Bhavnagar  in  Special  Case  No.  6  of
1994, wherein  the  learned  Additional  Special  Judge  had  convicted  the
appellants for the offence punishable under Section 7 of the  Prevention  of
Corruption Act, 1988 (for brevity `the Act’) and sentenced them  to  undergo
rigorous imprisonment of  six  months  with  fine  of  Rs.5,000/-  each,  in
default of payment of fine, to suffer simple imprisonment for  a  period  of
one month and further convicted them under Section  13(2)  of  the  Act  and
sentenced them to undergo rigorous imprisonment for a  period  of  one  year
with a fine of Rs.5,000/- each, in default, to  suffer  simple  imprisonment
for a period of one month with  the  stipulation  that  both  the  sentences
would be concurrent.
 
2.    The broad essential  facts  of  the  prosecution  case  are  that  the
complainant, Gajendra Jagatsinh Jadeja,  was  residing  in  Plot  No.  1  in
Virbhadranagar Society.  As in the City Survey Office record,  the  name  of
his grandfather stood recorded in respect of the premises in  question,  the
complainant in order to obtain the property  card  and  the  sketch  of  the
same,  went to the office of the  City  Survey  Office,  Bhavnagar  on  11th
March, 1994, to submit an application for the aforesaid purpose and  he  was
asked by Mr. Jagani, Clerk in the said office to  come  on  15th  of  March,
1994.  On the said date, the complainant at about  1.30  p.m.  went  to  the
City Survey Office and gave the application to Mr. Jagani, who asked him  to
hand over the application to Narendra Champaklal Trivedi, the  appellant  in
Criminal Appeal No. 97 of 2012, sitting in the opposite room  who  told  him
that it  would  take  a  week’s  time  to  prepare  the  said  copies.   The
complainant made a request to Shri Jagani to expedite the matter as  he  had
to go to meet his father with the copies and  Mr.  Jagani  replied  that  it
would cost him Rs.50/- to get the copies immediately.   As  the  complainant
had no money at that time he  was  asked  by  Jagani  to  meet  Trivedi  and
Harjibhai Devjibhai Chauhan, the appellant in Criminal  Appeal  No.  98/2012
who told him that the copies would be given to him on payment and  he  could
receive the copies between 4.30 to  4.50  p.m.   As  the  appellant  had  no
intention to make  the  payment,  he  approached  the  office  of  the  Anti
Corruption Bureau which was situate on the ground floor of his premises  and
gave a complaint to the Police Inspector.  The  concerned  inspector  sought
assistance of two panch witnesses who were made to understand the  case  and
thereafter experiment of  U.V.  Lamp  was  carried  out  with  the  help  of
anthrecene powder.  Thereafter, the complainant produced the currency  notes
and necessary instructions were given to the complainant as well as  to  the
witnesses.  A preliminary part of the panchnama was drawn and signatures  of
the panchas were taken and thereafter, the complainant, the panchas and  the
members of the raiding party proceeded to the City Survey Office.
 
3.    As the narration of the prosecution case proceeds,  Jagani  asked  the
complainant to meet said Chauhan and pay the money.  Being instructed,  they
went to the room of said Chauhan and he was directed to pay Rs.  7.10  paise
as  fees  to  said  Trivedi  and  obtain  the  property  card  and   sketch.
Thereafter, said Chauhan demanded money from the complaint  as  decided  and
on being asked whom to hand over the amount, Chauhan  said  to  give  it  to
Trivedi and Trivedi  was  asked  to  accept  the  amount.   Thereafter,  the
complainant took out the money from his left pocket of the shirt and  handed
over to Trivedi which was  accepted  by  Trivedi  by  his  right  hand.   He
counted the money by both hands and put the same in the left side pocket  of
his shirt.  As pre-decided, the signal was given to the raiding party  which
rushed to the place of the incident.  Thereafter,  the  experiment  of  U.V.
Lamp was carried out on the fingers of both the hands and palms  of  Trivedi
and pocket also and thereon light blue fluorescent marks were found.   Panch
witness No. 1 took out the currency notes from Trivedi.  There were two  ten
rupee notes and one five rupee note.  On those currency  notes,  light  blue
fluorescent marks were found with the numbers mentioned on  the  first  part
of the panchnama.  On being asked about the rest of the money,  Trivedi  had
said that he had given it to Chauhan.  Experiment of U.V. Lamp was  made  on
the hands and pockets of Trivedi and  Chauhan  and  light  blue  fluorescent
marks of anthrecene powder was found.  The currency notes were tallied  with
the numbers mentioned on the first part of the  panchnama.   From  both  the
accused-appellants, currency  notes  were  recovered,  marks  of  anthrecene
powder were found and the second part of the panchnama  was  prepared.   The
Investigating  Officer  carried  out  further  investigation,  recorded  the
panchnama and after obtaining requisite sanction, he  laid  the  chargesheet
before the Competent Court on 25th of August 1994.
 
4.    The learned trial Judge framed charges  in  respect  of  the  offences
that have been mentioned hereinbefore.  The appellants  pleaded  not  guilty
and sought to be tried.
 
5.    In order to bring home the charges levelled  against  the  appellants,
the prosecution  examined  number  of  witnesses  and  produced  documentary
evidence in support of the case.
 
6.    The accused-appellants in their statements under Section  313  of  the
Code of Criminal Procedure disputed the charges that they had  demanded  the
amount towards  illegal  gratification  but  did  not  want  to  adduce  any
evidence in their defence.
 
7.    The learned  trial  Judge,  appreciating  the  oral  as  well  as  the
documentary evidence and taking into consideration the submissions  advanced
by the parties, found the appellants guilty and convicted them as  has  been
stated hereinabove.
 
8.    The appellants preferred a singular appeal before the High Court.   It
was contended before the High Court that the learned trial Judge had  failed
to take into consideration the plea of the defence  and  the  inadequacy  of
the material brought on record from which  it  would  be  graphically  clear
that the prosecution had miserably failed to prove its case that  there  was
demand of bribe  and  acceptance  thereof  and  hence,  the  ingredients  of
Sections 7 and 13 of the Act had not been established.  It was  argued  that
neither the FIR nor the  testimony of  the  complainant  remotely  establish
that there was a demand for bribe and  once  the  said  core  fact  was  not
proven, the charges levelled against them were  bound  to  collapse  like  a
pack of cards.  It was urged that as  the  office  of  the  Anti  Corruption
Bureau had been leased out by the complainant,  he  was  able  to  rope  the
accused-appellants in a bogus trap  and  falsely  implicate  them.   It  was
further contended that the complainant and Panch witness No.  1  had  stated
in the cross-examination that Trivedi had not made  any  demand  of  Rs.50/-
from the complainant and the recovery of the trapped  amount  had  also  not
been proven inasmuch as the panchas are not independent witnesses and  their
evidence did not merit any acceptance.  It was  proponed  that  the  learned
trial Judge had failed to consider the fact that Jagani  who  was  the  main
culprit was not  booked  under  law  and,  therefore,  the  prosecution  had
deliberately severed the link to rope in the appellants and hence, it was  a
malafide  prosecution.   It  was  also  submitted  that  there  were   other
witnesses in the  room  but  the  prosecution  chose  to  examine  only  the
interested witnesses and in essence, the  judgment  of  conviction  suffered
from perversity of approach and deserved to be axed.
 
9.    The learned counsel for the State urged before  the  High  Court  that
the emphasis laid on Jagani not being arrayed  as  an  accused  was  totally
inconsequential as he had never made any demand from  the  complainant.   He
referred to various documents on record and the testimony of  the  witnesses
that the charges levelled against the accused persons  had  been  proven  to
the hilt and there was nothing on record which would remotely  suggest  that
they had been falsely implicated.  The relationship between the  complainant
and the ACB officer could not be taken  into  consideration  to  come  to  a
conclusion that the complaint was false, malafide and  the  accused  persons
had been deliberately roped in.  It was canvassed by  him  that  the  amount
had been recovered from the pocket of Trivedi and the demand had  been  made
by the accused Chauhan to handover the amount of  illegal  gratification  to
Trivedi.  The offence was committed with the consent of both  and  the  same
had been established by the oral  and  documentary  evidence.   The  learned
counsel for the State gave immense emphasis on  the  version  of  the  Panch
witnesses, the scientific proof and the testimony of the  trapping  officer.
The  principle  of  presumption  was  pressed  into  service  and  the  said
contention was edificed by putting forth  the  stance  that  the  cumulative
effect of the evidence  on  record  clearly  satisfied  the  ingredients  of
Sections 7 and 13(2) read with Section 13(1)(d) of the  Act  to  bring  home
the charges levelled against the accused persons.
 
10.   The learned single Judge  took  note  of  the  facts  as  regards  the
presence of the accused appellants in the  room,  the  demand  made  by  the
appellant No. 2, Chauhan, in the presence of the Panch witness  No.  1,  the
direction by Chauhan to hand  it  over  to  Trivedi  which  established  the
consent, the deposition of PW-2 about the involvement and complicity of  the
appellants in the crime, the absence of enmity between the  complainant  and
the accused persons, the  unreproachable  aspect  of  the  evidence  of  the
witnesses who stood embedded in their stand,  the  acceptance  and  recovery
that inspired total credence  about  the  demand  and  acceptance,  and  the
principle of presumption being attracted, all of which would go a  long  way
to show that the prosecution had proven the  case  beyond  reasonable  doubt
and further considered the inability of the accused-appellants to rebut  the
presumption as envisaged under Section 20 of the  Act,  the  unacceptability
and farfetchedness of the theory of  existence  of  obligation  between  the
informant and the investigating officer to implicate the  accused-appellants
in the crime, the failure of the appellants to explain  how  the  amount  in
question was found from their  possession  and  how  anthrecene  powder  was
found on their hands and eventually opined that  the  cumulative  aspect  of
all the  facts  and  circumstances  clearly  establish  the  charges  framed
against the appellants.  Being of this view, the  High  Court  affirmed  the
judgment of acquittal.
 
11.   We have heard the learned counsel of both the parties  at  length  and
carefully perused the record.
 
12.   At the outset, we may state that the recovery part  has  gone  totally
unchallenged.  Though a feeble attempt was made before the  High  Court  and
also before us, yet a perusal of the evidence and the test carried out go  a
long way to show that the amount was recovered from the  possession  of  the
accused-appellants.  It is the settled principle of law that  mere  recovery
of the tainted money is not sufficient to record a conviction  unless  there
is evidence that bribe had been demanded or money was paid voluntarily as  a
bribe.  Thus, the only issue that remains to be addressed is  whether  there
was demand of bribe and acceptance  of  the  same.   Be  it  noted,  in  the
absence of any evidence of demand and acceptance of the  amount  as  illegal
gratification, recovery would not alone be a ground to convict the  accused.
 This has been so stated in T. Subramanian v. The State of Tamil Nadu[1].
 
13.   The demand and acceptance of the amount as  illegal  gratification  is
the sine qua non for constituting an offence under  the  Act.   It  is  also
settled in law that there is a statutory presumption  under  Section  20  of
the Act which can be dislodged by the accused by  bringing  on  record  some
evidence, either direct or circumstantial, that money was accepted by  other
than the motive or reward as stipulated under Section 7 of the Act.   It  is
obligatory on the part of the court to consider the explanation  offered  by
the accused under Section 20  of  the  Act  and  the  consideration  of  the
explanation has to be on the anvil of preponderance of probability.   It  is
not to be proven beyond all reasonable doubt.   It  is  necessary  to  state
here that the prosecution is bound to establish that there  was  an  illegal
offer of bribe and acceptance thereof.   The  same  has  to  be  founded  on
facts.  In this context, we may refer with profit  to  the  decision  in  M.
Narsinga  Rao v. State of A.P.[2] wherein a three-Judge  Bench  referred  to
Section 20 of the Act and stated that the only  condition  for  drawing  the
legal presumption under Section 20 is that during trial it should be  proved
that the accused has accepted or agreed to accept  any  gratification.   The
section does not say that the said condition  should  be  satisfied  through
direct evidence.  Its only requirement is that it must be  proved  that  the
accused has accepted or agreed to  accept  the  gratification.   Thereafter,
the Bench produced a passage from Madhukar  Bhaskarrao  Joshi  v.  State  of
Maharashtra[3] with approval.  It reads as follows: -
 
       “The  premise  to  be  established  on  the  facts  for  drawing  the
presumption is that there was payment or acceptance of gratification.   Once
the said premise is established the inference to be drawn is that  the  said
gratification was accepted ‘as motive or reward’ for doing or forbearing  to
do any official act.  So the word ‘gratification’ need not be  stretched  to
mean reward because reward is the  outcome  of  the  presumption  which  the
court has to  draw  on  the  factual  premise  that  there  was  payment  of
gratification.  This will again be fortified by looking at  the  collocation
of two expressions  adjacent  to  each  other  like  ‘gratification  or  any
valuable thing’.  If acceptance of any valuable thing can help to  draw  the
presumption  that  it  was  accepted  as  motive  or  reward  for  doing  or
forbearing to do an official act, the word ‘gratification’ must  be  treated
in the context to mean any payment for giving  satisfaction  to  the  public
servant who received it.”
 
14.   In Raj Rajendra Singh  Seth  v.  State  of  Jharkhand  &  Anr.[4]  the
principle laid down in Madhukar Bhaskarrao Joshi (supra) was reiterated.
 
15.   In State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede[5], it  has
been held that to arrive at the conclusion that there had been a  demand  of
illegal  gratification,  it  is  the  duty  of  the  court  to   take   into
consideration the  facts  and  circumstances  brought  on  record  in  their
entirety and for the said purpose, undisputedly,  the  presumptive  evidence
as  laid  down  in  Section  20  of  the  Act  must  also  be   taken   into
consideration.
 
16.   In C.M. Girish Babu v. C.B.I., Cochin, High Court of Kerala[6],  after
referring  to  the  decisions  in  M.Narsinga  Rao  (supra)   and   Madhukar
Bhaskarrao Joshi (supra), this Court has held thus: -
 
“19.  It is well settled that the presumption to be drawn under  Section  20
is not an inviolable one.  The accused charged with the offence could  rebut
it either through the cross-examination of the witnesses cited  against  him
or by adducing reliable evidence.  If the  accused  fails  to  disprove  the
presumption the same would stick and then it can be held by the  Court  that
the prosecution has proved that the  accused  received  the  amount  towards
gratification.”
 
17.   In the case at hand, the money was recovered from the pockets  of  the
accused-appellants.  A presumption under  Section  20  of  the  Act  becomes
obligatory.  It is a presumption of law  and  casts  an  obligation  on  the
court to apply it in every case brought under Section 7  of  the  Act.   The
said presumption is a rebuttable one.  In the present case, the  explanation
offered by the accused-appellants has not  been  accepted  and  rightly  so.
There is no evidence  on  the  base  of  which  it  can  be  said  that  the
presumption has been rebutted.
 
18.   The learned counsel for  the  appellant  has  submitted  with  immense
force that admittedly there has been no demand or  acceptance.   To  bolster
the said aspect,  he  has  drawn  inspiration  from  the  statement  of  the
complainant in examination-in-chief.  The said statement, in our  considered
opinion, is not to be read out of context.  He has clarified as regards  the
demand and acceptance at various places in his examination  and  the  cross-
examination.  The shadow witness has clearly stated that  there  was  demand
of bribe and giving of the same.  Nothing has  been  brought  on  record  to
doubt the presence of the shadow witness.  He had  given  the  signal  after
which the trapping party arrived at the scene and did the needful.  All  the
witnesses have supported the case of the prosecution.   The  currency  notes
were recovered from the possession of the appellants.  In the lengthy cross-
examination nothing has really been elicited to  doubt  their  presence  and
veracity of the testimony.  The appellants in their statement under  Section
313 of the Code of Criminal Procedure have made an adroit effort to  explain
their stand but we have no hesitation in stating that they miserably  failed
to dislodge  the  presumption.   PW-2  has  categorically  stated  that  the
complainant took out Rs.50/- from his pocket and  gave  it  to  the  accused
appellant as directed.  Thus  analysed  and  understood,  there  remains  no
shadow of doubt that the  accused-appellants  had  demanded  the  bribe  and
accepted the same to provide the survey report.  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.
 
19.   The learned counsel for the appellants had, in the course  of  arguing
the appeal, submitted that the appellants have suffered enough as they  have
lost their jobs and  the  amount  is  petty,  the  said  aspects  should  be
considered as mitigating factors for reduction of  the  sentence.   Sympathy
has also been sought to be drawn on the foundation that the  occurrence  had
taken place almost 18 years back and the amount is paltry.  On a perusal  of
Section 7(1) of the Act, it is perceptible that when an  offence  is  proved
under  the  said  section,  the  public  servant  shall  be  punished   with
imprisonment which shall not be less than six months but  which  may  extend
to five years and shall also be liable to fine.  Section 13(2)  of  the  Act
postulates that any public servant who commits criminal misconduct shall  be
punishable with imprisonment for a term which shall not  be  less  than  one
year but which may extend to seven years and shall also be liable  to  fine.
As is demonstrable from the impugned judgment, the learned trial  court  has
imposed the minimum sentence and the High Court has affirmed the same.
 
20.   The submission of the  learned  counsel  for  the  appellants,  if  we
correctly understand, in essence, is that power under  Article  142  of  the
Constitution should be invoked.  In this context, we may refer  with  profit
to the decision of this Court in Vishweshwaraiah  Iron  and  Steel  Ltd.  V.
Abdul Gani and Ors.[7] wherein it has  been  held  that  the  constitutional
powers under Article  142  of  the  Constitution  cannot,  in  any  way,  be
controlled by any statutory provision but at the  same  time,  these  powers
are not meant to be exercised when  their  exercise  may  come  directly  in
conflict with what has been expressly provided for in  any  statute  dealing
expressly with the subject.  It was also made clear  in  the  said  decision
that this Court cannot altogether ignore the  substantive  provisions  of  a
statute.
 
21.   In Keshabhai Malabhai Vankar v. State of Gujarat[8], it has been  held
as follows: -
 
“6.   It is next contended that  this  Court  in  exercise  of  power  under
Article 142 of the Constitution has plenary power to  reduce  the  sentence.
We are afraid that we cannot ignore the  statutory  object  and  reduce  the
minimum sentence prescribed under the Act.  Undoubtedly  under  Article  142
the Supreme Court has the power untrammelled by  any  statutory  limits  but
when  penal  offences  have  been  prescribed  for  violation  of  statutory
regulations for production, equitable supply and distribution  of  essential
commodities at fair prices, it was done in the social  interest  which  this
Court would keep in mind  while  exercising  power  under  Article  142  and
respect the legislative policy to impose  minimum  sentence.   Amendment  to
the Act was made to stamp out the statutory violations with impunity.   Thus
we find that it is not a fit case warranting interference.   The  appeal  is
accordingly dismissed.”
 
22.   In Laxmidas Morarji (Dead) by LRS. v. Behrose Darab Madan[9],  it  has
been ruled thus: -
 
“Article 142 being in the nature of a residuary  power  based  on  equitable
principles, the Courts have thought it advisable to leave the  powers  under
the article undefined.  The power under Article 142 of the  Constitution  is
a constitutional power and hence, not restricted  by  statutory  enactments.
Though the Supreme Court would not pass any order under Article 142  of  the
Constitution which would amount to supplanting  substantive  law  applicable
or ignoring express statutory provisions dealing with the  subject,  at  the
same time these constitutional powers cannot in any way,  be  controlled  by
any statutory provisions.  However, it is to be made clear that  this  power
cannot be used to supplant the law applicable to the case.  This means  that
acting under Article 142, the Supreme Court cannot pass an  order  or  grant
relief which is totally inconsistent or  goes  against  the  substantive  or
statutory enactments pertaining to the case.”
 
23.   In view of the aforesaid  pronouncement  of  law,  where  the  minimum
sentence is provided, we think  it  would  not  be  at  all  appropriate  to
exercise jurisdiction under Article 142 of  the  Constitution  of  India  to
reduce the sentence on the ground of the  so-called  mitigating  factors  as
that would tantamount to supplanting statutory mandate and further it  would
amount to ignoring  the  substantive  statutory  provision  that  prescribes
minimum sentence for a criminal act relating to  demand  and  acceptance  of
bribe.  The amount may be small  but  to  curb  and  repress  this  kind  of
proclivity the legislature has prescribed the minimum sentence.   It  should
be paramountly borne in mind that corruption at any level does  not  deserve
either sympathy or leniency.  In fact, reduction of the  sentence  would  be
adding a premium.   The  law  does  not  so  countenance  and,  rightly  so,
because corruption corrodes the spine  of  a  nation  and  in  the  ultimate
eventuality makes the economy sterile.
 
24.   The appeals, being sans substratum, stand dismissed.
                              ............................................J.
                                                         [Dr. B. S. Chauhan]
 
 
 
                              ............................................J.
                                                               [Dipak Misra]
 
New Delhi;
May 29, 2012
-----------------------
[1]    AIR 2006 SC 836
[2]    (2001) 1 SCC 691
[3]    (2000) 8 SCC 571
[4]    AIR 2008 SC 3217
[5]    (2009) 15 SCC 200
[6]    AIR 2009 SC 2022
[7]    AIR 1998 SC 1895
[8]    1995 Supp (3) SCC 704
[9]    (2009) 10 SCC 425
 
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