Trivedi Vs. State of Gujarat
[Criminal Appeal No.
97 of 2012]
Harjibhai Devjibhai Chauhan
Vs. State of Gujarat
[Criminal Appeal No.
98 of 2012]
J U D G M E N T
Dipak Misra, J.
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 Ahmadabad in Criminal Appeal No. 31 of1999 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 of1994, 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.
broad essential facts of the prosecution case are that the complainant,
Gajendra Jagatsinh Jadeja, was residing in Plot No. 1 in Virbhadra nagar
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 11thMarch, 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. 98/2012who 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
complainant produced the currency notes and necessary instructions were given
to the complainant as well as to the witnesses. A preliminary part of the panch
nama 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.
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 paiseas 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 charge sheet before the Competent
Court on 25th of August 1994.
learned trial Judge framed charges in respect of the offences that have been
mentioned hereinbefore. The appellants pleaded not guilty and sought to be
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.
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
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.
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
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
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.
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
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.
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.
have heard the learned counsel of both the parties at length and carefully
perused the record.
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 along 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
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.
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
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.
In Raj Rajendra Singh Seth v. State of Jharkhand & Anr. the principle
laid down in Madhukar Bhaskarrao Joshi (supra) was reiterated.
State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede , 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 intoconsideration.
C.M. Girish Babu v. C.B.I., Cochin, High Court of Kerala, 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 20is 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.
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.
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.
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.
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.
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 astatute.
Keshabhai Malabhai Vankar v. State of Gujarat , 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 142the Supreme Court has
the power untrammeled 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
In Laxmidas Morarji (Dead) by LRS. v. Behrose Darab Madan, 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.
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.
appeals, being sans substratum, stand dismissed.
[Dr. B. S. Chauhan]