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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.

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