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PETITIONER: SHANTILAL KASHIBHAI PATEL

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT02/11/1992

BENCH: [KULDIP SINGH AND YOGESHWAR DAYAL, JJ.]

ACT: Indian Penal Code: Section 161. Prevention of  Corruption Act,  1947. Sections  5(1) (d) and 5(2). Demand for  illegal gratification-Statement  of complainant- Not   coroborated-Not    supported   by   panch   witnesses- Complainant-Admitting that  he wanted  to  teach  accused  a lesson for  harassing businessmen-Held  accused entitled  to acquittal.

HEADNOTE: The prosecution  case  was  that  the  complainant  was running a shop and dealing in Kimam and that on 7th January, 1984, the  Chief Inspector in the Health Department (accused No.1) and  accused No.  2 (appellant in the appeal), accused No. 3  and accused No. 4 who were working as Food Inspectors had approached the complainant at his shop and stated that a they had been inspecting food articles for adulteration, and took a bottle of Kimam and opened it for sample and when the complainant told  them  that  it  may  be  taken  in  sealed condition, they  refused to do so and stated that the sample would not  be passed  and the  complainant would  be put  to difficulties, unless  he paid Rs. 5,000. The complainant was not wiling to make such payment but he was pressurised. On the  next day,  8th January, 1984 accused No. 4 came to the  shop to enquire whether the money had been arranged. He was  given Rs.  500 and  the balance  was promised  to be given on 30th January, 1984. On 30th  January, 1984  the complainant  approaehed the office of the Anti Corruption Bureau and gave his complaint. Two Panchas  were called  by the  A.C.B., the  number of  40 currency notes  of Rs.  100 each  were  noted  done  in  two batches of  20 each,  the currency  notes were  treated with anthracene powder,   a  demonstration was  made and shown to the complainant  and the  Panchas. Panch  No.1 was to remain with the  complainant and Panch No. 2 was to remain with the raiding party. The complainant  and Panch  No.1 went  to the  stop  at about 6.00   p.m. and when accused No. 2 demanded the money, the complainant  gave it  to him, when he was apprehended by the raiding  party. The  hands of  accused No. 2 (appellant) were seen in the ultra violet light and the four fingers and thumb of  the right  hand showed  the light  blue colour and white sparkle. The currency notes also showed the anthracene powder in  the ultra violet light. Thereafter, the  complainant and  Panchas went  to  the residence of accused No. 1. The complainant offered money to

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accused No. 1. He, however, refused to accept the same, and, therefore no raid was made. All the  four accused  were tried  by the Special Judge for offences under section 161 of the Indian Penal Code read with Sections  5(1)  (d)  and  5(2)  of  the  Prevention  of Corruption Act. Accused Nos. 1, 3 and 4 were acquitted while accused No.  2 was  convicted and  sentenced by  the Special Judge. The State  filed an appeal against the acquittal of the three accused  whereas accused No. 2 filed an appeal against his conviction and sentence. The High  Court dismissed  both the appeals. It noticed that: the   Panchas  did not  recognise any  of the  accused persons; there  is no  corroboration as to what had happened in the  meetings preceding  the raid  on 30th January, 1984; the evidence  of the  complainant was  disinterested and did not require  any corroboration; and the hands of accused No. 2 when seen in ultra violet light the four fingers and thumb of the  right hand  showed the  light blue  colour and white sparkle. Allowing the  appeal, and  setting aside the conviction and sentence,  this Court, HELD: 1. The High Court had acquitted the accused No. 3 and did  not find  it  safe  to  convict  him  on  the  sole testimony of the complainant supported by the test of seeing anthracene powder  on the hands and fingers of accused No. 3 in ultra  violet light,  but on the same evidence upheld the conviction of  accused No.  2 relying  on the  same evidence which was rejected vis-a-vis accused No. 3. [272-G] 2. When  the High  Court could not find it safe to rely on the  uncorroborated statement  of the  complainant  while upholding the acquittal of accused No.3 it is unsafe to rely on the ipse dixit of the complainant which is unsupported by both the Panch witnesses and the police officials who formed the raiding  party for  upholding the  conviction of accused No. 2, appellant. [273-E] 3. Not  only the two Panchas could not recognise any of the accused   persons  but there  is no corroboration to the various statements of the complainant vis-a-vis accused Nos. 1 to  4 by  the police officials who constituted the raiding party  either.   The  raiding  party  including  the  police officials reached the spot at a time when they could neither hear the  talk, if  any, between  the accused  No. 2 and the complainant nor  could see  the  alleged acceptance of money by accused No. 2 and passing it on to accused No. 3. [272-E] 4. The  High Court totally ignored the statement of the 2complainant made  during  cross-examination  on  behalf  of accused No. 2, that he had thought of teaching accused No. 2 a lesson  for harassing businessmen selling Pan and Masalas. [273-A] 5. It  is clear  that this  is not  a case  merely of a complainant from  whom bribe  was demanded and he was forced to pay  the same but the complainant had thought of teaching a lesson  to accused  No. 2  for harassing  the  businessmen selling Pan Masalas and therefore, it could not be said that the complainant  was not  interested in success or otherwise of the  raid. [273-D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 646 of 1992.      From the Judgment and Order dated 3.4.92 of the Gujarat High Court in Crl. A. No. 161 of 1992.

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    T.U.Mehta, N.N.  Keshwani, Ashok D. Shah, R.N. Keshwani and S.K. Gupta for the Appellant.      Anip Sachthey and Badri Nath for the Respondent.      The Judgment of the Court was delivered by      YOGESHWAR DAYAL,  J. On  4th September, 1992 this Court had directed  issue of  notice on the Special Leave Petition as well  as on application for bail returnable in four weeks and it  was indicated  that the   matter  will be  heard and finally  decided   on  that   date.  However,  there  is  no appearance on behalf of the State today.      Leave granted. The matter is being disposed of.      This is an appeal by Special Leave against the judgment of the  Division Bench  of the  Gujarat High Court dated 3rd April, 1992.      Four accused  persons  were  tried  by  Special  Judge, Ahmedabad. Out  of the  said four  accused only  one of  the accused person, namely - accused No. 2, a Food Inspector has been convicted  of offences punishable under  Section 161 of the Indian  Penal Code and Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act, 1947.      The three  other accused  were acquitted by the learned Special Judge.  The  State  tiled  the  appeal  against  the acquittal of the three acquitted accused whereas accused No. 2 filed an appeal against his conviction and sentence.      The High  Court  dismissed  the  appeal  of  the  State against the  acquittal of  accused No.1,  3 and 4 and at the same time dismissed the appeal of accused No. 2. Accused No. 2 has  come up  to this  Court by  way of  a  Special  Leave Petition against  the aforesaid  decision  of  the  Division Bench.      The prosecution  case is  that the complainant Mohanlal Chhatramal Samnani  is running a shop and inter alia dealing in Kimam  opposite Maninagar  Railway Station, Ahmedabad. On 7th  January,  1984,  the  Chief  Inspector  in  the  Health Department (accused  No.1) and  accused No.  2    (appellant herein) and  accused No.  4, who  were working  under him as Food Inspectors,  had approached the complainant at his shop and stated  that they  had been inspecting the food articles for adulteration  and took  a bottle  of Kimam and opened it for sample  and the  complainant told  them that  it may  be taken in  sealed condition  but they  refused to  do so  and stated  that   the  sample  would  not  be  passed  and  the complainant would  be put  to  difficulties. This was stated by accused  No. 1  who further  stated that  the complainant should be practical. The complainant enquired as to what was meant by  being practical  and the accused No. 2 (appellant) replied  that   "being   practical"   means   "money".   The complainant then  enquired as  to the amount and he was told Rs. 5,000.00.  The complainant  was not willing to make such payment. However, he was pressurised. The complainant stated that he  did not have that much money and, therefore, he was asked to  pay whatever  the amount  he could pay immediately and the  complainant opened  his ‘galla’ and gave Rs. 600.00 to accused No. 1.      The next  day, on  8th January, 1984, accused No. 4 had come to  his shop  and enquired  whether the  money had been arranged but  the complainant  replied that  it could not be done. However,  under pressure he gave Rs. 500.00 to accused No. 4  and asked  for more  time for  making arrangement for more amount.  Thereafter, after about 15 days accused Nos. 2 & 4 had come to his shop demanding illegal gratification and the complainant  requested for  four days  time. After  four days again  the accused  Nos. 2 & 4 came to his shop and the complainant  again  stated  that  the  money  could  not  be arranged and  he may  be given  two days  time. After  great

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difficulties, on  complainant making a promise that he would pay the  amount with  100%  certainty,  and  on  this  final promise, accused  Nos. 2  & 4  asked the complainant to keep the money ready on 30th January, 1984 at 3.00 p.m.      On 30th  January, 1984  the complainant  approached the office  of   the  Anti   Corruption  Bureau   and  gave  his complainant. Two  Panchas were  called by  the A.C.B. In the presence of  those two  Panchas, the  numbers of 40 currency notes of Rs. 100.00 each were noted done in two batchs of 20 each.  Each   of  these  currency  notes  was  treated  with anthracene powder  and a demonstration was made and shown to thc complainant  and the  Panchas. One bundle of Rs. 2000.00 was to  be given  to accused No. I and another bundle was to be given  to accused  Nos. 2  & 4. Panch No. 1 was to remain with the  complainant and Panch No. 2 was to remain with the raiding party.      After making  this preliminary  panchnama raided  party went to  Maninagar and  the complainant and Panch No. 1 went to the shop at about 6.30 p.m. and the others waited outside a little away. After about an hour accused No. 2 came to the shop and the complainant-asked accused No. 2 to come and sit but the accused No. 2 replied that he was in a hurry and asked  the  complainant  to  come  with  him  where  another Inspector was  waiting near  the Post Office. Therefore, the complainant went with accused No. 2 and Panch No. 1 followed them. Accused  No. 3  and Jinto  (absconding  accused)  were waiting and accused No. 2 introduced them to the complainant and asked  the complainant  as to what he had done about the money  which  was  earlier  talked  about.  The  complainant replied that  he had  brought the  money. The  accused No. 2 demanded the same and the complainant took out the bundle of currency notes  from one  of his  pockets  and  gave  it  to accused No.  2 who  accepted it  by his right hand and asked the complainant  as to  how much  it was and the complainant replied that  it was Rs. 2,000.00 and accused No. 2 asked as to for  how many  persons it was and the complainant replied that it  was for  three persons.  The accused  No.  2  asked accused No.  3 to  count the  same and  while Modi,  accused No.3, was counting the same, the complainant gave the signal and the  raiding party  which had  followed them immediately came there  alongwith Panch  No. 2.  All of them wont to the shop of  the complainant  where Modi  was    asked  to  give currency notes  to the  Panchas and exercise of ultra violet Iamp was undertaken and in the ordinary light, hands of each of the  three Food  Inspectors did  not indicate  any  light change. Thereafter,  under ultra  violet light, hands of all were seen  and the  hands of  Panch No. 2 and the members of the raiding  party did  not show  any change on their hands. The   hands of  accused No.2  (appellant) were  seen in  the ultra violet  light and  the four  fingers and  thumb of the right hand  showed the  light blue colour and white sparkle. So also  was the  position with  regard to  the  right  hand fingers and  thumb of  Jinto and  his clothes,  namely - the right hand pocket of the pant, so also the fingers and thumb of both  the hands  of accused No.3, Modi, and the left hand pocket and  the woollen cap of Modi showed white sparkle and the light  blue colour.  The numbers  of currency notes were compared  with  the  numbers  which  were  recorded  in  the preliminary panchnama  and they  were found  to  tally.  The currency notes  also showed  the anthracene  powder  in  the ultra violet  light. The  complainant’s hands were also seen and they also showed the anthracene powder in ultra violet light so also both his inside pockets of the coat.      Thereafter, the complainant and the Panchas went to the residence of  accused No.1.  The complainant alongwith Panch

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No.1 went  to the  first floor  of the flat of accused No.1. Accused No.1  opened the door and asked these people to come inside and  made them sit. The complainant offered  money to accused No.1.  He, however,  refused to accept the same and, therefore, they came Out and no raid was made.      As stated  earlier all  the accused  were tried  by the learned Special  Judge and  accused Nos.  1,  3,  &  4  were acquitted and  ultimately the  appeal of  the State  against their acquittal  was dismissed  by the  High Court. The High Court dismissed  the  appeal  of  accused  No.2  also  after noticing -      (i)  that   the  Panchas   did  not      recognize  any   of   the   accused      persons;      (ii) that there is no corroboration      to  what   had  happened   in   the      meetings preceding the raid on 30th      January, 1984;      (iii)  that  the  evidence  of  the      complainant was  disinterested  and      did not  require any corroboration;      and      (iv) that the hands of accused No.2      were seen in ultra violet light and      four fingers and thumb of the right      hand showed  the light  blue colour      and white sparkle.      The High  Court had  acquitted accused  Nos. 3  & 4  in spite of  the fact that their fingers have also showed light blue colour  and white sparkle in ultra violet light but the High Court  was not  prepared to  rely on  that circumstance alone with  the uncorroborated testimony of the complainant. Since according to the High Court no demand had been made by accused Nos. 3 and 4 from the complainant for any bribe.      It will  be noticed that not only the two Panchas could not recognize   any  of the  accused persons but there is no corroboration to  the various  statements of the complainant vis-a-vis accused  Nos. 1  to 4  by the police officials who constituted the  raiding party  either.  The  raiding  party including the  police officials  reached the  spot at a time when they  could neither  hear the talk, if any, between the accused No.  2 and the complainant nor could see the alleged acceptance of  money by  accused No.2  and passing  it on to accused No.3.  We are  thus left  with the sole testimony of the complainant  and the test of seeing anthracene powder on the hands  and fingers  of accused  No.2. The High Court had acquitted accused  No.3 and  did not find it safe to convict him on  the sole  testimony of  the complainant supported by the test  of seeing  anthracene  powder  on  the  hands  and fingers of  accused No.3.  in ultra violet light. But on the same evidence  the  High  Court  upheld  the  conviction  of accused No.2 relying on the same evidence which was rejected vis-a-vis accused No.3.      The High  Court felt  that the  complainant was totally dis-interested in  the success  of the raid and could not be called  interested   person  and   thus  felt  no  need  for corroboration of his statement.      The fact  remains that  the High  Court totally ignored the  statement   of  the   complainant  made  during  cross- examination  on  behalf  of  accused  No.2.  In  his  cross- examination the complainant stated;      "It is  true that accused No.2 used      to carry  out raids on and often on      Pan gallas.  It is  true that I had      felt   that    he   is    harassing

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    businessmen   selling    Pan    and      Masalas. It is true  that is why we      thought of  teaching him  a lesson.      It is  true that  in  my  statement      before police,  I have  not  stated      that when  accused No.1 asked as to      why have you come, then I told that      I am  Kimamwala  of  Maninagar  and      according to talk with Shantilal, I      have come to give money."      It is  clear  that  it  is  not  a  case  merely  of  a complainant from  whom bribe  was demanded and he was forced to pay  the same but the complainant had thought of teaching a lesson  to accused  No.2  for  harassing  the  businessmen selling Pan  Masalas and,  therefore, it  could not  be said that the  complainant  was  not  interested  in  success  or otherwise of  the raid.  In fact  the High  Court  acquitted accused No.3,  though the  evidence against him was the same as it  was against  accused No.2.  When the High Court could not find  it safe to rely on the uncorroborated statement of the complainant  while upholding  the acquittal  of  accused No.3 we also find it unsafe to rely on the pise dixit of the complainant which is unsupported by both the Panch witnesses and the  police officials  who formed  the raiding party for upholding the  conviction of  accused No.2, appellant before us.      The result  is that the appeal succeeds, the conviction and sentence of the appellant is set aside and the appellant is acquitted. N.V.K.                                       Appeal allowed.