Indradev B. Pandey vs State of Gujarat

Z.K. Saiyed, J.—The appellant - original accused has filed this Appeal u/s 374(2) of Cr.P.C. challenging the Judgment and order of conviction dated 31.12.1993 passed by the learned Special Judge, Court No. 2, Ahmedabad, in Special Case No. 4 of 1992, whereby the learned Special Judge has held the appellant - accused guilty for the offences charged against him.

Brief facts of the prosecution case is that one Ashoksinh Bholasinh Rajput has filed complaint against the present appellant - accused on 3.1.1991. It is alleged in the said complaint that Minadevi, elder sister of complainant, had completed her initial education in Hindi School No. 4, run by Ahmedabad Municipal Corporation, which is situated at mehganinagar, Ahmedabad, and upon completing her study upto Standard-7 during the academic year 1978-79, she left the school. She had obtained the School Leaving Certificate at the time of leaving the school. However, the said Certificate was misplaced, and as she desired to appear in S.S.C. Examination as an external student, she wanted School Leaving Certificate for filling up the form as an external student, her brother, the complainant, had approached the appellant - accused in the School for obtaining School Leaving Certificate. It is alleged that prior to the date of filing of complaint, i.e. on 2.1.1991, the complainant contacted the appellant - accused and at that time the accused told him to come on the next day i.e. on 3.1.1991. It is alleged that the complainant again approached the accused on 3.1.1991 when it was told by the accused that if he wants to have the duplicate of the School Leaving Certificate, he (the complainant) is required to pay Rs. 5/- per year from the date since the student left the school till the date of issuance of duplicate certificate and computing the academic year of leaving the school as being 1978-79, the complainant was asked to deposit Rs. 65/-. However, after negotiation and bargaining, the accused agreed to accept Rs. 30/- for issuing the Certificate. As, at that time, the complainant was not having money, the accused told the complainant to come on the next day with money. As the complainant was not willing to pay the said amount, he approached the ACB Office and filed complaint.

Thereafter, Panch was called and preliminary panchnama was drawn and after completing all the formalities, the raiding party accompanied by the panch witnesses, went to the school on 4.1.1992. The complainant was instructed not to touch/take out smeared notes unless and until the demand is made by the accused and on demand by the accused, to immediately give the signal to the raiding party. The complainant contacted the accused and on seeing the complainant the accused inquired whether he had brought the amount or not to which the complainant replied in affirmative and so saying the complainant tendered the amount to the accused which he had accepted and thereafter pre-arranged signal was given to the raiding party. The raid was successfully carried out.

On completion of investigation the requisite sanction of the competent Authority was obtained to prosecute the accused and thereafter the charge-sheet against the accused came to be submitted. The prosecution has examined three witnesses and at the end recorded the statement of accused u/s 313 of Cr.P.C. At the conclusion of the trial, after considering the oral as well as documentary evidence led by the parties and the arguments advanced, the learned Special Judge, vide impugned Judgment and order dated 31st December, 1993, held the accused - appellant guilty for the offences charged against him. The learned Special judge convicted the appellant - accused for the offence u/s 7 of the Prevention of Corruption Act and sentenced him to undergo Simple Imprisonment for a period of two years and to pay fine of Rs. 1,500/- i/d to undergo S.I. for a further period of three months, and further convicted the accused for the offence under Sections 13(1)(d) (i) and (ii) punishable u/s 13(2) of the Prevention of Corruption Act and sentenced him to undergo Simple Imprisonment for a period of two years and to pay fine of Rs. 1,500/- i/d to undergo SI for a further period of three months. The learned Judge has ordered that the substantive sentences shall run concurrently.

Being aggrieved by and dissatisfied with the Judgment and order dated 31.12.1993 passed by the learned Special Judge, Court No. 2, Ahmedabad, in Special Case No. 4 of 1992, the appellant (original accused) has preferred this Appeal.

Heard learned Advocate Shri Kamal Panchal, appearing for the appellant - original accused and learned A.P.P. Shri R.C. Kodekar for the respondent - State. I have gone through the Judgment and order passed by the learned Special Judge and also gone through the oral as well as documentary evidence produced before me. I have also gone through the papers produced before me.

Learned Advocate Mr. Panchal has contended that it is an admitted position that the original School Leaving Certificate issued to the sister of the complainant at the time of leaving the School was misplaced and when she needed School Leaving Certificate, her brother - present complainant had approached the school Authority for issuance of duplicate School Leaving Certificate and as per the Rules search fee of Rs. 2/- per year is required to be charged and also an amount of Rs. 5/- is also required to be charged for issuance of duplicate School Leaving Certificate i.e. total Rs. 31/- was required to be charged from the complainant towards issuance of duplicate School Leaving Certificate. Thus, when it is alleged that the accused accepted and demanded Rs. 30/-, it cannot be said that the accused demanded and accepted illegal gratification. The said fact is also even admitted by the Investigating Officer. He also contended that even from the Departmental Instruction/Circular (which is produced at Exh.21) it is clear that for issuance of School Leaving Certificate the search fee per year is required to be charged. He also contended that the evidence of the complainant is not corroborated by the evidence of panch witness. He has also contended that Panch witness (P.W.2) (Exh.9) in his evidence has specifically stated that he has gathered the impression that the question was about charging of fees. He, therefore, contended that the accused has demanded legal fees for issuance of School Leaving Certificate and, therefore, there was no question of demand of any illegal gratification by the accused from the complainant. He has contended that for drawing the presumption u/s 20 of the Act, the prosecution is required to prove that the accused accepted illegal gratification which is not proved by the prosecution and, therefore, there is no question of any presumption u/s 20 of the Act. He has also contended that the complainant in his evidence has specifically admitted that one another teacher was also present when he gave the so called illegal gratification, however, the prosecution has not examined the said teacher as an independent witness.

Learned A.P.P. Shri Kodekar has supported the Judgment and order of the learned Special Judge. He has contended that from the oral as well as documentary evidence it is established that the presence of anthrecene powder was found from the finger, tips and palm of the appellant - accused and it was the duty of the accused to rebut the presumption drawn u/s 20 of the Act. He, therefore, contended that the trial Court has not committed any error in holding the appellant - accused guilty for the charges levelled against him and, therefore, no interference is required to be called for.

I have gone through the Judgment and order of the trial Court. I have also perused the oral as well as documentary evidence on record. I have also gone through the further statement of the accused recorded u/s 313 Cr.P.C. I have also gone through the guidelines (Exh.21) for issuance of School Leaving Certificate and also the fees to be charged for the said certificate. From Clause 1.4 of said guidelines (Exh.21) it is clearly established that "at the time of leaving the school, the School Leaving Certificate is to be issued without charging any fees. Thereafter, if the student or guardian or parents of the students require the Duplicate School Leaving Certificate then it may be issued by charging the fees at Rs. 2/- per year and Rs. 5/- for issuing the said certificate." Here, in this case, the complainant approached the accused for obtaining School Leaving certificate of his sister who had studied in the said School and after completing 7th standard, she left the school in the year 1978-79. It is the case of the prosecution that as the sister of the complainant desired to appear in S.S.C. Examination in the year 1991, on 2.1.1991 the complainant contacted the accused for obtaining the School Leaving Certificate of his sister. As per the guidelines (Exh.21) the calculation was made by the accused at the rate of Rs. 2/- per year for 13 years the accused was required to pay Rs. 26/- and Rs. 5/- towards the charge of duplicate School Leaving certificate i.e. in all Rs. 31/- was required to be paid by the accused and, therefore, the accused has legally demanded the money, as per the guidelines (Exh.21) for issuing the School Leaving Certificate. Prosecution witness No. 3 Kantibhai Kikabhai Rathod (Exh.15), who is Investigating Officer, has clearly admitted in his cross examination that he has not recorded the statement of any responsible person to ascertain as to whether for obtaining the School Leaving Certificate whether the fees are charged or not. He has also admitted in his cross examination that he has called for the guidelines (Exh.21) and also the receipt book. The learned Judge has also observed in his Judgment the contention of the defence advocate that per year Rs. 2/- is to be charged and for 13 years from 1978-79 it would come to Rs. 26/- and adding the charges for duplicate, the total amount would come to Rs. 31/- and as against which the accused has only charged Rs. 30/-. However, the learned Judge has observed that the said contention of the learned Advocate is an after-thought. In my opinion, the learned Judge has not considered this aspect and wrongly observed that the same is an "after-thought". Learned APP is also unable to convince me as to how the accused has demanded illegal gratification from the complainant when it is clear from the guidelines (Exh.21) that any one who wants the Duplicate School Leaving Certificate has to pay usual charge at Rs. 2/- per year and also Rs. 5/- for duplicate School Leaving certificate.

I am, therefore, of the opinion that the learned Special Judge has committed grave error in holding the appellant - accused guilty for the offences alleged against him. In my view therefore, the demand of Rs. 30/- made by the accused is in accordance with Rules and, therefore, the prosecution has failed to establish that there was illegal demand of gratification by the accused. Since demand is not illegal, acceptance of the amount also cannot be termed as acceptance of illegal gratification and, therefore, the presence of anthrecene powder on the finger, palm, etc. of the accused also could not help the prosecution in bringing home the charge against the accused.

It is pertinent to note that even the Investigating Officer has admitted the defence of accused. Departmental instructions are brought on record vide Exh.21 which clearly supports the defence of the accused.

It is also pertinent to note that except bare allegation, there is no evidence to support the allegation of the complainant that accused initially demanded Rs. 65/- and thereafter agreed to accept Rs. 30/-. The stand of the complainant is self-contradictory inasmuch as, he first has stated that on 3.1.1991 the accused had agreed to accept Rs. 30/-, instead of Rs. 65/-, and subsequently he has stated that on next day i.e. on 3.1.1991 when he asked the accused in presence of panch witness, accused had stated that the amount would be Rs. 50/- but as complainant was an ex-student, he would accept Rs. 30/-. Had there been a statutory provision to accept Rs. 50/-, the accused would not have agreed to accept Rs. 30/- because the same would be in breach of Rules. Further, as stated by complainant, when accused agreed to accept Rs. 30/- on previous day, the question of asking the question by complainant would not arise nor the question of demanding Rs. 50/- by accused would arise. Thus, the story of the complainant is inconsistent and unbelievable not corroborated by oral evidence. It is on record that panch has not supported the prosecution case. Therefore, no reliance could have been placed on the evidence led by the prosecution.

From the oral as well as documentary evidence, in my view, the learned trial Judge has erred in drawing presumption u/s 30 of the Act. When demand is not illegal, the question of drawing the presumption u/s 20 of the Act would not arise, because the prosecution is required to prove that accused has accepted illegal gratification, which is not proved in the present case.

Though the complainant has stated that he had given illegal gratification to the accused in presence of one another teacher, said teacher who is an eye-witness, for the reasons best known to the prosecution agency, is not examined. Hence, the story put forward by the prosecution is not trustworthy and is doubtful and the prosecution has failed to establish the guilt against the accused and hence, there is error apparent of appreciation of fact and law resulting into miscarriage of justice. Hence, impugned Judgment requires to be quashed and set aside.

In view of above, this Appeal is allowed. The Judgment and order dated 31.12.1993 passed by the learned Special Judge, Court No. 2, Ahmedabad, in Special Case No. 4 of 1992, is hereby quashed and set aside. The appellant "accused is acquitted from the charges levelled against him. Fine, if paid, be refunded to the appellant" accused. Bail Bond, if any, shall stand cancelled. Record & Proceedings be sent to the trial Court immediately.