SOMABHAI GOPALBHAI PATELversusSTATE OF GUJARAT

                        [2014] 10 S.C.R. 668


A                 SOMABHAI GOPALBHAI PATEL
                                   v.
                       STATE OF GUJARAT
                (Criminal Appeal No. 1864 of 2011)

                       SEPTEMBER 24, 2014.
8
          [MADAN B. LOKUR AND C. NAGAPPAN, JJ.]

        PREVENTION OF CORRUPTION ACT, 1988:

c         ss. 7 and 13(1) (d) rlw s.13(2)- Demand and acceptance
    of illegal gratification - Conviction and sentence of 1 year and
    2 years under the two counts respectively - Prosecution has
    established the demand and the acceptance of the amount
    by accused as illegal gratification - Conviction needs no
o   interference - However, sentences reduced to RI for six
    months u/s 7 and 1 year uls 13(1) (d) r/w s.13(2) - Sentence!
    Sentencing .

        Allowing the appeal in part, the Court

E      HELD: 1.1. The primary requisite of an offence uls
  13(1)(d) of the Prevention of Corruption Act, 1988 is proof
  of demand or request of a valuable thing or pecuniary
  advantage from the public servant. In the instant case,
  PW1, the complainant has fully supported the case of the
F prosecution by testifying about the demand of illegal
  gratification made by the accused to him and acceptance
  of the same. The shadow witness has clearly stated in his
  testimony about the demand of bribe and giving of the
  same to the accused. Further, the recovery of chemically
G treated currency notes from the possession of the
  accused stood proved by the testimonies of PW3, PWS
  and the Investigation Officer PW7. Thus, the prosecution
  has established the demand and the acceptance of the
  amount by the accused as illegal gratification. The
H                                668
   SOMABHAI GOPALBHAI PATEL v. STATE OF                669
                GUJARAT
accused has miserably failed to dislodge the                  A
presumption u/s 20 of the Act. Therefore, the conviction
recorded by the courts below does not warrant any
interference. [Para 6, 8 and 9] [673-C; 675-H; 676-A-F]

    A. Subair vs. State of Kera/a (2009) 6 SCC 587; State     B
of Kera/a and another vs. C.P. Rao 2011 (6) SCR 864 =
(2011) 6 sec 450 - held in applicable.

    Banarsi Dass vs. State of Haryana 2010 (4) SCR 383    =
(2010) 4 SCC 450 and B.Jayaraj vs. State of A.P. 2014 (4)
SCALE 81 - distinguished.                                     C

     Narendra Champak/a/ Trivedi vs. State of Gujarat 2012
            =
(6) SCR 165 (2012) 7 sec 80 - cited.

     1.2. As regards the sentence, the appellant is said to
be 60 years old and suffering from heart disease, facial      D
nerve palsy and speech disorder. In the circumstances,
the imposition of minimum sentence prescribed for the
offences would meet the ends of justice. Accordingly, the
sentences of RI for one year u/s 7 and two years u/s
13(1)(d) read with s. 13(2) of the Act are set aside and      E
instead the accused-appellant is sentenced to undergo
RI for six months u/s 7 and one year u/s 13(1)(d) read with
s. 13(2) of the Act. [Para 10-11] {676-F-G; 677-A-C]

                    Case Law Reference:                       F
    (2009) 6 sec 587         held inapplicable   para 4
     2011 (6) SCR 864        held inapplicable   para 4
    2010 (4) SCR 383        distinguished        para 4
                                                              G
    2014 (4) SCALE 81       distinguished        para 4
    2012 (6) SCR 165         cited               para 5
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1864 of 2011.                                             H
    670       SUPREME COURT REPORTS                [2014] 10 S.C.R.


A       From the Judgment & Order dated 14.02.2011 of the High
    Court of Gujarat at Ahmedabad in Criminal Appeal No. 292 of
    1997.

        Aparna Bhat, Priyambada Mishra, Tanima Kishore for the
B   Appellant.

          Hemantika Wahi for the Respondent.

          The Judgment of the Court was delivered by

C        C. NAGAPPAN, J. 1. 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
D   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
E   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
F   concurrently.

         2. 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
G   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
H   regarding sufficiency of the water in the borewell, and therefore,
    SOMABHAI GOPALBHAI PATEL v. STATE OF                      671
         GUJARAT [C. NAGAPPAN, J.]
PW1 Girishbhai approached the appellanUaccused Somabhai               A
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           B
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               c
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 anda-~reliminary part of Panchnama was drawn              D
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 lsmailbhai went in his scooter
to the office of the Ratanpur Panchayat. The accused was
                                                                      E
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.         F
PW1 Girishbhai gave Rs.250/- and the accused put the same
in his left side shirt pocket. On giving signal, the raiding party
came thete 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          G
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            H
    672      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   panchnama was prepared and the Investigation Officer carried
    out further investigation and after obtaining requisite sanction,
    laid the chargesheet against the accused.

          3. The learned trial judge framed the charges in respect
  of the offences mentioned hereinbefore. The accused pleaded
8
  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
C 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.

D        4. The learned counsel appearing for the appellant has
    raised challenge to the impugned judgment, inter alia, but
    primarily on the following grounds:

           (a)   There is no evidence to prove demand and
                 voluntary acceptance of illegal gratification
E
           (b)   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.
F
           (c)   Without prejudice to the above contentions it is also
                 urged that the sentence awarded to the appellant
                 is unreasonably excessive and deserves reduction.

G        Reliance was placed on the following decisions of this
    Court : 1. A. Subair vs. State of Kera/a (2009) 6 SCC 587; 2.
    State of Kera/a 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.

H         5. Per contra the learned counsel appearing for the State
    SOMABHAI GOPALBHAI PATEL v. STATE OF                     673
         GUJARAT [C. NAGAPPAN, J.]
contended that the judgment of conviction and sentence is duly       A
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            B
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 sec so.

      6. The primary requisite of an offence under Section           c
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            D
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   E
not support the prosecution case insofar as demand made by
the accused is c.oncerned 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   F
of position as a public servant to obtain any valuable thing or
pecuniary advantage cannot be held to be established.

     7. The core question in this appeal is as to whether there
is sufficient legal evidence on record to bring home the guilt of    G
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
                                                                     H
    674       SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   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
B   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
c   notes of Rs.SO 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
0
    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
E   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
F   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
G   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 lsmailbhai was summoned by the Investigation
    Officer to act as Panch witness and made to understand the
H   case as well as the experiment of U.V. lamp and he has
    SOMABHAI GOPALBHAI PATEL v. STATE OF                    675
         GUJARAT [C. NAGAPPAN, J.]

testified that he went along with the complainant PW1               A
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              B
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             c
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 lsmailbhai has further testified
that the raiding party rushed in and in the light of U.V. Lamp,     o
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        E
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.

     8. The shadow witness has clearly stated in his testimony
about the demand of bribe and giving of the same to the             F
accused. Nothing has been brought on record to doubt the
presence of the shadow witness. His testimony fu-lly
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         G
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
                                                                    H
    676      SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   has established the demand and the acceptance of the amou.nt
    by the accused as illegal gratification.

          9. In the same way the recovery of the currency notes from
    the possession of the accused stood proved by the testimonies
    of PW3 lsmailbhai PW6 Madarsing and the Investigation
8
    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
C", 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.
D 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
E 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.
F
          10. What remains is the plea made on behalf of the
    appellant ~r reduction of sentence. The appellant is said to be
    60 years oid and suffering from heart disease, facial nerve
    palsy and: speech disorder. Copies of medical reports have
G 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.

        11. In the result the sentence of one year rigorous
    imprisonment imposed on the appellant-accused for the
H
    SOMABHAI GOPALBHAI PATEL v. STATE OF                       677
         GUJARAT [C. NAGAPPAN, J.]
conviction under Section 7 of the Act is set aside and instead        A
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           s
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     c
indicated above.
Rajendra Prasad                              Appeal partly allowed.