ARJUNLAL M UPADHYAYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant-original accused no.1 has challenged the judgment and order of conviction and sentence dated 5.5.1993 in Special (A.C.B.) case No. 1 of 1990 passed by the learned Special Judge, Mahesana. By the said judgment and order, the appellant has been convicted for the offence punishable under sections 7 and 13(1) and 13(2) of the Prevention of Corruption Act and has been ordered to undergo rigorous imprisonment for a period of three years and pay a fine of Rs. 2000/-, in default, further rigorous imprisonment for a period of one year for the offence punishable under section 7 of the said Act; rigorous imprisonment for a period of one year and pay a fine of Rs. 500/-, in default, further imprisonment for a period of six months for the offence punishable under section 13(1) and 13(2) of the said Act. Both the sentences are ordered to run concurrently. The original accused no. 2 who is not before this Court has been acquitted for the offence punishable under section 12 of the said Act, vide the judgment under challenge.

(2.) BRIEF facts of the prosecution case are that one Bhaveshkumar Motilal Maniyar was running a shop of electric goods in the name of Ambica Traders. He was owning a house in Mahesana town in the area known as Bagdani Khadki and bearing No.2/222 Tikka No.1/5, city survey no.104. The said house was registered in the name of his father. That on 10.4.1989, his father divided the property amongst the family members and the document to that effect was executed. The above-mentioned house was given in share to the wife of the complainant- Nilaben and his son Harshitkumar. Therefore, they applied for transfer entry before the City Survey office on 17.4.1989. It is alleged that both the accused were working as Maintenance Surveyor in the city survey office. Thereafter, the complainant Bhaveshkumar first met accused no. 2 before about a month and thereafter he met the appellant somewhere in the month of May, 1989 in connection with the above said entry. The appellant told the complainant to come after about a week. It is alleged that at that time the appellant demanded Rs. 1500/- for making entry in city survey register. Therefore, the complainant replied "I will let you know after thinking over." Thereafter on 18.7.1989 at about 1.00 p.m., the complainant approached the appellant and said that Rs. 1500/- are too much and and ultimately the deal was struck at Rs. 700/-. The appellant told the complainant to come on 24.7.1989 as it was Monday and officer of City survey would be present and the entry would be effected. The complainant was not willing to pay the bribe and therefore, he went to the office of ACB at Mahesana and met Police Inspector Puvar and filed his complaint which was duly recorded and signed by the complainant. Thereafter, PI Shri G.K.Puvar sent a yadi to General Manager of District Industries Centre and requested to send two Government servants for acting as panch for A.C.B. Trap. On arrival of panchas, Shri Puvar introduced them to the complainant, read over the complaint and obtained signature of panchas on complaint. Thereafter, he asked the complainant to produce Rs. 700/- which was in denomination of Rs. 100/- each and the numbers of the notes were noted in the panchnama. Thereafter, the notes were smeared with anthracene powder and ultra violet lamp experiment was performed. The notes were handed over to the complainant and were placed in left side pocket of the jhabba of the complainant. Panch no.1 was instructed to accompany the complainant and hear the talk and if the demand was made he had to see the acceptance and thereafter usual signal was required to be made. After these preliminaries were over, the raiding party went to the office of City Survey. The complainant accompanied by panch no.1 went to the 1st floor in the office of the appellant and the remaining members of the parties were stationed nearabout. The complainant inquired from the appellant about the entry. At that time, the appellant asked the complainant whether he had brought Rs. 700/- as asked for, which was replied in affirmative by the complainant. Therefore, the appellant told the complainant to sit there and he straightaway went downstairs to inquire from the accused no. 2 about the entry. Thereafter, the appellant returned within about 5 minutes and told the complainant that the entries are not signed by the officer. Therefore, he should go downstairs to see accused no.2 and to pay Rs. 700/- to him. Thereafter, the complainant asked the appellant that the money was required to be paid to you as per talk and so you finish up the work and take this money. Thereafter, the appellant took out one khakhi envelope and told the panch no.1 to sit there in the chair and took the complainant with him in the adjoining room and near the door of that room the appellant opened the envelope and told the complainant to put Rs. 700/- in the same. In the meanwhile, panch no.1 came there and accused no.2 also came upstairs. Therefore, the appellant handed over the envelope to accused no.2 who accepted the same with his right hand and held it in his right hand. In the meanwhile, the complainant gave the agreed signal and the raiding party alongwith panch no. 2 arrived there. Seeing this, accused no. 2 threw away the envelope on the staircase which fell on the step of the staircase. P.I. Shri Kuver asked the accused about the said money and accused no.2 pointed out by signing the envelope which was lying on the step of the staircase. Therefore, PI told the panch no. 2 to pick up the envelope and after the usual experiment of ultra violet lamp was carried out, the notes and the envelope were attached and panchnama was made. Thereafter, the case was registered against the appellant and co- accused and thereafter on completion of investigation, charge-sheet was submitted.

(3.) UPON conclusion of the trial, the appellant-original accused no. 1 has been convicted and sentenced as above.