EMABEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CRIMINAL Appeal No.698 of 1989 has been filed by the appellant-original accused No.3 while CRIMINAL Appeal No.706 of 1989 has been filed by the appellants-original accused Nos.1 and 2 against the judgment and order dated 15-9-1989 passed by the learned Special Judge, Court No.3, Ahmedabad, in Special Case No.29 of 1988 whereby all the three accused were sentenced to suffer RI for a period of one year and to pay fine of Rs.500/-, in default, to suffer further RI for two months for the offence punishable under Sec.5(2) read with Sec.5(1)(3) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act' for the purpose of brevity) and also to suffer RI for a period of one year and to pay fine of Rs.500/-, in default, to suffer further RI for two months for the offence punishable under Sec.420 of Indian Penal Code. No separate sentences were imposed for rest of the offences charged against the accused. All the substantive sentences imposed on the accused were ordered to run concurrently.

(2.) WHEREAS Criminal Appeal No.705 of 1989 has been filed by the appellants-original accused Nos.1 and 2 while Criminal Appeal No.713 of 1989 has been filed by the appellant-original accused No.3 against the judgment and order dated 15-9-1989 passed by the learned Special Judge, Court No.3, Ahmedabad, in Special Case No.28 of 1988 whereby all the three accused were sentenced to suffer RI for a period of one year and to pay fine of Rs.500/-, in default, to suffer further RI for two months for the offence punishable under Sec.5(2) read with Sec.5(1)(3) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act' for the purpose of brevity) and also to suffer RI for a period of one year and to pay fine of Rs.500/-, in default, to suffer further RI for two months for the offence punishable under Sec.420 of Indian Penal Code. No separate sentences were imposed for rest of the offences charged against the accused. All the substantive sentences imposed on the accused were ordered to run concurrently.

(3.) THE case of the prosecution in short as appearing from the judgment of Special Case No.28 of 1988 is that accused No.1-Mustafa Ibrahim Mafat was serving as a Junior Accounts Officer while accused No.2-Maganbhai Gangajibhai Parghi was serving as a Provident Fund Clerk/Telephone Assistant in the office of DET at Baroda, whereas accused No.3-Shantilal V.Aghera was serving as a Senior Grade Telephone Operator in Chhota Udepur Telephone Exchange. One Mr.P.S.Radhakrishnan was working as Accounts Officer and Mr.Suresh Amrutrao Sonavene was working as Cashier in DET Office at Baroda. Further case of the prosecution is that the accused No.3, knowing fully well that he has insufficient balance in his Provident Fund Account, had fraudulently and dishonestly applied for GPF advances and received advance of Rs.33,500/- in the years 1984 and 1985. Case further is that the accused No.2 fraudulently and dishonestly prepared false bills, review/calculation sheets, sanction memos, service money orders with service money order list and acquittance rolls and accused No.1 dishonestly approved such documents and initialed or signed them and allowed the accused No.3 to obtain payment of General Provident Fund advance for a total sum of Rs.33,500/- by defrauding the Government and all the accused, by entering into a criminal conspiracy, obtained GPF advances in the aforesaid sum with an intention to cheat the Government. During the course of investigation, it was found that GPF advance applications, calculation sheets, sanction memos and other important documents concerning the aforesaid GPF advances paid to the accused No.3 were not found in the GPF file and it appeared that all the three accused had destroyed or disposed of such documents which were important pieces of evidence before the competent public servant or before the Court. As a part of criminal conspiracy, all the accused committed such acts with an intention to keep away such documents from being produced before such Officer or the Court. Thus, the accused persons by misusing their position as public servants obtained for themselves or any one or more of them pecuniary advantage. On receipt of aforesaid information, CBI investigated into the case and filed charge sheet before the Special Court on 27-10-1988. THE learned Special Judge thereafter framed charge against the accused at Ex.16. THE charge was read over and explained to the accused. THE accused pleaded not guilty to the charges and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused.