DHIRUBHAI KANTILAL ACHARYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appeal is directed against judgment and order of conviction and sentence passed by the learned Special Judge, Baroda, in Special Case No.17 of 1997 dated 14.9.2000. THE learned Special Judge was pleased to convict the appellant-accused under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer rigorous imprisonment for 6 months and to pay fine of Rs.1000/-, i/d, to further undergo rigorous imprisonment for 1 month. THE appellant was also ordered to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.1000/-, i/d, to suffer rigorous imprisonment for one month for the offence punishable under Sections 13(2) of the Prevention of Corruption Act. All the sentences shall run concurrently.

(2.) ACCORDING to case of the prosecution, the complainant named Sonaben Sanghaji Thakore, for the purpose of business, applied for loan from the Gujarat State Schedule Caste Economic Development Corporation, Baroda, through the present appellant, who was serving as daily wager clerk in the said Corporation. The appellant demanded Rs.400/- from the complainant by way of illegal gratification for securing quotations for supporting the loan application and accepted the said amount in two installments. It is alleged that in December, 1996, when the complainant approached the appellant to inquire about the progress of her application, at that time, the appellant demanded Rs.2000/- by way of illegal gratification for obtaining sanction for the loan. Therefore, the complainant was unable to pay further Rs.2000/- to the present appellant. It is alleged that the present appellant asked Rs.500/- in advance and remaining amount of Rs.1500/- was to be paid after sanctioning of the loan. But the complainant was not in a position to pay even Rs.500/- to the appellant and he, therefore, approached the ACB Office on 15.1.1997. Thereafter, the complainant was called on the next day i.e. on 16.1.1997. On 16.1.1997, the complainant went to the office of ACB, as per instruction given by the ACB officer on 15.1.1997. The ACB officer prepared panchnama relating to the trap and complainant was asked to go to the office of appellant along with panch. The complainant went to the office of the appellant with panch witness and met the appellant. The appellant thereafter, told the complainant to wait at the down stair near tea stall. Therefore, the complainant waited for the appellant near the tea stall. After sometime, the appellant met the complainant and demanded money and the complainant gave the bribe money of Rs.500/- to the accused. Immediately, the members of raiding party rushed there and took the appellant in the office of Narmada Bhuvan, where necessary panchnama of recovery of Rs.500/- from the appellant was drawn. On completion of the investigation, necessary papers were sent to the competent Authority for obtaining sanction for prosecution against the accused.

(3.) LEARNED advocate Mr. D.F. Amin appearing on behalf of the appellant submitted that the judgment and order is bad in law and contrary to the evidence produced on record. The prosecution has not proved the case against the appellant for the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act. He further submitted that the accused had not demanded and accepted Rs.400/- in the year 1996 and on second occasion, he had not demanded Rs.2000/- as well as also Rs.500/- as an advance towards the illegal gratification. He further submitted that the appellant being public servant, had not accepted any consideration towards the illegal gratification and, therefore, he has not committed any criminal misconduct as per Section 13(2) of the Act. He further submitted that the contents of evidence of complainant Sonaben at Exhibit 20 regarding demand and acceptance of illegal gratification from her, is totally wrong and baseless. The evidence of complainant is not reliable and trustworthy. The whole case has been got up by one Kishan Thakore, who was related to the complainant, with whom the accused had quarreled in the office. Therefore, due to enmity with Mr. Kishan Thakore, the complainant lodged the complaint against the accused to settle the personal score. LEARNED advocate Mr. Amin further submitted that while deciding the case of the accused, the learned Judge has not considered the evidence of D.W.1 Hemant R. Pandya at Exhibit 36. He further submitted that the panch witness and other witnesses have not stated that when ultra violet rays were focused on the currency notes and on other articles, light blue fluorescent marks were seen. On the contrary, when the ultra violet rays were focused, something sparkling could be seen. It was not the official duty of the appellant to sanction the loan application and even the office of the appellant was not dealing with the application submitted by member of the Baxi Panch and the office of the appellant was dealing with the application of the members of Scheduled Caste. The complainant belongs to Baxi Panch and the appellant was serving with the Scheduled Caste Development Corporation. Therefore, the alleged demand of bribe and acceptance thereof as a motive or reward for doing an official act or for showing favour in exercise of official function is not proved by the trap evidence. Mr. Amin, learned advocate submitted that the evidence of complainant is not corroborated with the documentary evidence and other oral evidence. He further submitted that the complainant wanted to obtain loan not for doing cloth business, but she wanted loan by creating false document and her evidence is not reliable