H V ACHARYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant was put on trial for the commission of the offences under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. THE learned Special Judge, Junagadh, in Special Case No.7 of 1989 passed judgment and order of conviction and sentence dated 29.6.1996, whereby the learned Special Judge was pleased to convict the appellant-accused and awarded sentence to the appellant to suffer rigorous imprisonment for 1 year and to pay fine of Rs.3000/-, i/d, to further undergo rigorous imprisonment for 6 months.

(2.) ACCORDING to the prosecution, the accused Hadgali Vishnutirth Acharya was working as Deputy Engineer at Gujarat Electricity Board, Keshod. About 22 agriculturists of Jamvali Village applied for new electricity connection for agriculture purpose to the office of the accused, and that work was entrusted to the accused. The complainant was looking after the work of new electricity line on behalf of aforesaid 22 agriculturists. The accused demanded Rs.300/- per connection as illegal gratification from the complainant. It is also alleged that the complainant gave Rs.500/- to the accused as an advance. It was also ascertained that Rs.1500/- was to be given at Keshod Office. Thereafter, the complainant decided to file complaint against the accused before ACB office, Junagadh and, therefore, he approached the ACB Office, Junagadh. The ACB office, after completing the formalities, decided to carry out trap. The accused accepted Rs.1500/- at his residence from the complainant and the wife of accused, who was accused No.2, was acquitted by the learned Special Judge, took the said trap amount and ran away from that place and therefore, the trap amount was not recovered by the ACB office. After obtaining proper sanction, the proceedings were initiated against the accused.

(3.) LEARNED advocate Mr. H.N. Joshi appearing on behalf of the appellant has submitted that the judgment and order is bad in law and against weight of evidence. Even charge and examination of the accused are not in conformity with the provisions of the Code. He read the oral evidence of P.W.1 Hiralal Maisurbhai Chavda at Exhibit 21 and submitted that from the oral evidence of this witness, it is not proved beyond reasonable doubt to say that after application of anthracene powder on trap amount, whether the hand was washed out by Mr. Dubey or not and also conduct of the lamp operator Mr. Dubey creates doubt. The stains of anthracene powder were not found on the place or cloth or body of the accused. From bare reading of this evidence, the demand is not at all proved. He also submitted that the first demand is not proved in presence of panch. He also submitted that when initial demand is not proved then no question of conviction arise. He further submitted that the complainant is the best witness for ascertaining the aspects of the demand and in turn acceptance, but, here in the present case, the complainant had expired and he was not examined, therefore, the conviction and sentence is required to be set aside. LEARNED advocate further submitted that the marks of anthracene powder were not found on the body of the accused. From the evidence of this witness, there is nothing come out about demand made by the accused. He read the oral evidence of P.W.2 Ramjibhai Hansrajbhai Patel, Exhibit 23, who was engaged in selling electric motor, but, from his evidence also, it is not at all established that the demand was made by the accused at any time. LEARNED advocate has also read the oral evidence of P.W.3 Jagdishbhai Mahendrahai Thakar, at Exhibit 24. He has admitted that since long time has been elapsed, he could not properly identify the accused. He made his signature in the panchanama. LEARNED advocate read the evidence of P.W.4 Thobhanbhai Panchalbahi at Exhibit 27 and submitted that this witness in his cross-examination, has not admitted that the accused demanded Rs.300/- per connection from the complainant. Even from the evidence P.W. 5 and P.W.6, the demand is not established and when the demand is not established, the conviction and sentence is required to be quashed and set aside. He further submitted that the witnesses have not supported the case of the prosecution. The complainant, who filed complaint, had expired and therefore, the material witness, the complainant was not examined and therefore, there is no reason to believe the say of the other witnesses, who were not present at the time of demand and acceptance on the part of the appellant. Even the statement recorded under Section 313 of the Code of Criminal Procedure has not been properly appreciated by the learned Special Judge. He drew the attention to the contents of complaint as well as panchnama. He lastly submitted that the conviction and sentence passed by the learned Special Judge is required to be quashed and set aside by allowing this Appeal.