MOHAMMED SIDIQ IBRAHIM SHIAKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is filed by the appellant-original accused being aggrieved and dissatisfied with the judgment and order dated 27-4-1998 passed by the learned Special Judge, Kheda, in Special Case No.11 of 1992 whereby the appellant was convicted and sentenced to suffer RI for six months and to pay fine of Rs.5000/-, in default to suffer more imprisonment for one month for the offence punishable under Sec.7 of the Prevention of Corruption Act and to suffer RI for one year and to pay fine of Rs.5000/-, in default, to suffer more RI for three months for the offence punishable under Sec.13(2) and 13(1)(d) of the Prevention of Corruption Act. Both the sentences were ordered to run concurrently.

(2.) CASE of the prosecution in short is that Mrs.Taraben, widow of Narayanbhai Trikambhai Patel, has been receiving family pension consequent upon the death of her husband, who died while taking treatment in pursuance of an accident. It is further case that in June, 1992, when she went to the Treasury Office for pension, she was told by one Shri Rami from that office to make an application for getting pension from next month onwards. However, when she gave the application, it was torn by Shri Rami and when another application got prepared through another person was given, that was also torn and she went home and informed her son, Nitinkumar, who went to the office where he met the present appellant accused, who advised to see within 2-3 days. However, since he did not turn, Nitinkumar went to the office of appellant Shri Shaikh, who advised him to see at 1900 hours at the Pole. At 1900 hours when Shaikh came there, he asked Nitinkumar to pay Rs.500/- to get the issue settled which was reduced to Rs.400/-. On the next day i.e. on 9

(3.) IT is submitted by learned counsel, Mr.P.G.Desai that the appellant has not committed any offence and he has been falsely roped in by the complainant. IT is submitted that the appellant did not demand any illegal gratification from the complainant and, therefore, there is no question of accepting the same. IT is further submitted that although it is contended that the incident has taken in public place, no statement of any independent witness has been recorded by the investigating officer and the investigation was leading to prosecute the appellant. IT is further submitted that as the material witness is Smt. Taraben N.Patel, who is the mother of the complainant, has not been examined by the prosecution. IT is further submitted that although the grievance of complainant and his mother was against Mr.Rami, who torn away two applications given by Smt.Taraben, the complainant did not think it fit to meet Mr.Rami but met the appellant, who though knew him for the last many years but was not senior to Mr.Rami and was not dealing with the pension matter of mother of the complainant indicating clearly the conduct of the complainant. IT is further submitted that mother of the complainant was getting regular pension and hence, there was no question of asking her to produce any additional evidence or swear an affidavit and hence, the entire story is concocted. Moreover, the aspect of payment of dearness allowance has come for the first time in the deposition of the complainant and hence, according to him, there is contradiction between the complainant and his evidence in Court. IT is submitted that it is the case of the appellant that the complainant borrowed Rs.2,000/- from one Mr.Mohmadbhai Musabhai Shaikh and part of said amount was made through the appellant on two occasions and statement of said Mohmadbhai has not been recorded by the Investigating Officer. IT is further submitted that evidence of Investigating Officer has not been properly appreciated by the learned Judge. IT is further submitted that the evidence of Mr.Rami, P.W.No.3 has also not been considered by the learned Judge wherein he has stated that no application has been given by Taraben on 5-6-1992 and that she was paid pension on 6-6-1992. IT is further submitted that panch witness, Mr.Kantibhai M.Dodia, working in the District Panchayat Office is a selected panch as the Investigating Officer and this panch are staying adjacent to each other and though other Government Officers were present in the same campus, ACB police officials are always selecting panchas from the office of District Panchayat. IT is also submitted that from the very beginning the defence of the accused is that prior to incident, complainant had sent amount to one Mohmadbhai Musabhai through accused on two occasions and as per the defence, on the date of incident also complainant tried to thrust money on the pocket of shirt of the accused and said amount was handed over to Mahmadbhai Musabhai. IT is also submitted that in further statement also accused stated the same thing. According to him, said defence is probable, however, the Trial Court has not considered the same and committed error in convicting the accused. In view of the above, it is urged that the impugned judgment and order of conviction and sentence are required to be quashed and set aside and the appellant requires to be acquitted. He has relied on a decision of the Hon'ble Apex Court in the case reported in AIR 2008 S.C. Page 106 in the case of K. Subba Reddy v. State of Andhra Pradesh and also the judgment dated 30-3-2011 delivered by this Court (Coram: Z.K.Saiyed,J.) in Criminal Appeal No.1175 of 2004.