BHIKHABHAI BECHARBHAI MACHHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant was put on trial for the commission of the offences under Sections 7 and Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred ?the Act?). THE learned Additional Sessions Judge, Vadodara, in Special Case No.1 of 1996 passed judgment and order of conviction and sentence dated 6.5.1998, whereby the learned Sessions 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 2 years and to pay fine of Rs.500/-, i/d, to further undergo rigorous imprisonment for 3 months. THE appellant was also ordered to suffer rigorous imprisonment for two years and to pay a fine of Rs.500/-, i/d to suffer rigorous imprisonment for three months for the offence punishable under Sections 13(2) of the Prevention of Corruption Act. All the sentences shall run concurrently.

(2.) ACCORDING to the prosecution, at the relevant time, the appellant ? accused was serving as the Maintenance Surveyor in the Land Record and Consolidation Office of Savli Taluka, Dist. Vadodara. The father of complainant purchased residential premises on 8.11.1976 and thereafter, there was no change in the record. The complainant for getting Sanad, had paid Rs.70/- towards legal fees. In the map, which was received by the complainant, some portion of the residential premises of the complainant was not shown. On 6.6.1995, the accused had gone to the Panchayat Office, where the complainant met him and drew his attention to the infirmity in the map. The accused along with his peon went to the premises with a view to see the same and the accused told the complainant for effecting the changes, he asked for Rs.1100/- towards illegal gratification and ultimately, the complainant agreed to give Rs.800/- instead of Rs.1100/-. The appellant did not want to give the said amount and therefore, approached the ACB Office, Vadodara and lodged his complaint against the accused. As per the instructions, the complainant went to the ACB Office with Rs.800/- in morning on 8.6.1995. Thereafter, panchas were called, necessary instruction was given and the first part of panchnama was drawn.Thereafter, the raiding party left the ACB Office at 1:30 p.m., reached Savli and the complainant and P.W.2 went to the office of the accused. The accused prepared rough sketch and then he took the complainant outside the office and demanded the money. The complainant gave the bribe amount and accused accepted the same. On prearranged single was given and thereafter, raiding party rushed to the place and raid was carried out. Thereafter, the second part of trap panchnama was drawn and the sanction under Section 19 of the Act to prosecute the accused was obtained.

(3.) LEARNED senior advocate Mr. K.J. Shethna appearing on behalf of the appellant submitted that the judgment and order is bad in law and against weigh of evidence. Even charge and examination of the accused are not in conformity with the provisions of the Code. He further submitted that genesis of the offences under Section 7 of the Act is that the accused should receive gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, within the Government Central or State or Parliament with the body referred to therein. Therefore, he submitted that none of ingredients of Section 7 of the Act, can be said to have been thoroughly satisfied in the present case. He further submitted that as per Section 13(1)(d) of the Act, if the accused (1) by corrupt or illegal means obtains for himself of for any other person any valuable thing or advantage or (ii) by abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantages or (iii) while holding office as public servant, obtains for any person any valuable thing or any pecuniary advantage with any public interest, then he can be said to have committed the offence of criminal misconduct under Section 13(2) can be said to have thoroughly satisfied in the instant case. He further submitted that in the instant case, it was not within the purview, within the jurisdiction of the accused to furnish a valid sanad with a legal sketch to the complainant or his father and in the judgment of the trial Court, the same defence of the accused has been referred and learned Sessions Judge has not adequately answered the same. He further submitted that in the instant case, the anthracene powder was applied to 8 currency notes each of Rs.100/- denomination. A Circular from the Govt. of Gujarat was produced at Exhibit 28 that Phenolphthalein powder should be used, but here in this case, the trapping officer used anthracene powder and he did not use Phenolphthalein powder. In the case, the Peon, who is a star witness, was not examined and, therefore, it cannot be said that the prosecution has proved its case against the appellant ? accused. Mr. Shethna, learned counsel stated that the story of the complainant is also not believable that the accused accepted money towards bribe in presence of panch No.2. Even the accused regretted his inability to do anything in the matter as the Appeal was the remedy and, therefore, the appellant was falsely implicated in the case. He also submitted that P.W.3 Himatrao Nikamal had done the experiment but his evidence was not conclusive. Even in para 12 of the evidence of Investigating Officer P.W. 5, he stated that further statement of the accused was recorded on 24.7.1995, but he had not kept it in the papers.