BHARATKUMAR RAMNIKLAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appellant has preferred this appeal under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 19.3.1998 passed by the learned Jt. District Judge & Addl. Sessions Judge, Banaskantha at Palanpur in Special Case No.38/1992, whereby, the learned Judge has convicted the appellant under Sec. 7 and Sec. 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and sentenced him to undergo R/I for two years, which is impugned in this appeal.

(2.) The brief facts of the prosecution case is as under: -

(3.) It is the case of the prosecution that the appellant was serving as Executive Engineer, Water Supply & Sewerage Board, Mechanical Sub -Division, at Palanpur on 16.1.1989, whereas, the complainant was doing the business of supplying the materials. That it was the practice in the office of the appellant that for accepting the tender, 5% of total amount is to be paid to the Executive Engineer and other staff members and remaining 5% was to be paid on receiving the cheque amount. The tender was accepted in the month of November but there is no evidence that at the rate of 5% any amount was paid to the accused. However, it was alleged that a cheque of Rs. 3,900/ - was prepared and given on 11.1.1989. The complainant has received the said cheque from Dy. Accountant and at that time he had also passed the receipt for the said amount to the Dy. Accountant. On 11.1.1989 the Dy. Accountant was one Asifbhai Sunasara. The complainant stated that the said cheque was given to him by the appellant on 11.1.1989 and at that time, the appellant asked as to what about his percentage. Thereupon, the complainant asked him that when he would be available, to which, the appellant informed him that he would be available on 16.1.1989. Thereafter, he went to ACB Office and lodged the FIR and produced Rs. 400/ - before the PI, ACB at the time of lodging the FIR. Thereafter, the services of two panchas were sought from the office of District Panchayat, Palanpur, Dist. Banaskantha. The facts of the case was narrated to them and thereafter the demonstration was made on the currency notes with the help of anthracene powder. The basic ingredients of the anthracene powder were made understood to the panchas as well as the complainant. Four currency notes, each of Rs. 100/ -, were smeared with anthracene powder and they were shown in ordinary light but no fluorescent effect could be found. When those currency notes were shown in UV Lamp, blue fluorescent marks were found on the same. After performing this demonstration, the preliminary part of the panchnama was drawn. The currency notes which were smeared with anthracene powder were put in the pocket of the bush shirt of the complainant and thereafter necessary instructions were given to the complainant that as and when the appellant -accused demands the money he has to touch the cover lying in the pocket and till that stage the complainant was specifically instructed not to touch the same. The panch No. 1 was instructed to remain with the complainant and to hear the conversation which takes place between them and to see the passing of the currency notes. The panch No. 2 was instructed to remain with the other members of the raiding party. This part of the panchnama was prepared between 3.00 pm and 4.15 pm in the office of the ACB. Thereafter, the raiding party proceeded to the office of the Executive Engineer. The peon of the appellant told them that the appellant -accused had gone to take break -fast at Lajvanti Hotel. Thereupon, the complainant and panch No. 1 went to Lajvanti Hotel, where, the appellant -accused along with other staff members was taking break -fast. Along with him, Dy. Accountant Mr Sunasara, one Mr Nasirbhai, a contractor staying at Ahmedabad and one another man were sitting in the said hotel. The appellant offered tea and the panch and complainant had taken the tea. Thereafter, the complainant told to the appellant that he wanted to settle the account and he was in hurry to go by the bus at 5.00 pm and requested the appellant to come to the office as early as possible. Thereupon, the accused told him that he would be coming to the office within two minutes. Thereafter, the panch and complainant went to the cabin and stood outside the cabin of the appellant. Thereafter, within five minutes, the appellant came to his chamber and so along with the panch, the complainant went inside the chamber of the accused. The complainant introduced the panch No. 1 as Parsottambhai as his contractor friend and he also told that he had filled -up tender form in Panel Board and he also requested the appellant to help him. Thereafter, it is alleged that the complainant at his own offered the said cover to the appellant -accused, thereupon the appellant did not show his inclination to accept the same. However, the complainant insisted by saying that he would not like to keep it pending and told the accused to accept the cover. Thereafter the complainant took -out the cover from the bush shirt pocket by his right hand and offered the same to the accused. It is alleged that the accused accepted the same by his right hand and put the same in the left side pocket. Thereafter, both the complainant and panch No. 1 went outside the chamber of the appellant and gave the signal as agreed upon. Thereupon, all the members of the raiding party including PI rushed to the chamber of the accused. The doors and windows were shut and thereafter the PI asked the accused where the cover is kept by him, which was given by Ravjibhai. Similarly, he also inquired from the panch No. 1. The panch No. 1 told that the complainant had given the cover to the appellant which he had kept it in his pocket. Thereafter, PI Mr Gohil searched the pocket of the appellant and took out four currency notes each of Rs.100/ - from the pocket of the appellant. Along with it, one currency note of Rs.10/ - was also recovered. Thereafter, the experiment in the light of UV Lamp rays was carried out and according to the evidence, inside the bush -shirt pocket as well as on the fingers and thumb of both the hands of the appellant and on the pieces of the cover fluorescent marks were seen. Thereafter, from the pant pocket the articles lying in it were taken out in which there were currency notes of Rs. 88/ - and other papers were also found out. Those papers and currency notes were returned to the appellant -accused. In UV Lamp rays, inside the bush shirt pocket as well as on the outer side pocket shining marks have been seen. On the 12 pieces of the cover, part in UV Lamp rays the shining marks have been seen. So far as the currency notes which were taken out from the pocket of pant of the appellant, no fluorescent marks have been found. Thereafter, the second part of the panchnama was drawn and concluded at about 8.00 p.m.