STATE OF GUJARAT Vs. PUNABHAI LAVAJIBHAI PARMAR

JUDGEMENT

(1.) THE present appeal is filed by the State of Gujarat against judgment and order of acquittal dated 05.02.1993 passed by the learned Special Judge, Mehsana in Special (ACB) Case No.16 of 1989. THE learned was pleased to acquit the opponents-accused for the offence under sub-section (2) of Section 5 of the Prevention of Corruption Act, 1988 and Sections 161 and 165(A) of the Indian Penal Code.

(2.) HEARD learned APP Mr.J.K.Shah for the appellant? State.

(3.) THE learned Special Judge seems to be right in his appreciation of evidence. If it is believed, as stated by the complainant, that accused No.1 demanded Rs.150/-, of that Rs.50 were paid by the complainant on the said day, if that is true then accused No.1 would not have issued notice (Exh.29) to the complainant when the complainant was already granted time to pay Rs.100/- 5.1 So far as acceptance part is concerned, evidence for the same is discussed by the learned Special Judge in para-11, wherein it is stated that, 'Police Inspector Shri G.K.Desai along with complainant, two panchas and other members of the Raiding Party had reached at 1.300 at Vijapur in Government vehicle from Ahmedabad and the vehicle was stopped at T.B.Hospital and the complainant and panch No.1 Vaghjibhai Maganbhai Desai went to the office of the Government Labour Officer, which was situated at the upper floor'. It is then stated that, 'the complainant and panch No.1, after reaching upper floor, met accused No.1 ? Punambhai'. It is further stated that, 'in the entire office, except these three accused, no other employee was present. Punambhai was sitting in one room and in cabin near that room, accused No.2 Mr.Jadhav is sitting and accused No.3 was standing outside that cabin'. 5.2 THE case of the prosecution is that, 'the complainant had talked to Punambhai for not filing of case and accused Punambhai had asked the complainant whether he has brought Rs.100/- and on complainant answering in affirmative, accused No.1 ? Punambhai asked the complainant as to whether he has brought the amount in change, to which again the complainant answered in affirmative and thereafter, accused No.1 took the complainant and panch No.1 into the chamber of Labour Officer Shri R.G.Jadhav and on accused No.1 asking the complainant, the complainant gave Rs.50 to Shri R.G.Jadhav, which was accepted by him and were kept in the left-hand side drawer of the table. THEreafter, accused No.1?Punambhai came out and remaining Rs.50 were asked to be given to accused No.3?Babubhai (Peon)'. It is the case of the prosecution that, 'accused No.3 accepted Rs.50 on behalf of the accused No.1 ? Punambhai. THE same were accepted by accused No.3 and were kept in the right-side back pocket of the pant and thereafter, the complainant went to the gallery and from there, he made the agreed signal'. 5.3 THE learned Special Judge has considered the aforesaid case of the prosecution and has recorded that the aforesaid version of the prosecution is not supported by any independent witness. THE learned Judge has taken into consideration that, 'the complainant had written letter to accused No.1?Punambhai requesting him to settle ('mandval') the case'. It is also recorded that, 'there were no agriculturists in the cabin of Shri Jadhav (accused NO.2) and he was all alone. THE complainant did not have any talk with Shri R.G.Jadhav. THE complainant also did not have any talk with accused No.3-Babubhai'. It is also denied that, 'the peon (accused No.3) had refused to accept Rs.50, but he forcibly kept that amount in the back pocket of the pant of accused No.3'. 5.4 THE evidence of panch witness No.1-Vaghjibhai Maganbhai Desai-Exh.21 is appreciated by the learned Special Judge at this stage, who has stated that, 'along with the complainant, he had gone to the office of the Labour Officer and thereafter, he had met the officer along with the complainant and that officer had asked the complainant to give an application. In response to which, the complainant went into the cabin and gave an application and thereafter, the complainant placed Rs.50 on the table of Shri R.G.Jadhav and thereafter, the complainant come out and after coming out, the complainant tried to give Rs.50 to peon, but peon stated that, 'he does not want that money and the peon returned that amount to the complainant'. 5.5 On perusal of the evidence, the learned Special Judge has reached to the conclusion that, 'there was no demand by Shri Jadhav and it is not established from the deposition of the panch that Rs.50 were accepted by the officer with right hand and after keeping the amount in the drawer of the table, had closed the drawer of the table'. 5.6 THE learned Special Judge has also considered the contradictions in the evidence of the complainant and the panch witness, more particularly on the point that peon was reluctant to accept the money and returned the same to the complainant. 5.7 In para-12, the learned Special Judge has discussed the evidence pertaining to recovery part and on totallity of the case, the learned Special Judge has found that the prosecution is not able to establish its case.