PURSOTTAMBHAI HIRABHAI HARIJAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Challenge in this appeal is to the judgment and order of learned Special Judge, Anand, passed in Special ACB Case No.11 of 1997 dated 28.5.2004, whereby the learned Special Judge (Fast Track CR.A/983/2004 /20 JUDGMENT Court),

(2.) Anand was pleased to convict the appellant -accused under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer simple imprisonment for two years and to pay a fine of Rs.3,000/ -, i/d, to further undergo simple imprisonment for three months. The appellant was also ordered to suffer simple imprisonment for two years and to pay a fine of Rs.3000/ -, i/d, to suffer simple imprisonment for three months for the offence punishable under Sections 13(1)(gh) and 13(2) of the Prevention of Corruption Act. The learned Judge has ordered that all the sentences shall run concurrently. 2. Prosecution version is that on 1.5.1997 the complainant lodged a complaint before the ACB Inspector, ACB office, Nadiad, stating that the complainant was engaged in the business of the grocery and cattle feed. He also having agricultural land about 20 Vighas at village Morad and agriculture operation was going on at that relevant point of time. In the year 1990, the complainant purchased five Vighas land situated at Survey No.1181 at village Adas at the consideration of Rs.1 Lac from one Chandrasinh Sahebsinh and other three persons and sale deed was executed in the year of 1990. The complainant wanted to start factory over the said land but due to economic crisis, he could not construct the building of the factory and also he could not obtain N.A. Permission. The Circle Inspector and Prant Officer filed Tenancy Case No.219 of 1990 on the ground that there was breach of limitation of 8 Km. in purchasing the land. The Krushi Panch, Mamlatdar and Prant Officer called the complainant and original CR.A/983/2004 3/20 JUDGMENT owner of the land and ordered to obtain N.A. permission and complete the construction within a period of six months. On 21.3.1997, one notice was sent to the complainant by Deputy Collector, Land Reforms, Nadiad, whereby the order passed in Tenancy Case No.219 of 1990 was quashed and sale transaction was also quashed by Change report No.12523. Thereafter, the complainant approached Gujarat Revenue Tribunal and on 3.4.1997, the complainant obtained stay against order of Deputy Collector and said packet of stay order was to be handed over to the Talati -Cum -Mantri, appellant herein, who was working at Adas village. The complainant met the appellant and the appellant intimated the complainant that the Deputy Collector, Kheda, made the entry in the register with pencil. At that time, the appellant being Talati -Cum -Mantri, told the complainant to do as per his advise and the complainant told the appellant to come at his shop. On 19.4.1997, the appellant went to the shop of the complainant and told him that he will make arrangement and land would be with the complainant and for that work, he demanded Rs.15,000/ - as illegal gratification. Even the appellant told that out of said amount, some money be given to him for starting the proceedings. On 22.4.1997, the appellant took Rs.5000/ - from the complainant and at that time, the complainant asked about the copy of the entry of stay order, but the appellant told that he had brought the copy of the order, but he would provide the same whenever he would come. On 30.4.1997, the appellant accused made phone call to the complainant informing him that the copy of the order is ready and he can collect the same tomorrow and he instructed the complainant to give him another amount of Rs.5000/ -. Therefore, the complainant shown his inability to pay Rs.5000/ - at a time. However, he assured to pay Rs.3000/ - to the appellant. The complainant did not want to pay the said amount, but keeping in mind his work for getting for copy of order, he had assured to pay the amount of Rs.3000/ - to the appellant. Thereafter, the complainant decided to lodge a complaint with ACB Office and his complaint was taken down by ACB Inspector, Nadiad. The panchnama and other formalities including experiment of ultra violet lamp were completed by the ACB personnel. After completing the formalities, the raiding party of ACB left for the shop of the complainant at about 17:50 hrs.. The complainant was instructed by the ACB Inspector that unless and until the amount is demanded by the accused, the complainant should not hand over the amount directly to the accused and after the amount is accepted by the accused, the complainant should give signal to the ACB staff. Thereafter, the panch No.1 and complainant proceeded towards the shop of the complainant. At about 18:30 Hrs. one person, who is appellant, came in auto rickshaw and in the said rickshaw, the wife of the appellant and on the front seat, two other person were there. The appellant proceeded towards the shop of the complainant. The complainant demanded the copy of the stay order from the appellant, but the appellant did not bring the same and he told that he will bring the same on tomorrow. Thereafter, the appellant made demand of money as per telephonic talk, and in response, the complainant gave Rs.3000/ - to the appellant and the appellant accepted the same by his left hand. Immediately, the complainant gave signal to the ACB personnel and the entire raiding party rushed to the spot. The ACB staff carried out procedure of ultra violet lamp and anthracene powder marks were seen on the fingers and palm of both hands as well as stick of the accused. The seizure list was prepared and necessary panchnama was drawn, statement of the accused was recorded. The offence, thereafter, was registered and as the accused falls within the definition of public servant, necessary sanction was obtained before prosecuting him.

(3.) After investigation, the Investigating Agency submitted the charge -sheet. During the trial, prosecution examined the witnesses and got exhibited large number of documents. The witnesses examined by the prosecution viz. PW -1, Rajnikant Maganbhai Patel complainant at Exhibit 11, PW -2, Baldevbhai Hargovindbhai Patel at Exhibit 44, PW -3, Shankardas Kesraji Gadhvi, panch witness at Exhibit 48, P.W.4 - Sanyuddin Jalalluddin Exhibit 50, P.W. 5 - Trivedi Kheval Anantray at Exhibit 53, Panch witness, P.W.6 Chandrakant Chhaganlal Raval, P.S.I., ACB, at Exhibit 57, P.W.7 - Jonbhai Thomasbhai Kristi at Exhibit 68, P.W.8 Nalinkumar Somabhai Joshi, P.I. ACB at Exhibit 77. Thereafter, the documentary evidence produced before the lower Court. During recording of the further statement under Section 313 of Code Criminal Procedure, the accused stated that he had no knowledge about case and denied demand of the amount.