RAJNIKANT KANTILAL DAVE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellants were put on trial for the commission of the offences under Section 7 and 13(2) of the Prevention of Corruption Act, 1988. THE learned Special Judge, Navsari, in Special Case No.2 of 1992 passed judgment and order of conviction and sentence dated 24.3.1998, whereby the learned Special Judge was pleased to convict the appellantsaccused and awarded sentence to the appellants to suffer rigorous imprisonment for 2 years and to pay fine of Rs.2500/, i/d, to further undergo simple imprisonment for 6 months, for the offence punishable under Section 13(2) of the Prevention of Corruption Act. THE learned Special Judge has not awarded separate sentence for the offence punishable under Section 7 of the Act.

(2.) THE broad essential facts of the prosecution are that the complainant � Mahyar Navroji Fatakiya was holding pistol licence for all India, which was going to expire on 31.12.1989. THErefore, on 6.12.1989, the complainant approached the office of Collector, Valsad, where he met the appellant No.2 accused No.2, who was working as clerk in the Licence Branch for renewal of the pistol licence. THE accused No.2 told the complainant about the change of Act for renewal licence and therefore, the licence may be cancelled. In response to the say of the accused No.2, the complainant also told as to whether the licence would be available for State only instead of all over the country and therefore, the accused No.2 told the complainant that the complainant would not got the licence perhaps even for Valsad District. THEreafter, the accused No.2 told the complainant to approach appellant No.1 � accused No.1, who had charge of RDC Mr. Shah, only upto next Monday and therefore, the work of complainant would be done by the appellant No.1. THE complainant also told the accused to meet the appellant No.1 when the accused No.1 was alone. THErefore, the complainant as per the say of accused No.2, met the accused No.1, who was alone in the office and talked about renewal of the licence. THE accused No.1 told the complainant about the change of Act for renewal of licence, therefore, the complainant asked to see the said Act and in reply to the same, the accused No.1 said that he was unable to show the said changed Act, as the same being confidential. Complainant also asked the accused No.1 as to whether in this matter, there was need to engage advocate or not ? THE accused No.1 referred one case of Sanjay Gupta and asked what was expanses for engagement of advocate in that matter ? THE accused No.1 threatened complainant about the consequence, as the complainant talked about law and told the complainant to become practical and to spend some money for doing such work. THE complainant asked about expenses and in reply to the same, the accused No.1 answered that if the complainant gives Rs.10,000/, his work would be done and there is no need to go to the advocate. THEreafter, the complainant met the accused No.2 and they went in a corner in the hall and he told the complainant to give Rs.10,000/ for renewal of licence as per talk with accused No.1. THE accused No.2 also told the complainant to come on the next day with Rs.5000/ in cover and remaining amount of Rs.5000/ was asked to be paid after completion of the work. THEreafter, the accused No.2 gave form of renewal of licence to the complainant and the accused No.2 told one Mr.Rana working as Clerk in Licence Branch to fill up the Challan No.124 dated 6.12.1989 and application was made in the writing of said Mr. Rana and necessary charge was paid by the complainant. THE complainant made his signature in application and the application along with challan and original arm licence were sent to the Office of Collector.

(3.) LEARNED advocate Mr. H.N. Joshi appearing on behalf of the appellants has submitted that the judgment and order is bad in law and against weight of evidence. Even charge and examination of the accused are not in conformity with the provisions of the Code. He further submitted that in the corruption cases, there are four stages i.e. (i) Initial Demand (ii) Second demand in presence of panch (iii) Acceptance and (iv) Recovery, which are required to be proved through the evidence of the complainant and there should be corroboration to all the four stages from independent evidence. He also submitted that in the bribery case, the demand is the most vital part of the prosecution and in this case, no demand by the appellants has been proved. No demand is proved through any independent evidence by the prosecution as neither the panch No.1 nor any other member of the raiding partyhas has seen the alleged incident of giving and taking of the bribe amount. The panch No.1 Sureshchandra Patel, categorically stated in his deposition that when the complainant went inside the office of the appellants, he was stopped by the peon of the office and therefore, he remained outside the offence at the time of the incident of giving and taking the alleged bribe amount. For the panch No.1, it was absolutely impossible to see and hear the conversation that took place between the appellant No.1 and complainant. He also submitted that the currency notes were not recovered from the actual or even conscious possession of the appellant No.1. He also submitted that learned Special Judge ought to have given the benefit of doubt to the present appellants in the circumstances where neither first demand nor second demand by the appellants is proved through any independent evidence. There is no corroboration whatsoever of the evidence of the complainant who is considered to be an accomplish witness and the law demands that the evidence of an accomplish witness has to be corroborated on the most material part. He also submitted that the sanction accorded by the Authority is not just and proper. He also submitted that the defence of the appellants in the statement recorded under Section 313 was not considered by the learned trial Judge while passing the judgment and order of conviction.