STATE OF GUJARAT Vs. RAJENDRA POPATLAL SHAH

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 21.01.2000, passed by the Learned Special Judge, Bhavnagar, in Special Case No.01 of 1998, whereby the respondent original accused has been acquitted of the charges under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 ( the Act for short).

(2.) BRIEFLY stated, the facts of the prosecution case, based upon the complaint (Exh.23) dated 29.03.1997, filed by Mohmadbhai Yaqubbhai, are that the complainant had applied for a certified copy of an order passed in Misc. Civil Appeal No.71 of 1996, on 27.03.1997. The respondent was serving as a Record Keeper at the District Court, Bhavnagar, at the relevant point of time. As per the version of the complainant, the respondent demanded illegal gratification of Rs.100/ - to expedite the preparation of the certified copy of the order. The respondent asked the complainant to come on 29.03.1997, on which date he would get the certified copy ready and give it to the complainant in the evening, after office hours. As the complainant did not wish to give any illegal gratification, he approached the office of the Anti -corruption Bureau (ACB), Bhavnagar, and registered the complaint. PW -4, Dilipbhai Shantilal Mehta, Police Inspector (ACB), arranged for the Panch Witnesses and laid a trap. It is the case of the prosecution that on 29.03.1997, at about 6:00 PM, the complainant, along with Panch Witness - Keshavbhai Chhaganbhai Rathod (PW -1), went to the District Court, Bhavnagar. The other members of the raiding party had hidden themselves in nearby places. At about 18:20 hours, the accused came out of the District Court premises and started walking. The complainant and PW -1 went upto the accused, who allegedly accepted an amount of Rs.100/ - (two Rs.50/ - notes) which had previously been treated with Anthracene powder. On the pre -arranged signal being given by the complainant, the accused was apprehended by Police Inspector - PW -4 with the notes in his hand. He was then taken to the office of the Local Fund and his person and clothes were examined under the light of an ultra -violet lamp. It was found that the pocket of the bush -shirt worn by the accused contained traces of Anthracene powder, which was also found on the finger tips of his right hand and palm. Two Fifty rupee notes were also recovered, on which traces of Anthracene powder were found. A Panchnama was drawn at the spot and the accused was arrested. Investigation into the case then commenced. The District Judge, Bhavnagar, being the Competent Authority, issued the order of sanction for the prosecution of the accused, at Exh.21. After investigation, the charge -sheet was submitted against the accused. Charges were framed by the Special Court, which were read over and explained to the accused, who pleaded not guilty and claimed to be tried. After the recording of the statements of the prosecution witnesses was over, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied the case of the prosecution and filed a further written explanation wherein he took the stand that he had never demanded any illegal gratification from the complainant but the complainant had forcibly tried to give him the trap money. The accused has stated that he resisted the complainant by pushing him, however, the complainant tried to put the notes (treated with Anthracene powder) in his bush -shirt pocket. The accused attempted to give the notes back to the complainant, in which process the traces of Anthracene powder came upon his bush -shirt pocket and on his finger tips. It was at the time when he was returning the money to the complainant, that the raiding party arrived and apprehended him. It is further stated by the accused in his written explanation that the complainant gave an application for the certified copy of the order on 27.03.1997, at about 4:00 PM. 28.03.1997 was a public holiday, being Good Friday, therefore, the accused had asked the complainant to come on 31.03.1997. The complainant wanted the certified copy immediately. On 29.03.1997, the complainant did not come to him in the Court premises to obtain the certified copy, and has filed a false case against him and deposed falsely.

(3.) MR . H.K. Patel, learned Additional Public Prosecutor for the appellant - State of Gujarat, has submitted that as per the complaint made by the complainant, the demand of illegal gratification is proved. Insofar as the acceptance of the bribe money is concerned, traces of Anthracene powder were found on the pocket of the bush -shirt worn by the accused, as well as on the fingers of his right hand, showing that the money was received by him and put in his pocket. Learned Additional Public Prosecutor has further submitted that though the Panch Witness has stated that the accused was not accepting the money and the complainant insisted on giving it out of affection, the fact remains that the money was accepted by the accused. As it was not part of the official remuneration of the accused, who is a Public Servant, it amounts to illegal gratification. No marks of Anthracene powder are found from the other parts of the clothing of the accused, except on the bush -shirt pocket and his right hand. It is further submitted that the presumption under Section 20 of the Act would arise in the present case, which has not been rebutted. In fact, the learned Special Judge has failed to even mention or deal with this aspect, therefore, the judgment and order is erroneous on facts and law. As material evidence has been overlooked, resulting in recording a wrong finding of acquittal, the appeal may be allowed and the impugned judgment and order set aside.