BAROT BHOGILAL PUNJIRAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal has been filed by the appellant under Sec. 374 of the Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special Judge (ACB), Mehsana (hereinafter referred to as "the learned Trial Court") in Special ACB Case No. 1 of 2006 on 30/10/2007, whereby, the learned Trial Court has convicted and sentenced the appellant to two years simple imprisonment and a fine of Rs.3,000.00 and in default, simple imprisonment for three months for the offence punishable under Sec. 7 of the Prevention of Corruption Act, 1988 (hereafter referred to as "the PC Act" for short) and two years simple imprisonment and fine of Rs.3,000.00 and in default, simple imprisonment for three months for the offence punishable under Sec. 13(1)(d) of the PC Act. The appellant is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity.

(2.) The brief facts that emerge from the record of the case are as under:

(3.) Being aggrieved and dissatisfied with the said judgement and order of conviction, the appellant has filed the present appeal mainly stating that the impugned judgement and order of conviction and sentence passed by the learned Trial Court is contrary to the provisions of law and against the weight of evidence on record. That the learned Trial Court has not appreciated the evidence produced by the prosecution in proper perspective and in fact, the evidence is not sufficient to prove the charge against the accused. That from the deposition of the panch witness, it is clear that the accused has not demanded for any amount of illegal gratification and hence, the important ingredient of demand of illegal gratification is not proved beyond reasonable doubts. That the learned Trial Court has not appreciated the fact that the complainant had filed a complaint in the Vadnagar Court against three former trustees of one trust and the accused was investigating the offence. That the accused had filed a summary report before the concerned Court and the accused were not arrested as they were absconding and the complainant had a grievance against the accused as he had not arrested the trustees against whom the complainant had filed the complaint. That moreover, the complainant is habitual of threatening persons and filing false complaints against them and the entire people of the village had externed him from his village. That it has come on record that the complainant had filed FIRs against 44 persons of his village and merely as the accused did not arrest the persons against whom the complainant had filed the case, the complainant has filed a false case against the accused. That no demand was made by the accused at any point of time and as per the say of the complainant, the accused had telephoned him in the morning on 1/8/2005 and told him that the copies of the affidavits are ready and had called him to Mehsana Court with Rs.500.00 but when the complainant went on 1/8/2005, the accused was not there. That the learned Trial Court has not considered that if the demand of illegal gratification of Rs.500.00 was made by the accused, the accused would have remained present on 1/8/2005 before the Court at Mehsana to collect the amount of illegal gratification from the complainant. Moreover, as per the case of the prosecution, the accused had demanded the amount and had told the complainant that the amount was to be paid in the office of the Government Pleader on 8/8/2005 but it has also come on record that the complainant and the accused were alone in the office of the Government Pleader at Mehsana on 8/8/2005 but at that time the accused did not demand for any amount. That there is no evidence to prove the prior demand and the demand on the date of the trap and there is evidence to the effect that the complainant had given a currency note of Rs.50.00 to the panch witness to get the zerox copies of the affidavits made but as per the case of the prosecution, when the complainant was searched at the ACB Office before the trap was arranged, there was no such currency note of Rs.50.00 in his possession. There is no explanation whatsoever as to how this currency note of Rs.50.00 came to the possession of the complainant and the learned Trial Court has not considered the fact that the accused would not accept the amount of illegal gratification near the tea stall which was surrounded by many persons when the accused had the opportunity of accepting the tainted currency notes in the office of the Government Pleader where there was no other persons besides the complainant and the accused. Moreover, the learned Trial Court has not appreciated the fact that when the panch witness reached the office of the ACB on 8/8/2005, the complaint was already written and there is no clear evidence about the application of phenolphthalein powder on the currency notes. That in fact, the learned Trial Court has not considered the defence of the accused that the complainant had given the tainted currency notes of Rs.500.00 without any demand from the accused and the complainant tried to push the tainted currency notes in the hands of the accused and the accused refused to accept the same but at that time, the Investigating Officer came and arrested him. That the entire story of the prosecution is untrustworthy, got up, concocted and highly improbable and merely because the accused was the Investigating Officer of M Case No. 1/2005 filed by the complainant and the accused did not arrest the persons against whom the complainant had filed the complaint, the complainant had an axe to grind and a false case has been filed against him. That the learned Trial Court has not appreciated the entire evidence in proper perspective and there is no cogent, convincing and reliable evidence to convict the accused but the learned Trial Court has false convicted the accused and hence, the appeal must be allowed and the accused must be acquitted from all the offences.