BALVANTDAN PABAJI KHADIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal has been filed by the appellant under Sec. 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special Judge, Fast Track Court No. 2, Surendranagar at Limbdi, (hereinafter referred to as "the learned Trial Court") in Special ACB Case No. 1 of 2006 on 5/5/2009, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Ss. 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "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 passed by the learned Trial Court is erroneous and against the weight of evidence and contrary to the well settled principles of criminal jurisprudence. That the entire trial is vitiated only on the ground that the prosecution has not been able to prove that there was a valid sanction accorded to prosecute the accused under Sec. 19 of the PC Act. That the sanction has come on record before the learned Trial Court in the evidence of PW4 - Babubhai Natwarlal Leuva who was serving as a Joint Secretary in the Department of Health and Family Planning, State of Gujarat and the witness has stated that he has not accorded the sanction. The witness, while he was serving as a Joint Secretary, had no power to appoint or remove the accused from service and on perusal of the order of sanction for prosecution which is produced at Exh. 44, it shows that the witness Babubhai Natwarlal Leuva has signed the same as a Joint Secretary, Department of Health and Family Planning. That the witness had no authority to accord the sanction but has mechanically signed the order of sanction for prosecution. It is settled by the Hon'ble Apex Court that grant of sanction in matters of corruption is not an ideal formality or an acrimonious exercise but a very important and sacrosanct act. If sanction is not accorded in accordance with the law laid down by the Hon'ble Apex Court or the sanction is not accorded by the Competent Authorities then the entire trial would stand vitiated. That the learned Trial Court has also not considered that the original complainant has not supported the case of the prosecution and has been declared hostile. That as far as the demand aspect is concerned, the complainant has turned hostile and the complainant has come up with a new story of demand which is observed by the learned Trial Court and has also observed that the evidence of the complainant is not reliable and trustworthy. The learned Trial Court has mainly relied on the evidence of the panch witness - Gelabhai Nathabhai Rathod but there are material contradictions and omissions in the deposition of the witness and the witness has deposed contrary to the panchnama on record. That the prosecution has not been able to prove the ingredients of demand, acceptance and recovery beyond reasonable doubts and hence, the appeal of the appellant must be allowed and the appellant must be acquitted of all the offences.