MAJIDBHAI SULEMANBHAI DELA (SUMRA) Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal has been filed by the appellant - original accused under Sec. 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and order of conviction in Special Case No. 05 of 2000 passed by the learned Presiding Officer, 6th Fast Track Court, Rajkot (herein after referred to as 'the learned Trial Court') on 25/1/2006, whereby, the learned Trial Court has convicted the respondent for the offences punishable under Ss. 8 and 9 of the Prevention of Corruption Act, 1988 (herein after referred to as 'the P.C.Act'). The respondent is hereinafter referred to as 'the accused' as he stood in the original case, for the sake of convenience, clarity and brevity.

(2.) The relevant facts leading to filing the conviction appeal are as under:

(3.) Being aggrieved and dissatisfied with the impugned judgment and order of conviction dtd. 25/1/2006, the appellant - accused has filed the present appeal mainly contending that the accused is a daily wager of a contractor of the GEB namely Rohitgiri Amritgiri Goswami and the prosecution has not produced any evidence on record to show that the accused was, in fact, a daily wager of the contractor Rohitgiri Amritgiri Goswami. It is the case of the prosecution that a list for disconnection of the electric connection of the consumers of the GEB was given to daily wager Gadhavibhai and the list for disconnection of the electric connection was not given to the accused and hence, there is no iota of evidence that the accused was, in any way, connected with the contractor. That the judgment and order of conviction is rendered without appreciating the relevant material evidence on record and even, the contractor Rohitgiri Amritgiri Goswami, PW-7, examined at Exh.63, has categorically stated that he had engaged Rajubhai, Majubhai and Krushnabhi and he had not engaged the accused for any work. He had never called him or engaged him for any work of his contract. There is no iota of evidence that the accused was ever working in the contract of the GEB. For the offence under Sec. 9 of the P.C.Act, the accused must have exercised his personal influence with a public servant. It is not the case of the prosecution that the accused has exercised his personal influence with any public servant. It is not the case of the prosecution that the accused had demanded any amount to exercise his personal influence with any officer or employee of the GEB. The conviction under Ss. 8 and 9 of the P.C.Act is prima-facie illegal and liable to be quashed and set aside and it is settled law that where a public servant employs a person to assist him in his work and pays him out of his own allowances, the latter is not a public servant. That the principles of joint liability cannot be applied to the person who is not a public servant and in fact, no charge can be legally framed against the accused under the P.C.Act. That even the panch witness has categorically stated that he has not dictated the panchnama and the impugned judgment and order being illegal and perverse, is liable to be quashed and set aside and the accused must be acquitted from said the offences.