PRATAPBHAI KESHUBHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal has been filed by the appellant - original accused under Sec. 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special Judge (ACB) and Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad ((Rural)) at Mirzapur (hereinafter referred to as "the learned Trial Court") in Special ACB Case No. 01/2006 on 6/2/2009, whereby, the learned Trial Court was pleased to convict the accused and sentence the accused to rigorous imprisonment for six months and fine of Rs.1,000.00 and in default, simple imprisonment for three months for the offence punishable under Ss. 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act") and rigorous imprisonment of one year and fine of Rs. 2,000.00 and in default, simple imprisonment for three months for the offence punishable under Sec. 13(1)(d) and 13(2)of the PC Act.

(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 - original accused has filed Criminal Appeal No. 291/2009 mainly stating that the impugned judgement and order of conviction passed by the learned Trial Court is against the provisions of law and evidence on record and the learned Trial Court has not appreciated the fact that the allegations levelled by the prosecution are prima facie not believable. That the learned Trial Court has materially erred in convicting the appellant when the ingredients of the offence are not attracted and the evidence of the prosecution is not trustworthy, reliable and dependable. That the learned Trial Court has not considered that there are basic improbabilities and infirmities in the evidence of the prosecution and it is the foremost duty of the prosecution to prove the case against the appellant beyond reasonable doubts and even if there is a shadow of doubt and slightest suspicion is created, the appellant would derive benefits therefrom. That the learned Trial Court has not appreciated that the prosecution has to prove the three vital ingredients of demand, acceptance and recovery and looking to the evidence of the panch witness and the complainant, it is clear that the prosecution is not successful in establishing demand, acceptance as well as recovery beyond reasonable doubts. The evidence of the panch witness is not natural and there are inconsistent versions about the demand and even though a presumption can be raised, the burden is on the prosecution to prove the demand beyond reasonable doubts. That there are inconsistencies and contradictory versions in the evidence of the panch witness and the complainant and the initial demand with regards to Rs.2000/- is not proved as there is no evidence as to when, where and in whose presence the said amount of Rs.2000.00 was given. The panchnama specifically mentioned that the complainant had a mobile phone and when the complainant was having a mobile phone, it is not palatable that the complainant would invite the appellant at his place for accepting the remaining amount of Rs.3000.00 by making a call from the STD booth. That the investigation is also not properly carried out and the phone call records have not been produced on record. That the complainant himself has voluntarily stated that he had put the amount into the pocket of the appellant and the learned Trial Court ought to have considered this aspect very seriously. That an application at Exh. 14 was tendered by the learned advocate for the defence which is on record of the case and this version of the complainant is altogether a new and different story which helps the case of the appellant. That the complainant has also stated that the shirt of the appellant was sealed along with the tainted currency notes in the pocket and in the evidence of the complainant it has come on record there was one person named Babakhan who was with the complainant from the inception till the end and had accompanied the complainant while filing of the complaint. The prosecution has not examined this Babakhan and in the evidence of the complainant it has also come on record that when the complainant came to the ACB Police Station, he had currency notes of the denomination of Rs.100.00 each and those currency notes were exchanged for the denomination of Rs.500.00 and the reason for the necessity of changing the amount, is not explained by the prosecution. That there is no reference of this fact in the panchnama and there is no evidence that the exchanging of the currency notes had taken place. That it was the complainant who took the initiative to offer the amount to the appellant without there being any demand from the appellant and the panch witness has clearly stated that he would be liable for action and proceeding if he had not deposed as per the panchnama and hence, the learned Trial Court ought to have concluded that the evidence of the panch witness is not free from doubt and the evidence is given under the compulsion of department proceeding. As per the say of the complainant, the Saw Mill of the complainant did not fall in the jurisdiction of the appellant and there was no occasion for the appellant to show favour to the complainant and hence, the demand and subsequent acceptance is not believable. That there are material, important and vital contradictions, inconsistencies and exaggerations in the versions of both the complainant as well as the panch witness and the learned Trial Court ought to have appreciated the material contradictions properly. That the impugned judgement and order of conviction is contrary to law and against the evidence on record and is required to be quashed and set aside.