PARMAR CHINUBHAI MOHANBHAI 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 judgment and order of conviction dtd. 6/6/2005 passed by the learned Special Judge, (ACB), Mehsana (herein after referred to as 'the learned Trial Court') in Special (ACB) Case No. 2 of 1999, whereby, the learned trial Court has convicted the appellant for the offences punishable under Ss. 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The learned trial Court has sentenced the appellant to rigorous imprisonment for one year and fine of Rs.10,000.00 and in default one month simple imprisonment under Sec. 7 of the the Prevention of Corruption Act, 1988 and three years rigorous imprisonment and fine of Rs.10,000.00 and in default six months simple imprisonment for Ss. 13(1)(d) and 13(2) of the Prevention of Corruption Act. All sentences were ordered to run concurrently. 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 impugned judgment and order of conviction, the appellant has filed the present appeal mainly contending that the impugned judgment and order of conviction and sentence passed by the learned Special Judge (ACB), Mehsana is contrary to the provisions of law and against the evidence on record and the learned trial Court has erred in holding that the prosecution has proved its case beyond reasonable doubt. That the learned trial Court ought to have appreciated that the evidence adduced by the prosecution was not sufficient to prove the charge against the accused and the learned trial Court has failed to appreciate that the gratification must be impressed with the character of illegal remuneration, which was given knowingly and taken knowingly. That there is absolute lack of substantive evidence in the prosecution story and the accused had never demanded any amount of bribe, even at the time of the trap. That the ingredients of demand and the acceptance are not proved by the prosecution and mere recovery of the amount from the accused is not sufficient to attract the offence under the Prevention of Corruption Act. That the learned trial Court ought to have appreciated that the reason for giving money by the complainant is prima-facie not believable and it is the say of the accused that on 19/10/1997 one Pasiben Gandabhai Harijan had filed FIR against the complainant, his father and one Revaji under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, and the complainant was under the impression that the accused being a member of the scheduled caste had assisted the complainant Pasiben Gandabhai Harijan to file the complaint and hence was annoyed with the accused. That the complainant and Babuji were having a dispute of Dhadiya with the Senma Community and the accused had drawn the panchnama on 1/10/1997 and hence the complainant and Babuji were annoyed with the accused and they have falsely implicated the accused in this case. That the learned trial Court has failed to appreciate the evidence of Patel Dinesh Ambalal and Karshanbhai Bhavanbhai Solanki and from the evidence of both these witnesses, it is proved that the amount that was recovered from the accused, was not the illegal gratification but the amount, which was voluntarily parted with by the complainant as his share towards purchase of a cupboard for the use in the office of Talati- cum-Mantri. That, in fact, Somabhai is an eye witness to the entire conversation and the transaction that had taken place but the prosecution has not examined Somabhai before the learned trial Court. That, the learned trial Court has not appreciated the explanation offered by the accused in his further statement recorded under Sec. 313 of the Code of Criminal Procedure, 1973 and if the same is considered, it is sufficient to rebut the presumption raised by the learned trial Court under Sec. 20 of the Prevention of Corruption Act. That, in fact, the accused was not in a position to cause any favour to the complainant because the accused was not competent to change the scheme of the land and the mutation entry of the complainant was already mutated in the revenue record much prior to the date of the trap. That there was no reason for the accused to demand for any amount of illegal gratification and the prosecution has not examined Babuji, Jashvantgiri and Pravingiri to prove that the lands were to be purchased by the complainant and Babuji. That the deposition of the complainant is not trustworthy and not supported by any independent witnesses and hence adverse inference can be drawn against the prosecution as Somabhai was the best witness to depose in support of the prosecution. That the judgment and order of conviction passed by the learned trial Court is passed even though the prosecution has not proved the case beyond reasonable doubts and hence the impugned judgment and order of conviction must be quashed and set aside and the accused must be acquitted for the offence.