JETHALAL AMRABHAI KHIMSURIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this appeal, the appellant, accused has challenged judgment and order dated 15.10.2004 passed by learned Special Judge, 8th Fast Track Court, Rajkot, in Special Case No.11 of 1992 whereby he is convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short, "the Act") and sentenced to undergo simple imprisonment for one year and ordered to pay fine of Rs.1,500/- and in default of payment of fine, simple imprisonment of one month is imposed and for offence under Section 13 (2) read with Section 13 (1) (d) of the Act he is sentenced to undergo simple imprisonment for one year and ordered to pay fine of Rs.1500/- and in default of payment of fine, simple imprisonment of one month is imposed.

(2.) It is the case of the prosecution that Joint Director of ACB, Rajkot, received an information that police officers and officers of RTO were illegally taking gratification from truck drivers transporting salt on the pretext of not taking legal actions. Therefore, they decided to arrange a trap. On 5.4.1995 panchas were called and preliminary panchnama was drawn. Thereafter, they went to Nimaknagar at Village-Kuda. For this decoy trap, Shri Chudasama gave an amount of Rs.400/- to decoy witness which was smeared with anthrecene powder. Thereafter, they proceeded towards Navakam Octroi Post at Gondal. At that place, trucks were stopped and the amount towards illegal gratification was demanded by the accused and the accused was caught red handed. Accordingly, trap remained successful. After completion of investigation, charge-sheet under Sections 7, 12, 13 (1) (d) and 13 (2) of the Act was filed on 17.11.1992 before learned Special & Sessions Judge, Rajkot. When the accused was summoned by the Special Judge, he pleaded not guilty and claimed to be tried. Therefore, he was tried by the learned Special Judge and the prosecution has examined four witnesses in support of its case. The prosecution also relied on several documents in support of its case. At the conclusion of the trial, the appellant came to be convicted by the learned trial Judge. The appellant has challenged his conviction by filing present appeal.

(3.) Mr.J.M.Panchal, learned Senior Advocate for the appellant submitted that the learned trial Judge has convicted the appellant herein in spite of the fact that prime genesis of demand and acceptance were not proved. Mr.Panchal has also taken this Court through the evidence of the complainant and panch witnesses. He submitted that the trial Court has committed an error in holding that the accused demanded bribe from the complainant and thereby committed an offence under the Act. He submitted that so far as PW Nos.3 and 4 are concerned, they are police officer and ACB sleuths, who were not present when the alleged bribe was handed over to the accused. So their evidence would only throw light on prior or subsequent events of raid and panchnama and, therefore, these two witnesses would not be knowing anything as to what conversation had taken place between the driver of truck-decoy witness and the accused, by which way the amount is transferred from one hand to another, how the amount was demanded, by whom and by which way there was acceptance etc. and even if they say anything on this aspect, it would be a derived knowledge or information. He also submitted that in this case, the driver, PW-1, has not supported the prosecution case and he is declared hostile. He also submitted that there are contradictions in the evidence of panch witness. He submitted in such case of decoy raid, decoy witness should be supported by other witnesses, however, in the present case, the decoy witness has turned hostile and evidence of panch is not supported by any independent witness, therefore, this appeal may be allowed by reversing the conviction recorded by the trial Court. He also submitted that investigation in the present case is faulty. He submitted that the prosecution has failed to prove demand on the part of the appellant herein. He also submitted that the sanction granted in the present case is not legal sanction. He also submitted that learned trial Judge has also failed to consider the judgments cited on behalf of the defence in its true perspective. He also submitted that the panchas have deposed in a mechanical manner and, therefore, by relying upon such witness the accused could not have been convicted by the learned trial Judge. He submitted that the prosecution has failed to prove demand and acceptance on the part of the accused, therefore, the learned trial Judge has committed an error in convicting the accused. He also submitted that the learned trial Judge has wrongly drawn presumption under Section 20 against the accused, though there is no sufficient evidence on record. In view of above, Mr.Panchal prayed that this appeal may be allowed and the impugned order may be reversed.