MALDE RAJDE KOLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appellants have preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 1.4.2006 passed by the learned Presiding Officer, Fast Track Court, Veraval in Special Case No. 15/1999, whereby, the learned Judge has convicted the appellants under sec. 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and sentenced to undergo 18 months R/I for both the offences and to pay a fine of Rs. 10,000/ -, in default, to undergo further R/I for three months, which is impugned in this appeal.

(2.) THE brief facts of the prosecution case is as under: 2.1 It is the case of the prosecution that the complainant Danabhai Rudabhai Chopda (Rabari) was driving goods vehicle rickshaw No. GJ -11 -T -6632. The owner of this rickshaw was Devjibhai Vankar. The complainant had taken that Rickshaw on hire basis from Devjibhai. According to him, he was carrying goods in above said rickshaw. As per the prosecution case, approximately 8 days prior to the date of lodging the complaint, while the complainant was driving his rickshaw, he was made to stop by the present appellant at Talala Bus Stand. At that time, the appellant stopped the rickshaw of the complainant and threatened him to file a case against him. Thereupon, the complainant told the appellant that he used to carry goods in the rickshaw and he does not use to carry the passengers in the rickshaw. It is further the case of the prosecution that the appellant told the complainant that "if at all you want to run rickshaw on this road, you have to pay Rs. 200/ - per month towards installment." In short, it is the allegation of the prosecution that at that time, the appellant demanded amount of bribe of Rs.200/ - per month from the complainant. The complainant told that at present, he has no money with him. Thereupon, the appellant told the complainant to give the amount whatever he has with him or otherwise, the rickshaw will be detained. Thereupon, the complainant gave Rs. 100/ - to the appellant. The appellant told the complainant to give remaining amount of Rs. 100/ - whenever the complainant passes from that road by driving his rickshaw. It is further the case of the complainant that the complainant was threatened by the appellant that if at all he will not come with the remaining amount of Rs. 100/ - then his rickshaw will be detained. Therefore, the complainant stopped to run his rickshaw from that day. It is further the case of complainant that the complainant also thought that a complaint should be filed against the police officers who accept the amount of bribe and they should be caught hold while accepting the amount of bribe. Therefore, the complainant approached the Police Inspector of ACB, Junagadh and lodged his complaint against the present appellant. Further, according to him, he produced the amount of bribe (i.e. two currency notes of Rs. 50/ - each). The complaint was lodged at 12.45p.m. On 10.11.1995. After recording the complaint, PI Shri Algotar called upon the members of raiding party, lamp man, etc. Two panchas were also called upon from the office of District Inspector of Land and Record Office, at Junagadh. Both the panchas were serving in that office as Clerk. Further, according to the prosecution case, both the panchas, complainant and members of raiding party were explained regarding the experiment of ultra violet lamp and characteristics of anthracene powder. Further, it is alleged that the facts of complaint were stated to both the panchas. As stated above, the muddamal currency notes of rs. 100 (Rs. 50/ - each) were handed over to PI Shri Algotar. The numbers of currency notes were noted down in the first part of the panchnama. Thereafter the raiding party started for Talala village. The complainant went to bring his rickshaw. Some times thereafter, the complainant came back and told that while he was in search of his rickshaw, the appellant met him and told the complainant that his brother had come with rickshaw in the morning and the same rickshaw is detained in the Police Station just opposite guard room and if at all the complainant wants to take his rickshaw back at that time, then the complainant has to pay Rs. 100/ - to the appellant. At that time, the complainant told the appellant that at present, he has no money with him and he is coming after making arrangement of the amount. Therefore, one another one another rickshaw was brought and in that rickshaw the complainant, Police Inspector Shri Algotar and both the panchas went at the place where the appellant was standing. The other members of the raiding party were asked to come in another rickshaw behind the rickshaw of the complainant. Thereafter, all the persons in above said two rickshaws went towards Chitravad road. The rickshaw of the complainant was made to stop at one place. Panch no. 1 and complainant went towards rickshaw stand where the appellant was present. Panch no. 2 also followed both these persons. Police Inspector Shri Algotar also followed in the same manner. At that time, complainant asked the appellant "how are you Maldevbhai." Therefore, the appellant asked the complainant as to whether he has brought the amount with him. Thereupon, the complainant told that he had come with Rs. 100/ -. Therefore, the appellant demanded Rs. 100/ - from the complainant. The complainant asked the appellant that when his rickshaw will be returned back to him. Thereupon, the appellant replied that his rickshaw is not detained and he was asked to take his rickshaw at that time. Thereupon, the complainant took out the currency notes which were placed in the left pocket of his shirt with the help of right hand and gave the said notes to the appellant. The appellant accepted the said currency notes by his right hand and told the complainant to take back his rickshaw. Thereafter, the complainant gave pre -arranged signal, the raiding party apprehended the accused. On asking he told his name to PI Shri Algotar. At that time, the currency notes were in the right hand of the appellant. PI Shri Algotar gave instruction to panch no. 1 to take out those notes from the hand of the appellant and panch no. 1 was instructed to keep the said currency notes with him. Further, it is alleged that the appellant tried to run away towards police line but staff members of ACB immediately caught hold of him and made to sit in the Jeep. Thereafter, the numbers of notes recovered from appellant was found to be tallied with number that has already been noted down in the first part of the trap panchnama. Thereafter, necessary procedure of anthracene powder was carried out and final panchnama was prepared in presence of the panch witnesses. Thereafter further investigation was carried out and then charge sheet has been filed against the accused for the above said offences, which was numbered as Special Case No. 15/1999.

(3.) THE accused was charged vide at Ex. 1. The appellant accused pleaded not guilty and claimed to be tried.