MOHANLAL DEVSHIBHAI NAGARIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant, accused of Special Case No.8 of 1995, has challenged the conviction recorded by learned 2nd Fast Track Judge, Junagadh, vide judgment and order dated 10.10.2007. By the impugned judgment, the appellant has been convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 (for short, "the Act") and sentenced to undergo rigorous imprisonment for one year and for offence under Section 13 (1) (2) of the Act he was ordered to undergo rigorous imprisonment for one year and for offence under Section 15 of the Act, the appellant was sentenced to undergo rigorous imprisonment for one year.

(2.) IT is the case of the prosecution that the complainant is an Assistant Teacher in the school of village -Agatray. It is stated that his father is residing at Handla and doing agricultural work on their ancestral land. Upon partition, the land which came to the share of the complainant is also looked after by his father. It is also his case that since the complainant wanted to transfer the land into his name, the accused demanded illegal gratification of Rs.400/ -. However, at last Rs.200/ - was decided to be accepted by the accused. With these allegations, the complainant gave complaint against the accused before ACB Police Station, Junagadh. Accordingly, the prosecution was moved into motion by the complainant and on investigation being completed the investigating authority lodged the charge sheet under the provisions of Sections 7, 15 and 13 (1) (2) of the Prevention of Corruption Act. 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 three 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, which is challenged by the appellant by filing present appeal.

(3.) MR .Umot, learned advocate for the appellant submitted that the learned trial Judge has convicted the appellant herein inspite of the fact that prime genesis of demand and acceptance was not proved. Mr.Umot 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 offence under the Act. He submitted that learned trial Judge has erred in appreciating the evidence of PW -1, the complainant, wherein he has stated that he is Principal of Girls School and since he was busy in his service, his father used to look after the land which was inherited by him. The complainant has stated that there was demand of Rs.400/ -, however, in his cross -examination, he has rebutted this say and said that there was no demand. The complainant then stated that the accused might have understood that there was a trap and, therefore, he did not accept the money. He submitted that the statement of the accused should be read as a whole and by relying on a part of such statement, it cannot be held that the accused is guilty of the offence. He submitted that as per criminal jurisprudence, evidence is to be considered as a whole and a part of it cannot be relied to hold the accused guilty. He submitted that even the trapping officer has not supported the case of the prosecution as far as demand of illegal gratification is concerned. He further submitted that PW -2, who is also a panch witness, has stated in his statement that the appellant had not demanded any amount from the complainant and it is the complainant who told the appellant that I have brought Rs.200/ - but the appellant has not accepted such amount. Therefore, it is clear that no demand was made by the appellant. 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.Umot prayed that this appeal may be allowed and the impugned order may be reversed.