SOMABHAI BADRIBHAI KUMBHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant, accused of Special Corruption Case No.16 of 1999, has challenged the conviction recorded by learned Special Judge, Court No.6, Ahmedabad City, vide judgment and order dated 9.4.2003. 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 and a half years and ordered to pay fine of Rs.2,500/ - and in default of payment of fine, further rigorous imprisonment for two months was imposed and for offence under Section 13 (2) of the Act he was ordered to undergo rigorous imprisonment for two and a half years and ordered to pay fine of Rs.2,500/ - and, in default of payment of fine, further rigorous imprisonment of two months was imposed.

(2.) IT is the case of the prosecution that the appellant was discharging his duty as a pound keeper under Municipal Corporation, and his day to day duties are to the effect of maintaining register of the cattle which are being brought to the pound whereby the numbers and descriptions of the animals, the day and hour of which the cattle being brought, name and residence of seizer as well as the name and residence of the owner of the cattle are to be written in the register. When the cattle are brought to the pound day to day after entering the details in the register the other copy is being sent to the Superintendent of the appellant. Once the cattle are impounded then when the owner of the cattle approaches the pound keeper for releasing his cattle, then at the same time the pound keepers will claim fine to the tune of Rs.250/ - and for each day the pound keeper also charged Rs.50/ - as a feeding charge for maintaining the cattle. The appellant had no right to release the cattle as he is only the pound keeper and the register of impounded cattle is maintained and only after obtaining the receipt from the Superintendent with respect to the payment of fine and feeding charges the appellant after verifying the receipt and also making the entry in the register with respect to payment receipt can release the cattle. The complaint was lodged by the complainant namely Shri Jakshibhai Rabari alleging that his cattle was impounded by the present appellant on 24 -2 -1999 and on 1 -3 -1999 he approached the appellant but as the office hours were over he was asked to come on the next day. It was also alleged by the complainant that on 6.3.1999 when the complainant again visited the appellant the complainant was asked to pay Rs.500/ - as a a bribe for release of his cattle, as the complainant was not in desirous to pay the said amount the complainant approached before the ACB office and the complaint was lodged against the appellant. Thereafter, a trap was arranged and the complainant was caught red handed. 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 and 13 (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 four witnesses in support of its case. The prosecution also relied on four 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 .Pratik Barot, 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.Barot 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 in the present case demand and acceptance is not proved beyond reasonable doubt. 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.