JAYESH HASMUKHBHAI HAKANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellant under Section 374 of the Criminal Procedure Code, 1973 (hereinafter referred to as the "Cr.P.C." for short) against the judgment and order of conviction dated 27.01.1997 passed by learned Special Judge, Rajkot in Special Case No.12 of 1988, whereby the appellant -accused was convicted of the charge for offence punishable under Section 5(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act" for short) and Section 161 of the Indian Penal Code (hereinafter referred to as "the IPC" for short) and sentenced to undergo rigorous imprisonment for one year with fine of Rs.1000/ - and in default, to further undergo rigorous imprisonment of 3 months.

(2.) THE brief facts of the prosecution case are that the appellant was serving as a Clerk in Treasury Office at Rajkot. Complainant -Shri Surendrasinh Dadubha Rana was working as a Commission Agent and dealer of groundnut oil at Gondal was carrying business in the name of Gujarat Food Oil Nigam. The firm belongs to one Shri Usmanbhai Jivabhai while complainant was of his power of attorney and was carrying on business on his behalf. It is further case of the prosecution that in September -1985, the firm had purchased 10,000 kgs. of groundnut oil from Andhra Pradesh which was transported in a tanker. Due to mistake of driver of the tanker, who was from Andhra Pradesh and was not knowing Gujarati Language, by mistake, delivered the oil with Gujarat State Food Corporation Limited at Government Godown situated in Fire Area, Bhojpura at Gondal. It is further case of the prosecution that the delivery of the same was taken by the officer at godown. This mistake was found out and ultimately, the complainant was called and the delivery of the oil was handed over to the complainant. He was required to keep the same till further orders of the Government. This order was challenged and ultimately, the same was required to be handed over to the complainant. In the proceedings, the Collector ordered to confiscate 200 kgs. groundnut oil of the value of Rs.30,000/ -, but ultimately, in the appeal, the above order was set aside and the amount of Rs.30,000/ -, which was deposited by challan in the Treasury Office, was ordered to be refunded to the complainant. Several attempts were made in December -1987 to get the refund order, which was ultimately sent to Treasury Office at Rajkot on 17.12.1987. It is alleged that the complainant had visited Rajkot Office for about 8 to 10 times and tried to get the refund oder. It is further alleged that the appellant was intentionally not giving the refund order. It is alleged that, therefore, the complainant requested the appellant to expedite the matter. The appellant, therefore, replied that in Government work, you must understand, meaning thereby, to make payment to get the work done. He also said that he could delay for years, and therefore, he directly told that the bribe money of Rs.300/ - must be paid to the appellant. He also said that on payment of Rs.300/ -, he would immediately handover the refund order. The complainant said that Rs.300/ - was too much, and therefore, the appellant said that at -least Rs.200/ - was required to be paid. He also said that this amount of Rs.200/ - must be paid on 30.01.1988 at about 4:00 in the evening. The complainant was not willing to pay the amount, and therefore, he filed a complaint with Anti Corruption Burea at Rajkot. On receiving the complaint, the Investigating Officer called two panchas and explained them the contents of the complaint. The amount of Rs.200/ - was produced by the complainant and usual experiment of ultra violate lamp and antharacene powder were down in presence of panchas and preliminary panchnama was also prepared. Thereafter, Panch No.1 was instructed to accompany the complainant and to see and hear what transpires between the appellant and the complainant. The raiding party proceeded towards the compound of the Treasury Office. The complainant with Panch No.1 went near the appellant. The appellant suggested to go for a cup of tea and they went near a tea cabin of accused No.2. At that place, the appellant demanded the money and directed the complainant to pay the same to accused No.2 now acquitted, who was the owner of the tea cabin. The amount was paid to accused No.2, and thereafter, usual signal was given the raiding party immediately carried out the raid. On search, the amount of Rs.200/ - was recovered from accused No.2 -Shri Ashok Shantibhai Bhatti. Subsequent portion of the panchnama was drawn and accused were arrested. Thus, the case of the prosecution in short was that amount of Rs.200/ - was demanded by the appellant and the accepted the same through the owner of tea shop -now acquitted accused.

(3.) AFTER completion of the investigation, the chargesheet was filed Competent Court. The said case is triable by the Court of learned Special Judge, Rajkot, which was made over to Additional Judge and thereafter, numbered as Special Case No.12 of 1988.