RAJENDRA G MUDALIYAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant, accused of Special Case No.19 of 1994, has challenged the conviction recorded by learned City Sessions Judge and Special (ACB) Judge, Court No.3, Ahmedabad, recorded vide judgment and order dated 28.1.2004. 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 ordered to pay fine of Rs.500/ - and in default of payment of fine, further rigorous imprisonment of 15 days was imposed and for offence under Section 13 (1) (d) read with Section 13 (2) of the Act he was ordered to undergo rigorous imprisonment for one year and ordered to pay fine of Rs.500/ - and, in default of payment of fine, rigorous imprisonment of 15 days was imposed. Both the sentences were ordered to run concurrently.

(2.) IT is the case of the prosecution that present appellant was serving as Telephone Inspector in the year 1994 and original accused No.2 Mr. Pancholi was serving as Junior Telecom Officer (J.T.O.) in Telephone Department at Telephone Exchange, Himmatnagar. It is the case of the prosecution that the complainant Sureshbhai M Patel was having one telephone connection at his residence in village Kankrol and he was intending to shift the said telephone connection at Himmatnagar. According to the prosecution present complaint was filed on 25th February, 1994. It is also the case of the prosecution that before 4 months of filing of the complainant, the complaint had submitted two applications for getting telephones installed at his residence. It is the case of prosecution that for that purpose, before 15 days of filing of the complaint, accused no.2 met the complainant at his shop and intimated him that the telephone connection for his shop is sanctioned and it would be installed within 2 -3 days. It is further the case of prosecution that thereafter the complainant inquired from Mr.Pancholi about installation of telephone at his residence at Village Kankrol and at that time Mr.Pancholi informed the complainant that as there was no space in cable, telephone at his residence could not be installed. It is the case of prosecution that, therefore, the complainant told Mr.Pancholi -accused No.2 that telephone of his residence at Village Kankrol might be shifted to Himmatnagar at another residence. It is further the case of prosecution that at that point of time, Mr.Pancholi told the complainant to give him Rs.500/ - for that purpose. It is the case of prosecution that the amount demanded was towards bribe. It is also the Case of prosecution that after the incident of said demand, telephone connection was given to the complainant at his shop at Himmatnagar, and for pursuing the procedure regarding shifting of telephone connection from Village Kankrol to Himmatnagar, the complainant met Mr.Pancholi before 5 days of filing of complaint at 3.00 P.M. at his office/shop and again at that point of time, Mr.Pancholi demanded the amount of Rs.500/ -. It is also the case of prosecution that for that purpose, the complainant requested Mr.Pahcho1i and Rs.350/ - were agreed to be paid. It is the case of prosecution that for the purpose of shifting and transferring telephone connection, an application in the hand -writing of Mr.Pancholi was also received by the complainant from Mr.Pancholi, which was produced by him at the time of filing of the complaint. It is also the case of the prosecution that on 23.2.1994 at about 7 p.m. the complainant had a telephonic talk with Mr.Pancholi. It is the case of the prosecution that on telephone Mr.Pancholi informed the complainant that he would be coming to his office/shop at Himmatnagar after 12 noon on 25.2.1994 and he would bring telephone instrument with him and would take away Rs.250/ - from the complainant. It is also the case of the prosecution that as the complainant did not intend to give that amount, he filed a complaint before ACB Police Station at Himmatnagar on 25.2.1994 at 10.15 hours. Thereafter, accused no.2, Mr.Pancholi had not gone to the shop of the complainant but present appellant had gone to the shop of the complainant and there was a talk about shifting of telephone connection. It is the case of the prosecution that thereafter the present appellant had talk with Mr.Pancholi on phone from the shop of the complainant and told the complainant that Mr.Pancholi had asked him to collect Rs.350/ - from the complainant. The complainant had given Rs.250/ - which was accepted by the appellant.

(3.) MR .J.M.Panchal, learned Senior 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 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 the learned trial Judge has acquitted the accused No.2 against whom there was specific case of demand in the complaint. He submitted that when the learned trial Judge has acquitted the original accused no.2 of the charges levelled against him and, at the same time, when offence under Section 120 -B of I.P.C. has not been believed by the learned trial Judge, in that event, he ought not to have convicted the present appellant merely relying on the evidence of prosecution witnesses.