DINESHBHAI MULJIBHAI PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY filing Criminal Appeal nos.414 and 415 of 1999, the appellants, accused nos.1 and 2 of Special (ACB) Case No.1 of 1995, have challenged their conviction recorded by learned Special Judge (ACB), Nadiad, vide judgment and order dated 19.04.1999. While Criminal Appeal No.1017 of 1999 is filed by the State for enhancement of sentence imposed upon accused nos.1 and 2.

(2.) IT is the case of the prosecution that accused no.2, Dineshbhai was working as a peon in the office of Mamlatdar of Borsad, while accused no.1 was working as a Clerk. The complainant lodged a complaint in the office of Anti Corruption Bureau alleging that accused no.1 demanded Rs.500/ - for delivering the order of the Mamlatdar by which certain quota of kerosene was allotted to him. It is also alleged that accused no.2 also demanded Rs.50/ - for said work. Accordingly, the prosecution was moved into motion and the accused were charged for offences under Section 7, 13 read with Section 13 (1) (d) of the Act. On investigation being completed the investigating authority lodged the charge sheet and an offence under Section 12 of the Act was added.

(3.) ACCORDING to Mr.Bhatt, learned advocate for the appellants has taken this Court through the evidence on record. He submitted that from the statement of the complainant, Atulbhai Patel, PW -2, it is clear that the accused has never demanded any amount from him. He also submitted that learned trial Judge has also recorded this fact in the impugned judgment. Mr.Bhatt has taken this Court through the evidence of other witnesses also. As far as procedural aspect is concerned, Mr.Bhatt has strenuously urged that the panchas did not depose about passing of currency notes and conversation regarding the same and, therefore, it was hazardous to record a finding of corruption against the accused -appellants. He has further submitted that there was no demand of illegal gratification, there was no recovery from accused nos.1 and 2 and only in a zeal of seeing that conviction is recorded, learned trial Judge has convicted accused nos.1 and 2. He also submitted that the prosecution witnesses corroborates that the license was granted and the accused had said that he would see that the license is handed over to him by the evening, which was the duty of the senior officer. He further submitted that the panch witnesses were tutored and they cannot be believed. He has further taken this Court through the evidence wherein it has been found that no currency notes were recovered from the convicted accused. He has taken this Court through the evidence of PW -3 and PW -4. He submitted that investigating officer can be treated as a partisan witness as he was the member of the raiding party. He submitted that procedure under Section 17 of the Act has not be followed in the present case, therefore, it cannot be said that investigating officer was authorized to carry on investigation. He has relied upon various decisions of Honourable Apex Court as well as of this Court in support of his submissions. He has relied upon the judgment dated 12.1.2015 of this Court in Criminal Appeal no.92 of 2003 in the case of Bhalchandra Laxmishankar Dave v. State of Gujarat, wherein after discussing the case law, this Court acquitted the accused by upturning the judgment of the trial Court. He has also relied on the decision of Apex Court in C.K.Jaffer Sharief v. State (through CBI), 2013 1 SCC 205, wherein it is observed as under: