SWAMI DHANJIBHAI BALCHANDRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is preferred by the appellant-convict-accused of Special Case No.4 of 1991, decided on 30th Sept., 1993 by the learned Special Judge (Court No.2) of City Ahmedabad. The appellant-accused (hereinafter referred to as 'the accused') stood trial for the offences punishable under Sections 13(1)(d) (i) and (ii) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act'). The accused came to be convicted vide judgment and order under challenge for the offence punishable under Sec. 7 of the Act and has been imposed sentence to undergo simple imprisonment for three years and to pay a fine of Rs.100.00, in default to undergo further simple imprisonment for a period of three months. The accused is also found guilty by the ld.trial Judge for the offences punishable Sections 13(1)(d)(i) and (ii) of the Act and for that offence, the ld.trial Judge has imposed simple imprisonment for a period of three years and a fine of Rs.500.00, in default to undergo further simple imprisonment for three months. Of course, these sentences are ordered to run concurrently. Thus, the judgment and order of conviction and sentence is under challenge and the same has been assailed on various grounds mentioned in paragraph no.4 of the memo of the appeal and the appellant has tried to point out various aspects where according to the appellant, the learned Special Judge has erred either in appreciating the evidence and also in applying relevant legal aspects.

(2.) The facts of the accused's case are that the accused at the relevant point of time was a Senior Clerk working in the office of the Gujarat Housing Board in Estate Department and he came to be prosecuted on the basis of the complaint lodged with Anti-Corruption Bureau by one Rajnikant Muljibhai Patel (hereinafter referred to as 'the complainant') on 30th April, 1990. The allegation in the complaint is that the brother-in-law (wife's brother) of the complainant wanted to purchase a flat constructed by Gujarat Housing Board situated in one of the schemes known as 'Vandan Apartment', Mr. Ankoor Cross Roads, Naranpura, Ahmedabad, bearing No.36/259. The said flat was standing in the name of original owner Vasantben and she had purchased the said flat on higher purchase basis from the Gujarat Housing Board. It is alleged that in connection with transfer of said flat in the name of Hasmukhbhai, certain formalities were required to be performed and the accused was dealing with such transfer of flats from one person's name to the proposed transferee and the accused demanded illegal gratification of Rs.1000.00 for helping the cause. It is the say of the prosecution that when Hasmukhbhai decided to purchase the said flat from Vasantben, both of them had gone to the office of the Gujarat Housing Board situated near Pragatinagar, Naranpura at Ahmedabad, whereby they were asked to produce requisite form signed by the seller and the prospective buyer and they were asked to file an affidavit on an appropriate stamp paper. They had visited the said office on 26th April, 1990 and at that time, along with the complainant, the said Vasantben her son and Hasmukhbhai were there with the complainant apart from a friend of the complainant. On inquiry this group of persons was asked to go to the table of one Mr.Swamy i.e. present appellant-orig.accused as he was dealing with transfer of flats of Housing Board. The papers were shown to the accused who scrutinized the same and put initials on them. However, they were advised that the affidavits are required to be sworn before the learned Magistrate and the affidavits were prepared. As per the requirement and advice given by the accused, an amount of Rs.3001/- was deposited with the office of the Housing Board as transfer charges and thereafter all papers were given to the accused on the same day. It is the case of the prosecution that on that day the accused told the complainant that if the complainant wanted to get the flat duly transferred in the name of Hasmukhbhai, then the complainant will have to pay him Rs. 1000.00 as illegal gratification but the complainant had expressed his inability to pay such a huge amount. The accused on that day tried to convince the complainant that he had to disburse the said amount and the accused would get only Rs. 200.00. Thereafter, when the complainant was not left with any another alternative, the complainant agreed to pay him Rs. 500.00. The office of the Housing Board was closed from 27th April, 1990 to 29th April, 1990 and it was opened on 30th April, 1990. On that day, the complainant went along with papers but as he had not paid the amount of Rs. 500.00 towards illegal gratification, the papers were given back by the accused to the complainant. The case of the prosecution is that the complainant never wanted to make payment of any bribe money and, therefore, he approached the office of the Anti Corruption Bureau (ACB), Ahmedabad on 30th April, 1990 and lodged the complaint to the above effect, whereupon the trap ultimately was arranged. It is the case of the prosecution that the raid was successful and it was carried out in the canteen of the office of the Gujarat Housing Board. However, the accused fled away from the site where he had accepted the amount, the muddamal currency notes. A formal panchnama of recovery of amount was carried out at Gandhinagar and smeared bribe money came to be recovered from Gandhinagar and that too from the house of one employee of Gujarat Housing Board with whom the accused had exchanged the smeared notes after accepting them from the complainant. On conclusion of the trial, the ld.Special Judge found that the prosecution has successfully established the charges levelled against the accused.

(3.) I have carefully gone through the judgment and order under challenge and Mr.K.B. Anandjiwala, learned counsel appearing for the appellant orig.accused, has taken me through the memo of the appeal and documentary evidence led by prosecution. Mr. Anandjiwala, learned counsel appearing for the appellant, has submitted that the finding of the learned Judge is erroneous and certain important relevant aspects have been ignored. On the contrary, in the present case, it was not safe to conclude that the raid was carried out by the prosecution successfully and non-examination of certain important witnesses to prove initial demand and actual demand goes to the root of the case placed by the prosecution. The accused was required to be acquitted or this is a case where the accused ought to have been acquitted saying that the evidence led by the prosecution is not beyond shadow of doubt.