KANTIBHAI AMRATLAL THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Criminal Appeal is field under the provisions of Section 374 of the Code of the Criminal Procedure, 1973 challenging the legality and validity of the order of conviction and sentence passed by the learned Special Judge, Ahmedabad in Special Case No.17 of 1989, on 24th April, 1992 whereby the learned Judge was pleased to hold the appellant-accused guilty of the charge of offence punishable under Section 161 of the Indian Penal Code and for the offence punishable under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the 'Act'). The learned Judge was pleased to sentence the appellant-accused to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,000/-, in default thereof to undergo simple imprisonment for a period of three months for the offence punishable under Section 161 of the Indian Penal Code and to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,000/- in default thereof to undergo further simple imprisonment for a period of three months for the offence punishable under Sections 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947.

(2.) Mr.K.B.Anandjiwala, learned Counsel appearing for the appellant has taken me through the various grounds mentioned in memo of appeal challenging the judgment and order of conviction and sentence and also through the oral as well as documentary evidence led during the course of trial. Of course, the judgment is assailed on various grounds mentioned in the memo of appeal but Mr.Anandjiwala has concentrated his argument on the point that the finding of the learned trial Judge is not sustainable in the eye of law because the same is based on erroneous appreciation of evidence of prosecution witnesses examined during the course of trial. It is submitted that some crucial important evidence that could have been led by the prosecution, has not been led with reasons best known to the prosecuting agency and by assigning hazy and unconvincing reasons has found the accused the guilty of the charge. Mr.Anandjiwala has pointed out that one very important witness, complainant, Anwar Jiva Sandhi, has not been examined and therefore the prosecution was not even able to get the complaint i.e. F.I.R. exhibited during the course of trial and certain inadmissible part of the Panchnama drawn by the Trapping Officer, has been considered as legal evidence which otherwise could not have been read as legal and admissible evidence in the eye of law.

(3.) Ms.Pandit, learned A.P.P., for the respondent-State has supported the judgment and order under challenge. She has taken me through the reasons assigned by the learned trial Judge for recording the conviction. According to learned A.P.P., it is not necessary even to examine the complainant. In number of cases where the complainant is not traceable or has expired before recording of his evidence in the Court of law, the Court can record the finding in favour of the prosecution and hold the accused guilty on the strength of the evidence of the Panch Witnesses and Trapping Officer. The learned trial Judge has assigned reasons based on law referring the various decisions that the accused can be convicted on the evidence of Trapping Officer, if the Court, is able to hear the ring of truth in the version of the Investigating Officer / Trapping Officer. Here, the Panch Witness has supported the prosecution case and the muddamal currency notes have been recovered from one portfolio type of pocket, which was lying adjacent to the chair of the accused-appellant. There was no reason for the complainant to falsely implicate the appellant-accused in such a serious offence. It is not necessary that, there must be some specific conversation between the accused and the complainant prior to the acceptance of the bribe amount. The accused can demand the amount of illegal gratification or bribe amount even by gesture and in the present case it is in evidence that certain gestures were made by the accused-appellant and in response to that gesture the complainant had placed the muddamal currency notes in the portfolio lying near the chair of the complainant. It is satisfactorily proved that the complainant had put the amount to the place because the instructions / suggestion were given by the appellant-accused and therefore the absence of marks of anthracene powder on the clothes of the appellant-accused would not help the accused at all in a given set of circumstances and facts of the case.