MAHESHCHANDRA SUNDARLAL VAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 and Section 27 of the Prevention of Corruption Act, 1988 against the judgment and order of conviction and sentence dated 18.01.2005 passed in Special Case (ACB) No. 2 of 2001 by learned Special Judge & Additional Sessions Judge, 5th Fast Track Court, Veraval, convicting the present appellant to undergo (i) rigorous imprisonment for three years & six months with a fine of Rs.5000/- for the offence punishable under Section 7 of the Prevention of Corruption Act and in default to pay fine, further undergo simple imprisonment for nine months (ii) rigorous imprisonment for three years & six months with a fine of Rs.5000/- for the offence punishable under Section 13(2) of the Prevention of Corruption Act and in default to pay fine, further undergo simple imprisonment for nine months.

(2.) As per the prosecution version, the present appellant-accused was serving as Mines Supervisor in the Mines and Minerals Department at Una, District Junagadh, whereas the complainant was the President of the society namely Mirapur Mazur Bandhkam Sahakari Mandali and used to obtain the contract for road & building works from the Public Works Department, State of Gujarat. The society had undertaken the work of constructing road and therefore, for such work, the society through the contractor asked for royalty certificate from the accused. For issuance of such certificate, the accused had demanded Rs.5000/- as illegal gratification which came to be scaled down to Rs.2500/-. Thereafter, on 13.04.1999, the accused accepted Rs.500/- and rest of the amount of Rs.2000/- was required to be paid on 16.04.1999. As the complainant was not ready to give such amount of illegal gratification, he approached the office of Anti Corruption Bureau at Rajkot and lodged the complaint. Thereafter, on 16.04.1999, at around 9:30AM, the complainant visited the office of the accused and asked for the certificate and at that time, he told the accused that he had brought the amount as was asked for and placed the same over the table of the accused. Thereafter, the raid was carried out and the said amount came to be recovered over the table of the accused. Thereby, the present appellant- accused has committed the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act.

(3.) Learned advocate Mr. B. Y. Mankad for the appellant has taken this Court through the record & proceedings and read out the evidence of all five witnesses who were examined before the learned Trial Court. Learned advocate has pointed out that the prosecution has miserably failed to establish the main ingredients as regards the pre-demand and acceptance of Rs.500/- as well as instant demand of Rs.2000/- and acceptance thereof. He has further argued that since the trap came to be laid in the office of the present appellant and thereafter, the entire search & seizure and other procedures came to be undertaken at the distant place at circuit house at Una, consequently therefore, the prosecution has miserably failed to establish even the recovery aspect also. He has further argued that as per the prosecution case, the initial demand and acceptance thereof came to be made in presence of three persons, however the prosecution has not examined these persons in order to establish such demand and acceptance thereof on part of the appellant. He has further argued that oral evidence of all the five witnesses as well as contemporaneous panchnama clearly reveal that there was no sign of anthracene powder over the person's hand and the cloths of the appellant, consequently therefore, the acceptance on part of the appellant is not being established. Further, he has argued that since there was no completion of the work, therefore there was no question of preparing a final bill and for that, no question had arisen to ask for certificate from the Department of Mines and Mineral for royalty and the entire case is based on false grounds. He argued that at alleged time on 104.1999, the complainant had never visited the office of the appellant and that he was busy with inspection of other mines and for that purpose, even the appellant had tendered documentary evidence on record and that has not been taken into consideration by the learned Trial Court. The learned Trial Court, according to his submission, has wrongly based its findings without appreciating the evidence in its proper perspective and wrongly recorded the conviction and sentence of the appellant and wrongly believed to be proved the crucial aspect of demand and acceptance thereof, which requires to be quashed and set aside. Further also, he has pointed out that the certificate at Exh.53 issued by the Executive Engineer, Salt Control Department clearly mentions that the Salt Control Department had never asked for any royalty certificate from the complainant/ Cooperative society, consequently, according to his submission, the entire case is concocted one and it has been wrongly framed by placing alleged demand of illegal gratification over the table of the appellant.