KISHORE DADICH Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal against the judgment of the learned Special Judge, Addl. Special Court, CBI Cases, Jodhpur dt. 22.12.1998, whereby he convicted the accused appellant Kishore Dadich under section 7 of the Prevention of Corruption Act, 1988, hereinafter referred-to as "the Act" and sentenced him to six months' S.I. and to pay a fine of Rs. 5,000.00 and in default, to further undergo one month's S.I. However, he was acquitted under section 13(1)(d) r/w section 13(2) of the Act.

(2.) Facts leading to this appeal are that on 27.3.1995, Khangar Mal Suthar lodged a report before the Superintendent of Police, CBI, Jodhpur that an amount of Rs. 300.00 was being demanded by the accused appellant Kishore Dadich, Junior Telecom Officer, Jalore, for removing the defect of his telephone. Upon this complaint, a trap was arranged by Shri M.D. Gaur, Dy. S.P. on 28.3.95. Three currency notes of Rs. 100.00 each were duly smeared with phenolphthalein powder and were given to the complainant. After taking motbir R.R. Agrawal, necessary instructions were given to the complainant and the raiding party. On getting the signal, the complainant and witness R.R. Agrawal entered into the house, where the wife of accused was standing in the drawing room but accused Kishore Dadich got inside the latrine after receipt of Rs. 300.00. On knocking the door of the latrine, accused came out and was challenged by CBI team. On being asked, he denied to have accepted any bribe from the complainant. Thereafter, a clean glass of water was arranged and a solution of sodium carbonate was prepared and handwash of right hand fingers of accused Dadich was obtained. On dipping the fingers in the solution of sodium carbonate, it converted into pink colour. Similarly, the handwash of left hand fingers of accused was also obtained and collected in two bottles. Both the bottles were sealed. However, the amount was not recovered on search. Thereupon, after taking decision to have a search of the gutter, the municipal staff was called, from where five torn pieces of currency notes of Rs. 100.00 were recovered and the number of those currency notes were tallying with those mentioned in the memorandum. Sixth piece of currency note was not found. Upon this, the investigation was done and challan was filed against the accused under section 7 and 13 of the Act. The accused was charged accordingly, to which he pleaded not guilty. The prosecution examined 15 witnesses. The statement of the accused under section 313 Cr.PC was recorded. In defence, the statement of R.R. Agrawal and statement of complainant recorded under section 161 Cr.PC were produced as Ex.D.1 and Ex.D.2. After hearing the arguments, the learned trial Judge convicted the accused as above.

(3.) While assailing the judgment of the trial Court, learned counsel for the appellant has argued that when the learned trial Judge disbelieved the prosecution case with regard to demand of dowry, then conviction of accused appellant on the basis of presumption is against the law. He has further submitted that recovery has been made of five torn pieces of currency notes but they have been recovered from the common gutter of 4-5 houses. Left hand of the accused appellant was also not found smeared with any colour in the watter bottle. He has further submitted that the F.I.R. is post dated and there was no valid sanction for prosecution of the accused under section 7 of the Act but it was only for Sec.13(1)(d) read with 13(2) of the Act in which he has been acquitted.