KAMLESHKUMAR KRUSHNAKUMAR MISHRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant, accused of Special ACB Case No.7 of 1998, has challenged the conviction recorded by learned Special Judge, Bharuch, vide judgment and order dated 28.9.2001. By the impugned judgment, the appellant has been convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 (for short, "the Act") and sentenced to undergo rigorous imprisonment for three years and ordered to pay fine of Rs.5,000/ - and in default of payment of fine, further rigorous imprisonment for three months was imposed and for offence under Section 193 of the Indian Penal Code ("IPC" for short), he was ordered to undergo rigorous imprisonment for one year and ordered to pay fine of Rs.500/ - and, in default of payment of fine, further rigorous imprisonment of one month was imposed, while for offence under Section 196 of the Indian Penal Code, he was ordered to undergo rigorous imprisonment for one year and ordered to pay fine of Rs.500/ - and, in default of payment of fine, further rigorous imprisonment of one month was imposed.

(2.) IT is the case of the prosecution that the complainant has committed power theft on 21.12.1996 and therefore checking was to be carried out. Therefore, when the accused went for checking in the mill of the complainant, he asked, "when the checking is already done, why have to come? Thereupon, the accused abused him and threatened him to send him behind bars as the power theft is committed by breaking the seal of the meter. Thereafter, the accused demanded Rs.25,000/ - to finish the case. When the complainant has denied to give bribe amount, the accused prepared false panchnama and also prepared forged documents regarding power theft and thereby committed the offences as aforesaid. Accordingly, the prosecution was moved into motion by the complainant and on investigation being completed the investigating authority lodged the charge sheet for the offences under the provisions of Section 7 of the Act and Sections 193 and 196 of the IPC. When the accused was summoned by the Special Judge, he pleaded not guilty and claimed to be tried. Therefore, he was tried by the learned Special Judge and the prosecution has examined nine witnesses in support of its case. The prosecution also relied on as many as nineteen documents in support of its case. At the conclusion of the trial, the appellant came to be convicted by the learned trial Judge, which is challenged by the appellant by filing present appeal.

(3.) MR .Shethna, learned Senior Advocate for the appellant submitted that the learned trial Judge has convicted the appellant herein inspite of the fact that prime genesis of demand and acceptance was not proved. Mr.Shethna has also taken this Court through the evidence of the complainant and panch witnesses. He submitted that the trial Court has committed an error in holding that the accused demanded bribe from the complainant and thereby committed an offence under the Act. He submitted that in the present case demand and acceptance is not proved beyond reasonable doubt and the complainant has not supported his own version given in the complaint. He also submitted that the panchas have deposed in a mechanical manner and, therefore, by relying upon such witness the accused could not have been convicted by the learned trial Judge. He submitted that the prosecution has failed to prove demand and acceptance on the part of the accused, therefore, the learned trial Judge has committed an error in convicting the accused. He also submitted that the learned trial Judge has wrongly drawn presumption under Section 20 against the accused, though there is no sufficient evidence on record. 3.1 Mr.Shethna has vehemently submitted that the date of the incident is somewhere in December 1996, while the FIR before the Court is given at least after six months. No doubt, on a query being put about the next day of the incident, he replied that on the next day the complainant had gone to the police. According to Mr.Shethna, the incident is of December 1996, however, it is nowhere stated in the complaint that the complainant is indulging into illegal power theft and, therefore, the appellate committee has also accepted the say of the accused. According to him, when there were three persons as per the prosecution case, after six months, the complainant names only the accused. He submitted that there are major contradictions in the complaint. He further submitted that the nephew of the complainant does not testify as to what transpired between the complainant and the accused and whether any demand was made or not and whether there was any agreement or not. According to him, the story put forward by the prosecution is concocted. The nephew, who is also a witness, PW -2, nowhere states that he was present at the time of the incident. He has given statement with a view to see that the complaint is brought home with the finding of guilt. The fact that the accused had to call police protection goes to show that when Madanlal received the phone, how is it possible that the complainant was at his home. He further submitted that in paragraph 7 of the testimony it is stated that Mr.Mishra -the accused left the mill with the meter, however, this meter was never taken away. Be that as it may, there is total improbability as all of a sudden Prakashbhai and Bhanabhai remained present, however, they are not examined and only Arvind is examined. According to Mr.Shethna, the present complainant also had a chequered history. There was a wrong statement given and the story concocted by the complainant is not adhered to. The other witness who is his nephew states that he was asked to remain outside, then how does he say that he has heard his uncle being asked to pay money. The other officers who were demanding money according to them are not even named. In view of above, Mr.Shethna prayed that this appeal may be allowed and the impugned order may be reversed. Per contra, Ms.Bhatt states that the FIR immediately given was not acted upon and, therefore, in the Court the complaint had to be lodged which went for investigation and that is how charge sheet was laid. She further submitted that even in his statement under Section 313 of Criminal Procedure Code, the accused has admitted that the panchnamas are prepared at his behest and they are not like criminal investigation. She further submitted that this is a full proof case, wherein learned trial Judge has properly appreciated the evidence and, therefore, impugned judgment cannot be found fault with. The complaint under Section 156 (3) was sent for investigation as the police machinery did not work.