Z.K.SAIYED, J. - (1.)THE present appeal, under Section 378(1)(3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 6.8.2004 passed by the learned Special (ACB) and Additional Sessions Judge, 6th Fast Track Court, Veraval, in Special (A.C.B.) Case No.24/1999 (2/1998), whereby the learned Judge has acquitted the accused from the charges leveled against them.
(2.)THE brief facts of the present case leading to filing of the present appeal are as under: -
2.1. The complainant Manjibhai Khimjibhai Bhesaniya is the resident of Dak Bungalow Plot, Visavadar. It is alleged in the complaint that 04.04.1997 was the day of salary. The complainant was absent on that day and, therefore, he got his salary from respondent No.1. On that day, original accused No.1 told the complainant that Rs.168/ - i.e. 15% of the amount of Rs.1,118/ - gave him as journey allowance. The accused No.1 further told the complainant that out of Rs.168/ -, Rs.110/ - was to be given to accused No.1 and remaining amount of Rs.55/ - was to be given to accused No.2 and, therefore, accused No.1 demanded illegal gratification from the complainant. It is alleged that the complainant was not ready to pay the said amount to the respondents and, therefore, he ignored the same. However, at that time, there was a dispute regarding the bill of bonus with Smt. B. M. Dhandhal, who was serving in Primary Heath Centre and, therefore, she was crying. Thereupon, accused No.1 told the complainant that he may go and they would settle their later on. After 10 -12 days, accused No.1 called the complainant on seeing alone at C.H.C., Sansa, and he demanded Rs.165/ - regarding T.A. Bill. Thereupon, the complainant told accused No.1 that he would pay on the date of payment of the salary. The accused No.1 told the complainant that on the day of salary, some disputes would be happened, so he may give the amount prior to the day of the salary at any time. In case he would not be available then he may give the same to one Kariyabhai (accused No.2), who is always up -down in the train and he gave me that amount after deducting his part. However, for verifying the same, Kariyabhai (accused No.2) met the complainant. Upon asking to the accused No.1 by the complainant, Kariyabhai (accused No.2) told him that he has to pay 5% of the T.A. Bill to him i.e. Rs.55/ - for sanctioning of the said bill. He further told him that he gave his amount or full amount also, he had no objection. He (accused No.2) had to give the amount to Sarvaiyabhai and if Sarvaiyabhai met before, he had to give the amount to him, he has no objection. They would manage their account. The accused No.2 told the complaint to pay Rs.165/ - on the day of salary. The complainant went to lodge the complaint at A.C.B. Office, Junagadh, but A.C.B. Officer was on leave, the complaint was lodged at A.C.B. Office, Rajkot, against the accused for the offence under Section 7(12)(13)(1)(d) of the Prevention of Corruption Act before the A.C.B Office, Rajkot.

2.2. Thereafter, the concerned officer, after completing the necessary procedure arranged the trap. The raid was carried out and the respondents -accused were caught red -handed. After completion of investigation, the charge -sheet is filed. Thereafter, the charge was framed against the respondents accused. The respondents accused pleaded not guilty to the charge and claimed to be tried.

2.3. To prove the case against the present accused, the prosecution has examined, in all three witnesses, and the prosecution also produced several documentary evidence on record.

2.5. At the end of trial, after recording the statements of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special (ACB) and Additional Sessions Judge, 6th Fast Track Court, Veraval, acquitted the respondent of all the charges leveled against them by judgment and order dated 06.08.2004.

(3.)HEARD Ms.H. B. Punani, learned Additional Public Prosecutor for the appellant State, Mr.Kishan Prajapati, learned advocate for Mr.Ashish M. Dagli, learned advocate for respondent No.1 and Mr.M. B. Parikh, learned advocate for respondent No.2.
Learned Additional Public Prosecutor for the State submitted that the learned Judge ought to have appreciated that the prosecution has proved beyond reasonable doubt the demand, acceptance and recovery of the bribe amount as per law. The bribe amount is recovered from the possession of the accused. The preliminary panchnama also supports the prosecution case. She also submitted that the prosecution has examined both the panchas as P.W.2 at Exhibit 28 and P.W.3 at Exhibit 58 and they have supported the case of the prosecution. She further read the evidence and contents of panchnama at Exhibit 30 and vehemently submitted that as per the evidence of panchas, the prosecution has proved the contents of the panchnama. She further submitted that first demand and second demand on the part of respondent No.1 is also proved and the defence could not establish probable defence, even by their statements recorded under Section 313 of the Criminal Procedure Code. She read the evidence of the complainant, P.W.1 and argued that looking to the evidence of the complainant, it is submitted by P.W.1 and P.W.3. She submitted that from the evidence of Investigating Officer, P.W.4 who is examined at Exhibit 59, it appears that the the evidence of the said witness is cogent and material and is fully supported the prosecution case and the learned Judge has wrongly considered that the prosecution has failed to prove the demand made by the respondents. It is also submitted by learned APP, that the learned Judge ought to have appreciated the evidence of the Investigating Officer. All the witnesses examined by the prosecution, supported the prosecution case. She also submitted that the learned Judge ought to have seen that the muddamal notes were recovered from the possession of the accused. She also submitted that looking to the overall evidence, it can be said that the prosecution has established the case against the accused and therefore, present appeal is required to be allowed by quashing and setting aside the impugned judgment and order of acquittal.