K. J. THAKER, J. - (1.)BY way of this appeal, the appellant, accused has challenged judgment and order dated 30.8.2002 passed by learned Special Judge, Jamnagar in Special Case No.5 of 1989, whereby he is convicted for the offence punishable under Section 161 of the Indian Penal Code (herein referred to as "IPC" for short) and Section 5 (2) of the Prevention of Corruption Act (herein referred to as "the Act" for short). For offence under Section 161 of IPC, the accused was ordered to undergo imprisonment for one year and pay fine of Rs.500/ - and, in default of payment of fine, he was ordered to undergo simple imprisonment for two months, while for offence under Section 5 (2) of the Act he was sentenced to undergo imprisonment for one year and ordered to pay fine of Rs.500/ - and in default of payment of fine, simple imprisonment of two months was imposed. Both the sentences were ordered to run concurrently.
(2.)IT is the case of the prosecution that on 20.8.1988 one Jodhabha Sidubha Manek had given complaint that before four months he was consuming alcohol and prior to one year he was even making wine. However, since last four months he has stopped taking wine and he has stopped making wine since last eight months. It is also the case of the prosecution that before ten months when he was proceeding towards village with a can of wine, he was chased by police constable, Umedsinh Rathod, however, he was not caught. After two or three days when that constable met him, he asked, "Why you ran away on that day? You will have to pay Rs.50/ - or I will file a case against you". On 16.8.1988 also, said constable met him and said that since you are doing the business of wine, you will have to pay Rs.300/ - every month or I will file a case against you. Therefore, the complainant replied that he has stopped the business of wine. On 19.8.1988 also said constable demanded the amount of Rs.50/ -. Since the complainant was not having any money, he told him that he will pay it to him on the next day. Since the complainant was not willing to pay the amount of bribe he lodged a complaint before ACB Office. Thereafter, the police officer laid the trap and the trap remained successful. After completion of investigation, charge sheet under Section 161 of IPC and Section 5 (2) of the Act before learned Special Judge. 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 six witnesses in support of its case. The prosecution also relied on 15 documents in support of its case. At the conclusion of the trial, the appellant came to be convicted by the learned trial Judge. The appellant has challenged his conviction by filing present appeal.
(3.)MR .Dholakia, learned 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 were not proved. He has 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 the learned trial Judge failed to appreciate that the first informant has turned hostile and hence the prosecution could not prove its case. He submitted that Shri Mavani has conducted the raid and he was also the investigating officer and he has filed charge sheet against the accused, therefore, he was interested in seeing that prosecution succeeds. Such investigation cannot be said to be illegal and, therefore, relying on such investigation the accused could not have been convicted. He also submitted that a false case is filed against the accused as he was involved in apprehending Dr.Prakash Patel, who is of the same caste as that of the investigating officer. He also submitted that there are contradictions in the evidence of the witnesses. He further submitted that the trial Judge failed to appreciate that the prosecution has failed to prove demand on the part of the appellant herein. He also submitted that the sanction granted in the present case is not legal sanction. He also submitted that learned trial Judge has also failed to consider the judgments cited on behalf of the defence in its true perspective. He also submitted that the panchas have deposed in a mechanical manner and, therefore, by relying upon such witnesses 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. In view of above, Mr.Dholakia prayed that this appeal may be allowed and the impugned order may be reversed.
Per contra, Ms.Maithili Mehta, learned APP supported the impugned judgment and submitted that presumption under Section 20 of the Act has been rightly drawn against the accused. She has submitted that evidence of the prosecution witnesses corroborates with each other and it is sufficient to prove that the accused had demanded illegal gratification. She submitted that evidence of PW -1, 2 and 3 corroborates with each other and the prosecution has successfully proved the charge against the accused. She submitted that the panch has shown that there was recovery from accused. She also submitted that recovery of the amount is proved in the present case, therefore, learned trial Judge has rightly convicted the accused. She also submitted that the prosecution has proved its case beyond reasonable doubt, therefore, this appeal may be dismissed and the impugned judgment may be confirmed.