Z.K.SAIYED, J. - (1.) THE present appeal has been filed by the appellant State under Section 378(1) (3) of the Criminal Procedure Code, against the judgment and order dated 13.1.2005 rendered by the Special Judge and Additional Sessions Judge, Fast Track Court No.14, Bhavnagar, in Special ACB Case No.4 of 2002, whereby the respondent -accused was acquitted of the charge for offence punishable under Section 7, 13(1) (gh) and 13(2) of the Prevention of Corruption Act.
(2.) SHORT facts of the prosecution case are as under: 2.1 The complainant submitted an application in the office of the Deputy Town Planner, Bhavnagar, for converting the land admeasuring two acres in respect of Survey No.334 into nonagricultural land for the purpose of hotel business. It is the case of the prosecution, for that work, the accused person demanded Rs.5400/ - towards illegal gratification. Therefore, the complainant filed complaint against the accused before the ACB office, at Bhavnagar. Therefore, the panchas were called and trap was arranged and after following due procedure, the complainant along with panchas and members of raiding parties went at the place of offence. Accordingly, the accused person was caught red handed by accepting the illegal gratification of Rs.5400/ -. Thereafter, the investigation was made and charge -sheet was filed before the Court. The accused pleaded not guilty and claimed to be tried. 2.2 To prove the case against the present accused, the prosecution has examined, in all four witnesses i.e. (1) P.W.1 Damjibhai Lalabhai at Exhibit 8, (2) P.W. 2 Narhari Mahipatram Shukal at Exhibit 13, (3) P.W. 3 Govindbhai Jethalal Yadav at Exhibit 27 and (4) P.W. 4 Kantilal Panchabhai Chaudhary at Exhibit 29 and the prosecution also produced several documentary evidence on record. 2.3 From the defence side, there were three witnesses examined during the course of trial i.e. (1) D.W. 1 Arvind Balashankar Joshi at Exhibit 35 (2) D.W. 2 Gaurang Indukumar Oza at Exhibit 40 and (3) D.W. 3 Bharatsinh Nathusinh Gohil at Exhibit 43 and produced several documentary evidence. 2.4 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 13.1.2005.
(3.) I have heard learned advocates appearing on both sides. Learned APP Mrs. Punani, 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. The bribe amount is recovered from the possession of the accused. The preliminary panchnama also supports the prosecution case. She also submitted that the version of P.W. 1 Damjibhai Lalabhai examined at Exhibit 8, reveals that this witness i.e. the complainant wanted to construct the hotel in that land and therefore, he submitted application for converting the land from agricultural land to the non -agricultural land before the office of the accused. She further submitted that the accused after perusing the application and record, instructed the complainant to deposit Rs.4100/ - as a Govt. fees and in addition, Rs.5400/ - was required to be paid to him. Therefore, it clearly appears that the said amount of Rs.5400/ - was for the illegal gratification which was demanded from the complainant by the accused. She therefore, submitted that the accused made demand for illegal gratification and during the course of experiment of ultra violet lamp, the stains of anthracene powder were found on both the hands and fingers of the accused. She submitted that P.W. 2 Narhari Mahipat Shukla examined at Exhibit 13 supported the version of the complainant and in his presence the accused made demand of illegal gratification from the complainant. She also submitted that P.W.3 and 4 stated the same version and from the evidence of witnesses examined by the prosecution, it is established by the prosecution that the accused made demand and accepted the amount of bribe and recovery was made from the accused. She also submitted that even from the evidence of the defence witnesses, the offence as alleged against the accused is proved. She also submitted that the learned Judge ought to have seen that the muddamal notes were recovered from the accused. Even the documentary evidence produced on record prove the case against 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.;