- (1.)THIS appeal is directed against the judgment and order of conviction and sentence dated 22nd October, 1993 passed by the learned Special Judge. City Civil and sessions Court, Ahmedabad, in Special case no. 9 of 1991 whereby the appellant-accused Girishbhai Ishwarbhai Patel was sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 1000/- , in default, simple imprisonment for three months for the offence punishable under section 7 of the Prevention of Corruption act, 1988 ("the Act" for short ). He was also sentenced to undergo simple imprisonment for two years and fine of Rs. 1000/-, in default, simple imprisonment for three months for the offence under Section 13 (1) (d) (i) (ii) punishable under Section 13 (2) of the Act. Both the substantive sentences were ordered to run concurrently.
(2.)THE facts giving rise to the present appeal as emerging from the record of the case can be summarized as under: 2. 1. The complainant -Nandkishore natvarlal Shukla who is residing at 18, madhuvan Park Society, Ghodasar, ahmedabad, had lodged a complaint before the P. I. , Anti Corruption Bureau at ahmedabad on 27th June, 1990 alleging that he has purchased the said tenement from the contractor of the society five years back; that the said society has 49 other tenements and majority of the members have occupied the same; that since the members of the society have not got water connection from the Municipal Corporation, ahmedabad, they have applied individually to the Municipal Corporation for the same. Accordingly, the complainant also made an application for water connection on 16th january, 1990 to the Municipal Corporation and he received reply from the Corporation on 23rd January, 1990 informing him that after laying the pipelines as per the rules of municipal Corporation only the members of the society will get water connection. In pursuance of the said reply, the present complainant and other twenty-six members got the pipelines laid at their own cost, and then, the complainant visited the Assistant engineer G. I. Patel of Municipal corporation, Ahmedabad, frequently and requested for providing water connection, however. Mr. G. I. Patel told the complainant that Madhuvan Park Society has been constructed without No Objection certificate and N. A. permission and so as per the rules of the Municipal Corporation each member has to pay Rs. 600/- towards penalty and Rs. 60/- towards water connection charges i. e. Rs. 660/ -. Mr. G. I. Patel further added that apart from the said amount of Rs. 660/-, each member has also to pay Rs. 150/- extra and if the complainant is agreeable to the said condition, water connection will be provided by him. The complainant, therefore, informed all the members of the society about this fact whereupon, one of the members of the society, namely, Sureshchandra Somalal shah told the complainant that he had already paid penalty amount Rs. 600/-, but rs. 60/- towards water connection has not been paid by him and as such, Sureshbhai paid an amount of Rs. 60/- towards water connection as well as the aforesaid extra amount of Rs. 150/- totalling Rs. 210/- to the complainant. It is further alleged by the complainant that on 27th June, 1990 at about 9. 00 a. m. , the appellant-accused Mr. G. I. Patel came to Isanpur Municipal corporation Water Tank where complainant was present. At that time, the appellant-accused asked him as to what had happened in connection with the talk which they had with regard to water connection to which the complainant replied that one of the members i. e. Sureshbhai had already paid rs. 600/- towards penalty, and hence, sureshbhai gave the remaining amount of rs. 60/- towards water connection and extra amount of Rs. 150/- as discussed, but the other members have not paid any amount. Thereupon, the appellant-accused asked the complainant to meet him between 4. 00 p. m. to 6. 00 p. m. in the office with the said amount of Rs. 210/- given by Sureshbhai as also the amount of Rs. 660/- towards penalty plus water connection plus extra amount of rs. 150/- which the complainant has to pay so that he (the appellant-accused) could' take necessary steps for providing water connection to both of them. According to the complainant, as he was not willing to pay the extra amount of bribe money, he visited the ACB Office and lodged the complaint before the P. I. J. H. Solanki, ACB, ahmedabad who recorded his complaint at 13. 00 hrs. on 27th June, 1990. P. I. Solank'i then called for two Panchas through PSI, civil Supplies Department. The Panchas having shown their willingess to act as panchas, they were introduced to the complainant. P. I. Solanki also introduced himself to the Panchas. He then, read over and explained the contents of the complaint to the Panchas. The complainant also narrated the facts of the complaint to the panchas. The P. I. then asked the complainant to produce the bribe amount and the complainant gave an amount of rs. 1020/ -. Thereafter, these currency notes were separated into two lots of Rs. 720/- (legal charges) and Rs. 300/- (bribe amount ). The bribe amount of Rs. 300/- was then smeared with anthracene powder and after following the statutory procedures for laying of the trap, a successful trap came to be laid by the P. I. ACB, Ahmedabad between 4. 00 p. m. to 6. p. m. of 27th June, 1990. The' appellant-accused was thus caught red handed accepting the bribe amount. The PI, ACB, Ahmedabad then commenced investigation and on completion of investigation submitted the investigation papers to the A. C. B. Directorate who in turn forwarded the same to the competent authority for obtaining necessary sanction as the appellant-accused was a public servant. Sanction to prosecute was obtained on 20-2-1991 and charge-sheet came to be filed before the learned special Judge. The learned Special Judge framed charge (Exh. 1) ag. ajnst the appellant-accused -on 21-3-1991 for the offence punishable under Section 7 of the prevention of Corruption Act, 1988 and also under Section 13 (l) (d) (i) and (ii)punishable under Section 13 (2) of the Act: the charge was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried.
(3.)TO prove its case against the appellant-accused the prosecution has examined - (1)PW 2 Complainant Nandkishore Natvarlal shukla at at Exh. 10, (2) PW 1 Panch witness Arjun Nivruti Ghatke at Exh. 7, (3)PW 3 Chandulal Sorneshwar Sharma, the sanctioning authority at Exh. 16, and (4) PW 4 Jayeshkumar Hiralal Solanki, investigating Officer at Exh. 25. The prosecution has also produced documentary evidence such as complaint dated 27-6-1990 at Exh. 26, the trap Panchnama Exh. 8, the seizure memo Exh. 9, the file relating to madhuvan Park Society regarding water connection Exh. 11 and the chit Mark B showing the amounts. After recording the evidence of prosecution witnesses closing purshis was filed by the prosecution and the further statement of the appellant under section 313 of the Criminal Procedure Code came to be recorded wherein he submitted that the complainant is the General secretary with whom he (appellant-accused)had heated exchange of words and in order to take revenge the complainant had falsely roped him in this case. He also submitted that the sanction granted by PW 3 chandulal Someshwar Sharma to prosecute him is not legal and valid as he has no power to appoint or remove him from service. The appellant-accused has given written submissions vide Exh. 28. Certain copies of certain resolutions passed by ahmedabad Municipal Corporation produced by I he learned Advocate for the accused during arguments at the trial is at exh. 29.