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2011 DIGILAW 466 (GUJ)

Jayantilal Ambalal Dalwadi v. State of Gujarat

2011-06-17

Z.K.SAIYED

body2011
JUDGMENT : Z.K. Saiyed, J. This is an appeal arising from the judgment and order of conviction passed by the learned Special Judge, Court No.13, Ahmedabad in Special Case No.10 of 1991 dated 17.5.1993, whereby the appellant-accused was ordered to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, i/d, to undergo rigorous imprisonment for further 3 months for the offence punishable under Section 7 of the Prevention of Corruption Act. The appellant was also ordered to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, i/d, to suffer rigorous imprisonment for further three months for the offence punishable under Sections 13(2) of the Prevention of Corruption Act. Learned Judge has ordered that all the sentences shall run concurrently. 2. Facts in brief of the prosecution case are that on 28.3.1990, the complainant was on duty in the Company. A bottle was broken and the complainant received injury on his left leg. He took primary treatment at Bapunagar Hospital. He went to Dispensary No.D-32 of ESIC and he was asked to go back to the Doctor of Bapunagar General Hospital. At the Dispensary No.D-32 of the ESIC, Dr. Makwana asked him to come on 2.4.1990. On that day, the complainant went there. Dr. Makwana told him that until he brought the writing from the Bapunagar Hospital, according to law his case could not be taken on hand. He was asked to see the accused, who was serving in the local office of Bapunagar Hospital. On 3.4.1990, he inquired about the Doctor, another Doctor asked him to bring the case papers or case number. On 4.4.1990, as per the instructions of Dr. Makwana, he went at the local office at about 11:30 a.m., and saw the accused, who demanded Rs. 100/- and also told him that out of that Doctor Makwana also would have to be given the amount. He was asked to come with Rs. 100/- on the same day at 6:00 p.m. at the Dispensary No.D-32. According to the complainant, since he did not desire to give the bribe amount of Rs. 100/- either to the accused or Dr. Makwana and since the complainant was convinced that his work could not be done unless the bribe amount was paid, he went to the office of ACB for lodging the complaint against the accused. According to the complainant, since he did not desire to give the bribe amount of Rs. 100/- either to the accused or Dr. Makwana and since the complainant was convinced that his work could not be done unless the bribe amount was paid, he went to the office of ACB for lodging the complaint against the accused. Therefore, ACB Office called the two panchas and in their presence, two currency notes each of Rs. 50/- were stained with anthracene powder and explained the complainant and panchas. The numbers of the currency notes recorded in the preliminary part of the panchnama. On 4.4.1990, the accused demanded a sum of Rs. 100/- as illegal gratification from the complainant in the compound of the hospital and the accused accepted the said amount of Rs. 100/- in spite of the fact that the accused knew that it was no his legal or lawful remuneration. It is further case of the prosecution that two currency notes each of Rs. 50/- were recovered from the possession of the accused by the ACB members. The stains of anthracene powder were seen on the hands of the accused. 3. After usual investigation, the Investigating Agency submitted the charge-sheet. In order to bring home the charge, prosecution had examined the witnesses and got exhibited a large number of documents. The witnesses examined by the prosecution viz. PW-1, Sendhabhai Madhavlal Raval, complainant at Exhibit 12, whereas PW-2, Ramesh Ramrao Kumbhare, Sanctioning Authority, Exhibit 14, PW-3, Jitendra Sitaram Barot, Panch, Exhibit 16, P.W.4 - Virsibhai Kalubhai Amliyar, Police Inspector, ACB, Exhibit 18, P.W. 5 - Kishorchandra Mohanlal Desai, Police Inspector, CBI (I.O.) Exhibit 21. Thereafter, various the documentary evidence were produced to prove the case against the accused. On closure of prosecution evidence, the accused was questioned under Section - 313 of the Code of Criminal Procedure and he denied the charges levelled against him. 4. The trial court on appreciation of the evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. While doing so it considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as stated above by the trial court 5. Heard learned senior advocate Mr. K.J. Shethna for the appellant, learned advocate Mr. Y.N. Ravani for the CBI and learned APP Mr. H.L. Jani for the State. 6. While doing so it considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as stated above by the trial court 5. Heard learned senior advocate Mr. K.J. Shethna for the appellant, learned advocate Mr. Y.N. Ravani for the CBI and learned APP Mr. H.L. Jani for the State. 6. Originally, in the Appeal, the appellant - accused has not joined CBI as party. However, vide order dated 23.12.2010, this Court has passed to join CBI an order as party respondent No.2. 7. Learned senior advocate Mr. K.J. Shethna appearing on behalf of the appellant submitted that from the contents of FIR Exhibit 13, it appears that two names of accused are shown i.e. present appellant and second accused is Dr. Makwana, Medical Officer of D-32 dispensary. He further submitted that from the oral evidence of P.W.5 Kishorchandra Mohanlal Desai at Exhibit 21, it appears that against the said Medical Officer Mr. Makwana, nothing was found during the course of investigation, so he is not cited as an accused in the charge sheet, but, it is not proper, as per the provisions of law. He also submitted that from the contents of complaint, when the proper allegation is made against any person, then it is the duty of the prosecution to convince this Court that how and in which circumstances, the said accused was deleted from the said offence, by the Investigating Officer. He also submitted that on his request, vide order dated 23.12.2010, this Court has called the case diary of CR No.7 of 1990, which was registered on 4.4.1990 before the ACB Police Inspector, Mr. V.K. Amaliyar. He submitted that from the contents of the case diary, this Court can easily find out something that no case is made out against the present appellant, yet he has been wrongly booked by the Investigating Officer of CBI just to protect the Medical Officer Mr. Makwana. 8. Learned senior advocate Mr. Shethna submitted that the judgment and order of the trial Court is bad in law and even charge and examination of the accused are not in conformity with the provisions of the Code. He further submitted that the ingredients of the Section 7 of the Act cannot be said to be attracted. Makwana. 8. Learned senior advocate Mr. Shethna submitted that the judgment and order of the trial Court is bad in law and even charge and examination of the accused are not in conformity with the provisions of the Code. He further submitted that the ingredients of the Section 7 of the Act cannot be said to be attracted. He further submitted that the learned trial Judge while passing the order of conviction and sentence, has not specifically taken into consideration the provisions of Section 13 (1) of the Prevention of Corruption Act. It is the case that in no uncertain terms the accused gave the complainant to understand that out of the amount of Rs. 100/-, some amount would have to be given to Dr. Makwana. Therefore, in absence of specific charge that Dr. Makwana was one of the persons who was supposed to be a recipient of some amount and in absence of clear cut finding about that despite the evidence given by the complainant to that effect, prejudice is caused to the accused and, therefore, he submitted that the conviction is vitiated. He further submitted that neither Dr. Makwana, was examined as a witness nor arraigned as an accused as it is case that it was Dr. Makwana, who was said to have sent the complainant from pillar to post. Learned senior advocate Mr. Shethna further submitted that the evidence about success of the trap in para 7 of the evidence of the complainant and other evidence do not inspire any confidence. He further submitted that if ultimately the investigation was handed over by the ACB to the CBI, then why the complainant was not directed by the ACB to the CBI at the very initial stage and therefore, investigation is very doubtful. 9. Mr. Shethna, learned senior counsel has read the charge at Exhibit 5 and submitted that the allegations levelled in the charge have not been proved against the accused. He further read the oral evidence of P.W.1 Sendhalal Madhavlal and submitted that the present appellant was wrongly booked in the ACB case by the complainant, as from the evidence of the complainant, the demand made by the appellant, is nowhere reflected. He further read the oral evidence of P.W.1 Sendhalal Madhavlal and submitted that the present appellant was wrongly booked in the ACB case by the complainant, as from the evidence of the complainant, the demand made by the appellant, is nowhere reflected. He also read the oral evidence P.W.2 - Rameshbhai Ramrav Kumbhare at Exhibit 14 and read the contents of sanction order at Exhibit 15 and submitted that sanction was given without considering the papers and without application of mind. He also read the oral evidence of P.W.3 - Jitendra Sitaram Barot at Exhibit 16 and submitted that from the evidence of this witness, it appears that the demand on the part of the accused is not proved and, therefore, the same is not corroborated evidence with other evidence. He also read cross examination of this witness and submitted that the investigations of the investigating Officer and trapping officer, both are biased and they have not carried out the trap properly and the trapping officer did not recover the shirt of the present appellant. He drew the attention of oral evidence of P.W.4 - Virsibhai Kalubhai Amliyar at Exhibit 8 and submitted that the Medical Officer Mr. Makwana, whose name was cited in the FIR, even though this witness has tried to protect the Medical Officer. He further stated that his testimony is required to be considered with great caution. He has read further evidence of the witness and also the evidence regarding sealing is concerned, it creates great doubt and when sealing and seizing is not proved then the case of the prosecution can be resulted in a negative manner. He also read oral evidence of P.W.4, Mr. Amliyar and submitted that when the trapping officer was present then it was possible that he could have seen everything, yet he stated that he has not seen the incident as to when the trapping amount was passed by the complainant to the present appellant. He has read the contents of FIR and submitted that from the contents of FIR, it appears that the main talk was between Mr. Makwana, Medical Officer and complainant, so it can be said that the appellant was arraigned in the case at the instance of the complainant and, therefore, it cannot be said that the prosecution has proved its case against the appellant beyond reasonable doubt. Makwana, Medical Officer and complainant, so it can be said that the appellant was arraigned in the case at the instance of the complainant and, therefore, it cannot be said that the prosecution has proved its case against the appellant beyond reasonable doubt. He further submitted that the name of the Medical Officer Mr. Makwana is not shown in the charge-sheet and the investigating officer might have obtained information from the Prosecutor. So, when the principal offender is not joined as an accused in the chargesheet, the judgment and order of conviction and sentence against the present appellant can be said to be bad in law and the prosecution has failed to prove its case beyond reasonable doubt. He also submitted that looking to the evidence of panch, he was required to be declared hostile yet the prosecution has not declared him as hostile. He read the contents of panchnama and argued that the evidence of panch witness is not as per the contents of the panchnama and there are certain contradictions made in it, which are also proved on the record. He also read the facts of the case and submitted that the present complainant was recalled by Medical Officer without any cause and due to that harassment made by Dr. Makwana, to the complainant, that demand was taken place with the complainant and Medical Officer, Mr. Makwana and same was not in the knowledge of the present appellant. He also submitted that the facts of the case diary are required to be considered and perused by this Court at this stage and sufficient reason is not given by the prosecution. When the prosecution has failed to prove the case, as the investigation is biased, then the benefits of doubt is required to be given to the present appellant. He also contended that the demand and acceptance as also recovery cannot be said to have been proved beyond reasonable doubt. He also submitted that when the demand is not proved then the question cannot arise for conviction and sentence, and therefore, the judgment and order of conviction and sentence is required to be quashed and set aside by allowing this appeal. 10. Learned advocate Mr. He also submitted that when the demand is not proved then the question cannot arise for conviction and sentence, and therefore, the judgment and order of conviction and sentence is required to be quashed and set aside by allowing this appeal. 10. Learned advocate Mr. Y.N. Ravani for the CBI read the charge and submitted that at the event of framing of the charge, present appellant had never opposed for that charge and he has not challenged before this Court also. He has fairly admitted that the name of the Medical Officer, Mr. Makwana is not shown as the accused in this case. He has explained the said issue from the oral evidence of the Investigating Officer of CBI, Mr. Desai. From the evidence of said Mr. Desai, P.W.5 at Exhibit 21, it appears that there is not a single evidence against that Medical Officer Mr. Makwana. He also submitted that even from the contents of the panchnama as well as oral evidence of the witnesses, it is proved beyond reasonable doubt that the Medical Officer had never made any demand and even no evidence is produced on record to show that Mr. Makwana, Medical Officer had at any time agreed to accept the said trap amount. Mr. Ravani, learned advocate read the oral evidence of P.W.1 at Exhibit 12 and submitted that from the oral evidence of this witness, the prosecution has proved that present witness visited the place of Dr. Makwana, for his treatment and Mr. Makwana has simply directed the complainant to go to the local office of ESIC at Bapunagar, so he met the present appellant Mr. Dalwadi. From the evidence of this witness, it appears that present appellant had made demand of Rs. 100/- and appellant told the complainant that other amount is required to be given to Dr. Makwana. Mr. Ravani, learned advocate read the contents of Exhibit 13, complaint, and submitted that from the contents of this witness, it transpires that the demand on the part of appellant was made and by corroborating evidence with the complaint as well as panchnama, the demand and in turn acceptance of bribe money on the part of the appellant is proved. Mr. Ravani, learned advocate read the contents of Exhibit 13, complaint, and submitted that from the contents of this witness, it transpires that the demand on the part of appellant was made and by corroborating evidence with the complaint as well as panchnama, the demand and in turn acceptance of bribe money on the part of the appellant is proved. He also read further evidence of this witness - complainant and submitted that the complainant visited at the place of appellant and at about 6 O'clock, the present appellant came on scooter and he parked scooter at that place and came to the present complainant as there were so many persons in the hospitals, he called the complainant outside the hospital and thereafter, they proceeded to the compound of the office. At that time, the present appellant made demand of Rs. 100/- from the complainant and also told the complainant that as per the talk, if he would give Rs. 100/-, he would bring the paper from Dr. Makwana and in connection of that demand made by the present appellant, the trap amount of Rs. 100/-, each denomination of Rs. 50/-, was given to the present appellant accused. The amount was counted by the appellant and put into his pocket then prearranged signal was given and search was carried out and the trap amount was recovered from the pocket of the present appellant. Mr. Ravani, learned advocate further submitted that even from the oral evidence of this witness, presence of anthracene powder is also proved beyond reasonable doubt and acceptance and recovery aspects are proved. Mr. Ravani, learned advocate read the oral evidence of P.W.2 sanctioning authority at Exhibit 14 and submitted that from cross-examination of this witness, the appellant had never tried to establish that the presence of anthracene powder is also proved beyond reasonable doubt and acceptance and recovery are also proved. Mr. Ravani, learned advocate read oral evidence of P.W.2, sanctioning authority at Exhibit 14 and submitted that from the cross-examination of this witness, the appellant has never tried to establish that this witness has not applied his mind for sanction purpose. He also submitted that even the appellant has never tried to establish said issue that the said sanction at Exhibit 15 was given by this witness. He also submitted that even the appellant has never tried to establish said issue that the said sanction at Exhibit 15 was given by this witness. He also submitted that when the said issue has not been challenged by the appellant - accused, then no question can arise for legality and validity of sanction. Mr. Ravani, learned advocate read oral evidence of P.W.3 Jitendra S. Barot at Exhibit 16, and submitted that he is an independent witness and he is public servant and his evidence cannot be discarded. He read further evidence of this witness and submitted that the appellant came to the place of his office on scooter and he parked scooter and directly came to the complainant P.W.1 and thereafter, the talk regarding demand was taken place between the present appellant and complainant. He also submitted that present appellant knew the P.W.1 - complainant and due to that reason, the present appellant made demand in presence of panch. He read cross-examination of this witness and submitted that defence has failed to prove and establish the case in his favour. He read further evidence of P.W.3 and submitted that from the oral evidence of this witness the acceptance on the part of the appellant, is proved beyond reasonable doubt and the amount was recovered from the possession of the appellant. He further submitted that it was the duty of the appellant to explain as to how the marks of anthracene powder was found on the fingers of the accused. Mr. Ravani, learned advocate read Section 20 of the Prevention of Corruption Act. Even the appellant has not made any defence about the marks of anthracene powder on the hand of the appellant in a statement made under Section 313 of the Code of Criminal Procedure. Mr. Ravani, learned advocate also submitted that recovery of amount is proved beyond reasonable doubt, through this independent witness. He also read oral evidence of P.W.4 - Virsinh K. Amaliyar at Exhibit 18 and submitted that this witness was present at the place of trap and the antracene powder on the currency notes were found. He also read the contents of panchnama. Mr. Ravani, learned advocate further submitted that this witness being investigating officer, had carried out fair investigation. He also read oral evidence of P.W.5 Kishorchandra M. Desai at Exhibit 21 and submitted that in connection of non-joining Mr. He also read the contents of panchnama. Mr. Ravani, learned advocate further submitted that this witness being investigating officer, had carried out fair investigation. He also read oral evidence of P.W.5 Kishorchandra M. Desai at Exhibit 21 and submitted that in connection of non-joining Mr. Makwana as accused, it cannot be said that the investigation made by the Officer is biased. The investigating officer has not committed any mistake or illegality or any kind of irregularity. From the evidence of this witness, it appears that there was nothing come out against Dr. Makwana and there was no direct evidence against Mr. Makwana and the complainant has not stated in the complaint that Mr. Makwana had made demand from him. He further submitted that without any evidence against Dr. Makwana, it cannot be said that the investigation is not proper and fair. Mr. Ravani, learned advocate further submitted that learned Special Judge after considering the documentary and oral evidence on record, held the appellant guilty for the offence punishable under Sections 7 and 13 of the Act and, therefore, no question arise about any illegality, irregularity on the part of the investigating officer. He lastly submitted that the judgment and order of learned Special Judge is required to be confirmed by dismissing this Appeal. 11. Learned APP Mr. H.L. Jani for the State, vehemently opposed the submissions made by the learned counsel Mr. Shethna and submitted that from the evidence of witnesses and documentary evidence, it appears that the demand was made by the appellant from the complainant in presence of panch witness and recovery of bribe amount from the accused is very well proved and anthracene powder was found on the hand of the accused, so the question of demand and acceptance is proved beyond reasonable doubt. He further submitted that the learned Special Judge has imposed the conviction and sentence after appreciating the evidence on record and, therefore, the order and judgment is just and proper. 12. Heard the parties and perused the record. It appears from the judgment that learned Sessions Judge has specifically made attempt to frame the charge in connection of the demand and acceptance. I have perused the complaint and from the contents of the complaint, it appears that the name of the Medical Officer Mr. 12. Heard the parties and perused the record. It appears from the judgment that learned Sessions Judge has specifically made attempt to frame the charge in connection of the demand and acceptance. I have perused the complaint and from the contents of the complaint, it appears that the name of the Medical Officer Mr. Makwana is seen as a person in whose office, the present complainant had visited for his own work and as per the contents of complaint and oral evidence of P.W.1, it is established beyond reasonable doubt that the complainant was told by Mr. Makwana that the complainant has to go to the local office of ESIC and from that place, he can easily obtain papers. From the perusal of oral evidence of P.W.1, it appears that he visited place of present appellant and in that connection, the demand was proved by the present appellant. The complainant filed the complaint before P.W.4 - Mr. Amliyar. So the fact of the case that when the demand was made by the present appellant, the complaint was filed and then trap was carried out and preliminary panchnama was drawn. I have perused further evidence of P.W.1 complainant. It is true that from the oral evidence of P.W.1, the prosecution has proved the demand and acceptance of the trap amount and the recovery of the amount was made from the possession of the present appellant was very well proved. It also appears from the evidence that on 3.4.1990, the complainant went to the D/32 dispensary and met Dr. Makwana and said Dr. Makwana told the complainant to meet Mr. Dalwadi, present appellant. On 4.4.1990, the complainant met present appellant at local office and at that time, present appellant told the complainant that if you (complainant) give Rs. 100/- to the appellant, then his work would be done. Even the accused told the complainant to come with Rs. 100/- on 4.4.1990. Thereafter, the complainant also stated in his evidence that the complainant and one panch witness went to the hospital as per the plan of trap made by the ACB, and at that time, present appellant- accused was not available in the office. Even the accused told the complainant to come with Rs. 100/- on 4.4.1990. Thereafter, the complainant also stated in his evidence that the complainant and one panch witness went to the hospital as per the plan of trap made by the ACB, and at that time, present appellant- accused was not available in the office. After sometime, the accused came on his scooter at his office and he parked his scooter and thereafter, immediately, he rushed to the complainant and told the complainant that there were so many persons in the hospital, and then to come outside and they took seat on Otla. After some conversion between them, they proceeded to the compound of the office and at that time, one person named as Jitendrabhai was present and the accused told the complainant about that person. Thereafter, the accused told the complainant that as per conversion, the accused demanded Rs. 100/- towards illegal gratification and thereafter, he assured that he would bring the papers from Dr. Makwana. Thereafter, the complainant gave Rs. 100/- as bribe money to the accused with right hand and the accused accepted and counted the same and put the same in his left pocket of the shirt. He further stated in this evidence that during the course of ultra violet lamp, the marks of the anthracene powder were found on the hand of the complainant and on both the hands of the accused and even on the shirt of the accused, anthracene powder was found. I have also perused the oral evidence of P.W. 2 - Ramesh Ramrav Kumbhare at Exhibit 14, and as per his evidence, the appellant demanded Rs. 100/- as illegal gratification from the complainant. This witness also verified all the documents produced before him and thereafter, sanction was given to prosecute the case against the accused. The sanction letter is also produced on record. I have also perused the oral evidence of P.W.3 - Jitendra Sitaram Barot at Exhibit 16, working as English Typist in Collector Office at Ahmedabad. As per his evidence, he was present with the complainant at the office of the accused and he stated that the accused came at the office on his scooter and after parking the scooter, he immediately rushed to the complainant and told that there were so many persons and, therefore, he insisted the complainant to come outside of the office. As per his evidence, he was present with the complainant at the office of the accused and he stated that the accused came at the office on his scooter and after parking the scooter, he immediately rushed to the complainant and told that there were so many persons and, therefore, he insisted the complainant to come outside of the office. Thereafter, they took the seat on the Otla and after that they proceeded towards compound of the office and the accused inquired about this witness from the complainant and the complainant told the accused that this witness is a cousin brother of the complainant. Thereafter, the accused told the complainant that if the complainant would give him Rs. 100/-, then he will bring the papers from Dr. Makwana. The accused accepted the amount of Rs. 100/- as bribe in presence of this witness and put the same in pocket of his shirt after counting Rs. 100/-, each denomination of Rs. 50/-. This witness further submitted that during the course of ultra violet lamp, the stains of anthracene powder were found on both the hands of the accused and even on the pocket of the shirt put on by the accused, the same were found. I have also perused cross-examination of this witness. I have also perused the oral evidence of P.W.4 Virsinh K. Amliyar at Exhibit 18, who was P.I. of ACB, and he stated in his evidence on the same line narrated by P.W.3 in his evidence and in his evidence, it is further stated by him that the marks of anthracene powder were found on both the hands as well as on the shirt of the accused. I have also perused cross-examination of this witness. Further, I have also perused the oral evidence of P.W.5 - Kishorchandra Mohanlal Desai, examined at Exhibit 21, wherein he has stated that he was P.I. of CBI and the accused demanded money towards illegal gratification from the complainant and there was no evidence with regard to demand and acceptance of the bribe money against Dr. Makwana. I have also perused the cross-examination of this witness. I have perused the complaint at Exhibit 13 and panchnama at Exhibit 17. I have also perused further statement of accused, recorded under Section 313 of the Code of Criminal Procedure, and there was no proper explanation made by the accused for the alleged allegations. 13. Makwana. I have also perused the cross-examination of this witness. I have perused the complaint at Exhibit 13 and panchnama at Exhibit 17. I have also perused further statement of accused, recorded under Section 313 of the Code of Criminal Procedure, and there was no proper explanation made by the accused for the alleged allegations. 13. Learned senior advocate Mr. Shetha for the appellant submitted that the name of the Medical Officer Mr. Makwana is shown in the complaint and yet he has not been joined as accused in the case. He submitted that the trial Court ought to have considered the defence version made during the course of trial by the accused. Therefore, this Court has called case diary and verified the same. It is true that Mr. Makwana is not joined as accused in the matter, but from the contents of the complaint as well as panchnama and evidence of Investigating Officer, trapping officer as also from the cross-examination of P.W.1 and P.W.2, this Court has found that there is not a single piece of evidence, which links Dr. Makwana with the alleged offence except the name in the complaint. Therefore, nonjoining of Mr. Makwana as accused cannot be said that prosecution case can be resulted as fatal. I have perused Sections 7 and 13 of the Prevention of Corruption Act as well as Section 20 of the Act. 14. Mr. Shethna, learned senior advocate has relied upon the decision in the case of Habeeb Mohammad v. State of Hyderabad reported in AIR 1954 SC 41 and submitted that in the cited case, on 24.3.1950, the appellant made an application to the Special Judge alleging inter alia that though a number of police officers and other officials were present at the scene of occurrence, but, they were neither arrested nor any action was taken against any of them. He relied on para 11 of the said judgment. He further submitted that in the case on hand, the Medical Officer Mr. Makwana is not joined as accused nor as witness because he is a star witness. Therefore, as per his submission, the prosecution has failed to prove the case against the appellant without joining or examining Dr. Makwana. He relied on para 11 of the said judgment. He further submitted that in the case on hand, the Medical Officer Mr. Makwana is not joined as accused nor as witness because he is a star witness. Therefore, as per his submission, the prosecution has failed to prove the case against the appellant without joining or examining Dr. Makwana. Here in this case, from the contents of the case diary, it is reflected that the said Medical Officer has not come into the picture at all and so far as his role is concerned, he has only called for papers from the complainant, but he never made any kind of demand of bribe nor he indicated any kind of talk regarding demand. Even from the perusal of evidence of the witnesses, it clearly appears that there was no indication about the allegations against the said Mr. Makwana. The name of Dr. Makwana in the FIR is not sufficient to say that he was involved in the offence, which he had not committed at all. Even it has not come out from the evidence on record that the accused has to give such bribe amount to the said Medical Officer. 15. Learned senior advocate Mr. Shethna further relied upon the decision in the case of Bhupesh Deb Gupta (dead) by Lrs. v. State of Tripura reported in AIR 1978 Supreme Court 1672 and submitted that the accused in a cited case was a public servant, demanded and accepted illegal gratification with a motive or reward for showing a favour in exercise of his official function or the gratification was accepted for payment to another public servant. Subsequently, in that case, defective charge was proved and therefore, accused of that case, succeeded. Here in this case, the role on the part of another public servant, named, Mr. Makwana has not come into picture as there was only conversion regarding papers between Mr. Makwana and complainant, but, there was no any conversion regarding demand of money from the complainant. The accused himself told the complainant that if the complainant would give him Rs. 100/- towards illegal gratification, then he will bring the papers from Mr. Makwana, Medical Officer. Therefore, looking to the contents stated in the evidence, there is nothing come out that Mr. Makwana demanded Rs. 100/- towards illegal gratification from the complainant. The accused himself told the complainant that if the complainant would give him Rs. 100/- towards illegal gratification, then he will bring the papers from Mr. Makwana, Medical Officer. Therefore, looking to the contents stated in the evidence, there is nothing come out that Mr. Makwana demanded Rs. 100/- towards illegal gratification from the complainant. There is no direct evidence, which connects the accused in such offence. 16. From the perusal of the evidence, it is true that present appellant is a public servant and he in his own capacity, assured the complainant that his work will be over and in connection of that work, he had accepted the bribe amount from the complainant. So the conduct of the present appellant is proved by documentary as well as oral evidence. When he made demand of illegal gratification and when he accepted the same, then it is proved beyond reasonable doubt that the appellant committed criminal misconduct. The aspects of demand and acceptance on the part of the appellant - accused are very well proved by the prosecution. The appellant has never made any defence in a statement recorded under Section 313 of the Code of Criminal Procedure, that he had to make payment to said Mr. Makwana. Therefore, appellant himself had not made any kind of defence regarding allegation levelled against him. Therefore, it is established by the prosecution that the appellant made demand and in turn he accepted the amount towards illegal gratification and, he being a public servant, involved in a serious offence. In this case, the sum of Rs. 100/- was demanded by the accused not under any order of the Government or not for compliance with any order of the Government, but, it was accepted precisely for saving the complainant from moving from pillar to post to get his work done with Dr. Makwana and the accused gave an impression to the complainant that he was in such a situation that an influence could be exercised on Dr. Makwana for getting the complainant's work done. Makwana and the accused gave an impression to the complainant that he was in such a situation that an influence could be exercised on Dr. Makwana for getting the complainant's work done. Therefore, the amount accepted by the accused from the complainant precisely fall within the definition of the gratification other than legal remuneration and, therefore, this Court is of the view that the learned Special Judge has rightly held the appellant - accused guilty for the offence alleged against him and rightly convicted and sentenced the appellant accused after considering the evidence produced before him. I do not find any substance and hence, the appeal is required to be dismissed. 17. In view of the above observation, I do not find any merit in this appeal and it is dismissed accordingly. The judgment and order passed by the learned Special Judge, Court, No.13, Ahmedabad passed in Special Case No.10 of 1991 dated 17.5.1991 is hereby confirmed. Appellant is on bail and in view of dismissal of this appeal, his bail bonds are cancelled and he is directed to surrender before the Jail Authority within six weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant against the appellant - accused to effect his arrest. R & P to be sent back to the trial Court, forthwith. Appeal dismissed.