R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1332 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
KANAK KISHOR CHHAGANLAL TRIVEDI
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR BJ TRIVEDI(921) for the Opponent(s)/Respondent(s) No. 1
MR JT TRIVEDI(931) for the Opponent(s)/Respondent(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/02/2023
ORAL JUDGMENT
1. This is an appeal preferred by the State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 ("The Page 1 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023 R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 Code" for short) against the judgment and order of acquittal dated 12.4.2006, recorded by the learned Special Judge, Kachchh at Bhuj, in Special Case No.46 of 1992, whereby the learned trial Court acquitted the respondent - accused from the charges for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short).
2. The case of the prosecution as unfolded before the learned trial Court is such that the complainant was having agricultural field admeasuring about four acres in the name of his father at village- Vandh, which was also known as 'Gogai'. The said land was to be transferred in the name of the complainant and therefore, the father of the complainant had given an application for transfer of the said field in the name of the respondent - accused. It was case of the prosecution that for registering the name of the complainant, the respondent demanded illegal gratification of Rs.400/-. As the complainant was not ready and willing to pay the amount as demanded by the respondent - accused, he approached P.I. of ACB Kachchh- Bhuj, pursuant to which a trap was arranged and in the trap arranged the respondent - accused was found guilty of the alleged offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The case was registered against the respondent - accused.
3. Necessary investigation was carried out and statements of several witnesses were recorded. Ultimately charge sheet came to be filed and submitted before the learned Special Judge and the case was registered as Special Case No. 46 of 1992. The trial was initiated against the respondent.
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4. To prove the charges levelled against the respondent - accused, the prosecution has examined in all three witnesses and also produced several documentary evidences.
5. At the end, the trial Court, after recording the statement of accused under Section 313 of the Code and hearing the arguments on behalf of the prosecution and defence, acquitted the respondent of all the charges levelled against him by the impugned judgment and order.
6. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned Trial Court, the present appeal is filed by the appellant- state.
7. Heard learned APP Ms. Jirga Jhaveri for the appellant - State and learned advocate Mr. B.J. Trivedi for the respondent - accused.
8. Learned APP for the appellant - State submitted that the learned Special Judge had not properly appreciated the evidence on record and learned Special Judge ought to have held that evidence of shadow Panch is sufficient to establish the demand. She further contended that the judgment and order of the learned trial Court is against the provisions of law as learned trial Court had not properly considered the evidence on record led by the prosecution. Considering the evidence led by the prosecution, the prosecution has proved all the ingredients of alleged charges against the respondent. Taking this Court to the deposition of PW-2 at Exh. 17/C
- Motibhai Mohanbhai Parmar, she submitted that as deposed, the respondent had demanded illegal gratification as alleged and pursuant to which the amount as demanded was placed in the Page 3 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023 R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 pocket of respondent's shirt. Therefore, the trial Court is in error in recording that the ingredients of the charges as alleged are not proved.
9. Learned APP submitted that the judgment and order of acquittal, thus, passed by the learned Trial Court is based on inferences not warranted by the facts of the case and on presumption which is not permitted by law. Therefore, the learned Judge had erred in not properly appreciating the evidence on record and thereby committed error by acquitting the respondent for the alleged offences under Sections 7, 13(1)(d) read with Section 13(2) of the Act, which requires to be reversed and the respondent is required to be convicted.
10. On the other hand, learned advocate Mr. B.J. Trivedi for the respondent supported the impugned judgment of acquittal and submitted that the complainant had disowned his complaint and had not supported the case of the prosecution. In the complaint, the complainant had stated that the amount of Rs.400/- was to be paid as land revenue (vighoti), outstanding as on 04.05.1991 (date of the complaint). Taking further this Court to the deposition of PW-3, a trapping officer Shri Nirmalsinh Kalyansinh Gohil at Exhi-31/C, he submitted that, PW-3 had stated that as decided the trap was arranged, however, he was not aware of any demand raised by the respondent. Further, in the cross examination of PW-3 had stated that, from the statement of the complainant, it cannot be denied that some amount was required to be paid by the complainant towards outstanding revenue. Further, the accused had entered the witness box as defence witness and in his deposition at Exhi-39/C, he had stated that as father of the complainant had died, the name Page 4 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023 R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 of the complainant was to be entered into the 'Khedut Pothi' and for that, process was going on. However, as some revenue was outstanding (Vighoti), the complainant had paid the said amount, through, one Jankhu palu and for which the receipt was to be given to the complainant. Learned advocate Mr. B.J. Trivedi therefore, submitted that the learned Trial Court had rightly observed that the prosecution has failed in establishing the case in relation to demand. He further submitted that no case is made out in relation to acceptance and recovery as alleged in the complaint. He therefore submitted that in the aforesaid nature of evidence the prosecution failed in establishing vital ingredients of demand, acceptance and recovery and therefore, findings recorded by the learned Trial Court does not require any interference by this Court.
11. This Court has closely perused the oral and documentary evidence on record and gone through the impugned judgment and award by the learned trial Court as well as Paper Book and evidence adduced by the prosecution and in its entirety and also considering the submissions made by the learned APP for the appellant - State and learned advocate for the respondent.
12. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415, the Hon'ble Apex Court laid down the following principles:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
1. An appellate Court has full power to review, re-Page 5 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023
R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 appreciate and reconsider the evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of act and of law.
3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusion", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
4. An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
Para 44. In our view, if in the light of above circumstances, the trial court felt that the Page 6 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023 R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of the appellate court are as wide as that of the trial court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court (the High Court), therefore, is liable to be set aside."
13. Further in the recent decision in the case of K. Shanthamma v. State of Telangana reported in (2022) 4 SCC 574 it has been held as under:
"10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.
11. In P. Satyanarayana Murthy v. State Page 7 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023 R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 of A.P., this Court has summarised the well- settled law on the subject in para 23 which reads thus:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (I) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
14. Having heard learned advocates for the respective parties and having perused the impugned judgment and order of the trial Court as well as record and proceedings, it is noticed that the complainant had not supported the case of the prosecution. The complainant in his deposition at Exh. 14/C, had stated that the respondent had not asked for any amount to be paid to enter his name in the 'Khedut Pothi', on the contrary, he had stated that the respondent called him at Mandvi Taluka Panchayat Office to get his 'Khedut Pothi'. PW-2 at Exh. 17/C and PW -3 at Exh. 31/C had also not supported the case of the prosecution. It is on record that some amount was to be paid by the complainant towards 'Vighoti'. Moreover, it cannot be ignored that the PW - 3 at Exh. 31/C, in his deposition had admitted that on telephonic complaint the panchas were called in advance, Page 8 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023 R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 prior to filing of the complaint and therefore, the learned Trial Court had rightly recorded that the phone call was received at 3:30 PM and on the basis of such phone call, P.I. had arranged for Panchas and in fact the panchas arrived on that day. The P.I. asked them to came on the next day and therefore, P.I. seriously erred in making the arrangement for panchas in undue haste.
15. In view of the above, the prosecution failed to prove the demand by respondent of illegal gratification for recording the name of the complainant in 'Khedut Pothi'. Since the proof of demand of illegal gratification could not be proved by the prosecution and in absence of same charge therefore would fail. Mere recovery of amount from the pocket of the respondent de-hors the proof of demand would Ipso-facto, not be sufficient proof of charge under Sections 7, 13(1)(d) read with Section 13(2) of the Act.
16. Thus, as the prosecution failed in establishing their case in relation to demand for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act. The deposition of PW - 2 for recovery of the amount from the pocket of the respondent would be meaningless and it looses it's evidential value and therefore, it remains no more evidence in relation to demand and acceptance. Further, nothing concrete came out from the deposition of the independence panchas as contended by the appellant - State for demand and acceptance of illegal gratification.
17. In view of the aforesaid nature of evidence, the learned trial Court has rightly recorded the findings of the acquittal and thereby rightly acquitted the accused which call for no interference of this Court. Further, has held by the Hon'ble Supreme Court all the three Page 9 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023 R/CR.A/1332/2006 JUDGMENT DATED: 13/02/2023 ingredients in relation to demand, acceptance and recovery shall have to be proved by the prosecution and in this case the same is not established.
18. For the reasons above, the learned trial Court had rightly appreciated the evidence on record and rightly acquitted the respondent from the charges levelled against him, which call for no interference by this Court. Even otherwise also, the case is squarely covered by the decision of K. Shanthamma (Supra) and on that count also, there appears no merit in the appeal. This Court is of the considered opinion that the trial Court was completely justified in acquitting the respondent of the charges levelled against him. The findings recorded by the learned Trial Court are absolutely just and proper and in recording the said findings there is no illegality or infirmities committed. Therefore, this Court is in complete agreement with the findings and ultimate conclusion of the trial Court and resultantly order of acquittal recorded by the Court below and hence no reason to interfere with the same.
19. In the result, the present appeal is hereby dismissed. Record and proceedings to be sent back to the trial Court, forthwith.
(MAUNA M. BHATT,J) prk Page 10 of 10 Downloaded on : Wed Feb 15 20:52:52 IST 2023