State Of Gujarat vs Bharatbhai Hirabhai Rathwa
2021 Latest Caselaw 16199 Guj

     R/CR.A/101/2008                          JUDGMENT DATED: 14/10/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 101 of 2008

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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      Whether Reporters of Local Papers may be allowed
 1                                                                   NO
      to see the judgment ?

 2 To be referred to the Reporter or not ?                          YES

      Whether their Lordships wish to see the fair copy of
 3                                                                   NO
      the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution of            NO
   India or any order made thereunder ?

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                     STATE OF GUJARAT
                            Versus
              BHARATBHAI HIRABHAI RATHWA
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Appearance:
MR HARDIK SONI, APP (2) for the Appellant(s) No. 1
MR P P MAJMUDAR(5284) for the Opponent(s)/Respondent(s) No.
1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 14/10/2021

                           ORAL JUDGMENT

1. Present appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 30.10.2007, passed in ACB Case No. 12 of 2006 by the learned Additional Sessions Judge, Presiding Officer, Fast Track Court No. 11, Vadodara,

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recording the acquittal.

2. The facts, in brief, are that on 13.03.2006, complainant Rameshbhai Gordhanbhai Patanvadia, resident of Patanvadia Faliya, Tal.: Karjan registered a complaint before the ACB, Vadodara to the effect that he was having a Jeep bearing registration No. GJ-07-A-2216 in the name of his father and was earning by running the said jeep for commuting the passengers on Karjan - Nareshwar route. The jeep was duly insured and the complainant was also having valid and effective driving licence. As per his complaint, he used to give Rs.1,000/- as hapta (illegal gratification) to the respondent monthly. However, in March 2006, when he failed to give one such instalment as his Jeep was under repair and he was not having money, the respondent, threatened him that he would not allow him to run his Jeep on the said route and hence, on 12.03.2006, he gave Rs.200/- and for rest amount of Rs.800/-, he requested him to be paid within a short time. The complainant, since, did not want to pay the bribe, approached the Police Inspector, ACB, Vadodara, who, after completing preliminary procedures, arranged the trap. The complainant deposited Rs.300/- and rest Rs.500/- was arranged by the ACB so as to equal the bribe money of Rs.800/- for trap purpose. Thereafter, trap was conducted and the respondent - accused accepted an amount of Rs.800/- and caught red-handed and thereby, he committed the offence punishable under Section 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as "the PC Act").

2.1 Upon such offence being registered, investigation started and the Investigating Officer recorded statements of as many as 5 witnesses and produced certain documentary evidence and after completion of the investigation, Charge-sheet was filed

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against the accused for the offences in question. The learned trial Judge framed the Charge. Since the accused did not plead guilty, trial was proceeded against the accused. Vide impugned judgment and order dated 30.10.2007, the learned trial Judge acquitted the accused. Being aggrieved by the same, the State has preferred the present appeal.

3. Heard, learned APP Mr. Hardik Soni for the appellant - State and learned advocate Mr. P. P. Majmudar for the respondent - accused.

3.1 The learned Additional Public Prosecutor has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove its case beyond reasonable doubt. The learned APP further contended that the learned trial Judge has failed to appreciate the evidence of complainant - PW-1 Rameshbhai Gordhanbhai Patanvadiya, Exh. 8, who has supported the case of the prosecution in full. He submitted that the respondent - accused was caught red-handed with the bribe money, however, the learned trial Judge disbelieved his deposition and thereby, materially erred.

3.2 The learned APP further, drawing the attention of the Court to the deposition of PW-2 Prembhandbhai Dudhabhai Parmar, Exh. 11 submitted that this witness has also supported the case of the prosecution and has clearly stated that the accused person was caught red-handed taking bribe. He submitted that though all the three ingredients viz. demand, acceptance and recovery were proved beyond reasonable doubt, however, the learned trial Judge has materially erred in disbelieving the case of the prosecution.

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3.3 He further drew the attention of the Court to the deposition of PW-3 Anupamsingh Gehlot, Exh. 16, who was then working as the Superintendent of Police with the Western Railway, Vadodara and granted sanction for prosecution qua the respondent - accused. The learned APP submitted that this witness has clearly stated in his deposition that on being satisfied that there is sufficient material against the respondent - accused for prosecution, he had granted sanction. It is submitted that this witness has also supported the case of the prosecution, however, in the submission of the learned APP, the learned trial Judge has failed to appreciate the same in its true and proper perspective.

3.4 The learned APP then invited attention of the Court to the deposition of PW-4 Mahebub Mustufa Malek, Exh. 18, who was the Trapping Officer. This witness has narrated the whole prosecution story in detail. The learned APP submitted that this witness has also fully supported the case of the prosecution and has deposed to state that the accused person had taken bribe and caught red-handed, however, the learned trial Judge has also not believed the evidence of this witness and thereby, has committed a grave error.

3.5 The learned APP, taking this Court through the oral as well as the documentary evidence on record, submitted that though the prosecution has proved the case against the accused beyond reasonable doubt, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal. He submitted that though all the ingredients viz. demand, acceptance and recovery were fulfilled and proved beyond reasonable doubt, the learned trial Judge did not believe the same and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to

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the facts and evidence on record. He submitted that even demand is sufficient to implicate the accused.

3.6 The learned APP further submitted that under Section 20 of the PC Act, presumption is required to be drawn where public servant accepts gratification other than legal remuneration, where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person and it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. He submitted that onus is cast upon such person to prove otherwise, which, in the instant case, the accused person has failed to prove. However, the learned trial Judge has failed to take into consideration such an important aspect of the matter and eventually, has erred in recording acquittal.

3.7 Thus, the learned APP has submitted although cogent and material evidence had been produced by the prosecution and the case was proved beyond reasonable doubt, the trial Court has committed a grave error in acquitting the accused and accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

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4. Per contra, learned advocate Mr. P. P. Majmudar for the respondent - accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the respondent - accused, which is just and proper. He submitted that it is trite law that if two views 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality.

4.1 The learned advocate for the respondent - accused submitted that three ingredients in such type of cases are sine qua non viz. demand, acceptance and recovery, which are required to be proved, are not proved by the prosecution beyond reasonable doubt and therefore, the learned trial Judge has rightly acquitted the accused of the charges levelled against him.

4.2 The learned advocate for the respondents - accused further submitted that there are material contradictions and improvement in the evidence of the complainant and the learned trial Judge, taking into consideration such an aspect of the matter, has rightly appreciated and evaluated the evidence on record. Further, the record reveals that only bald allegations have been made against the accused that he demanded the money, however, the demand is not proved against him.

4.3 The learned advocate for the respondent has further, inviting attention of the Court to the evidence of the complainant,

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heavily submitted that it can be easily seen that the trap money was not recovered from the possession of the respondent - accused and it was found in the open space behind the police station only.

4.4 Further, drawing attention to the deposition of PW-2 Premchandbhai Dudhabhai Parmar, Exh. 11, Panch Witness, the learned advocate for the respondent - accused submitted that it reveals from the testimony of this witness that he had signed the papers in the ACB office, however, he was not knowing as to on which documents, he had signed.

4.5 Further, he reiterated that the prosecution has materially erred in proving the core ingredients i.e. demand, acceptance and recovery and hence, the learned trial Judge has rightly acquitted the accused of the charges levelled against him, which does not require any interference at the hands of this Court. He submitted that the complainant himself is implicated in several offences. Eventually, in the facts and circumstances of the case, it is urged that the present appeal may be dismissed.

5. Heard the learned advocates for the respective parties and gone through the impugned judgment and order of the trial Court as well as the material on record. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person

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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 reaffirmed and strengthened by the trial Court.

5.1 Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

5.2 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the the appellate Court, in such circumstances, re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

5.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is

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acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

5.4 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable.

The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P

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(2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(1) An appellate court has full power to review, reappreciate 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 fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the

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nature of 'flourishes of language' to emphasise 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."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

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(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v.

CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and

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Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC

636)." (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re- appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p.

233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-

appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question

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whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in

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support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of

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acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

6. In the aforesaid backdrop, if the evidence of complainant PW-1 Rameshbhai Gordhanbhai Patanvadia, Exh. 8 - complainant is referred to, he has reiterated the contents of his complaint. If the cross-examination of this witness is referred to, it is crucial. He has admitted in his cross-examination that after the trap, in the police station, the members of raiding party were searching for the trap money. He has further admitted that the trap money was found by the raiding party behind the police station in the open space only, meaning thereby, the trap money was not

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recovered from the possession of the accused but was found from somewhere else. This aspect creates serious doubt in the prosecution theory and the so-called trap. Further, in his deposition, this witness has stated that he used to pay Rs.800/- as hapta (illegal gratification) to the respondent - accused monthly, however, if the averments made in his complaint, Exh. 9 are perused, he has stated the amount to be Rs.1,000/-. Amount of jeep repairing expense also differs. The learned trial Judge has also recorded in the impugned judgment and order as to contradiction in the time with regard to the demand made by the respondent accused. Thus, there are several contradictions in his version before the ACB and before the Court.

6.1 Now, if the deposition of PW-2 Prembhandbhai Dudhabhai Parmar, Exh. 11 is seen, he is the panch witness, in his chief examination, he has narrated the details regarding trap. However, if his cross-examination is referred to, he has denied the fact that the raiding party and one Shri Malek were searching for the trap money. Whereas, if the deposition of the complainant is referred to again, in his cross-examination, he has deposed to state that the members of the raiding party were searching for the trap money and the money was found in the open space behind the police station. Thus, there is material contradiction in the depositions of these two witnesses.

6.2 The prosecution has also examined the sanctioning officer i.e. Anupamsingh Gehlot, Superintendent of Police (the then), Western Railway, Vadodara PW-3, Exh. 16, who had granted the sanction.

6.3 Further, the prosecution has examined Mahebub Mustufa Malek, PW-4, Exh. 18, who was the Trapping Officer. If the cross-

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examination of this witness is referred to, he has admitted in his deposition that with a view to oblige the complainant, they had decided to throw the currency notes from the window of the police chowky and to catch the police personnel present in the police chowky. Further, it has emerged from the record and it is observed by the learned trial Judge in the impugned judgment and order that Trapping Officer had not collected the clothes worn by the accused nor had conducted any test to verify the presence of Phenolphthalein powder on the clothes of the accused.

6.4 Thus, on re-appreciation and reevaluation of the ocular as well as the documentary evidence on record, it transpires that the prosecution has failed to prove the case against the accused beyond reasonable doubt inasmuch, as all the three material ingredients of the offence in question viz. demand, acceptance and recovery are not proved by the prosecution beyond reasonable doubt. There appears to be material contradictions in the evidence of the prosecution witnesses. It has further revealed from the record that complainant himself was implicated in many offences. The Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to the conclusion that the prosecution has failed to prove the case against the accused beyond reasonable doubt, as three ingredients of the offence viz. demand, acceptance and recovery, which are sine qua non in such cases, are not proved and in the considered opinion of this Court, the learned trial Judge has rightly come to such a conclusion, which do not call for any interference at the hands of this Court.

R/CR.A/101/2008 JUDGMENT DATED: 14/10/2021

6.5 So far as the presumption under Section 20 of the PC Act is concerned, it trite that even the presumption under Section 20 of the PC Act can be drawn only if an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.

7. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the prosecution has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference. Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 30.10.2007, passed in ACB Case No. 12 of 2006 by the learned Additional Sessions Judge, Presiding Officer, Fast Track Court No. 11, Vadodara, recording the acquittal is confirmed. Bail bond, if any, shall stand cancelled. R&P be transmitted back forthwith.

[ A. C. Joshi, J. ] hiren