State Of Gujarat vs Ambalal Kalabhai Parmar
2023 Latest Caselaw 2873 Guj

     R/CR.A/1009/2006                                 JUDGMENT DATED: 12/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                        R/CRIMINAL APPEAL NO. 1009 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                               Sd/-

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1     Whether Reporters of Local Papers may be allowed                     Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                              Yes

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
                        AMBALAL KALABHAI PARMAR & 1 other(s)
==========================================================
Appearance:
MR HIMANSHU PATEL APP for the Appellant(s) No. 1
MS DHRUTI PANDYA WITH MS. KRUTI M SHAH(2428) for the Opponent(s)/
Respondent(s) No. 1,2
==========================================================


    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                  Date : 12/04/2023

                                  ORAL JUDGMENT

R/CR.A/1009/2006 JUDGMENT DATED: 12/04/2023

1. The appellant - State of Gujarat has preferred the

present appeal under Section 378 of Criminal Procedure

Code, 1973 against the judgment and order of acquittal

dated 31.3.2006 passed by the learned Additional

Sessions Judge, Fast Track Court No. 6, Vadodara

(hereinafter be referred to as "the Trial Court") in Special

Case No. 9 of 2001, whereby the respondents-original

accused were acquitted from the charges levelled against

them under Sections 7, 12, 13(1)(d), 13(2) of the

Prevention of Corruption Act.

2. The facts in brief giving rise to the filing of present

appeal are as under:

2.1 The Assistance Director of Anti-Corruption Bureau

("ACB" for short) has received an information that the

Police Officers of the Baroda Rural Traffic received illegal

gratification amount from the drivers of the passenger

vehicles, who ply their vehicles from Baroda to nearby

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area. Therefore, they have planned to arrange the trap

and accordingly, they have arranged one Jeep Car and

agreed the driver Riyazhussan Fakirmahomed Ghori to

accompany them for arranging the trap. Thereafter, along

with two panchas namely Hiteshbhai Kantilal Thaker and

Mukeshbhai Vinubhai Shah, serving in the Forest

Department, near the office of Assistance Director of

ACB, Vadodara, they have started trap with the driver

Riyazhussan Fakirmahomed Ghori, and asked the driver

to be part of the trap and running trap and for that

purpose they have given an instructions as to how he has

to act and what is to be done, when he found the police

officers at the relevant place. Before proceeding towards

the place of trap, they have already performed the first

part of the panchnama at the office of Assistance Director

of ACB and thereafter, they have also performed the

necessary tests. They have taken Rs.500/- as 5 currency

notes of Rs.100 and put anthracene power on it and

asked the driver of the Jeep Car that as and when he

found any Police Officers at the relevant place, who asked

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or demanded the money, he has to give those tainted

notes and that is how they have prepared the first part of

the parnchnama at the office of the Assistant Director of

the ACB, Vadodara and thereafter they started to reach at

Sinor Chokdi, where present two respondents were on

duty, the team asked the driver namely Riyazhussan

Fakirmahomed Ghori, that as and when those constables

demanded the amount, he has to give the said tainted

currency notes, upon which the anthracene power was

sprinkled. Thereafter, when they reached near the so

called place they found that the respondents police

personals were standing on the cross road and without

there being any asking, the driver of the jeep car had

asked the police personnel that he was having two travel

buses and the Jeep Car and for the travel buses, he has

already paid certain amounts and now with regard to the

Jeep Car he has to pay the amount. Then ultimately they

have given the amount of Rs.200/- from the tainted notes

of Rs.500/- forcefully and then the raiding party has

completed the procedure of the raid and arrested the

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present respondents accused for the alleged offence and

filed the FIR under the provision of Sections 7, 12, 13(1)

(d), 13(2) of the Prevention of Corruption Act, 1988.

3. The charge came to be framed by the Trial Court on

18.6.2005 vide Exhibit 8 for the aforesaid offences

against the accused. On being explained it to them, the

accused persons have denied having committed any

offence. The accused persons pleaded not guilty to the

charge and pleaded for Trial and hence, the case was

tried by the Trial Court.

4. The prosecution has examined six witnesses to prove

the guilt of the accused persons and also produced as

many as 8 documentary evidence before the concerned

Trial Court to prove the guilt of the accused persons.

After going through the oral as well as documentary

evidence and after hearing the arguments advances by

both the sides, the Trial Court has passed the impugned

judgment and order of acquittal dated 31.3.2006 in

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Special Case No. 9 of 2001, in favour of the present

respondents.

5. I have heard Mr. Himanshu Patel, learned APP for the

appellant State of Gujarat and Ms. Dhruti Pandya,

learned Counsel appearing for Ms. Kruti M. Shah, learned

Counsel for the respondents-accused persons.

6. Mr. Himanshu Patel, learned APP for the appellant

State has submitted that it is a running trap and the

panchnama of the first part and the second part is

completely supported the case of the prosecution and the

panchas also supported the case of the prosecution,

however, the learned Trial Judge has not considered all

these aspects while passing the impugned judgment and

order of acquittal. It is further submitted by learned APP

that though the acceptance is established beyond

reasonable doubt, as both the accused persons found with

the tainted currency notes from his possession and

therefore, the Trial Court ought to have considered the

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said aspect and convict the accused persons for the

alleged offence of illegal gratification. He has further

submitted that the prosecution has examined the

witnesses who have fully supported the case of the

prosecution and therefore, Trial court ought to have

appreciated the evidence led by the prosecution in its

true and proper spirit and therefore, the impugned

judgment and order of acquittal is erroneous and the

same deserves to be quashed and set aside and the

respondents accused be convicted for the alleged offence

of illegal gratification. Learned APP also further

submitted that the sanctioning authority, has after

applying the mind and after going through the records

available before the sanctioning authority, granted the

sanction and therefore, learned Judge ought to have

appreciated all these materials produced on record and

convict the accused persons for the alleged offence of

illegal gratification. He therefore submitted that present

Appeal may be allowed and the impugned judgment and

order of the Trial Court may be quashed and set aside.

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7. As against that Ms. Dhruti Pandya, learned Counsel

for Ms. Kruti M. Shah, learned Counsel for the

respondents has strongly opposed submission made by

the learned APP as well as averments of the appeal and

submitted that the Trial Court has, after examining the

witnesses in detail and after going through the arguments

advanced by the concerned parties and demeanor of the

witnesses, recorded the findings of acquittal. She has

submitted that prima facie the basic ingredients of the

offence i.e. demand and acceptance is not established

beyond the reasonable doubt, as there was no demand at

all raised by the respondent accused and therefore,

learned Judge has rightly considered and appreciated the

evidence led by the prosecution, while passing the

impugned judgment and order of acquittal and there is no

infirmity and illegality in the impugned judgment and

order of the Trial Court and hence, the impugned

judgment and order of acquittal may be confirmed and

this Court may not interfere with the impugned judgment

R/CR.A/1009/2006 JUDGMENT DATED: 12/04/2023

and order of the Trial Court.

8. In support of the order of acquittal, learned Counsel

appearing for the respondents has referred to and relied

upon the decisions of the Hon'ble Apex Court in case of

Chandrappa and others vs. State of Karnataka

reported in (2007) 4 SCC 415, more particularly she

relied upon paragraph No. 42, wherein the Hon'ble Apex

Court has framed the general principle regarding powers

of the appellant Court while dealing with an appeal

against an order of acquittal. The said paragraph No. 42

reads as under:-

"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 nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to

R/CR.A/1009/2006 JUDGMENT DATED: 12/04/2023

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 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."

9. Learned Counsel for the respondents has referred to

and relied upon the observations made in paragraph No.

9 of the decision of the Hon'ble Apex Court in case of

State of U.P. vs. Ram Veer Singh and others

reported in AIR 2007 SC 3075, which reads as under.

"9. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which

R/CR.A/1009/2006 JUDGMENT DATED: 12/04/2023

may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme

567)]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5) Supreme 508, State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17) and V.N. Ratheesh v. State of Kerala (2006 (10) SCC

617).

10. Learned Counsel for the respondent has relied upon

the decision of this Court dated 7.2.2023 in case of The

State of Gujarat vs. Ashokbhai Shankerbhai Patil

passed in Criminal Appeal No. 123 of 2007. She relied

upon the observations made in paragraph No. 12 which

read as under:-

12. 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:

R/CR.A/1009/2006 JUDGMENT DATED: 12/04/2023

"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 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."

11. Learned Counsel for the respondents also relied upon

the decision of the Hon'ble Apex Court in case of K.

Shanthamma vs. State of Telangana reported in

(2022) 4 SCC 574, V. Sejappa vs. State By Police

Inspector Lokayukta, Chitradurga reported in

(2016) 12 SCC 150, State of Gujarat vs. Delipsinh

Laxmansinh Rathod reported in 2017 (4) GLR 2957,

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State of Gujarat vs. Doliben Govindbhai and others

reported in 2019 (3) GLH 831.

12. I have perused the relevant materials available on

record and evidence led by the prosecution and the

arguments advanced by learned APP and the learned

Counsel appearing for the respondents. I have also gone

through the original records and proceedings of the

Appeal as well as impugned judgment and order passed

by the Trial Court.

13. It is a case of the prosecution that on the day of

incident, the raiding party planned the running trap and

for that purpose they took the help of one Riyazhussan

Fakirmahomed Ghori, driver of the Jeep Car by hiring his

Jeep Car and with the help of him, they have arranged the

running trap and when they reached at the cross road of

Balasinor, they found that the respondents police

personnel were standing on the cross road and without

there being any asking by the police personnel, they have

R/CR.A/1009/2006 JUDGMENT DATED: 12/04/2023

forcefully given the money to the respondents accused

under the guise that as they are running the travel buses

plying on the said route and for that they have already

paid certain amounts. Now so far as the Jeep Car is

concerned, they have to pay the amount and therefore,

they were paying the amount but considering the

deposition of p.w. 1-driver of the Jeep Car, who has

categorically stated before the Trial Court on oath that

the respondents have not demanded money however, they

have paid money themselves without any demand by the

respondents and ultimately he has declared as hostile

witness. In fact the said witness has not supported the

case of the prosecution. Even from his cross examination,

of P.W. 1, no illicit material was brought by the

prosecution on record, which in-turn connect the accused

persons in crime in question. Thereafter, they have

examined the panch i.e. p.w. 2 Hiteshbhai Kantibhai

Thaker, who serving in the Forest Department, near the

office of Assistance Director of ACB, Vadodara. He has

categorically stated before the Trial Court on oath that

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there was no demand but they have paid the amount and

in-turn he has tried to support the case of the

prosecution. The P.W. 3 being an appointing authority,

has, after perusing the relevant papers of chargesheet,

granted the sanction to prosecute the respondents

original accused. The appointing authority has only

deposed before the Trial Court that after verifying the

materials which are produced before him and after

examination of the documents produced before him, he

has granted the sanction and permitted to prosecute the

respondents accused persons for the alleged offence of

illegal gratification. The P.W. 4 who is a complainant, has

also investigated the alleged offence and supported the

case of prosecution. The said complainant is an interested

witness and therefore, he has registered the F.I.R.

against the respondents. From the deposition of the

complainant also, nothing serious is turned out against

the accused persons.

14. From the deposition of all these witnesses and from

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the bare perusal of the deposition of the prosecution

witnesses and the documentary evidence produced before

the Trial Court, prima facie it appears that there was no

demand by the accused persons for any amount. Even

there was no amount ascertained before the running trap

arranged by the trapping officers and therefore, the first

ingredients to prove the alleged offence of illegal

gratification is not proved beyond the reasonable doubt

and hence, learned Trial Judge has rightly passed the

impugned judgment and order of acquittal in favour of

the accused persons.

15. At this stage, it is relevant to refer to the decision

relied upon by learned Counsel for the respondents of the

Hon'ble Apex Court in case of P. Satyanarayana

Murthy vs. Dist. Inspector of Police reported in AIR

2015 SC 3549, wherein the Hon'ble Apex Court has

categorically come to a conclusion that the amount of

illegal gratification is the basic ingredients and it is to be

proved beyond the reasonable doubt. It is further held by

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the Hon'ble Apex Court that the proof of demand of illegal

gratification, thus, is the gravamen of the offence

under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in

absence thereof, unmistakably the charge therefor, would

fail. meaning thereby the basic requirement of demand or

the ailment of demand is to be proved beyond reasonable

doubt by the prosecution failing which the case itself not

succeed. 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. 22. As a corollary, failure to prove the said fact of

demand by the prosecution for illegal gratification would

be fatal and mere recovery of the amount from the person

accused persons is not sufficient to bring the charge

against the accused persons under Sections 7 or 13 of the

Act and to convict the accused persons in the alleged

offence.

16. While considering the Appeal against order of

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acquittal, it is well settled principle that when two views

are possible, the view which is taken by the Trial Court in

favour of the accused persons normally to be sustained

and no interference is to be called for while dealing with

the appeal against the order of acquittal.

17. The judgment which is refereed to and relied upon

by the learned Counsel for the respondents original

accused in the case of Chandrappa (supra) is well

settled principle and there is no other opinion.

18. From the overall analysis of the evidence on record

and the material placed before the Trial Court, it appears

that the main witness of the prosecution has disowned

from his version and not supported the case of the

prosecution, with regard to the first ingredients of the

demand and not supported the contents of the F.I.R.. In

my considered opinion, the Trial Court has not committed

any error while passing the impugned judgment and

order of acquittal. The judgments relied upon by the

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learned Counsel for the respondents are fully supported

the case of the respondents accused persons. When the

basic ingredients of demand is not proved by the

prosecution by leading any cogent and relevant material

evidence, mere case of recovery is not sufficient to prove

the guilt of the accused persons for the offence alleged

under Section 7 and 13 of the Prevention and Corruption

Act. There are all possibilities that while thrusting the

note on the respondents accused persons, the imprint of

anthrecene power was found on the figure of the

respondents accused because of resisting to accept the

amount and therefore, that acceptance is also raised a

clear doubt and therefore, Trial Court has rightly passed

the impugned judgment and order of acquittal and there

is no perversity or any illegality committed by the Trial

Court while passing the impugned judgment and order of

acquittal.

19. It is well settled by catena of decisions that the

Appellate Court has full power to review, re-appreciate

and reconsider the evidence upon which the order of

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acquittal is founded. However, Appellate Court 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.

20. 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

arrived at would not be arrived at by any reasonable

person and, therefore, the decision is to be characterized

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as perverse. 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. A duty is cast upon the

Appellate Court, in such circumstances, to re-appreciate

the evidence to arrive to a 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.

21. 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

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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.

22. On perusal of the impugned judgment and order, it

clearly transpires that the Trial Court has not committed

any error of fact and law in appreciating the evidence on

record and in acquitting the accused persons from the

charges levelled against them. Even on re-appreciation of

the evidence, it clearly transpires that the prosecution

has miserably failed to prove the charge levelled against

the accused persons beyond reasonable doubt. Therefore,

the impugned judgment and order of the Trial Court is

sustainable and the present appeal is liable to be

dismissed.

23. In view of the evidence on record, it is clearly found

that the Trial Court has minutely examined the evidence

and has properly appreciated the evidence on record and

also not committed any error of fact and law in acquitting

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the accused for the charges levelled against them.

24. In view of the above, the present appeal fails and

stands dismissed accordingly. The judgment and order of

acquittal dated 31.3.2006 passed by the learned

Additional Sessions Judge, Fast Track Court No. 6,

Vadodara is hereby confirmed. Bail bond stands

cancelled. Record and proceedings, if lying here, be sent

back to the concerned Trial Court forthwith.

Sd/-

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI