Gujarat High Court

State Of Gujarat vs Vinubhai Nagjibhai Panchal on 9 August, 2023

Bench: Hemant M. Prachchhak

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1639 of 2005


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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
                           VINUBHAI NAGJIBHAI PANCHAL
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Appearance:
MS MAITHILI D MEHTA, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
MS AMRITA AJMERA FOR MR DAIFRAZ HAVEWALLA(3982) for the
Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                 Date : 09/08/2023

                                 ORAL JUDGMENT

1. The present appeal is filed by the appellant - State of

Gujarat under Section 378(1)(3) of the Code of Criminal

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Procedure, 1973 (for short "Cr.P.C.") against the judgment and

order of acquittal dated 29/10/2004 passed by the learned

Special Judge, (hereinafter referred to as "the Trial Court"),

Bharuch in Special (Corruption) Case No.4 of 2002, whereby,

the learned Trial Court has acquitted the original accused -

respondent herein for the offence punishable under Sections 7,

13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

2. The brief facts giving rise to the present appeal are as

under :

2.1 On 08.02.2002, Mr.N.B. Koralwala, Police Inspector,

A.C.B. Police Station registered a complaint on receiving the

information from the complainant that under the mid-day meal

scheme in Jagadiya Taluka of Bharuch district, the Deputy

Mamlatdar was demanding and accepting exgratia from the

Management towards the cheque and trap was arranged on

08.02.2002. The panch witnesses were called and they were

explained about the trap. It is the case of the appellant that

one Chunilal Vasava had to take the cheque of Rs.1160/-

against which the demand of Rs.100/- was made by the

respondent accused and the said amount was accepted. The

amount was kept in his shirt in presence of the prosecution

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witness No.1. Thus the respondent accused demanded and

accepted the bribe amount. The respondent accused faced the

trial being Special A.C.B. Case No.5 of 2002 for the offence

punishable under Sections 7, 13(1)(d) and 13(2) of the

Prevention of Corruption Act, 1988.

2.2 On the basis of the complaint registered against the

respondent accused, the Investigation Officer carried out the

investigation and after having sufficient material against the

respondent accused, get sanction from the Government and

after recording evidence of relevant witnesses, prepared

charge-sheet against the accused persons and submitted the

same before the concerned Court. The case being exclusively

sessions triable, was committed to the Special Court, at

Bharuch, as per Section 209 of the Cr.P.C. The accused was

produced before the Court and after verifying whether the

accused was given all the necessary police papers or not, the

learned Special Judge framed charge at Exh.-3 against the

respondent accused on 07.10.2002, to which the plea of the

respondent accused was recorded, wherein, he denied his

involvement in the offence.

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2.3 In order to bring home charge, the prosecution has

examined as many as 6 witnesses and also produced several

documentary evidence before the Trial Court, which are as

under: -

Oral evidence :-

PW-1 Deposition of Somabhai Ranchhodbhai Parmar Exh.-07

PW-2 Deposition of Chunilal Nagjibhai Vasava Exh.-13

PW-3 Deposition of Nareshchandra BhikhabhaiExh.-17 Koralwala

PW-4 Deposition of Mukeshbhai Govindbhai Ajmeri Exh.-26

PW-5 Deposition of Navinchandra Barshanbhai Vasava Exh.-29

PW-6 Deposition of Rajdhar Dolatrav Marathi Exh.-33

Documentary Evidence :-

(1) Letter to assign panch witnesses for confidentialExh-18 work of A.C.B.

(2)         Complaint of the complainant                                    Exh-20

(3)         Panchnama of trap                                               Exh-08

(4)         Panchnama     of    the   physical       condition   of    the Exh-14
            accused

(5)         Letter for receiving investigation            papers       andExh-15
            approval for prosecution

(6)         Seizure list of the articles seized from the accused Exh-19

(7)         Order of the approval for prosecution                           Exh-16







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(8)         Letter of the State Bank of India                        Exh-27

(9)         Xerox copy of the cheque of the State Bank of India Exh-28




2.4      The Defence has also examined one witness being

Defence Witness No.1 - Shamsing Jagabhai Chaudhary (Exh.-

37) who was serving as Deputy Mamlatdar in the office of the

Mamlatdar at relevant point of time alongwith the present

respondent accused.

2.5 After examination of the witnesses in detail and after

considering the documentary evidence and after hearing

arguments advanced by both the sides, the Trial Court has

passed the impugned order of acquittal mainly on the ground

that the prosecution has failed to establish the case against

the accused - respondent herein with regard to the demand

and acceptance beyond reasonable doubts.

2.6 Feeling aggrieved and dissatisfied with the impugned

judgment and order of acquittal, the appellant - State of

Gujarat has filed the present appeal under Section 378(1)(3) of

the Code of Criminal Procedure, 1973.

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3. Heard learned APP Ms.Maithili D. Mehta appearing for the

appellant - State of Gujarat and learned counsel Ms.Amrita

Ajmera appearing on behalf of Mr.Daifraz Havewalla, the

learned counsel appearing for the respondent - original

accused.

4. Learned APP Ms.Mehta appearing for the appellant State

has raised the contention that though the prosecution has led

the evidence to prove the charge levelled against the

respondent accused beyond reasonable doubts and proved the

demand, acceptance and recovery by leading cogent and

material evidence, however, the Trial court has disbelieved all

the three ingredients in observing that the prosecution has not

proved the charge levelled against the respondent accused

beyond reasonable doubts and hence, while passing the

impugned judgment and order of acquittal the Trial Court has

committed a serious error on facts and on law. It is also further

argued by Ms.Mehta that the immediate superior officer who

was sitting in the office of the respondent accused has

supported the case of the prosecution. Even PW-1 - Somabhai

Ranchodbhai Parmar (Exh.-7) being a panch witness and

independent witness and PW-2 - Chunilal Nagjibhai Vasava

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(Exh.-13) being an informant have fully supported the case of

the prosecution and by leading oral as well as documentary

evidence, the prosecution has proved the charge levelled

against the respondent accused and, therefore, the Trial Court

has committed a serious error while appreciating the evidence

of all the three witnesses in its true and proper spirit and thus,

the Trial Court has committed a grave error of facts and of law

and the impugned judgment passed by the Trial court is

erroneous, illegal and against the settled principles of law.

However, learned APP Ms.Mehta has candidly submitted that

the authorization of PW-2 - Chunilal Nagjibhai Vasava was

cancelled in the month of December, 2001 itself and the letter

was issued with the sign and seal of the office of PW-5 -

Navinchandra Barshanbhai Vasava (Exh.-29) and, therefore,

there was no reason for PW-2 to allege that the respondent

accused was demanding illegal gratification to extend the said

contract or the work under the mid-day meal scheme which

was allocated to PW-2 since 2001. She has also candidly

submitted that from 1991 PW-2 was running the mid-day meal

scheme for village Amanzer but, since after the elections of the

village panchayat, wherein his wife got elected as a member of

the village panchayat and therefore, PW-2 could not run the

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said agency thereafter. Ms.Mehta has also candidly submitted

that the wife of PW-2 tendered her resignation in the year

2002 and thereafter only, the present case was registered

against the respondent accused as he was the election officer

wherein the wife of PW-2 got elected as a member of Amanzer

village panchayat. She, therefore, urged that considering all

these aspects, the present appeal be allowed and the

impugned judgment and order of acquittal passed by the Trial

Court be quashed and set aside.

4.1 The learned APP Ms.Mehta has strongly referred to and

relied upon the recent decision of the Full Bench of the Apex

Court in the case of Neeraj Datta Vs. State (Govt. of

N.C.T. of Delhi) decided on 15th December, 2022,

reported in AIR 2023 SC 330, more particularly, the

observations made in paragraphs 28 to 35, paragraph 46 and

clause (e) and (f) of paragraph 68, which read as under :

"28. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under:

"1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence

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adduced by the prosecution?"

In order to answer the aforesaid question, it would be useful to recapitulate the relevant provisions of the law of evidence vis-à-vis tendering of oral and documentary evidence; presumptions and circumstantial evidence. Thereafter to analyse the three cases and also other cases cited at the Bar in the background of the question raised and to derive a conclusion from the said discussion.

Relevant provisions of Law of Evidence - A discussion:

29. Since the main thrust of this case is on the quality of evidence for proof of demand and acceptance of an illegal gratification before a public servant can be held guilty of an offence under Section 7 and/or Section 13(1)(d) of the Act, it would be appropriate to discuss the salient principles of law of evidence relevant to the question under consideration.

In this context, it would be necessary to refer to Sections 3, 4, 59, 60, 61, 62, 63, 64, 65 and 154 of the Evidence Act.

30. Congruent to the principle of res gestae, a fact includes a state of things or events as well as the mental state i.e. intention or animus. A fact in law of evidence includes the factum probandum i.e., the principal fact to be proved and the factum probans, i.e., the evidentiary fact from which the principal fact follows immediately or by inference. On the other hand, the expression "fact in issue" means the matters which are in dispute or which form the subject of investigation. (vide Section 3 of Evidence Act).

31. It is well settled that evidence is upon facts pleaded in a case and hence, the principal facts are sometimes the facts in issue. Facts relevant to the issue are evidentiary facts which render probable the existence or non-existence of a fact in issue or some relevant fact.

32. In criminal cases, the facts in issue are constituted in the charge, or acquisition, in cases of warrant or summon cases. The proof of facts in issue could be oral and documentary evidence. Evidence is the medium through which the court is convinced of the truth or otherwise of the matter under enquiry, i.e., the actual words of witnesses, or documents produced and not the facts which have to be proved by oral and documentary evidence. Of course, the term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the

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demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge under Section 313 of the Criminal Procedure Code (CrPC).

33. Further, according to Sarkar on Law of Evidence, 20 th Edition, Volume 1, "direct" or "original" evidence means that evidence which establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it, and believed that it established a fact in issue. Direct evidence proves the existence of a fact in issue without any inference of presumption. On the other hand, "indirect evidence" or "substantial evidence" gives rise to the logical inference that such a fact exists, either conclusively or presumptively. The effect of substantial evidence under consideration must be such as not to admit more than one solution and must be inconsistent with any explanation that the fact is not proved. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred.

34. Again, oral evidence can be classified as original and hearsay evidence. Original evidence is that which a witness reports himself to have seen or heard through the medium of his own senses. Hearsay evidence is also called derivative, transmitted, or second- hand evidence in which a witness is merely reporting not what he himself saw or heard, and not what has come under the immediate observation of his own bodily senses, but what he has learnt in respect of the fact through the medium of a third person. Normally, a hearsay witness would be inadmissible, but when it is corroborated by substantive evidence of other witnesses, it would be admissible vide Mukhtiar Singh.

35. Evidence that does not establish the fact in issue directly but throws light on the circumstances in which the fact in issue did not occur is circumstantial evidence (also called inferential or presumptive evidence). Circumstantial evidence means facts from which another fact is inferred. Although circumstantial evidence does not go to prove directly the fact in issue, it is equally direct. Circumstantial evidence has also to be proved by direct evidence of the circumstances.

Further, letting in evidence should be in accordance with the provision of the Evidence Act by the examination of witnesses, i.e., examination-in-chief, cross-examination, and re-examination.

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46. Courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely,

(i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognised by law". The expression "may presume" and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume". "May presume" leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act.

68. What emerges from the aforesaid discussion is summarised as under:

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by

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documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant."

4.2 The learned APP, therefore, urged that the present

appeal be allowed and the impugned judgment and order of

acquittal be quashed and set aside and the respondents -

original accused be held guilty of the alleged offence.

5. As against that, Ms.Amrita Ajmera, the learned counsel

appearing for the respondent accused has strongly objected

the present appeal and submitted that there is no any illegality

or perversity in the impugned judgment and order passed by

the Trial Court and therefore, in exercising powers under

Section 378(1)(3) of Cr.P.C. this Court has very limited scope to

interfere in the findings recorded by the Trial Court. She has

submitted that after going through the depositions of the

witnesses and after going through the detailed examination of

the evidence and hearing the arguments led by both the sides,

the Trial Court has passed the impugned judgment and order,

which is in consonance with the facts of the present case and

in accordance with law and there is no any illegality or any

erroneous findings recorded by the Trial Court. She has further

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submitted that the prosecution has suppressed the genesis

and with a vengeance the present case is filed against the

respondent accused for an ulterior motive on the part of PW-2

as his contract was cancelled by PW-5 prior to the date of the

registration of the FIR and since he did not collect his cheques

for the period of December, 2001 and January, 2002, only on

08.02.2002 he visited the office of the present respondent and

collected the cheques in the morning and thereafter, the so-

called trap was arranged with the help of the informant PW-2

and therefore, the Trial Court has rightly disbelieved the said

facts and appreciated the evidence led by the prosecution

which is in consonance with the settled principles of law and

there is no reason to interfere in the findings recorded by the

Trial Court which was recorded after demeanour of the

witnesses.

5.1 Ms.Ajmera has further submitted that the prosecution has

suppressed the genesis, infact, the informant and the person

who has recorded the FIR were not even shown as witnesses to

the incident and not examined by the prosecution. She has

also further submitted that infact, PW-2 is not the informant

and he had not registered the FIR and the FIR was registered

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by one Mr.N.B. Koralwala, P.I., A.C.B. Police Station, Bharuch

and he wanted to arrange the trap and therefore, he took the

help of PW-2 and arranged the decoy, wherein, the so-called

incident of demand, acceptance and recovery was alleged to

have not been proved against the present respondent accused.

She has also submitted that from the reading of the evidence

of PW-3 Mr.Koralwala, being an informant, he has categorically

admitted in his deposition that PW-2 had gone to the office of

PW-3 and met him and had agreed to give support to arrange

the decoy for the alleged illegal gratification and the demand

raised by the present respondent accused of Rs.100/- from PW-

2 and therefore, a serious contradiction is found in the

depositions of PW-2 and PW-3 and the Trial court has rightly

considered the evidence in its true and proper spirit while

passing the impugned judgment and order of acquittal.

Learned advocate Ms.Ajmera has also submitted that even the

prosecution has not established the demand in unambiguous

terms and therefore, the Trial court has rightly disbelieved the

case of the prosecution while passing the impugned judgment

and order of acquittal and has passed the order in consonance

with the provisions of settled legal principles and, therefore, no

interference is required to be called for in the present appeal

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and the present appeal may be dismissed.

6. I have heard the learned counsel appearing for the

respective parties and I have also perused the evidence of the

prosecution witnesses in detail and I have gone through the

detailed examination of the depositions of the witnesses. Now,

it is settled principles of law that if two views are possible, then

one which is favourable to the accused persons, are required

to be adopted by the Court, until and unless there is any

perversity or irregularity or any illegality is found in the

judgment, the appellate Court while exercising powers under

Section 378(1)(3) of Cr.P.C. should not interfere in the

judgment of the Trial Court which is passed after considering

the oral as well as the documentary evidence led by the

prosecution before the Trial Court. After recording the

demeanour of the witnesses and after hearing the arguments

advanced by both the sides, the Trial Court has come to the

conclusion that the prosecution was unable to prove the

charge levelled against the respondent accused. In light of

that, the appellate Court should not interfere in the findings

recorded by the Trial court and therefore, the Trial Court has

rightly recorded the acquittal in favour of the respondent

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accused and therefore, no interference is required to be called

for in the present appeal.

6.1 The story put forward by the prosecution that on

08.02.2002, PW-3, P.I., A.C.B. Police Station, Bharuch had

received some information with regard to the illegal

gratification demanded by the office of the respondent

accused. Though PW-3, who was in charge of A.C.B. Police

Station, had received such information, he had not reduced the

information in writing and not posted in the station diary. In his

deposition, he has categorically admitted that neither he had

reduced in writing the said information in the station diary nor

he had put any note of such information, and while he was in

search of a person who can help in the decoy, PW-2 who was

having authorization to run mid-day meal scheme in the village

Amanzer, met PW-3 and he informed that when he went to the

office of respondent accused to collect his cheques for the

month of December, 2001 and January, 2002, the respondent

accused while handing over the cheques has demanded

Rs.100/- towards illegal gratification but, since he was not

having Rs.100/- in his pocket, the respondent accused had

asked him to pay the said amount after realization of the

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cheques and that is how he left the office of respondent

accused after collecting cheques, and since he did not want to

pay the said amount, he informed the said fact to PW-3 and on

the basis of the information, PW-3 had arranged the decoy and

he called the independent panchas and thereafter they had

gone to the office of the respondent accused and in presence

of the panchas the respondent accused had demanded illegal

gratification. The said fact is not supported by either of the

witnesses. In his cross-examination, he has admitted that the

contract / authorization to run mid-day meal scheme in favour

of PW-2 was already cancelled in the month of December and

written intimation to that effect was given PW-5 but, PW-5 had

not given a proper reply and in evasive manner he had

deposed that he was not aware as to whether any intimation

was issued by him or not and if issued, on which day such

intimation was issued for cancelling the authorization in favour

of PW-2.

6.2 The defence has examined DW-1 - Shamsing Jagabhai

Chaudhary (Exh.-38) who has deposed that he had brought the

letter alongwith the circular issued by the State Government at

Exh.-35. From the bare perusal of the circular, more

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particularly, clause no.12 of that circular, there was a clear

mention that in the circumstances given below, the persons

are not entitled for the authorization to run mid-day meal

scheme or even appointed as cook or helper to run the

scheme. Though this fact was within the knowledge of PW-5,

he issued letter dated 31.12.2001, wherein, he had specifically

mentioned that on 23.12.2001, the wife of PW-2 was elected as

a member of village panchayat and therefore, being a family

member of the member of the panchayat, he was not entitled

to hold the authorization thereafter, and hence, authorization

was cancelled by letter dated 31.12.2001, which is signed by

PW-5. However, he had not brought all these facts before the

Trial Court in oral evidence and has given an evasive reply to

the questions raised by the defence and therefore, the Trial

Court has rightly discarded and disbelieved the case of the

prosecution which is based on such evidence, which does not

inspire any confidence and not trustworthy and not believable

and therefore, the Trial Court has not committed any error

whatsoever while passing the impugned judgment and order of

acquittal in favour of the respondent accused.

6.3 It is also relevant to note herein that the authorization

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was granted in favour of PW-2 since 1991 onwards and during

this long tenure, not a single occasion any illegal gratification

or demand asked by the present respondent accused. He has

admitted that prior to the date of registration of the FIR, he

had never made any complaint to PW-5 being head of the

office of Mamlatdar at Jagadiya. Though even 191

authorization was granted in favour of different persons for

running this scheme of mid-day meal in the village concerned,

they had not raised any objection and/or filed any complaint

whatsoever for illegal gratification or demand and hence, there

is no reason to disbelieve the said facts as stated by PW-5. The

said aspect was disbelieved by the Trial Court in its true and

proper spirit while discussing the evidence of PW-5 in

paragraph 10 onwards of the impugned judgment.

6.4 PW-6 - Rajdhar Dolatrao Marathi (Exh.-33) being an

Investigating Officer, in his deposition, more particularly, in his

cross-examination, has admitted that he was not shown as a

witness in the charge-sheet and was not examined by the

prosecution, for the reasons best known to the I.O. He has

categorically stated that he was not shown as a witness in the

charge-sheet. He has also admitted the fact that out of 191

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persons who were authorized for running the scheme of mid-

day meal, no evidence was collected with regard to any illegal

gratification or demand raised by the present respondent

accused, and therefore, the Trial Court has rightly discussed

the evidence of the witnesses in detail and after detailed

examination and recording their demeanour, the Court has

observed that the prosecution has failed to establish the case

against the present respondent accused beyond reasonable

doubts and hence, the Trial Court has rightly passed the

impugned judgment and order of acquittal in favour of the

respondent accused. If this Court believes the case for

acceptance and recovery from the respondent accused, then

also, it does not constitute the offence of illegal gratification as

enunciated by the Hon'ble Apex Court in the case of Neeraj

Datta (Supra) that mere recovery of the tainted currency

notes from the possession of the accused is not sufficient to

prove the case against the accused with regard to the illegal

demand or gratification and hence, the Trial Court has not

committed any error or any illegality while recording the

findings which is otherwise in consonance with the settled

legal principles. It appears from the record that the trapping

officer has registered the FIR, drawn the panchnama and even

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filed the report under Section 57 of the Cr.P.C. before the

Higher Authority and recorded the statements of the

witnesses, which is against the settled principle of law as the

person who has registered the FIR and investigated the case,

he is an interested witness to see that his case is any how

proved against the accused beyond reasonable doubt. It is

worthwhile to refer to and rely upon the decision of this Court

in the case of Kanubhai Kantibhai Patel Vs. State of

Gujarat reported in 1998 (1) G.L.H. 924, wherein this

Court has held and observed in paragraph no.5 as under :-

"5. Before I proceed to consider the evidence on the point, i may deal with one point going to the root of the case. The supreme Court in the case of Bhagwansingh v. The State of Rajasthan A. I. R. 1976 S. C. 985 has held that if every thing is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating officer, search and seizure were also made by the same Investigating Officer and thereafter the investigation was also carried out by the same Investigating Officer till the charge- sheet was filed. Here in the case on hand, Mr. Gadhvi the Police Inspector has done every thing in the matter right from recording of the complaint till the charge-sheet was filed. When that is the case the credibility of the case of the prosecution is certainly suspicious and on that count the prosecution must fail. Even if this point tarnishing the case of the prosecution is overlooked, I see no justification to maintain the order of conviction and that is on the

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ground of non-establishment of the case of demand and acceptance."

6.5 It is well settled that while dealing with the acquittal

appeal, while exercising powers under Section 378(1)(3), the

scope and ambit of the powers to the Appellate Court while

dealing with the acquittal appeal is as enunciated by the Apex

Court in case of Chandrappa and other vs. State of

Karnataka, reported in [2007] 4 SCC 415 in paragraph 42

is very limited. Of course, the Appellate Court has to re-

appreciate and re-examine all the evidence which is recorded

by the Trial Court, and on perusal of the said evidence and

examination of the evidence recorded by the Trial Court, if any

perversity or infirmity is found in the evidence, then in that

case only, the Appellate Court can exercise the powers under