The State Of Gujarat vs Sevakram Narandas Debe
2023 Latest Caselaw 1433 Guj

     R/CR.A/162/2007                                 JUDGMENT DATED: 13/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 162 of 2007


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                         sd/-

==========================================================

1     Whether Reporters of Local Papers may be allowed                    No
      to see the judgment ?

2     To be referred to the Reporter or not ?                             No

3     Whether their Lordships wish to see the fair copy                   No
      of the judgment ?

4     Whether this case involves a substantial question                   No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                             THE STATE OF GUJARAT
                                    Versus
                       SEVAKRAM NARANDAS DEBE & 1 other(s)
==========================================================
Appearance:
MS JIRGA JHAVERI, LD.ADDL. PUBLIC PROSECUTOR for the Appellant(s).
MR MONAL S CHAGLANI(10240) for the Opponent(s)/Respondent(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                 Date : 13/02/2023

                                ORAL JUDGMENT

1. This appeal is preferred by the State of Gujarat under Section 378(3) of Code of Criminal Procedure, 1973 ("The Code" for short) against the judgment and order of acquittal dated 28.11.2006, recorded by learned Additional Sessions

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

Judge and Fast Track Court, Junagadh in Special Case No.4 of 1997, wherein, the learned trial Court acquitted the respondent

- accused from the charges of the offences punishable under Sections 7, 12, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short).

2. Brief facts leading to the prosecution case is that, both respondents no.1 and no.2 herein, at the relevant time were posted at 'octroi naka' Junaghadh. On 16.07.1996, respondent no.1 intercepted 'chakado rikshow' driven by Rajeshbhai Pragjibhai and asked for the bill for the soda bottles, he was carrying in rickshow. As the driver of 'rickshow' was not having the bill, respondent no.1 ask Rs.200/- as deposit. It was case of the prosecution that in response thereto driver of rickshow told respondent no.1 that he had only Rs.100/- and thereafter the amount of Rs.100 was taken by respondentno.1 and given to respondent no.2. Despite acceptance of Rs. 100/- as deposit, no receipt was given either by respondent.no.1 or respondent no.2. Therefore, based on the information received, a complaint came to be filed against respondent no.1 and respondent no.2 by Mr. J.R.Vala, police inspector ACB, police station for accepting illegal gratification. The trap was arranged by Mr. Vala, P.I., where respondent no. 1 and 2 were caught by taking Rs.100/- without giving any receipt.

Necessary investigation was carried out and statements of

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

several witnesses were recorded. Pursuant to the investigation, charge-sheet came to be filed before the learned Special Judge, where the case was registered as Special Case No.4 of 1997, for the offences punishable under Sections 7, 12, 13(1)(d) read with 13(2) of the Act. The trial was initiated against the respondents.

3. To prove the case against the present respondents, the prosecution has examined in all six witnesses and also produced several documentary evidences.

4. At the end of trial, after recording the statement of respondents under Section 313 of the Cr.P.C. and after hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted respondents of all the charges levelled against him by the impugned judgment and order.

5. Being aggrieved and dis-satisfied with the aforesaid judgment and order passed by learned trial Court, the appellant- State has preferred the present appeal.

6. Heard Ms.Jirga Jhaveri, learned APP for the appellant - State and Mr.Monal Chaglani, learned advocate for the respondents - accused.

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

7. Appearing for the State, learned APP Ms.Jirga Jhaveri submitted that learned trial Court had not properly appreciated the evidence on record. Referring to deposition of PW-2 at Exh-20 - Narmadashankar Manishankar Joshi (independent panch witness), she submitted that as arranged in the trap, the tainted currency notes were lying on the table of respondents and therefore, trial Court ought to have considered the said evidence, which is sufficient to establish the demand raised by the respondents. Learned APP further contended that the learned trial Court had erred in not properly appreciating the evidence led by the prosecution looking to the provisions of the Act which establishes that the prosecution had proved all the ingredients of alleged charges against the present respondents. By taking this Court to various oral and documentary evidence, learned APP further contended that the learned trial Court's order of acquittal is based on inference not warranted by facts of the present case and it is based on the presumption, which is not permitted by law. She further contended that learned trial Court had not properly appreciated oral as well as documentary evidences and committed an error in acquitting respondents from alleged offence, which requires to be reversed particularly when tainted currency notes were found from the table of respondents, which was commonly shared by them. Therefore, the respondents are required to be convicted and this appeal of the State is required to be

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

allowed.

8. On the other hand, learned advocate Mr.Monal Chaglani for the respondents - accused submitted that the complaint was falsely filed against respondents. No case is made out by the prosecution of demand and acceptance. Relying upon the deposition of P.W.-1 at Exh.19 (eye witness), he submitted that nothing concrete in relation to demand came out from his deposition. Further, PW-2 at Exh-20 - Narmadashankar Manishankar Joshi (independent panch witness), had not supported the case of prosecution in relation to demand raised. On the contrary, PW-2, deposed that he came out immediately from the office of respondents after putting tainted currency notes on the table commonly shared by respondent no.1 and no.2, and not aware of anything else. Sanctioning authority PW-4 at Exh-39, had stated that he sanctioned the prosecution based on the evidence on record. On the contrary, PW-4, deposed that for taking the goods into local limits of Nagarpalika, if the octroi amount was not paid, then at entry point the payment is required to be made and thereafter the authority is to issue receipt. Mere presence of currency notes on the table, would not support the case of prosecution for the offences, as alleged. Thus, the complainant himself had not supported the case of the prosecution and prosecution has miserably failed in proving the charges levelled against the

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

respondents. Therefore, the findings recorded by the learned trial Court is based on appreciation of correct facts and evidence on record and does not require any interference by this Court.

9. This Court has minutely perused the oral as well as documentary evidence on record and gone through the impugned judgment and order passed by the trial Court as well as paper book and evidence led by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant - State and learned advocate for respondent.

10. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415, the Hon'ble Apex Court laid down the following principles:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:

1. An appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of act and of law.

3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusion", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

4. An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

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."

11. Similar principle has been laid down by the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Ram Veer Singh, reported in 2007 AIR SCW 5553, that while exercising the appellate power even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the learned trial Court.

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:

"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.

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

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."

13. Having heard learned advocates appearing for the respective parties and having perused the impugned judgement and order as well as record and proceedings, it is found that the prosecution had failed in establishing the demand raised by the respondents. It is clear from the deposition of PW-4 at Exh-39 (sanctioning authority) that the amount was demanded by respondents towards deposit and mere lying of the amount

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

on table would not ipso facto, amount to illegal gratification under the provisions of the Act. Moreover, in this case, PW-1 had not supported the case of prosecution in relation to demand by the respondents. Further, PW-2-independent panch witness, had also deposed that as per the trap arranged, they were aware about the tainted currency notes lying on the table of respondents, commonly shared by respondents and not aware about any demand. From the deposition of PW-3 at Exh-25, and deposition of PW-6 at Exhi- 49, nothing significant came on record, which supports the case of prosecution.

14. Therefore, on overall analysis of the aforesaid evidence on record, none of the witnesses have supported the case of prosecution and therefore, it remains no evidence as to demand on record and acceptance by the respondents. Reliance placed by learned APP on deposition of PW-2 at Exh-20 (independent panch witness), remains no evidence as to demand on record and the same loses its evidential value as regards the demand and acceptance, as alleged. The evidence of independent panch witness, become meaningless as from the evidence of independent panch witnesses, nothing concrete is revealed that the respondents ever demanded any amount of illegal gratification.

R/CR.A/162/2007 JUDGMENT DATED: 13/02/2023

15. In view of the aforesaid nature of evidence, learned trial Court has rightly recorded the finding of acquittal thereby rightly acquitted the accused, which does not call for any interference of this Court. Even otherwise also, the case is covered by the decision of K. Shanthamma v. State of Telangana (supra) and on that count also, there appears no merit in the appeal. This Court finds that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal.

16. In the result, the present appeal is hereby dismissed. Record and proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety, if any, also stands discharged.

(MAUNA M. BHATT,J) DIPTI PATEL