The State Of Gujarat vs Trivedi Bharatkumar Jayantilal
2023 Latest Caselaw 1434 Guj

     R/CR.A/2245/2006                                JUDGMENT DATED: 13/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2245 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of
      the judgment ?

4     Whether this case involves a substantial question of
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

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                             THE STATE OF GUJARAT
                                     Versus
                        TRIVEDI BHARATKUMAR JAYANTILAL
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Appearance:
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR for the Appellant
MR PARAM BUCH for HRIDAY BUCH(2372) ADVOCATE for the
Respondent
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     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

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Code" for short) against the judgment and order of acquittal dated 19.10.2006, recorded by learned Special Judge, Patan in Special (A.C.B.) Case No.2 of 2003, whereby the learned trial Judge acquitted the respondent - accused of the charges, for the offences punishable under Sections 7, 12, 13(1) (d) and 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short).

2. Brief facts leading to the prosecution case is that, the complainant Baldevji Sartanji Rajput of village Siddhpur, filed a complaint before ACB Police Station, Mehsana alleging that while he was having his own "fair price shop" at village: Siddhpur, for verification of books as well as relevant records of the shop, respondent-accused demanded Rs.1,000/- per month as illegal gratification for not raising any queries towards illegalities if any, committed by him. Respondent, at the relevant time was discharging his duties as Dy. Mamlatdar (Supply) in the office of Mamlatdar, Siddhpur. As the complainant was not ready and willing to pay the illegal gratification of Rs. 1000/-demanded by respondent - accused, he filed a complaint before ACB Police Station, Mehsana. Pursuant to the complaint, a trap was arranged and during the trap, respondent - accused was caught with illegal gratification from his possession. It was further case of the prosecution that muddamal currency notes were recovered from possession

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of respondent - accused in presence of independent panchas and thereafter offences under Sections 7, 12, 13 (1) (d) and 13 (2) of the Act were registered against respondent-accused.

3. Necessary investigation was carried out and statements of several witnesses were recorded. During course of investigation the respondent was arrested and thereafter released on bail. Ultimately, charge-sheet was filed before the learned Special Judge, Patan where the case was registered as Special Corruption Case No.2 of 2003. The trial was initiated against the respondent.

4. To prove the case against present respondent, the prosecution had examined in all four witnesses and also produced several documentary evidences.

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

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

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7. Heard Ms. Jirga Jhaveri, learned APP for the appellant - and Mr. Param Buch learned advocate for Mr. Hriday Buch for the respondent - accused.

8. Appearing for the State, Ms. Jhaveri, learned APP submitted that the learned Special Judge had not properly appreciated the evidence and learned Special Judge ought to have held that the evidence of independent panch was sufficient to establish the demand. Referring to the deposition of P.W. 2 at Exh.17 (independent panch witness), she submitted that the tainted notes were recovered from the respondent and the serial numbers of currency notes also matched, therefore the learned trial Judge had erred in not considering the said evidence. She, therefore, contended that the judgment and order of learned trial Court is contrary to the provisions of law and the learned trial court had erred in not properly appreciating the evidence led by prosecution looking to the provisions of the Act. The prosecution, had proved all the ingredients of alleged charges against respondent. By taking this Court further to various oral and documentary evidence, she submitted that the learned trial Court's order of acquittal is based on inference not warranted by the facts of the present case and it is based on presumption which is not permitted by law. Further, the oral as well as documentary evidence on record shows that the learned trial

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Court had committed an error by acquitting the respondent, particularly, when the recovery was established and therefore, it committed an error by acquitting the respondent from the alleged offence under Sections 7, 12, 13 (1) (d) and 13(2) of the Act. Thus, the judgment and order of the learned trial Court is required to be reversed particularly, when the respondent was caught having currency notes in his possession.

9. On the other hand, learned advocate Mr. Param Buch for learned advocate Mr. Hriday Buch, for the respondent submitted that the prosecution had failed in establishing the demand raised, by leading any evidence in support of the same. Relying upon the deposition of P.W.1 Exh.14, he submitted that there was nothing on record to support the case of prosecution that there were some irregularities found from the records of shop or in running business of 'fair price shop' by the complainant, which prompted the respondent to ask for illegal gratification. In his deposition, P.W.1 (complainant) had stated that for not doing any harassment in running his fair price shop, the respondent demanded illegal gratification of Rs.1,000/-. Moreover, the complainant deposed that as designed in the trap, through telephone he called respondent to the table and placed the tainted currency notes in the pocket of respondent, therefore, the demand could not be proved as alleged. Further, P.W. 2 at Exh.17 in his cross-

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examination as well as P.W. 3 at Exh.24 (trapping officer) in his deposition had not supported the case of prosecution in relation to demand raised. Referring to deposition of P.W.4 at Exh.26, Shri Umedsingh Ravaji Thakore who was P.I. (ACB), he submitted that he had stated that no irregularity was found from the business run by the complainant, at the time of incident or prior thereto. As per record, the muddamal shirt was not sent for FSL report and is indicative of procedural irregularities by the prosecution. He thus, submitted that since prosecution failed in establishing the demand, acceptance and recovery, the findings recorded by the learned trial Court are on proper appreciation of evidence on record. He further submitted that the learned trial Court had rightly recorded that the sanction by the sanctioning authority was obtained prior to FSL report and, therefore the sanction was accorded without application of mind and thereby the prosecution failed in following due procedure contemplated under the provisions of the Act. He, therefore, submitted that the judgment and order dated 19.10.2006 of learned trial Judge is based on appreciation of correct facts and evidence on record and does not require any interference by this Court.

10. 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

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as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant - State and learned advocate for the respondent.

11. 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 considered the above decisions, in our 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.

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.

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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 acquittal. Court in an appeal against Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

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

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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."

12. Further in the case of M.R.Purushotham v. State of Karnataka, reported in (2015) 3 SCC 247, it has been held as under:

"7. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three Judge bench of this Court in B. Jayaraj vs. State of Andhra Pradesh reported in 2014(4) Scale 81 is relevant and it is held as follows :

"8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned.

The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he

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had stated in the initial complaint (Exbt.P-

11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section

7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)

(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."

13. Further in the recent decision in the case of K. Shanthamma v. State of Telangana reported in (2022) 4 SCC 574 it has been held as under:

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"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."

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14. In facts of the present case, as can be seen, the prosecution failed in establishing its case in relation to any demand raised by the respondent. It is clear from the cross- examination of P.W. 1 (complainant) at Exh.14 that the son of respondent was an insurance agent and some amount was required to be paid towards premium of the insurance policy of his son and that may be reason for which, the complainant was required to pay some amount to the respondent. In this context, the trial Court had recorded that nothing could be established by the prosecution that for doing certain work, the demand of illegal gratification was raised by respondent. Even from the deposition of independent panch witness, nothing came on record to establish the demand. The independent panch witness had stated that as the trap was arranged, they participated. Therefore, on overall anyalsis of evidence on record when the complainant himself had stated in his cross- examination that some amount was required to be paid to the son of respondent towards payment of premium for the insurance policy which he took, it is very difficult to concur that the amount as alleged in the complaint was demanded by respondent from the complainant. Even from the deposition of independent panchas P.W.2 and P.W.3, nothing concrete came on record to support the case of prosecution in relation to demand raised. Therefore, the depositions of P.W. 2, P.W.3 and P.W.4 looses its evidential value as regard to the demand

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raised by the respondent.

15. In view of the aforesaid nature of evidence, learned Special Judge has rightly recorded the finding of acquittal thereby rightly acquitted the accused which calls for no interference of this Court. Even otherwise also, the case is covered by the decision of K. Shanthamma (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.

(MAUNA M. BHATT,J) NAIR SMITA V.