State Of Gujarat vs Rajeshkumar Babulal Solanki ...
2024 Latest Caselaw 7723 Guj

Gujarat High Court

State Of Gujarat vs Rajeshkumar Babulal Solanki ... on 1 August, 2024

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     R/CR.A/1394/2009                              JUDGMENT DATED: 01/08/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CRIMINAL APPEAL NO. 1394 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO                                     Sd/-

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

2     To be referred to the Reporter or not ?                          YES

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

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

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                       STATE OF GUJARAT
                             Versus
    RAJESHKUMAR BABULAL SOLANKI ASST.ENGINEER CLASS-II, TOWN
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
==================================================
    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                             Date : 01/08/2024
                             ORAL JUDGMENT

1] This appeal has been filed by the appellant-State

under Section 378(1)(3) of Code of Criminal Procedure, 1973

against the judgment and order of acquittal passed by the

learned Special Judge & Presiding Officer, Fast Track Court No.

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5, Rajkot (hereinafter referred to as "the learned trial Court") in

Special (ACB) Case No. 11 of 2000 on 29/04/2009, whereby the

learned trial Court has acquitted the respondent for the offence

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

Prevention of Corruption Act, 1988 (hereafter referred to as

"the PC Act" for short). The respondent is hereinafter referred

to as the accused as he stood in the original case for the sake of

convenience, clarity and brevity.

2] The brief facts that emerge from the record of the

case are as under:

2.1] That the accused was working as an Assistant

Engineer Class II in the Town Planning Branch at Rajkot

Municipal Corporation and was a public servant. That the

complainant Vinodbhai Naranbhai Vikani was doing the

business of construction in the name of Amar Agency and had

started construction of a commercial building in Manhar Plot,

Sheri No. 1 in the name of "Amar Arcade". That the plans of the

building were prepared in April 1999 and sent for permission to

the Town Planning Branch, Rajkot Municipal Corporation and

the plans were at the table of the accused as an overseer. That

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generally the plans were passed within 90 days, but the accused

was pointing out innumerable objections in the plan and

demanding illegal gratification. That, on 6/1/2000, the accused

went to the site of the complainant between 10:00 AM and

10:30 AM and got angry and threatened the complainant that he

was not giving him the money but as the work of completion

was with him. That he would block the completion work. That

the accused demanded for an amount of ₹15,000/- as illegal

gratification and as the complainant did not have the amount

the accused told him that he would come between 06:00 and

07:00 PM at the site and take the amount. That the complainant

did not want to pay the amount of illegal gratification and went

to the ACB Police Station, Rajkot and filed the complaint, which

was registered at I-C.R.No. 1 of 2000 on 6/1/2000 under

Sections 7, 13(1)(d) and 13 (2) of the PC act.

2.2] That the Trap Laying Officer called the panch

witnesses and the complainant gave thirty currency notes of the

denomination of ₹500/- Each to the Trap Laying Officer. That

Head Constable S.D.Gohil, under the instructions of the Trap

Laying Officer, explained the characteristics of anthracene

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powder and ultraviolet lamp to the complainant and the panch

witnesses and the demonstration of anthracene powder and

ultraviolet lamp was done in the presence of the complainant

and the panch witnesses and all the thirty currency notes were

smeared with anthracene powder on both sides and placed in

the left shirt pocket of the complainant.

2.3] That necessary instructions were given to the

complainant and the panch witnesses and the panchnama Part -

I was drawn and the trap was arranged. As decided, the

complainant, panch witnesses, and the members of the raiding

party sat in Government Jeep No. GJ-1-G-2988 at 17:40 hours

and left from the ACB office to Limda Chowk, Moti Tanki

Chowk, Gymkhana, Vidyanagar Main Road and reached the

hospital of Dr. Popatni at 19:15 hours and the complainant and

the panch witness No. 1 went walking towards Manhar Plot

Sheri No. 1 at the site of the construction of the complainant.

That the other panch witness and the members of the raiding

party stood scattered around. That at around 19:05 hours, the

accused came on a Luna moped and the complainant and the

accused had a conversation and the accused demanded the

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amount of illegal gratification, and the complainant gave the

tainted currency notes from his left shirt pocket to the accused

who accepted it with his right hand and put them in the right

pocket of his jeans. That the complainant gave the

predetermined signal and the members of the raiding party

came and caught the accused red-handed. That the tests were

done and the hands of the complainant was found with traces of

anthracene powder and the panchnama was drawn and the

amount was seized.

2.4] The Investigating Officer recorded the statements of

the connected witnesses and after the documents of the service

record of the accused as also the order of sanction for

prosecution was received, the chargesheet came to be filed

before the Sessions Court Rajkot, which was registered as

Special ACB Case No. 11 of 2000.

2.5] That the accused was duly served with the summons

and the accused appeared before the learned trial Court and

after the due procedure of Section 207 of the Code of Criminal

Procedure, 1973 was followed, a charge at Exh: 22 was framed

against the accused and the statement of the accused was

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recorded at Exh: 25. The accused denied all contents of the

charge and the evidence of the prosecution was taken on

record.

2.4] The prosecution has produced the following oral as

well as documentary evidences in support of their case.

                         ORAL EVIDENCE

Sr.                     Particulars                            Exhs
No.








                     DOCUMENTARY EVIDENCES

Sr.             Description of the documents                    Exh:
No.






2.5]          After the closing pursis was filed by the learned

Additional Public Prosecutor at Exh:68, the further statement of

the accused under Section 313 of the Code Of Criminal

Procedure, 1973 was recorded, wherein, the accused denied all

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the evidence of the prosecution and after the arguments of the

learned Additional Public Prosecutor and the learned Advocate

for the accused were heard, the learned trial Court has passed

the impugned judgment and order of acquittal.

3] Being aggrieved and dissatisfied with the said

judgement and order of acquittal, the appellant-State has filed

the present appeal mainly stating that the judgement and order

of acquittal is contrary to law and evidence on record and the

trial Court has erred in holding that the prosecution has not

proved its case on reasonable doubts. That the prosecution has

produced the oral evidence of six witnesses and four

documentary evidence in support of their case, but the learned

trial Court has not appreciated all the evidence in true

perspective. That the prosecution has proved beyond all

reasonable doubts that the respondent accepted the bribe

amount of ₹15000/- from the complainant other than his legal

remuneration by misusing his post as a government servant but

the learned trial Court has disbelieved the same. That the

complainant has fully supported the case of the prosecution and

narrated all the details in the FIR and there is ample material on

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record of the case to show that there was demand and

acceptance of money by the respondent and there was material

to show that, powder was found on the hands of the respondent

and pocket of the pant of the respondent. The panch witness

and the trap laying officer have also supported the case of the

prosecution and the learned trial Court ought to have given the

emphasis to the evidence of the complainant, who himself has

stated that he had put the bribe amount in the hands of the

respondent and the respondent had accepted the same. That

when the tainted currency notes were recovered from the

respondent with other circumstance it leads to the conclusion

that the amount of illegal gratification was accepted from the

complainant and in view of the provisions contained in Section

20 of the PC Act, the a trial Court ought to have held that the

prosecution has proved the case beyond reasonable doubts.

That the impugned judgement and order of acquittal is

improper, perverse and bad in law and is required to be

quashed and set aside.

4] Heard learned Additional Public Prosecutor

appearing for the appellate -State. Though served, the

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respondent has not appeared either in person or through an

advocate. Perused the impugned judgement in order of acquittal

and have reappreciated the entire evidence produced on record

by the prosecution.

5] At the outset, before discussing the facts of the

present case, it would be appropriate to refer to the

observations of the Apex Court in the case of Mallappa & Ors.

Vs. State of Karnataka passed in Criminal Appeal No.1162

of 2011 on 12.02.2024, wherein, the Apex Court has observed

in Para Nos. 24 to 26, as under:

24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal.

The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re- appreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration

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is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka,

"13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:

"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-

"7. It is well settled that: -

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7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.)

7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."

6.1] In Para - 36, the Apex Court, in the case of Mallappa

(Supra), has observed as under:-

"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-

(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.

6.2] The Apex Court, in the case of Neeraj Dutta Vs.

State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme

(SC) 1248, has observed in Para No. 68 as under:

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

-

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (I) and(ii) of the Act.

(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i)

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and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1) (d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.

(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 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.

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the Court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the Court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d)

(i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."

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7] The law with regard to acquittal appeal is well

crystallized and in acquittal appeals, there is a presumption of

innocence in favour of the accused that has finally culminated

when a case ends in an acquittal. That the learned trial Court

has appreciated all the evidence and when the learned trial

Court has come to a conclusion that the prosecution has not

proved the case beyond reasonable doubts, the presumption of

innocence in favour of the accused gets strengthened. That

there is no inhibition to reappreciate the evidence by the

appellate Court but if after reappreciation, the view taken by

the learned Trial Court was a possible view, there is no reason

for the Appellate Court to interfere in the same.

8] To bring home the charge against the accused, the

prosecution has examined prosecution witness No. 1 Jagdish

Prasad Nandkishor Gupta at Exh: 29 and the witness is the

competent authority, who has given the order of sanction for

prosecution, which is produced at Exh: 30. The witness has,

during the cross examination by the learned advocate for the

accused, stated that a draft of the order of prosecution was

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prepared from the ACB Office and the order of sanction for

prosecution was not typed in his office. That, in the order of

sanction for prosecution produced at Exh: 30, the place where

the round seal of Rajkot Municipal Corporation was to be affixed

was typed and sent.

8.1] The prosecution has examined prosecution witness

No. 2 Vinodbhai Narandas Vikani at Exh: 52 and the witness is

the complainant, who has deposed as per the FIR and supported

the case of the prosecution. The complainant has narrated all

the incident that had taken place at the ACB office when he had

gone on 6/1/2000, and the panch witnesses were called and the

demonstration of anthracene powder and ultraviolet lamp were

done in their presence and he had given thirty notes of the

denomination of ₹500/- each which were smeared with

anthracene powder and placed in the right pocket of his shirt.

That as per the instructions of the Police Inspector, he had gone

along with the panch witness to his site and waited for the

accused and after one hour, the accused came. That, at that

time, the accused demanded for the amount and he asked him

what amount was to be paid and the accused told him to give

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₹15,000/- that was to be given. That he took the tainted

currency notes and gave it to the accused and gave the

predetermine signal and the members of the raiding party came

and caught the accused. That in the test of ultraviolet lamp, the

traces of anthracene powder were found on the hands of the

accused.

During the cross-examination by the learned

advocate for the accused, the witnesses has stated that the site

was in his ownership but he did not receive the permission for

construction. That there was query in the proposed plan and the

plans were presented in the name of the old house owner. The

plans were rejected twice earlier as the objections were not

removed and prior to year 1999, his plans were sanctioned but

he did not give any amount of illegal gratification or gifts at that

time. That the officers of the Rajkot Municipal Corporation

visited the site to verify whether the construction is being done

as per the plans and if the constructions were not as per the

plans, the officers of the Corporation would stop the

construction by an oral order, and if inspite of that, the

construction would go on, a written order stopping the

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construction would follow. That there was an injunction order

for construction at his site, which was not vacated and if the

construction was continued, the plans certificate would not be

given. That his second plan was submitted but no amount of

illegal gratification was demanded and the injunction was given

on 20/8/1999 and in that it was mentioned that the construction

was done without the permission and the existing house was

illegally removed without permission and the digging of the

cellar/basement was undertaken and an opportunity for

explanation was given but he did not give any explanation. That

if the house is being demolished, permission is required to be

taken from the Municipal Corporation to keep debris on the

road. That Manhar Plot Sheri No. 1 was a very narrow road

where two vehicles would not pass and the miller for the cement

was occupying half of the road and iron and construction

material was placed on the road. That the public were facing

great difficulties and a complaint was filed in the Rajkot

Municipal Corporation. That the officers of the Corporation had

told him to remove all the materials and the accused had told

him to remove the material as complaints were filed against

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him. That even at that time that accused did not demand for any

amount of illegal gratification. That his plans were sanctioned

one month before the filing of the complaint. That he had filed

the complaint as he thought that the accused would harass him

in future and if he filed the complaint, all his work would be

concluded smoothly. That, at the time of the trap, it was dark

and he was having a conversation with the accused. That the

work of completion certificate would not come to the table of

the accused.

8.2] The prosecution has examined prosecution witness

No. 3 Gunvantbhai Govindbhai Makwana at Exh: 58 and the

witness is the panch witness who has fully supported the case of

the prosecution and has narrated in detail all the incident that

had occurred on 6/1/2000 when he and the other panch witness

Manharlal Labhshankar Vyas had gone to the ACB office. The

witness has narrated about being introduced to the complainant

and the demonstration of anthracene powder and ultraviolet

lamp was conducted and thereafter the complainant had given

thirty currency notes of the denomination of ₹500/- each, which

were smeared with anthracene powder on both sides and placed

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in the left shirt pocket of the complainant and the trap was

arranged. As instructed, the witness had gone along with the

complainant to his site and they sat in vacant chairs and waited

for the complainant, who came at 07:05 PM on a Luna mopped.

That the complainant and the accused had a conversation and

the accused asked the complainant what happened to ₹15,000/-

what had to be paid to him and the complainant took the tainted

currency notes with his right hand and gave it to the accused,

who accepted it and put it in the right front pocket of his jeans.

The complainant gave the predetermined signal and the

members of the raiding party came and caught the accused.

That the tests were done and the tips of the fingers of the

accused were found with light blue shining lights. That the

panch no. 2 was instructed to remove the tainted currency notes

from the pocket of the accused and the panchnama produced at

Exh: 60 and the seizure memo produced at Exh: 59 were

prepared.

During the cross examination by the learned

advocate for the accused, the witness has stated that he does

not know, who was dictating the panchnama and who was

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writing the panchnama but both the panch witnesses did not

dictate the panchnama and they had seen the panchnama being

written. That the panchnama is signed with a blue pen and the

pant was signed with black pen and before the trap, the

characteristics of anthracene powder were not explained to

them. That, after the trap, they waited for about an hour, and

during this time, the ACB officers were writing something but

he or the other panch witnesses were not present in the room.

That the accused was with the Police Officer and after the

writing was completed, their signatures were taken. That in the

seizure memo, it is mentioned where the currency notes of

₹500/- were seized from the accused. That if he did not depose

as per the panchnama, his job would be in peril and hence he

had read and memorized everything.

8.3] The prosecution has examined prosecution witness

No. 4 Arvindbhai Ranchhodbhai Patel at Exh: 60 and the witness

is the Investigating Officer, who had taken over the

investigation from Police Inspector Mr.O.B.Sharma on

10/1/2000. That he had made the necessary correspondence for

the service record of the accused and had prepared the draft of

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the sanction for prosecution and sent it to the Director, ACB

Ahmedabad. That as he was transferred, the investigation was

handed over to the Police Inspector Mr.O.B.Sharma.

During the cross-examination by the learned

advocate for the accused, the witness has stated that during

investigation, it was found that the plans of the complainant

were rejected twice and there was an injunction order against

the construction. That in the complaint, there was no details

about the place and time when the amount of illegal

gratification was demanded and the complainant did not clarify

the same in his statement recorded by the Investigating Officer.

8.4] The prosecution has examined prosecution witness

No. 5 Om Prakash Barusingh Sharma at Exh:62, and the witness

is the Trap Laying Officer who has fully supported the case of

the prosecution and has narrated in great detail all the

procedures that he had undertaken on 6/1/2000 when the

complainant came to the ACB office and he had recorded the

complaint of the complainant and thereafter called the panch

witnesses and the demonstration of anthracene powder and

ultraviolet lamp was done by Head Constable Santubha Gohil.

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That the complainant had given thirty currency notes of the

denomination of ₹500/- each, which were smeared with

anthracene powder by Head Constable Santubha Gohil and the

tainted currency notes were placed in the left shirt pocket of the

complainant and the instructions were given by him to the

complainant and the panch witnesses. The witness has stated

that thereafter they left in the government vehicle and reached

near Dr. Poptani's hospital and at around 09:00 PM, the

predetermined signal was given by the complainant and he

rushed along with the members of the raiding party and the

panch witness No. 2. The witness has stated that the test of

ultraviolet lamp was conducted on the hands of the accused and

the fingers and the thumb of right hand and portion of the palm

was found with traces of anthracene powders. That anthracene

powder was also found from the edge of the right side pocket of

the jeans of the accused. That the procedure of panchnama and

seizure memo was done and thereafter the investigation was

handed over to the Police Inspector, Mr A.R. Patel.

During the cross examination by the learned

advocate for the accused, the witness has stated that in the

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complaint produced at Exh: 53, there is no mention about the

date, month and year of the demand and no demand for illegal

gratification was made when the first plans were placed till the

plans were sanctioned. That, as per the complaint, after the

demand of illegal gratification, the plan was rejected, but the

complainant did not tell him these facts. That the complainant

did not state that he had earlier placed the plans twice and they

were rejected and the plans were sanctioned when he placed

them for the third time. That the initial demand was in April

1999, and the plans were sanctioned one month before filing of

the complaint. That it is the duty of the Investigating Officer to

find out whether the work was done as the amount of bribe was

taken or whether it was done naturally. That he does not know

who had searched the accused and who had counted the amount

that was recovered. That he does not remember who had

arranged for the alternative pant of the accused and the

panchnama does not say that the panch No. 1 was asked about

the trap or acceptance.

8.5] The prosecution has examined prosecution witness

No. 6 Jagdishchandra Prabhulal Kotadiya at Exh: 67 and the

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witness is the Investigating Officer who had filled the charge

sheet before the Sessions Court.

9] On minute appreciation of the entire evidence of the

prosecution, the infirmities in the case of the prosecution have

come on record and there are major contradictions in the

evidence of the complainant as well as panchwitness. It has

emerged on record that the plan of the building of the

complainant was sanctioned one month prior to filing of the

complaint and it is the say of the complainant that the accused

had threatened to create obstacles in giving the completion

certificate but it has come on record that the work of completion

certificate was not with the accused. That in fact, the complaint

produce at Exh:53 does not give the details about the time, date

and place of demand of illegal gratification and even as far as

the demand at the time of trap is concerned, there is no iota of

evidence that the accused had demanded for the amount of

illegal gratification when he came to the site of the complainant.

What has emerged on record is that the Rajkot Municipal

Corporation had given an injunction against the construction of

the complainant and the complainant had demolished the old

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house and dug the basement without the permission of Rajkot

Municipal Corporation. That the complainant had also started

the construction work without the permission of the Rajkot

Municipal Corporation and the road where the construction was

being done was a narrow road and the complainant had placed

his cement miller, iron and debries on the road, which was

causing a great inconvenience to the public and a number of

complaints were received against the complainant in the Rajkot

Municipal Corporation. That the officers of Rajkot Municipal

Corporation were authorized to check and verify whether the

construction is being carried out as per the plans and on the

date of the trap, there was an injunction against the

construction but the complainant was carrying on with the

constructions.

10] The learned trial Court has in the impugned

judgment and order discussed the entire evidence adduced by

the prosecution and has discussed all the aspects and as the

factum of demand was not proved by the prosecution in the

entire evidence adduced on record, the learned trial Court

has passed the impugned judgment and order of acquittal.

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11] In view of the decision of the Apex Court in the

case of Mallappa (supra) and Neeraj Dutta (supra), this Court

is of the opinion that the learned trial Court has appreciated

the entire evidence of the prosecution and there does not

appear to be any infirmity and illegality in the impugned

judgment and order of acquittal. The learned Trial Court has

appreciated all the evidence and this Court is of the

considered opinion that the learned Trial Court was

completely justified in acquitting the accused of the charges

leveled against him. The findings recorded by the learned

Trial Court are absolutely just and proper and no illegality or

infirmity has been committed by the learned trial Court and

this Court is in complete agreement with the findings,

ultimate conclusion and the resultant order of acquittal

recorded by the learned Trial Court. This Court finds no

reason to interfere with the impugned judgment and order

and the present appeal is devoid of merits and resultantly, the

same is dismissed.

12] The impugned judgment and order dated

31/08/2005 passed by learned Special Judge & Presiding

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Officer, Fast Track Court No. 5, Rajkot in Special (ACB) Case

No. 11 of 2000 on 29/04/2009 is hereby confirmed.

13] Bail bonds stand canceled. Record and proceedings

be sent back to the concerned Trial Court forthwith.

Sd/-

(S. V. PINTO,J) VVM