State Of Gujarat vs Bhikhabhai Kalubhai Zundal(Chaudhry)
2024 Latest Caselaw 7726 Guj

Gujarat High Court

State Of Gujarat vs Bhikhabhai Kalubhai Zundal(Chaudhry) on 1 August, 2024

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     R/CR.A/1110/2008                              JUDGMENT DATED: 01/08/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CRIMINAL APPEAL NO. 1110 of 2008


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
                 BHIKHABHAI KALUBHAI ZUNDAL(CHAUDHRY)
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Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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    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

Additional Sessions Judge, 4th Fast Track Court, Banaskantha at

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Palanpur (hereinafter referred to as "the learned trial Court") in

Special (ACB) Case No. 37 of 2003 on 28/11/2007, whereby the

learned trial Court has acquitted the respondent for the offence

under Sections 7, 13 (1)(d), 1, 2, 3 and 13(2) of the Prevention

of Corruption Act, 1881, which was registered at I-C.R.No. 8 of

2002 on 18/11/2002. 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 a Talati-cum-

Mantri of Chandisar Gram Panchayat in the year 2002 and was

a public servant. That the complainant Sonsing Ramsing Parmar

residing at village Mota Taluka: Palanpur, District: Banaskantha

wanted to purchase 8 Vighas land situated in the outskirts of

village Chandisar from Maganbhai Pitambarbhai Barot, who was

the owner of the Survey No. 241 Paiki 1, in the year 1998 and

had paid an amount of ₹2500/- as agreement money. That the

name of the complainant was to be mutated in the revenue

record and the land was new tenure land, which had to be

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converted to old tenure land. That a Power Of Attorney was

given by Maganbhai Barot, his wife Shantaben and sons

Bhailalbhai and Rajubhai to Dineshbhai Pitambarbhai Barot of

Chandisar village and the complainant met the accused, who

told him that he would have to pay an amount of illegal

gratification of ₹40,000/- for converting the land to old tenure

land and other procedure as expenses would have to be paid in

all the offices. That the complainant had agreed as he did not

want his work to suffer and on 16/09/2002 a registered sale

deed was executed by Dineshbhai Barot for an amount of

₹1,18,000/-, which was registered at the Sub Register Office,

Palanpur. That the amount of ₹40,000/- was paid in the

presence of Dineshbhai Barot to the accused, and at that time,

the accused told him that the further amount of ₹500/- would be

paid and the said amount was also paid. That, thereafter as the

complainant required the copies of village Form No. 7/12 and

village Form No. 8-A, he went to the accused to demand for the

said copies but once again, the accused demanded an amount of

illegal gratification of ₹2500/- and after bargaining, the amount

was fixed at ₹2000/-. The complainant did not want to pay the

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amount of illegal gratification and went to the ACB Police

Station, Banaskantha at Palanpur and filed the complaint, which

was registered at I- C.R.No. 8 of 2002 on 18/11/2002.

2.2] The trap laying officer called the panch witnesses, and the

demonstration of phenolphthalein powder and solution of

sodium carbonate was carried out in the presence of the

complainant and the panch witnesses and the characteristics of

phenolphthalein powder and solution of sodium carbonate were

explained to them. That, Assistant Sub Inspector J.S.Joshi took

two currency notes of the denomination of ₹500/- and ten

currency notes the denomination of ₹100/- each which were

given by the complainant and smeared phenolphthalein powder

on both the sides of all the currency notes and the tainted

currency notes were placed in the left side pocket of the

complainant and the necessary instructions were given by the

Trap Laying Officer to the complainant and the panch witnesses.

That panchnama Part -I was drawn in the panch witnesses and

the Trap Laying Officer affixed their signature on the

panchnama Part-I. That the complainant, panch witnesses and

the members of the raiding party sat in Government Jeep No.

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GJ-1-G-2986 and left from Palanpur Circuit House to Guru

Nanak Chowk ST Stand Road and halted the jeep in a lane

behind the ST stand and the complainant and the panch No. 1

got down and walked to the Taluka Panchayat Office compound.

That the complainant and panch witness met the accused in the

Taluka Panchayat Office compound and came to a Cloth Store in

Vikram Commercial building, after crossing the road of Taluka

Panchayat Office compound and in front of the shop, the

accused demanded for an amount of ₹2000/- and the

complainant gave the tainted currency notes with his right hand

from his left shirt pocket and the accused accepted the amount

with his right hand. That the complainant gave the

predetermined signal and the members of the raiding party

came and caught the accused red-handed. That as the test was

not possible on that place, the tainted currency notes were

taken by the panch No. 2 under instructions of the Trap Laying

Officer and they all went to the Taluka Panchayat Office where a

room was provided by the Taluka Development Officer and the

tests were conducted and the Panchnama Part-II was drawn.

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2.3] The Investigating Officer recorded the statements of

the connected witnesses and collected the necessary documents

including the service record of the accused and after the order

of sanction for prosecution was received, a chargesheet came to

be filed before the learned Session Court at Banaskantha at

Palanpur, which was registered as Special ACB Case No. 37 of

2003.

2.4] That the accused was duly served with the summon

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: 12 was framed

against the accused and the statement of the accused was

recorded at Exh:13. The accused denied all the contents of the

charge and the evidence of the prosecution was taken on

record.

2.5] The prosecution has examined four witnesses and

has produced 23 documentary evidences in support of their case

and after the closing pursis was filed by the learned Additional

Public Prosecutor at Exh:80, the further statement of the

accused under Section 313 of the Code Of Criminal Procedure,

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1973 was recorded, wherein, the accused denied all the

evidence produced by the prosecution and mainly stated that

the accused had given an amount of ₹2,000/- to the complainant

and the said amount was returned and no amount of illegal

gratification was ever demanded or accepted by the accused

from the complainant. That the complainant has filed a false

case against him and after the arguments of the learned

Additional Public Prosecutor and the learned Advocate for the

accused were heard, the learned trial Court was pleased to pass

the impugned judgment and order of acquittal.

3] Being aggrieved and dissatisfied with the said

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

filed the present appeal mainly stating that the judgement and

order of the learned trial Court is contrary to law and evidence

on record and is required to be quashed and set aside. That the

learned trial Court has erred in holding that the prosecution has

failed to establish its case beyond reasonable doubts and the

learned trial Court without appreciating the evidence in real

perspective has acquitted the respondent. That the prosecution

witness No. 1 has narrated all the contents as mentioned in the

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complaint and nothing adverse could have been elicited, which

would render the case of the prosecution doubtful and from the

deposition of this witness, demand, acceptance and recovery

has been proved beyond reasonable doubts but merely because,

the witness has been declared hostile, the learned trial Court

has not believed the evidence of this witness. That the panch

witness and the Trap Laying Officer has fully supported the case

of the prosecution and even the test of phenolphthalein powder

was positive but the learned trial Court has not appreciated the

same properly. That there is enough evidence on record that the

tainted currency notes were recovered from the possession of

the respondent and the Forensic Science Laboratory report has

also been produced at Exhibit:62, which clearly proves the

charges level against the respondent and that is a vital piece of

evidence. That whole chain of prosecution case i.e. demand,

acceptance and recovery have been proved beyond reasonable

doubts and hence the impugned judgment and order of acquittal

is required to be quashed and set aside.

4] Heard learned Additional Public Prosecutor Ms. C.M.Shah

appearing for the appellant-State. Though served the

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respondent has not appeared either in person or through an

advocate. Perused the impugned judgment and order of

acquittal and have reappreciated the entire evidence of the

prosecution on record of the case.

5] Ms. C.M.Shah, learned Additional Public Prosecutor

appearing for the appellant-State has taken this Court through

the entire evidence and has submitted that even though the

complainant has been declared hostile and has not fully

supported the case of the prosecution, the portion of the

evidence which supports the case of the prosecution is required

to be looked into and the prosecution has proved all the

ingredients of demand, acceptance and recovery, but the

learned trial Court has misread the evidence. Learned

Additional Public Prosecutor has urged this Court to allow the

appeal and quash and set aside the impugned judgement and

order of acquittal and hold the respondent guilty for the said

offences.

6] 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

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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 concretized 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 re-appreciate 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 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

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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 Karnataka3,

"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:

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

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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)."

7.1] 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.

7.2] 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, which reads 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,

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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) 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 inturn 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

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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."

8] As per the settled principles of law, which are very well

crystallized with regard to the interference of the Appellate

Court in acquittal appeals, the evidence produced by the

prosecution must be re-appreciated and only if there is

perversity or illegality in the impugned judgment and order, an

interference of the Appellate Court would be warranted. It is

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also settled that if two views are possible and the learned trial

Court has taken a view of acquitting the accused, the Appellate

Court should not interfere with the impugned judgment and

order and it is open for the Appellate Court to re-appreciate the

evidence.

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

prosecution has examined Prosecution Witness No. 1 Sursing

Ramsing Parmar at Exh: 31 and the witness is the complainant

and has stated that in the year 1997, he had purchased land

bearing Survey No. 241 paiki 1 of Chandisar Village and the

land was mutated in his name. That he did not undertake any

procedure before executing a sale deed and he had purchased

the land from Maganbhai Pitambarbhai Barot, who was residing

at Mumbai and had given a Power of Attorney to Dineshbhai

Viththalbhai and Dineshbhai Viththalbhai had executed a sale

deed in his favour after converting the land from new tenure

land to old tenure land. That he had gone to take the copies of

village Form No. 7/12 from the accused and the accused told

him to bring Dineshbhai Viththalbhai and come. That whenever

he required money, he would borrow money from Dineshbhai

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and Dineshbhai had taken some money from the accused and

had given to him. That when he took Dineshbhai and went to

meet the accused, the accused insulted and did not give the

copies of the revenue record and he was angry with the accused

and went to the ACB office at Palanpur and gave the complaint,

which is produced at Exhibit: 32. That the ACB Officers took

him to Circuit House, Palanpur and called the panch witnesses

and he told them that the accused was demanding ₹2,000/-.

That he, the panch witnesses and the members of the raiding

party went to the Taluka Panchayat Office and after some time

the accused came and took him to the shop but he does not

know the name of the shop or the name of the building where he

was taken. That he gave the accused ₹2,000/- but he does not

know the denomination of the currency notes and thereafter the

members of the raiding party came and the panchnama was

drawn and his signature and the signature of the accused was

taken. That the complainant has not supported the case of the

prosecution and has been declared hostile and has been cross-

examined at length by the learned Additional Public Prosecutor

and during the lengthy cross examination has refused to support

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the case of the prosecution and has not identified the currency

notes before the learned trial Court.

During the cross examination by the learned advocate for

the accused, the witness has stated that he has good relation

with Dineshbhai and Dineshbhai had spent about ₹40,000/- to

level the land and he had paid the amount to Dineshbhai in

installments. That after the land was purchased, his name was

mutated in the revenue record and his name was entered in the

revenue record two months before the case was filed. That he

had demanded for the copies from the Talati-cum-Mantri and

the Talati-cum-Mantri had given a receipt which was shown to

the witness and has been produced at Exhibit 34. That he would

take Dineshbhai whenever he had any work in Government

office and ten to fifteen days prior to the complainant, he had

gone to Dineshbhai's house to borrow some amount but

Dineshbhai was not at home and he had gone to the panchayat

office. That at that time, the accused and the staff members and

peon Kadarbhai were present. That after some time Dineshbhai

came there and he wanted to borrow ₹2,000/- and as Dineshbhai

did not have the amount, he took the amount from the accused

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and gave it to him and instructed him to return it to the accused

within fifteen days. That he did not return the amount till the

date of the trap and the accused was demanding for the amount

from him. That when he had gone to file the complaint at the

ACB Office, the Officer had dictated the complaint to the Head

Constable and at that time he and the panch witness were

seated outside.

8.2] The prosecution has examined Prosecution Witness

No. 2 Manjibhai Chelabhai Ankuya at Exhibit 52 and the witness

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

prosecution and has stated that on 18/01/2002 he along with the

other panch witness Sudhirkumar Chauhan had gone to the

Palanpur Circuit House, Room No. 4, under the instructions of

his Deputy Engineer L.A.Gadhavi. The witness has narrated all

the details after he had gone to the Circuit House including the

fact that he and other panch witness were introduced to the

complainant and the details of the complaint were explained

them and thereafter Head Constable Joshi did the

demonstration of phenolphthalein powder and solution of

sodium carbonate and explained the characteristics of

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phenolphthalein powder and solution of sodium carbonate and

thereafter the complainant gave the amount of ₹2,000/-, which

were smeared with phenolphthalein powder and placed in the

left shirt pocket of the complainant. That the necessary

instructions were given and he was instructed to remain as a

shadow witness with the complainant. That panchnama Part-I

was drawn and he and the other witness had signed on the

panchnama and thereafter they had all gone in the Government

Jeep and he and the complainant walked to the Taluka

Panchayat Office. That when they reached the Taluka Panchayat

Office, they saw the accused coming from the front and they

went to a Cloth Store after crossing the road of the Taluka

Panchayat Office compound. That the accused demanded for the

amount of illegal gratification of ₹2,000/- and the complainant

gave the amount from his pocket and the members of the

raiding party came after the predetermined signal was given

and the accused was caught red handed.

During the cross examination by the learned advocate for

the accused, the witness has stated that when they went into

Taluka Panchayat building, the accused was coming from the

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front and the complainant greeted him and asked him how he

was and at that time the accused told the complainant to return

the amount that he had borrowed. That, at that time, the

accused told him that they would to go outside and the road was

the main road from Kirti Stambh to Guru Nanak road and there

were a number of vehicles moving on the road. There was a iron

grill in between the roads but there was a little place where one

person could cross the road and they went through the iron grill

and crossed the road and went to the Commercial Centre. That

at that time, the complainant and the accused went ahead but

as a bus was crossing he had to wait at the otherside and when

he went to the Clothe Store in Vikram Commercial Center, the

members of the raiding party and the panch no. 2 had already

arrived at. That the accused had the currency notes in his hand,

which remained in his hand from Vikram Commercial Center till

they reached Taluka Panchayat Office.

8.3] The prosecution has examined Prosecution Witness

No. 3 Hathisinh Becharji Chavda at Exhibit 57 and the witness

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

the prosecution and has narrated in detail all the procedures

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that he had undertaken on 18/11/2000, at the Circuit House at

Palanpur and thereafter till the trap was successful. The witness

has identified the signatures of the panch witnesses and his

signatures on the complaint produced at Exh: 32, the

panchnama produced at Exh: 54 and the seizure memo at Exh:

53.

During the cross examination by the learned advocate for

the accused, the witness has stated that the complainant had

stated in the complaint that he wanted the copies of the revenue

record and the accused was asking for money and also the land

had to be converted from new tenure to old tenure land. That he

had demanded for the land papers from the complainant but the

complainant did not produce them before him and even on the

next day the complainant did not bring the papers of the land.

That he did not seek any permission for use of Room No. 4 at

the Circuit House at Palanpur and he did not inquire from

Dineshbhai about the conversion of land from new tenure land

to old tenure land. That in the seizure memo at Exh: 53, it is not

mentioned that the solution that was seized was light pink

colour and there is no time mentioned in the seizure memo.

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That in the panchnama, it is not mentioned that it was verified

from the accused as to whether the bottles in which the solution

of sodium carbonate were filled were cleaned.

8.4] The prosecution has examined Prosecution Witness

No. 4 Prabhudas Badaji Pandav at Exh: 60 and the witness is the

Investigating Officer, who has recorded the statements of the

connected witnesses and has thereafter collected the necessary

documents including the FSL report and has produced the order

of the Mamlatdar converting the land from new tenure land to

old tenure land at Exh: 61, the letter of Forensic Science

Laboratory at Exh: 62, the letter of Taluka Development Officer

at Exh: 63, the service book of the accused at Exh: 64, letter of

District Development Officer at Exh; 65, copy of Form P-I of

Survey no. 241 Paiki of village Chandisar and village form No.

7/12 at Exh; 66, a copy of the village Form 8 A of survey No. 241

Paiki 1 at Exh: 67, copy of the village form No. 6, Mutation

Entry No. 2983 of Chandisar village at Exh: 68, Power of

Attorney at Exh; 69, a copy of the receipt of registration fees at

Exh: 70, a copy of the sale deed at Exh: 71, a copy of the

revenue paid at Exh: 72, Extract of Muster Roll of Chandisar

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Gram Panchayat at Exh: 73, the daily book of the accused at

Exh: 74, a copy of the village Form 6; Mutation Entry No. 2965

at Exh: 75, copy of village form No. 6; Mutation Entry no. 2967

at Exh: 76, a copy of the forwarding letter of FSL at Exh: 77 and

the report of the FSL at Exh: 78.

During the cross examination by the learned advocate for

the accused, the witness has stated that he had recorded the

statement of Dineshbhai Pitambarbhai Barot and Dineshbhai

Barot had stated that the land was not converted by the accused

and no amount was paid to the accused for conversion of the

land. That the land was converted by the original owner

Maganbhai and the premium of the land was also paid by the

original owner Maganbhai. That when the sale deed was

executed, the accused was not present and Dineshbhai had also

stated that on 31/10/2002, the complainant had gone to the

Panchayat Office and at that time Dineshbhai was present and

the complainant had asked for ₹2,000/- to buy fertilizers for his

agricultural of land from him but as he did not have the amount,

he took the amount from the accused and gave it to the

complainant. That Dineshbhai had also sent the affidavit, which

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was sent to the ACB Director with a forwarding letter, which is

produced at Exh: 79. That, as per the affidavit of Dineshbhai

Barot, the facts of the complaint were false and when the

complainant had borrowed the amount of ₹2,000/- from

Dineshbhai, peon Kadarbhai Fakir was present and he had

recorded the statement of Kadarbhai Fakir also, who had stated

that the complainant had borrowed ₹2,000/- to buy fertilizers

but as Dineshbhai did not have the amount he had taken the

amount from the accused and had given to the complainant.

That he has not shown Dineshbhai or Kadarbhai Fakir as

witnesses in the charge sheet.

9] On minute appreciation of the entire evidence of the

prosecution, the infirmities in the case of the prosecution have

come on record and in the cross-examination of the

Investigating Officer, it has come on record that on 31/10/2002,

the complainant had gone to the office of the accused and in the

presence of peon Kadarbhai Fakir, the complainant had asked

for a loan of ₹2,000/- from Dineshbhai to buy fertilizers and as

Dinesbhai did not have the money, he had demanded the

amount from the accused and had given the amount to the

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complainant. Moreover, it has also come on record that the sale

deed was executed in the year 1998 and prior to the execution

of the sale deed, the original owner Maganbhai had converted

the land from new tenure land to old tenure land and had paid

the amount of premium. That the accused was not present as

the Talati-cum-Mantri when the sale deed was executed and the

say of the complainant in the complaint that he had paid

₹40,000/- to the accused for conversion of the land from new

tenure land to old tenure land is falsified completely. That the

Investigating Office has not shown Dineshbhai and Kadarbhai

Fakir who both were eye witnesses to the transaction between

Dineshbhai Barot and the complainant and the accused, who at

that time had loaned the amount of ₹2,000/- to buy fertilizers to

the complainant. It has also come on record that the

complainant has not supported the case of the prosecution and

the panch witness was not present at the Clothes store but had

remained behind while crossing the road as a bus was passing

one and when the panch witness reached the complainant and

the accused at the Clothe Store, the members of the raiding

party had already arrived. That there is no iota of evidence

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regarding prior demand or demand at the time of the trap,

which is a sine-qua-non for the offence under the PC Act.

9] The learned trial Court has appreciated the entire

evidence in detail in proper perspective and has discussed all

the oral and the documentary evidences and has concluded that

the prosecution has not proved the case beyond reasonable

doubts. The learned trial Court has thoroughly appreciated all

the evidence on record and has given due consideration to all

material pieces of evidence. The findings that the learned trial

Court has arrived at, are legal and proper, and there are no

errors of law and fact. Moreover, the view taken by the learned

trial Court of acquitting both the accused is a fairly possible

view and there is no illegality or perversity in the impugned

judgement and order of acquittal.

10] In view of the decision of the Apex Court in the case

of Mallappa (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

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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.

11] The impugned judgment and order of acquittal

passed by the learned Additional Sessions Judge, 4th Fast Track

Court, Banaskantha at Palanpur in Special (ACB) Case No. 37 of

2003 on 28/11/2007 is hereby confirmed.

12] Bail bond stands canceled. Record and proceedings

be sent back to the concerned Trial Court forthwith.

Sd/-

(S. V. PINTO,J) VVM