Gujarat High Court
The State Of Gujarat vs Sureshkumar Dalachharam Patel on 14 February, 2024
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R/CR.A/251/2007 JUDGMENT DATED: 14/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 251 of 2007
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 see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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THE STATE OF GUJARAT
Versus
SURESHKUMAR DALACHHARAM PATEL & ANR.
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR J.M.PANCHAL, SENIOR ADVOCATE for C J GOGDA(7488) for the Opponent(s)
/ Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 14/02/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment
and order of acquittal dated 06.10.2006 passed by the
learned Presiding Officer, Fast Track Court No.5, District
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Banaskantha at Palanpur (herein after referred to as 'the
learned Trial Court') in Special (ACB) Case No. 122 of 2001,
whereby, the learned Trial Court has acquitted the
respondents from the offences punishable under Sections 7,
12, 13(1)(D)(1)(2)(3) read with Section 13(2) of the
Prevention of Corruption Act (herein after referred to as 'the
P.C.Act'). The respondents are hereinafter referred to as 'the
accused No.1 and the accused No.2' at they 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 No.1 was working as a Police Sub Inspector
and the accused No.2 was working as an unarmed Police
Constable in Chhapi Police Station in March, 2001 and at
that time, they demanded a monthly bribe amount of
Rs.1,500/- from the complainant Jashwantsingh Bhikhaji
Rajput and the complainant had also been threatened by the
accused to falsely implicate him in big cases and also in
PASA, if he did not pay the amount. That on 16.03.2001 at
around 7.30pm, both the accused met the complainant in
Chhapi Police Station and demanded the amount from him
and told him to come to the Police Station on 17.03.2001
with the amount of illegal gratification. That the complainant
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did not want to pay the bribe amount and hence, went to the
ACB office at Palanpur and filed FIR I-C.R.No.3 of 2001 at the
ACB Police Station, Banaskantha at Palanpur for the offences
punishable under Sections 7, 12, 13(1)(D)(1)(2)(3) read
with Section 13(2) of the P.C.Act on 17.03.2001. That the
panch witnesses were called and after the necessary
procedure, the trap was laid. That on 17.03.2001 between
8.30am to 8.40am, both the accused were present in Chhapi
Police station and when the complainant went to the police
station, the accused No.1 demanded the amount and the
accused No.2 accepted the same in the presence of the panch
witness and they were trapped by the Trap Laying Officer
and the members of the Raiding Party and the amount of
Rs.1,500/- was recovered from the accused No.2. That after
due investigation, a charge sheet was filed before the learned
Sessions Court, Banaskantha at Palanpur, which was
registered as Special (ACB) Case No. 122 of 2001.
2.2. That the accused were duly served with the summons and
after the accused appeared and after following the procedure
under Section 207 of the Code, a charge was framed by the
learned Trial Court, at Exh.17 and the statements of the
accused were recorded at Exh.18 and 19 wherein the
accused denied all the contents of the charge and the entire
evidence of the prosecution was taken on record. That after
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the closing pursis was given by the learned APP, the further
statements of the accused under Section 313 of the Code was
recorded and after the arguments of both the parties were
heard, the learned Trial Court, by the impugned judgment
and order dated 06.10.2006, gave benefit of doubt to both
the accused and acquitted them from all the offences.
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court in
Special (ACB) Case No. 122 of 2001 on 06.10.2006, the State
has filed the present appeal mainly contending that the
prosecution has proved the case beyond reasonable doubts
and the prosecution has proved that at the relevant time, both
the accused were working at Chhapi Police Station and they
were public servants. That the complainant had clearly
deposed that the accused used to threaten and demand illegal
gratification from the complainant and on 16.03.2001,
when the complainant went to meet the accused the Chhapi
Police Station, the illegal gratification of Rs.1,500/- was
demanded and the complainant was told to come with the
amount on the next day i.e. on 17.03.2001. That as the
complainant did not want to give the illegal gratification, he
lodged the complaint with the ACB Police Station,
Banaskanthat at Palanpur and the trap was laid after
following the due procedure and both the accused were
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caught red handed in the presence of the independent panch
witnesses. That the prosecution has examined all the
witnesses and has produced the necessary documentary
evidence and the entire offence has been proved by the
prosecution beyond reasonable doubts, but the learned Trial
Court has failed to appreciate the same in proper perspective.
That the panch witness has clearly deposed that both the
accused have demanded the illegal gratification and after the
raiding party caught both the accused red handed, the test of
ultraviolet lamp was carried out on the complainant and the
accused and signs of anthracene powder were found on the
hands and clothes of the accused No.2. That even the number
of the tainted currency notes, which were seized, were tallied
with the numbers noted in the panchnama and they were
found to be the same but, the learned Trial Court has failed to
appreciate the entire evidence. That the Investigating Officer
has followed the due procedure of setting up the trap, which
was successful and even the sanction was valid but the
learned Trial Court has appreciated the defense raised by
accused and even though, it was not supported by cogent
evidence and the accused have not discharged their burden,
the learned Trial Court has acquitted the accused, which is
illegal and improper. That merely because the complainant
has turned hostile, the learned Trial Court has acquitted the
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accused but the case has been proved by the evidence of the
other witnesses and hence, the appeal must be allowed and
the accused must be convicted for all the offences.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant - State
and learned Senior Advocate Mr.J.M.Panchal assisted by
learned advocate Mr.A.V.Nair for learned advocate
Mr.C.J.Gogda for the accused.
5. Learned APP Ms. Jirga Jhaveri has taken this Court though
the entire evidence and particularly, the oral evidence of PW-
2 Punjabhai Hunsabhai Kodarvi, who has been examined at
Exh.34 and the oral evidence of PW-4 Kachrabhai Dalabhai
Parmar at Exh.49 and has submitted that from the
depositions of these witnesses, the demand of illegal
gratification, the acceptance and recovery of the tainted
currency notes has been proved by the prosecution beyond
the reasonable doubts but the learned Trial Court has erred
in not believing the same. The learned APP has further
submitted that it is true that the complainant has turned
hostile but it is settled principle of law that merely because
the complainant has turned hostile, the entire evidence
cannot be thrown out and the evidence, which supports the
case of the prosecution, has to be considered. That the
prosecution has proved the case beyond reasonable doubts
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and has urged this Court to set aside the impugned judgment
and order of acquittal and convict the accused for the
offence.
6. Learned Senior Advocate Mr.J.M.Panchal assisted by learned
advocate Mr.A.V.Nair for learned advocate Mr.C.J.Gogda for
the accused has submitted that the complainant has turned
hostile and the fact of the demand as alleged to have been
made by the accused has not been proved by the prosecution
beyond reasonable doubts. That the accused No.1 has also led
evidence and brought on record that he was not present in
Chhapi Police Station on 16.03.2001 i.e. the date on which
the demand is alleged to have been made and the weekly
diary of the accused No.1 has been produced, which shows
that the accused No.1 was at great distance away from the
Chhapi Police Station for the bandobast duty and he was not
available in Chhapi Police Station and the accused No.1 has
neither met the complainant nor has demanded any illegal
gratification. That during the cross-examination, it has been
brought on record that there was a previous enmity between
the complainant and the accused No.1 and hence, keeping
this grudge in mind, the complainant has filed the false
complaint against the accused. That the learned Trial Court
has properly appreciated the entire evidence and there is no
error in the impugned judgment and order passed by the
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learned Trial Court and as the prosecution has not proved the
case against the accused beyond reasonable doubts, the
impugned judgment and order passed by the learned Trial
Court is just and proper and the appeal may be dismissed.
7. 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 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
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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 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)
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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
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
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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;
(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. With reference to the cases filed under the P.C.Act, 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
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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) 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 rebuttal presumption stands.
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(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. In view of the above settled principles of law with regard to
acquittal appeals under the P.C.Act, the evidence led by the
prosecution is required to be appreciated and in the instant
case, the prosecution has examined PW-1 Jaswantsinh
Bhikhaji Solanki - the complainant at Exh.33 and he has
stated that he went to Chhapi Police Station on 16.03.2001
where he met the accused No.1 and at that time the accused
No.1 had demanded the illegal gratification of a monthly
amount of Rs.1,500/-. The complainant has stated that
earlier he was doing the business of country liquor and was
paying an amount of Rs.1,500/- per month to the accused
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No.1 and thereafter, he stopped doing the business of country
liquor and also stopped paying the amount of Rs.1,500/- to
the accused No.1 but the demand was made by the accused
No.1. The complainant has stated that at that time, the
accused No.2 was present and the complainant was directed
to come with the illegal gratification on the next day. That
the complainant has further stated that as he did not want to
give the illegal gratification, he went to the ACB Police
Station, Banaskantha at Palanpur where the complaint was
lodged and thereafter, the panch witnesses were called and
the trap was laid on 17.03.2001. That on 17.03.2001, the
trap was successful. The complainant did not fully support
the case of the prosecution and has been declared hostile and
has been the cross-examined by the learned APP but has not
supported the case of the prosecution. Moreover, it has come
on record that in the evidence of the complainant, an amount
of Rs.1,000/- was recovered from the right side pocket of the
pant of the accused No.2 but along with it, another currency
note of Rs.50/- was also recovered, which was tested and on
that currency note also, traces of anthrecene powder was
found. There is no explanation in the entire evidence
regarding this extra amount of Rs.50/-, which has been
recovered with anthracene powder and seized by the Trap
Laying Officer, even though, out of the amount of demand of
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Rs.1,500/-, an amount of Rs.1,000/- only was placed in the
right side pocket of the pant of the accused No.2 and the
remaining amount of Rs.500/- was placed in the back pocket
of the pant of the accused No.2. That during the evidence of
the complainant, it has also come on record that the niece of
the complainant had eloped and the accused No.1 did not
take the necessary steps and the complainant was unhappy
about it and there was previous enmity between the
complainant and the accused No.1. Moreover, during the
cross-examination, it has also come on record that no case
was filed in Chhapi Police Station or Vadgam Police Station
against the present complainant and there was nothing on
record to show that the complainant, in fact, was doing the
business of country liquor. There is also contradiction about
the time on 16.03.2001, when the complainant has stated
that he had gone to the Chhapi Police Station.
8.1. The prosecution has also examined PW-2 Punjabhai
Hunsabhai Kodarvi, the panch witness at Exh.34, who has
supported the case of the prosecution. But, during the cross-
examination, it has come on record that PW-4 Kachrabhai
Dalabhai Parmar, the Investigating Officer was a member of
the raiding party and he was with the raiding party
throughout the trap. Moreover, it has also come on record
that PW-2 Punjabhai Hunsabhai Kodarvi was a 3rd time
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panch witness in the case filed by the ACB Police Station and
earlier on 05.06.2000, he was a panch witness in a trap case
which had taken place on Dharwada - Hamirgadh Highway
and thereafter, he was also a panch witness in a trap case
which had taken place in Shamlaji and in both the cases, the
Trap Laying Officer was Mr. Prabhudas Badaji Pandav and
the Investigating Officer Mr. Kacharabhai Dalabhai Parmar,
the officers of the ACB Office. Moreover, in the deposition of
the panch witness, it has also come on record that after the
trap, during the test of the ultraviolet lamp, the doors and the
windows of the office were opened twice and the lights in the
chamber of the accused No.1 were switched on throughout.
That when the amount of Rs.1,000/- was being recovered
from the accused No.2, another currency note of Rs.50/- was
also found and the note of Rs.50/- was examined and that
too had the traces of the anthracene powder. Moreover, the
panch witness has categorically stated that he does not know
as to who arranged for the pant to be changed by the accused
No.2.
8.2. The prosecution has examined the Trap Laying Officer,
P.W.3 Mr. Prabhudas Badaji Pandav at Exh.41 and the
Investigating Officer PW-4 Kachrabhai Dalabhai Parmar at
Exh.49. That during the cross-examination of the
Investigating Officer, the station diary of the accused No.1
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and the weekly diary has been produced at Exhs. 59, 60 and
61 and all these documents were seized by the Investigating
Officer during investigation. That in the weekly diary of the
accused No.1, which is from 11.03.2001 to 17.03.2001 and
produced at Exh.59, it is seen that on 16.03.2001 from
7.00am to 8.00pm, the accused No.1 was in bandobast duty
with the staff members for "Mandir Mela" at village Kupat
and he had returned to the police station after 8.30pm.
9. The main defense of the accused is that as per the say the
complainant, the demand was made on 16.03.2001 but on
that date, the accused No.1 was not present in Chhapi Police
Station and was in bandobast duty with the staff members for
"Mandir Mela" at village Kupat. That the complainant had
previous enmity with the accused No.1 and if the deposition
of the complainant is perused, the complainant has given
contradictory versions about the time when the demand was
made. That no clear demand has been proved by the
complainant and in the weekly diary produced at Exh.59, it
appears that accused No.1 was not in Chhapi Police Station
on 16.03.2001 and hence, a great doubt is cast upon the
complainant regarding the demand for illegal gratification
made by the accused No.1. That in the complaint, the
complainant has stated that he met the accused No.1 on
16.03.2001 between 7.00 to 7.30pm but, during the cross-
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examination, he has stated that he met the accused No.1 on
16.03.2001 at 10.00am. It appears that the complainant had
not met the accused No.1 on 16.03.2001 as the accused No.1
was on bandobast duty on 16.03.2021 from 7.00am to
8.00pm. That it has also come on record that the accused
No.1 had filed a 'C' summary report for the alleged
kidnapping case of the niece of the complainant and the
complainant did have grudge against the accused No.1. The
selection of a panch witness in a case under the Act is a very
important aspect and it is on record that the panch witness
PW-2 Punjabhai Hunsabhai Kodarvi is a 3 rd time panch
witness in cases filed under the Act and the Trap Laying
Officer and the Investigating Officer were same in the
previous cases also, hence a shadow of doubt is cast upon the
punch witnesses. Moreover, the trap was laid on 17.03.2001
and the panchanama is prepared on 17.03.2001, but, the
seizure memo has been prepared on 18.03.2001 and it is not
clear that as to why there is a variation in the date of the
panchnama and the seizure memo. That the panch witness
has clearly stated that the seizure memo was prepared during
the panchnama but the contradiction in the date of the
preparation of the seizure memo has not been explained.
That, after the trap, the lights in the room of the accused
No.1 i.e. the place where the ultraviolet lamp test was carried
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out, was switched on throughout and this also casts a doubt
on the ultraviolet lamp test. Moreover, PW.4 Kachrabhai
Dalabhai Parmar, who is the Investigating Officer and has
filed the charge sheet, was with the Raiding party as a
member of the Raiding Party from the beginning of the raid
and was well aware of all the details of the trap and raid.
10. That the learned Trial Court, in the impugned judgment and
order, has thoroughly appreciated the contrary version about
the timings of the demand of the illegal gratification made by
the accused No.1 on 16.03.2001 as narrated by the
complainant and also the fact that the accused No.1 was not
present in Chhapi Police Station on 16.03.2001 as he was on
bandobast duty. That if the accused No.1 was not present at
Chhapi Police Station, the demand of the illegal gratification
would not have been made on 16.03.2001 and the same has
not been explained by the prosecution and the factum of
demand has not been proved beyond reasonable doubts by
the prosecution. That other contradiction in the deposition of
the complainant regarding the time of demand of the illegal
gratification has also been noted and more particularly, the
fact that the panch witness was the 3 rd time panch witness is
also appreciated by the learned Trial Court. As discussed
above, the panchnama and the seizure memo are of different
dates and considering the entire evidence including the
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evidence that the extra note of Rs.50/- was recovered from
the pocket of the accused No.2, which was found with traces
of the anthracene powder has not been explained by the
prosecution. As per the say of the complainant, he had given
Rs.1,500/- out of which, Rs.1,000/- was placed in the right
front pant pocket of the accused No.2 and from that pocket,
an amount of Rs.1,050/- was recovered. Hence, the demand
and recovery of the tainted currency notes is not proved
beyond reasonable doubts. That the learned Trial Court has
thoroughly appreciated all the evidence on record and has
given due consideration to all the material pieces of evidence.
The findings that the learned Trial Court has arrived at is
legal and proper and there is no error of law or fact.
Moreover, the view taken by the learned Trial Court of
acquitting both the accused is a fairly possible view and there
is no legality or perversity in the impugned judgment and
order.
11. In view of the above discussion and in light of the settled
position of law, the present appeal is devoid of merits and
resultantly, the same is dismissed. The impugned judgment
and order in Special (ACB) Case No. 122 of 2001 passed by
the learned Presiding Officer, Fast Track Court No.5, District
Banaskantha at Palanpur on 06.10.2006 is hereby
confirmed. Bail bonds stand cancelled.
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12. Record and proceedings be sent back to the concerned Trial
Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI....
