Gujarat High Court
State Of Gujarat vs Alarakhbhai Suvalibhai Makwana on 19 February, 2024
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 561 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
================================================================
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 ?
================================================================
STATE OF GUJARAT
Versus
ALARAKHBHAI SUVALIBHAI MAKWANA
================================================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR.K.B.ANANDJIWALA, SENIOR ADVOCATE for VISHAL K ANANDJIWALA
(7798) for the Opponent(s)/Respondent(s) No. 1
RAJDEEP A CHAUDHARI(8859) for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/02/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgment and order of acquittal dated
25.11.2004 passed by the learned Special Judge, Fast Track
Court No.2, Bhavnagar (herein after referred to as 'the
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
learned Trial Court') in Special (ACB) Case No. 6 of 1997,
whereby, the learned Trial Court has acquitted the
respondent from the offences punishable under Sections
13(1)(d) and 13(2) of the Prevention of Corruption Act. 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 FIR No.I-C.R.No.15 of 1996 was filed by complainant
Bhavnaben Damjibhai Bundeliya on 10.10.1996 against
accused mainly stating that she was working as an
Administrator in the 'Midday Meal Scheme' at Gariyadhar,
District Bhavnagar and the accused had come for a surprise
inspection on 07.09.1996 and at that time, the complainant
was not present as she had taken leave from the Principal and
had gone home. That the accused took note of the same and
initiated action to remove her as an Administrator and after
3-4 days, she went with her husband Rameshbhai Bhatti to
Gariyadhar along with one Vinodrai Vishwanath Dave, who
was known to the accused. That at that time, the accused
demanded an amount of Rs.500/- for winding up the
procedure initiated for dismissal of the complainant. That on
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
08.10.1996, Vinodrai Vishwanath Dave came to the house of
the complainant and told her that Rs.500/- has to be paid as
a bribe amount to the accused for winding up the procedure
initiated for dismissal of the complainant, so the complainant
went to the ACB Office, Rajkot with Vinodrai Vishwanath
Dave and her husband Rameshbhai Bhatti and a complaint
was lodged. That the panch witnesses were called and after
following the necessary procedure and given necessary
instructions to all concerned, the trap was laid, which was
successful. That after due investigation, a charge sheet came
to be filed before the learned Sessions Court, Bhavnagar and
the case was registered as Special (ACB) Case No. 6 of 1997.
2.2. That the accused was summoned and after following the
procedure under Section 207 of the Code of Criminal
Procedure, a charge was framed by the learned Trial Court at
Exh.3 and the statement of the respondent - accused was
recorded at Exh.4, wherein the accused denied all the
contents of the charge and the entire evidence of the
prosecution was taken on record. That after the closing pursis
was given by the learned APP, the further statement of the
accused under Section 313 of the Code of Criminal
Procedure was recorded and the arguments of both the
parties were heard and the learned Trial Court, by the
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
impugned judgment and order dated 25.11.2004, gave the
benefit of doubt to the accused and acquitted him from all
the offences.
3. Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal dated 25.11.2004 passed by
the learned Trial Court, the State has filed the present appeal
mainly contending that the prosecution has proved the case
beyond reasonable doubts. The impugned judgment and
order of acquitting the accused is against the evidence on
record of the case and the learned Trial Court has not
appreciated the evidence in correct perspective and has erred
in concluding that the demand and acceptance of the illegal
gratification is not proved. That the learned Trial Court has
not relied on the evidence of the complainant and has
concluded that the demand and the acceptance are not
supported by the evidence of the complainant but the
complainant has clearly stated that the amount was to be
paid through Vinodrai Vishwanath Dave and he has
supported the case of the prosecution. That the learned Trial
Court has wrongly concluded that there was no demand
from Bhavnaben Damjibhai Bundeliya or from Vinodrai
Vishwanath Dave, whereas, it is on record that Vinodrai
Vishwanath Dave knew the complainant as well as the
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
accused and in the presence of witness Rameshbhai Bhatti,
the illegal gratification of Rs.500/- was given to the accused,
which was accepted by him and thereafter, he suddenly tried
to give it back to Vinodrai Vishwanath Dave. That the
prosecution has proved that the amount was accepted by the
accused and to accept this illegal gratification, he left his
place of duty to come to a shop namely "Runners Traders"
situated in Sitaram Seva Trust Shopping Centre and he was
trapped by the raiding party, which clearly proves the case of
the prosecution that the demand was made, accepted by the
accused and recovered from the accused and hence, the
impugned judgment and order passed by the learned Trial
Court is bad in law, illegal and against the weight of evidence
and is required to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant - State
and learned Senior Advocate Mr.K.B.Anandjiwala assisted by
learned advocate Mr. Vishal Anandjiwala for the respondent
- accused.
4.1. Learned APP Ms. Jirga Jhaveri has taken this Court though
the evidence and specially the evidence of the complainant,
witness Vinodrai Vishwanath Dave and the evidence of the
Trap Laying Officer and has stated that the evidence of the
complainant clearly shows that there was a demand made by
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
the accused for settling the issue and winding up the
procedure initiated for dismissal of the complainant
Bhavnaben Damjibhai Bundeliya and the demand was made
through witness Vinodrai Vishwanath Dave. That the
complainant has clearly narrated that on 08.10.1996,
Vinodrai Vishwanath Dave came to her house and told her
that the amount of Rs.500/- is to be paid as illegal
gratification to the accused to settle the issue, wherein, she
was found absent during the surprise inspection by the
accused. That it was also decided that the amount was to be
paid between 11.00am and 1.00pm on 10.10.1996 in the
shop namely "Runners Traders" situated in Sitaram Seva
Trust Shopping Centre. It is also proved by the prosecution
that the complainant had gone to the ACB Office to register
the complaint and at that time, she was accompanied by
Vinodrai Vishwanath Dave and Rameshbhai Chauhan and
she had presented 10 currency notes of Rs.50/- each to the
ACB Officer and the panch witnesses were called and the
trap was laid and it is proved that the currency notes were
accepted by the accused. That in the ultraviolet test,
anthracene powder was found on the hand of the accused.
That witness Vinodrai Vishwanath Dave has been examined
by the prosecution and he has supported the case of the
prosecution and the panch witness, who was present at the
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
time of trap, has also supported the case of the prosecution
and the learned Trial Court has wrongly appreciated the
entire evidence placed on record by the prosecution and
hence, the impugned judgment and order may be set aside
and the accused may be found guilty for the said offence.
4.2. Learned Senior Advocate Mr.K.B.Anandjiwala assisted by
learned advocate Mr. Vishal Anandjiwala for the respondent
has submitted that the complainant has not fully supported
the case of the prosecution and admittedly, she is not an eye
witness to the incident. That the prosecution has not proved
that any direct demand was made by the accused and it
transpires that witness Vinodrai Vishwanath Dave,
Rameshbhai Chauhan and the husband of the complainant
had tried to falsely trap the accused. Moreover, in the entire
evidence of the prosecution, there is no iota of evidence as to
the place where the demand was made by the accused and
the complainant has also stated that the demand was made by
Vinodrai Vishwanath Dave and he was the one, who has
quietly placed the tainted currency notes in the hand kerchief
and handed over the hand kerchief to the accused and
thereafter, immediately left the place. That if there was any
demand by the accused, the accused would have directly
demanded the illegal gratification from the husband of the
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
complainant but the accused immediately knew that he was
being framed and hence, he clearly told Vinodrai Vishwanath
Dave that he did not want to accept any amount. Moreover,
in the evidence, it is also on the record that the hand kerchief
and the currency notes fell down on the ground in the shop
and Mr. Sarvaiya, the Trap Laying Officer had asked the
accused to pick up the tainted currency notes and therefore,
traces of the anthracene powder was found on the hand of
the accused. That no anthracene powder was found from the
pocket of the pant of the accused and the prosecution has not
proved the case against the accused beyond reasonable doubt
and the impugned judgment and order passed by the learned
Trial Court is just and proper and therefore, the present
appeal may be dismissed.
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
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
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 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,
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
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
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)."
5.1. In Para - 36, the Apex Court, in the case of Mallappa
(Supra), has observed as under:
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
"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;
(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.
5.2. 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
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
(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) 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
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
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.
(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."
6. In view of the above settled principles of law with regard to
acquittal appeals under the Act, the evidence led by the
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
prosecution is required to be dealt with and in the instant
case, it is the case of the prosecution that the accused, had
gone for a surprise inspection to the Mamalatdar Office,
Gariyadhar, District Bhavnagar on 07.09.1996 and found
that the complainant was absent on duty and had initiated
the procedure to remove the complainant Bhavnaben
Damjibhai Bundeliya as an Administrator of the "Midday
Meal Scheme", Gariyadhar, District Bhavnagar. That the
complainant, her husband and Vinodrai Vishwanath Dave
went to meet the accused and it is the case of the prosecution
that at that time, the demand for illegal gratification of
Rs.500/- was made for winding up the procedure initiated
for dismissal of the complainant Bhavnaben Damjibhai
Bundeliya. The prosecution has examined P.W.1 Bhavnaben
Damjibhai Bundeliya - the complainant at Exh.18, who has
narrated these facts but she has stated that on 08.10.1996,
Vinodbhai Vishwanath Dave came to her house and told her
that the accused had demanded Rs.500/-, which was to be
paid by Vinodrai Vishwanath Dave. That accordingly, they
went to file a complaint and thereafter, she has stated that
she returned home. During the cross-examination, the
complainant has categorically stated that when she went to
meet the accused along with her husband, there was no
demand of any illegal gratification and after that, she had not
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
met the accused. That the demand of Rs.500/- was made to
her through Vinodrai Vishwanath Dave and in her presence,
no talks of any demand of any illegal gratification was made.
That Vinodrai Vishwanath Dave and the husband of the
complainant Bhavnaben Damjibhai Bundeliya had spoken
about the Rs.500/- to be paid as illegal gratification and she
has never directly spoken to Vinodrai Vishwanath Dave
about any amount to be paid to anyone.
6.1. The prosecution has also examined P.W.-2 Vinodrai
Vishwanath Dave at Exh.20 and this witness is the person,
through whom, the alleged demand of illegal gratification of
Rs.500/- was made and he has supported the case of the
prosecution. During the examination-in-chief, he has stated
that when he went to the ACB Office, Rajkot with the
complainant Bhavnaben Damjibhai Bundeliya, her husband
Rameshbhai Bhatti and Ramesh Chauhan, they met Mr.
Sarvaiya, the Trap Laying Officer and he had refused to play
any part in the trap but Mr. Sarvaiya, the Trap Laying Officer
had forced him to take part in the trap procedure and told
him that he would have to hand over the illegal gratification
of Rs.500/- to the accused on behalf of complainant -
Bhavnaben Damjibhai Bundeliya. The witness has also stated
that he himself had taken the tainted currency notes and
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
placed it in his pocket and has, thereafter, stated when he
was handing over the tainted currency notes to the accused,
the accused took out his hand kerchief from his pocket and
placed it on his hands and told him to place the currency
notes in the hand kerchief. That thereafter, he went into the
shop and sat down and immediately, the accused came into
the shop and told him that he did not want any amount and
tried to put the same in his shirt pocket and at that time, the
hand kerchief and the currency notes fell down on the
ground. That when Mr. Sarvaiya, the Trap Laying Officer
came, he told the accused to pick up the currency notes and
the hand kerchief and the accused picked up the tainted
currency notes and handed it to Mr. Sarvaiya, the Trap
Laying Officer. During the cross-examination, the witness
has admitted that the panch was sitting in the "Runners
Traders" shop and could not see the lane, in which, the
accused and Rameshbhai Bhatti had gone and the witness has
identified the Muddamal Article No.2 - the hand kerchief as
his own. Moreover, during the cross-examination, the
witness has also stated that there was no discussion of
demand of Rs.1,000/- with the accused but he had told
Rameshbhai Bhatti that Rs.1,000/- was demanded.
6.2. The prosecution has examined P.W.3 Rameshbhai
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
Hansrajbhai Chath at Exh.26. This witness is the panch
witness, who was present at the time of trap but this witness
has clearly stated that Rameshbhai Bhatti and the accused
went outside and Rameshbhai Bhatti came into the shop and
called Vinodrai Vishwanath Dave and the place where they
were standing in the lane was not visible to him and he did
not witness the acceptance of the tainted currency notes by
the accused. Moreover, the witness has also stated that he
was not present while the panchnama was being written and
he was in the next room and has admitted that both the hand
kerchief and the tainted currency notes fell down on the floor
in the shop.
6.3. It is the case of the prosecution that the tainted currency
notes were recovered from the accused and the prosecution
has examined PW.4 Gajendrasinh Nanbha Sarvaiya at Exh.29
and this witness is the Trap Laying Officer at the time of the
incident. That the witness has supported the case of the
prosecution but has stated that the tainted currency notes
and the chocolate coffee colour hand kerchief were lying on
the floor of the shop and this is contrary to the case of the
prosecution that the tainted currency notes were recovered
from the accused. Moreover, the witness has not seen the
acceptance or the part where the accused had tried to return
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
the hand kerchief with the tainted currency notes.
7. In the further statement of the - accused, the main defence
raised by the accused is that PW.2 Vinodrai Vishwanath Dave
was known to him and he had called him and hence, he went
with him to the "Runners Traders" shop and at that time,
Rameshbhai Bhatti was sitting there and he had a doubt that
Vinodrai Vishwanath Dave was demanding money on his
behalf and hence, he called Rameshbhai Bhatti outside the
shop in the lane and asked him whether Vinodrai
Vishwanath Dave has taken any money and when
Rameshbhai Bhatti told him that he had given him Rs.500/-,
he immediately called Vinodrai Vishwanath Dave and at that
time, Vinodrai Vishwanath Dave quietly slipped the hand
kerchief with the tainted currency notes in his hands and
hence, he immediately returned the said amount to Vinodrai
Vishwanath Dave.
8. In the entire evidence of the prosecution, there is no proof
that any demand of illegal gratification was made by the
accused and the complainant Bhavnaben Damjibhai
Bundeliya does not utter any words about any demand made
by the accused to her. The demand of illegal gratification was
made by Vinodrai Vishwanath Dave and no demand for any
amount of illegal gratification was made by the accused to
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
the complainant directly in person. Moreover, even the
aspect of acceptance has not been proved by the prosecution
beyond reasonable doubt. What emerges from the evidence
led by the prosecution is that PW.2 Vinodrai Vishwanath
Dave had told Rameshbhai Bhatti, the husband of
complainant Bhavnaben, that a demand of Rs.1,000/- as
illegal gratification was made and Rs.500/- was to be paid at
"Runners Traders" shop on 10.10.1996 and when they
reached "Runners Traders" on 10.10.1996, PW.2 Vinodrai
Vishwanath Dave is the person, who brought the accused on
his scooter to the shop. That at that time, Rameshbhai Bhatti,
Vinodrai Vishwanath Dave and panch witness PW.3
Rameshbhai Hansrajbhai Chath were in the shop. That the
accused called Rameshbhai Bhatti outside the shop and
Rameshbhai Bhatti came back into the shop and called
Vinodrai Vishwanath Dave and they were in the lane near
the shop, which was not visible to the panch witness. That at
that time, PW.2 Vinodrai Vishwanath Dave slipped the
tainted currency notes in a hand kerchief to the accused and
immediately, went back into the shop and thereafter, the
accused came to the shop and tried to return the tainted
currency notes with the hand kerchief back to PW.2 Vinodrai
Vishwanath Dave and the tainted currency notes and the
hand kerchief fell down on the floor of the shop. Moreover, it
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
is also on record that immediately, the members of the
raiding party came into the shop and Mr. Sarvaiya, the Trap
Laying Officer, told the accused to pick up the notes and the
hand kerchief, which were lying on the floor and the accused
picked up the tainted currency notes and hand kerchief and
gave them to Mr. Sarvaiya, the Trap Laying Officer and the
hands of the accused were found with anthracene powder.
9. The learned Trial Court has in the impugned judgment and
order recorded the findings that there are contrary versions
about the demand and the prosecution has not proved
beyond reasonable doubt that the accused had made any
demand for any illegal gratification from the complainant.
Moreover, there is also major contradiction about putting the
tainted currency notes into the pocket of the PW.2 Vinodrai
Vishwanath Dave before the trap and it is also on record that
PW.2 Vinodrai Vishwanath Dave was a reluctant witness and
he was not ready to play any part in the trap but he was
forced by Mr. Sarvaiya, the Trap Laying Officer to hand over
the tainted currency notes to the accused. That there are
major contradictions about the hand kerchief also and as per
the case of the prosecution, the accused had taken his hand
kerchief out of his pocket and asked PW.2 Vinodrai
Vishwanath Dave to place the currency notes in the hand
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
kerchief but PW.2 Vinodrai Vishwanath Dave has stated that
the hand kerchief belonged to him and has identified the
hand kerchief as his own. That in the entire evidence, the
panch witness has not heard the demand or seen the
acceptance by the accused and there are major contradictions
regarding the presence of the complainant Bhavnaben
Damjibhai Bundeliya at the shop on 10.10.1996 i.e. on the
date of the trap also. The panch witness has stated that
complainant Bhavnaben Damjibhai Bundeliya was present
but the complainant herself and the other witnesses have not
mentioned anything about the presence of the complainant at
the place of trap. It is also on record that PW.2 Vinodrai
Vishwanath Dave had brought the accused to the "Runners
Traders" shop and hence, it is not proved that the accused
came on his own to the "Runners Traders" to accept the
illegal gratification. It is also observed by the learned Trial
Court that if the accused had demanded and accepted the
amount, he would have immediately gone from the lane to
his office and he would not have returned back into the shop
and there is also the issue raised regarding the planning of
PW.2 Vinodrai Vishwanath Dave and Rameshbhai Bhatti to
trap accused. That the seizure memo states that the tainted
currency notes were found from the person of the accused
but, in fact, in the entire evidence, it is on record that the
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
tainted currency notes and the hand kerchief were found on
the ground in the shop from where they were picked up by
the accused at the direction of Mr. Sarvaiya, the Trap Laying
Officer and recovered. Hence, the demand, acceptance and
recovery of the tainted currency notes is not proved beyond
reasonable doubts and the learned Trial Court has discussed
all these aspects in impugned judgment.
10. In view of the settled position of law in the decisions of
Mallappa (Supra) and Neeraj Dutta (Supra) and appraisal of
the evidence produced by the prosecution, the reasons
assigned by the learned Trial Court are just and proper and
hence, this Court is of the considered opinion that the learned
Trial Court was completely justified in acquitting the accused
of the charges levelled against him. The findings recorded by
the learned Trial Court are absolutely just and proper and no
illegality or infirmity has been committed and this Court is in
complete agreement with the findings, ultimate conclusion
and the resultant order of acquittal recorded by the learned
Trial Court.
11. 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. The impugned
judgment and order dated 25.11.2004 passed by the learned
NEUTRAL CITATION
R/CR.A/561/2006 JUDGMENT DATED: 19/02/2024
undefined
Special Judge, Fast Track Court No.2, Bhavnagar in Special
(ACB) Case No. 6 of 1997 is hereby confirmed. Bail bonds
stand cancelled.
12. Record and proceedings be sent back to the concerned Trial
Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI....
