Gujarat High Court
The State Of Gujart vs Mukundray Umiyashankar Barot on 4 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2076 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
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 interpretation of the Constitution of No
India or any order made thereunder ?
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THE STATE OF GUJART
Versus
MUKUNDRAY UMIYASHANKAR BAROT & ANR.
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2
MR FENIL H BATHIYA(13663) for the Opponent(s)/Respondent(s) No.
1,2
MR PREMAL S RACHH(3297) for the Opponent(s)/Respondent(s) No.
1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/06/2024
ORAL JUDGMENT
1. Learned advocate Mr. Fenil Bathiya submits that he
has instructions to appear on behalf of the respondents and
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seeks permission to file his appearance. Registry to accept.
2. This appeal has been filed by the appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgement and order of acquittal passed by the
learned Special Judge, Fast Track Court No. 2, Jamnagar
(hereinafter referred to as "the learned Trial Court") in
Special Case No. 5 of 1994 on 15.07.2006, whereby, the
learned Trial Court has acquitted the respondents for the
offence punishable under Sections 7, 12, 13(1)(d) and 13 (2)
of the Prevention of Corruption Act, 1988 (hereafter referred
to as "the PC Act" for short)
The respondents are hereinafter referred to as the
accused as they stood in the rank and file in the original
case for the sake of convenience, clarity and brevity.
3. The brief facts that emerge from the record of the case
are as under:
3.1 That the accused no. 1 was working as a
Superintendent and the accused no. 2 was working as a
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clerk in the Civil Supply Department, Jamnagar and were
public servants. That the complainant Bipinchandra Jentilal
Doshi was holding the license of distributing crude kerosene
at Dhutarpar village and in September 1993, the
complainant got reduced stock of kerosene. That the
complainant met both the accused and requested them for
an increase in the quota of kerosene and at that time, the
accused no. 1 demanded an amount of Rs. 500/- as illegal
gratification for himself and for the accused no. 2 and the
complainant agreed to pay the amount and hence, the quota
of kerosene for October was increased. That on 17.11.1993,
the complainant - Bipinchandra Jentilal Doshi went to the
office of the Mamlatdar Rural and met the accused to
request for increase in the quota of kerosene for the month
of November and at that time, the accused no. 2 demanded
the amount of Rs. 500/- which was promised by the
complainant. That the complainant did not want to pay the
amount of illegal gratification and the complainant went to
the ACB Police Station at Jamnagar and filed the complaint
against the accused which was registered at C.R. No.
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15/1993 on 18.11.1993. The Trap Laying Officer called the
panch witnesses and the demonstration of anthracene
powder and the ultraviolet lamp was carried out in the
presence of the panch witnesses and the complainant and
the characteristics of the anthracene powder and the
ultraviolet lamp were explained to them. That the
complainant gave five currency notes of the denomination of
Rs. 100/- each to the Trap Laying Officer and the currency
notes were smeared with anthracene powder and placed in
the left side shirt pocket of the complainant. That the
complainant and the shadow witness went to the office of
the accused and at that time, in the presence of the shadow
witness, the accused no. 1 demanded for the amount of
illegal gratification and the complainant took the tainted
currency notes from his left side shirt pocket and gave it to
the accused no. 1 who told the complainant to place the
currency notes in a file and the complainant placed the
currency notes in the file and the accused no. 1 placed the
file in the rack. That at that time, the complainant gave the
predetermined signal and the members of the raiding party
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came and caught the accused no. 1 red handed. That the
necessary panchnamas were drawn and the Investigating
Officer recorded the statements of the connected witnesses
and after the order of sanction for prosecution was received,
the charge-sheet was filed against both the accused before
the Sessions Court, Jamnagar which came to be registered
as Special ACB Case No. 5/1994.
3.2 The accused were duly served with the summons and
the accused appeared before the learned Trial Court, and
after the procedure under Section 207 of the Code of
Criminal Procedure was followed, a charge at Exh. 10 was
framed against the accused and the statements of the
accused were recorded at Exhs. 11 and 12 respectively,
wherein, the accused have denied all the contents of the
charge and the entire evidence of the prosecution was taken
on record.
3.3 The prosecution has examined three witnesses and
produced 27 documentary evidences and after the learned
APP filed the closing pursis at Exh. 52, the further
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statements of the accused under Section 313 of the Code of
Criminal Procedure were recorded and after the arguments
of the learned APP and the learned advocate for the accused
were heard, the learned Trial Court by an judgement and
order dated 15.07.2006 was pleased to acquit both the
accused from all the offences.
4. Being aggrieved and dissatisfied with the said
judgement and order of acquittal, the appellant - State has
filed the present appeal mainly stating that the impugned
judgement and order of acquittal passed by the learned Trial
Court is contrary to law, evidence on record and the learned
Trial Court ought to have appreciated that the complainant
has in his evidence successfully established the demand,
acceptance and recovery. The complainant has fully
supported the case of prosecution and there is no reason for
the learned Trial Court to disbelieve the complainant. The
panch witness has also fully supported the case of
prosecution and the evidence of the complainant is
corroborated by the evidence of the panch witness. The
prosecution has not examined the Trap Laying Officer as he
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expired but PW3 - Bhikhusha Alisha Shahamdar who was
the member of the raiding party has been examined and he
has fully supported the case of prosecution. That the
learned Trial Court has committed an error in not accepting
the evidence of the prosecution witnesses and the impugned
judgement and order of acquittal is erroneous, unjust and
improper and is required to be quashed and set aside and
the accused must be found guilty of the said offence.
5. Heard learned APP Ms. C.M. Shah for the appellant -
State and learned advocate Mr. Fenil H. Bathiya for the
respondents. Perused the impugned judgement and order
and entire evidence of prosecution on record.
6. Learned APP Ms. C.M. Shah has taken this Court
through the entire evidence of the prosecution in detail and
has stated that the learned Trial Court has not appreciated
the evidence in proper perspective. That the prosecution has
proved all the ingredients of demand, acceptance and
recovery beyond reasonable doubts and the learned APP has
urged this Court to quashed and set aside the impugned
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judgement and order of acquittal and convict the accused.
7. Learned advocate Mr. Fenil H. Bathiya for the
respondents has submitted that the learned Trial Court has
properly appreciated all the evidences and has rightly
acquitted both the accused as there is no iota of evidence
regarding demand of any illegal gratification or acceptance
by the accused and the learned Trial Court, in a well
reasoned judgement, has discussed all the evidences and
has rightly acquitted the accused and hence, the appeal
must be rejected.
8. The Hon'ble Apex Court in case of Ballu @ Balram @
Balmukund & Anr. Vs. State of Madhya Pradesh in Criminal
Appeal No. 1167 of 2018, in para 9, has observed as under:
9....... The law with regard to interference by the Appellate
Court is very well crystallized. Unless the finding of
acquittal is found to be perverse or impossible, interference
with the same would not be warranted. Though, there are a
catena of judgments on the issue, we will only refer to two
judgments which the High Court itself has reproduced in
the impugned judgment, which are as reproduced below:
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"13. In case of Sadhu Saran Singh vs. State of U.P.
(2016) 4 SCC 397, the Supreme Court has held that:-
In an appeal against acquittal where the
presumption of innocence in favour of the accused
is reinforced, the appellate Court would interfere
with the order of acquittal only when there is
perversity of fact and !aw. However, we believe that
the paramount consideration of the Court is to do
substantial justice and avoid miscarriage of justice
which can arise by acquitting the accused who is
guilty of an offence. A miscarriage of justice that
may occur by the acquittal of the guilty is no less
than from the conviction of an innocent. Appellate
Court, while enunciating the principles with
regard to the scope of powers of the appellate
Court in an appeal against acquittal, has no
absolute restriction in law to review and relook the
entire evidence on which the order of acquittal is
founded."
14. Similar, In case of Harljan Bhala Teja vs. State of
Gujarat (2016) 12 SCC 665, the Supreme Court has
held that:-
"No doubt, where, on appreciation of evidence on
record, two views are possible, and the trial court
has taken a view of acquittal, the appellate court
should not interfere with the same. However, this
does not mean that in all the cases where the trial
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court has recorded acquittal, the same should not
be interfered with, even if the view is perverse.
Where the view taken by the trial court is against
the weight of evidence on record, or perverse, it is
always open far the appellate court to express the
right conclusion after reappreciating the evidence
If the charge is proved beyond reasonable doubt
on record, and convict the accused."
8.1 In the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of
Delhi) reported in 2022 0 Supreme (SC) 1248, the Hon'ble
Apex Court has held 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.
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(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
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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."
9. In view of the settled principles of law in acquittal
appeals, it is essential to reappreciate the evidence
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produced by the prosecution on record before the learned
Trial Court and to bring home the charge against the
accused, the prosecution has examined PW1 -
Bipinchandra Jentilal at Exh. 15. The witness is the
complainant who has fully supported the case of
prosecution and has narrated the details about the
complaint and has thereafter, stated that when he went
along with the panch witnesses to the office of the accused,
the accused were not in the office and there was some other
person who told them that the accused would come. That
they waited and the accused no. 1 came and at that time,
the accused demanded for the amount and he gave the
amount of Rs. 500/- from his left side shirt pocket. The
accused no. 1 told him to keep the amount in the file and
after he had put the amount in the file, the accused no. 1
placed the same in the rack. That thereafter, the accused
no. 1 came out of the room in the lobby and he was taken to
the room and the amount was recovered from the file. No
traces of anthracene powder were found on the hands of the
accused no. 1. The witness has stated that the panchnama
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was being written by Mavani Saheb and has produced the
complaint at Exh. 16. During the cross-examination by the
learned advocate for the accused, the witness has admitted
that he had earlier deposed in a case under the PC Act and
he was also arrested and sent to jail at Bhuj for black
marketing. That does not know who has the power to allot
the quota of kerosene and any application for allotment of
kerosene has to be made to the Mamlatdar. The witness has
further stated that he was known to Mavani Saheb earlier
and he had told Mavani Saheb that the accused were
demanding for money to increase his quota of kerosene but
no complaint in writing was taken at that time. That when
he went to give the predetermined signal, the accused came
out from his chamber and the accused was two steps in
front of him and the panch witness was with him and at
that time, there was no one in the room. The rack which
had the file was at a distance of about 5-7 feet from where
he was standing and the rack was an open rack and the
table was a distance of 2 feet from the rack. That the
accused no. 1 had taken two to three files from the rack and
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when the members of the raiding party came, the accused
no. 1 was in the lobby. That he had deposed before the
Court about ten months prior to his deposition in this case
and he was declared hostile in that case. That the case was
filed against a Superintendent, Civil Supply Department and
a Deputy Mamlatdar. That his brother is also doing the
business of kerosene and his brother has also filed a case in
the ACB Police Station. The witness has further stated that
the allotment of quota of kerosene is done by the Mamlatdar
(Rural) and an order is passed regarding the monthly
allotment for the quota of kerosene by the Mamlatdar
(Rural). That he has not filed any application for increase in
quota of kerosene to the Mamlatdar (Rural) and has not met
the Mamlatdar (Rural). That the Superintendent, Civil
Supply Department comes to his place for checking and if
there is any irregularity, it is reported to the Mamlatdar.
9.1 The prosecution has examined PW2 - Chamanlal
Hiralal Rajyaguru at Exh. 23 and this witness is the panch
witness who has stated that on 18.11.1993, he had gone to
the ACB Office and met the complainant and the other
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police officials. The complainant had given five currency
notes of the denomination of Rs. 100/- each on which
anthracene powder was applied and he and the complainant
and another panch went in a rickshaw to the Mamlatdar
Office, Jamnagar. That he had gone along with the
complainant and the accused no. 1 had asked the
complainant whether he had brought the money and the
complainant replied in the affirmative and gave the amount
to the accused no. 1 and the accused no. 1 took a file and
told the complainant to put the money in the file. That the
complainant was instructed to give the predetermined signal
and he went and gave the predetermined signal and the
members of the raiding party came and caught the accused.
That he was called to the ACB Office on 19 th November and
was asked about the incident and his signatures were taken
in the panchnama on that day. The witness was permitted
to refresh his memory and the panchnama was read over to
him and thereafter, the witness has stated that his
signatures were taken in the office on the same day. During
the cross-examination by the learned advocate for the
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accused, the witness has stated that the complainant was
not questioned in their presence and when the complainant
gave the predetermined signal, the other staff rushed in and
the accused no. 1 was seated on his chair and when Police
Inspector - Mr. Mavani introduced himself, the accused
stood up from his chair. That at that time, the file was on
the table and he was called to the ACB Office on 19.11.1993
and had affixed his signature on the paper at five to seven
places. That the writing on 19.11.1993 was of five to six
pages and after the writing was over, both the panch
witnesses and Mavani Saheb had affixed their signatures.
That anthracene powder was found on one hand of the
accused no. 1.
9.2 The prosecution has examined PW3 - Bhikhusha
Alisha Shahamdar at Exh. 26 and this witness is the
member of the raiding party and the lamp operator who had
conducted the demonstration of anthracene powder and the
ultraviolet lamp in the office on the day of the trap and was
in the lobby at the time of the trap. That after the
predetermined signal was given, the witness had gone into
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the office and had conducted the ultraviolet lamp test and
found traces of anthracene powder on the currency notes
which were in the file. The witness has stated that no
anthracene powder was found on the hands of the accused.
The witness has thereafter, stated that the entire
investigation was done by the Trap Laying Officer - Mr.
Mavani and thereafter, Police Inspector - Mr. Nagar had
filed the charge-sheet. During the cross-examination by the
learned advocate of the accused, the witness has stated that
after the predetermined signal was given, the accused no. 1
was in the lobby and the panch no. 1 was in the room and
the complainant was also in the lobby.
10. On meticulous appreciation and dissection of the
entire oral and documentary evidence produced by the
prosecution before the learned Trial Court, it is on record
that the prosecution has not examined the Trap Laying
Officer and the Investigating Officer as they have expired.
The prosecution has in all, examined the complainant, the
panch witness and PW3 who was a member of the raiding
party and the lamp operator. In the evidence of the
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complainant and the panch witnesses, there are a number
of contradictions and there is no iota of evidence of demand
or prior demand made by any of the accused in the
evidence. Admittedly, the accused no. 2 was not present on
the day of the trap and the tainted currency notes were
found in the file but there is a contradiction in the location
of the file. The complainant has stated that the accused no.
1 had asked him to place the tainted currency notes in the
file and he had placed the file in the rack from where it was
recovered but the panch witness says that the file was lying
on the table. There is also a contradiction in the place where
the accused no. 1 was found; and the complainant and the
PW3 - Bhikhusha Alisha Shahamdar states that the
accused no. 1 had come out of the office and was in the
lobby and the complainant states that he was two feet
behind the accused no. 1 and gave the predetermined signal
and at that time, the members of the raiding party came
and caught the accused from the lobby and brought him
inside the office. The panch witness - PW2 - Chamanlal
Hiralal Rajyaguru states that the accused no. 1 was seated
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at the table and the complainant went out to give the
predetermined signal and at that time, the members of the
raiding party came and when Police Inspector - Mr. Mavani
introduced himself, the accused no. 1 stood from his chair.
As per the case of prosecution, the tainted currency notes
were placed in the file as per the instruction of the accused
and the file was placed in the rack but the panch witness
has stated that the left hand of the accused was found with
traces of anthracene powder. It appears that there are huge
contradictions in the evidence of the complainant -
Bipinchandra Jentilal Doshi and the panch witness -
Chamanlal Hiralal Rajyaguru and it is also on record that
the complainant had been arrested for black marketing and
was in jail at Bhuj. That the complainant had also earlier
filed a complaint against the officers of the Civil Supply
Department and he has turned hostile in the case, wherein,
his deposition was recorded about ten months prior to his
deposition in this case. In these circumstances, when there
is no independent evidence regarding the demand made by
the accused persons, and except for the bald allegations of
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the complainant that the amount of Rs. 500/- was
demanded for the increase in quota of kerosene when it is
on record that the accused had no power to increase the
quota of kerosene and it was the Mamlatdar (Rural) who
was the competent authority to increase the quota of
kerosene for the complainant. Moreover, it is also on record
that the office of the accused was open and when the
complainant and the panch witness had gone earlier, there
was no one in the office and the possibility that the tainted
currency notes were placed in the file without the knowledge
of the accused cannot be ruled out. There is no cogent and
convincing evidence regarding the demand and acceptance
of any amount of illegal gratification and the evidence of the
prosecution does not inspire confidence.
11. As discussed above, on meticulously dissection of the
evidence of the prosecution as also considering the
observations of the Hon'ble Apex Court in Ballu @ Balram @
Balmukund (supra), this Court is of the considered opinion
that the judgement and order passed by the learned Trial
Court is with proper reasons and the learned Trial Court is
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fully justified in acquitting both the accused from all the
charges levelled against them. This Court does not find any
illegality, perversity or infirmity in the findings recorded by
the learned Trial Court and is in complete agreement with
the findings, ultimate conclusion and resultant order of
acquittal.
12. This Court finds no reason to interfere with the
impugned judgement and order and the present appeal is
devoid of merits and resultantly the same is dismissed. The
impugned judgement and order of acquittal passed by the
learned Special Judge, Fast Track Court No. 2, Jamnagar
in Special Case No. 5 of 1994 on 15.07.2006 is hereby
confirmed.
13. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
