Gujarat High Court
State Of Gujarat vs Arvindbhai Mathurdas Khambhediya on 4 June, 2024
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1130 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
=========================================================
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 ?
=========================================================
STATE OF GUJARAT
Versus
ARVINDBHAI MATHURDAS KHAMBHEDIYA
=========================================================
Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
MR P B KHANDHERIA(5228) for the Opponent(s)/Respondent(s) No. 1
=========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/06/2024
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 judgement and order of acquittal passed by the
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
learned Special Judge, Fast Track Court No. 2, Amreli
(hereinafter referred to as "the learned Trial Court") in
Special Case No. 36 of 1997 on 18.12.2007, whereby, the
learned Trial Court has acquitted the respondent for the
offence punishable under Sections 7, 12, 5(d) read with 5(2)
of the Prevention of Corruption Act, 1988 (hereafter referred
to as "the PC Act" for short)
The respondent is hereinafter referred to as the
accused as he stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 That the accused was working as a Medical Office,
Class-I in the M.R. Valiya Civil Hospital, Lathi, District
Amreli in the year 1987 and was a public servant. That the
complainant - Kiritkumar Nanalal Bavaji residing at
Luvariya was not well and had gone to the M.R. Valiya Civil
Hospital at Lathi on 25.06.1987 and at that time, the
accused demanded for an amount of Rs. 10/- as illegal
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
gratification. That the complainant did not have the amount
and hence, did not give the amount to the accused and at
that time, the accused told the complainant to take the
amount from his employer and to give him the amount
when he would come the next time and told the accused to
come on 29.06.1987 between 08.00 and 09.00 pm at his
residence and to bring Rs. 20/- on that day. That the
complainant did not want to pay the amount of illegal
gratification and hence, the complainant went to the ACB
Police Station, Amreli and filed the complaint on 29.06.1987
under Section 161 of IPC and Sections 5(2) of the PC Act,
1947 which was registered at C.R. No. 1/1987 on
29.06.1987. The Trap Laying Officer called the panch
witnesses and the demonstration of anthracene powder and
ultraviolet lamp was done in the presence of the panch
witnesses and the complainant and the characteristics of
anthracene powder and ultraviolet lamp was explained to
the complainant and the panch witnesses and the trap was
arranged. That on 29.06.1987, the complainant and the
panch witness to the residence of the accused and gave the
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
amount of Rs. 20/- as illegal gratification to the accused
which was accepted by the accused and after the
predetermined signal was given, the members of the raiding
party came and the accused was caught red handed.
2.2 The Investigating Officer recorded the statements of
the connected witness and the charge-sheet was filed before
the Sessions Court, Amreli which was registered as Special
Case No. 5/1989 on 29.08.1989. That the order of sanction
for prosecution was not given and the accused filed an
application at Exh. 7 for dropping of the proceeding which
was granted by the learned Trial Court and by an order
dated 05.11.1993, the proceedings against the accused were
dropped. That once again, the ACB Police Station sought for
sanction for prosecution from the Competent Authority and
the sanction for prosecution was given and once again the
accused was arrested on 30.07.1997 and the charge-sheet
was filed before the Sessions Court, Amreli which was
registered as Special Case No. 36/1997.
2.3 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and the
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
learned Trial Court followed the due procedure under
Section 207 of the Code of Criminal Procedure. That the
accused filed an application at Exh. 4 for discharge but the
same was rejected by the learned Trial Court by an order
dated 07.08.2004. The charge was framed against the
accused at Exh. 25 and the statement of the accused was
recorded at Exh. 26, wherein, the accused has denied all
the contents of the charge and the entire evidence of the
prosecution was taken on record.
2.4 The prosecution has produced the following oral
evidences in support of their case.
Sr. No. PW Particulars Exh.
2.5 The prosecution has produced the following
documentary evidences in support of their case.
Sr. No. Particulars Exh.
1. Complaint 52 & 52A
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
2.6 After the learned APP filed the closing pursis at Exh.
71, the further statement of the accused under Section 313
of the Code of Criminal Procedure was recorded and after
the arguments of the learned APP and the learned advocate
for the accused were heard, the learned Trial Court by a
judgement and order dated 18.12.2007 was pleased to
acquit the accused from all the offences.
3. Being aggrieved and dissatisfied with the said
judgement and order of acquittal, the appellant - State has
filed the present appeal mainly contending 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 has erred in holding that the
prosecution has not proved its case beyond reasonable
doubts. The learned Trial Court has failed to appreciate the
oral and documentary evidences produced by the
prosecution in true and proper perspective and the
documentary as well as the oral evidences fully supports the
case of prosecution. That the prosecution has proved that
the accused was working as a Medical Officer in the
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
Government Hospital at Lathi and had demanded an
amount of illegal gratification of Rs. 10/- from the
complainant and had clearly told the complainant to pay the
amount of Rs. 20/- on the next date when he would come
for a follow-up visit. That the accused had been caught red
handed in the presence of the panch witness and the
learned Trial Court has failed to appreciate the evidence of
the complainant as well as the evidence of the panch
witness. That the learned Trial Court has given undue
importance to minor omissions and contradictions and
there was no valid, legal and proper reason for the learned
Trial Court to disbelieve and disregard the evidence of the
witnesses. The impugned judgement and order has resulted
into miscarriage of justice and there is ample material
available on record to show that the accused had in fact,
demanded and accepted the amount of illegal gratification.
That the complainant has fully supported the case of
prosecution and the panch witness has also supported the
case of prosecution and it is proved that the amount was
recovered from the accused. That the learned Trial Court
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
has not appreciated the panchnama produced at Exh. 55
and the seizure memo produced at Exh. 71 and these
documents are proved which have fully supported the case
of prosecution. That the impugned judgement and order of
acquittal is improper, perverse and bad in law and is
required to be quashed and set aside and the appeal of the
appellant - State must be allowed.
4. Heard learned APP Ms. C.M. Shah for the appellant -
State and learned advocate Mr. P.B. Khandheria for the
respondent. Perused the impugned judgement and order
and entire evidence of prosecution on record.
5. Learned APP Ms. C.M. Shah has taken this Court
through the entire evidence produced by the prosecution on
record of Special Case No. 36/1997 and has submitted that
the complainant has clearly stated that the demand was
made by the accused - Medical Officer and the panch
witness has also supported the case of prosecution. That
the Trap Laying Officer has also deposed all the procedure
that was undertaken by him and the entire evidence clearly
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
establishes the ingredients of demand, acceptance and
recovery of the tainted currency notes from the accused and
hence, learned APP has urged this Court to allow the appeal
and convict the accused for the said offences.
6. Learned advocate Mr. P.B. Khandheria for the
respondent has submitted that the complainant has clearly
stated that the amount was demanded by the accused for
the injection and the medicines which was purchased from
the medical store and the peon of the accused had gone to
bring the medicines from the medical store and for that the
amount was demanded by the accused. That the accused
has not demanded for any amount of illegal gratification and
if the deposition of the panch witness is seen, the panch
witness has clearly stated that there was no conversation of
any demand or transaction between the complainant and
the accused in his presence. That he does not know as to
whether any amount was taken by the accused from the
complainant and the Trap Laying Officer has himself
investigated the major portion of the offence. That even
otherwise, the date of trap, as per the case of prosecution is
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
29.06.1987 and the order of sanction for prosecution has
been given on 07.06.1997 i.e. after a period of almost ten
years. That the learned Trial Court has considered all these
aspects and if the impugned judgement and order is
perused, the learned Trial Court has discussed each and
every aspects and has found that the prosecution has not
proved the case against the accused beyond reasonable
doubts and hence, the impugned judgement and order is
proper and no interference is required and the appeal of the
appellant must be rejected.
7. 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:
"13. In case of Sadhu Saran Singh vs. State of U.P.
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
(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
court has recorded acquittal, the same should not
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
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."
7.1 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.
(c) Further, the fact in issue, namely, the proof of
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
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,
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
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.
(f) In the event the complainant turns 'hostile', or has
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
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 settled position of law in acquittal
appeals and the settled position of law in cases filed under
the PC Act in light of the decision of the Hon'ble Apex Court
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
in Neeraj Dutta (supra), the evidence produced by the
prosecution before the learned Trial Court is minutely
dissected and the prosecution has examined PW1 -
Kiritkumar Nanalal at Exh. 32 to bring home the charge
against the accused. The witness is the complainant who
has stated that the incident had occurred in the year 1987
and he was working as a diamond polisher in the factory of
Balubhai Shambhubhai and at that time, he suffered from
chest pain and went to the Government Hospital at Lathi.
That he does not know when he had last gone to the
hospital but had gone very often to take treatment from the
accused and had not paid the amount as he did not have
the money and had paid the amount the next time. That his
friend Rasikbhai had told him that he did not have to given
any money in the Government Hospital. The witness had
thereafter, stated that he had told Rasikbhai that the doctor
was taking Rs. 10/- on each date and his friend had told
him to file a complaint at the ACB Office and he had gone to
the ACB Office and met Police Inspector - Mr. Kureshi and
had filed the complaint. That the Police Inspector called the
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
panch witnesses and the demonstration of anthracene
powder and ultraviolet lamp was done and the
characteristics of anthracene powder and ultraviolet lamp
was explained to them. That he had given two currency
notes of denomination of Rs. 20/- each to Kureshi Saheb
and the currency notes were smeared with anthracene
powder and placed in his left side shirt pocket. That he and
panch no. 1 had gone to Lathi Civil Hospital and met the
accused and he gave the amount to the accused who
accepted it with his left hand and placed in his shirt pocket.
That he gave the predetermined signal and the members of
the raiding part came and caught the accused red handed.
That the currency notes were removed from the pocket of
the accused and Kureshi Saheb was dictating and the
writer was writing and the test was done by a Head
Constable who was a member of the raiding party. That in
the test, the right fingers and palm of the accused was
found with anthracene powder and the shirt pocket was
also found with traces of anthracene powder. During the
cross-examination by the learned advocate for the accused,
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
the witness has stated that he was a regular patient of the
accused and was known to the accused as he was taking
medicines often from the accused. That if the medicine was
not available in the hospital, the accused used to call for
medicines from outside and would ask the complainant to
pay the cost for the same. That the accused would never
charge for any more amount than the cost of the medicine
and if the medicine was given from the hospital, no amount
was paid for that medicine. That at the time of the incident,
Bhartiben was the nurse in the Lathi Hospital and
Rasikbhai had taken him to Bhartiben. That Bhartiben had
stated that no money has to be paid in the Government
Hospital and hence, he had thought that if the medicine is
purchased from outside, he does not have to give the money
for the same. That on 25.06.1987, the accused had got one
injection and given him the injection and he had to take
more medicines which were brought from the medical store
by peon - Ukabhai. That he had to pay the amount of Rs.
20/- for the medicines purchased by Ukabhai from the
medical store and on the date of the trap, he had given the
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
amount towards the medicine which were brought from
outside. That due to a misunderstanding, he had file the
complaint and he was present at the time of the procedure
and the entire details of the panchnama were being dictated
by the Police Inspector and written by the writer and
thereafter, the signatures of the panch witnesses were
taken. The witness has categorically stated that on the day
of the trap, the accused did not demand any amount of
illegal gratification from him and he had given the amount
to the accused.
8.1 The prosecution has examined PW2 - Iqbalbhai
Amadbhai at Exh. 54 and this witness is the panch witness
who has stated that he had gone to the ACB Office along
with the other panch witness - Pravinkumar Jayantilal
Savaliya on 29.06.1987. That the complainant was present
and the complainant had filed the complaint and thereafter,
the demonstration of anthracene powder and ultraviolet
lamp was done in their presence and the characteristics of
anthracene powder and ultraviolet lamp was explained to
them. That the complainant had given the two currency
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
notes of the denomination of Rs. 20/- each which were
smeared with anthracene powder and placed in the shirt
pocket of the complainant. That they had gone for the trap
and he, the complainant and the other panch witness had
gone and he was instructed to stay with the members of the
raiding party. That after the predetermined signal was given,
he along with the other members of the raiding party went
and caught the accused and the currency note of Rs. 20/-
was recovered from the pocket of the accused. That the
panchnama was written at the Circuit House and thereafter,
he, the other panch witness and Kureshi Saheb affixed their
signatures. During the cross-examination by the learned
advocate for the accused, the witness has stated that he has
never been a panch in any case before this case and there
was no demand or any exchange of any amount between the
complainant and the accused in his presence. That he does
not know whether before the predetermined signal was
given and when they reached the place, whether the
accused had demanded any amount of illegal gratification
from the complainant. That at the office of the ACB, Kureshi
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
Saheb was dictating the panchnama and the writer was
writing the same and thereafter, the remaining portion of
the panchnama was written at the Circuit House, wherein,
Kureshi Saheb was dictating the panchnama and the writer
was writing the same and thereafter, their signatures were
affixed on the panchnama.
8.2 The prosecution has examined PW3 - Vikramsinh
Jivatsinh Puvar at Exh. 56 and this witness has stated that
on 09.08.1997, he had received the papers of case for
investigation and earlier Special Case No. 5/1989 was
investigated and the charge-sheet was filed before the
Sessions Court on 29.08.1989. That the order of sanction
for prosecution was given and the accused was arrested on
30.07.1997 at 10.30 am and the charge-sheet was filed
before the Court. During the cross-examination, the witness
has stated that the trap was arranged by Mr. Qureshi who
was a Police Sub Inspector and at that time, the Police
Inspector, ACB Police Station was on leave and the Police
Sub Inspector - Mr. Qureshi was In-Charge Police Inspector
at that time. That he has not recorded the statements of any
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
persons.
8.3 The prosecution has examined PW4 - Ahmedbhai
Babubhai Qureshi at Exh. 58 and this witness is the Trap
Laying Officer who was working as Police Inspector, ACB
Police Station on 28.06.1987. The witness has stated that
the complainant had come to the Circuit House and he had
recorded the complaint of the complainant and had
thereafter, called the panch witnesses and arranged for the
trap. The witness has stated that the panch witnesses and
the complainant were explained about the characteristics of
anthracene powder and ultraviolet lamp and the
demonstration was done by Head Constable - Harshadbhai
Pandya and the complainant had given two currency notes
of denomination Rs. 20/- which were laced with anthracene
powder and placed in the shirt pocket of the complainant.
That as instructed they had gone for the trap and when the
predetermined signal was given, they rushed in and caught
the accused red handed. That the panchnama was drawn
and the complaint was registered after they returned to
Amreli. That during the investigation, he had sent the
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
papers for the order of sanction for prosecution but they
had not received the order of sanction for prosecution while
he was on duty at Amreli and thereafter, he was transferred
to ACB Police Station at Rajkot and the further investigation
was taken over by Police Inspector - Mr. J.R. Patel. During
the cross-examination by the learned advocate for the
accused, the witness has stated that he has investigated
major portion of the offence and during his tenure the order
of sanction for prosecution was not received and hence, the
accused was discharged from the said offence. That after the
trap was successful, he had taken over the investigation
and the panch no. 2 was a private person. That the
complaint of the complainant was recorded in the Circuit
House at Amreli on 28.06.1987 and he has no personal
knowledge about the demand made by the accused. That
after the predetermined signal was given and when he
rushed in, he saw the accused for the first time and the
panchnama was dictated by him and written by his writer.
8.4 The prosecution has examined PW5 - Jitendra
Krushnalal Jani at Exh. 67 and this witness has stated that
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
in the year 1997, he was working as the Deputy Secretary in
the Health and Family Welfare Department and at that time,
he had received the papers from the ACB Office on
03.12.1997 for order of sanction for prosecution of the
accused. That he had given the order of sanction for
prosecution on 07.06.1997 which is produced at Exh. 68.
During the cross-examination by the learned advocate for
the accused, the witness has stated that the FIR and the
panchnama were the two documents that were received by
him from the ACB Office for the order of sanction for
prosecution. That the case was of the year 1987 and when
the papers were earlier received, no order of sanction for
prosecution was given. That at the time when the order of
sanction for prosecution was given, the accused was not a
public servant and the papers were received by him on
03.12.1996 and were sent to the government and the order
of sanction for prosecution was received on 10.05.1997 on
the basis of which he had issued the order of sanction for
prosecution. That the resignation of the accused was not
rejected and he had given the order of sanction for
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
prosecution on the basis of the proforma sent by the ACB
Office.
9. On meticulous appreciation and dissection of the
entire oral and documentary evidence produced by the
prosecution before the learned Trial Court, it is the case of
the prosecution that the accused had demanded for an
amount of illegal gratification of Rs. 10/- and thereafter, Rs.
20/- and the complainant had given the tainted currency
note of Rs. 20/- to the accused. The complainant has
categorically stated that the amount that was given to the
accused was the amount towards the cost of the medicines
purchased by the accused through the peon - Ukabhai from
the medical store and the complainant had, under a
misunderstanding, filed the complaint as his friend
Rasikbhai had taken him to nurse Bhartiben who had told
him that he did not have to pay for any amount for
treatment at the government hospital Lathi. In the
deposition of the complainant itself, it is on record that
there was no demand for illegal gratification from the
accused and if the deposition of the panch witness is
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
perused, it is clear that the panch witness was with the
members of the raiding party and he has not heard the
conversation that had taken place between the complainant
and the accused and had not witnessed the acceptance of
the illegal gratification by the accused. Moreover, it is
forthcoming in the deposition of the panch witness that the
panchnama was dictated by Kureshi Saheb and was written
by the Head Constable and thereafter, the panch witnesses
and the police officers have affixed their signatures. In the
deposition of PW5 - Jitendra Krushnalal Jani it has come
on record that the sanction for prosecution was given ten
years after the date of trap and at the time when the
sanction for prosecution was given, the accused was not a
public servant. In the evidence of the prosecution, it is also
on record that the charge-sheet without the order of
sanction for prosecution was filed before the Sessions Court
on 29.08.1988 which was Special Case No. 5/1989 and by
the order passed below Exh. 7 on 05.11.1993, the charges
against the accused were dropped and thereafter, the
sanction was once again sought for by the ACB Police
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
Station after a lapse of almost ten years and the sanction
was given and the accused was once again arrested on
30.07.1997. There is no clarification as to how the charge-
sheet was once again filed before the learned Trial Court
and it appears that the same was not challenged by the
accused at that time. Moreover, the order of sanction for
prosecution was given only considering the FIR and
panchnama and it is also on record that on the date when
the sanction for prosecution was given i.e. on 10.05.1997,
the accused was not a public servant and in the entire
evidence of the prosecution, the ingredients of demand and
acceptance of illegal gratification are not made out by the
prosecution beyond reasonable doubts. There is absolutely
no iota of evidence to prove the prior demand and to prove
the demand at the time of the trap and the complainant has
categorically stated that the complaint was filed only due to
a misunderstanding and there was no demand of any illegal
gratification from the accused but the amount that was
tendered to the accused was towards the cost of the
medicine purchased from the medical store by peon -
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
Ukabhai.
10. The learned Trial Court has discussed all the aspects
of the evidence of the prosecution and has concluded that
there is no reliable evidence to convict the accused and the
prosecution has miserably failed to establish the offence
charged against the accused. It is settled law that unless
the evidence is clear, cogent and reliable, no conviction can
be recorded and on re-appreciating the entire evidence, the
evidence is contrary and far from convincing. As observed
by the learned Apex Court in the case of Ballu @ Balram @
Balmukund (Supra), the scope of the Appellate Court to
interfere in the findings of acquittal is limited and unless
and until some perversity and illegality is found in the
judgment and order of the learned Trial Court, the Appellate
Court will interfere only to ensure that no miscarriage of
justice has occurred. In the present case, there is no iota of
evidence that any demand for illegal gratification was made
by the accused or that the accused had accepted any
amount of illegal gratification and the reasons assigned by
the learned Trial Court are just and proper. This Court has
NEUTRAL CITATION
R/CR.A/1130/2008 JUDGMENT DATED: 04/06/2024
undefined
perused the findings of the learned Trial Court and the
learned Trial Court has appreciated the evidence and has in
a well reasoned judgment and order acquitted the accused
and there is no perversity or illegality in the findings
recorded by the learned Trial Court. This Court is in
complete agreement with the findings, the reasons, ultimate
conclusion and the resultant order of acquittal by the
learned Trial Court.
11. 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, Amreli in
Special Case No. 36 of 1997 on 18.12.2007 is hereby
confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
