The State Of Gujarat vs Bharatbhai Lilachand Desai
2024 Latest Caselaw 4515 Guj

Gujarat High Court

The State Of Gujarat vs Bharatbhai Lilachand Desai on 7 June, 2024

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     R/CR.A/198/2008                                 JUDGMENT DATED: 07/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 198 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO                                       Sd/-

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1    Whether Reporters of Local Papers may be allowed to                  YES
     see the judgment ?

2    To be referred to the Reporter or not ?                              YES

3    Whether their Lordships wish to see the fair copy of the              NO
     judgment ?

4    Whether this case involves a substantial question of law              NO
     as to the interpretation of the Constitution of India or any
     order made thereunder ?

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                      THE STATE OF GUJARAT
                                Versus
                BHARATBHAI LILACHAND DESAI & ANR.
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Appearance:
MS. MAITHILI MEHTA, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
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  CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                               Date : 07/06/2024
                               ORAL JUDGMENT

1] This appeal has been filed by the appellant-State under

Section 378(1)(3) of the Criminal Procedure Code, 1973

(hereinafter referred to as the "Code") against the judgment and

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order of acquittal dated 15/02/2007 passed by the learned Special

Judge, Fast Track Court No. 4, Surat (herein after referred to as

'the learned trial Court') in Special (ACB) Case No. 74 of 1997,

whereby the respondents were charged and tried by the learned

trial Court for the offences punishable under Section 7 read with

Section 12 of the Prevention of Corruption Act, 1988 (herein after

referred to as 'the Act') and at the end of the trial, the learned trial

Court was pleased to acquit the respondent for the offence with

which they were charged. The respondents are hereinafter referred

to as 'the accused' as they stood in the original case, for the sake

of convenience, clarity and brevity.

1.1] During the pendency of this appeal, the respondent No.

1 expired on 21.12.2009 and hence the appeal qua the respondent

No. 1 was abated by an order dated 29/05/2024.

2] The brief facts that emerge from the record of the case

are as under:

2.1] That the accused No. 1 was working as an Unarmed

Police Constable in Kosamba Police Station, District: Surat and the

accused No. 2 was working as an Armed Police Constable in the

Police Head Quarters, Surat City, Surat and both the accused were

public servants. That on 28/05/1997, at around 10:15 am, the

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complainant Kanchanben wife of Supadbhai Manubhai Vasava of

village Kothwa was going in auto-rickshaw No. GJ-5-Y-7075 from

Pipodara to Kothwa village and the auto-rickshaw was being

driven by the son of the complainant Hashmukhbhai Supadbhai

Vasava. That both the accused came on a motorcycle from behind

and halted the rickshaw and checked the auto-rickshaw and told

the complainant Kanchanben Supadbhai Vasava that she was

taking liquor in the auto-rickshaw. That behind the seat in the auto-

rickshaw, there were four empty gallons and both the accused told

her that she had sold liquor and come and hence the auto-

rickshaw would have to be detained. That the accused demanded

for an amount of illegal gratification of Rs.20.000/- and started

taking the auto-rickshaw towards Kosamba Octroi Check Post.

That once again they halted the auto-rickshaw and demanded an

amount of Rs.10,000/- and told her to pay the amount of illegal

gratification at Pipodara or Kim cross roads till the evening and

had thereafter released the auto-rickshaw and the complainant

Kanchanben. That the complainant Kanchanben did not want to

give the amount of illegal gratification and hence she went to ACB

Police Station, Surat and filed the complaint under Sections 7 and

12 of the PC Act.

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2.2] That the Trap Laying Officer called the panch

witnesses and in the presence of the panch witnesses and the

complainant, the demonstration of the anthracene powder and

ultraviolet lamp was carried out and the characteristics of

anthracene powder and ultraviolet lamp were explained to them.

That the complainant gave twenty currency notes of the

denomination of Rs.500/- each and the currency notes were

smeared with anthracene powder and the trap was arranged. That

the complainant and the shadow witness went to Dabhodiya Road

towards Dabhodiya village but they did not find the accused and

hence went from Pipodara to Kim cross roads. That, the

complainant and the panch witness stood at a Pan Stall on the

road from Kim cross roads towards Areth and after waiting for a

long time, both the accused came on a red colour "Hero Honda"

Motorcycle. That the accused No. 1 was driving the motorcycle

and he inquired about the identity of the panch witness and where

she was going and demanded the amount of illegal gratification.

That the complainant took the amount which was tied in the corner

of her "Sari" and held it towards the accused No.2 but the accused

No.1 told her to come to one side and the accused No. 2 got down

from the motorcycle and the accused No. 1 took the motorcycle to

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the side of the road. That the complainant held out the tainted

currency notes to give it to the accused No. 2 but the accused

No.1 immediately said " later later" and both the accused went

away with the motorcycle and the trap was unsuccessful. That the

panchnama was drawn and the Investigating Officer recorded the

statement of the connected witnesses and after the sanction for

prosecution was received, a charge sheet was filed before the

Sessions Court, Surat, which was registered as Special (ACB)

Case No. 74 of 1997.

2.3] 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. 4 was framed against the accused

and the statements of the accused were recorded at Exh. 5 and 6,

wherein, the accused 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.       P.W.                  Particulars                           Exh.
 No.







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2.5]            The      prosecution       has         produced       the       following

documentary evidences in support of their case.

 Sr.                              Particulars                                         Exh.
 No.











2.5]            After the learned APP filed the closing pursis at Exh: 49

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 the impugned judgement and

order dated 15/02/2007 in Special (ACB) Case No. 74 of 1997 was

pleased to acquit both 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 stating that the judgement and order of

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acquittal passed by the learned Trial Court is contrary to law, and

evidence on record and principles of justice and is required to be

quashed and set aside. That the impugned judgment and order is

based on inferences, not warranted by the facts of the case and

also on presumption not permitted by law. That the learned trial

Court has not properly appreciated the oral as well as

documentary evidence on record and has committed an error in

acquitting the accused. That the learned trial Court has not

appreciated the evidence of the complainant Kanchanben

Supadbhai Vasava as also the panch witness Minakshiben

Jagdishchandra Gajjar. That the prosecution has clearly proved the

case of demand but the learned trial Court has committed an error

in holding that the prosecution has not examined Hashmukhbhai

Supadbhai Vasava, son of the complainant to prove the aspect of

demand. That the learned trial court also erred in concluding that

the accused have not been identified by the panch no. 1 and has

passed the impugned judgment and order of acquittal and has

committed a grave error in relying upon minor omissions and

contradictions in the evidence of the complainant. That, the

judgment and order of acquittal is erroneous and bad in law and

contrary to the evidence on record and hence the same must be

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quashed and set aside.

4] Heard learned APP Ms. Maithili Mehta for the

Appellate- State. Though served the respondents have not

appeared either in person or through an advocate.

5] Before adverting to the facts of the case on hand, it

would be apt to refer to the scope of the appellate Courts in

acquittal appeals and the Apex Court in Criminal Appeal No.1167

of 2018 in the case of Ballu @ Balram @ Balmukund and

Another Vs State of Madhya Pradesh in para Nos. 8 and 9 has

observed thus:-

"8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.

9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. 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. (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

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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."

6] The accused have been charged with the offence of

Section 7 and 12 of the PC Act which reads as under: -

Section 7- Public servant taking gratification other than legal remuneration in respect of an official act.--

Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person 5 or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1 [three years] but which may extend to 2 [seven years] and shall also be liable to fine.

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Explanations.--

(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."

Section 12:- Punishment for abetment of offences defined in section 7 or 11:- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.".

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7] In acquittal appeals, as settled by the Apex Court, the

interference of an appellate Court is very limited and unless the

findings of acquittal of the learned trial Court are perverse or

impossible, the appellate Court should not interfere. Moreover, it is

also settled that the appellate Court must reappreciate and

reevaluate the entire evidence of the prosecution produced before

the learned trial Court and hence the entire evidence produced by

the prosecution is minutely dissected.

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

prosecution has examined Prosecution Witness No. 1 Kanchanben

Supadbhai Vasava at exhibit 16. This witness is the complainant

and she has deposed that she was going in auto-rickshaw No. GJ-

5-Y-7075 from Pipodara to Kothwa village and the auto-rickshaw

was being driven by her son Hashmukhbhai Supadbhai Vasava.

That they were going from Pipodara towards her residence in

Kothwa village and there were four empty gallons in the auto-

rickshaw and when they reached Khandsari Ambhetha, two

Policemen Bharatbhai and Major came behind the rickshaw and

halted the rickshaw near Kosamba Octroi Check Post. That they

told the complainant that she has liquor in 4 gallons and wanted to

check the gallons and at that time they demanded an amount of

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illegal gratification of Rs.20.000/-. The policemen threatened to put

her behind bars if the amount of Rs.20,000/- was not paid. That the

gallons were empty gallons and after bargaining they demanded

for an amount of Rs.10,000/- instead of the Rs.20,000/- demanded

earlier. The complainant told them that she would pay the amount

on the same day between 02:00-2:30 pm and she told them to

come to her house and take the amount but they refused and told

her to give it in village Pipodara. That she could not arrange for the

amount and hence both the policemen came to her house and her

daughter told them that she had gone to Pipodara. That both the

policemen came to house of her son's father in law at around

03:00 pm but she was not there and hence they returned. That

once again on the next day, at around 06:00 pm, they came to

Pipodara to take the amount but they could not find her and hence

asked her son's father in law about her. That in all both the

policemen came to the house of her son's father in law for four

times and they had a red colour Hero Honda Motorcycle without a

number plate. That she had filed the complaint with the ACB police

and the ACB Police Station called two panch witnesses, out of

which one was a lady. That she had given Rs.10,000/- but does

not remember the denomination of the currency notes. That some

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powder was applied on the notes and the notes were folded and

placed in her lap. That the light test was done and they went to

Pipodara. That they went to house of her son's father in law and

asked whether Bharatbhai and Majorbhai had come to collect the

amount and she was told that they had come at around 07:00 pm.

That from there, they went to Kim Cross roads and she and the

panch were sitting at the cross roads when Bharatbhai and Major

came with the Honda Motorcycle. That they saw the panch sitting

with her and went to Limodara village. That they went to her

daughter and inquired from the complainant daughter the reason

for her sitting with one lady on Kim Cross roads at 10:00 pm. That

once against they came to Kim Cross Roads and asked her

whether she had brought the money and she replied in the

affirmative and told them that she had brought Rs.10,000/-.

Bharatbhai was sitting in the front on the Honda Motorcycle and

Major was sitting behind and he extended his hand to take money

and she too had extended her hand to give the money. That

Majorbhai held the money but she did not leave it and thereafter

Majorbhai and Bharatbhai ran away. The ACB Police officers

followed them but they were not caught. That she and the panch

witness were taken to a hotel and the police had seized the tainted

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currency notes of Rs.10,000/- from her. That she and the panch

witness went home and the witness has identified both the

accused before the Court.

During the Cross examination by the learned advocate for

the accused, the complainant has stated that she had earlier been

arrested in cases filed under the Prohibition Act and also under the

PASA Act. That she does not know whether Bharatbhai and

Majorbhai were working in the Kosamba Police Station. That she

knew the accused earlier as Kosamba Police used to conduct

raids in the street where she lives. That she had four gallons of the

capacity of 35 litres each and she was going from her village to

Kim cross roads to buy kerosene from one Marwadi person who

was giving kerosene. That when they halted the auto-rickshaw, she

did not know them and they both were unknown to each other.

That she has not filed any complaint in Kosamba Police Station

and the accused were harassing and threatening to file false cases

against her. That after the auto-rickshaw was left, she did not go to

the Kosamba Police Station with the empty gallons to show that

there was nothing in the gallons. That after the tainted currency

notes were placed in her lap, she had tied the currency notes at

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the corner of her Sari and pushed it in her waist. That her son's

father in law had inquired about the lady, who was with her and

she told him that she was her friend. That when she was went to

Surat ACB Police Station, she had filed the complaint against

Kosamba Police and no names were given to the ACB Police

Station.

8.1] The prosecution has examined prosecution witness No.

2 Minakshiben Jagdishchandra Gajjar at exhibit 21. This witness is

the panch witness, who had gone to ACB Police Station on

28/05/1997 along with other panch witness Bharatbhai Chandulal

Mehta. The witness has fully supported the case of the prosecution

and has narrated in detail about all the events that had occurred

when she had gone along with other panch witnesses to the ACB

office and the demonstration of the anthracene powder and the

ultraviolet lamp was done by the ACB Police in their presence and

twenty currency notes of the denomination of Rs.500/- each were

given by the complainant Kanchanben Vasava and thereafter the

trap was arranged and they went for the trap to Kim cross roads.

The witness has stated that the panch witnesses, the complainant

and the ACB officials had gone in a jeep to Pipodara village

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highway from the ACB office at Surat, Nanpura Chowk Bazar from

the main road to railway station to Kamrej Cross Roads and

thereafter to Pipodara village highway and reached at about 19:00

hrs. That she and the complainant got down from the jeep and

went walking towards Dabhodiya village. The complainant told her

that policemen Bharatbhai and Majorbhai were not present and

they went towards Kim cross roads. That they sat at a Pan Stall

and the other panch witness and ACB staff were standing around

them. That after a long time, a red colour Honda Motorcycle

without a number plate came and Bharatbhai was driving the

motorcycle and Majorbhai was sitting behind and they came and

inquired about her identity and she told them that she was residing

in Surat and was going to Kothwa Dargah with her Aunty and as

she had some work and the Aunty, she was waiting for them.

Bharatbhai asked the complainant whether she had brought it and

the complainant was removing the amount from the corner of her

Sari and at that time Majorbhai told Bharatbhai that Aunty has

brought the money. Bharatbhai said "give" and immediately

thereafter asked them why they were standing at this place. The

complainant said they would move to the side and Majorbhai got

down from the motorcycle and walked with them to the side of the

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road. Bharatbhai was sitting on the vehicle and was about 50 ft

away. That the complainant, the panchwitness and Majorbhai went

towards him and the complainant removed the bunch of currency

notes from the corner of her Sari and Majorbhai extended his hand

to receive the amount but before he could accept the currency

notes, Bharatbhai said "later later" and both of them sat on the

motorcycle and went away. That they came to the ACB staff

members and the currency notes were recovered and the

panchnama was drawn.

During the cross examination by the learned advocate for the

accused, this witness has stated that she was known to the other

panch earlier and the panchnama was written opposite Cafe

Paradise Hotel.

8.2] The prosecution has examined Prosecution Witness

No. 3 Lalmohammad Jummakhan Merunjay at exhibit 34 and the

witness is the Investigating Officer, who has taken over the

investigation from Police Inspector Mr.A.M.Rathod. This witness

has recorded the statements of the connected witnesses and after

the order of sanction for prosecution was received, he has filed the

charge-sheet.

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During the cross examination by the learned advocate for the

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

statement of the complainant and at that time he had known that

there were cases filed under the prohibition act against the

complainant. That at the time of incident, the accused No. 2 was

on "sick leave".

8.3] The prosecution has examined the Prosecution

Witness No. 4 Ajabsinh Modsinh Rathod at Exh: 40 and the

witness is the Trap Laying Officer, who has fully supported the

case of the prosecution and has narrated in detail about all the

events that had taken place from the time that the complainant

came to the ACB Police Station till the time that the complainant

and the panch witness returned as the accused did not accept the

tainted currency notes.

During the cross examination by the learned advocate for the

accused, this witness has stated that the complaint was filed on

28/05/1997 and was completed at 15:45 hrs. That the thumb

impression of the complainant is not identified by any person and

Kim Cross Roads is on the National Highway and there are a

number of shops and pan shops at that place. Hotel Paradise is

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situated at a distance of 50-60 feet away and he does not

remember as to whether there was a light at the pan shop. That

Palod Police chowki is situated near Kim cross roads and after the

accused went away, he did not inform the police chowki or

Kosamba Police Station. That he did not record the statement of

the father in law of the complainant and did not go to Dabhodiya

village. That the motorcycle of the accused was not seized and no

test identification parade was conducted to identify the accused by

the complainant or the panch witnesses.

9] On minute dissection of the entire evidence of the

prosecution, the infirmities in the case of the prosecution have

come on record and the charge against the accused is mainly of

attempting to obtain illegal gratification other than legal

remuneration to forbear to do any official act. As per the say of the

complainant, the accused had threatened to file a case against her

but in the deposition of the complainant, she has stated that she

did not know the accused and did not know whether they were

working as policemen in Kosamba Police Station. In the

deposition, this witness has stated that the accused, who were

Bharatbhai and Majorbhai had gone for about four times to the

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house of her son's father in law to demand for the amount of illegal

gratification but the prosecution has not examined the father in law

of the son of the complainant to prove whether the accused had in

fact gone to his house to collect the amount. As per the say of the

complainant, the initial demand was by the accused when she was

going in auto-rickshaw No. GJ-5-U-7075 and the rickshaw was

being driven by her son Hasmukh Supadbhai Vasava. The

prosecution has not examined Hasmukh Supadbhai Vasava, who

is a witness to the initial incident of the accused stopping the auto-

rickshaw, checking it, threatening to file a complaint under the

Prohibition Act against the complainant and thereafter demanding

for the amount of illegal gratification of Rs.20,000/- and finally

Rs.10,000/- from the accused. Even in the deposition of the

complainant, the identity of the accused is not fully established and

the demand made by the accused is not fully established. The

complainant has stated that at the time of the trap, she had

extended the tainted currency notes towards Majorbhai and he had

caught the amount with his left hand but she did not leave the

currency notes and they sat on the motorcycle and went away.

This fact is not stated by the panch witness Minakshiben

Jagdishchandra Gajjar and the panch witness has stated that while

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the complainant was removing the currency notes from the corner

of her Sari, Bharatbhai said "later later" and they sat on the

motorcycle and went away. Even in the deposition of the panch

witness, the demand is not clearly made out and there is nothing in

the deposition of panch witness to show that a clear demand of

illegal gratification was made by any of the accused. As per the

say of the complainant, the accused were sitting on the bike during

the entire time whereas the panch witness has stated that

Bharatbhai- accused No.1 was on the bike and Majorbhai got

down and walked about 50-60 ft with them. There is a major

contradiction as far as the contents of the gallons is concerned and

the complainant has stated that she was going to buy four gallons

of kerosene whereas the panch witness has stated that the

complainant had two empty gallons. As far as the demand aspect

is concerned besides the bald allegation of the complainant in the

complaint, there is no corroborative evidence to prove that the

accused had in fact demanded for the amount of illegal

gratification. That independent witnesses Hasmukh Supadbhai

Vasava, the father in law of the son of the complainant and the

daughter of the complainant were witnesses, who had witnessed

the demand as per the case of the prosecution but they have not

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been examined before the learned trial Court. As far as identity of

the accused is concerned, in the entire evidence, the accused are

referred to as Bharatbhai and Majorbhai whereas the accused No.

1 is Bharatbhai Lilachand Desai and the accused No. 2 is

Majroodin Kamruddin Shekh. Hence, the identity of the accused

No. 2 is also not clearly established. Admittedly, as per the case of

the prosecution, both the accused went away from the place and

at that time it was dark and at about 10:00 pm and hence the

identity of the accused is in doubt. No test identification parade has

been arranged by the Investigating Officer and there is no

evidence as to whether the accused, who were present before the

Court during the trial were the same accused at Kim cross roads

on the day of the trap at around 10:00 pm. The evidence of the

complainant is shaky and does not inspire confidence and the

learned trial Court in the impugned judgment has discussed all the

evidence in detail.

10] As per the settled position of law, the prosecution has

to prove the demand beyond reasonable doubt for establishing the

charge against the accused for the offence under the PC Act and

in the evidence of the prosecution, the evidence regarding the

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demand is not clearly forthcoming and when the complainant has

turned hostile and has not supported the case of the prosecution

and the demand is not clearly established and the charge is not

proved beyond reasonable doubts by the prosecution.

11] This Court has perused the findings of the trial Court

and has found that the learned trial Court has appreciated all the

evidence and has given proper reasons for acquitting 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, ultimate conclusion and the resultant order of acquittal

recorded by the learned trial Court and finds no reason to interfere

with the impugned judgment and order.

12] In view of the above discussions, the present appeal is

devoid of merits and resultantly the same is dismissed. The

impugned judgment and order of acquittal dated 15/02/2007

passed by the learned Special Judge, Fast Track Court No. 4,

Surat in Special (ACB) Case No. 74 of 1997 is hereby confirmed.

13] Bail bond stands canceled. Record and proceedings be

sent back to the concerned Trial Court forthwith.

Sd/-

(S. V. PINTO,J) VVM