Gujarat High Court
State Of Gujarat vs Naranbhai Chandubhai Tabiar on 7 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 210 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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STATE OF GUJARAT
Versus
NARANBHAI CHANDUBHAI TABIAR
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Appearance:
MS. MAITHILI MEHTA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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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
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and order of acquittal dated 31/01/2007 passed by the learned
Additional Sessions Judge, Fast Track Court No. 2, Kheda at
Nadiad (herein after referred to as 'the learned Trial Court')in
Special (ACB) Case No. 14 of 2003, whereby the respondent was
charged and tried by the learned trial Court for the offences
punishable under Sections 7, 13(1)(d) and 13(2) 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 he
was charged. 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 an Unarmed Assistant Sub
Inspector, buckle No. 786 in Atarsumba Police Station, District:
Kheda and was a public servant. That the complainant
Badarsinh Mathursinh Solanki residing at Malvan Tabe
Chelavat, Taluka Kathlal, District: Kheda had a younger brother
Fatehsinh, whose daughter had eloped with one Natubhai
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Javanbhai Zala of village Kosam on 22/05/2003. That Fatehsinh,
the brother of the complainant Badarsinh Mathursinh Solanki
had filed a complaint under Sections 363, 366 and 506 of the
India Penal Code, 1860 (herein after referred to as "the IPC")
which was registered as I-C.R.No. 20 of 2003 in the Atarsumba
Police Station and the accused was the Investigating Officer of
said offence. That the accused called the complainant on
17/06/2003 to the Atarsumba Police Station and demanded for
an amount of illegal gratification of Rs. 1,000/- and after
bargaining the amount was fixed at Rs.500/-. That the
complainant did not want to pay the amount of illegal
gratification of Rs.500/- and hence the complainant went to the
ACB Police Station Kheda @ Nadiad and filed the complaint
under Sections 7, 13(1)(d) and 13(2) of the PC Act, which was
registered at C.R.No. I- 8 of 2003 on 08/06/2003.
2.2] That the Trap Laying Officer called the panch
witnesses and after the demonstration of the phenolphthalein
powder and solution of sodium carbonate was conducted in the
presence of the complainant and the panch witnesses and the
characteristics of phenolphthalein powder and solution of
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sodium carbonate was explained to the complainant and the
panch witnesses, the complainant gave five currency notes of
the denomination of Rs.100/- each which were smeared with the
phenolphthalein powder and placed in the left shirt pocket of
the complainant. That necessary instructions were given by the
Trap Laying Officer to the complainant and the panch witness
and the complainant, the panch witness and the members of
the raiding party left in government vehicle No.GJ-1-G-3365 and
GJ-1-G-4478 and went from Kapadvanj Road to Mahudha,
Kathlal, Dasalvada Cross roads to Antroli and Atarsumba.
2.3] That part 1 of the panchnama was drawn on
18/06/2003 from 8 am to 9:45 am and they reached at
Atarsumba Police Station. That the complainant and the panch
witness went walking from Atarsumba bus stand to Atarsumba
Police Station and found that the accused had gone in the
government vehicle to Vaghavat. That the complainant and the
panch witness returned to the Trap Laying Officer and they
decided to wait for the accused to return. That the complainant
and the panch witness went and waited near Atarsumba Police
Station and at around 13:30 hours, a white colour government
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jeep came and halted near the complainant and the panch
witness. The accused who was in plain clothes came towards the
complainant and the panch witness and demanded for the
amount of illegal gratification and the complainant took the
tainted currency notes from his left shirt pocket with his right
hand and gave it to the accused, who accepted it with his right
and placed it in his shirt pocket. That the complainant gave the
predetermined signal and the members of the raiding party
came and caught the accused red-handed. They took the
accused to the Atarsumba Police Station where the test of
solution of sodium carbonate was done and the tainted currency
notes were recovered from the accused by the panch No. 2 and
the panchanam was drawn.
2.4] The Investigating Officer recorded the statement of
the connected witnesses and collected the necessary
documentary evidences and after the order of sanction for
prosecution was received, a charge sheet came to be filed
before the Sessions Court, Kheda @ Nadiad, which was
registered as Special ACB Case No. 14 of 2003.
2.5] The accused was duly served with the summons and
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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. 8 was framed against
the accused and the statement of the accused was recorded at
Exh. 9, wherein, the accused denied all the contents of the
charge and the entire evidence of the prosecution was taken on
record.
2.6] The prosecution has examined 6 witnesses and has
produced 19 documentary evidence in support of their case.
After the learned APP filed the closing pursis at Exh: 70 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 31/01/2007 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 stating that the judgement and order
of acquittal passed by the learned Trial Court is contrary to law,
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evidence on record and principles of justice. That the learned
Trial Court has committed an error in acquitting the accused.
That the evidence of the prosecution on record has not been
properly evaluated and the learned trial Court has committed an
error in not believing the story of the prosecution when the
same was proved beyond reasonable doubts by leading cogent,
reliable and unimpeachable evidence. That the prosecution has
produced the evidence of the complainant, panch witness and
the Trap Laying Officer, who have all deposed and have fully
supported the case of the prosecution and the prosecution has
also produced the evidence of Circle Police Inspector, Petlad,
who had taken over the investigation of the offence in question.
That the prosecution has also produced the evidence of FSL
Analysis Officer and has proved that the solution of sodium
carbonate contained traces of phenolphthalein but the learned
trial Court has erroneously come to a conclusion that the
muddamal currency notes were not recovered from the
possession of the accused and has not believed the evidence of
the prosecution. That the prosecution has proved all the
ingredients of demand, acceptance and recovery and the
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learned trial Court has not appreciated that nothing has
emerged from the cross examination of the witnesses to render
their deposition doubtful or unbelievable and hence the
impugned judgment and order of acquittal deserves to be
quashed and set aside by this Court.
4] Heard learned APP Ms. Maithili Mehta for the
Appellate- State. Though served the respondent has not
appeared either in person or through an advocate. Perused the
impugned judgement and order of acquittal and have
reappreciated the entire evidence of the prosecution on record
of the case.
5] Learned APP Ms. Maithili Mehta has taken this Court
through the entire evidence of the prosecution and has
submitted that the prosecution has produced the evidence of the
complainant, the panch witness and the Trap Laying Officer and
there are no contradictions in their evidence. That even though,
the complainant has turned hostile, the portion of the evidence
that supports the case of the prosecution must be considered
and it is proved that the brother of the complainant Fatehsinh
had filed a complaint at Atarsumba Police Station, which was
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registered as I-C.R.No. 20 of 2003 under Sections 363, 366 and
506 of the Indian Penal Code, 1860 as his daughter had eloped
with one Natubhai Javanbhai Zala of village Kosam on
22/05/2003. That the accused was the Investigating Officer but
the accused was not arrest the said Natubhai Javanbhai Zala
and the accused had demanded for the amount of Rs.500/- as
illegal gratification to go and investigate the matter and arrest
the said Natubhai Javanbhai Zala. That the demand made by the
accused has been clearly established and thereafter the panch
witness has fully supported the case of the prosecution and in
the presence of the panch witness, the accused had accepted
the tainted currency notes and he was caught red-handed. That
the panchnama has been proved from the evidence of the panch
witness as also the Trap Laying Officer and the hand-wash of
the accused, which was taken in Atarsumba Police Station had
turned pink and the hand wash was sent to the FSL, which
showed that the hand wash contained traces of phenolphthalein.
That prosecution witness No. 6 Markandbhai Kantilal Pathak,
had deposed about this facts and the prosecution has proved the
case beyond reasonable doubts but the learned trial Court has
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relied on minor contradictions and omissions and has wrongly
come to a conclusion that the eye witnesses, who were the
driver of the police jeep and another constable present at the
spot, have not been examined. Moreover, the learned trial Court
has also held that Fatehsinh- the brother of complainant
Badarsinh Mathursinh Solanki has not been examined and has
wrongly concluded that the prosecution has not proved the case
beyond reasonable doubt and hence learned Additional Public
Prosecutor Ms. Maithili Mehta has urged this Court to allow the
appeal of the appellant and set aside the impugned judgment
and order of acquittal .
6] Before adverting to the facts of the case on hand, it
would be apt to refer to the scope of the learned appellate Court
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.
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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 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."
6.1] The Apex Court in the case of Neeraj Dutta Vs.
State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme
(SC) 1248, has observed in Para No. 68 as under:
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"68. What emerges from the aforesaid discussion is summarised as
under:
(a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue
by the prosecution is a sine qua non in order to
establish the guilt of the accused public servant
under Sections 7 and 13 (1)(d) (i) and(ii) of the
Act
(b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the
subsequent acceptance as a matter of fact. This
fact in issue can be proved either by direct
evidence which can be in the nature of oral
evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof
of demand and acceptance of illegal gratification
can also be proved by circumstantial evidence in
the absence of direct oral and documentary
evidence.
(d) In order to prove the fact in issue, namely,
the demand and acceptance of illegal
gratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe 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
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gratification emanates from the public servant.
This is an offence under Section 13 (1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer
by the bribe giver and the demand by the public
servant respectively have to be proved by the
prosecution as a fact in issue. In other words,
mere acceptance or receipt of an illegal
gratification without anything more would not
make it an offence under Section 7 or Section 13
(1) (d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to
bring home the offence, there must be an offer
which emanates from the bribe giver which is
accepted by the public servant which would make
it an offence. Similarly, a prior demand by the
public servant when accepted by the bribe giver
and intern there is a payment made which is
received by the public servant, would be an
offence of obtainment under Section 13 (1)(d) and
(i) and (ii) of the Act.
(e) The presumption of fact with regard to the
demand and acceptance or obtainment of an
illegal gratification may be made by a court of
law by way of an inference only when the
foundational facts have been proved by relevant
oral and documentary evidence and not in the
absence thereof. On the basis of the material on
record, the Court has the discretion to raise a
presumption of fact while considering whether
the fact of demand has been proved by the
prosecution or not. Of course, a presumption of
fact is subject to rebuttal by the accused and in
the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile',
or has died or is unavailable to let in his evidence
during trial, demand of illegal gratification can be
proved by letting in the evidence of any other
witness who can again let in evidence, either
orally or by documentary evidence or the
prosecution can prove the case by circumstantial
evidence. The trial does not abate nor does it
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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."
7] In view of the above settled principles of law in
acquittal appeals and the settled principles in cases under the
PC Act in the cases of Neeraj Dutta (Supra), the Appellate Court
must reevaluate the entire evidence produced by the
prosecution on record and the evidence is reappreciated and
minutely dissected. To bring home the charge against the
accused, the prosecution has examined prosecution witness No.
1 Badarsinh Mathursinh Solanki at Exh:1. The witness is the
complainant and he has stated that his brother Fatehsinh had a
daughter viz. Saroj, who was 20 years old and she had eloped
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with one Natubhai of village Kosam in the year 2003. That, the
complaint was registered at Atarsumba Police Station and the
accused was the Investigating Officer and though many days
had passed, the accused was not investigating the case. That
the complainant had gone to Atarsumba Police Station and met
the accused and at that time the accused had demanded for an
amount of illegal gratification of Rs.500/- and stated that if he
would give the amount, his daughter would be found. That as he
did not want to pay the amount of illegal gratification, he had
gone to the ACB Police Station, on 18/06/2003 and filed the
complaint, which is produced at Exh:12. That the panch
witnesses were called and he had given five currency notes of
the denomination of Rs.100/- each and the ACB staff had taken
one bottle from the cupboard and another bottle with colour and
white powder was applied on both sides of the notes and the
bottle was kept back in the cupboard. That the notes with the
powder were kept in his pocket and he, the panch witnesses and
the members of the raiding party went in a private jeep to
Atarsumba. That they went from Nadiad to Mahudha, Kathlal,
Dasalvada Cross roads to Antroli and he does not know what
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light was placed on the notes but it was pink in colour. From
Antroli, they went to Singali and to Atarsumba and he and the
panch witness went to the Atarsumba Police Station. That the
accused was not in the police station and they were told that he
had gone to Vaghavat village and they came back to the Trap
Laying Officer and told the Trap Laying Officer that the accused
was not in the police station. That they went towards Vaghavat
village and waited and after half an hour, the accused came in
the government vehicle from Vaghavat village. That, the
accused saw the complainant and halted the jeep and got down
from the jeep and came towards the complainant and asked
whether he had brought Rs.500/- as he was told and the
complainant took the currency notes from his shirt pocket with
his right hand and gave to the accused and the accused took the
money with his right hand and placed it in his left shirt pocket.
The accused told him that tomorrow they would go to look for
Saroj and he was going towards his vehicle, the panch witness
gave the predetermined signal and the members of the raiding
party came and caught the accused. That they took the jeep and
the accused to the PSI office and a solution of soda was
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prepared and the hands of the accused were washed and the
solution turned pink. That when the amount was recovered from
the accused he was sitting outside and he does not know where
the amount was kept. That the panchnama was drawn and he
had gone home. This witness has not supported the case of the
prosecution and has been declared hostile and has been cross
examined at length by the learned APP.
During the cross examination by the learned advocate for
the accused, the witness has stated that the complaint was filed
by his brother Fatehsinh and he had not gone with Fatehsinh to
file the complaint. That at the time of the incident, Saroj was
aged 20 years but his brother had mentioned the age of Saroj as
17 years in the complaint. That Saroj was talking to one boy
named Natubhai and before the incident, there was a Garba of
Goddess at the house of Jesangji Ratnaji. That Amrut i.e. the
elder son and Natubhai had a verbal altercation and physical
assault at the time of the Garba at Jesangji place and after his
daughter Saroj eloped, they had gone to village Kosam and
inquired from Natubhai. That Natubhai was present and the
complaint was being investigated by the accused but the
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accused had not arrested Natubhai. That he himself had gone to
the accused and had not taken Fatehsinh when he had gone to
meet the accused. That he had asked the accused why he was
not investigating the case and the accused had stated that he
was investigating the matter and they were falsely implicating
Natubhai in the matter. That after this conversation, he had
gone to the ACB office. That, when he went to meet the accused,
the accused had told him not to teach him how to investigate
the matter and he felt insulted. That he was pressurizing the
accused to arrest Natubhai and the accused was insisting that
Natubhai was not involved in the offence and they unnecessarily
harassing Natubhai. That he wanted that the Investigating
Officer should be changed and if another Investigating Officer
was appointed, he would arrest Natubhai. That he had filed an
application and thereafter the investigation was handed over to
the Circle Police Inspector and one Bharat @ Tinu Mohanbhai
Parmar, residing at Vardari was arrested. That the Circle Police
Inspector did not arrest Natubhai. That he had gone alone to the
ACB office and after listening to the details, he was asked to
wait outside and thereafter was called inside the office and
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made to sign on some papers. That when the accused came,
Khumansingh and the driver were seated in the jeep and he had
raised his hand and halted the jeep. That after the trap, no test
was done on his hands and there was one vessel in which they
all had washed their hands.
7.1] The prosecution has examined Prosecution Witness
No. 2 Sabirhusen Mahebubsa Afdal at Exh: 20 and the witness
is the panch witness, who has stated that he had gone to the
ACB Office Nadiad on 18/06/2003 at 08:00 am along with the
other panch witness Naginbhai M. Patel. This witness has fully
supported the case of the prosecution and has narrated in detail
all the events that had taken place from the time he and the
other panch witness Naginbhai M. Patel went to the ACB Police
Station and till the trap was successful. The witness has stated
that that while they were waiting at the bus stand between
11:45 am and 01:10 pm, a white colour jeep came with a person
in plain clothes sitting inside and the plain clothes person got
down and white colour came towards the jeep. That he asked
the complainant about the amount of Rs.500/- and the
complainant stated that he had brought the same and the
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accused took it and kept it in his left shirt pocket. That the
accused turned and was going towards the jeep when the
complainant gave the predetermined signal and the driver of the
jeep was Chhaganbhai Dayabhai Solanki and Khumansinh
Abhesingh Solanki Armed Police Constable, Atarsumba Police
Station were also in the Jeep. That the jeep along with the
accused was taken to the Atarsumba Police Station and the test
was done at the Atarsumba Police Station and the tainted
currency notes were recovered by the panch No. 2 from the
shirt pocket of the accused. That the panchnama was written at
Atarsumba Police Station. During the cross examination by the
learned advocate for the accused, the witness has stated that no
test of filter paper was done to test whether there was any
phenolphthalein powder on the filter paper. That the same filter
paper that was used at the ACB Police Station were taken along
with them and he had not given the predetermined signal but
the predetermined signal was given by the complainant. That
Chhaganbhai Dayabhai Solanki Atarsumba Police Station and
Khumansinh Abhesing Solanki, Armed Police Constable,
Atarsumba Police Station were present in the Jeep and no test
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was conducted at the place where the trap was successful. That
at the place of trap, there was a tea stall and other small shops
and no writing work was done at the place of the trap. That the
tainted currency notes were not recovered from the pocket of
the accused at the spot but were recovered at the police station
and the panch No. 2 had taken the currency notes and kept
them in his hands.
7.2] The prosecution has examined prosecution witness
No. 3. Shashikant Shantilal Trivedi at Exh; 38. This witness is
the competent authority who had granted the order of sanction
for prosecution, which is produced at Exh: 39 and the witness
has supported the case of the prosecution. During the cross
examination by the learned advocate for the accused, this
witness has stated that the notes were placed by his officer and
the draft sanction was sent along with the papers by the ACB
office.
7.3] The prosecution has examined prosecution witness
No. 4 Manojbhai Khimjibhai Limbat at Exh; 44 and the witness
is the Trap Laying Officer who has fully supported the case of
the prosecution and has narrated in detail all the events that
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had unfolded from the time that the complainant came to the
ACB Police Station and the day when the trap was arranged till
the trap was successful. During the cross examination by the
learned advocate for the accused, the witness has stated that he
has not conducted any investigation to test the veracity of the
complaint of the complainant and Fatehsinh-brother of the
complainant Badarsinh Mathursinh Solanki did not come to him
and did not call him. That no test of ultraviolet lamp was done at
Nadiad and the predetermined signal was not given by the
panch witness. That the Investigating Officer Arvindbhai
Ranchhodbhai Patel was present when the Part I and Part II of
the panchnama was being written and no test was done on the
filter paper to verify as to whether the filter paper had any
traces of phenolphthalein powder. That the filter paper that was
used in Part II of the panchnama was taken from the same
bunch of filter paper that was used in part I of the panchnama
and none of the panch witness were Class-II employees. That he
had selected the panch witnesses as they would obey his
instructions and during the panchnama, the hand wash of no
other persons besides the accused was preserved. That they had
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to wait about two hours after they went to Atarsumba Police
Station and no recovery was made at the place of trap and no
test were conducted at the place of trap. That the solution was
with him till the time that it was sent to the FSL and the
panchnama does not mention as to where the alternative shirt
for the accused was arranged from.
7.4] The prosecution has examined Prosecution Witness
No. 5 Arvindbhai Ranchhodbhai Patel at Exh: 53 and the witness
is the Investigating Officer, who had taken over the
investigation from Prosecution Witness No. 4 Manojbhai
Khimjibhai Limbat- Trap Laying Officer. This witness has stated
that he has recorded the statements of the connected witnesses
and after the order of sanction for prosecution was received, he
had filed the charge sheet before the Sessions Court. During the
cross examination by the learned advocate for the accused, the
witness has stated that Fatehsinh- the brother of the
complainant Badarsinh Mathursinh Solanki, driver Chhaganbhai
Dayabhai Solanki and Constable Khumansinh have not been
shown as witnesses in the charge sheet and at the time of the
trap, there were carts and small shops at the place of the trap.
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That no person from this place has been shown as a witness in
the charge sheet and he was a member of the raiding party and
was present from the time that the complaint was filed till the
trap was successful. That he had taken over the investigation
immediately after the trap and he did not have any written
order of his superior officer to take over the investigation. That
he had not recorded the statement of Manojbhai Khimjibhai
Limbat- the Trapl Laying Officer and had recorded the
statement of the other members of the raiding party. That,
during investigation, it was found that the complainant
Badarsinh Mathursinh Solanki had a grudge against the accused
as the accused was not arresting Natubhai Zala.
That in the papers, it was mentioned that Natubhai Zala
had eloped with Saroj- the daughter of Fatehsinh and during
investigation, it was found that Chamanbhai Badarsinh son of
the complainant had a verbal altercation and physical fight with
the said Natubhai Zala. That the accused was not a Police
Inspector and was not an authorized Officer for the
investigation of Atarsumba Police Station I-C.R.No. 20 of 2003
which was filed under Section 363 and 366 of the IPC. That he
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had not inquired as to why the test was not conducted at the
place of the trap.
7.5] The prosecution has examined prosecution witness
No. 6 Markandbhai Kantilal Pathak at Exh:69. The witness has
stated that on 02/07/2003 while he was on duty at the FSL as a
Scientific Officer, a parcel was received from ACB Police Station
Kheda @ Nadiad and a glass bottle with 180 ML of pink solution
was received, which was tested and as per the result it was
found positive for phenolphthalein. That the report was sent
along with a forwarding letter, and the witness has produced at
Exh:64 to Exh: 66. During the cross examination by the learned
advocate for the accused, this witness has stated that exhibit 64
does not bear his signature and he does not know as to how the
specimen was preserved from 18/06/2003 to 02/07/2003.
8] On minutely appreciating the evidence of the
prosecution, it is on record that the complainant has not fully
supported the case of the prosecution and has been declared
hostile. It has also come on record that the complainant had a
grudge against the accused and the complainant was insisting
that the accused arrest Natubhai Zala of village Kosam as the
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complainant had a doubt that Natubhai Zala had eloped with the
Saroj- the daughter of his brother Fatehsinh. It had also come
on record that the complainant had himself gone to the
Atarsumba Police Station and met the accused and had a heated
argument with the accused wherein the accused had told him
not to teach him how to investigate the offence. The accused
had also told him that he was making false allegations against
the said Natubhai Zala and the said Natubhai Zala was not
involved in the said offence. It is also on record that the
complainant had thereafter filed an application before the Circle
Police Inspector and the investigation of Atarsumba Police
Station I-C.R.No. 20 of 2003 was taken over by Circle Police
Inspector and the charge-sheet was filed against Bharat @ Tinu
Mohanbhai Parmar, residing at Vardari. That Natubhai Zala was
not arrested in the offence and it appears that the complainant
was making false allegation against the said Natubhai and as
Chamanbhai son of complainant Badarsinh had a verbal
altercation and physical fight with Natubhai Zala at the time of
garba of the goddess at the house of Ratnaji Javanji, the
complainant wanted the accused to arrest the said Natubhai
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Zala. It has come on record that the accused was not present at
the police station and as he had gone to village Vaghavat and
they had to wait for one to one and half hours. That if the
accused had in fact demanded the amount of illegal
gratification, he would be present at the spot to accept the
amount and the prosecution has not examined the driver-
Chhaganbhai Dayabhai Solanki, unarmed ASI, buckle No. 786 in
Atarsumba Police Station, District: Kheda and Khumansinh
Abhesinh Solanki, Armed Police Constable, even though both of
them were present at the time of the trap. That Fatehsinh the
brother of complainant Badarsinh Solanki has also not been
examined and if any demand regarding the investigation of the
offence registered with Atarsumba Police Station, I-C.R.No. 20
of 2003 was to be made, it would be made by the accused to
Fatehsinh the brother of Badarsinh Solanki. It is pertinent to
note that two eye-witnesses, driver of the Jeep Chhaganbhai
Dayabhai Solanki Unarmed an Assistant Sub Inspector and
Khumansinh Abhesinh Solanki Armed Police Constable,
Atarsumba Police Station are public servants and who were eye
witnesses to the acceptance of the tainted currency notes by the
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accused, have not been shown as witnesses in the charge sheet.
It has come on record that the accused was not the
Investigating Officer of the case and the accused was ASI but it
appears that the complainant had a grudge against the accused
and hence, filed the case against the accused. The demand has
not been clearly established in the evidence of the complainant
or the panch witness and it has come on record that no recovery
of the tainted currency notes or the test of solution of sodium
carbonate was done at the spot but as per the case of the
prosecution, they were all brought to Atarsumba Police Station
where the entire procedure was done. As per the case of the
prosecution, the tainted currency notes were recovered in the
Atarsumba Police Station by panch No. 2 and the solution of
sodium carbonate was with the Trap Laying Officer from
18/06/2003 to 02/07/2003 and there is no iota of evidence as to
how the solution of sodium carbonate was preserved. It has also
come on record that there was one bowl in the Atarsumba
Police Station where the hands of all persons present were
dipped and there is no clear evidence of the exchange of tainted
currency notes.
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9] 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 demand of illegal gratification is not clearly
forthcoming. The procedure after the acceptance is not clear
and when the complainant has turned hostile and has not
supported the case of the prosecution and the demand is not
clearly established, the presumption under Section 20 of the PC
Act would not be available to the prosecution.
10] This Court has perused the findings of the learned
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 of the trial Court.
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11] 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 31/01/2007
passed by the learned Additional Sessions Judge, Fast Track
Court No. 2, Kheda @ Nadiad in Special (ACB) Case No. 14 of
2003 is hereby confirmed.
12] Bail bond stands canceled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
