Gujarat High Court
State Of Gujarat vs Danabhai Virabhai Parmar on 19 June, 2024
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1021 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
==================================================
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 ?
==================================================
STATE OF GUJARAT
Versus
DANABHAI VIRABHAI PARMAR & ANR.
==================================================
Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
MR PM DAVE(263) for the Opponent(s)/Respondent(s) No. 2
MR PR ABICHANDANI(102) for the Opponent(s)/Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/06/2024
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
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
and order of acquittal dated 25/01/2006 passed by the learned
Special Judge & Additional Sessions Judge, Banaskantha @
Palanpur (herein after referred to as 'the learned Trial Court') in
Special (ACB) Case No. 19 of 1997, whereby the respondents
were charged and tried by the learned trial Court for the
offences punishable under Sections 7, 12 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 respondents 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] That the complaint was filed against two accused (i)
Danabhai Virabhai Parmar and (ii) Ramabhai Khengarbhai
Parmar and the present appeal is filed by the State against both
respondents-original accused. During the pendency of this
appeal, the respondent No. 2 Ramabhai Khengarbhai Parmar
residing at Bhadath Taluka: Deesa, District: Banaskantha
expired on 18/04/2020 and the learned Additional Public
Prosecutor produced the report of Mr. N.A.Choudhary, Police
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
Inspector, ACB Police Station, Banaskantha at Palanpur along
with the statement of Hansaben Ramabhai Parmar, the wife of
respondent No. 2 and copy of the death certificate of Ramanbhai
Khengarbhai Parmar regarding the registration of death with
the Talati-cum-Mantri Shri Sundha Gram Panchayat Taluka:
Palanpur, District: Banaskantha. As per the document,the
respondent No. 2 Ramabhai Khengarbhai Parmar has expired on
18/04/2020 and the report is taken on record and the appeal
against the respondent No. 2 stands abated.
2] The brief facts that emerge from the record of the
case are as under:
2.1] That both the accused were working as Talati-cum-
Mantri in Bhadath, Taluka: Deesa, District Banaskantha and
were public servants. That the father of the complainant
Manchhaji Malaji Mali had expired 16 to 17 years ago and the
younger brother of the complainant Jamaji was about 19 years
old. The father of the complainant was a teacher in the primary
school and an application was to be made for appointment of the
younger brother of the complainant on compassionate grounds
and the copies of the village Form No. 7/12, income certificate
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
etc. were required by the complainant. That the complainant
met both the accused and for the past month, they were calling
at him to the house at Deesa or to the office at Bhadath and
were not giving the documents on one pretext or other. That on
12/07/1996, both the accused met the complainant at the office
in Bhadath and at that time the accused No. 2 told the accused
No. 1 to explain to the complainant about their method and the
accused No. 1 demanded the amount of illegal gratification of
Rs.200/- from the complainant. That the complainant told the
accused that he would pay the amount latest by 19/07/1996 and
it was decided that the amount be paid at Deesa at the house of
the accused No.2. That the complainant did not want to pay the
amount of illegal gratification and went to the ACB Police
Station, Palanpur on 20/07/1996 and filed the complaint against
the accused under Sections 7, 12, 13(1)(d) and 13(2) of the PC
Act, which was registered as I-C.R.No. 8 of 1996 on 20/07/1996.
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 anthracene powder and
ultraviolet lamp was done and the characteristic of anthracene
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
powder and ultraviolet lamp was explained to the complainant
and the panch witnesses. That the complainant gave four
currency notes of the denomination of Rs.50/- each and the
currency notes were smeared with anthracene powder were
placed in the left side shirt pocket of the complainant. That the
Trap Laying Officer gave the necessary instructions to the
complainant and the panch witnesses and explained also about
the predetermined signal to be given by the complainant, which
was to raise both the hands upto the head and the complainant,
panch witnesses and the members of the raiding party left from
the ACB Police Station, Palanpur and went to the Taluka
Panchayat Office at Deesa. That the complainant and the
shadow witness met the accused No. 1 below a tree opposite
Mamlatdar office and in presence of the panch witness, the
accused No.1 demanded the amount of illegal gratification and
the complainant gave three tainted currency notes, which were
accepted by the accused No.1 and the accused No. 1 told the
complainant to give Rs.50/- to the accused No. 2. That the
predetermined signal was given and the members of the raiding
party came and caught the accused red-handed. The necessary
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
panchnama was drawn and the Investigating Officer recorded
the statements of the connected witnesses and after the order of
sanction for prosecution was received, the chargesheet was filed
before the Sessions Court, Banaskantha, which was registered
as Special ACB Case No. 19 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 respectively, 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.
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
2.5] The prosecution has produced the following
documentary evidences in support of their case.
Sr. Particulars Exh.
No.
9 Order of sanction for prosecution 79 &
2.6] After the learned APP filed the closing pursis at Exh: 93
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 an judgement
and order dated 25/01/2006 passed by the learned Trial Court in
Special (ACB) Case No. 19 of 1997 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
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
of acquittal passed by the learned Trial Court is contrary to law
and evidence on record and the learned trial Court has not
appreciated the evidence of the witnesses properly. The learned
trial Court has not believed that the tainted currency notes were
recovered from the possession of the accused No. 1 and have
been seized from the spot at the time of the trap and the learned
trial Court has erroneously concluded that the prosecution has
failed to prove its case against the accused. That the learned
trial Court has wrongly believed that the demand was not
proved by the prosecution but from the depositions of the
complainant and the prosecution witness, the evidence of
demand has come on record and the learned trial Court has
given undue importance to some parts of the deposition of the
panch witness during which the panch witness has not
supported the case of the prosecution. The learned trial Court
has not appreciated that traces of anthracene powder were
found on the currency notes as also on the shirt of the accused
and the evidence with regard to the demand, acceptance and
the recovery has been clearly proved by the prosecution. That
all the witnesses have clearly stated that the demand was made
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
and the money was recovered from the possession of the
accused and the currency notes that were recovered were found
to be stained with anthracene powder and marks of anthracene
powder was also found on the fingers of the accused No.1. That
the evidence proves the case against the accused beyond
reasonable doubts and hence the accused must be found guilty
for the said offences.
4] Heard learned Additional Public Prosecutor Ms. C.M.
Shah for the Appellate- State and learned advocate Mr. P.R.
Abhichandani for the respondent No.1.
5] Learned Additional Public Prosecutor Ms. C.M.Shah
has taken this Court through the entire evidence of the
prosecution and has submitted that the prosecution has proved
all the ingredients of demand, acceptance and recovery but the
learned trial Court has not believed the same. That the
prosecution witness Manchhaji Malaji- the complainant has fully
supported the case of the prosecution and the panch witness
has also supported the case of the prosecution. That the
prosecution has proved that the accused were working as Talati-
cum-Mantri at Bhadath Gram Panchayat and the complainant
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
wanted the copies of village Form No. 7/12 and the income
certificate but the same were not given by the accused. That the
recovery of the tainted currency notes is also proved by the
prosecution and hence the learned trial Court ought to have
presumed under Section 20 of the PC Act that the accused No. 1
had accepted the tainted currency notes and the aspect of
demand has been proved from the deposition of the
complainant. The learned trial Court has wrongly appreciated
the evidence and hence learned Additional Public Prosecutor
has urged this court to set aside the impugned judgment and
order of acquittal and the find the accused guilty for the said
offences.
6] Learned advocate Mr. P.R.Abhichandani appearing
for the respondent No. 1 has stated that there is no iota of
evidence in the entire evidence of the prosecution that there
was any demand of any illegal gratification by the accused. That
in fact the accused have put up a very specific defense and in
the further statement of the accused recorded under Section
313 of the Code of Criminal Procedure, 1973, the accused has
stated that an amount of Rs.323/- was outstanding as tax to be
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
paid by the complainant and when the accused had demanded
for the amount of tax from the mother of the complainant, she
got angry and threatened the accused. That on 16/07/1996, the
complainant met both the accused and had a verbal altercation
with them and questioned them how could they demand for
amount of tax from his mother. That even at that time, the
accused had told the complainant that the amount of Rs.323.50
Paise is outstanding as tax to be paid and when the complainant
met the accused on 20/07/1996, he told the accused No. 1 that
he did not have the amount of Rs.323.50/- and could pay only
Rs.150/- but the accused No. 1 refused and stated that he did
not have the receipt book. That the complainant insisted and
told him to accept the amount and to give the receipt later on
and during this altercation, the complainant tried to push the
tainted currency notes in the pocket of the accused No. 1 and
the tainted currency notes fell on the ground. That the tainted
currency notes were recovered from the ground and when the
Trap Laying Officer came, he forcibly made the accused No.1 to
pick up the currency notes from the ground and beat the
accused No. 1 with fists and kicks and in public stripped the
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
accused No. 1 and took him to the chamber of the Taluka
Development Officer and from there the accused No. 1 was
taken without the clothes to the police station. That learned
advocate for the respondent has urged this Court that the
impugned judgment and order of the learned trial Court is
passed after appreciating all the evidence in proper perspective
and hence no interference is required in the same and the
appeal of the appellant--State must be rejected.
7] Before adverting to the facts of the case on hand, it
would be apt to refer to the scope of the learned trial Court in
acquittal appeals and the Honourable 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
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
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."
7.1] The Honourable 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:
"68. What emerges from the aforesaid discussion is summarised as
under:
(a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue
by the prosecution is a sine qua non in order to
establish the guilt of the accused public servant
under Sections 7 and 13 (1)(d) (i) and(ii) of the
Act
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
(b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the
subsequent acceptance as a matter of fact. This
fact in issue can be proved either by direct
evidence which can be in the nature of oral
evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof
of demand and acceptance of illegal gratification
can also be proved by circumstantial evidence in
the absence of direct oral and documentary
evidence.
(d) In order to prove the fact in issue, namely,
the demand and acceptance of illegal
gratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver
without there being any demand from the public
servant and the latter simply accepts the offer
and receives the illegal gratification, it is a case
of acceptance as per Section 7 of the Act. In such
a case, there need not be a prior demand by the
public servant.
(ii) On the other hand, if the public servant
makes a demand and the bribe giver accepts the
demand and tenders the demanded gratification
which in turn is received by the public servant, it
is a case of obtainment. In the case of
obtainment, the prior demand for illegal
gratification emanates from the public servant.
This is an offence under Section 13 (1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer
by the bribe giver and the demand by the public
servant respectively have to be proved by the
prosecution as a fact in issue. In other words,
mere acceptance or receipt of an illegal
gratification without anything more would not
make it an offence under Section 7 or Section 13
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
(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
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
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
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 principles of law in acquittal
appeals and particularly cases filed under the PC Act in light of
the judgment of the Honourable Supreme Court in the case of
Neeraj Dutta (supra), the entire evidence of the prosecution
must be reappreciated and minutely dissected and to bring
home the charge against the accused, the prosecution has
examined PW No. 1 Manchhaji Malaji at Exh: 7. The witness is
the complainant and he has stated that his father has working
as a primary school teacher and he had expired on 31/12/1979
in an accident. That they were two brothers and he was the
elder brother and doing farming work and the younger brother
was aged 21 years. That as his father had expired in service, his
brother wanted to make an application for service on
compassionate grounds and the income certificate and the copy
of village Form No. 7/12 were required. That he met the Talati-
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
cum-Mantri of Bhadath Gram Panchayat and he met both the
accused and demanded for the income certificate and the copy
of village For No. 7/12. That for one month he was demanding
the documents from both the accused but they did not give him
the documents and on 12/07/1996 he met both the accused at
the Bhadath Gram Panchayat office and at that time both the
accused demanded for the amount of illegal gratification of
Rs.200/-. That the complainant did not have the amount and the
accused No. 1 told him to give it within one week. That on
19/07/1996, he went to the house of the accused No. 2 at Deesa
and the accused No. 1 was also present and he told both the
accused that he could not arrange for the amount and the
accused No. 1 told him that there was a meeting in the Taluka
Panchayat on the next date and to give the amount and take
documents. That he did not want to give the amount of illegal
gratification and went to the ACB Police Station, Palanpur and
filed the complaint on 20/07/1996, which is produced at Exh: 8.
That Pathan Saheb called him and he gave four currency notes
of the denomination of Rs.50/- to Pathan Saheb and some
powder was shown to him and with a battery, a light was shown.
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
That the panch witnesses were called and in their presence, a
demonstration of anthracene powder and ultraviolet lamp was
carried out. That necessary instructions were given and the
currency notes, which were smeared with the powder were
placed in his shirt pocket and he and the shadow witness went
to the Taluka Panchayat Office. That he and the panch witness
stood below a tree in front of the Taluka Panchayat Office and
the accused No. 1 came towards them and they had a
conversation and the accused No.. 1 demanded for the amount
of illegal gratification. That he took the amount from his shirt
pocket and gave the two currency notes to the accused No. 1
demanded but the accused No. 1 demanded the amount of
Rs.200/- as decided and he had to give the remaining and hence
he took another currency note of Rs. 50/- and gave it to the
accused No. 1. The accused No. 1 told him to give Rs.50/- to the
accused No. 2 and the accused No. 1 placed the currency notes
in the pocket of his T-shirt. That the accused No. 1 gave him the
income certificate from his purse but did not give the copy of
the village Form No. 7/12 from the accused No.2. That he had
demanded for the same but the accused No. 1 told him to give
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
Rs.50/- to the accused No. 2 and to take copies of the village
Form No. 7/12. That he gave the predetermined signal and at
that time the members of the raiding party came and caught the
accused No. 1 and the accused No. 1 threw the currency notes
on the ground. That the ACB officer made the accused No. 1
pick up the currency notes from the ground and took him to the
Taluka Panchayat Office and the tests were carried out. That the
right hand of the accused and the clothes of the accused were
found with traces of anthracene powder. During the cross
examination by the learned advocate for the accused, the
witness has stated that when his father expired, he did not file
any application for service on compassionate grounds even
though he was eligible to be employed as a peon. That his
brother stopped studying after standard 12 and he does not
know whether his brother has completed 12th Class. That,
agricultural lands bearing Survey No. 148/4, Survey No. 49 and
Survey No 42/1 were in the name of Mangaji Khetaji and the
lands were partitioned and the mutation entry was made in the
revenue record vide mutation entry No. 1624, which is
produced at Exh: 44 and Exh: 45. That the documents regarding
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
houses in Godiya Gruh Gram Panchayat are produced at Exh: 46
and he does not know as to whether the total amount of
Rs.323.50 Paise as tax was to be paid for the properties. That,
he was the president of youth group in the village on the date of
the incident and criminal case II-C.R.No. 120 of 1996 was filed
against him in Deesa City Police Station. That, he had filed a
case of dacoity against Babuji, Hansaji and Bhurji. That Bhikhaji
Ukaji Suthar resident of Genaji Godiya has filed the case under
Sections 323 and 325 of the Indian Penal Code, 1860 and
Section 135 of the Gujarat Police Act against him. That he was a
candidate for the Sarpanch earlier and Deesa Police Station I-
C.R.No. 159/2002 was registered against him for a dispute of
right of way. That he had received the copies of the village Form
No.7 /12 and Form No. 8(A) six to seven months before the
incident and two income certificates were received from the
Taluka Development Officer and they were given by the Taluka
Development Officer and earlier they were given by the Talati.
That he had received the certificates necesaary for making the
application on compassionate grounds and he had received the
certificates four to five months prior to the trap. That he does
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
not remember through which hand the money was accepted by
the accused No. 1 and the place where the incident took place
has the offices of the Taluka Panchayat, Mamlatdar and
Treasury and other offices. That the trap had taken place below
a tree and the Panchayat office where the meeting was held was
at distance about 15 to 20 mtrs. That they were a lot of persons
moving around but he did not know them. That he did not meet
the accused No. 2 on 12/07/1996 and on 12/07/1996 he went to
the accused No. 1. That he had no conversation with the
accused on that day and there was no conversation regarding
any money with the accused No. 2. That on 19/07/1996, the
accused did not demand for any money and the copy of the
village Form No. 7/12 and Form No. 8(A) were given by the
accused No. 2 on 06/01/1996.
8.1] The prosecution has examined prosecution witness
No. 2 Gordhanbhai Tejabhai Joshi at Exh: 17. This witness is the
panch witness and he has fully supported the case of the
prosecution and has stated that he and the other panch witness
Ishwarbhai Jamabhai Kadod had gone to the ACB Police Station.
The witness has narrated all the events that had taken place till
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
the time of the trap and has stated that after the predetermined
signal was given, when the members of the raiding party came,
the accused No. 1 took the amount from pocket and threw the
currency notes on ground and Pathan Saheb told the accused
No. 1 to pick up the currency notes and Pathan Saheb had
beaten the accused No. 1 and made him pick up the tainted
currency notes. That he was taken in the chamber of the Taluka
Development Officer and the panch No. 2 was asked to take the
money from the accused No. 1. That Rs.2250/- were found from
the purse of the accused No. 1 and the amount was of tax and
hence it was returned.
During the cross examination by the learned
advocate for the accused, this witness has stated that on
reading the complaint, he found that the transaction of money
was with the accused No. 2. That the complainant and he were
explained that they had to go to Bhadath Gram Panchayat and if
the accused No. 1 was found, they had to make a conversation
about the income certificate and if the amount of illegal
gratification was demanded, the tainted currency notes were to
be given. That no instructions were given regarding the accused
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
No. 2 and in the complaint, it was not mentioned that the
accused No. 1 was to come to Taluka Panchayat Office and the
certificate was to be taken from him and the amount was to be
given to him. That the panchnama also does not mention the
conversation as stated by him in the examination in chief and
the panchnama part 1 was written in the ACB office whereas
part II was written in the Taluka Development Office.
8.2] The prosecution examined the prosecution witness
No. 3 Nadirkhan Jamalkhan Pathan at Exh: 72 and the witness is
the Trap Laying Officer, who has fully supported the case of the
prosecution and has narrated all the events that had unfolded
right from the time that the complainant came to the ACB Police
Station and till the trap was successful.
During the cross examination by the learned advocate for
the accused, the witness has stated that the complaint was
recorded in the ACB Police Station, Palanpur but no note was
made in the police station and the muddamal was with him till
they came to Palanpur. That in the complaint, the amount of
illegal gratification was to be paid at the house of the accused
No. 2 at Deesa and the demand was made by the accused No. 2
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
and the amount was to be given to the accused No. 2. That, he
did not know who had arranged for the alternative clothes of the
accused No. 1 and no certificate was recovered during the
panchnama. That he did not inquire as to whether any
outstanding tax was to be paid by the complainant.
8.3] The prosecution has examined prosecution witness
No. 4 Dilip Kapilray Vaishnav at Exh: 78 and the witness is the
investigating officer, who has taken over the investigation and
after the order of sanction for prosecution was received, has
filed the charge sheet against the accused before the learned
Sessions Court. The witness has produced the order of sanction
for prosecution at Exh: 79.
8.4] The prosecution has examined prosecution witness
No. 5 Hareshkumar Prafulchandra Agrawat at Exh: 80 and the
witness is the Investigating Officer, who had taken over the
investigation from the Police Inspector Mr. Pathan and had
made the necessary correspondence for receiving the order of
sanction for prosecution and had, thereafter, handed over the
investigation to Police Inspector Shri Vijay Gohel.
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
9] On minute dissection of the entire evidence of the
prosecution, the demand of illegal gratification is not proved
beyond reasonable doubts and it is on record that as per the
complaint, the demand was made by the accused No. 2 and was
to be paid at the house of the accused No.2. As per the case of
the prosecution, the demand of illegal gratification was made as
the complainant wanted two copies of village Form No. 7/12 and
the income certificate from the accused No. 1 and the accused
No. 2 but it has come on record in the cross examination of the
complainant that the complainant had received the copy of
village Form No. 7/12, village Form No. 8(A) and the income
certificate about six to seven months prior to the incident. That
the complainant had not given any application for receiving the
documents as he has stated and there is evidence that the
amount of Rs.323.50/- was outstanding tax to be paid by the
complainant. That if the accused No. 1 has accepted the
amount, it would be towards the amount of outstanding tax and
in the evidence of the panch witness it has come on record that
the Trap Laying Officer had forcibly assaulted the accused No. 1
and had made him pick up the tainted currency notes from the
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
ground. That the tainted currency notes were found from the
ground and thereafter the accused was taken to the Taluka
Development Office. That no panchnama was prepared at the
place of the trap and in the entire evidence of the prosecution,
the ingredients of demand, which is a sine-qua-none for the
offence under the PC Act has not been proved by the
prosecution beyond reasonable doubts.
10] As per the settled position of law, the prosecution
has to prove the demand of illegal gratification by the public
servant as a fact in issue and proof of demand is a sine-qua-non
to bring home the charge against the accused in cases under
the PC Act. Moreover, suspicion cannot take the place of proof
beyond reasonable doubts and in the entire evidence of the
prosecution, the proof of demand is not proved beyond
reasonable doubts. The accused has raised a plausible defense
that the amount of Rs.323.70 Paise was to be paid as
outstanding tax and the amount was paid towards the
outstanding tax. Moreover, it has also emerged in the evidence
that the tainted currency notes were lying on the ground and
the Trap Laying Officer forcibly made the accused No.1 to pick
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
up the currency notes from the ground and the traces of
anthracene powder came on the fingers of the accused No. 1.
That when the demand of illegal gratification and the
acceptance is not proved beyond reasonable doubts, the
presumption under Section 20 of the PC Act cannot raised.
11] This Court has perused the findings of the trial Court
and has found that the 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 trial Court. This Court is in complete agreement
with the findings, ultimate conclusion and the resultant order of
acquittal recorded by the Trial Court and finds no reason to
interfere with the impugned judgment and order of the trial
Court.
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 25/01/2006
passed by the learned Special Judge & Additional Sessions
Judge, Banaskantha @ Palanpur in Special (ACB) Case No. 19 of
1997 is hereby confirmed.
NEUTRAL CITATION
R/CR.A/1021/2006 JUDGMENT DATED: 19/06/2024
undefined
13] Bail bond stands canceled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
