Gujarat High Court
State Of Gujarat vs Manilal Muljibhai Motval on 20 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2231 of 2005
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
MANILAL MULJIBHAI MOTVAL
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Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
MR GULAMNABI M PATEL(6630) for the Opponent(s)/Respondent(s) No. 1
MR PANKAJ A KAPADIA(1877) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/06/2024
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
order of acquittal dated 05/04/2005 passed by the learned Special
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Judge & Additional Sessions Judge, Fast Track Court No. 8,
Bharuch (herein after referred to as 'the learned Trial Court') in
Special (ACB) Case No. 1 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 No. 1 was working as a Talati-cum-
Mantri in village Jamod, Taluka: Jhaghadiya, District:Bharuch and
was a public servant. That Jekarbhai Bhailalbhai Vasava, the
father of the complainant Raychandra JekarbhaiVasava had
expired five years prior to filing of the complaint and land bearing
Block No. 147/Paiki 3.39 Acre-Gunthas situated in Amod village
the land in the ownership of the father of the complainant under
the Tenancy Act. That, the father of the complainant had taken a
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loan and the loan was paid up and the certificate was received on
19/03/2001. That one copy of the certificate was given to the
Talati-cum-Mantri of Amod village and the entry of mortgage was
to be removed and the fresh copy of the village Form No. 7/12 was
to be taken. That the complainant met the accused on 30/08/2002
in the Amod Panchayat office and requested for the copy of the
village Form No. 7/12. That the mortgage entry was removed and
at that time the accused had demanded for the amount of Rs.500/-
as illegal gratification. That after bargaining the amount was fixed
at Rs.200/- and as the complainant did not want to give the
amount of illegal gratification to the accused he went to ACB police
station at Bharuch and filed the complaint on 02/09/2002 under
Sections 7, 13(1)(d) and 13(2) of the PC Act, which was registered
at I-C.R.No. 7 of 2002.
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
powder and ultraviolet lamp was explained to the complainant and
the panch witnesses. That the complainant gave two currency
notes of the denomination of Rs.100/- each and the currency notes
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were smeared with anthracene powder. That the currency notes
were placed in the left shirt pocket of the complainant and
necessary instructions were given to the complainant and the
panch witnesses and the trap was arranged. That the complainant,
panch witnesses and the members of the raiding party went in a
vehicle from the ACB Police Station Bharuch to Amod Gram
Panchayat and halted the vehicle at a distance. That complainant
and the panch No. 1 went walking towards Amod Gram Panchayat
and other members of the raiding party and the panch no. 2 stood
at a distance. That the complainant met the accused and the
accused demanded for the amount of illegal gratification of
Rs.200/-, which was accepted by the accused and placed in his
right pant pocket. That the complainant gave the predetermined
signal and the members of the raiding party came and caught the
accused red handed. That the panchnama was drawn and the
Investigating Officer recorded the statements of the connected
witnesses and after the sanction for prosecution was received, a
charge sheet was filed before the Sessions Court, Bharuch, which
was registered as Special (ACB) Case No. 1 of 2003.
2.3] The accused were duly served with the summons and
the accused appeared before the learned Trial Court, and after the
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procedure under Section 207 of the Code of Criminal Procedure
was followed, a charge at exhibit 3 was framed against the
accused and the statement of the accused was recorded at exhibit
5, 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.
2.5] The prosecution has produced the following
documentary evidences in support of their case.
Sr. Particulars Exh.
No.
3 Extract of Village Form No. 7/112 and Village 15-17
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After the learned APP filed the closing pursis at exhibit 25,
the further statement of the accused under Section 313 of the
Code of Criminal Procedure was recorded wherein the accused
denied the all evidence of the prosecution and stated that he did
not want to step into the witness box but wanted to examine a
defence witness and further stated that the amount of Rs.237.50/-
as tax was outstanding on the land of Raychandra Jekarbhai and
after the meeting the complainant came to the office and told the
accused that he wanted to pay the outstanding tax. That he
verified the records and told the complainant that the amount of
Rs.237.37 Paise is outstanding and the complainant placed
Rs.200/- on the table. That he checked the currency notes which
were Rs.200/- and he asked for the remaining amount and the
complainant on the pretext of getting change went outside. That he
wanted to take the handkerchief from his right pant pocket and put
his hand in his right pant pocket and at that time the members of
the raiding party came and caught him. That, he was immediately
taken to Rajpardi Guest House and no procedure was done in the
Panchayat Office.
2.6] The accused has produced the following oral
evidences in support of his case.
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Sr. D.W. Particulars Exh.
No.
2.7] The accused has produced the following documentary
evidences in support of his case.
Sr. Particulars Exh.
No.
2 Receipts of amount paid in GEB 32-34
5 Certificate of outstanding amount of tax of land of 37
the complainant
6 Certificate of Talati-cum-Mantri Amod Gruh Gram 38
Panchayat
Panchayat
The accused filed the closing pursis at exhibit 42 and after
the arguments of the learned APP and the learned advocate for
the accused were heard, the learned Trial Court by an the
impugned judgment and order dated 05/04/2005 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, and
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evidence on record and principles of justice and is required to be
quashed and set aside. That the learned trial Court has erred in
not appreciating the oral as well as documentary evidence
produced by the prosecution on record of the case. That the
learned trial Court has not appreciated that the Investigating
Officer has followed the due procedure before setting up the trap
and the trap was successful. That the competent authority has
perused all the records and was pleased to grant the order of
sanction for prosecution but the same has not been appreciated by
the learned trial Court. That the currency notes of Rs.200/- laced
with anthracene powder were recovered from the right side pocket
of the trouser of the accused and the test of anthracene powder
was positive and the accused has not been able to discharge his
burden of establishing his defense. That the learned trial Court
ought to have believed the evidence of the Investigating Officer
and other police witnesses, who have supported the case of the
prosecution and the impugned judgment and order of acquittal is
improper, perverse, bad in law and is required to be quashed and
set aside.
4] Heard learned APP Ms. C.M.Shah for the Appellate-
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State and learned advocate Mr. Pankaj A Kapadia for the
respondent-accused..
5] Learned APP Ms. C.M.Shah has taken this Court
through the entire evidence of the prosecution and has submitted
that the prosecution has proved the ingredients of demand,
acceptance and recovery by the evidence but the learned trial
Court has not appreciated the same properly. That even though
the complainant has turned hostile and has been supported the
case of the prosecution, the portion of the evidence of the
complainant, which supports the case of the prosecution must be
considered but the learned trial Court has not considered the
same. That the panch witness, who was the shadow witness with
the complainant at the time of the trap has fully supported the case
of the prosecution and the evidence of the Trap Laying Officer is
sufficient to prove the case against the accused. Learned APP has
urged this Court to allow the appeal of the appellant and find the
the accused guilty for the said offences.
6] Learned advocate Mr. Pankaj A. Kapadia for the
respondent-accused has submitted that the defense of the
accused was that the amount of Rs.237.37 paise was outstanding
to be paid as tax by the complainant and the complainant had
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come to office of the accused and inquired about the amount that
was to be paid as outstanding tax to which the accused had
verified from his record and had stated that the amount of
Rs.237.70 Paise is outstanding towards which the complainant
placed to Rs.200/- on the table and on the pretext of getting the
remaining amount of Rs.37.70 Paise went outside. That, the
accused had taken currency notes in his hand to verify the amount
and the traces of anthracene powder came on the hands of the
accused. That as it was raining, the accused wanted to remove his
handkerchief from his pocket and he put his hand in right side pant
pocket and the anthracene powder, which had come on to the
fingers of the accused were found on the right side pant pocket of
the accused. That the accused has examined defence witness
Dhanubhai Diveliyabhai Vasava and has produced necessary
documents on record. There is also evidence to the effect that
there was no electricity in the office of the accused and there was
no xerox machine in the Panchayat office and the case of the
prosecution is disproved. Moreover, the certificate regarding the
outstanding amount of tax to be paid by the complainant is also
produced and the learned trial Court has rightly appreciated the
defense and all the documents and oral evidences produced by
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the prosecution and the facts on record and has in a well reason
judgment, passed the impugned judgment and order of acquittal
and no interference is required in the same. Learned advocate Mr.
Pankaj A. Kapadia urges this Court to reject the appeal of the
appellant.
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 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:-
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"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
(b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the subsequent
acceptance as a matter of fact. This fact in issue
can be proved either by direct evidence which can
be in the nature of oral evidence or documentary
evidence.
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(c) Further, the fact in issue, namely, the proof
of demand and acceptance of illegal gratification
can also be proved by circumstantial evidence in
the absence of direct oral and documentary
evidence.
(d) In order to prove the fact in issue, namely,
the demand and acceptance of illegal gratification
by the public servant, the following aspects have to
be borne in mind:
(i) if there is an offer to pay by the bribe giver
without there being any demand from the public
servant and the latter simply accepts the offer and
receives the illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In such a
case, there need not be a prior demand by the
public servant.
(ii) On the other hand, if the public servant
makes a demand and the bribe giver accepts the
demand and tenders the demanded gratification
which in turn is received by the public servant, it is
a case of obtainment. In the case of obtainment,
the prior demand for illegal gratification emanates
from the public servant. This is an offence under
Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer
by the bribe giver and the demand by the public
servant respectively have to be proved by the
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
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(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
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 acquittal appeals, as settled by the Apex Court, the
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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 re-appreciate and
reevaluate the entire evidence of the prosecution before the
learned trial Court and the entire evidence produced by the
prosecution is minutely dissected.
8.1] To bring home the charge against the accused, the
prosecution has examined Prosecution Witness No. 1 Jitendrabhai
Thakorlal Mehta at exhibit 9. This witness is the competent
authority who has given the order of sanction for prosecution,
which is produced at exhibit 10.
During the cross examination by the learned advocate for the
accused, this witness has stated that he does not know when the
accused had joined his services and he does not know how many
years the accused was in service. That at the time of the giving the
order of sanction for prosecution, he did not find it necessary to
check the length of service of the accused.
8.2] The prosecution has examined the prosecution witness
No. 2 Raychandra Jekarbhai Vasava at exhibit 12. This witness is
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the complainant and he has stated on oath that he does not know
the block number of his land but his father had received the land
under the Tenancy Act and the installments were paid in the bank.
That the Mamlatdar had given him two copies of the amount paid
and had told him to give the copy to Talati and the entry of
mortgage would be removed. That he had given the certificate to
the Talati-cum-Mantri who took it and kept it in his table drawer
and he went to meet the Talati-cum-Mantri after 15 days but the
Talati had told him to come later. That an amount of Rs.500/- was
demanded from him and he gave the amount of Rs.200/- and the
other amount was remaining. He had given Rs. 200/- of the
checking vala Saheb to Mehtaji and he had told the checking vala
Saheb that the Talati was demanding for money. That he had
affixed his signature on the road in Rajpardi at Rajpardi Guest
House but not procedure was done. That some powder was
applied on the currency notes on the road and there was a
meeting in the panchayat and all the persons of the village had
gathered. That he had raised his hands and the officer had come
and they were brought to Rajpardi. That some writing was done
and he was asked to affix his signature. That there were four
persons including a driver and the witness has not supported the
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case of the prosecution and has been declared hostile. During the
lengthy cross examination by the learned APP, nothing has come
on record to support the case of the prosecution. In the cross
examination by the learned advocate for the accused, the witness
has stated that the land is on the name of his father till today and
the name of the legal heirs are not entered in the revenue record.
That he has not mentioned that an amount of Rs.240/- as tax is
remaining to be paid and on the date of the trap, the electric lights
were on. That the panchayat office does not have a xerox
machine. That they had separated from Rajpardi Guest House and
all the writings were done at Rajpardi Guest house. That he was
not called by the police thereafter.
8.3] The prosecution has examined prosecution witness
No. 3 Dalsukhbhai Maganbhai Prajapati at exhibit 13 and this
witness is the panch witness, who has stated that on 03/09/2002,
he and the other panch witness Ishwarbhai Lakhubhai Bihari had
gone to the ACB Office. This witness has supported the case of
the prosecution and has stated that he was instructed to go along
with the complainant and when they went to the Gram Panchayat,
he was sitting with the complainant in the panchayat office. That
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the complainant had asked for the copy of the Village Form No.
7/12 and the Talati-cum-Mantri had demanded for the transaction.
The Talati-cum-Mantri had asked whether he had brought the
money and the complainant gave Rs.200/- and the Talati-cum-
Mantri counted the money and the placed it in his pocket. That the
complainant went outside and Inspector and others came and
closed the door and switched on the lights. That he had removed
the amount of Rs.200/- from the pant pocket of the Talati-cum-
Mantri. That shining marks were found on the hands of the
accused and the pant pocket of the accused. That the panchnama
was done and the seizure memo was prepared, which is produced
at exhibit 18 and the panchnama is produced at exhibit 20. During
the cross examination by the learned advocate for the accused,
the witness has stated that he has not dictated the panchnama
while the police was dictating the panchnama and he was listening
and the panchnama was being written. That when they went into
the panchayat office, two to three persons were present. That the
meeting had concluded but he does not remember as to whether
the lights were switched on or off in the panchayat office. That he
had mentioned in the panchnama that he had removed the
currency notes from the pocket of the accused and if it was written
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in the panchnama that panch No. 2 had removed the currency
notes from the shirt pocket or pant pocket of the accused, the
same was false. That he does not know where the xerox copies of
the register of the panchayat were made and they had affixed their
signature on the xerox, which were recovered from the panchayat
office.
8.4] The prosecution has examined the prosecution witness
No. 4 Rajdhar Daulatram Marathe at Exh: 21 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 had taken
on 02/09/2002 when he was working as a Police Inspector in the
ACB Police Station, Bharuch. That the complainant had come to
the police station and his complaint was noted down and thereafter
the trap was arranged after the witnesses were called and the
demonstration of the anthracene powder and the ultraviolet lamp
was done. The witness has narrated all the details till the trap was
successful and during the cross examination by the learned
advocate for the accused, the witness has stated that on the date
of the trap, it was raining but they were not sitting in the jeep at the
time of the trap. That no registers were seized from the panchayat
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office but xerox documents were seized. That he had sent some
person to get a xerox copy of the register. That he does not know
that who had gone but his driver Thakorbhai had gone to get the
xerox copy but the statement of Thakorbhai has not been
recorded. That it is not mentioned in the panchnama that the driver
Thakorbhai had gone to get the xerox copies and he does not
know whether the xerox copies were brought by Thakorbhai. That
he did not ask the driver Thakorbhai whether he had got the xerox
copies and he did not give any money for the xerox. That the driver
had taken about half and hour to get the xerox and till that time
they had stopped writing the panchnama but it is not mentioned in
the panchnama that procedure of the panchnama was stopped for
half an hour. That the complaint was regarding block No. 147 but
the copy of the Village Form No. 7/12 of Block No. 147 is not
produced on record. That the panchnama was dictated by the
panch witness and was written by ASI Shri Shankarbhai.
8.5] The prosecution has examined prosecution witness
No. 5 Nareshchandra Bhikhabhai Koralwala at exhibit 24. The
witness has stated that on 02/09/2002, he was working as Police
Inspector, ACB Police Station, Bharuch and at that time the
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complainant Raychandbhai Jekarbhai Vasava residing at
Gudecha, Taluka: Jhaghadiya had filed a complaint and the trap
was arranged and he was a member of the raiding party. That after
the trap was successful, the offence was registered and he had
taken over the investigation. That he had prepared the arrest
panchnama and had produced the accused before the learned trial
Court and had recorded the further statement of the complainant
as also the panch witnesses and the members of the raiding party.
That he had got the service record of the accused and sent the
papers for the sanction for prosecution and after the order of
sanction for prosecution was received, he had filed a charge sheet
before the learned Sessions Court. The witness has identified the
accused before the learned trial Court. During the cross
examination by the learned advocate for the accused, the witness
has stated that all witnesses have stated that the accused was
present at the time of the trap and in the complaint, the
complainant has stated that no tax was outstanding to be paid on
the land. That there is no electric connection in the panchayat
office. That none of the witnesses have stated in their statement
that the driver was sent to get the copies and the driver he had
come half an hour and the same is not mentioned in the
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panchnama. That, during the investigation, he had not found that
the driver was sent to get the xerox copies and had returned after
half and hour. That, the panch witnesses have in the panchnama
stated that and the lights in the panchayat office were shut off and
switched on and the panch no. 1 has not checked the shirt pocket
of the accused and the same is not mentioned in the panchnama.
That in the panchnama, it is mentioned that the panch no. 2 had
checked the left shirt pocket of the accused.
9] On appreciating the entire evidence of the prosecution,
the complainant has turned hostile and the ingredient of demand
has not been proved in the deposition of the complainant. There
are many contradictions in the deposition of the witness and the
Trap Laying Officer and in the panchnama, it is mentioned that the
lights in the panchayat office were switched on and switched off
but in the deposition of the Investigating Officer, it has come on
record that there was no electricity in the panchayat office at the
time of the trap. Moreover, witness Dalsukhbhai Maganbhai
Prajapati has stated that he had taken the tainted currency notes
from the pocket of the accused but as per the Trap Laying Officer,
the panch No. 2 Ishwarbhai Lakhubhai Bihari was asked to remove
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the tainted currency notes from the pocket of the accused. There is
also a contradiction in the place where the tainted currency notes
were found and there is a contradiction about whether the tainted
currency notes were found from the left shirt pocket or the right
shirt pocket of the accused.
9.1] The accused has examined defence witness No. 1
Dhanubhai Diveliyabhai at exhibit 30 and the witness was the
Talati-cum-Mantri of Amod village. The witness has produced the
documents of lands of the complainant, which shows that an
amount of Rs.237.70 Paise is outstanding as tax to be paid. The
other documents prove that the panchayat office had no electricity
and an application for electric connection was made on 20/12/2004
and an amount of Rs.1375/- was paid for the electric connection
on 28/02/2005. The documents regarding electricity are produced
at exhibit 31 to 34 and the documents regarding the outstanding
tax on the lands of the complainant are produced at exhibits 35 to
38. The witness has categorically stated that there is no xerox
machine in the office. That the land of the complainant is still in the
name of his deceased father and the names of the legal heirs are
not entered into revenue record. During the cross examination by
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the learned Additional Public Prosecutor, the witness has stated
that when the certificate for removal of mortgage entry from the
revenue record is received from the Mamlatdar, the entry has to be
made and the order of the Mamlatdar is dated 19/03/2001, which
is produced at Exh:16 and the entry for removal of mortgage was
done on 09/05/2002.
10] On perusal and minute dissection of the entire
evidence of the prosecution, the complainant has not supported
the case of the prosecution and as discussed above, the demand
has not been proved by the prosecution. The accused has
examined defence witness No. 1 Dhanubhai Diveliyabhai Vasava
at exhibit 30 and has proved that the amount of Rs.237.70 Paise/-
is outstanding as tax to be paid by the complainant and
considering the fact that the complainant has turned hostile and
there are material contradictions in the deposition of the panch
witness as also the Trap Laying Officer, the aspect of demand and
acceptance is not proved. Moreover, a major contradiction is in the
deposition of the panch witness and the panchnama which states
that the lights in the panchayat office were switched on and
switched off, whereas, the defense witness No. 1 Dhanubhai
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Diveliyabhai Vasava has produced the documents showing that
there was no electricity connection in the Gram Panchayat Office
and an application was made for getting the electricity connection
and the necessary amounts were paid and receipts of the amounts
paid are produced on record. The deposition of prosecution
witness No. 2 Raychandra Jekarbhai Vasava is shaky and not
believable and the Investigating Officer has stated that he had sent
his driver for getting xerox copies of the registers but there is no
evidence on record to corroborate the said fact. Moreover, the
Trap Laying Officer has also stated that during the time that the
driver went to get the xerox copies and he returned after half an
hour, the procedure of the panchnama was stopped bu the same
is not mentioned was in the panchnama. The prosecution has not
proved the ingredients of demand, which is a sine-qua-non for the
offence under the P.C. Act.
11] As per the settled position of law, the prosecution has
to prove the demand for illegal gratification beyond reasonable
doubts for establishing charge against the accused for the offence
of PC Act and in the evidence of the prosecution, the evidence
regarding the demand is not clearly forthcoming and even the
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procedure after the acceptance is not clear. That 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.
12] 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
learned trial Court.
13] 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 05/04/2005
passed by the learned Special Judge & Additional Sessions Judge,
Fast Track Court No. 8, Bharuch in Special (ACB) Case No. 1 of
2003 is hereby confirmed.
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14] Bail bond stands canceled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
