Gujarat High Court
The State Of Gujarat vs Balubhai Bhikhabhai Patel on 11 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1971 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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THE STATE OF GUJARAT
Versus
BALUBHAI BHIKHABHAI PATEL
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR SHAIVANG D MEHTA for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/09/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant - State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgment and order of acquittal dated
10/04/2006 passed by the Special Judge & Presiding
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Officer(5th Fast Track Court), Surat (hereinafter referred
to as the learned trial Court) in Special (ACB) Case No. 33 of
1994, whereby, the learned trial Court was pleased to acquit
the respondent from 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 P.C.Act'). 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] The accused Balubhai Bhikhabhai Patel was working
as a Talati-cum-Mantri in the Morbhagva Gram panch ayat in
the year 1994 and was a public servant. The complainant had
inherited immovable property bearing Block No. 870/1 and
870/2 from his father Maganbhai Ditabhai and his grandfather
Ratanjibhai Keshavbhai and on 03/01/1994, the complainant and
his wife went to the Morbhagava Gram panch ayat Office at
around 12:00 in the afternoon and met the accused and asked
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the accused for the revenue record. The accused demanded an
amount of ₹5,000/- as a illegal gratification and after
bargaining, the amount was fixed at ₹1,000/- and the accused
prepared the copy of the Village Form No. 7/12 and gave to the
complainant. That on 05/01/1994, the accused came to the
house of the complainant and demanded the amount, and at that
time, the complainant was not present at home and on
12/01/1994, the complainant and his wife had gone to the panch
ayat office to pay the amount of tax, and once again, the
accused demanded for the amount and the complainant
promised to pay the amount and the accused told the
complainant to pay the amount on 17/01/1994 in the market or
at the bus stand. The complainant did not want to pay the
amount of illegal gratification and went to the ACB Police
Station, Surat and filed the complaint under Section 7, 13(1)(d),
1,2,3 and 13(2) of the PC Act, which was registered at C.R.No.I-
of 1994, on 17/01/1994. The Trap Laying Officer called the
panch witnesses and introduced the complainant to the panch
witnesses, and the complainant narrated the facts of his
complaint. Complainant gave ten currency notes of the
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denomination of ₹500/- each to Police Sub Inspector G.M.
Solanki and under instructions of the Trap Laying Officer, Police
Sub Inspector G.M.Solanki conducted the demonstration of
anthracene powder and ultraviolet lamp and the characteristics
of anthracene powder and ultraviolet lamp were explained to
the complainant and the panch witnesses. The currency notes
given by the complainant were smeared with anthracene
powder and placed by Police Sub-Inspector GM Solanki in the
right side shirt pocket of the complainant and necessary
instructions were given to the complainant and the witnesses.
The panch nama Part-I was drawn and the panch witnesses and
the Trap Laying Officer affixed their signatures on the panch
nama Part-I. The complainant, panch witnesses, the wife of the
complainant and members of the raiding party sat in the
government vehicle and left the ACB office and went from
Timaliyawad, Athwa Gate, Sardar Bridge, Rander, Mora Bhagal
and on the road going from Olpad to Morbhagva and halted the
vehicle a little away from the Morbhagva Gram panch ayat
Office. The complainant, his wife and the panch No. 1 , got
down from the Jeep and walked to the Gram panch ayat Office
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and the other members of the raiding party and the panch No.
2 followed them in stood scattered around. The complainant, his
wife and the panch No. 1 met the accused in the office, and the
complainant told the accuse that he had brought the amount of
₹1,000/- and the accused extended his left hand and demanded
for the amount and the complainant took the currency notes
from his right shirt pocket with his right hand and, the accused
accepted the amount and opened the left drawer of his table
and placed the currency notes in the drawer and closed the
drawer. The complainant gave the predetermined signal and the
members of the party came and caught the accused and the
necessary test were done and the tainted currency notes were
recovered from the drawer of the table of accused. The
panchnama part-II was drawn and the panch witnesses and the
Trap laying Officer affixed their signatures on the panchnama
Part-II. The Investigating Officer recorded the statements of the
connected witnesses and collected the necessary documents
including the order of sanction for prosecution and the service
record of the accused and had filed a charge sheet before the
Sessions Court, Surat, which was registered as Special ACB
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Case No. 33 of 1994.
2.2] The accused was duly served with the summons
and the accused appeared before the learned trial Court and
after the due procedure of Section 207 of the Code of
Criminal Procedure, 1973 was followed, a charge at Exh: 11
was framed against the accused and the statement of the
accused was recorded at Exh: 12. The accused denied all the
contents of the charge and the evidence of the prosecution
was taken on record.
2.3] The prosecution has produced the following oral as
well as documentary evidences in support of their case.
ORAL EVIDENCE
Sr. Prosecution Name of the witnesses Exhibits
No. Witness
3 P.W.No.3 Jagdishbhai Haribhai Jhaveri Exh:47
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DOCUMENTARY EVIDENCE
Sr. Particulars Exhibits
No
1 Complaint Exh:32
2 Village Form No. 7/12 of Block No. 870/1 Exh:33
3 Village Form No. 7/12 of Block No. 870/2 Exh:34
4 Pedigree Exh:35, 36
6 Copy of settlement order R.C.S.No. 4/94 Exh:38
7 panch nama of Trap Exh:45
8 Copy of the seized muddamal Exh: 46
9 Permission for prosecution Exh; 48
10 Appointment order of accused Exh:51
11 Transfer order of accused Exh:52
12 Service Book of the accused Exh: 53
2.5] After the closing pursis was filed by the learned
Additional Public Prosecutor at Exh:54, the further statement of
the accused under Section 313 of the Code Of Criminal
Procedure, 1973 was recorded, wherein, the accused denied all
the evidence produced by the prosecution and after the
arguments of the learned Additional Public Prosecutor and the
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learned Advocate for the accused were heard, the learned trial
Court was pleased to pass the impugned judgment and order of
acquittal.
3] Being aggrieved and dissatisfied with the judgement
and order of acquittal, the appellant-State has filed the present
appeal mainly stating that the judgement and order of acquittal
is against the evidence on record of the case and the learned
trial Court has erred in appreciating the evidence, which has
resulted into miscarriage of justice. The learned trial Court has
erred in appreciating the oral evidence in its correct perspective
and has erroneously acquitted the respondent for the charges
against him. The order of acquittal has been passed as the
learned trial Court has not appreciated that the complainant has
clearly stated that the demand of ₹5000/- was made and the
panch No. 1 has clearly supported the case of the prosecution
as far as the procedural aspect of the trap is concerned, but the
learned trial Court has not relied upon the evidence of the
panch witness on the ground that the panch witness No. 1,
who was the shadow witness has expired and there is no
evidence on record to support the case of the prosecution. That
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in fact, the deposition of the complainant read with the evidence
of the panch witness No. 2 sufficiently corroborate the guilt of
the respondent and merely because the complainant has not
stated that there was a dispute between him and his sister,
which was subsequently settled and even though the fact does
not go to the root of the matter, the learned trial Court has not
relied upon the evidence of the complainant. The learned trial
Court has erred in doubting the procedure of giving sanction
without there being any justifiable reason and the prosecution
has proved that all the papers were sufficiently perused before
the order of sanction for prosecution was given. The learned
trial Court has erred in coming to a conclusion that the
complainant's wife ought to have been examined, but even
though there was ample evidence on record corroborating the
evidence of the complainant and there was no need to examine
the wife of the complainant, the learned trial court has passed
the impugned judgement and order of acquittal. That the
judgement and order of acquittal is bad in law, illegal and
against the weight of the evidence and is required to be
quashed and set aside.
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4] Heard learned Additional Public Prosecutor Ms. Jirga
Jhaveri and learned advocate Mr. Shivang D. Mehta for the
respondent. Perused the impugned judgment and order of
acquittal and have reappreciated the entire evidence of the
prosecution on record of the case.
5] Learned Additional Public Prosecutor Ms. Jirga
Jhaveri has taken this Court through the entire evidence of the
prosecution produced on record of the case and has stated that
the complainant has clearly supported the case of the
prosecution and stated that the respondent had demanded an
amount of ₹5000/- and after bargaining the amount was fixed
₹1000/- and even in the presence of the panch witness on the
date of the trap, the amount was demanded and accepted by the
respondent. The panch witness, who was along with the
members of the raiding party has also supported the case of the
prosecution and the prosecution has proved from the evidence
of Prosecution Witness No. 3 Jagdishbhai Haribhai Jhaveri that
the order of sanction for prosecution was given after
considering all the documents sent by the ACB Police Officials.
That the Trap Laying Officer, who is also the Investigating
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Officer has fully supported the case of the prosecution and there
is nothing on record to show that there was any prejudice
caused by the Trap Laying Officer himself investigating the
matter. That the learned trial Court has not appreciated the oral
and documentary evidences produced by the prosecution in
proper prospective and the impugned judgement and order is
required to be quashed and set aside as the prosecution has
proved all the ingredients of demand, acceptance and recovery
and the respondent must be found guilty for the offences.
6] Learned advocate Mr. Shivang Mehta for the
respondent has submitted that in the entire evidence of the
prosecution, it is on record that the wife of the complainant was
present with the complainant when the prior demand was made
and on the day of the trap but the wife of the complainant has
not been examined. Moreover, the panch No. 1, who was the
shadow witness and had accompanied the complainant and was
the best witness, who could have heard the demand if any made
by the respondent at the time of the trap has not been examined
before the learned trial Court as he had expired, and there is no
iota of evidence of any demand of illegal gratification, proved by
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the prosecution. Admittedly, the tainted currency notes were
found in the left drawer of the table of the respondent and as
per the complainant, the respondent had accepted the tainted
currency notes with his left hand and kept it in his right hand
and thereafter, placed the tainted currency notes in the left
table drawer, but there are no traces of anthracene powder
found on the right hand of the respondent. That in fact, the
names of the complainant and other legal heirs were mutated
much earlier in the revenue record and in the complaint itself,
the complainant has stated that without giving any amount, the
respondent had given the copy of the revenue record to the
complainant. The prosecution has not proved the demand or
acceptance beyond reasonable doubts and the fact that the
complainant had placed the tainted currency notes in the
drawer of the table of the respondent, cannot be ruled out, and
the learned trial Court has appreciated all the evidence in
proper perspective. The learned trial Court has discussed the
oral and document evidence and in a well reasoned judgement
has concluded that the prosecution has not proved the case
against the respondent beyond reasonable doubts and has
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acquitted the respondent and there is no illegality or perversity
in the impugned judgement order and order and learned
advocate has urged this court to reject the appeal of the
appellant.
7] At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court in the case of Mallappa & Ors.
Vs. State of Karnataka passed in Criminal Appeal No.1162
of 2011 on 12.02.2024, wherein, the Apex Court has observed
in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this challenge.
It is the cardinal principle of criminal jurisprudence that there is a
presumption of innocence in favour of the accused, unless proven guilty. The
presumption continues at all stages of the trial and finally culminates into a
fact when the case ends in acquittal. The presumption of innocence gets
concertized when the case ends in acquittal. It is so because once the Trial
Court, on appreciation of the evidence on record, finds that the accused was
not guilty, the presumption gets strengthened and a higher threshold is
expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel
about that. It is also beyond doubt that in the exercise of appellate powers,
there is no inhibition on the High Court to re-appreciate or re-visit the
evidence on record. However, the power of the High Court to reappreciate the
evidence is a qualified power, especially when the order under challenge is of
acquittal. The first and foremost question to be asked is whether the Trial
Court thoroughly appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second point for
consideration is whether the finding of the Trial Court is illegal or affected by
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an error of law or fact. If not, the third consideration is whether the view taken
by the Trial Court is a fairly possible view. A decision of acquittal is not meant
to be reversed on a mere difference of opinion. What is required is an illegality
or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an
extraordinary phenomenon. The 'two-views theory' has been judicially
recognized by the Courts and it comes into play when the appreciation of
evidence results into two equally plausible views. However, the controversy is
to be resolved in favour of the accused. For, the very existence of an equally
plausible view in favour of innocence of the accused is in itself a reasonable
doubt in the case of the prosecution. Moreover, it reinforces the presumption
of innocence. And therefore, when two views are possible, following the one in
favour of innocence of the accused is the safest course of action. Furthermore,
it is also settled that if the view of the Trial Court, in a case of acquittal, is a
plausible view, it is not open for the High Court to convict the accused by
reappreciating the evidence. If such a course is permissible, it would make it
practically impossible to settle the rights and liabilities in the eyes of law. In
Selvaraj v. State of Karnataka,
"13. Considering the reasons given by the trial Court and on
appraisal of the evidence, in our considered view, the view taken by
the trial Court was a possible one. Thus, the High Court should not
have interfered with the judgment of acquittal. This Court in Jagan
M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that
as the appreciation of evidence made by the trial Court while
recording the acquittal is a reasonable view, it is not permissible to
interfere in appeal. The duty of the High Court while reversing the
acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was
dealing with an appeal against acquittal. It was required to
deal with various grounds on which acquittal had been based
and to dispel those grounds. It has not done so. Salutary
principles while dealing with appeal against acquittal have
been overlooked by the High Court. If the appreciation of
evidence by the trial Court did not suffer from any flaw, as
indeed none has been pointed out in the impugned judgment,
the order of acquittal could not have been set aside. The view
taken by the learned trial Court was a reasonable view and
even if by any stretch of imagination, it could be said that
another view was possible, that was not a ground sound
enough to set aside an order of acquittal."" (emphasis
supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme
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Court analyzed the relevant decisions and summarized the
approach of the appellate Court while deciding an appeal from
the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial Court in acquitting
the accused must be dealt with, in case the appellate Court is
of the view that the acquittal rendered by the trial Court
deserves to be upturned (see Vijay Mohan Singh v. State of
Karnataka5, Anwar Ali v. State of H.P.)
7.2. With an order of acquittal by the trial Court, the normal
presumption of innocence in a criminal matter gets reinforced
(see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on record, the
appellate Court must be extremely slow in interfering with the
appeal against acquittal (see Sambasivan v. State of Kerala)."
7.1] In Para - 36, the Apex Court, in the case of Mallappa
(Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All the
safeguards and the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The principles which
come into play while deciding an appeal from acquittal could
be summarized as:-
(i) Appreciation of evidence is the core element of a criminal
trial and such appreciation must be comprehensive - inclusive
of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two
views are possible, the one in favour of the accused shall
ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the reversal
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of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in
appeal on a re-appreciation of evidence, it must specifically
address all the reasons given by the Trial Court for acquittal
and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity or
error of law or fact in the decision of the Trial Court.
7.2] 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:
"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
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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
inturn there is a payment made which is received by the
public servant, would be an offence of obtainment under
Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and
acceptance or obtainment of an illegal gratification may be
made by a Court of law by way of an inference only when the
foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the
basis of the material on record, the Court has the discretion to
raise a presumption of fact while considering whether the fact
of demand has been proved by the prosecution or not. Of
course, a presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has 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
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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] As per the settled principles of law, which are very well
crystallized with regard to the interference of the Appellate
Court in acquittal appeals, the evidence produced by the
prosecution must be re-appreciated and only if there is
perversity or illegality in the impugned judgment and order, an
interference of the Appellate Court would be warranted. It is
also settled that if two views are possible and the learned trial
Court has taken a view of acquitting the accused, the Appellate
Court should not interfere with the impugned judgment and
order and it is open for the Appellate Court to re-appreciate the
evidence.
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9] To bring home the charge against the accused, the
prosecution has examined Prosecution Witness No. 1 Kishorbhai
Maganbhai Bhagwakar at Exh: 31 and the witness is the
complainant who has stated that he had inherited immovable
property Block No. 870/1 and 870/2, after the demise of his
father on 23/12/1979 and the demise of his uncle Ratanjibhai
Keshavbhai on 13/11/1980. That on 03/01/1994, he had gone to
the Morbhagva Gram panchayat Office to take a copy of the
village Form No. 7/12, and at that time, the accused demanded
an amount of ₹10,000/- and after bargaining, the amount was
fixed at ₹5000/- and the accused gave the copy of the village
Form No. 7/12. On 05/01/1994, the accused came to his house
and demanded the money from his wife as the complainant was
not at home and on 12/01/1994 when he had gone to pay the tax
at the panch ayat office, the accused demanded the amount of
₹5000/- and the complainant promised to pay the amount on
17/01/1994. The complainant did not want to pay the amount,
and he went to the ACB office and gave ten currency notes of
the denomination of ₹500/- each and he was explained about the
anthracene powder and ultraviolet lamp at the police station.
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That the currency notes were smeared with anthracene powder
and placed in his right shirt pocket and the panch witnesses
were called and he, his wife and the panch witness went to the
Morbhagva Gram panch ayat office and met the accused, who
demanded the amount of ₹5000/-, and the complainant gave the
tainted currency notes, and the accused accepted it with his left
hand and opened the drawer with his right hand and placed the
currency notes in the drawer. That he gave the predetermined
signal and the members of the raiding party came and caught
the accused.
During the cross examination by the learned advocate for
the accused, the witness has stated that his sister Revaben had
filed Regular Civil Suit No. 4 of 1994 against him and the matter
was compromised and the decree was passed as per the
compromise, which is produced at Exh: 38. The complainant has
refused to state anything, when he was shown a certificate
stating that the accused was present at the monthly meeting of
the Talati-cum-Mantri at Olpad. That, he had demanded land for
fishing purposes and the villagers had objected and he did not
get the land. That he had filed the application in 1994 for
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mutating his name in the revenue record as his father died on
23/12/1979 and his uncle expired on 13/11/1980. That he had
gone to the Gram Panchayat Office on 12/01/1994 with his wife.
9.1] The prosecution has examined Prosecution Witness
No. 2 Ramtubhai Manchchhu Chaudhary at Exh: 44, and the
witness is the panch witness, who has supported the case of the
prosecution and has narrated all the events that had taken place
on 17/01/1994 when he and the other panch witness, Pravinbhai
Prabhubhai Nagar had gone to the ACB Office. The witness has
stated that Praveenbhai Prabhubhai Nagar was the shadow
witness and was instructed to go along with the complainant to
the gram panch ayat office and the witness was the panch No.
2, who was instructed to remain with the raiding party. The
witness has supported the case of the prosecution and he stated
that after the predetermined signal was given, he and the other
members of the raiding party ran into the office, and the tests
were done and the tainted currency notes were recovered from
the left drawer of the table of the accused.
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During the cross examination by the learned advocate for
the accused. The witness has stated that in the complaint, the
crime registration number is not mentioned and the accused did
not demand any amount of illegal gratification in his presence
and no currency notes were accepted by the accused in his
presence. That the complaint was not taken down in his
presence and they had not affixed their signatures, when the
complaint was taken, and he does not remember how many
signatures he had affixed on that day. The wife of the
complainant was with him on the day of the trap, but he did not
have any conversation with the wife of the complainant, and
when they went to the panch ayat office, one Talati and one
peon were also present. That he did not know that there was a
dispute between the complainant and his sister Revaben about
the property and the complainant, his wife and the panch No. 1
had gone into the office of the accused and he had gone later
when the predetermined signal was given. That he had signed
the panch nama and he does not know any other details, and he
does not remember where he was seated in the jeep.
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9.2] The prosecution has examined Prosecution Witness
No. 3 Jagdishbhai Haribhai Jhaveri at Exh: 47 and the witness is
the competent authority, who has recorded the order of sanction
for prosecution, which is produced at Exh: 48.
During the cross examination by the learned advocate for
the accused, the witness has stated that the reason for demand
of illegal gratification was the entry of heirship but the entry
was mutated in the revenue record a long time ago and he did
not know that there was a dispute between the complainant and
his sister regarding Block No. 870/1 and 870/2, and there were
pending civil litigations between them. There is no mention of
any civil litigation in his order and as per his experience, this
was the first case where the complainant had gone along with
his wife to pay the amount of illegal gratification.
9.3] The prosecution has examined Prosecution Witness
No. 4 Jayantilal Icchubhai Patel at Exh: 49 and the witness is the
Trap Laying Officer and the Investigating Officer, and as fully
supported the case of the prosecution and has narrated in detail
all the procedure that was done by him on 17/01/1994, when he
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was working as a Police Inspector in the ACB Police Station till
the trap was successful. The witness has stated that after the
trap he had taken over the investigation and had recorded the
statements of the witnesses and had collected the service record
of the accused and sent the documents for the order of sanction
for prosecution to the competent authority. That, after the order
of sanction for prosecution was received, a charge sheet came
to be filed before the Sessions Court, Surat.
During the cross examination by the learned advocate for
the accused, the witness has stated that there was a dispute
about the land between the complainant and Revaben and
during investigation, he found that civil litigation were pending
between them and Revaben had filed a complaint on
23/12/1993. That, in all the cases that he had investigated, it
was the first case where the complainant went along with his
wife to pay the amount of illegal gratification and before the
complaint was filed, the complainant had already received the
copies of the revenue record. That in the panch nama, it is not
mentioned that the room was darkened for the demonstration of
anthracene powder and the wife of the complainant was present
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throughout. During investigation, he does not know whether
there was a meeting at Olpad on 05/09/1994, and he had
investigated the complaint of Revaben against the complaint.
10] On minute appreciation of the entire evidence of the
prosecution, as per the case of the prosecution, the amount of
illegal gratification has been demanded by the accused for
mutation of the name of the complainant and his mother in the
revenue record of Block No. 870 1 and Block No. 8702, but it is
on record that the names of the complainant and his mother
were mutated in the revenue record much earlier than the date
of the complaint. The application made by the complainant and
his mother is produced at Exh: 35 and the names of the
complainant and his mother were mutated in the revenue record
much earlier than the filing of the complete. As per the case of
the prosecution, when the complainant went for the first time to
the office of the accused, he was accompanied with his wife and
thereafter, the accused went to the house of the complainant in
the absence of the complainant to demand for the amount of
illegal gratification, and at that time, the wife of the
complainant was at home. Even on the date of the trap , the
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presence of the wife of the complainant is throughout, but the
prosecution has not examined the wife of the complainant as a
witness in the case. The panch No. 1 who was the shadow
witness has expired and he could not be examined before the
learned trial Court, and hence the factum of demand has not
been proved by the prosecution beyond reasonable doubts. The
panch No. 2, who has been examined at Exh:44 has not heard
the demand of illegal gratification made by the accused and has
not witnessed the acceptance of the tainted currency notes of
₹1000/- and admittedly, the tainted currency notes were found
from the left drawer of the table of the accused. That as the
revenue record was already given to the complainant, and both
the lands were disputed, there was no reason for the accused to
demand for any amount of illegal gratification. Admittedly, at
the time of the trap , one another Talati and a peon were
present in the Gram panch ayat Office and were independent
witnesses, but they have not been examined before the learned
trial Court. That if there was any demand made by the accused
at the time of the trap, the witnesses, who are present, would
have depose to that effect and there is no iota of evidence
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regarding the demand, which is a sine-qua-non for the offence
under Sections 7 of the PC Act. That as the tainted currency
notes were recovered from the left drawer of the table of the
accused, the possibility that the same were placed by the
complainant cannot be ruled out and it cannot be said that the
currency notes have been recovered from the physical
possession of the accused.
11] As per the settled principles of law, the Appellate
Court would not ordinarily interfere with the order of acquittal
unless after appreciation of the evidence, it appears that the
judgement and order of the learned trial Court is vitiated by
some manifest illegality and the conclusion arrived at by the
learned trial Court is such that would not be arrived at by any
reasonable person, and the decision is perverse. It is also settled
law that the presumption of innocence of the accused is
strengthened by the judgement of acquittal and the golden
thread, which runs through the web of administration of justice
in criminal cases is that when there are two views possible, the
view in favour of the accused must be adopted. An appellate
court has full power to reappreciate and reconsider the entire
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evidence of the prosecution and would interfere only if there are
substantial and compelling reasons that the judgement is
perverse and illegal.
12] In view of the decision of the Apex Court in the case
of Mallappa (supra), this Court is of the opinion that the
learned trial Court has appreciated the entire evidence of the
prosecution and there does not appear to be any infirmity and
illegality in the impugned judgment and order of acquittal. The
learned Trial Court has appreciated all the evidence and this
Court is of the considered opinion that the learned Trial Court
was completely justified in acquitting the accused of the charges
leveled against him. The findings recorded by the learned Trial
Court are absolutely just and proper and no illegality or
infirmity has been committed by the learned trial Court and this
Court is in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
learned Trial Court. This Court finds no reason to interfere with
the impugned judgment and order and the present appeal is
devoid of merits and resultantly, the same is dismissed.
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13] The impugned judgment and order of acquittal order
dated 10/04/2006 passed by the Special Judge & Presiding
Officer(5th Fast Track Court), Surat (hereinafter referred
to as the learned trial Court) in Special (ACB) Case No. 33 of
1994 is hereby confirmed.
14] Bail bond stands canceled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
