Gujarat High Court
State Of Gujarat vs Bhavanbhai Khanabhai Vankar on 4 June, 2025
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R/CR.A/2416/2009 JUDGMENT DATED: 04/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2416 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BHAVANBHAI KHANABHAI VANKAR
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Appearance:
MR. MEET THAKKAR, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR. JAVED S. QURESHI(6999) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/06/2025
ORAL JUDGMENT
1. The present Acquittal Appeal has been filed by the State
under Section-378 of the Code of Criminal Procedure, 1973,
challenging the judgment and order dated 11/09/2009 passed by
learned 5th Additional District and Sessions Judge, Surat
(hereinafter referred to as "the Trial Court") in Special A.C.B. Case
No.28 of 2004. By way of the impugned judgment and order, the
accused has been acquitted of all the charges levelled against him
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under Sections-7, 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as "Corruption Act").
2. The short facts emerging from the record are read as under:-
2.1 It is the case of the prosecution that one truck bearing
registration No.GJ-7-U-9844, owned by the son of the
complainant, was seized by the Umara Police Station. As per
the release order for the said truck issued by the concerned
Court, a Solvency Certificate was required to be submitted to
the concerned police station to get possession of the said
truck.
2.2 To avail the Solvency Certificate, the necessary paperwork
was submitted to the office of Mamlatdar, Choryasi, District
Surat for which complainant visited said office where the
complainant came into contact with the accused, who was
serving as a Circle Officer and was required to put up the
necessary papers with his recommendation to the concerned
Mamlatdar for issuance of the Solvency Certificate.
2.3 It is further the case of the prosecution that to complete the
work of complainant, the accused had demanded a sum of
Rs.5,000/- as bribe from complainant. So, complainant had
approached the Anti-Corruption Bureau Office at Surat,
which, after taking a written complaint from him, having
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called for panchas for raid and preparing other formalities,
conducted a trap on 05/07/2004.
2.4 The complainant along with the panchas, went to the office of
accused, where the accused allegedly demanded and
accepted the bribe from complainant in the presence of
panch namely Chimanbhai Chhitubhai Vasava. Thereafter,
the raiding party arrived and caught the accused red-handed.
After completing the raid and drawing the panchnama, the
accused was arrested for committing the offences punishable
under Sections-7, 13(1)(d) and 13(2) of the Correction Act.
2.5 After registration of the F.I.R. and completion of the
investigation, the accused was charge-sheeted. Thereby, a
Special Case was registered before the Trial Court as per the
provisions of the Corruption Act.
3. The charge below Exh.5 was framed against the accused by
the Trial Court under Sections-7, 13(1)(d) and 13(2) of the
Corruption Act. To prove the charges levelled against the accused,
the prosecution has examined the following witnesses.
Oral Evidences of Prosecution
Sr. No. Name and Particulars Exh.
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4. After conducting the Trial and appreciating the evidence on
record, the Trial Court has found that prosecution has failed to
establish the case and was not able to prove the charges beyond
doubt, and thereby acquitted the accused from all the charges
levelled against him.
5. I have heard learned Additional Public Prosecutor, Mr.Meet
Thakkar for the State at length. Learned APP has taken me through
various oral as well as documentary evidence, which are on record
of the case. I have also independently examined and re-appreciated
the evidence of witnesses examined by the prosecution.
6. Learned Additional Public Prosecutor, Mr. Thakkar would
submit that the findings of acquittal is contrary to law and the
evidence on record and the findings recorded by the Trial Court are
erroneous and based on irrelevant material.
6.1 Learned APP would submit that the prosecution has
successfully established on record that accused had
demanded and accepted Rs.5,000/- from the complainant,
thereby, proved the ingredients of Section-7 read with
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Section-13 of the Corruption Act.
6.2 Learned APP would submit that the Trial Court has
erroneously observed that accused had not demanded a bribe
from the complainant and erroneously came to the conclusion
that the prosecution has failed to prove the charges beyond
doubt.
6.3 Learned APP would further submit that the prosecution has
successfully proved all the charges levelled against the
accused by leading cogent and convincing evidence and that
the accused ought to have been punished for the crime
committed by him.
6.4 Learned APP would submit that merely because complainant
turned hostile would not ipso facto be a ground to record the
order of acquittal. It is submitted that the Trial Court has
erroneously ignored the convincing evidence on record,
inasmuch as the demand, acceptance and recovery of the
amount of bribe from the accused and thereby wrongly
acquitted the accused from the charge.
6.5 Learned APP would further submit that there may be some
minor contradictions in the evidence of panch-witness who
was present at the time of raid, but considering overall facts
and circumstances of the case, such minor contradictions
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would not be sufficient grounds to acquit the accused.
6.6 Learned APP would further submit that the prosecution has
led evidence to bring home the charge to be proved against
accused and for the same, the accused ought to have been
convicted.
7. Before dealing with merit of the appeal, at this stage, I would
first like to remind myself the position of law propounded by
Supreme Court of India in its various decisions, whereby it has laid
down several criteria while deciding acquittal appeal especially in
Anti-Corruption cases.
8. It would be apt to refer and rely upon the decision of the
Constitution Bench of the Honourable Supreme Court of India in a
case of Neeraj Dutta V/s. State (Govt. of N.C.T. of Delhi)
reported in (2023) 18 SCC 251, wherein it held as under:
"14. Even the issue of presumption under Section-20 of the P.C. Act has been
answered by the Constitution Bench by holding that only on proof of the facts
in issue, Section-20 mandates the court to raise a presumption that illegal
gratification was for the purpose of motive or reward as mentioned in Section
7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench
has approved two decisions by the Benches of three Hon'ble Judges in B. Jayaraj
and P. Satyanarayana Murthy. There is another decision of a three-Judges'
Bench in N. Vijayakumar v. State of T.N., which follows the view taken in B.
Jayaraj and P. Satyanarayana Murthy."
"18. Section-7, as existed prior to 26-07-2018, was different from the present
Section-7. The unamended Section-7 which is applicable in the present case,
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specifically refers to "any gratification". The substituted Section-7 does not use
the word "gratification", but it uses a wider term "undue advantage". When the
allegation is of demand of gratification and acceptance thereof by the
accused, it must be as a motive or reward for doing or forbearing to do any
official act. The fact that the demand and acceptance of gratification were
for motive or reward as provided in Section-7 can be proved by invoking the
presumption under Section-20 provided the basic allegations of the demand
and acceptance are proved."
"21. The allegation of demand of gratification and acceptance made by
a public servant has to be established beyond a reasonable doubt. The decision
of the Constitution Bench does not dilute this elementary requirement of
proof beyond a reasonable doubt. The Constitution Bench was dealing with the
issue of the modes by which the demand can be proved. The Constitution Bench
has laid down that the proof need not be only by direct, oral or documentary
evidence, but it can be by way of other evidence including circumstantial
evidence. When reliance is placed on circumstantial evidence to prove the demand
for gratification, the prosecution must establish each and every circumstance from
which the prosecution wants the court to draw a conclusion of guilt. The facts so
established must be consistent with only one hypothesis that there was a demand
made for gratification by the accused. Therefore, in this case, we will have to
examine whether there is any direct evidence of demand. If we come to a
conclusion that there is no direct evidence of demand, this Court will have to
consider whether there is any circumstantial evidence to prove the demand."
(emphasis supplied)
8.1 It would be also appropriate to refer and rely upon the
decision of Hon'ble Supreme Court of India in the case of
Mallappa and Ors. V/s. State of Karnataka reported in
(2024) 3 SCC 544, wherein scope of acquittal is succinctly
discussed and elaborated held thus:-
"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
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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 concretized 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 re-appreciate 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 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, 2015 10 SCC 230
"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
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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., 2022 6 SCC 294 the Hon'ble Supreme 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 Karnataka, 2019 5
SCC 436 Anwar Ali v. State of H.P., 2020 10 SCC 166)
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., 1955
AIR(SC) 807)
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, 1998 5 SCC 412)"
(emphasis supplied)
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9. Thus, it is now a well-settled legal position of law that a heavy
burden is cast upon the prosecution to prove that the accused has
demanded and accepted the bribe, and the same would have to be
recovered from accused. In a case where any of these ingredients
are missing, the charges levelled against accused under Section-7
read with Section-13 would not be attracted.
10. Now, keeping in mind the aforesaid principle laid down by
the Hon'ble Supreme Court of India, it is required to be considered
as to whether any serious error of law and fact was committed by
the Trial Court while acquitting the accused ?
11. I have gone through the impugned judgment passed by the
Trial Court as well as the oral evidence on record. After
reappreciating evidence, including the oral evidence on record, the
following facts are found from the evidence led by prosecution,
which reads as under:-
(i). The complainant appears to have not support the case of the
prosecution, as he was declared hostile during the course of
his oral evidence. Even after cross-examination of
complainant by the learned APP, nothing turned out against
the accused, as the complainant was not able to give the full
name of the accused and was unable to identify him;
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(ii). The muddamal article which was seized by the raiding party
was not identified by the complainant, including the
complainant was not able to confirm which pant the accused
was wearing on the day of the trap, which was also seized;
(iii). Although, the complainant was a B.Com, LL.B graduate, he
was not aware of the reason why truck of his son was seized
by the police.
(iv). It has been categorically admitted by the complainant
during the cross-examination conducted by the accused that,
prior to the initiation of ACB proceedings, his son had
already got possession of the aforementioned truck and the
same was in his custody. So, there was no reason for him to
visit office of accused.
(v). It has further emerged from evidence of the complainant
that when he along with the panch, met the accused, the
accused had informed him that he had already forwarded
the recommendation letter to the concerned Mamlatdar for
issuance of Solvency Certificate in favour of the
complainant.
(vi). Furthermore, during the course of investigation, it was
revealed that the accused had no authority to issue a
Solvency Certificate, rather he had already sent his opinion
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on the day on which it was sought from the accused. The
complainant being learned person would not readily agreed
to pay bribe to a person who has no authority to issue
certificate. This itself weaken case of prosecution coupled
with other factors coming forth on record of the case.
(vii). So far as the evidence of panch-witness (PW-2) is concerned,
who accompanied the complainant, in his chief examination
stated that the accused allegedly demanded and accepted
money from the complainant. However, from his cross-
examination revealed that PW-2 was unable to recollect the
crucial details of the raid. From his entire evidence, it
appears that he did not remember the exact incident that
occurred during the course of the raid and admitted that the
entire panchnama was prepared by the trapping officer and
that he had simply signed in it. Furthermore, PW-2 has
admitted during his cross-examination that he could not
confirm as to whether any illegal demand of a bribe made by
the accused from the complainant in his presence. A reading
of the oral evidence of PW-2 suggests that he could not
recall the exchange of words that taken place between the
complainant and the accused in his presence, and therefore,
he did not fully support the case of the prosecution.
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12. Thus, upon overall reappreciation of the oral evidence that
came on record and having found the aforesaid inherent defects in
the evidence led by the prosecution, which goes to the root of the
matter, would create suspicion about the entire story put forward
by the prosecution in relation to the offence in question. Once a
serious doubt is created from the evidence on record, as per the
settled legal position of law propounded by the Hon'ble Supreme
Court in the case of Neeraj Dutta (supra) and Mallappa (supra),
the benefit of doubt is required to be granted in favour of the
accused.
13. Furthermore, when the accused had already forwarded his
opinion on the same day on which it was sought from him and the
complainant having admitted this fact that prior to the initiation of
A.C.B. proceedings, the truck belonging to his son had already
been released by the police and was lying at his home, it would
reason to believe that upon getting the Solvency Certificate and
producing it before the concerned police station, the son of the
complainant got possession of the truck.
14. In light of the aforesaid fact, the accused having already sent
his opinion prior to the trap in question, there would be no question
of any illegal gratification on the part of the accused to be received
from the complainant. So, entire case of prosecution falls having
not even proved though examined witnesses.
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15. In view of the aforesaid peculiar facts and circumstances of
the case, the reasons assigned by the Trial Court are just,
reasonable and infallible in as much as it is not contrary to the
settled principle of law as there is no possibility of taking any
contrary view in the matter.
16. So, after overall assessment of evidence and its re-
appreciation as well as reasons assigned by learned Trial Court, I
am in complete agreement with the view taken by the Trial Court
having acquitted the accused by giving him the benefit of doubt.
17. Considering these set of evidence on record and in light of
the aforesaid decisions of the Hon'ble Supreme Court as referred
hereinabove, which deals with the law on acquittal as well as the
issue germane in the appeal, I am of the opinion that no error has
been committed by the Trial Court while acquitting the respondent.
18. Consequently, the appeal is DISMISSED. Resultantly, the
impugned judgment and order of the trial court is hereby
confirmed. Bail bond, if any, shall stand cancelled. Record and
proceedings, called for, shall be sent back to the concerned Trial
Court forthwith.
(MAULIK J. SHELAT, J)
Nilesh
