Gujarat High Court
State Of Gujarat vs Raxaben Kishorbhai Modi on 30 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 541 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RAXABEN KISHORBHAI MODI & ANR.
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Appearance:
MS ASMITA PATEL, APP for the Appellant(s) No. 1
MR KUNAL S SHAH(5282) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 30/09/2025
ORAL JUDGMENT
1. The present appeal has been preferred by the appellant -
State under Section 378(1) of the Code of Criminal Procedure,
1973 (for short, 'Cr.P.C.'), and is directed against the judgment
and order of acquittal dated 16.12.2023 passed by the learned
Special Judge, Navsari, in Special (ACB) Case No.01 of 2017,
whereby the learned Special Judge acquitted the respondents
(i.e. the original accused nos.1 and 2) from the offences
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punishable under Sections 7, 12, 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act, 1988.
The prosecution version, in a nut-shell, is as follows :
2. It is the case of the prosecution that on 30.01.2009, the
respondent no.1-original accused no.1, who was serving as Nazir
(Superintendent) In-charge Registrar, Civil Court, Surat, and the
respondent no.2-original accused no.2, who was serving as
Assistant Clerk, Civil Court, Surat, had demanded and accepted
Rs.1000=00 and Rs.500=00, respectively, from the complainant
- Kishorkumar Tribhovandas Hingu for the purpose of issuing
show-cause notice to the opponents in the Regular Civil Suits
Nos.47/2009, 48/2009, 49/2009 and 50/2009 filed by the
complainant. It is alleged that the respondents-accused, being
the public servants, were duty-bound to discharge their official
function, however, they had demanded illegal gratification from
the complainant for discharge of their official duty.
3. It is the case of the prosecution that on the basis of the
complaint filed by the complainant, on 30.01.2009 at around
17:05 hours, during the trap, the respondents-accused were
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caught red-handed from the Registrar's office at Room No.1035,
New Court Building, Civil Court, Surat, demanding and
accepting the amount of bribe from the complainant, in presence
of the panchas.
4. For the alleged offence committed by the respondents-
accused, a complaint was filed under Sections 7, 13(1)(d) and
13(2) of the Prevention of Corruption Act before the ACB Police
Station, Surat, vide CR No.2 of 2009.
5. Thereafter, the Investigating Officer recorded the
statements of the relevant witnesses, drew the necessary
panchnamas, collected several documentary evidence and after
receiving the order of sanction for prosecution from the
competent authority, the charge-sheet (Exh.1) came to be filed
against the respondents-accused on 18.08.2009 before the
learned Special Judge, Surat, which was registered as Special
(ACB) Case No.15 of 2009, and upon transfer of the case to the
Navsari Court, as per the order of the High Court of Gujarat
dated 23.03.2017, the same came to be registered as Special
(A.C.B.) Case No.01 of 2017.
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6. The respondents-accused were duly served with the
summons from the trial court, and after following due procedure,
charge was framed by the trial court on 16.05.2016 vide Exhibit
11 and the statements of the respondents-accused were recorded
vide Exhibits 12 and 13. Since the respondents-accused pleaded
innocence, the trial was held.
7. To bring home the charge, the prosecution had examined
six witnesses and adduced twelve documentary evidence in
support of their case, which are as follows :
WITNESSES
NO. NAME EXHIBIT
1. Kishorkumar Tribhovandas Hingu - Complainant 15
2. Lateshbhai Gopalbhai Patel - Panch Witness 71
4. Sirajbhai AbdulMajid Jabha - Police Witness 117
5. Rameshchandra Muljibhai Barot - Investigating 123
Officer
6. Ambaram Bhikhabhai Patel - Investigating Officer 124
DOCUMENTARY EVIDENCE
NO. DESCRIPTION OF THE DOCUMENT EXHIBIT
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3 Receipt of the muddamal recovered from the accused 100
5 Copy of the summons of the R.C.S. No.47 of 2009 of 102
the 6th Additional Civil Judge, Surat
6 Letter to provide two Government employees as 118
panchas
7 Letter addressed to the Principal District Judge, 119
Surat, for information and permission of ACB trap
8 Letter written to the Principal District Judge, Surat, 120
regarding the preparation for the trap
9 Service Book of the accused, Appointment Order, 125
Leave Report, Duty List and Forwarding Letter
10 Final Report by the F.S.L. along with forwarding 126
letter
8. At the end of the trial, after recording the statements of the
respondents-accused under Section 313 of the Cr.P.C. and
considering the arguments canvassed on behalf of the
prosecution and the defence, the trial court acquitted the
respondents-accused of all the charges levelled against them
vide judgment and order of acquittal dated 16.12.2023.
9. Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal dated 16.12.2023 passed by the
trial court, the appellant-State has preferred the present appeal
mainly on the grounds that the order of acquittal passed by the
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trial court is contrary to law and the evidence on record; the trial
court has failed to appreciate the oral as well as documentary
evidence produced by the prosecution in support of their case;
the trial court has not properly appreciated the evidence and has
committed a grave error, which is apparent on the face of the
record; and that the trial court has failed to consider the fact
that the accused were the public servants and they had
demanded and accepted the amount of Rs.1,500=00 as illegal
gratification from the complainant. Therefore, it is prayed that
the impugned judgment and order passed by the trial court
acquitting the respondents-accused, being illegal, invalid and
improper, deserves to be quashed and set-aside.
10. Heard learned APP Ms.Asmita Patel for the appellant-State
and learned advocate Mr.Kunal S.Shah for the respondents-
accused. Perused the impugned judgment of the trial court as
well as threadbare examined the evidence on record.
SUBMISSIONS ON BEHALF OF THE APPELLANT-STATE :
11. Learned APP Ms.Asmita Patel has vehemently contended
that the impugned judgment and order passed by the trial court
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is contrary to the provisions of law and the learned Special
Judge has not properly considered the evidence led by the
prosecution. Learned APP Ms.Patel, while taking this Court
through the oral as well as documentary evidence, has
submitted that the trial court has failed to appreciate the fact
that the currency notes mentioned in the panchnama were
tallied with the currency notes recovered from the respondents-
accused. Learned APP has further submitted that the trial court
has also failed to appreciate the evidence of the important
panch-witness (PW-2) Lateshbhai Gopalbhai Patel, who was
examined at Exh.71. It is submitted that this witness, in his
evidence, has categorically deposed that, in his presence, the
respondents-accused had demanded and accepted the amount
towards illegal gratification from the complainant.
12. It is submitted that the trial court ought to have considered
the fact that the necessary elements constituting the offence, viz.
demand, acceptance and recovery, have been clearly proved by
the prosecution beyond reasonable doubt. Further, it is
submitted that the trial court has given undue importance to
minor omissions and contradictions in the evidence of the
witnesses.
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13. Learned APP Ms.Patel has, therefore, submitted that there
was no reason for the trial court to disbelieve the case of the
prosecution and to acquit the respondents-accused. Hence,
learned APP Ms.Patel has urged that the appeal may be admitted
and the impugned judgment and order passed by the trial court
may be quashed and set-aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS-
ACCUSED :
14. Vehemently opposing the present appeal, learned advocate
Mr.Kunal S.Shah appearing for the respondents-accused has
submitted that the captioned appeal filed by the appellant-State
is required to be rejected since the trial court has, after precisely
appreciating the evidence on record; both, ocular and
documentary, acquitted the respondents-accused.
ANALYSIS AND FINDINGS :
15. Before adverting to the facts and circumstances of the
case, it would be apt to reiterate the fundamental principle of
criminal jurisprudence as affirmed by the highest court that, in
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criminal trial it is for the prosecution to bring home the guilt of
the accused since the burden of proving the guilt beyond
reasonable doubt always rests upon the prosecution. It is also
settled that the prosecution has to stand on its own legs and
cannot take advantage or undue advantage of the defence put
forth by the accused. The Supreme Court, in the case of
Rabindra Kumar Dey vs. State of Orissa, AIR 1977 SC 170,
reiterated three cardinal principles, namely, (i) that the onus lies
affirmatively on the prosecution to prove its case beyond
reasonable doubt, and it cannot derive any benefit from
weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial the accused must be presumed to be
innocent unless he is proved to be guilty; and (iii) that the onus
of the prosecution never shifts. Thus, it is well-settled that in
criminal trial, the guilt of the accused must be proved beyond
reasonable doubt in order to convict him.
16. The Supreme Court, in the case of State of Uttar Pradesh
vs. Krishna Gopal, reported in (1988) 4 SCC 302, has held that
the person has, no doubt, profound rights not to be convicted of
an offence, which is not established by the evidential standard of
proof beyond reasonable doubt.
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17. Bearing in mind the aforesaid legal position, this Court
has considered the submissions canvassed by the respective
parties and carefully perused the materials produced on record.
18. It is well-settled that for establishing the commission of an
offence under Section 7 of the Prevention of Corruption Act, the
proof of demand of illegal gratification and the subsequent
acceptance is sine qua non. Moreover, the presumption under
Section 20 of the Prevention of Corruption Act can be invoked
only on proof of facts in issue, namely, the demand of illegal
gratification by the accused and the acceptance thereof. The
Constitutional Bench of the Supreme Court in the case of Neeraj
Dutta vs. State (Government of NCT of Delhi), reported in
(2023) 4 SCC 731 has, in paragraph-68 of the judgment, held 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.
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(b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter of
fact. This fact in issue can be proved either by direct
evidence which can be in the nature of oral evidence or
documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand
and acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.
(d) In order to prove the fact in issue, namely, the demand
and acceptance of illegal gratification by the public servant,
the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver
without there being any demand from the public
servant and the latter simply accepts the offer and
receives the illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In such a case,
there need not be a prior demand by the public
servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of
obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the
public servant. This is an offence under Section 13 (1)
(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the
bribe giver and the demand by the public servant
respectively have to be proved by the prosecution as a
fact in issue. In other words, mere acceptance or
receipt of an illegal gratification without anything more
would not make it an offence under Section 7 or
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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 in turn there is a
payment made which is received by the public servant,
would be an offence of obtainment under Section 13 (1)
(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand
and acceptance or obtainment of an illegal gratification may
be made by a court of law by way of an inference only when
the foundational facts have been proved by relevant oral
and documentary evidence and not in the absence thereof.
On the basis of the material on record, the Court has the
discretion to raise a presumption of fact while considering
whether the fact of demand has been proved by the
prosecution or not. Of course, a presumption of fact is subject
to rebuttal by the accused and in the absence of rebuttal
presumption stands.
(f) In the event the complainant turns 'hostile', or has died
or is unavailable to let in his evidence during trial, demand
of illegal gratification can be proved by letting in the
evidence of any other witness who can again let in evidence,
either orally or by documentary evidence or the prosecution
can prove the case by circumstantial evidence. The trial does
not abate nor does it result in an order of acquittal of the
accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the
proof of the facts in issue, Section 20 mandates the court to
raise a presumption that the illegal gratification was for the
purpose of a motive or reward as mentioned in the said
Section. The said presumption has to be raised by the court
as a legal presumption or a presumption in law. Of course,
the said presumption is also subject to rebuttal. Section 20
does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
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(h) We clarify that the presumption of 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."
19. Thus, it is held by the Supreme Court that in order to
bring home the charge, the prosecution has to prove the
"demand of illegal gratification" and the "subsequent
acceptance" either by direct or by circumstantial evidence.
Keeping in mind the ratio laid down in the aforementioned
judgment, the evidence led by the prosecution in the instant
case is to be analyzed to find out, whether the prosecution has
proved the fact that the respondents-accused had demanded and
subsequently accepted the bribe from the complainant.
20. The cases of corruption largely depends on the testimonies
of three crucial witnesses; (i) the complainant, (ii) the shadow
witness, and (iii) the trapping officer. These witnesses play a
decisive role in determining the fate of the accused. As such,
their testimonies must be examined with great care and caution.
It is expected that their statements should be consistent,
credible and of sterling quality. If there are significant
contradictions in their evidence on material aspects, such
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discrepancies cannot be overlooked. In such circumstances
where the evidence allows for two possible interpretations, the
one which is in favour of the accused, must be considered. This
is because the law firmly upholds the principle that "no innocent
persons should be wrongfully punished".
21. As per the charge at Exh.11, it is the case of the
prosecution that the complainant (PW-1) Kishorkumar
Tribhovandas Hingu had filed four civil suits bearing nos.47 of
2009 to 57 of 2009 before the Civil Court, Surat. As a part of the
legal procedure, it was the official duty of the respondents-
accused to issue show-cause notices to the defendants in the
civil suits. However, the respondent-accused no.1 had demanded
Rs.1,000=00 and the respondent-accused no.2 had demanded
Rs.500=00 from the complainant for carrying out this official act.
Aggrieved by this unlawful demand, the complainant had lodged
a complaint with the ACB Police Station on 30.01.2009. On the
same day, a trap was laid. During the trap proceedings, the
respondent-accused no.1 had demanded and accepted
Rs.1,000=00 and the respondent-accused no.2 had demanded
and accepted Rs.500=00 from the complainant, in presence of
the shadow witness (PW-2) Lateshbhai Gopalbhai Patel. Both the
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accused were caught red-handed during the trap and the bribe
amount was recovered from their purse, in presence of both the
panch witnesses. In light of the aforesaid case of the
prosecution, it is imperative to examine the evidence of three
core witnesses; (i) the complainant, (ii) the shadow witness, and
(iii) the trapping officer, with due diligence and scrutiny.
22. It is an undisputed fact that there is no direct evidence of
the initial demand made by both the respondents-accused.
Albeit, the complainant has made specific allegations in this
regard in the complaint at Exh.16 and has deposed, in his
evidence, at Exh.15 that upon filing the Civil Suit Nos.47 of 2009
to 50 of 2009 before the Civil Court, Surat, the respondents-
accused, despite being lawfully bound to issue show-cause
notices to the respective defendants, had unlawfully demanded
bribe of Rs.1,000 and Rs.500=00 respectively from the
complainant. It is noteworthy that normally such initial demand
of illegal gratification is not made publicly or in presence of any
third person. Therefore, there might not be a direct evidence
regarding the same. In such circumstances, if during a trap, the
respondents-accused had asked for the same demand and
accepted it, then that can prove the factum of initial demand
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made by the accused. Therefore, the evidence of three core
witnesses is required to be examined carefully.
23. The complainant (PW-1) Kishorkumar Tribhovandas Hingu,
in this context, has deposed that on the day of the trap, he,
along with the shadow witness (PW-2) Lateshbhai Gopalbhai
Patel, had approached the respondents-accused and had
inquired about the status of the notices in connection with the
civil suits, which he had filed. In response to the same, the
respondent-accused no.2 allegedly replied to pay money for the
issuance of the process and then the notices will be issued.
Accordingly, he gave Rs.500=00 to the respondent-accused no.2,
and as per her instructions, he further gave Rs.1,000=00 to the
respondent-accused no.1. During the cross-examination, the
complainant has elicited that he had sent his junior advocate
Ms.Mamta Ramanandi to verify, whether the notices have been
issued in the civil suits filed by him.
24. In the same context, if the evidence of the shadow witness
(PW-2) Lateshbhai Gopalbhai Patel is considered, he, in his
evidence at Exh.71, has stated that on the day of the trap, he
and the complainant had approached the respondents-accused.
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The complainant then inquired about the status of the notices
related to the civil suits. Thereafter, the complainant told the
respondents-accused that he still owe to give them. In response
to the same, the respondent-accused no.2 said that, "if you have
brought it, then give it". Subsequently, the complainant paid
Rs.500=00 to the respondent-accused no.2 and Rs.1,000=00 to
the respondent-accused no.1, who was occupied with her work
at that time.
25. Now, in this context, it is necessary to refer to the
panchnama produced at Exh.99, which contains detailed
narration of the entire sequence of events that took place on the
day of the trap. It clearly reveals from the panchnama that on
the day of the trap, the complainant and the shadow witness
(PW-2) had approached the respondent-accused no.2. She had
asked the complainant, "Oh! Have you come ?", and then she
told the complainant that the photocopies of the notices are not
yet ready and instructed him to take the original photocopies
thereof and submit them on the next day. In response to the
same, the complainant said, "I still owe you". To this, she said,
"Have you brought it?". In response, the complainant said, "Yes,
I have brought it". Then she said, "Then give it". Therefore, the
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complainant handed over Rs.500=00 to the respondent-accused
no.2 and Rs.1,000=00 to the respondent-accused no.1, which
they accepted.
26. In the same context, if we examine the evidence of the
Police Inspector (PW-4) Mr.Sirajbhai AbdulMajid Jabha, who laid
the trap, he, in his testimony at Exh.117, has affirmed and
reiterated the very same fact as narrated in details in the
panchnama at Exhibit 99.
27. Upon careful examination of the evidence on record, it
appears that the allegations made by the complainant regarding
the initial demand of bribe made by both the respondents-
accused on 28.01.2009, in connection with expediting the
process of issue of notices in the civil suits filed by him, is not
supported by any direct or indirect evidence. The complainant,
who himself is an advocate, has specifically admitted during his
cross-examination that he did not visit the ACB Police Station
either on 28.01.2009 or on 29.01.2009. It is also noteworthy
that on one hand, the complainant, during his examination-in-
chief, has stated that he personally approached the respondents-
accused to verify whether the notices had been issued in the civil
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suits filed by him. However, on the other hand, during his cross-
examination, he has admitted that he had, in fact, sent his
junior advocate Ms.Mamtaben Ramanandi to the respondents-
accused to inquire about the issuance of the show-cause notices.
This contradiction materially affects the credibility of his version
and reflects inconsistencies in the case of the prosecution.
Moreover, it is significant that the prosecution has not examined
junior advocate Ms.Mamtaben Ramanandi as a witness.
28. Further, upon careful examination of the evidence of the
complainant (PW-1) Kishorkumar Tribhovandas Hingu, the
shadow witness (PW-2) Lateshbhai Gopalbhai Patel, and the
trapping officer (PW-3) Sirajbhai AbdulMajid Jabha along with
the panchnama produced at Exh.99, it becomes apparent that
there is no indication in the panchnama of any demand of bribe
made by either of the respondents-accused on the day of the
trap, in presence of the shadow witness. Although, the
complainant has asserted in his deposition that both the
respondents-accused had demanded bribe on the day of the
trap, yet this assertion has not been substantiated by the
testimony of the shadow witness or by the contents of the
panchnama. On the contrary, the evidence reveals that no such
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demand was made. Rather, it is established that the respondent-
accused no.2 had handed over the original notices to the
complainant and asked him to submit a photocopy thereof. At
that point of time, the complainant stated that he still had to
give them, upon which, she responded by saying that if he had
got it, he may give it. Subsequently, the act of the complainant of
handing over the money is established. Moreover, when the
complainant said that he still had to give them, he did not clarify
as to the purpose of payment, whether it was for the official
transaction, the earlier transaction or the personal loan? Such
clarification was consciously omitted by the complainant. This
aspect has much relevance and the same cannot be overlooked.
29. Upon careful examination of the judgment of the trial
court, it is evident that these inconsistencies and omissions were
given due consideration. The trial court, after careful
appreciation of the evidence, has rightfully concluded that the
prosecution had failed to establish the foundational element of
demand to constitute the offence, and accordingly acquitted both
the respondents-accused.
30. Upon assessment of the entire evidence of the prosecution,
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it is established that the prosecution has not proved its case
beyond reasonable doubt. The learned APP is not in a position to
show any evidence to take a contrary view of the matter or that
the approach of the trial court is vitiated by some manifest
illegality, or that the decision is perverse or that the trial court
has ignored the material evidence on record.
31. On the overall appreciation of the evidence as well as
considering the impugned judgment and order, this Court is of
the considered opinion that the findings recorded by the trial
court do not suffer from any perversity or illegality. The findings
recorded by the trial court are absolutely just and proper, and in
recording the same, no illegality or infirmity has been committed
by the trial court. The trial court was completely justified in
acquitting the respondents-accused of the charges levelled
against them.
32. Before parting with the judgment, it would be apt to refer
to the judgment of the Supreme Court in the case of State of
Goa vs. Sanjay Thakran & Anr., reported in (2007) 3 SCC 75,
wherein the Supreme Court has observed thus :
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"16. From the aforesaid decisions, it is apparent that while
exercising the powers in appeal against the order of
acquittal the Court of appeal would not ordinarily interfere
with the order of acquittal unless the approach of the lower
Court is vitiated by some manifest illegality and the
conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgement delivered by the Court below.
However, the appellate court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the appellate court, in such
circumstances, to re-appreciate the evidence to arrive to a
just decision on the basis of material placed on record to find
out whether any of the accused is connected with the
commission of the crime he is charged with."
33. On the facts and in the circumstances of the case, this
Court is in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
trial court, therefore, no interference is warranted. The appeal,
therefore, fails and the same is hereby dismissed in limine.
Records and proceedings be sent back to the concerned court.
(VIMAL K. VYAS, J.)
/MOINUDDIN
