Gujarat High Court
Kantibhai Laljibhai Parmar vs State Of Gujarat on 19 June, 2024
NEUTRAL CITATION
R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1731 of 2005
With
R/CRIMINAL APPEAL NO. 1841 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution No
of India or any order made thereunder ?
==========================================================
KANTIBHAI LALJIBHAI PARMAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS MEGHA JANI(1028) for the Appellant(s) No. 1
MR. VISHAL K ANANDJIWALA for the Appellant(s) No. 1
MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/06/2024
COMMON ORAL JUDGMENT
1. Both these appeals have been filed by the appellants - accused under Section 374 of Code of Criminal Procedure, Page 1 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined 1973 against the judgement and order of conviction passed by the Presiding Officer, 3rd Fast Track Court, Banaskantha at Panlanpur (hereinafter referred to as "the learned Trial Court") in Special Case No. 69/2001 on 16.08.2005, whereby, the learned Trial Court was pleased to convict both the accused and sentence the accused to rigorous imprisonment for one year and fine of Rs. 2,000/- and in default, simple imprisonment for two months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act") and rigorous imprisonment for one year and fine of Rs. 2,000/- and in default, simple imprisonment for two months for the offence punishable under Section 12 of the PC Act, rigorous imprisonment for three years and fine of Rs. 3,000/- and in default, simple imprisonment for three months for the offence punishable under Sections 13(1)(d) 1, 2, 3 read with 13(2) of the PC Act. The learned Trial Court was further pleased to direct that the sentences of the accused to run concurrently.
1.1 Criminal Appeal No. 1841/2005 has been filed by the Page 2 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined appellant - original accused no. 1 and Criminal Appeal No. 1731/2005 has been filed by the appellant - original accused no. 2 in Special Case No. 69/2001 and both the appeals have been filed challenging the impugned judgement and order passed by the learned Trial Court and hence, both the appeals have been disposed of by this common judgement.
1.2 The appellant of Criminal Appeal No. 1841/2005 and appellant of Criminal Appeal No. 1731/2005 are referred to as the accused in the rank and file as they 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 - Mafabhai Madhubhai Desai, Buckle no. 653 was working as an Armed Head Constable and the accused no. 2 - Kantibhai Laljibhai Parmar, Buckle No. 291 was working as an Armed Head Constable in Dhanera Police Station, District Banaskantha and they both were public servants. That in the year 2011, they were working in the Traffic Branch and were on duty near the Page 3 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined bus-stand at Dhanera and on 03.01.2001 at 06.30 pm, the complainant Savaji Bhomaji Thakor was going with his jeep no. GJ-8U-4158 and both the accused halted the jeep and demanded for an amount of Rs. 500/- as illegal gratification as monthly installment. The accused told the complainant that he would have to pay them Rs. 500/- per month as illegal gratification towards the installment for the current month. That the complainant did not have the entire amount of Rs. 500/- with him and told the accused that he would pay the amount later and the accused told him to give the amount within a couple of days and before the 10 th and threatened to detain his jeep. That they also told him that the installment of jeep of Ishwarbhai Barot was not received and to send that installment also. That the accused also told him to give the amount at Dhanera ST Stand where they were on duty. That the complainant did not want to give the amount of illegal gratification to the accused and hence, the complainant went to the ACB Police Station, Mehsana and filed the complaint on 04.01.2001 at 17.00 hours which was registered at C.R. No. 1/2001 on Page 4 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined 05.01.2001 under Sections 7, 12, 13(1)(d) 1, 2, 3 and 13(2) of the PC Act. The Trap Laying Officer called the panch witnesses on 05.01.2001 and the demonstration of anthracene powder and ultraviolet lamp was carried out in the presence of the panch witnesses and the complainant and the characteristics of anthracene powder and ultraviolet lamp were explained to the complainant and the panch witnesses. That the complainant gave two currency notes of the denomination of Rs. 100/- each and six currency notes of the denomination of Rs. 50/- each and all the currency notes were smeared with anthracene powder and the tainted currency notes were placed in the left side shirt pocket of the complainant. That necessary instruction were given to the panch witnesses and the complainant and Part 1 of the panchnama was drawn and the signatures of the panch witnesses as also the Trap Laying Officer were taken. That the complainant, panch witnesses and the members of the raiding party left Mehsana and reached Dhanera at about 15.30 hours and halted the vehicle opposite the agricultural produce market and the complainant and the panch no. 1 Page 5 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined went walking towards the bus-stand. That at around 16.00 hours, the accused no. 1 demanded for the amount of Rs.
500/- and the complainant gave the tainted currency notes of Rs. 500/- with his right hand which was accepted by the accused no. 1 with his right hand and counted the same and the panch gave the predetermined signal and the members of the raiding party came and caught the accused red handed. The Investigating Officer recorded the statements of the connected witnesses and after the order of sanction for prosecution was received, the charge-sheet came to be filed against both the accused before the Sessions Court, Banaskantha at Panlanpur which was registered as Special Case No. 69/2001. 2.2. That both the accused were duly served with the summons and both the accused appeared before the learned Trial Court and after the procedure under Section 207 of Code of Criminal Procedure, 1973 was followed, a charge was framed by the learned Trial Court at Exh. 12 and the statements of the accused were recorded at Exhs. 13 and 14 respectively. The accused denied all the contents Page 6 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined of the charge and the entire evidence of the prosecution was taken on record.
2.3 The prosecution has produced four oral evidences and 28 documentary evidences to bring home the charge against the accused and after the closing pursis was submitted by the learned APP vide Exh. 60, the further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. After the arguments of the learned APP and the learned advocates for the accused were heard, the learned Trial Court was pleased to convict both the accused and sentence the accused to rigorous imprisonment for one year and fine of Rs. 2,000/- and in default, simple imprisonment for two months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act") and rigorous imprisonment for one year and fine of Rs. 2,000/- and in default, simple imprisonment of two months for the offence punishable under Section 12 of the PC Act, rigorous imprisonment for three years and fine of Rs. 3,000/- and in default, simple imprisonment for three months for the Page 7 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined offence punishable under Sections 13(1)(d) 1, 2, 3 read with 13(2) of the PC Act. The learned Trial Court was further pleased to direct that the sentences of the accused to run concurrently.
3. Being aggrieved and dissatisfied with the said judgement and order of conviction, the appellant of Criminal Appeal No. 1841/2005 has filed the appeal mainly stating that the impugned judgement and order of conviction has been passed by the learned Trial Court without appreciating and perusing the evidence on record of the case. That the prosecution has miserably failed to prove any case, much less, a prima facie case against the appellant and the case of prosecution was, from the very inception, misconceived in law because the basic requirement for the offence under the Act i.e. a formal demand of bribe and acceptance has not been proved. The element of demand and acceptance is absolutely silent and hence, the judgement of conviction is vitiated. The learned Trial Court has erred in convicting the appellant under Section 7 of the PC Act and there is no finding to the effect that the ingredients of Section 7 is Page 8 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined satisfied against the appellant. The prosecution has failed to establish that the appellant demanded any illegal gratification from the complainant and the panchnama and the depositions of the two Police Inspectors examined at Exhs. 26 and 57 did not say as to which of the two accused have demanded the amount of illegal gratification. That the learned Trial Court has grossly erred and has not appreciated the contents of Exh. 22 which clearly establishes the relationship of the brother of the complainant with the accused in respect of a money transaction. The learned Trial Court has failed to appreciate that the complainant was regularly plying the vehicle contrary to the provisions of law and he has been given two memos for carrying passengers for hire and reward in an illegal manner. That the vehicle of the complainant was detained on 31.12.2001 for driving the vehicle without license, without necessary papers and for carrying passengers in jeep for hire and reward. The document which is produced at Exh. 39 conspicuously says that the complainant ran away deserting the jeep which was Page 9 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined detained and it is established that the jeep was plying in violation of the provisions of law. That the sanction produced at Exh. 23 is absolutely superfluous in nature, without application of mind and no sanction could have been granted on the overall facts and circumstances of the case. That the impugned judgement and order of conviction is erroneous and bad in law and the same is required to be quashed and set aside qua the appellant of Criminal Appeal No. 1841/2005.
3.1 The appellant of Criminal Appeal No. 1731/2005 who is the original accused no. 2 has challenged the impugned judgement and order of conviction and has mainly stated that the learned Trial Court has erred in law and on facts and has failed to appreciate the evidence on record. The prosecution has failed to establish that the appellant had accepted, obtained, agreed to accept or attempted to obtain from the complainant any illegal gratification as mentioned in Section 7 of the PC Act and there is no finding in the judgement to the effect that the ingredients of Section 7 are satisfied against the appellant. That no amount of illegal Page 10 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined gratification has been recovered from the appellant and the learned Trial Court has failed to appreciate that as per the panchnama produced at Exh. 25, the amount of Rs. 500/- is recovered from the accused no. 1. That the prosecution has not produced any evidence that the appellant had demanded for any amount of illegal gratification and the panchnama as well as the deposition of the Police Inspectors examined at Exhs. 26 and 57 do not state which of the two accused demanded for the money. That in fact, the vehicle of the complainant was detained on 31.12.2001 and two memos were given to the complainant on 21.12.2000 and 14.12.2000. That from the evidence, it is established that the complainant was regularly plying the jeep in violation of provisions of law for which strict action was taken by the appellant and other Police Officers in accordance with law and hence, the complaint is motivated and the appellant is falsely implicated in the entire incident for abetment. That in fact the the accused no. 1 has produced a document addressed by the brother of the complainant to the accused no. 1 dated 01.01.2000 stating Page 11 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined that he had borrowed Rs. 500/- for filling diesel in his vehicle and the note is produced at Exh. 22 and the learned Trial Court ought not to have disregarded the aforesaid note. That the independent panch witness has not uttered a single word about the present appellant and as there is no evidence to convict the appellant, the impugned judgement and order qua the appellant of Criminal Appeal No. 1731/2005 must be set aside.
4. Heard learned Advocate Mr. Arjun Joshi with learned advocate Ms. Megha Jani for the appellant of Criminal Appeal No. 1731/2005 and learned advocate Mr. Vishal K. Anandjiwala for the appellant of Criminal Appeal No. 1841/2005. Heard learned APP Ms. Jirga Jhaveri for the State in both the appeals.
5. Learned advocate Mr. Vishal Anandjiwala for the appellant of Criminal Appeal No. 1841/2005 has submitted that the learned Trial Court has misread the entire evidence and in the entire evidence, the ingredients of demand and acceptance have not been proved. That from the evidence Page 12 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined produced by the prosecution itself, it is on record that the complainant has stated that initial demand was made near the bus-stand at Dhanera on 03.01.2001 at 06.30 pm while the complainant was driving his jeep bearing registration no. GJ-8U-8158 but from the evidence of the prosecution itself it has come on record that the jeep bearing registration no. GJ-8U-8158 of the complainant was detained by the Police Sub-Inspector, Dhanera Police Station and it was lying in Dhanera Police Station. That the complainant had paid the amount of fine of Rs. 4800/- on 03.01.2001 and after he showed the receipt of amount of fine paid, the jeep was released from the police station at around 08.00 pm to 09.00 pm. That when there is evidence on record to show that the jeep was not in custody of the complainant on 03.01.2001 at 06.30 pm, the initial demand itself is not proved. Moreover, the present appellant has raised a defence that the brother of the complainant had borrowed Rs. 500/- from him and the amount was to be returned through the present complainant. That the present appellant has produced the documentary evidence to this Page 13 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined effect and as per the settled principles of law, the accused has to raise his defence to the extent of preponderence of probability but in fact the accused from his documentary evidence has proved his defence beyond reasonable doubts. There is no iota of evidence against the present appellant but the learned Trial Court has misread and misappreciated the entire evidence and hence, the learned Trial Court has urged this Court to set aside the impugned judgement and order of conviction and acquit the appellant from all the offences.
5.1 Learned advocate Mr. Vishal Anandjiwala has relied on the judgement of this Court in the case of Ajitsinh Devusinh Masani Vs. State of Gujarat arising out of Criminal Appeal No. 910/2003 dated 15.07.2016, wherein, this Court in para 16 has observed as under:
16. In light of the above discussion, if we peruse the impugned judgment, it seems that the trial Court has mainly relied upon the prosecution evidence as it is without confirming from the prosecution that why presence of anthracene powder could not be confirmed by blue marks, which is the basic characteristic of such chemical. Page 14 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024
NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined It is undisputed and admitted position that when presence of anthracene powder is checked, generally ultra violet light is thrown at the place and in presence of the ultra violet rays, the anthracene powder shows blue fluorescent color or marks. Therefore, only because anthracene powder is capable to show yellow color when it is in bulk, if it is applied on currency notes or any other party, then generally it would not show yellow color. If yellow color is visible, then it would not be a positive test because otherside would immediately come to know about such currency notes being tainted and in any case, the reaction of ultra violet rays on anthracene powder would show blue- fluorescent light and not yellow marks. Therefore, practically though oral evidence is in favour of the prosecution, benefit of doubt needs to be extended to the accused on all different counts [1] improper test, [2] improper sanction procedure and [3] territorial jurisdiction.
6. Learned advocate Ms. Megha Jani for the appellant of Criminal Appeal. No. 1731/2005 submits that there is no iota of evidence that the appellant - original accused no. 2 has in any manner demanded or accepted any amount of Page 15 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined illegal gratification and there is no recovery of any tainted currency notes from the possession of the present appellant. That the learned Trial Court has appreciated the evidence against the present appellant by observing in the judgement that the present appellant was silently standing near the accused no. 1 and that amounts to a silent consent. The learned Trial Court has also observed that there is no evidence on record that the present appellant had demanded for any amount of illegal gratification or accepted any amount from the complainant and there was no recovery from the present appellant. In spite of there being no evidence regarding the involvement of the present appellant in the offence, the learned Trial Court has convicted the present appellant. As per the settled principles of law, the prosecution has to prove all the ingredients of demand, acceptance and recovery beyond reasonable doubts and even though there was absolutely no evidence against the present appellant, the learned Trial Court has passed the impugned judgement and order which is erroneous and bad in law and the learned advocate has Page 16 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined urged this Court to set aside the impugned judgement and order and acquit the appellant from all the offences. 6.1 Learned advocate Ms. Megha Jani has relied on the judgement of the Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in (2023) 4 SCC 731, wherein, the Apex Court in para 88 has observed as under:
"88. 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 Page 17 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined 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 Page 18 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined 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 case by Page 19 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined 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."
7. Learned APP Ms. Jirga Jhaveri for the State in Criminal Appeal No. 1731/2005 has submitted that the learned Trial Court has rightly appreciated all the evidence and the prosecution has proved all the ingredients of demand, acceptance and recovery and the learned Trial Court has considered all the evidences in true and proper Page 20 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined perspective and passed by the impugned judgement and order of conviction and hence, the appeal must be rejected.
8. Learned APP Ms. C.M. Shah has vehemently argued that the learned Trial Court has appreciated all the evidences in proper perspective and as settled by the Apex Court, even if the complainant has turned hostile, it is not fatal to the case of the prosecution. That though the complainant has not supported the case of the prosecution but his evidence which supports the prosecution must be considered. Moreover, learned APP has submitted that the prosecution can prove the case by direct or circumstantial evidence and the fact of recovery has been proved by the prosecution beyond reasonable doubts. That when the recovery is proved, the learned Trial Court has rightly raised the presumption under Section 20 of the PC Act. Moreover, the learned APP has also argued that the shadow witness is an independent witness and his uncorroborated evidence can also be relied upon. That the panch witness has fully supported the case of the prosecution and even though there are minor contradictions, the same are not fatal to the Page 21 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined case of the prosecution. Moreover, the evidence of the Trap Laying Officer and the Investigating Officer can be relied upon for proving the case against the accused persons and the learned Trial Court has in a well reasoned order convicted both the accused on the basis of the evidence of the prosecution and hence, learned APP has urged this Court to reject both the appeals.
8.1 Learned APP Ms. C.M. Shah for the respondent State has relied on the judgement of the Apex Court in the case of M. Sarvana Alias K.D. Saravana Vs. State of Karnataka reported in (2012) 7 SSC 636, wherein, the Apex Court in para 11 has observed as under:
11. We may notice, at this stage that the court can even take into consideration the part of the statement of a hostile witness which supports the case of the prosecution.
Therefore, it cannot be said that whenever prosecution witnesses are declared hostile, it must prove fatal to the case of the prosecution. Reference in this regard can be made to the judgment of this Court in the case of Bhajju v. State of M.P. and Govindaraju v. State.
8.2 Learned APP Ms. C.M. Shah for the respondent State has relied on the judgement of the Apex Court in the case of Page 22 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined K.S. Panduranga Vs. State of Karnataka reported in (2013) 3 SSC 721, wherein, the Apex Court in para 41 and 42 has observed as under:
41. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted.
42. In view of the aforesaid analysis, we find that the prosecution has established the factum of recovery and has also proven the demand and acceptance of the amount as illegal gratification. Therefore, the conviction recorded against the accused is unimpeachable. The said conclusion is in consonance with pronouncement of this Court in Page 23 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined State of Maharahstra v. Dnyaneshwar Laxaman Rao Wankhede.
8.3 Learned APP Ms. C.M. Shah for the respondent State has relied on the judgement of the Apex Court in the case of Prakash Chand Vs. State (Delhi Administration) reported in 1979 AIR 400, wherein, the Apex Court has observed as under:
We are unable to agree with the submission of Shri Anthony that no conviction can ever be based on the uncorroborated testimony of a person in the position of P.W.6 who, for the sake of felicity may be described as a "trap witness'. That a trap witness may perhaps be considered as a person interested in the success of the trap may entitle a Court to view his evidence as that of an interested witness. Where the circumstances justify it, a Court may refuse to act upon the uncorroborated testimony of a trap witness. On the other hand a Court may well be justified in acting upon the uncorroborated testimony of a trap witness if the Court is satisfied from the facts and circumstances of the case that the witness is a witness of truth.
8.4 Learned APP Ms. C.M. Shah for the respondent State has relied on the judgement of the Apex Court in the case of Hazari Lal Vs. Delhi Administration reported in 1980 AIR Page 24 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined 873, wherein, the Apex Court has observed as under:
After excluding irrelevant material we are left with the evidence of P.W.8 and that of P.W.4 whose evidence corroborates that of P.W.8 in several material particulars. We, however, wish to say that the evidence of P.W.8 is entirely trustworthy and there is no need to seek any corroboration. We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.
8.5 Learned APP Ms. C.M. Shah has also relied upon the judgement of the Apex Court in case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in (2023) SCC Page 25 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined Online SC 280. The same judgement has been relied upon by learned advocate Ms. Megha Jani for the appellant in Criminal Appeal No. 1731/2005, wherein, the Constitution Bench of the Hon'ble Apex Court has summarized the discussion in para 74 and hence, the same are not repeated herein.
9. Before adverting to the facts of the present appeal, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution.
10. As per the settled principles of law in conviction Page 26 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined appeals, when the appellate Court finds that the findings of fact was based on a wholesome erroneous approach and the very basis of reasoning was not in the right perspective and the intrinsic merit of the evidence of the witness was not considered and the trial was perversely disposed of permitting manifest errors and glaring infirmities the Appellate Court can interfere and to exercise the powers in a conviction appeal and a finding on merits after considering and meticulously dissecting the evidence on record is imperative. As far as a conviction under the P.C. Act is concerned, it is settled by the Apex Court that the prosecution has to prove the case beyond reasonable doubts and proof of demand is a sine qua non for an offence under the P.C. Act. That only if the demand is proved with cogent and convincing evidence, the prosecution would benefit by the presumption under Section 20 of the P.C. Act and the conviction would be sustained.
10.1 In conviction appeals, as the evidence of the prosecution before the learned Trial Court is to be reappreciated the evidence is dissected and to bring home Page 27 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined the charge against the accused, the prosecution has examined PW1 - Savabhai Bhomabhai Thakor at Exh. 19 and this witness is the complainant and he has stated that in January 2001, he had a jeep bearing registration no. GJ-
8U-8158 and was driving the same on Rampura - Dhanera road. That he knows the accused and they are working as traffic policemen in Dhanera region. That the accused used to detain his vehicle often and would give him memos and he filed a complaint on 04.01.2001 in the ACB Office. That before he had filed the complaint, he was filling diesel at the petrol pump and the owner of the petrol pump told him to file the complaint at ACB Office in Palanpur. That he did not go to the ACB Office at Palanpur but went to the ACB Office at Mehsana and told them that the accused were detaining his vehicle and giving him memos. That he does not know if his brother Sardasbhai had a financial transaction with the accused. That he was called to the ACB Office on the next day but he went on the third day and gave Rs. 500/- to the ACB Officer as he was told by the ACB Officer to bring the amount with him. That they went in a jeep from Mehsana to Page 28 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined Dhanera and looked for the accused and they found the accused. That he sat with Mafatlal and thereafter, he gave Rs. 500/- which was given by the ACB Police Inspector to Mafatlal. That he gave the predetermined signal and the ACB Officers came and caught him and took him to Dhanera Rest House in a rickshaw. That the currency notes were checked with a battery and the Police Inspector was writing in the next room and after the writing work was over, they asked him to go. That the accused have not demanded for any amount as installment. As the witness has not supported the case of prosecution, he has been declared hostile and has been cross-examined at length by the learned APP. The witness has denied all the details during the cross-examination by the learned APP and during the cross-examination by the learned advocate for the accused, the witness has stated that he had a jeep known as 'Dala' and the vehicle was for transportation of vegetables and could not be used for any other purpose. That he had purchased the vehicle in the year 1998 and he was using the vehicle between Dhanera and Rampura to Page 29 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined ferry passengers. That he was given three memos and his vehicle was detained by the Police Sub-Inspector. That the memo that was given to him was of the RTO and he had to pay a fine of Rs. 4800/- which was paid on 03.01.2001. That till the amount of fine is not paid in the RTO, the vehicle is detained and the police do not release the vehicle. That when he paid the amount of fine, his vehicle was in the Police Station and he took the receipt of fine paid and went to the Dhanera Police Station at around 08.00 to 09.00 in the night. That he produced the receipt in the Police Station and the vehicle was given to him. That his brother is named Saudashbhai and Saudashbhai is educated. The witness was shown the document produced at Exh. 22 and the witness has identified the signature and handwriting of his brother on the document. The witness has further stated that he was displeased as he had to pay the amount of fine of Rs. 4800/- in the RTO and he had gone to the Mehsana ACB Office alone. The incident took place at Dhanera bus- stand and at that place there were a number of vehicle where the drivers of the vehicles shout for passengers and Page 30 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined there are number of shops at this place. That the area near the bus-stand is always buzzing with vehicles and people and there is a loud noise around and the conversation of any person cannot be heard properly. That when they went to the rest house, the ACB staff members got the rooms opened and he and other persons were sitting in another room. That the accused was also sitting with them in the room and the ACB staff were sitting in another room and there was a distance of about 10 to 15 feet between the two rooms.
10.2 The prosecution has examined PW2 - Yogeshkumar Punjabhai Dave at Exh. 24 and this witness is the panch witness who had gone along with the other panch witness - Mahendrakumar Parsottambhai Parmar to the ACB Office on 03.01.2001. The witness has supported the case of prosecution and stated that when he and the other panch witness went to the ACB Police Station, they met the ACB Police Officials and the complainant - Savjibhai Bhomabhai was present. That the complainant - Savjibhai Bhomabhai gave six currency notes of the denomination of Rs. 50/- Page 31 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024
NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined each and two currency notes of the denomination of Rs. 100/- each and the test of anthracene powder and ultraviolet lamp was done and the currency notes smeared with anthracene powder were placed in the pocket of the complainant - Savjibhai Bhomabhai. That the fingers of the officials who conducted the test showed purple colour in the ultraviolet lamp. That the necessary instructions were given and the numbers of the currency notes were noted in the ACB Register. That the trap was arranged and the witness, the complainant, the ACB Officials and other panch witnesses went from Mehsana to Dhanera village and the witness and the complainant went walking towards the bus- stand. That they went to the policeman and there was a gap between him and the complainant. That as instructed, he went and asked the complainant about the jeep going to Ambaji and the complainant told him to wait and at that time, the accused no. 1 demanded for the amount of Rs. 500/- which was given by the complainant from his pocket and the accused no. 1 took the amount and the complainant gave the predetermined signal. That the Page 32 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined members of the raiding party came and caught the accused no. 1 red handed. That he was asked to call a rickshaw and he, both the accused and Police Inspector - Mr. Ahir sat in the rickshaw and went to Dhanera Rest House. That they went in the Dhanera Rest House and sat in the room and he was instructed to take out the currency notes from the pocket of the accused no. 1. That the notes were shown in an ordinary lamp and no other lamp was taken with them and in the tubelight, fingerprint marks were found on the currency notes. That the shirt of the accused no. 1 showed purple colour in the ultraviolet rays. That a number of persons were entering and exiting the room in the rest house and in one room, the ACB staff was doing some writing work and Parmar, Ahir and Asari were dictating to their writer. That all his signatures were taken at one place and the jeep was being driven by a private person who was present with them during the entire time. That when they went to Dhanera, they had taken the anthracene powder and the ultraviolet lamp with them. That when he reached near the complainant and the accused, the conversation Page 33 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined was going on and after they left the bus-stand in the rickshaw, the tainted currency notes were seized after an hour. That he had seized the notes and counted them and kept them in a cover which he had and the cover was sealed. That he had immediately taken the amount and put it in the cover which was given by the ACB Officials. That the cover was immediately sealed and the seal was brought by the ACB Officer.
10.3 The prosecution has examined PW3 - Lakhabhai Bhoyabhai Ahir at Exh. 26 and the witness is the Trap Laying Officer who has fully supported the case of prosecution. The witness has stated that the complainant came to the ACB Police Station on 04.01.2001 and gave the complaint and the witness has narrated all the events that had unfolded after the time the complainant came to the Police Station and till the time the trap was successful. The witness has stated that after the predetermined signal was given, he and the other members of the raiding party and the panch no. 2 went to the policeman and introduced themselves and as the place was the ST Stand and a public Page 34 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined place and many persons had gathered and both the policemen and the panch no. 1 and the members of the raiding party went to Dhanera Vishram Gruh and in the other rickshaw, panch no. 2 and other ACB Officers came. That the hands of the accused no. 1 was tested in the ultraviolet lamp and both the hands showed light blue colour shining light. That no traces of anthracene powder was found on the hands or clothes of the accused no. 2. During the cross-examination by the learned advocate for the accused, the witness has stated that if an offence of another Police Station is reported in his Police Station, a complaint of Zero Number has to be registered and the complaint has to be sent to the Police Station that has jurisdiction of the offence. That Dhanera Taluka is in Banaskantha within the jurisdiction of the ACB Office Banaskantha and the ACB Office at Palanpur knew of the offence only when the complaint was sent for registration. That three Police Inspectors were involved in the trap and he has not undertaken any procedure for sending the muddamaal and anthracene powder to the FSL. That in the Page 35 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined panchnama, it is mentioned that the electric light was switched off but there is no reference to the doors and windows in the panchnama. That the muddamaal currency notes were not sealed and his statement was not recorded by the Investigating Officer.
10.4 The prosecution has examined PW4 - Kachrabhai Dalabhai Parmar at Exh. 57 and this witness is the Investigating Officer who has produced the order of sanction for prosecution at Exh. 59. The witness has stated that the further statement of the complainant was recorded and the statements of the connected witnesses were recorded and after the order of sanction for prosecution was received, the charge-sheet was filed before the Sessions Court, Banaskantha. During the cross-examination by the learned advocate for the accused, the witness has stated that he has not recorded the statement of Police Inspector - Mr. Ahir or the statements of any persons working at the Dhanera Rest House. That the statements of the rickshaw drivers were also not recorded and he has not taken the samples of anthracene powder that was used in the trap and the Page 36 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined sample was not sent to the FSL. That he had sent a draft to the Competent Authority for getting the order of sanction for prosecution. During the cross-examination of the complainant by the learned advocate for the accused, a document was shown to the complainant and the complainant and the complainant has identified the signature and handwriting of his brother Saudaji Bhomaji Thakor and the document is produced at Exh. 22. On perusal of the document, it is addressed to the accused no. 1 and it states that Rs. 500/- was borrowed from the accused no. 1 to fill diesel and the amount would be sent with his brother Savabhai within two to three days. The document is dated 01.01.2001 and signed by Saudabhai Bhomaji Thakor, Village Rampura, Mota Vada.
The prosecution has produced a letter of RTO, Palanpur to the Police Inspector, ACB Palanpur at Exh. 32. On perusal of this document, it is dated 21.01.2001 and it states that vehicle registration no. GJ-8U-4158 was registered at 1698 and the registered owner is Bhamabhai Dhanabhai Thakor residing at Rampura (Mota), Taluka Page 37 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined Dhanera, District Banaskantha. That as per the record with the office, five cases were registered and three cases were concluded on 03.01.2001. That two more cases were thereafter registered which were pending and in one case registered on 31.12.2000, PSI, Dhanera detained the vehicle and the fine was paid on 03.01.2001 and an order to release the vehicle was passed on 03.01.2001.
11. On minute appreciation of the entire evidence produced by the prosecution on record, the complainant - Sawabhai Bhomabhai Thakor has turned hostile and has not supported the case of prosecution. The complainant has stated that he has not filed the complaint and during the lengthy cross-examination by the learned APP, no iota of evidence regarding prior demand on 03.01.2001 or demand on the date of the trap i.e. 04.01.2001 has come on record in the deposition of the complainant. On perusal of the complaint produced at Exh. 27, the complainant has stated that on 03.01.2001 at around 06.30 pm, while he was going with his jeep from Dhanera, the accused had stopped his vehicle and demanded for the amount of Rs. 500/- as illegal Page 38 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined gratification but if the document produced at Exh. 32 is perused, the RTO Inspector, Palanpur states that the amount of fine of memo of the vehicle of the complainant was paid on 03.01.2001. The complainant, has in the cross- examination by the learned advocate for the accused, stated that he had paid the amount of Rs. 4800/- with the RTO on 03.01.2001 and he had taken the receipt and gone to Dhanera Police Station at around 08.00 - 09.00 pm. That after he submitted the receipt of amount of fine, his vehicle was released. This proves that on 03.01.2001 at 06.00 - 06.30 pm, the vehicle of the complainant was detained and lying in Dhanera Police Station and the say of the complainant in the complaint that his vehicle was halted on 03.01.2001 between 06.00 - 06.30 pm at Dhanera bus- stand is falsified. It is the case of the accused no. 1 that Saudabhai Bhomaji Thakor - brother of complainant had borrowed an amount of Rs. 500/- to fill diesel in his vehicle from the accused no. 1 on 01.01.2001 and the document in the handwriting of Saudabhai Bhomabhai Thakor bearing the signature of Saudabhai Bhomabhai Thakor is produced Page 39 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined at Exh. 22. The accused have raised a plausible defence in producing this document and the handwriting and the signature on the document have been identified by the complainant himself.
11.1 As per the case of prosecution, the accused no. 1 had accepted the amount of illegal gratification of Rs. 500/- but there is no cogent, clear and convincing evidence as to where the tainted currency notes were recovered from. The complainant has turned hostile and from the evidence of the complainant, there is no iota of evidence regarding the demand of any amount of illegal gratification by the accused no. 1. PW2 - Yogeshkumar Punjabhai Dave has stated that the accused no. 1 had taken the amount and placed them in his pocket but the panch has not stated as to in which pocket, the tainted currency notes were placed by the accused. In the evidence, it has emerged that the trap was at the bus-stand and it was a public place and hence, the complainant, panch witnesses, the accused and the members of the raiding party went in two rickshaws to the Dhanera Rest House where the currency notes were Page 40 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined recovered from the pocket of the accused but in the evidence of the panch witness and in the evidence of the complainant, it has come on record that the ACB Officials were sitting in a separate room and the complainant, panch witnesses and the accused were seated in a separate room. There is no reason as to why the recovery was not made at the spot of the trap and there is no iota of evidence that the accused no. 2 had demanded for any amount of illegal gratification, accepted any amount from the complainant or that any amount was recovered from the accused no. 2. 11.2 In the deposition of the panch witness - PW2 - Yogeshkumar Punjabhai Dave, no traces of anthracene powder were found on the hands of the accused no. 1 and purple colour marks were found on the shirt pocket of the accused no. 1. Purple colour marks were also found on the shirt pocket and hands of the complainant. Moreover, the panch witness has not fully supported and corroborated the details of the panchnama and it is on record that the panchnama was not written by the panch witness but was written by the ACB Officials in a separate room, whereas, Page 41 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined the panch witnesses, the accused and the complainant were sitting in a separate room. That in the entire evidence it has come on record that the muddamaal currency notes were not sent to the FSL and samples of anthracene powder that was used, has not been retained by the Investigating Officer and the same has not been sent to the FSL. In the entire evidence, there is no iota of evidence of prior demand or demand at the time of the trap and as far as the role of the accused no. 2 is concerned, there is no iota of evidence regarding the involvement of the accused in the offence. The learned Trial Court in para 25 of the judgement has observed that the accused no. 2 was with the accused no. 1 from the beginning till the end and when the complainant had demanded the amount of illegal gratification, the accused no. 2 was silent and hence, the silence of the accused no. 2 is concluded as a consent. Moreover, the learned Trial Court has also observed that both the accused could not demand for any amount of illegal gratification from the complainant at the same time and one accused would demand for the same and as the accused no. 2 was Page 42 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined silently standing nearby, the learned Trial Court has concluded that the accused no. 2 was an active participant in accepting the amount of illegal gratification. That both the accused were on duty at Dhanera Bus Stand at the time of the offence and it was natural for both of them to be together and as they were together, the learned Trial Court has concluded that they had a common intention. 11.3 The findings of the learned Trial Court are not proper and the learned Trial Court has not appreciated the evidence of the prosecution in proper perspective that the complainant has turned hostile and there is no iota of any demand in the evidence of the complainant but the learned Trial Court has concluded that the demand is proved. There are a number of infirmities regarding the recovery of the tainted currency notes from the possession of the accused no. 1 and it is on record that immediately after the predetermined signal was given, after the members of the raiding party rushed in the complainant, the panch witnesses, the accused persons and the members of the raiding party went to the Dhanera Rest House and the Page 43 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined tainted currency notes were recovered from the accused no. 1 at Dhanera Rest House. The learned Trial Court has failed to appreciate that if the accused no. 1 had accepted the tainted currency notes with his right hand, the marks of anthracene powder would be found on the hands of the accused no. 1. That in the evidence of the panch witness, it is on record that no traces of anthracene powder were found on the hands of the accused.
11.4 The learned Trial Court has also failed to appreciate that the accused have raised a plausible defence and the accused have proved that Saudabhai Bhomaji Thakor - brother of the complainant had taken an amount of Rs. 500/- from the accused no. 1 on 01.01.2001 and the amount was to be repaid within a couple of days to the accused no. 1. As discussed above, there is evidence that on 03.01.2001, between 06.00 to 06.30 pm, when the alleged demand is said to have been made by the accused, at the time that the complainant was passing by Dhanera Bus Stand with his jeep no. GJ-8U-4158, the vehicle was detained in the Dhanera Police Station and the vehicle was Page 44 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined released only after 08.00 pm to 09.00 pm, after the complainant showed the receipt of fine of Rs. 4800/- paid in the RTO on 03.01.2001.
12. In view of above discussion, the learned Trial Court has not appreciated the entire evidence in correct perspective and the evidence of the prosecution on record is contrary and far from convincing. The entire evidence has been misread by the learned Trial Court and the learned Trial Court has come to a wrong conclusion and convicted the accused. The learned Trial Court has not considered that the defence of the accused has to be considered on the touchstone of preponderance of probability and the accused no. 1 has raised a valid defence and has produced documentary evidence regarding the amount of Rs. 500/- that was given by the complainant to the accused no. 1. That in fact, there is no iota of evidence regarding the involvement of the accused no. 2 in the offence and the learned Trial Court has wrongly appreciated the silence as a consent. It is established that both the accused were on duty at the bus-stand in Dhanera and it is natural that the Page 45 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024 NEUTRAL CITATION R/CR.A/1731/2005 JUDGMENT DATED: 19/06/2024 undefined accused no. 2 would be standing near the accused no. 1 but merely because he was standing and performing his duty near the accused no. 1, it cannot be said that he was an accomplice to the demand and acceptance of Rs. 500/- from the complainant. In the considered opinion of this Court, the conviction of the accused cannot be invoked and consequently, the appeals succeed and are allowed.
13. The impugned judgement and order passed by the Presiding Officer, 3rd Fast Track Court, Banaskantha at Panlanpur in Special Case No. 69/2001 on 16.08.2005 is quashed and set aside and the appellant of Criminal Appeal No. 1841/2005 and appellant of Criminal Appeal No. 1731/2005 are acquitted from all the charges levelled against them.
14. Bail bonds stand cancelled. Fine to be refunded to the appellants after due verification. Record and Proceedings be sent back to the Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 46 of 46 Downloaded on : Fri Jul 12 21:01:41 IST 2024