Gujarat High Court
State Of Gujarat vs Nileshbhai Devashibhai Rabara on 24 November, 2025
NEUTRAL CITATION
R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 723 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO: Sd/-
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Approved for Reporting Yes
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STATE OF GUJARAT
Versus
NILESHBHAI DEVASHIBHAI RABARA
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Appearance:
MR. ADITYA JADEJA, APP for the Appellant(s) No. 1
MR P P MAJMUDAR(5284) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 24/11/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under Section 378 of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Special Judge (ACB) (Fast Track Court), Bhuj - Kutch (hereinafter referred to as "the learned Trial Court") in Special Case No. 10/2003 on 31.12.2010, whereby, the learned Trial Court has acquitted the respondent for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred Page 1 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined to as "the PC Act" for short).
1.1 The respondent is hereinafter referred to as "the accused" as he stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 In the year 2002, the accused was working in the Polytechnic Electric Department at Bhuj, District Kutch and was assigned the work survey of damage after the earthquake in Ward No. 12. The complainant - Jaswant Shamjibhai Solanki was doing painting work in the name of Mona Art in a shop situated in a lane opposite Sur Mandir Cinema in Bhuj and House No. 68 situated in Sanskar Nagar was on the name of his wife Hansaben. On 26.01.2001, the earthquake caused a huge damage to the house and the survey team surveyed the house and placed it in G4 Category and an amount of Rs. 45,000/- was sanctioned towards repairing expenses. He had started the repairing work of his house and had received the first installment of Rs. 18,000/- on 28.06.2002 which was Page 2 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined deposited in the account of his wife with Gujarat Industrial Cooperative Bank Limited, Bhuj. On 03.08.2002, the accused came to the shop of the complainant at around 06.30 pm and told him that if he wanted the second installment of Rs. 27,000/-, he had to pay an amount of Rs.
10,000/- as illegal gratification. The accused also told the complainant that he would prepare the papers and after he paid the amount, he would get the cheque within 15 to 20 days. The complainant reluctantly agreed and told the accused to come to his shop on 05.08.2002 after 04.00 pm. As the complainant did not want to give the amount of illegal gratification of Rs. 10,000/- and went to the ACB Police Station, Kutch at Bhuj where his complaint was recorded.
2.2 The Trap Laying Officer called the panch witnesses and the complainant gave Rs. 6,000/- which were three currency notes of the denomination of Rs. 1,000/- each and six currency notes of the denomination of Rs. 500/- each and the Trap Laying Officer gave Rs. 4,000/- which were eight currency notes of the denomination of Rs. 500/- from Page 3 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined the government treasury. ASI Goswami was given the currency notes and was asked to conduct the experiment of anthracene powder and ultraviolet lamp and he explained the characteristics of anthracene powder and ultraviolet lamp to the complainant and the panch witnesses and conducted a demonstration in their presence. All the currency notes were smeared with anthracene powder and folded and placed by ASI Goswami in the right-shirt pocket of the complainant. The necessary instructions were given by the Trap Laying Officer to the complainant and the panch witnesses and the Panchnama Part-I was drawn. As decided, the complainant and panch witness no. 1 went from the ACB Office on scooter no. GJ-12-N-3553 of the complainant and panch no. 2 and the other members of the raiding party followed them in government vehicle no. GJ-1- G-3552. The complainant went to his shop, and he and the shadow witness waited and at about 18.15 hours the accused came to the shop had a conversation with the complainant, demanded for the amount of illegal gratification and accepted the same and while the accused Page 4 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined was counting the money the complainant gave the predetermined signal and at about 18.20 hours the members of the raiding party came and the procedure was done and the amount was recovered from the accused. The complaint was registered at ACB Kutch at Bhuj Police Station C.R. No. 6/2002 under Sections 7, 13(1)(d) and 13(2) of the PC Act.
2.3 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a charge- sheet came to be filed before the learned Sessions Judge, Bhuj - Kutch and the case was registered as Special Case No. 10/2003.
2.4 The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge at Exh. 9 was framed against the accused and the statement of the accused was recorded at Exh. 10 wherein, the accused denied the contents of the Page 5 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined charge and the entire evidence of the prosecution was taken on record.
2.5 The prosecution examined 5 witnesses and produced 10 documentary evidences on record in support of their case. After the learned Additional Public Prosecutor filed the closing pursis, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence and refused to step into the witness box or lead evidence but stated that a false case has been filed against him. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order was pleased to acquit the accused from the charges levelled against him.
3. Being aggrieved and dissatisfied with the judgment and order of acquittal, the appellant State has filed the present appeal mainly stating that the judgement and order of acquittal is contrary to the evidence on record and the learned Trial Court has erred in holding that the Page 6 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined prosecution has not proved its case beyond reasonable doubts. The learned Trial Court has failed to appreciate the evidence of five witnesses and the six documentary evidences produced by the prosecution in support of their case and has committed a grave error apparent on the record of the case by not properly appreciating the material available on record of the case. The prosecution has proved that the house of the complainant was damaged in the earthquake and the government had sanctioned Rs. 45,000/- for repairing his house and the first cheque of Rs. 18,000/- was received and the accused had demanded the amount of illegal gratification for giving the cheque of the second installment. The learned Trial Court has failed to appreciate that the prosecution has proved that there was a demand of money by the accused but the learned Trial Court has given undue importance to some minor omissions and contradictions and has disbelieved and disregarded the evidences of the witnesses. The prosecution has proved that the amount of illegal gratification was accepted from the complainant and the accused had committed a misconduct Page 7 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined which is unbecoming of a public servant. The complainant has fully supported the case of the prosecution and the panch witness PW2 has clearly stated that the amount was recovered from the accused. The prosecution has proved beyond reasonable doubts that there was demand and acceptance of the illegal gratification by the accused and the seizure memo produced at Exh. 18 and the service book of the accused produced at Exh. 34, prove that the amount was recovered from the accused and that the accused was a public servant. Moreover, the learned Trial Court, without resorting to the presumption under Section 20 of the PC Act, has erred in acquitting the accused from the offence. The impugned judgment and order passed by the learned Trial Court acquitting the accused is illegal, invalid and improper and deserves to be quashed and set aside.
4. Heard learned APP Mr. Aditya Jadeja for the appellant State and learned advocate Mr. P.P. Majmudar for the respondent. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
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5. Learned APP Mr. Aditya Jadeja for the appellant State has taken this Court through the entire evidence of the prosecution and has submitted that even though the complainant is hostile and has not supported the case of the prosecution, the portion of the evidence by which he supports the case of the prosecution can be taken into account and the complaint produced at Exh. 15 clearly proves that the amount of illegal gratification was demanded by the accused. The panch witness has supported the case of the prosecution and it is proved that even at the spot, the demand of illegal gratification was made by the accused and the evidence of PW3 - Jayantigiri Narangiri Gosai who was the Lamp Operator has fully corroborated the case of the prosecution. The evidence of the Trap Laying Officer could not be brought on record as he had expired but from the evidence of PW3 - Jayantigiri Narangiri Gosai - the Lamp Operator and the Investigating Officers PW4 - Omprakash Barusing Sharma and PW5 - Maheshkumar Mulvantray Vasani, the prosecution has proved the case beyond reasonable doubts. The ingredients of demand, acceptance Page 9 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined and recovery have been proved beyond reasonable doubts by the prosecution and hence, learned APP has urged this Court to allow the appeal.
6. Learned advocate Mr. P.P. Majmudar for the respondent has submitted that the facts do not disclose any case against the accused as the allegations against him are that for release and payment of the second installment of amount of earthquake relief, the demand of illegal gratification was made but there is no evidence on record that it was the duty of the accused to pay the amount of installment as the accused was serving with Mamlatdar, Bhuj and the responsibility of paying the installments for the relief was that of the Deputy Collector, Bhuj. From the evidence of the complainant it is clear that the accused was not the person to whom the amount of illegal gratification was to be paid as the amount was to be given to some Rabari Saheb who is not the accused. The Trap Laying Officer has not checked for the correct person and as the Trap Laying Officer has expired and he is not available for cross-examination, the unanswered facts go against the Page 10 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined prosecution. The complainant has not stated that he had given any predetermined signal but he has stated that he had merely handed over the amount to the accused to count and the panch witness also admits that the money was given only to count and there was no conversation between the accused and the complainant except for counting. The panch witness has not stated anything about drawing of the Panchnama Part-I and has not stated anything about the use of anthracene powder or whether the currency notes were smeared with anthracene powder and has not stated any procedure that was undertaken regarding the ultraviolet lamp while drawing the Panchnama Part-I. The conversation between the accused and the complainant has not been narrated and the panch witness states that the work may be for painting the number plate on the scooter of the accused. The panch witness also does not say by which hand the complainant gave the money and if the panchnama at Exh. 17 is perused, it states that the currency notes were kept on the thigh of the accused, whereas, the witness states that the accused had kept the currency notes in his pant pocket. Page 11 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025
NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined There are many contradictions in the deposition of the complainant and the panch witness and the panchnama and the Trap Laying Officer could not be examined. PW3 - Jayantigiri Narangiri Gosai who was a member of the raiding party has narrated the details of work and procedure undertaken by the Trap Laying Officer. PW5 - Maheshkumar Mulvantray Casani who has filed the charge sheet in the case has stated that he received a letter from the head office of the accused that the ad hoc services of the accused had been terminated so sanction is not required and hence, no sanction has been taken for prosecuting the accused but in fact the termination order of the accused has been set aside by the Hon'ble High Court and he did not inquire whether the order of termination was challenged and states that he was not aware that sanction had to be granted and he has filed the charge sheet without any inquiry in this regard. Learned advocate submits that the presumption of innocence is the cardinal principle in criminal jurisprudence and the burden of proof is always upon the prosecution and that burden has to be discharged Page 12 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined by the prosecution by proving its case beyond reasonable doubts by producing cogent, reliable and unimpeachable evidence. In the instant case, the case of the prosecution is riddled and loaded with absurdities and unacceptable propositions and the whole case is absolutely improbable and beyond acceptance. The case of the prosecution is palpably wrong, absolutely false, manifestly erroneous and demonstratively unsustainable and the prosecution has failed to prove its case beyond reasonable doubts and hence, the appeal must be rejected.
7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in para 11 and 12 with regard to the powers of the Appellate Court while dealing with acquittal appeals in the case of P. Somaraju Vs. State of Andhra Pradesh reported in 2025 LawSuit (SC) 1423:
11. Before proceeding, it would be appropriate to recapitulate the well-settled principles governing interference with an order of acquittal by an Appellate Court, which were also discussed by the High Court in the impugned judgment. At the outset, we rely upon the seminal case of Chandrappa & Ors. vs. State of Karnataka 2007 (4) SCC 415 wherein this Court had laid down Page 13 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined the five-point canonical test as follows:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of Page 14 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 4 (2007) 4 SCC 415.
12. To summarize, an Appellate Court undoubtedly has full power to review and reappreciate evidence in an appeal against acquittal under Section 378 and 386 of the Code of Criminal Procedure, 1973. However, due to the reinforced or 'double' presumption of innocence after acquittal, interference must be limited. If two reasonable views are possible on the basis of the record, the acquittal should not be disturbed. Judicial intervention is only warranted where the Trial Court's view is perverse, based on misreading or ignoring material evidence, or results in manifest miscarriage of justice. Moreover, the Appellate Court must address the reasons given by the Trial Court for acquittal before reversing it and assigning its own. A catena of the recent judgements of this Court has more firmly entrenched this position, including, inter alia, Mallappa & Ors. vs. State of Karnataka, 2024 INSC 104, Ballu @ Balram @ Balmukund & Anr. vs. The State of Madhya Pradesh 2024 INSC 258, Babu Sahebagauda Rudragaudar and Ors. vs. State of Karnataka 2024 INSC 320 and Constable 907 Surendra Singh & Anr. vs. State of Uttarakhand 2025 INSC 114.
7.1 The Apex Court, in the case of Surendra Singh and Ors. Vs. State of Uttarakhand reported in 2025 INSC 114, Page 15 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined has observed in Para No. 11 as under:
11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka6, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , SCC p. 432, para 42)
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of Page 16 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence;
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8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
8. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation Page 18 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the learned Trial Court, it appears that there are some manifest illegality or perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal.
The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Page 19 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined Court comes to conclusion that based on the evidence, the conviction is a must.
9. With regard to the cases under the PC Act, the Apex Court, in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under: -
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (I) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, Page 20 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1) (d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and 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.
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(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a Court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the Court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the Court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while Page 22 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined the latter is discretionary in nature."
10. In light of the above settled principles of law, the evidence of the prosecution and record is appreciated and prosecution has examined PW1 - Jaswantbhai Shamjibhai Solanki at Exh. 14. The witness is the complainant who has stated that House No. 68 situated in Sanskarnagar was in the name of his wife and it was damaged in the earthquake in the year 2001. He had to take the compensation for G4 Category which was about Rs. 45,000/- and he had received a cheque of Rs. 20,000/- and he had tried to take the other cheque from the Mamlatar Office. He met the accused and the accused had demanded an amount of Rs. 10,000/- as illegal gratification for the cheque. The accused came to his shop and he gave the accused Rs. 10,000/- and he had informed the ACB and a trap was arranged at the shop. He had filed the complaint which is produced at Exh.
15. Besides this, no other procedure was undertaken by the ACB. The witness has not supported the case of the prosecution and has been declared hostile and has been cross-examined at length by the learned APP. In the cross- Page 23 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025
NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined examination by the learned advocate for the accused, the witness has stated that the person who had given him the first installment had demanded for the amount and the first cheque was given by one Rabari Saheb. Rabari Saheb was demanding for the amount of illegal gratification and on the day of the trap, Rabari Saheb went away and he had given the accused the amount to count and while he was counting the amount, the officer came and caught him. He did not give any predetermined signal but the panch witness - Bhattbhai who was with him had given the predetermined signal. Bhattbhai also knew that the accused was given the amount only to count and besides telling the accused to count the money, he did not have any conversation with the accused. The amount was to be given to Rabari Saheb and he had given the amount to the accused to count and after the officers came, they did not inquire anything from the accused but caught him and took him to the Mamlatdar Office. He does not know who had done the procedure of the anthracene powder at the ACB Office and no procedure regarding the anthracene powder Page 24 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined was done in his presence at the Mamlatdar Office. 10.1 PW2 - Nikhilbhai Mohanlal Bhatt examined at Exh. 16 is the panch witness who has narrated the incidents that had taken place on 05.08.2002 when he and the other panch witness Vinod Mohanlal Vora were called to the ACB Office. The witness has stated that at the time of the trap he had gone along with the complainant to the shop and the accused came between 06.00 and 06.30 and asked the complainant whether the work was done as per their conversation and the complainant told him that he was waiting for him since 4 o'clock. The accused demanded for the amount and the complainant took the amount from his pocket and gave it to the accused and the accused asked him if the money was correct and the complainant asked him to count them. The accused counted the amount and placed them in his right pant pocket. The complainant gave the predetermined signal and the members of the raiding party came and caught the accused. The amount was recovered by the ACB Staff Members and given to him and he counted the notes which were 14 currency notes of the Page 25 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined denomination of Rs. 500/- and three currency notes of the denomination of Rs. 1000/-. They all went to the Mamlatdar Office where the other procedure was undertaken and the fingerprints of the accused were found on the currency notes. The procedure for drawing the panchnama was done and the panchnama is produced at Exh. 17. In the cross examination by the learned advocate for the accused the witness has stated that the currency notes do not bear his signature or initials and there are no special marks on the muddamaal currency notes. The pant does not have his signature or initial and he had come to the Court with the ACB Constable. No written order was given to him to go to the ACB Office and similarly, the other panch was also not given any written document to go to the ACB Office. He does not know who wrote the complaint and when was the complaint written and the Trap Laying Officer
- Mr. Patil knew that he was working in the District Panchayat Office. The panchnama was dictated by the Trap Laying Officer and he does not know how the powder was smeared on the notes and the complainant had himself Page 26 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined placed the currency notes in his right pant pocket. The ACB Staff Members had recovered the amount from the right pant pocket of the accused and the complainant had told the accused to count the money. No panchnama was drawn at the place of incident and the currency notes were not seized at the place of incident but as soon as the Trap Laying Officer came, they immediately caught the accused and took him to the Mamlatdar Office. Besides that, no other procedure was done at the shop and the fingerprints were clearly seen on the currency notes. No other fingerprints were found at the place of incident and no fingerprints were taken in the Mamlatdar Office. He does not know how many signatures he had affixed on that day. 10.2 PW3 - Jayantigiri Narangiri Gosai examined at Exh. 20 is the Lamp Operator who has narrated the procedure that was undertaken by him on 05.08.2002 under the instructions of Police Inspector - B.N. Patil where he had conducted the demonstration of anthracene powder and ultraviolet lamp and had explained the characteristics of anthracene powder and ultraviolet lamp to the complainant Page 27 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined and the panch witnesses and had thereafter smeared the currency notes with anthracene powder and placed in the right shirt pocket of the complainant. The witness has stated that the Trap Laying Officer - Police Inspector - B.N. Patil gave the necessary instructions and the trap was arranged and after the predetermined signal was gtiven they went to the shop and the Panchnama Part-II was drawn after the procedure was undertaken. In the cross examination by the learned advocate for the accused the witness has stated that his statement was recorded by the police and he had brought his statement with him and he had a copy of his statement recorded by the Investigating Officer which was received from the ACB Office, Bhuj. The seizure memo did not bear his signature or initial and the lamp that he used was a lamp which was used by battery but he did not see to what extent the battery was charged. No map about the placements where the members of the raiding party stood, was prepared by Police Inspector - B.N. Patil and when the predetermined signal was given and they rushed to the shop, they found that the accused was Page 28 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined sitting and the currency notes were on his legs and he was counting the money with his hand. They did not inquire whether there was any person named Rabaribhai working at the Mamlatdar Office.
10.3 PW4 - Omprakash Barusing Sharma examined at Exh. 32 is the Investigating Officer who has taken over the investigation on 06.08.2022 from the Police Inspector - B.N. Patil. The witness has narrated the procedure undertaken by him and has produced the service record of the accused at Exhs. 33 to 35. In the cross-examination by the learned advocate for the accused, the witness has stated that Trap Laying Officer had recorded the statement of the accused, wherein, he had stated that the complainant had asked him to sit in his office and gave the amount from his pocket and told him to count the same and he took the money in his hand and he was counting the same, when the raid had taken place. He does not know whether the complainant had received any installment for repairing the house from Deputy Collector - Rabari Saheb and he did not inquire whether there was any Deputy Collector - Rabari Saheb in Page 29 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined the Earthquake Branch.
10.4 PW5 - Maheshkumar Mulvantray Vasani examined at Exh. 38 is the Investigating Officer who had taken over the investigation as Police Inspector - O.B. Sharma was transferred on 24.01.2003. The witness has stated that on 24.01.2003, he had received instructions from the Head Office as the ad hoc services of the accused were terminated, the sanction for prosecution was not required and to file the charge-sheet and he had filed the charge- sheet on 24.07.2003. In the cross-examination by the learned advocate for the accused, the witness has stated that he does not know whether the accused had challenged the order of termination and had approached the High Court.
11. On minute appreciation of the entire evidence of the prosecution, as per the settled principles of law in cases under the PC Act, the prosecution has to prove the factum of demand which is a sine qua non for the offence under the PC Act. Upon an incisive and meticulous evaluation of the entire corpus of prosecution evidence, it unequivocally Page 30 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined emerges that PW1 - Jaswant Ramji P. Solanki - the complainant has resiled from the prosecution narrative and has been declared hostile. His deposition is conspicuously silent regarding the preliminary demonstration of the application of anthracene powder or the operation of the ultraviolet lamp. On the contrary, he has categorically asserted that the money was handed over to the accused solely for the limited purpose of counting, as it was intended to be given to one Rabari Saheb, who had momentarily left his shop. PW-1 does not ascribe even a whisper of demand to the accused, thereby weakening the very substratum of the prosecution case. The testimony of PW2 - Nikhil Mohanlal Bhatt - the shadow witness, further debilitates the prosecution version. He has unequivocally stated that no conversation pertaining to any official work transpired between the complainant and the accused. He asserts that the accused merely counted the currency notes and kept them in his right-side pocket. This version stands in direct contradiction to the recitals of the panchnama at Exh. 17 which records that at the time of the raid the Page 31 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined accused was in the act of counting the currency notes which were placed upon his thigh. PW2 additionally claims that the fingerprints of the accused were detected on the notes, yet he does not depose to any contemporaneous ultraviolet lamp test allegedly conducted by the Trap Laying Officer. Significantly, PW-2 further deposes that immediately after the raid the members of the trap party proceeded to the Mamlatdar Office and that no procedure relating to the recovery of the alleged tainted currency or the ultraviolet test was conducted at the complainant's shop. This assertion stands in stark and irreconcilable contradiction with the panchnama, which records that panch No. 1 recovered the tainted notes from the accused at the shop itself and that the ultraviolet test was performed on the spot. These glaring inconsistencies cast profound doubt upon the veracity, legitimacy, and procedural sanctity of the trap. It is an admitted position that the Trap Laying Officer - Police Inspector - P. N. Patil has expired and his testimony could not be recorded. PW3 - Jayantigiri Narangiri - the Lamp Operator purports to Page 32 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined narrate the procedure allegedly followed by the Trap Laying Officer; however, in the cross-examination he has conceded that he was in possession of a copy of his previous statement recorded by the Investigating Officer which he had procured earlier from the ACB Office. This admission materially impinges upon the spontaneity, independence, and reliability of his testimony. PW5 - Maheshkumar Mulvantray Vasani, the officer who filed the chargesheet has admitted that he did not obtain sanction for prosecution. Although it is contended that the accused was an ad hoc employee whose services were terminated, the record unequivocally reflects that such termination was set aside and the accused was reinstated by an order of the High Court. In such circumstances, the statutory requirement of sanction assumes substantive legal significance and the omission to obtain it further undermines the prosecution case. The complainant nowhere attributes any demand of illegal gratification to the accused; rather, he attributes the alleged demand to one Rabari Saheb. The Investigating Officer made no endeavour Page 33 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined to ascertain the identity, role, or presence of such person. The accused, in his further statement, has consistently and plausibly stated that he merely counted the money at the behest of the complainant. In view of these circumstances, the prosecution has miserably failed to establish the foundational and indispensable element of demand, which is the sine qua non for constituting an offence under Sections 7 and 13 of the Prevention of Corruption Act. Absent such proof, the statutory presumption under Section 20 does not get triggered and is wholly unavailable to the prosecution. The cumulative infirmities in the evidence, procedural contradictions, and absence of corroboration compel this Court to hold that the prosecution has not discharged its burden of proving the charges beyond reasonable doubt. Thus, the foundational fact of demand has not been proved by the prosecution. Demand being the sine qua non for an offence under Sections 7 and 13 of the Prevention of Corruption Act, the failure to establish it is fatal to the prosecution case. Consequently, in the absence of proof of demand, the Page 34 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined statutory presumption under Section 20 of the Act is not available to the prosecution.
12. In view of the settled position of law, the learned Trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgement and order of acquittal passed by the learned Special Judge (ACB) (Fast Page 35 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025 NEUTRAL CITATION R/CR.A/723/2011 JUDGMENT DATED: 24/11/2025 undefined Track Court), Bhuj - Kutch in Special Case No. 10/2003 on 31.12.2010, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VASIM S. SAIYED Page 36 of 36 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Dec 04 2025 Downloaded on : Fri Dec 12 22:11:15 IST 2025