Gujarat High Court
The State Of Gujarat vs Manharbhai Kadvaji Sadhi on 21 June, 2024
NEUTRAL CITATION
R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2214 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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THE STATE OF GUJARAT
Versus
MANHARBHAI KADVAJI SADHI & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR MM TIRMIZI(1117) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/06/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant under Section 378(1)(3) of Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the Page 1 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined learned Special Judge & Additional Sessions Judge, Fast Track Court No. 4 Nadiad (hereinafter referred to as "the learned Trial Court") in Special (A.C.B.) Case No. 12 of 1997 on 29/04/2005, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 7, 12, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988 (hereafter referred to as "the PC Act" for short). The respondents are hereinafter referred to as the accused as they stood in the rank and file 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 was working as an Unarmed Head Constable and the accused No. 2 was working as an Unarmed Police Constable in Kanjari Police Chowki of Chaklasi Police Station, District: Kheda in the year 1997 and they were public servants. That the complainant Pratapsinh Chhatrasinh Rana residing at Kanjari, Taluka: Nadiad District: Kheda had purchased Page 2 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined three cows from village Dhobikui, Taluka: Borsad and some amount of the price of the cows was to be paid to seller and the seller was demanding for the same. That, Sudhirbhai- the seller had filed an application in the Kanjari Police Chowki against the complainant and there was a compromise between them. That the complainant and Sudhirbhai met the accused and at that time the accused No. 1 demanded an amount of Rs.3,500/- and the accused No. 2 demanded Rs.1,500/- and in all the accused demanded Rs.5,000/- from the complainant. That after bargaining the amount was settled at Rs.2,500/- and as the complainant could not give the said amount and at last the amount was fixed at Rs.1,000/-. That the accused No.1 told the complainant to give the amount to the accused No.2 but the complainant did not want to pay the amount of illegal gratification and hence the complainant went to the ACB Police Station, Nadiad at Kheda and filed the complaint under Sections 7, 12, 13(1)(d) and 13(2) of the PC Act, which was registered at C.R.No.6 of 1997 on 14/05/1997.Page 3 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024
NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined 2.2] That the Trap Laying Officer called the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was carried out in their presence and the characteristics of anthracene powder and ultraviolet lamp was explained to them. That the complainant gave 10 currency notes of the denomination of Rs.100/- each, which were smeared with anthracene powder on both the sides and placed in the left shirt pocket of the open shirt of the complainant. That necessary instructions were given to the complainant and the panch witness and the trap was arranged. That the complainant and the panchwitness went to the house of the accused No. 2 on 14/05/1997 and at about 16:50 hrs, the accused No. 2 demanded for the amount of Rs.1,000/- and the complainant gave the tainted currency notes to the accused No. 2, who accepted them and the complainant gave the predetermined signal and the member of the raiding party came and caught the accused red handed. That the Trap Laying Officer drew the panchnama and recorded the statements of the connected witnesses and Page 4 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined made necessary correspondence for the sanction for prosecution from the competent authority and after the order of sanction for prosecution was received, a charge sheet came to be filed before the Sessions Court, Kheda @ Nadiad, which was registered as Sessions Case No. 12 of 1997.
2.3] The accused was duly served with the summons and the accused appeared before the learned Trial Court, and after the procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 5 was framed against the accused and the statement of the accused were recorded at Exh. 6 and Exh:7 respectively, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record.
2.4] The prosecution has examined 5 oral witnesses and produced 14 documentary evidences in support of their case.
2.5] After the learned APP filed the closing pursis at Exh:50, the further statement of the accused under Page 5 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined Section 313 of the Code of Criminal Procedure was recorded and after the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court by a judgment and order dated 29/04/2005 was pleased to acquit both the accused from all the offences.
3] Being aggrieved and dissatisfied with the said impugned judgment and order of acquittal, the appellant
- State has filed the present appeal mainly stating that the judgment and order of acquittal passed by the learned Trial Court is contrary to law evidence on record and principles of justice and the same is required to be quashed and set aside. That the learned Trial Court was not properly appreciated the oral as well as the documentary evidence on record and it is crystal clear from the evidence of the panch witness that the muddamal of Rs.1000/- was recovered from the conscious possession of the respondent No. 2. That the complainant has not supported the case of the prosecution but Prosecution Witness No. 2 Naranbhai Chhotabhai Bariya, Page 6 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined who was the panch witness and Sureshbhai Rana, the other panch witness have supported the case of the prosecution and the panchnama at Exh: 27 is proved. That the learned trial Court has committed an error in acquitting the accused and the impugned judgment and order of acquittal deserves to be quashed and set aside. That the learned trial Court has not appreciated the order of sanction for prosecution and even though PW: 5 Nalinkumar Somalal Joshi, the Trap Laying Officer and the Investigating Officer have fully supported the case of the prosecution, the learned trial Court has not appreciated the evidence of this witness and has committed an error in holding that the demand is not proved by the prosecution. That merely because the complainant Pratapsinh has been declared hostile, it cannot be said that the accused had not demanded for any amount of illegal gratification and merely because Sudhirbhai Ramanbhai Patel, the person who had given the application against the complainant, has not been examined by the prosecution, it cannot be said that the Page 7 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined case against the accused has not been proved beyond reasonable doubts. That the learned trial Court has committed an error in holding that the demand, acceptance and recovery of muddamal notes is not proved by the prosecution by way of evidence and the learned trial Court has committed an error in holding that the prosecution has failed to prove the case beyond reasonable doubts. That the reasons given by the learned trial Court while acquitting the accused are improper, perverse and bad in law and the learned trial Court has committed an error in disbelieving the cogent and convincing evidence of the prosecution and hence the impugned judgment and order of acquittal must be quashed and set aside.
4] Heard learned APP Ms. Jirga Jhaveri for the appellant and learned advocate Mr. M.M.Tirmizi appearing for the respondents.
5] Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has submitted that it is settled law that if the complainant Page 8 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined does not support the case of the prosecution or for some reason, the evidence of the complainant is not available on record, the prosecution can prove the case by circumstantial evidence and that portion of the evidence of the complainant, in which, the case of the prosecution is supported, must be considered. That the prosecution has examined both the panch witnesses, who have supported the case of the prosecution but the learned trial Court has not considered the same. That the Trap Laying Officer is himself the Investigating Officer and he has, after the trap was successful, taken over the investigation and has done all the other formalities in getting the order of sanction for prosecution, the Trap Laying Officer as the Investigating Officer, has also recorded the statement of all the connected witnesses and thereafter, after the order of sanction for prosecution was received, a chargesheet has been filed against the accused. That the prosecution has, from the evidence, proved all the ingredients of demand, acceptance and recovery and has established the case against the Page 9 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined accused beyond reasonable doubts and hence learned APP has urged this Court to allow the appeal and hold both the accused guilty of the said offences. Learned APP has further submitted that both the accused are members of the police force which is a very disciplined force and have committed the illegal act of demanding illegal gratification from the complainant. Even though the complainant and Sudhirbhai, the person who had filed the application against the complainant, had compromised the matter and there was no dispute remaining between them. That the accused did not have to do any work in the said matter but merely with the intention of getting illegal gratification from the complainant they had demanded for the amount of illegal gratification. Learned APP has urged this Court to consider all these aspects and allow the appeal and find both the accused guilty for the said offences.
6] Learned advocate Mr. M.M.Tirmizi appearing for the respondents has submitted that in the entire evidence of the prosecution, the complainant has turned Page 10 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined hostile and has not supported the case of the prosecution and there is no iota of evidence regarding any demand made by any of the accused. Moreover, the prosecution has not examined Sudhirbhai Ramanbhai Patel, who had filed the alleged application against the complainant and there is nothing on record to show that the complainant had in fact purchased cows from Sudhirbhai Ramanbhai Patel of village Dhobikui, Taluka: Borsad. That the prosecution has failed to prove the vital ingredients of demand, which is a sine-qua-non for the offence under the PC Act and even the deposition of the panch witnesses is not believable. That the tainted currency notes were found lying on the ground and the complainant had in fact thrown the currency notes on the ground on the invitation card in the house of the accused No.2 and had thereafter gone out and given the predetermined signal and the members of the raiding party came and caught the accused. That in fact after the police officials came, they forcibly made the accused No. 2 to pick up the currency notes and as the accused was forced to pick up the Page 11 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined currency notes, marks of the anthracene powder were found on the hands of the accused No. 2. That in fact both the accused are completely innocent and a false case have been filed against them. That the learned trial Court has discussed all the evidence in detail and has rightly passed the impugned judgment and order of acquittal and no interference is required in the same and hence, learned APP Mr. M.M.Tirmizi has urged this Court to reject the appeal of the appellant.
7] Before adverting to the facts of the case on hand, it would be apt to refer to the scope of the learned trial Court in acquittal appeals and the Honourable Apex Court in Criminal Appeal No.1167 of 2018 in the case of Ballu @ Balram @ Balmukund and Another Vs State of Madhya Pradesh in para Nos. 8 and 9 has observed thus:-
8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.Page 12 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024
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9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below:
"13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence.
A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
7.1] The Honourable 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 Page 13 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact.
This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the 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 Page 14 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined 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 intern 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.
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(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 the latter is discretionary in nature."
8] In view of the above settled principles of law in acquittal appeals, it is essential to dissect the evidence produced before the learned trial Court and to bring home the charge against the accused, the prosecution has examined Prosecution Witness No. 1 Pratapsinh Chhatrasinh Rana at Exh: 14 and the witness is the Page 16 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined complainant. The witnesses has stated that he had purchased three cows from one Mukeshbhai and had given Rs.6500/- to Mukeshbhai and some amount was remaining. That Mukeshbhai had filed an application against him in Kanjari Outpost and as he was afraid of the complaint in Kanjari outpost, he had gone to the ACB Police Station and told them about the alleged conversation or transaction with Mukeshbhai. That he was told to file the complaint and he had gone to the ACB Police Station but nothing had taken place that he had compromise the matter with Mukeshbhai. That he does not know the head constable, who was posted at Kanjari Police Station and he had not read the complaint that was written by the ACB officials. That his signature was taken on the complaint and he has identified his signature on the complaint, which is produced at Exh: 15. That his signature was taken on 4 to 5 papers including the panchnama and no ACB officials had gone anywhere. That the ACB officials had come to Kanjari with the vehicle and the vehicle was parked in-front of his house and they had Page 17 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined asked him to affix his signature that he had met the accused and he does not know the accused No.2. That he cannot identify the accused even if they are before the Court as he has not seen them and no accused had come to his house. That he had not given any currency notes to the ACB officials and no test by any lamp was done in his presence. The complainant has been declared hostile as he has not supported the case of the prosecution and has been cross examined at length by the learned APP.
During the cross examination by the learned advocate for the accused, the witness has stated that at the time of the incident, the transaction was only with Mukeshbhai regarding purchase of the cows and he had not purchased any other cows from anyone. That he had known about the complaint filed in Kanjari Police Choki through Mukeshbhai and no other transaction had taken place. That he was afraid that the police would arrest him because of the complaint of Mukeshbhai and hence he had gone to the superior Police Station to file the complaint. That his signature was taken on 4 to 5 papers Page 18 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined at the police station and he does not know what was written in those papers till today. That no complaint was filed against any police about any transaction at Kanjari and he had not mentioned that he had to give any amount to the Head Constable in the complaint. 8.1] The prosecution has examined the Prosecution Witness No. 2 Naranbhai Chhotabhai Baraiya at Exh: 24. This witness is the panch witness, who has stated that he along with Senior Clerk Sureshchand Bhikhabhai Rand had gone to ACB office on 14/05/1997 where they met the complainant. The witness has fully supported the case of the prosecution and has narrated all the events that had taken place after he went to the ACB Police Station and the demonstration of anthracene powder and ultraviolet lamp was explained to them. That the complainant gave ten currency notes of the denomination of Rs.100/- each to the Trap Laying Officer and the currency notes were laced with the anthracene powder and placed in the left side shirt pocket of the complainant. That necessary instructions were given and he and the complainant went Page 19 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined to the house of the accused No.2. That the accused No. 2 was sitting in his house and the accused No. 2 told them that the accused No. 1 had stated that an amount of Rs.1,000/- has to be given and only then the complaint would be filed. That the complainant took the tainted currency notes from his left shirt pocket with his right hand and gave it to the accused No. 2, who counted the currency notes with both his hands. That at that time, he went out and gave the predetermined signal and the members of the raiding party came and the panch No. 2 also came with them and caught the accused. That as they caught the accused, he threw the currency notes which were in his hand but Police Inspector Joshi Saheb told him to sit still. That the test was carried out and the panch no. 2 had picked up ther currency notes from the floor as per the instructions of Joshi Saheb. The panchnama was written and at that time, the accused pushed Police Constable Mohabbatsinh and tried to run away and the members of the raiding party and both the panchwitnesses ran, caught the accused from the millet Page 20 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined field and brought him to police Chowki. The witness has produced the seizure memo at Exh: 26 and the panchnama at Exh: 27. During the cross examination by the learned advocate for the accused, the witness has stated that if he does not depose as per the panchnama, his job would be in danger and in the panchnama it is not mentioned that the accused had demanded for an amount of Rs.1000/- as per the say of Manharbhai and only then the complaint would be filed. The witness has also stated that they had gone behind the house of the complainant and at that time they had seen the accused in the front room. That the wife of the complainant was in front of the house and the members of the raiding party did not come into the house. That in his presence, during the conversation of the complainant and the accused, the complainant had stated they he had entered into a compromise with the seller of the cows and the complainant had stated that he had to pay the amount of the price of the cows. That during this conversation, he had taken an amount of Rs.1000/- and held it towards the Page 21 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined accused and at that time, the accused was sitting in a wooden chair and the invitation card was lying on the floor and when Joshi Saheb hand entered, the currency notes were lying on the invitation card. That the panch no. 2 had picked up the currency notes from the floor and had counted the same and given them to Joshi Saheb. That after the currency notes had gone to the hands of Joshi Saheb, no test of ultraviolet lamp was done. That the application was filed by Sudhir R. Patel and the police had assaulted the accused No. 2 in the field besides the Police Choki. That in his presence, the accused No. 2 did not demand for any amount of illegal gratification from the complainant and he was deposing as per the say of ACB officials against the accused No. 2 In the deposition, the learned trial Court has noted that the last questions were asked to the witness for three times and the witness has answered thereafter and he has also stated that whatever deposed was deposed, after full understanding. 8.2] The prosecution has examined Prosecution Witness No. 3 Sureshbhai Bhikhabhai Rana at Exh: 29 Page 22 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined and the witness is the other panch witness who was instructed to accompany the members of the raiding party. The witness has fully supported the case of the prosecution and has narrated all the events that had taken place from the time that he had gone to the ACB office along with the other panch witness Naranbhai Chhotabhai Bariya. The witness has stated that he was with the ACB officials and after the predetermined signal was given, they went into the house of the accused No. 2 and the accused No. 2 was sitting in the front room and they had caught the accused. That the accused was counting the currency notes and he had thrown the currency notes on the floor and one currency note was on the invitation card. That he had picked 10 currency notes which were laced with anthracene powder and the test was conducted on the currency notes and the hands of the accused No.2. During the cross examination by the learned advocate for the accused, the witness has stated that when he went to the ACB office, Joshi Saheb was sitting alone in the cabin and the complaint was lying on Page 23 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined his table and Joshi Saheb had given him the complaint to read. That, thereafter he was asked to sit outside and Budhabhai had told him that anthracene powder could not be seen by naked the eyes. That he had seen the ultraviolet lamp in the ACB Office and besides this no other conversation had taken place. That he can differentiate between in blue colour and white colour and the panch No. 1 was instructed to stay with the complainant. That he had seen the complainant and the panch no. 1 going to the house of the accused No. 2 and he and Joshi Saheb had entered into the house of the accused No. 2 at the same time. That there was no conversation between the complainant and the accused No. 2 in his presence and they had entered into the house as the complainant had given the predetermined signal. That when they entered into the house, the accused was sitting in a wooden chair and Joshi Saheb had identified himself and instructed him to pick up the currency notes that were lying on the floor. That he was instructed to pick up the invitation card and the currency notes and the Page 24 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined invitation card were lying on the floor and he had counted the currency notes and given them to Joshi Saheb and Joshi Saheb had also counted the currency notes and given them to Budhabhai who had also counted the currency notes. That thereafter Joshi Saheb told Budhabhai to do the ultraviolet lamp test and thereafter the first test was done on the accused No.2. That before the test Budhabhai had caught both the hands of the accused and on doing the test on the hands of the accused No.2, white shining colour was found on the hands of the accused No.2. That, the invitation card, currency notes, application and the certificate were not seized from the custody of the accused No.2 and the four lines correctly mentioned in the seizure memo are not correct and not mentioned as the events had taken place. That he has not seen anthracene powder with his naked eye and all signatures on the panchnama were affixed at the ACB office.
8.3] The prosecution has examined Prosecution Witness No. 4 Jesingbhai Thansinh Champavat at Exh: 32 Page 25 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined and the witness is the competent authority, who has given the order of sanction for prosecution which is produced at Exh: 33.
During the cross examination by the learned advocate for the accused, the witness has stated that he does not recollect if he had read the application of Mukeshbhai.
8.4] The prosecution has examined Prosecution Witness No. 5 Nalinkumar Somalal Joshi at Exh: 44 and the witness is the Trap Laying Officer and the Investigating Officer of the offence. The witness has fully supported the case of the prosecution and has narrated in detail all the events that had unfolded on 14/05/1997 when the complainant had come to the ACB office and he had taken down the complaint of the complainant. The witness has stated that he had called the panch witnesses and the demonstration of anthracene powder and the ultraviolet lamp was done and the necessary instructions were given. That the complainant had given ten currency notes of the denomination of Rs.100/- each and the Page 26 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined currency notes were laced with anthracene powder and the trap was arranged and the witness has narrated all the details till the trap was successful. That after the trap, they had taken the accused in the Jeep to Kanjari Chowki and at that time, suddenly the accused pushed Police Constable Mohabbatsinh and jumped the steps of the Chowki and went left towards the west direction and they ran and caught the accused in the millet fields. That force had to be applied to catch the accused and he was made to sit in the Jeep. That an application by Sudhirbhai against the complainant was found and those documents were seized. That the panchnama Part-II was concluded at 17:15 hrs and after the trap he had recorded the statements of the panch witnesses and had sent the papers for the sanction for prosecution and after the sanction for prosecution was received, the charge sheet was filed before the learned Sessions Court.
During the cross examination by the learned advocate for the accused, the witness has stated that there was no evidence collected during investigation Page 27 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined regarding the allegation made by the complainant in the complaint. That during investigation, he did not find any application made by Mukeshbhai against the complainant. That he had recorded the statement of Sudhirbhai R. Patel. That in the panchnama, there is no mentioned of blue colour during the test of ultraviolet and anthracene powder and after recording the complaint of the complainant, the investigation was conducted by him and the charge sheet was also filed by him. When he entered into the room, the currency notes were lying on the floor. That the panchwitness has not stated that when they went into the room, the accused was counting the currency notes and he had thrown the currency notes on the floor.
9] On minute appreciation of the entire evidence of the prosecution, the complainant has completely turned hostile and has not supported the case of the prosecution. There is no iota of evidence regarding the demand made by any of the accused and the deposition of the panch witness is shaky and unbelievable. As far as the Page 28 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined recovery is concerned, the Trap Laying Officer has clearly stated that when he entered the room, he had seen the currency notes on the floor, whereas the panch witness has stated that the accused No. 2 was counting the tainted currency notes and he had thrown the currency notes on the floor. In the statement of the panchwitness, there is no mentioned of this fact and there is no iota of evidence that the accused had accepted the currency notes with his hand and he was counting the currency notes.
10] On minute dissection of the entire evidence of the prosecution, a number of infirmities in the evidence of the prosecution have come on record and the main ingredients of demand, which is a sine-qua-non for the offence under the PC Act is not proved. Moreover, the point, which goes to the root of the matter is that the Prosecution witness No.5 Nalinukar Somalal Joshi, Police Inspector, who had recorded the statement of the complainant and had arranged for the trap has undertaken the entire investigation on his own. That this Page 29 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined fact would be an infirmity in the case of the prosecution and it would reflect on the credibility of the case of the prosecution as the investigating officer who had recorded the complaint and arranged for the trap and made the seizure and conducted the investigation till the charge sheet was filed. The entire acts become suspicious as it would be in the interest of the Investigation Officer to act in his own favour and ensure that the evidence would lead to proving the case against the accused. There is also evidence on record in the evidence of PW No. 2 Naranbhai Chhotabhai Baraiya at Exh: 24 that the ACB Police Officers had assaulted the accused in the Millet field next to the police Chowki and the panch witness was deposing before the Court as per the instructions of the ACB officers. The panch witness has also categorically stated that the accused had not demanded for any amount in his presence and even in the deposition of prosecution witness No.3 it is on record he had not heard the conversation between the complainant and the accused and the tainted currency notes were not Page 30 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined recovered from the possession of the accused No.2. It is settled law that unless and until, the evidence is clear, cogent and reliable, no conviction can be recorded and on re-appreciating the entire evidence, the evidence is contrary and far from convincing as observed by the Apex Court in the case of Ballu @ Balram @ Balmukund (Supra) , the scope of the appellate Court to interfere in the findings of acquittal is limited and unless and until some perversity and illegality is found in the judgment and the order of trial Court, the appellate Court will interfere only to ensure that no miscarriage of justice has occurred. In the present case, there is no iota of evidence that any accused had made any demand for illegal gratification or that the accused No. 2 had accepted any amount of illegal gratification and the reasons assigned by the trial Court in the impugned judgment and order are just and proper. This Court has perused the findings of the trial Court and has found that the trial Court has appreciated all the evidence and has given proper reasons for acquitting the accused and there is no Page 31 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024 NEUTRAL CITATION R/CR.A/2214/2005 JUDGMENT DATED: 21/06/2024 undefined perversity or illegality in the findings recorded by the trial Court. This court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Trial Court and finds no reason to interfere with the impugned judgment and order of the trial Court.
11] In view of the above discussions, the present appeal is devoid of merits and resultantly the same is dismissed.
12] The impugned judgment and order of acquittal passed by the learned Special Judge & Additional Sessions Judge, Fast Track Court No. 4 Nadiad in Special (A.C.B.) Case No. 12 of 1997 is hereby confirmed. 13] Bail bond stands canceled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 32 of 32 Downloaded on : Fri Jul 05 21:49:58 IST 2024