Gujarat High Court
State Of Gujarat vs Naginbhai Ambalal Chauhan on 20 August, 2024
NEUTRAL CITATION
R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 863 of 2008
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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STATE OF GUJARAT
Versus
NAGINBHAI AMBALAL CHAUHAN
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Appearance:
MS.JIRGA JHAVERI, APP for the Appellant(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 : 20/08/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 02.11.2007 passed by the learned Additional Sessions Judge and Page 1 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined Presiding Officer, Fast Track Court No. 5, Vadodara (hereinafter referred to as the learned trial Court) in Special (ACB) Case No. 16 of 2005, whereby, the learned trial Court was pleased to acquit the respondent from the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act (herein after referred to as 'the P.C.Act'). 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] That the accused was an Additional District Registrar in the Cooperative Society, Vadodara and was the Administrator of Swaminarayan Cooperative Bank Ltd., Vadodara, and was a public servant. The complainant Yashwantsingh Shankarsinh Chauhan was given a Power Of Attorney by the owners of Sharda Packaging Company and they had taken a loan from Swaminarayan Cooperative Bank Ltd., and an amount of Rs.18,73,791/- was outstanding to be paid by Sharda Packaging Company. That the complainant had paid the amount of his loan Page 2 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined in cash, cheques and bank deposits and had adjusted the amount of Sharda Packaging Company and a no due certificate for the properties mortgaged by Sharda Packaging Company was demanded by the complainant from the accused. That Swaminarayan Cooperative Bank Ltd., was closed and the accused was appointed as an Administrator of the bank and the accused demanded an amount of ₹1,50,000/- as illegal gratification to give the No Due Certificate and after bargaining, the amount was fixed at ₹50,000/-. That the complainant did not want to pay the amount of illegal gratification and went to the ACB Police Station, Vadodara and filed the complaint under Sections 7, 13(1)(d) and 13(2) of the PC Act, which was registered at I-C.R. No. 2 of 2005, on 21/02/2005. The Trap Laying Officer called the Panch witnesses and the complainant and the Panch witnesses were introduced to each other and the complainant gave hundred currency notes of the denomination of ₹500/- each, which was a bundle having the label of Union Bank of India, Sultanpura Branch, Vadodara. The Trap Laying Officer called Head Constable Gyansinh Rathwa in his chamber and introduced him to the complainant and the Panch Page 3 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined witnesses, and under the instructions of the Trap Laying Officer, the demonstration of phenolphthalein powder and solution of sodium carbonate was conducted by Head Constable Rathwa and the characteristics of phenolphthalein powder and solution of sodium carbonate was explained to the complainant and the witnesses. That all the currency notes were smeared with phenolphthalein powder and placed in the right pant pocket of the complainant and necessary instructions were given to the complainant and the witnesses and the trap was arranged. The Panchnama Part-I was drawn and the panch witnesses and the Trap Laying Officer affixed their signatures on the Panchnama Part-I. That the complainant, Panch witnesses and the members of the raiding party went in Government Maruti Van No. GJ-1-G-
3565 and Government Jeep No. GJ-1-G-3753 and went from the Kothi Kacheri Compound to Annexure Three Roads, Nyay Mandir, Lehri Pura New road, Baranpura Shivaji Chowk and reached Bharat Vidyalaya at about 16:00 hours and halted both the vehicles. That the complainant and the Panch No. 1 got down from the Maruti Van and went to the office of the complainant, which had a board of Divya & Co. and the other Page 4 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined members of the raiding party and the Panch No. 2 stood scattered around. That the complainant sat on his chair in his office and the Panch No. 1 sat on his left on a chair and at about 17:50 hours, the accused came into the office and demanded the amount of illegal gratification and accepted the tainted currency notes of ₹50,000/-, which were taken by the complainant from his right pant pocket and given to the accused and the accused accepted the bundle with his right hand and put it in his attache and shut the attache. That the complainant went out and gave the predetermined signal and the Trap Laying Officer and other members of the raiding party came and caught the accused and the amount was recovered from the attache of the accused. The tests were conducted and the Panchnama Part-II was drawn and the Panch witnesses and the Trap Laying Officer affixed their signatures on the panchnama Part-II.
2.2] The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents including the service record of the accused as also the order of sanction for prosecution and a charge sheet was filed before the learned Sessions Court, Vadodara, which was registered as Page 5 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined Special (ACB) Case No. 16 of 2005.
2.3] That the accused was duly served with the summons from the learned trial Court and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 5 was framed against the accused and the statement of the accused was recorded at Exh: 6. The accused denied all contents of the charge and the evidence of the prosecution was taken on record. 2.4] The prosecution has produced the following oral as well as documentary evidences in support of their case.
ORAL EVIDENCE Sr. Prosecution Name of the witnesses Exhibits No. Witness 1 P.W.No. 1 Yashvantsinh Shankarsinh Exh:9 Chauhan 2 P.W.No.2 Kishor Shankarlal Patel Exh:26 3 P.W.No.3 Govindbhai Varvabhai Barot Exh:27 4 P.W.No.4 Ilyas Ibrahim Kalashwa Exh:44 5 P.W.No.5 Vinodray Jyestharav Raval Exh:48 6 P.W.No.6 Maheboob Mustufa Malek Exh:55 Page 6 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined DOCUMENTARY EVIDENCE Sr. Name of the particulars Exhibits No 1 Complaint Exh:10 2 Panchnama Exh:30 3 Seizure Memo Exh:31 4 Panchnama Exh:32 5 Seizure Memo Exh:33 6 Order of Prosecution Exh:45 7 FSL note and report Exh:49 2.5] After the closing pursis was filed at Exh:56, 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 of the prosecution and submitted that the complainant has filed a false complaint against him and on the day of the trap, he had gone to check the books of the complainant as the complainant did not bring his books to the office of the accused. That the complainant had to pay an amount of ₹9,49,987/- and interest and the complainant was not paying the amount and told him to take ₹50,000/- but Page 7 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined the accused refused to take the amount and while the accused was looking at the files, the complainant went out and two persons came and caught him. That he had no attachewith him and he has been falsely framed by the complainant. The accused refused to step into the witness box but stated that he wanted to examine witness on his behalf and the accused has examined defence witness No. 1 Manjibhai Kodaji Dethaliya at Exh: 59. After the accused closed his evidence by a closing pursis at Exh:
60, the arguments of the learned APP and the learned advocate for the accused were heard, and the learned trial Court was pleased to pass the judgement of acquittal. 3] Being aggrieved and dissatisfied with the said judgement and order of acquittal, the Appellant-State has filed the present appeal mainly stating that the judgement and order of acquittal is contrary to law and evidence on record and the learned trial Court has erred in holding that the prosecution has not proved its case beyond reasonable doubts. The learned trial Court has failed to appreciate the oral evidence of six witnesses as well as the various documentary evidences produced on record of the case by the prosecution in support of his case in Page 8 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined true and proper perspective and the impugned judgement has been passed without appreciating the evidences available on record of the case. That the evidence of the complainant and other witnesses proves 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 discarded the evidence of the prosecution, the prosecution has proved the ingredients of demand, acceptance and recovery and the learned trial Court has not considered the ratio of the judgments of the Honourable Apex Court and there is a factual error apparent on record of the case. That the learned trial Court ought to have appreciated that the accused was an Administrator of the Bank and was serving in the office of the Registrar of Cooperative Society at Vadodara, and he had demanded an amount of ₹1,50,000/- as illegal gratification and the amount of ₹50,000/- was accepted by him and the tainted currency notes were recovered from his possession and hence the presumption under Section 20 of the Act was available to the prosecution. That the witnesses have fully supported the case of the prosecution and the evidence is corroborated by the Page 9 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined evidence of the Trap Laying Officer as also the Investigating Officers and the learned trial Court has committed a grave error, which is apparent on the record of the case by not appreciating the materials available on record of the case and hence the impugned judgement and order being contrary to the evidence deserves to be quashed and set aside. 4] Heard learned APP Ms. Jirga Jhaveri for the Appellant- State. Though served, the respondent has not appeared either in person or through an advocate. Perused the impugned judgment and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case. 5] 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 the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was Page 10 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, "13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as Page 11 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
6.1] In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive -
inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
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(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. 6.2] 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, the following aspects have to be borne in mind:Page 13 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024
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(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.
(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.
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(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] As per the settled principles of law, which are very well crystallized with regard to the interference of the Appellate Court in acquittal appeals, the evidence produced by the prosecution must be re-appreciated and only if there is perversity or illegality in the impugned judgment and order, an interference of the Appellate Court would be warranted. It is also settled that if two views are possible and the learned trial Court has taken a view of acquitting the accused, the Appellate Court should not interfere with the impugned judgment and order and it is open for the Appellate Court to re-appreciate the evidence.
8] To bring home the charge against the accused, the prosecution has examined Prosecution Witness No. 1 Yashwantsinh Shankarsinh Chauhan at Exh: 9 and the Page 15 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined complainant has stated that in the year 2005, he was doing the business of money lending and his license No. was 059. That Bhikhubhai Haribhai Patel partner of Sharda Packaging, which was in G.I.D.C. Makarpura had taken a loan from Swaminayan Bank and had placed his property documents as mortgage and the amount was to be paid in the Bank. That Bhikhubhai Haribhai Patel had told him that an amount of ₹18,73,791/- with interest was to be paid in the Bank till January 2005 and 30% of the amount was ₹5,70,000/-. That, on 20/01/2005, a cheque of Priyosha Money lending Company was deposited in Account No. 101 of Sharda Packaging with Swaminarayan Cooperative Bank Ltd., and as per the rules, if an amount has to be adjusted, it could be adjusted by the Bank as per the Rules and Regulations, and Bhikhubhai Haribhai Patel had come to him with the amount of his relatives and friends circle and a primary approval was received in oral from Swaminarayan Bank that various amounts could be deposited in the accounts of Sharda Packaging with Swaminarayan Bank. The accused was the Additional Registrar and Custodian of Swaminarayan Bank and the complainant met him and told him to give the No Due Page 16 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined Certificate but the accused demanded the amount of ₹1,50,000/- and after bargaining, the amount was settled at ₹50,000/-. The accused had told him to call him after he had arranged for the amount and on 21/02/2005, the accused called him on his mobile phone and demanded for the amount of illegal gratification of ₹50,000/- and as he did not want to give the amount, he went to the Anti Corruption Branch and gave the complaint on 21/02/2005, which is produced at Exh: 10. Barot Saheb called him on the next day at 12:00 noon, and he gave the amount of ₹50,000/- which was withdrawn from Union Bank of India and he gave the bundle of the currency notes of ₹500/- to Barot Saheb. That two other persons were called and the staff members and he was introduced to them and some technical procedure was done and some chemical was put on the bundle of currency notes and placed in his right pant pocket. Necessary instructions were given and they went from the ACB office to his office in Buranpur. That he went and sat on his chair, and the Panch No. 1 also sat with him and after sometime, the accused came to the office and demanded for the amount of ₹50,000/-. The accused inquired about the identity of the Panch witness, Page 17 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined and the complainant told him that he was his brother and removed the amount from his pant pocket and gave it to the accused who took it and kept it in his Attache. That he went out of the chamber and gave the predetermined signal, and the ACB officers came and caught the accused and the technical procedure was done.
During the cross examination by the learned advocate for the accused, the witness has stated that no power of attorney was given to him to make any deal with Swaminarayan Bank and the letter, that was shown to him, was on the letter pad of Sharda Packaging. The Sharda Packaging had four partners Bhikhubhai Haribhai Patel, Rameshbhai Haribhai Patel Mukeshbhai Haribhai Patel and Shardaben Haribhai Patel and he does not know as to whether Sharada Packaging had deposited an amount of ₹16,98,970.48/- on 26/04/2005 with Swaminarayan Bank. The witness was shown a letter dated 27/04/2005, which had the signatures of all the four partners of Sharda packaging, in which, it was written that their documents should not be given to any other person. That he had not gone to the bank till 21/02/2005 to verify about the accounts of Page 18 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined Sharda Packaging and in 1986, Baluben Wd/o of Punjabhai had filed a criminal complaint under Sections 420, 406, 465 and 467 of the Indian Penal Code against him, which was registered at Sayaji Ganj Police Station, I-C.R. No 76 of 1986. That he had filed a anticipatory bail application before the learned Sessions Court Vadodara, which was rejected and on 26/01/2002, a raid was conducted at his place and he had given a Sopari to Ramzan to torture and threaten to kill an educated couple and the news was in the newspaper. That, he knows Madhukantaben, who is an advocate in the Court at Vadodara and she had filed a case that she had borne his son and the Civil Court had ordered maintenance at ₹5000/-. That Madhukantaben was the advocate of Divya & Company and the amount of ₹5000/- as maintenance was finalized by the learned Appellate Court. That he had never contacted the accused for the original documents and NOC in Swaminarayan Bank and he had not met the accused before 20/02/2005 and met the accused for the first time on 20/02/2005. That, he was given a notice to remain present with his documents on 21/02/2005 at the Cooperative Society Office and the notices were produced at Page 19 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined Exh:13 to Exh: 15 respectively. That he did not have any conversation with the accused for the original papers and No New Certificate of Sharda Packaging and he knew the accused as he was going for his money lending business to the District Registrar Office. That he wanted the No Due Certificate and documents of Sharda Packaging at any cost and he had spoken to the accused about the same. That as per his account, an amount of Rs.50,000/- was to paid and the currency notes were in a bundle and the bundle were not opened in the ACB Office. That he does not know whether Barot Saheb opened the attachewhile having a conversation with the panch No. 2 and the amount of Rs.50,000/- was not found from the person of the accused. That Barot Saheb asked him where was the money and he stated that it was in the attache and panch no. 2 was asked to recover the amount. That three files of Priyosha Money Lending Company, Bhruguraj Finance, Yashviraj Finance, Shiv Shakti Yamraj Finance Baran pura Main Road, Vadodara were found in the attache and the accused was not asked about the explanation of the amount of ₹50,000/-
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NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined 8.1] The prosecution has examined Prosecution Witness No. 2 Kishorebhai Shankarlal Patel at Exhibit: 29 and the witness is the Panch witness, who has fully supported the case of the prosecution and has narrated all the details that had taken place on the day of the trap, when he and the other Panch witness Sanket Sumanbhai Patel had gone to the ACB office, Vadodara. The witness has stated that the Panch witnesses were introduced to the complainant and the members of the raiding party and the complainant had told them the details of his complaint and the complainant had given a bundle of currency notes of ₹500/- each but he does not remember as to whether all the numbers of the currency notes were written down. That Head Constable Gyansinh Rathwa was called and the bundle of ₹50,000/- was given to him and he was asked to conduct the demonstration of phenolphthalein powder, and he took the briefcase from the cupboard and conduct the demonstration of phenolphthalein powder and solution of sodium carbonate. After explaining the characteristics of phenolphthalein powder and the solution of sodium carbonate to the complainant and the panch witnesses. That, the bundle of ₹50,000/- was smeared Page 21 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined with the phenolphthalein powder on the label and in between after placing the currency notes on a newspaper and the bundle of ₹50,000/- was placed in the right pant pocket of the complainant and the necessary instructions were given to the Panch witnesses and to the complainant. That they went in the government vehicle to the office of the complainant and he went along with the complainant in his office and sat on the right side of the complainant in a chair and at about 17:55 hours, the accused came and the complainant asked him about the documents of Sharda Packaging Company and No Due Certificate and the accused demanded the amount of ₹50,000/- and told him that the documents of Shardha Packaging and the No Due Certificate would be given on the third day. That the complainant gave the bundle of ₹50,000/- from his right pant pocket to the accused with his right hand and the accused accepted it in his right hand and placed it in his Attache, which was on the chair. The complainant went outside and gave the predetermined signal, and the members of the raiding party came and caught the accused. That the panchnama Part -II was drawnne and both the panch witnesses had affixed their Page 22 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined signatures on the Punchnama, which is produced at Exh:30, the seizure memo is produced at Exh: 31 and as the accused was arrested. The arrest panchnama is produced at Exh: 32 and the Panchnama of the search of the house of the accused is produced to Exh: 33.
During the cross examination by the learned advocate for the accused, the witness has stated that he is working in the Vigilance Branch of GEB for the last 16 years and he has to go for a raid of the meter and has to undertake the Panchnama and he is well aware of the procedure of panchnama. He has deposed as per the Panchnama and his statement and he had read the panchnama once or twice before. That he had read the complaint and J.V.Barot Saheb had told him to be the Panch No.
1. That he had heard the name of phenolphthalein powder and solution sodium carbonate for the first time on the day of the trap and the bundle of ₹50,000/- given by the complainant was a packed bundle. J.V.Barot Saheb had instructed them where to sit in the office and the room, where he and the complainant sat, was a room which was about 12' x 12'. That when the accused came to the office of the complainant, he was sitting near the Page 23 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined accused and two chairs to the left of the accused were vacant. That when the accused came, the complainant asked him whether he would have tea or something cold and the accused has stated he had completed everything and come and they should talk about the work. That the accused asked the complainant about his identity and the complainant told him that he was his brother and the complainant removed the bundle of Rs.50,000/- from his pocket and gave it to the accused. That besides this, they did not have any conversation and while the test were being done, Barot Saheb did not ask the accused for any explanation. That his statement was recorded after fifteen days on 01.03.2005 and he had given his statement on the basis of the panchnama. That he can only guess that the amount of Rs.50,000/- was paid as illegal gratification as it was stated in the complaint.
8.2] The prosecution has examined Prosecution Witness No. 3 Govindbhai Varvabhai Barot at Exh: 37 and the witness is the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated the entire procedure that he had undertaken when the complainant came to the office of ACB on Page 24 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined 21/02/2005 and recorded the complaint, which is produced at Exh:10 and the procedure undertaken on 22/02/2005 on the day of the trap till the trap was successful.
During the cross examination by the learned advocate for the accused, the witness has stated that the bottle of solution of sodium carbonate does not show whether the hand-wash is of the right hand or left hand of the accused and prior to recording the complaint, he did not verify how much money was due of the complainant with the bank. That he did not verify any documents and he has not collected any power of attorney of Sharda Packaging on the basis of which the complaint was taken. That till the panchnama was completed, he did not demand for the power of attorney of Sharda Packaging from the complainant, and the complainant was a money lender. That he had merely placed trust on the complainant and arranged for the trap, and he had not verified as to how much money was due of the complainant in the bank where the accused was a custodian and how much interest had to be paid and had not demanded for any documentary evidence about the amount that was outstanding by the complainant. That he had written the Page 25 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined figures as per the say of the complainant, and did not verify the same and had not called the person, who is said to have given the power of attorney to the complainant. That he had not called Bhikhubhai Haribhai Patel, the partner of Sharda Packaging till the trap was successful and after the trap was successful, he had handed over the investigation to the Investigating Officer, but had not called the power of attorney Bhikhubhai Haribhai Patel, the partner of Sharda Packaging. That the complaint was written in the handwriting of Ramdevsinh Rana-Police Constable and he has not put any initials where the corrections were made in the complaint. That he had not verified, whom the complainant had telephoned on the day of the trap and the place of office of the complainant was the residence of the complainant. That the files of Sharda Packaging were found in the attache of the accused and the complainant had not told him that he had telephone the accused and called him to his office. That in the seizure memo produced at Exh: 31, it is not mentioned that the tainted currency notes were recovered from the attache of the accused.
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NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined 8.3] The prosecution has examined Prosecution Witness No. 4 Ilyash Ibrahim Kalashva at Exh: 44 and the witness is the competent authority, who has accorded the order of sanction for prosecution, which is produced at Exh: 45.
During the cross examination by the learned advocate for the accused, the witness stated that in the document sent to him a draft sanction order was sent which is produced at Exh:46. 8.4] The prosecution has examined Prosecution Witness No. 5 Vinodrai Jayeshtharao Raval at Exh:48, and the witness is the Investigating Officer, who has stated that he had recorded the statements of the witnesses and had sent the Mudammal to the FSL for analysis. That after analysis, the FSL report was received and the same is produced at Exh:49 and thereafter as he was transferred, the further investigation was handed over to Police Inspector Shri Jhala.
During the cross examination by the learned advocate for the accused, the witness has stated that he had seized the bank statement of the complainant's account and as on 22/02/2005, an amount of ₹9,49,987/- was due to be paid to the bank and the same is produced at Exh:50. That the statement of Bank Page 27 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined Manager Arvindbhai Patel was recorded when he has stated that another Administrator Mr. NK Dethaliya was appointed and he was doing the procedure of recovery of the amount from Sharada Packaging on 26/04/2005. The partners of Sharda Packaging had paid the amount in Swaminarayan Cooperative Bank and a copy of the bank statement was also produced. That when the amount of the bank is paid, the documents are handed over back to the owner and thereafter No Due Certificate is given and the accused did not have the power to give the No Due Certificate.
8.5] The prosecution has examined Prosecution Witness No. 6 Mehboobbhai Mustafa Malik at Exh: 55 and the witness has stated that he had taken over the investigation, and after the order of sanction for prosecution was received, he had filed the charge sheet before the competent court. After the closing pursis was filed by the prosecution, the further statement of the accused was recorded and the accused has stated that he wanted to examine defense witness and Defense Witness No. 1 Manibhai Khodabhai Dethaliya has been examined at Exh: 59. The witness has stated that his statement was recorded by the Page 28 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined ACB Officer 20/05/2005, wherein he has stated that the accused was the earlier custodian of Swaminarayan Cooperative Bank Ltd., and thereafter, by an order dated 07/01/2004, he was appointed as the custodian of the Bank and was an Administrator for one year. That he had taken charge on 04/03/2005 and the file of Sharda Packaging was given to him, wherein, in CC Account No. 100 of Sharda Packaging partnership firm with Swaminarayan Cooperative Bank Ltd on 05/03/2005, an amount of Rs.9,49,987.48/- + interest as per rules was to be paid and as per the directions of the Cooperative Societies, Gujarat State, Gandhinagar, interest at the rate of 17% would have to be paid by the account Holders. That from 04.03.2005 to 26.04.2005, an amount of Rs.73,772.60/- in cash and Rs.16,95,066.48/- as deposits, were adjusted and in total an amount of Rs.17,68,938.48/- was recovered. That after the entire amount was recovered, as per the demand of the partners of Sharda Packaging, the original documents and No Due Certificate was given to the partners. That the No due Certificate was given only after the entire amount was paid. The witness has not been cross examined by the learned Additional Page 29 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined Public Prosecutor.
9] On minutely dissection of the entire evidence of the prosecution on record, it is the case of the complainant that he had adjusted the amount of loan of Sharda Packaging as the partner of Sharda Packaging, Bhikhubhai Haribhai Patel had given him a power of attorney and the documents of Sharda Packaging Company as also the No Due Certificate of Sharda Packaging Company was to be taken by him from Swaminarayan Cooperative Bank and the accused had demanded an amount of ₹1,50,000/- to give the documents as also the No Due Certificate of Sharda Packaging to the complainant. In the entire evidence during the cross examination of the complainant, it has emerged on record that the complainant did not meet the accused till the complaint was filed, and in fact, the amount of the complainant was due to be paid in the bank, and all the four partners of Sharda Packaging had written a letter to the bank asking them not to give their documents or the No Due Certificate to any other person besides them. It has also emerged on record that the complainant had himself called the accused to his office, and Page 30 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined there is clear evidence that the complainant did not meet the accused prior to the day of the trap, the demand has not been proved as without meeting the accused, the accused could not demanded for any amount of illegal gratification from the complainant. In the further statements recorded under Section 313 of the Code of Criminal Procedure, 1973. That the accused has stated that he went to the office of the complainant to check the books and at that time without his knowledge, the complainant had placed the tainted currency notes in his Attache. There is no iota of evidence that the amount was recovered from the attache of the accused and the seizure memo does not mention that the amount was recovered from the attache of the accused.
10] The accused has examined Defence Witness Manjibhai Kodaji Dethaliya, who was the Administrator and custodian of Swaminarayan Cooperative Bank Ltd and he has stated that the accused was not empowered to give the No Due Certificate and the partners of Sharda Packaging had paid the amount in cash and by the deposits with the bank and had cleared their accounts and they were returned their documents Page 31 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined and the No Due Certificate.
11] There is no evidence that the complainant was ever entitled to take documents of Sharda Packaging from the accused and when there is no evidence that the complainant met the accused prior to the date of the trap, the ingredients of prior demand or demand on the day of the trap have not been proved. The Panch witness has clearly stated that when the accused came to the office of the complainant, the only conversation that the complainant and the accused was with regard to, whether the accused wanted to have tea or cold drink and the complainant immediately took the currency notes and gave it to the accused. Hence the demand, on the day of the trap, is also not proved beyond reasonable doubts and in the entire evidence of the prosecution, demand, which is a sine-qua- non for for the offence under Section 7 of the PC Act is not proved beyond reasonable doubts.
12] As per the settled principles of law, the appellate Court would not ordinarily interfere with the order of acquittal unless after reappreciation of the evidence, it appears that the judgement and order of the learned trial Court is vitiated by Page 32 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined some manifest illegality and the conclusion arrived at by the learned trial Court is such that would not be arrived at by any reasonable person, and the decision is perverse. It is also settled law that the presumption of innocence of the accused is strengthened by the judgement of acquittal and the golden thread, which runs through the web of administration of justice in criminal cases is that when there are two views possible, the view in favour of the accused must be adopted. An appellate court has full power to reappreciate and reconsider the entire evidence of the prosecution and would interfere only if there are substantial and compelling reasons that the judgement is perverse and illegal.
13] In view of the decision of the Apex Court in the case of Mallappa (supra), this Court is of the opinion that the learned trial Court has appreciated the entire evidence of the prosecution 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 Page 33 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024 NEUTRAL CITATION R/CR.A/863/2008 JUDGMENT DATED: 20/08/2024 undefined leveled against him. 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. 14] The impugned judgment and order of acquittal order dated dated 02.11.2007 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 5, Vadodara in Special (ACB) Case No. 16 of 2005 is hereby confirmed.
15] Bail bond stands canceled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 34 of 34 Uploaded by VISHAL MISHRA(HC01088) on Wed Sep 04 2024 Downloaded on : Fri Sep 06 22:04:07 IST 2024