Gujarat High Court
The State Of Gujarat vs Devrambhai Manilal Nayi on 13 April, 2023
NEUTRAL CITATION
R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 390 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE STATE OF GUJARAT
Versus
DEVRAMBHAI MANILAL NAYI
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Appearance:
MR KM ANTANI, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR PATHIK M ACHARYA(3520) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 13/04/2023
ORAL JUDGMENT
1. The present appeal is filed by the appellant - State of Gujarat against the judgment and order of acquittal dated 24/11/2006 passed by the Presiding Officer, Fast Track Court No.4, Banaskantha at Palanpur in Special Case No.57 of 2002, Page 1 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined whereby, the learned Trial Judge has acquitted the original accused respondent herein for the offence punishable under Sections 7, 13(1)(d)(1)(2)(3) and 13(2) of the Prevention of Corruption Act, 1988.
2. The brief facts giving rise to the present appeal are as under :
2.1 That, on 31/12/2001, somehow, the Police Sub-inspector, ACB Police Station at Palanpur, received information that at Deesa Highway near RTO Check Post some employees of RTO Check Post, Sales Tax Check Post Check Post of Forest Department and some other employees of police department are also demanding illegal gratification to the tune of Rs.50/- to 500/- from truck drivers. On the basis of this secret information, the Police Sub-inspector, ACB Police Station, Palanpur arranged a decoy trap with the help of staff of ACB personnel and for that they have called two panchas from the office of Gujarat Electricity Board of Palanpur and in presence of those panchas they went to guest-house of Irrigation Department and from there, on the basis of some information received, they had started towards Deesa. When they reached near Shihori-Thara Highway, they intercepted the Trailer bearing registration No.GJ-12-V-7480, which was driven by Surendrasinh Sohansinh carrying iron plates. Then they proceeded from Deesa to Uttar Pradesh at Koshi and then the driver was made to understand to co-operate in the trap proceedings and at his consent, he joined the decoy trap. Thus, the first part of the Panchnama was drawn and was also given different denomination of the currency notes of Rs.670/- and Page 2 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined the same were sprinkled with anthracene powder and after completion of the first part of the Panchanama of the proceedings they had started to proceed towards Deesa. When they reached near RTO check-post and when they entered into the office of the RTO check-post, after getting clearance they proceeded further and thereafter, they reached near the Sales Tax Check Post, where the officers of Sales Tax Check Post had intercepted the vehicle for verification of the documents for the goods which they were carrying in the said vehicle. The vehicles are to carry form no.45 with them under the Rules of Gujarat Sales Tax Act and they have to show the same to the Check Post Officers who are deployed on the check-post and if they do not have the said form no.45, then they have to pay certain amount to the officers towards illegal gratification and therefore, when they reached near the Sales Tax Check Post, the truck bearing registration No. GJ-12-V-7480 was stopped by the Sales Tax Officers who were standing at the check post.
They asked for the form no.45 to the driver and also called in the office of the officer. The truck driver said that he was not having the said form with him and therefore, the respondent who was sitting in the office, demanded Rs.500/- towards illegal gratification and thus, the trapping officers have arrested the present respondent - original accused alongwith tainted currency notes from the drawer of the table, where the respondent was sitting and found with the currency notes. Even the imprint of anthracene powder were also found on the left hand pocket of the respondent and that is how the respondent accused came to be arrested by the Police Inspector in presence of the Panchas and after drawing the Panchnama of the second part, they had completed the Page 3 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined formalities of trap.
2.2 It is the case of the prosecution that during the course of investigation, they found sufficient material, and therefore, they led the charge-sheet in the concerned court and also submitted the papers to the appointing authority for getting sanctioned for prosecuting the respondent. On receipt of the charge-sheet papers, the concerned trial court vide Exh.-14 framed the charge against the accused respondent herein for the alleged offence of illegal gratification punishable under Sections 7, 13(1)(d)(1)(2)(3) and 13(2) of the Prevention of Corruption Act, 1988 on 31/05/2005. The accused pleaded not to be guilty for the said offence and therefore, the trial had proceeded.
2.3 The prosecution has examined as many as 5 witnesses namely, PW-1 - Panch No.1 Bhurjibhai Chamnabhai Gamar, PW-2 - decoy driver Shrenishikh Surendrasinh Sohansinh, PW-3
- ACB Police Inspector Hathiji Becharji Chavda, PW-4 - Bholabhai Chhaganbhai Patel and PW-5 - ACB Police Inspector Prabhudas Badaji Pandav.
2.4 After examination of the witnesses in detail and after considering the documentary evidence and after hearing arguments advanced by both the sides, the trail court has passed the impugned order of acquittal mainly on the ground that the prosecution has failed to establish the case against the accused respondent herein with regard to the demand and acceptance beyond reasonable doubts.
Page 4 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined 2.5 Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant - State of Gujarat has filed the present appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973.
3. Heard learned APP Mr.K.M. Antani appearing for the appellant - State of Gujarat and learned counsel Mr.Pathik Acharya appearing for the respondent - original accused.
4. Learned APP Mr.Antani submitted that though the prosecution has proved the case against the present respondent - original accused beyond reasonable doubts, the tainted currency notes were found from the drawer of the table upon which the respondent was sitting and found with the anthracene powder, even the anthracene powder was also found from the body of the accused and the pocket of the shirt which he was wearing at the time of incident, however, the Trial Court has passed the impugned order of acquittal and disbelieved the case of the prosecution and therefore, the Trial Court has committed an error while passing the impugned order of acquittal. Learned APP Mr.Antani, therefore, submitted that the appeal deserves to be allowed and the order of acquittal deserves to be quashed and set aside and the respondent - original accused be held guilty of the offence as alleged in the FIR.
4.1 The main thrust of argument on the part of the learned APP Mr.Antani is that, the Trial Court ought to have inferred that there was demand as the tainted currency notes were found from the drawer of the table upon which the respondent Page 5 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined was sitting. It is submitted by learned APP that at relevant point of time, the respondent was found with the anthracene powder on his left hand and on the shirt which he was wearing at the time of incident, and therefore, the impugned order of acquittal is erroneous and against the settled principles of law as well as the same deserves to be quashed and set aside and the findings recorded by the Trial Court is required to be reversed and the accused to be held guilty for the alleged offence. It is further submitted by the learned APP Mr.Antani that merely the panch witness has not supported the case, the case of the prosecution cannot be disbelieved or discarded and therefore, the Trial Judge has committed a serious error of law while passing the impugned order of acquittal.
4.2 Learned APP Mr.Antani has further submitted that the decoy driver - PW-2 (Exh.-29), though he was declared hostile, but he has supported the case of the prosecution. Even in his cross-examination, the evidence came to the effect that at part of his cross-examination he is to be looked into and the same is required to be considered by the Trial Court which it failed to appreciate in its true and proper spirit and pass the impugned order of acquittal, therefore, the same deserves to be quashed and set aside.
4.3 Learned APP Mr.Antani has further submitted that if the form no.45 was not needed from the driver of the vehicles, then there was no reason to ask for such form from the driver of the vehicle and under the guise of that, the respondent has demanded illegal gratification and therefore, considering the prima facie case against the accused person, the Trial Court Page 6 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined has not considered the case of the prosecution in its true and proper perspective, while passing the impugned order of acquittal and therefore, the impugned order of acquittal is bad and the same deserves to be quashed and set aside.
4.4 The learned APP has strongly referred to and relied upon the recent decision of the Full Bench of the Apex Court in the case of Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) decided on 15th December, 2022, reported in AIR 2023 SC 330, more particularly, the observations made in paragraphs 28 to 35, paragraph 46 and clause (e) and (f) of paragraph 68, which read as under :
"28. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under:
"1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?"
In order to answer the aforesaid question, it would be useful to recapitulate the relevant provisions of the law of evidence vis-à-vis tendering of oral and documentary evidence; presumptions and circumstantial evidence. Thereafter to analyse the three cases and also other cases cited at the Bar in the background of the question raised and to derive a conclusion from the said discussion.
Relevant provisions of Law of Evidence - A discussion:
29. Since the main thrust of this case is on the quality of evidence for proof of demand and acceptance of an illegal gratification before a public servant can be held guilty of an offence under Section 7 and/or Section 13(1)(d) of the Act, it would be appropriate to discuss the salient principles of law of evidence relevant to the Page 7 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined question under consideration.
In this context, it would be necessary to refer to Sections 3, 4, 59, 60, 61, 62, 63, 64, 65 and 154 of the Evidence Act.
30. Congruent to the principle of res gestae, a fact includes a state of things or events as well as the mental state i.e. intention or animus. A fact in law of evidence includes the factum probandum i.e., the principal fact to be proved and the factum probans, i.e., the evidentiary fact from which the principal fact follows immediately or by inference. On the other hand, the expression "fact in issue"
means the matters which are in dispute or which form the subject of investigation. (vide Section 3 of Evidence Act).
31. It is well settled that evidence is upon facts pleaded in a case and hence, the principal facts are sometimes the facts in issue. Facts relevant to the issue are evidentiary facts which render probable the existence or non-existence of a fact in issue or some relevant fact.
32. In criminal cases, the facts in issue are constituted in the charge, or acquisition, in cases of warrant or summon cases. The proof of facts in issue could be oral and documentary evidence. Evidence is the medium through which the court is convinced of the truth or otherwise of the matter under enquiry, i.e., the actual words of witnesses, or documents produced and not the facts which have to be proved by oral and documentary evidence. Of course, the term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge under Section 313 of the Criminal Procedure Code (CrPC).
33. Further, according to Sarkar on Law of Evidence, 20 th Edition, Volume 1, "direct" or "original" evidence means that evidence which establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it, and believed that it established a fact in issue. Direct evidence proves the existence of a fact in issue without any inference of presumption. On the other hand, "indirect evidence" or "substantial evidence" gives rise to the logical inference that such a fact exists, either conclusively or presumptively. The effect of substantial evidence under consideration must be such as not to admit more than one solution Page 8 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined and must be inconsistent with any explanation that the fact is not proved. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred.
34. Again, oral evidence can be classified as original and hearsay evidence. Original evidence is that which a witness reports himself to have seen or heard through the medium of his own senses. Hearsay evidence is also called derivative, transmitted, or second- hand evidence in which a witness is merely reporting not what he himself saw or heard, and not what has come under the immediate observation of his own bodily senses, but what he has learnt in respect of the fact through the medium of a third person. Normally, a hearsay witness would be inadmissible, but when it is corroborated by substantive evidence of other witnesses, it would be admissible vide Mukhtiar Singh.
35. Evidence that does not establish the fact in issue directly but throws light on the circumstances in which the fact in issue did not occur is circumstantial evidence (also called inferential or presumptive evidence). Circumstantial evidence means facts from which another fact is inferred. Although circumstantial evidence does not go to prove directly the fact in issue, it is equally direct. Circumstantial evidence has also to be proved by direct evidence of the circumstances.
Further, letting in evidence should be in accordance with the provision of the Evidence Act by the examination of witnesses, i.e., examination-in-chief, cross-examination, and re-examination.
46. Courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely,
(i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognised by law". The expression "may presume" and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions Page 9 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume". "May presume" leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act.
68. What emerges from the aforesaid discussion is summarised as under:
(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."
4.5 The learned APP, therefore, urged that the present appeal be allowed and the impugned order of acquittal be quashed and set aside and the respondent - original accused be held guilty of the alleged offence.
5. As against that, the learned counsel Mr.Pathik Acharya appearing for the respondent - original accused has strongly Page 10 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined objected the present appeal and submitted that there was no evidence come forth before the Trial Court with regard to the demand and/or acceptance in its cleared terms and therefore, the present appeal deserves to be dismissed and the impugned order of acquittal passed by the Trial Court deserves to be confirmed. Learned counsel Mr.Acharya further submitted that there is no evidence with regard to the demand in presence of the Panchas as the deposition of the Panchas clearly reveals that while the decoy truck driver - PW-2 was paying the currency notes, the Panchas were standing outside the office and therefore, they are not the witnesses to the demand and therefore, the Trial Court has rightly disbelieved the evidence of the prosecution with regard to the demand, and unless and until, the first ingredient i.e. demand either in unequivocal terms or by gestures or by any other mode, the case of the prosecution cannot be believed for the second part and therefore, the Trial Judge has rightly passed the order of acquittal and there is no interference required to be called for.
5.1 Learned counsel Mr.Acharya has further submitted that the notes were put on the table and subsequently, at the time of drawing panchnama, it was found from the drawer of the table. He has submitted that there was no cogent and leading evidence which could show that the notes were put by the respondent accused in the drawer and unless and until there is any evidence to that effect, merely it was found from the drawer of the table, upon which the present respondent accused was sitting. He has submitted that the presumption cannot be drawn nor the inference can be drawn against the respondent accused and therefore, the Trial Judge has rightly Page 11 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined passed the impugned order of acquittal and no interference is required to be called for.
5.2 Learned counsel Mr.Acharya referred to the observations made by the Trial Judge in paragraph 30 of the impugned judgment and order, wherein he has referred to the deformity recorded by the Trial Judge, which reads as under :
"1. As per the evidence of Pancha No.1, on which the Prosecution entirely relies upon, when the demand of bribe was made and it was accepted, the presence of Pancha No.1 was not there and looking to the same, the fact of demand and acceptance does not appear to be proved. The evidence of Pancha No.1 has been found to be contrary to the facts of the Panchnama and Panchas were found to be selected Panchas.
2. In a bribery case, the fact of demand, which was required to be established independently and undoubtedly against the accused by the Prosecution, is not provided by the deposition of Pancha No.1. His evidence does not corroborate with the evidence of independent decoy witness, and it cannot be believed that both the important facts of demand and acceptance have been proved.
3. On careful consideration of the facts of examination in chief and cross examination of the raiding officer Shri Chavda, the evidence of Shri Chavda appeared to be contrary to the deposition of Pancha No.1. His evidence does not transpire to be completely satisfactory and reliable.
4. Before conducting raid, the evidence to the effect that the Panchas and decoy driver were explained about the characteristics of anthracene powder and ultra violet lamp, is not submitted and there is no mention in Panchanama in this regard. Looking to the same, Panchanama is defective and does not transpire to be beyond doubt.
5. With regard to issue of acceptance, looking to the contrary depositions of Pancha No.1 and P. I. Shri Chavda in respect of experiment conducted to decide the presence of anthracene powder in the hands of accused, fact of the acceptance becomes doubtful.Page 12 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023
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6. The evidence of Pancha No.1 and Shri Chavda to the effect that light blue coloured and whitish bright stain surfaced during the experiment of ultra violet conducted on the muddamal currency notes and in the hands of the accused after the raid was conducted.
7. As per the deposition of witness Bholabhai Chhaganbhai Patel, loading vehicle driver does not require to keep Form No.45 with him. Therefore, the bribe demanded by the accused for passage of the vehicle from the check post without Form No.45 and thereby the important fact of demand itself becomes doubtful.
8. Panchanama has not been dictated by the Panchas, and Panchnama has been dictated by raiding officer Shri Chavda. In these circumstances, Panchnama cannot be accepted as corroborative evidence.
9. As per the information recieved by the raiding officer Shri Chavda, the officers and employees deployed at R.T.O. check post, Police check post, forest check post and Sales Tax check post used to demand and accept bribe. Inspite of that, only decoy witness goes to R.T.O. check post and no member of raiding party or Pancha go with decoy witness. The raiding officer has not given any instruction to Pancha No.1 to go with the decoy witness and the present trap has been laid without ensuring about the information received by him as to whether any bribe is demanded there and Shri Chavda admits such fact. Thus, from the doubtful and unnatural conduct of Shri Chavda to quite an extent, the evidence of Shri Chavda also appears to be doubtful and it raises justifiable doubt over the reliability of the case of Prosecution."
5.3 Learned counsel Mr.Acharya has further submitted that the Trial Court has recorded the acquittal after appreciation of the evidence and the demanner of the witnesses and after hearing the arguments advanced by the learned counsel for the parties and once the acquittal is recorded by the Trial Court while sitting in an appellate jurisdiction, the High Court has to consider the guiding principles enunciated by the Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 that in case of Page 13 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence 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. He, therefore, urged that the present appeal may be dismissed and no interference to be called for in the order passed by the Trial Court.
5.4 Learned counsel Mr.Acharya has strongly referred to and relied upon the decision of the Full Bench of the Apex Court in case of Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) decided on 15th December, 2022, reported in AIR 2023 SC 330, more particularly the observations made in paragraph 68, clause (d)(i) and (ii) and thereafter, the said appeal was decided by the Apex Court on 17 th March, 2023, and emphasized upon paragraphs 16, 17 and 18, which reads as under :
"16. Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.
17. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided Page 14 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.
18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."
6. PW-1 - Bhurjibhai Chamnabhai Gamar has been examined at Exh.-18. As per his deposition, upon checking Page 15 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined drawer of the table of the accused in the light of ultra violet lamp, currency note having denomination of Rs.500/- was emitting bluish glow and ACB PI Shri Chavda seized the said currency note from the drawer of the table. Then, upon checking hands of the driver Surendrasinh in the light of ultra violet lamp, bluish glow was emitting on his right thumb and on the tip thereof. Upon checking pocket of the driver in the light of ultra violet lamp, such clear stains were visible therein. He identifies Muddamal Article No.1 -currency note having denomination of Rs.500/-. As per his deposition, upon carrying out physical search of the accused, Rs.300/- was found from his pocket.
6.1 PW-2 - Decoy driver Shrenishikh Surendrasinh Sohansinh has been examined at Exh.-29. As per his deposition, when he went inside cabin at Sales Tax cross-roads, Deesa to show the papers of the vehicle, the accused told him that these papers do not contain Form No.45. Then, this witness stated that he would inquire by making phone call to his main office and thus, he informed A.C.B. officer accompanying him. At that time, A.C.B. officer told him to give money, if demanded. Thus, he went inside the office for the second time and kept currency note having denomination of Rs.500/- on the table of the accused and after taking papers from the accused, he signalled as he was instructed by the officer. Thus, A.C.B. officer rushed inside the cabin, nabbed the accused and brought him to old R.T.O. office, where all the relevant papers were prepared and A.C.B. officer was interrogating the accused.
Page 16 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined 6.2 PW-3 - A.C.B. PI Hathiji Becharji Chavda, Police Inspector has been examined at Exhibit-37. As per his deposition, from 18/10/2001 to 31/08/2005, he had been discharging duty as P.I. in A.C.B., Palanpur. During this time, he received tip off that officer and employees of R.T.O. check-post, Sales Tax, Forest Department check-post and police check-post of Deesa abuse their power and obtain illegal bribe of Rs.50/- to Rs.500/- from light and heavy vehicles drivers under any excuse for their personal gain. Thus, on the basis of tip off received by him, he planned decoy trap after noontime and Shri Pandav alongwith A.C.B. police personnel came from Palanpur to Deesa with required material. After submitting Yadi in G.E.B. office, Deesa, two public servants were asked to act as pancha. After coming to Guest House of Irrigation Department, Deesa alongwith pancha, panchas were apprised regarding the aforesaid fact and as panchas showed willingness to act as pancha, after drawing panchnama of Part-1 there, their signatures were obtained. Thereafter, we left from Deesa in Government vehicle and reached Shihori Thara highway road and waited to contact vehicle drivers for the purpose. In the meantime, as Trailer No.GJ-12-V-7480 arrived and upon asking his name and address, he replied that his name is Surendrasing Sohansing Shreni (Sikh) and this Trailer was loaded with iron plates. This driver stated that he is going from Deesa to U.P. by this trailer. Thus, upon giving understanding to this driver by the virtue of decoyer panchnama, he showed willingness to act as pancha. As per the deposition of Shri Chavda, thereafter, in the Trailer, panch No.1, Shri Ghasura and Shri Joshi from the raiding party were made to sit in the cabin with the Driver and after that, they left from the Shihori Page 17 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined Road. Thereafter, the Decoy stopped his Trailer at the Deesa R.T.O. Check Post and went to the Check Post. But, no incident occurred there. Thereafter, from there, they came to the Sales- tax Office Check-post and the Decoy and Panch No.1 after him, went to the Sales Tax Check-post and the members of the raiding party placed themselves hiding the identity. Thereafter, as the Decoy gave the signal, the members of the raiding party went to the Check-post with the panch No.2. Thereafter, as this witness asked regarding the incident to the panch No.1 in presence of the panch No.2, the panch No.1 stated the fact of the incident. Thereafter, he gave his identity to the accused as the P.I., A.C.B. and inquired regarding the name and other things. Thereafter, as Shri Mafatlal show the hand of the accused in normal light, no visible marks were seen. After switching off the light and upon seeing in the U.V. Lamp, marks of anthracene powder were seen on the thumb and tip of the finger of the right hand. Moreover, marks of anthracene powder were also seen on the currency note of Rs.500/- lying in the drawer of the table of the accused.
6.3 Prosecution has examined Bholabhai Chhagandas Patel (PW-4) vide Exhibit-55. As per his deposition, during the period of the incident, he was performing his duty as Sales-tax Officer at the Deesa Sales-tax Post. At that time, there were six Sales- tax Officers, two Clerks and two Peons performing duty at the Check-post. He was on leave on the day of the incident. But, the accused was present on his duty.
6.4 Deposition of Shri Prabhudas Badaji Pandav (PW-5), P.I. has been recorded vide Exhibit-60. As per the deposition of Page 18 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined Shri Pandav, he was present with Shri Chavda on 31/12/2001 for the work of this decoy trap. As Shri Chavda stopped the driver of the vehicle coming from Shihori to Disa and obtained his cooperation for the trap and made arrangement, as the Decoy accompanying him succeeded, Shri Chavda registered offense against the accused. As the investigation of this offense was assigned to him, he took over the same on 01/01/2002. He recorded the statements of both the pancha and lamp operator and all the members of the raiding party and the witnesses and after collecting all the evidence, sent a special report to the superior officer. Moreover, after collecting documentary evidences against the accused, he prepared the final report and the draft of the permission of the prosecution against the accused and sent the documents to the superior officer. As permission was granted for the prosecution against the accused, he prepared the charge-sheet.
7. I have heard the learned counsel appearing for the respective parties and perused the material placed on record. After analyzing the evidence recorded by the Trial Court and after perusal of the documentary evidence which is placed before the Trial Court and on re-examination of the evidence, I am of the opinion that the prosecution has not established the case beyond reasonable doubt with regard to the demand made by the present respondent - original accused as the recent pronouncement by the Apex Court in case of Neeraj Dutta (Supra), wherein, the Apex Court has considered the case that the demand for gratification and its acceptance must be proved beyond reasonable doubt. The allegation of demand for gratification and acceptance made by a public servant has Page 19 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined to be established beyond reasonable doubt as it is observed by the Apex Court after pronouncement of the Full Bench Judgment that this corollary ingredient of the illegal gratification and acceptance is not diluted by the Constitutional Bench of the Apex Court. Thus, I am of the opinion that in the present case, the prosecution has not established the first and foremost requirement with regard to the demand of proof beyond reasonable doubt. Merely the tainted currency notes of Rs.500/- were found from the drawer, the inference cannot be drawn against the respondent accused. In fact, it is the case of one of the witnesses of the prosecution namely, Surendrasinh Sohansinh PW-2 that the respondent had not demanded the said amount but he himself had put these notes on the table and therefore, this is not a specific case of demand, however, the respondent had put the tainted currency notes on the table. The first ingredient of the demand is not proved beyond reasonable doubt and therefore, there is no question to infer against the present respondent accused with regard to demand as contended by the learned APP Mr.Antani, and therefore, the Trial Court has rightly passed the impugned order of acquittal after appreciating the evidence of the prosecution witness. The learned APP is unable to explain this guiding principles laid down by the Apex Court as there is no any other view to the said guiding principles as enunciated by the Apex Court time and again in the case of Prevention of Corruption Act that the basic requirement to prove the demand and subsequent to that the receipt of the amount of bribe beyond reasonable doubt. Therefore, in the present case, the prosecution has not established the said ingredient or requirement beyond reasonable doubt. Hence, Page 20 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023 NEUTRAL CITATION R/CR.A/390/2007 JUDGMENT DATED: 13/04/2023 undefined the Trial Court has not committed any error while passing the impugned judgment and order of acquittal.
8. At this stage, it would be appropriate to refer to the decision of this Court in case of State of Gujarat Vs. Ratilal Hirji Jobanputra reported in 2023 LawSuit (Guj.) 783, wherein, the Co-ordinate Bench of this Court in the similar situation and identical facts, while dismissing the appeal filed by the State has observed in paragraphs 14 and 15 as under :
"14. Therefore, on overall analysis of the aforesaid evidence on record, once the complainant himself in his deposition had denied to identify the respondent and not supported the case of the prosecution, which is being further supported by the independent panch witnesses, prosecution failed in proving their case in relation to demand. The sole reliance placed by the appellant on deposition of PW-5, who was Investigating Officer, remains no evidence as to demand on record and the same loses its evidential value as regards the demand and acceptance, as alleged. The evidence of investigating officer also become meaningless as from the evidence of independent panch witnesses, nothing concrete is revealed that the respondent ever demanded any amount of illegal gratification from the complainant.
15. In view of the aforesaid nature of evidence, learned trial Court has rightly recorded the finding of acquittal thereby rightly acquitted the accused, which does not call for any interference of this Court. Even otherwise also, the case is covered by the decision of K. Shanthamma v. State of Telangana (supra) and on that count also, there appears no merit in the appeal. This Court finds that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal."Page 21 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023
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9. It is well settled that while dealing with the acquittal appeal, while exercising powers under Section 378(1)(3), the scope and ambit of the powers to the Appellate Court while dealing with the acquittal appeal is as enunciated by the Apex Court in case of Chandrappa and others (Supra) in paragraph 42 is very limited. Of course, the Appellate Court has to re-appreciate and re-examine all the evidence which is recorded by the Trial Court, and on perusal of the said evidence and examination of the evidence recorded by the Trial Court, if any perversity or infirmity is found in the evidence, then in that case only, the Appellate Court can exercise the powers under Section 378(1)(3) of the Code of Criminal Procedure, 1973. Here in the present case, in my opinion, there is no infirmity or any perversity found in the judgment of the Trial Court recording acquittal. I have also considered the fact that now at present, the respondent accused is 72 years of age and also not physically well.
10. For the foregoing reasons, the present appeal deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith. The bailable warrant in the sum of Rs.5,000/- issued at the time of admission of appeal stands cancelled. The bail bond, if any, furnished by the respondent accused also stands cancelled.
(HEMANT M. PRACHCHHAK,J) Dolly Page 22 of 22 Downloaded on : Sun Sep 17 18:28:53 IST 2023