Gujarat High Court
State Of Gujarat vs Narendra Harprasad Gupta on 26 February, 2024
NEUTRAL CITATION
R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2086 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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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
NARENDRA HARPRASAD GUPTA
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Appearance:
MR. BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR JAYESH A DAVE(253) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 26/02/2024
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 24.07.2009 passed by the learned Special Judge, Kachchh-Bhuj (herein after referred to Page 1 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined as 'the learned Trial Court') in Special (ACB) Case No. 11 of 2001, whereby, the learned Trial Court has acquitted 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 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 in the year 2000, the accused was working as a Deputy Engineer (Class-I) in Gujarat Electricity Board ( for short G.E.B.), Sub Division, Madhapar Madhye, Taluka: Bhuj, District:
Kachchh and was a public servant and at that time, the electricity connection of Shree Krishna Marbles Works, which belonged to Karshan Hirji Bhudiya was disconnected for theft of electricity and a bill of Rs.2,37,641/- was given to Shree Krishna Marbles Works.
That Karshan Hirji Bhudiya was a friend of the complainant Balram Jayantilal Varu (Mistry) and both of them went to meet the accused who told them to pay 30% of the amount of bill i.e. Rs.71,000/- and on payment of 30% of the bill amount, the re-connection would be Page 2 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined done. That at that the time the accused demanded for an illegal gratification of Rs.10,000/- and after bargaining, an amount of Rs.7,000/- was decided which was to be paid on 29.06.2000 at around 09:00 -09:30 AM at the G.E.B. office in Madhapar. That the complainant and Karshanbhai Hirjibhai Bhudiya did not want to pay the amount and hence they went to ACB Police Station, Bhuj-
Kachchh on 29.06.2000 and First Information Report being I-C.R. No. 5 of 2000 was registered under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. That, the trap laying officer called the panch witnesses and after explaining the entire procedure of Anthracene Powder and the Ultraviolet Lamp, a trap was laid and in the presence of the panch witnesses, the accused demanded for the said amount, accepted the same and the tainted currency notes were recovered from the accused on 29.06.2000 at 13:25 hours. That the Investigating Officer investigated the offence and the charge sheet was filed before the Sessions Court, Bhuj-
Kachchh, which came to be registered as a Special Case (ACB) No. 11 of 2001.
2.2] That the accused was duly summoned and after following the procedure of Section 207 of the Code of Criminal Procedure, 1973, a charge was framed against the accused at Page 3 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined Exh: 5 C and the statement of the accused was recorded at Exh: 6 / C wherein the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record.
2.3] The prosecution has produced the following oral and documentary evidence to bring home the charge against the accused;
ORAL EVIDENCE Sr. Prosecution Name of the Witness Exh:
No. Witness 1 1 Complainant Balram Jayantilal Varu 9 2 3 Pravinbhai Ramanlal Kansara 16 PANCH WITNESS Sr. Prosecution Name of the Witness Exh:
No. Witness 1 2 Dilip Kharashankar Acharya 11 POLICE WITNESS Sr. Prosecution Name of the Witness Exh:
No. Witness 1 4 P.I. Shree Ashrafilal Babulal Yadav 22 2 5 Investigating Officer Shri Kalusinh S. 26 Rathod Page 4 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined DOCUMENTARY EVIDENCES Sr. Name of the Witness Exh:
No. 1 Complaint 10 2 Panchnama 12 3 Seizure Memo 13 4 Consent Letter 17 5 Letter written to the Executive Engineer, Bhuj 27 6 Service record of the accused 28 7 Office Order 29 8 Letter written to the A.C.B.Rajkot 30 9 Appointment order of accused 31 10 Appointment of order of accused 32 11 Transfer order of accused, order of Promotion 33 Office 12 Application given to G.E.B. by Jasuben Bhudiya 34 13 Agreement Deed written by Jasuben Bhudiya 35 2.5] After the entire evidence of the prosecution was taken on record and the closing pursis was filed by the learned Additional Public Prosecutor, the further statement of the accused U/s. 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused mainly denied all the evidence and has further stated that the electric connection of Shree Krishna Marble Works of Karshanbhai Hirjibhai Bhudiya was disconnected and the complainant was pressurizing the accused for re-connection of the Page 5 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined same but as he did not succumb to the pressure and had told him to pay the legal amount that was due, the complainant had a grudge against him and filed the false complaint against him. That the arguments of learned Additional Public Prosecutor and the learned Advocate for the accused were heard and the learned Trial Court by an order dated 24.07.2009 was pleased to give benefit of doubt to the accused and acquitted the accused under 235 (1) of the Code of Criminal Procedure, 1973.
2.6] Being aggrieved and dissatisfied with the said impugned order of acquittal, the appellant-State has filed the present appeal mainly stating that the learned Trial Court has not considered that the witnesses of the prosecution have fully supported the case of the prosecution and the demand, acceptance and recovery of the bribe amount has been satisfactorily proved by the prosecution beyond reasonable doubts.
That, the learned Trial Court has not considered that once the illegal gratification has been accepted by the accused, the presumption under Section 20 of the Prevention of Corruption Act would be attracted and it would be the duty of the accused to rebut the presumption by leading evidence. That the accused has not Page 6 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined led any evidence to rebut the presumption and has not explained as to how his hands came in contact with the anthracene powder. That the Investigation Officer has followed the due procedure and the competent authority has accorded proper sanction for launching the prosecution against the accused and when the factum of demand of illegal gratification has been proved by the prosecution and there is no major discrepancy in the deposition of the witnesses, the learned Trial Court ought to have appreciated the evidence properly and the impugned judgment is illegal, invalid and improper and the same deserves to be quashed and set aside. That the learned Trial Court has not appreciated the oral and documentary evidence property and the impugned judgment and order is perverse and the learned Trial Court has erred in acquitting the accused on the ground of benefit of doubt and hence the appeal must be allowed and the accused must be convicted for the said offence 3] Heard Mr. Bhargav Pandya, learned Additional Public Prosecutor for the appellant-State and learned advocate Mr. Jayesh A. Dave for the respondent-accused. 4] Learned Additional Public Prosecutor Mr. Bhargav Pandya has taken this Court through the entire evidence of the Page 7 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined prosecution and has vehemently argued that the complainant has fully supported the case of the prosecution and the complainant has clearly stated that the accused had demanded for the amount of Rs.10,000/- but after bargaining, the amount of Rs.7,000/- was settled for. That the amount was paid to the accused in the presence of the panch witness and on the day of the trap, the complainant and the panch witness had gone to the office of the accused but as there were other people, they could not immediately give the tainted currency notes to the accused. That, after some time, when once again they went in the chamber of the accused, the accused had told the complainant to place the amount in the rack and the complainant had placed the amount as stated by the complainant between the two files from where it was recovered. That, the panch witness has supported the case of the prosecution and even though, at the time of the acceptance, the panch witness was not in the room but he was standing outside of the room, he has witnessed the same and the recovery has also been made from the place at which the tainted currency notes were kept by the complainant. That, the competent authority has also given the valid sanction for prosecution and the trap laying Officer has fully supported the case of the prosecution but the Page 8 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined learned Trial Court has not considered the evidence of trap laying officer properly and has acquitted the accused merely considering minor contradictions. That the impugned judgment and order is perverse and bad in law and the same must be quashed and set aside and the accused must be convicted for the said offence. 4.1] Learned advocate for the accused Mr. Jayesh A. Dave has submitted that the impugned judgment and order has been passed by the learned Trial Court giving appropriate reasons and the entire evidence of the prosecution has been appreciated in a correct manner by the learned Trial Court. In the evidence of the prosecution, it is on record that the complainant had a grudge against the accused and the complainant has stated that he wanted the electric connection restored without paying any amount and as the accused had insisted for payment of the amount, the complainant was not very happy to pay the amount. That, Shree Krishna Marble Works belonged to Karshanbhai Hirjibhai Bhudiya but the complaint has been filed by the present complainant i.e. Balrambhai Jayantilal Varu, who is in no way connected with Shree Krishna Marble Works. That, Karshanbhai Hirjibhai Bhudiya is doing the administration of Shree Krishna Marble Works, which Page 9 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined is in the name of Jasuben Hirjibhai Bhudiya and it is the say of the complainant that she has given a General Power of Attorney to the complainant. Moreover, in the evidence of the prosecution, it has come on record that at the time when the complainant and the panch witness went to meet the accused, there were many people in the room and it has come on record that the complainant has placed the amount in the drawer, which was in the room of the accused without the knowledge of the accused. That, no traces of the anthracene powder was found on the hands of the accused and the factum of the demand is not proved by the prosecution as the panch witness has categorically stated that the accused did not make any demand for any amount in his presence. It has also come on record that the panch witness was standing outside of the room and he has not witnessed the demand or the acceptance. Moreover, the sanction has been given in a very casual manner by the competent authority without inquiring into any police papers and the same is not proper and hence the impugned judgment and order has been passed after appreciating all the material on record and no order of interference is required and the appeal must be dismissed.
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NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined 4.2] Learned advocate for the respondent has relied on the following judgments in support of his case.
1. 1998 (1) GLH 924 in the case of Kanubhai Kantibhai Patel Vs. The State of Gujarat,
2. 1998 (1) GLH 943 in the case of Gopal Lal Ghusulal Chhipa Vs. The State of Gujarat,
3. 2007 (3) GLH 619, in the case of Ganpati Sanya Naik Vs. State of Karnataka
4. AIR 2009 SC 1872, in the case of State of Rajasthan V. Mohan Lal, 5] Before dissecting the evidence adduced by the prosecution on record of the learned Trial Court, it is essential to reiterate the cardinal principles of criminal jurisprudence as settled by the Honourable Apex Court in a catena of decisions, namely that in a criminal trial the prosecution is required to prove their case against the accused beyond reasonable doubts and the prosecution cannot derive any benefit from the weakness of the defense. Moreover, in a criminal trial, the accused is presumed to be innocent and unless the prosecution proves beyond reasonable doubts, the guilt of the accused, he cannot be convicted. The third cardinal principle is that the onus of burden of proof never shifts Page 11 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined from the prosecution.
5.1] In cases under the Prevention of Corruption Act, the Honourable Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver 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, Page 12 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined 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.
(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. Page 13 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024
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(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."
6] In view of the above settled principles of law with regard to acquittal appeals under the Act, the evidence led by the prosecution is required to be dealt with and in the instant case, the prosecution has examined the complainant, Prosecution Witness No. 1 Balram Jayantilal Varu (Mistry) at Exh: 9. The witness is the complainant and he has stated that he has an electric shop in Madhapar and in the year 2000 in the month of June, the GEB checking squad had come to Madhapar village and checked various electric meters and the electric meter of Shree Krishna Marbles Works belonging to his friend Karshanbhai Hirjibhai Bhudiya was also checked and as theft of electricity was detected, the electric connection was disconnected by the officers of G.E.B. That his friend Karshanbhai Hirjibhai Bhudiya came to meet him and told him that his electric connection was disconnected and the meter was removed as the theft of power was detected and a bill of Rs.2,37,000/- was given. That as the complainant is a social worker and was going to meet the accused on a number of occasion, he had told his friend that they would go to the GEB Page 14 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined office. That when he and his friend went to GEB office at Madhapar, they met the accused and the accused had told them to meet one Khira Maharaj who had prepared the bill as per the checking sheet. That they requested the accused to reduce the bill and at that time, the accused told them to pay the amount of 15% of bill and they paid 15% amount of the bill on the next date. That the accused had told them that the connection would be connected on the next date but after four to five days, the electric connection was not connected and once again they met the accused, who told them to pay 30% of bill amount. That they paid the remaining 15% of the amount i.e. Rs.31,600/- and showed the bill to the accused who told them that the electric connection would be connected. That once again, they met the accused, as the re-connection was not made and the accused at that time, demanded the amount to give it to the superior officer and an amount of Rs.10,000/- was demanded and after bargaining, they settled for an amount of Rs.7,000/-. That Karsanbhai did not want to pay the bribe amount of Rs.7,000/- and hence they went to the ACB office at Bhuj and met Police Inspector Mr. Yadav and he filed the complaint, which is produced at Exh:10. That on 26.09.2000, they went to the ACB office and the panch witness were called and the entire procedure Page 15 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined of anthracene powder and the ultra violet lamp was explained to the complainant and the panch witnesses and the trap was laid and they went to meet the accused. That the complainant along with panch witness Dilipbhai Kharashankar Acharya went to the chamber of the accused but there were many other customers in the room. That at that time the accused demanded for the amount and asked him whether he had brought the money and the accused told him to sit for 10 to 15 minutes. That thereafter the accused left room with the customers and did not return for more than half and hour so the complainant came out and sat with the panch witness near a tree and at around 11:30 when the accused came back to the chamber, the complainant went in the chamber with the accused and the accused told him to place the amount of illegal gratification in the second drawer of the cupboard in between the files. That at that time, the panch witness was standing outside of the chamber near the door. That the complainant came out and gave the predetermined signal and the members of the raiding party came and the amount of Rs.7,000/- was recovered from the drawer as placed by the complainant. In the cross-examination of the complainant, it has come on record that Karsanbhai is managing the factory of Jasuben and the Page 16 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined complainant used to frequently visit the GEB office as he was a social worker. That they did not want to pay the amount of bill and if the electric connection was reconnected, they did not have a dispute. That the accused did not have the power to reconnect the electric connection and when he went in the chamber of the accused, there were 8 to 10 persons surrounding the table of the accused. That the accused did not have any time to talk to him and when he went for the first time in the chamber of the accused, the accused was not present in the chamber. That on that day he entered in chamber of the accused for three times and on the third time, when he entered the chamber with the accused, there were other customers in the room.
6.1] The prosecution has examined Prosecution Witness No. 2 Dilipbhai Kharashankar Acharya at Exh:11 and he is the shadow witness, who had accompanied the complainant on the day of the trap. The witness has deposed and stated as per the case of the prosecution that he was called by the trap laying Officer to the ACB Police Station on 28.06.2000 and he went to ACB Police Station Bhuj on 26.09.2000 at 07:00 am where he met the complainant and his friend Karshanbhai and the Trap Laying Page 17 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined Officer showed him the complaint produced at Exh; 10 and the entire procedure of Anthracene Power and UV lamp was explained to them. That necessary instructions to the complainant and both the panch witnesses was given by the Trap Laying Officer and they left from the ACB office to go to Madhapar. That he went along with the complainant to the GEB office and the complainant had gone in the chamber of the accused but he was standing outside of the chamber near the door where the accused demanded for the amount and told the complainant to place it in the second drawer in the rack and after he gave the predetermine signal, the ACB staff came and at that time the complainant was inside the room. That the tainted currency notes were recovered from the place where it was kept by the complainant. In the cross examination, the panch witness has categorically stated that when he went with complainant to the GEB office, the accused did not make any demand for any amount and the place where the electric connection was disconnected did not belong to the complainant. That the complainant and his friend were not happy as they had paid 30% of the amount but the electric connection was not reconnected and he does not know what the complainant did when the went in the chamber of the accused. That he was standing Page 18 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined outside of the chamber and he does not know what conversation had taken place between the complainant and the accused. That the predetermined signal was made by him and not the complainant and the complainant did not come out to make the predetermine signal and the accused did not get up from his chair to accept the tainted currency notes.
6.2] The prosecution has examined Prosecution Witness No. 3 Pravinbhai Ramanlal Kansara at Exh: 16 and this witness is the Engineer (distribution) and the competent authority, who has given the sanction for prosecution of the accused, which is produced at Exh: 17. During the cross examination, the witness has stated that before granting the sanction for prosecution he has not made any independent inquiry and has not made any inquiry as to whether the police report is correct or not. That as the police had asked for sanction for prosecution of the accused, he believed that it must be given and had granted the sanction for prosecution of the accused. 6.3] The prosecution has examined Prosecution Witness No. 4 Ashrafilal Babulal Yadav at Exh: 22 and this witness is the trap Laying Officer, who has fully supported the case of the prosecution and has narrated in detail the entire procedure that was Page 19 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined undertaken after the filing of the complaint till the trap was successful. During the cross examination, the witness has stated that when the complainant came to file the complaint, there was no work pending of the complainant with the accused and at the time of the trap after the predetermined signal was given, when he reached into the office of the accused, there were two persons present there and one was an employee of the GEB and other was the customer of the GEB.
6.4] The prosecution has examined Prosecution Witness No. 5 Kalusinh S. Rathod, at Exh: 26 and the witness who is the Investigating Officer, who has filed the charge sheet before the learned Trial Court.
7] On meticulously dissecting the entire evidence of the prosecution, it has emerged that the electric connection that was disconnected of Shree Krishna Marble Works belonged to Jasuben Karshanbhai Bhudiya and her husband Karshanbhai Khimjibhai Bhudiya was handling the business and due to theft of electricity, the connection was disconnected. That the accused had not disconnected the connection and no application to restore the Page 20 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined connection was made as 30% of the amount was paid. That on the date of trap, when the complainant, the panch and the shadow witness went to Chamber of the accused, there were 8 to 10 persons surrounding the table of the accused, which was in a room that was 13 ft X 10 ft in size and the accused did not have time to talk with the complainant and his mind was occupied in other customers. That the complainant had also entered into the room when the accused was not present in the room and on that time, the complainant had entered into the chamber of the accused for almost three times. That the panch witness has not heard the demand that was made by the accused and except for the bald allegation made by the complainant that the demand was made. There is no other independent corroborative evidence to prove that there was any demand made by the accused on the day of the trap or prior to the trap. That the panch witness who is the shadow witness was standing outside of the chamber of the accused near the door and the complainant had gone inside and the panch witness has categorically stated that no demand for illegal gratification was made by the accused in his presence. As per the case of the prosecution, the demand of illegal gratification was made in the presence of Karshanbhai Bhudiya, at the time when Page 21 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined the complainant and Karshanbhai Bhudiya went to meet the accused for re-connection of electric connection at Shree Krishna Marble Works but the said Karshanbhai Bhudiya has not been examined by the prosecution before the learned Trial Court. There is also a contradiction about who gave the predetermined signal and the complainant says that he had come out of the chamber of the accused and gave the predetermined signal whereas the panch witness Dilipbhai Kharasankar Acharya has submitted that he gave the predetermined signal. As far as the recovery of tainted currency notes is concerned, the amount is recovered from the drawer in the rack between the two files in the office of the complainant but there was ample evidence on record to prove that the complainant had gone into the chamber of the accused on three occasions on the day of the trap and at that time, on one occasion, the accused was not present in the chamber. That there were other person also present in the chamber of the accused including employees of GEB and other customers and when the Trap Laying Officer, Prosecution Witness No. 4 Ashrafilal Babulal Yadav came into the chamber of the accused, one employee and one customer were also present in the office but they have not been examined by the prosecution before the learned Trial Court Page 22 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined even though they were independent witness. It has also come on record that no Ultra violate test was done in the office of the accused and there is no evidence on record to clearly show who removed the tainted currency notes from the drawer in the rack where it was placed between the two files. In fact, in the entire evidence there is enough circumstances to suggest that the amount was placed in the draw of rack that was in the office of the accused without the knowledge of the accused by the complainant, who had a grudge against the accused.
8] The learned advocate for the accused has relied on the judgment of the Honourable Apex Court in State of Rajasthan v. Mohanlal (Supra) and in paragraph 34, which is observed as under:-
From the above decisions, in Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC 415), the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out:-
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong Page 23 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 9] In view of the above settled position of law and on meticulous re-appreciation of the evidence upon which the learned Trial Court has acquitted the accused, the infirmity in the evidence of the prosecution have come to the surface and there is no iota of evidence to prove that there was any demand made by the accused at any time that is during the trap or even prior to the Trap for illegal gratification of the amount of Rs.7,000/-. There is no evidence about the interest of the complainant as admittedly the premises where the disconnection of electric connection had taken place due to the theft belonged to Jasuben Karshanbhai Bhudiya Page 24 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined and the premises were managed by Karsanbhai Khimjibhai Bhudiya, who had accompanied the complainant to the ACB Office at Bhuj but for reasons best know to the complainant, the complaint was not given by the said Karsanbhai Khimjibhai Bhudiya. That the factum of demand has not been proved and admittedly there were many people in the room but no independent witness has been examined by the prosecution. That the tainted currency notes were found from the drawer in the rack in the chamber of the accused and there is ample evidence on record to show that there was sufficient scope for the complainant to place the tainted currency notes in the office of the accused without the knowledge of the accused. That no traces of anthracene powder was found on the hands of the accused and the demand and acceptance has not been proved beyond reasonable doubts by the prosecution. In view of the settled position of law and the decision in the decisions of Neeraj Dutta (Supra) and appraisal of the evidence produced by the prosecution, the reasons assigned by the learned Trial Court are just and proper and hence, this Court is of the considered opinion that the learned trial Court was completely justified in acquitting the accused of the charges leveled against him. The findings recorded Page 25 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024 NEUTRAL CITATION R/CR.A/2086/2009 JUDGMENT DATED: 26/02/2024 undefined by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 10] This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order dated 24.07.2009 passed by the learned Special Judge, Kachchh-Bhuj in Special Case (ACB) No. 11 of 2001 is hereby confirmed. Bail bonds stand canceled. 11] Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) VVM Page 26 of 26 Downloaded on : Fri Mar 22 20:43:21 IST 2024