Gujarat High Court
State Of Gujarat vs Naranbhai Chandubhai Tabiar on 7 June, 2024
NEUTRAL CITATION
R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 210 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
NARANBHAI CHANDUBHAI TABIAR
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Appearance:
MS. MAITHILI MEHTA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/06/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant-State under Section 378(1)(3) of the Criminal Procedure Code, 1973 (hereinafter referred to as the "Code") against the judgment Page 1 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined and order of acquittal dated 31/01/2007 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Kheda at Nadiad (herein after referred to as 'the learned Trial Court')in Special (ACB) Case No. 14 of 2003, whereby the respondent was charged and tried by the learned trial Court for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as 'the Act') and at the end of the trial, the learned trial Court was pleased to acquit the respondent for the offence with which he was charged. 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 Unarmed Assistant Sub Inspector, buckle No. 786 in Atarsumba Police Station, District:
Kheda and was a public servant. That the complainant Badarsinh Mathursinh Solanki residing at Malvan Tabe Chelavat, Taluka Kathlal, District: Kheda had a younger brother Fatehsinh, whose daughter had eloped with one Natubhai Page 2 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined Javanbhai Zala of village Kosam on 22/05/2003. That Fatehsinh, the brother of the complainant Badarsinh Mathursinh Solanki had filed a complaint under Sections 363, 366 and 506 of the India Penal Code, 1860 (herein after referred to as "the IPC") which was registered as I-C.R.No. 20 of 2003 in the Atarsumba Police Station and the accused was the Investigating Officer of said offence. That the accused called the complainant on 17/06/2003 to the Atarsumba Police Station and demanded for an amount of illegal gratification of Rs. 1,000/- and after bargaining the amount was fixed at Rs.500/-. That the complainant did not want to pay the amount of illegal gratification of Rs.500/- and hence the complainant went to the ACB Police Station Kheda @ Nadiad and filed the complaint under Sections 7, 13(1)(d) and 13(2) of the PC Act, which was registered at C.R.No. I- 8 of 2003 on 08/06/2003.
2.2] That the Trap Laying Officer called the panch witnesses and after the demonstration of the phenolphthalein powder and solution of sodium carbonate was conducted in the presence of the complainant and the panch witnesses and the characteristics of phenolphthalein powder and solution of Page 3 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined sodium carbonate was explained to the complainant and the panch witnesses, the complainant gave five currency notes of the denomination of Rs.100/- each which were smeared with the phenolphthalein powder and placed in the left shirt pocket of the complainant. That necessary instructions were given by the Trap Laying Officer to the complainant and the panch witness and the complainant, the panch witness and the members of the raiding party left in government vehicle No.GJ-1-G-3365 and GJ-1-G-4478 and went from Kapadvanj Road to Mahudha, Kathlal, Dasalvada Cross roads to Antroli and Atarsumba. 2.3] That part 1 of the panchnama was drawn on 18/06/2003 from 8 am to 9:45 am and they reached at Atarsumba Police Station. That the complainant and the panch witness went walking from Atarsumba bus stand to Atarsumba Police Station and found that the accused had gone in the government vehicle to Vaghavat. That the complainant and the panch witness returned to the Trap Laying Officer and they decided to wait for the accused to return. That the complainant and the panch witness went and waited near Atarsumba Police Station and at around 13:30 hours, a white colour government Page 4 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined jeep came and halted near the complainant and the panch witness. The accused who was in plain clothes came towards the complainant and the panch witness and demanded for the amount of illegal gratification and the complainant took the tainted currency notes from his left shirt pocket with his right hand and gave it to the accused, who accepted it with his right and placed it in his shirt pocket. That the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red-handed. They took the accused to the Atarsumba Police Station where the test of solution of sodium carbonate was done and the tainted currency notes were recovered from the accused by the panch No. 2 and the panchanam was drawn.
2.4] The Investigating Officer recorded the statement of the connected witnesses and collected the necessary documentary evidences and after the order of sanction for prosecution was received, a charge sheet came to be filed before the Sessions Court, Kheda @ Nadiad, which was registered as Special ACB Case No. 14 of 2003. 2.5] The accused was duly served with the summons and Page 5 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined the accused appeared before the learned trial Court, and after the procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 8 was framed against the accused and the statement of the accused was recorded at Exh. 9, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record.
2.6] The prosecution has examined 6 witnesses and has produced 19 documentary evidence in support of their case. After the learned APP filed the closing pursis at Exh: 70 the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and after the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order dated 31/01/2007 was pleased to acquit the accused from all the offences.
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 passed by the learned Trial Court is contrary to law, Page 6 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined evidence on record and principles of justice. That the learned Trial Court has committed an error in acquitting the accused. That the evidence of the prosecution on record has not been properly evaluated and the learned trial Court has committed an error in not believing the story of the prosecution when the same was proved beyond reasonable doubts by leading cogent, reliable and unimpeachable evidence. That the prosecution has produced the evidence of the complainant, panch witness and the Trap Laying Officer, who have all deposed and have fully supported the case of the prosecution and the prosecution has also produced the evidence of Circle Police Inspector, Petlad, who had taken over the investigation of the offence in question. That the prosecution has also produced the evidence of FSL Analysis Officer and has proved that the solution of sodium carbonate contained traces of phenolphthalein but the learned trial Court has erroneously come to a conclusion that the muddamal currency notes were not recovered from the possession of the accused and has not believed the evidence of the prosecution. That the prosecution has proved all the ingredients of demand, acceptance and recovery and the Page 7 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined learned trial Court has not appreciated that nothing has emerged from the cross examination of the witnesses to render their deposition doubtful or unbelievable and hence the impugned judgment and order of acquittal deserves to be quashed and set aside by this Court.
4] Heard learned APP Ms. Maithili Mehta for the Appellate- State. Though served the respondent has not appeared either in person or through an advocate. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5] Learned APP Ms. Maithili Mehta has taken this Court through the entire evidence of the prosecution and has submitted that the prosecution has produced the evidence of the complainant, the panch witness and the Trap Laying Officer and there are no contradictions in their evidence. That even though, the complainant has turned hostile, the portion of the evidence that supports the case of the prosecution must be considered and it is proved that the brother of the complainant Fatehsinh had filed a complaint at Atarsumba Police Station, which was Page 8 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined registered as I-C.R.No. 20 of 2003 under Sections 363, 366 and 506 of the Indian Penal Code, 1860 as his daughter had eloped with one Natubhai Javanbhai Zala of village Kosam on 22/05/2003. That the accused was the Investigating Officer but the accused was not arrest the said Natubhai Javanbhai Zala and the accused had demanded for the amount of Rs.500/- as illegal gratification to go and investigate the matter and arrest the said Natubhai Javanbhai Zala. That the demand made by the accused has been clearly established and thereafter the panch witness has fully supported the case of the prosecution and in the presence of the panch witness, the accused had accepted the tainted currency notes and he was caught red-handed. That the panchnama has been proved from the evidence of the panch witness as also the Trap Laying Officer and the hand-wash of the accused, which was taken in Atarsumba Police Station had turned pink and the hand wash was sent to the FSL, which showed that the hand wash contained traces of phenolphthalein. That prosecution witness No. 6 Markandbhai Kantilal Pathak, had deposed about this facts and the prosecution has proved the case beyond reasonable doubts but the learned trial Court has Page 9 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined relied on minor contradictions and omissions and has wrongly come to a conclusion that the eye witnesses, who were the driver of the police jeep and another constable present at the spot, have not been examined. Moreover, the learned trial Court has also held that Fatehsinh- the brother of complainant Badarsinh Mathursinh Solanki has not been examined and has wrongly concluded that the prosecution has not proved the case beyond reasonable doubt and hence learned Additional Public Prosecutor Ms. Maithili Mehta has urged this Court to allow the appeal of the appellant and set aside the impugned judgment and order of acquittal .
6] Before adverting to the facts of the case on hand, it would be apt to refer to the scope of the learned appellate Court in acquittal appeals and the Apex Court in Criminal Appeal No.1167 of 2018 in the case of Ballu @ Balram @ Balmukund and Another Vs State of Madhya Pradesh in para Nos. 8 and 9 has observed thus:-
"8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.Page 10 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024
NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined
9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below:
"13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence.
A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
6.1] 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: Page 11 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024
NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined "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, the prior demand for illegal Page 12 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1) (d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and intern there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and
(i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(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 Page 13 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
7] In view of the above settled principles of law in acquittal appeals and the settled principles in cases under the PC Act in the cases of Neeraj Dutta (Supra), the Appellate Court must reevaluate the entire evidence produced by the prosecution on record and the evidence is reappreciated and minutely dissected. To bring home the charge against the accused, the prosecution has examined prosecution witness No. 1 Badarsinh Mathursinh Solanki at Exh:1. The witness is the complainant and he has stated that his brother Fatehsinh had a daughter viz. Saroj, who was 20 years old and she had eloped Page 14 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined with one Natubhai of village Kosam in the year 2003. That, the complaint was registered at Atarsumba Police Station and the accused was the Investigating Officer and though many days had passed, the accused was not investigating the case. That the complainant had gone to Atarsumba Police Station and met the accused and at that time the accused had demanded for an amount of illegal gratification of Rs.500/- and stated that if he would give the amount, his daughter would be found. That as he did not want to pay the amount of illegal gratification, he had gone to the ACB Police Station, on 18/06/2003 and filed the complaint, which is produced at Exh:12. That the panch witnesses were called and he had given five currency notes of the denomination of Rs.100/- each and the ACB staff had taken one bottle from the cupboard and another bottle with colour and white powder was applied on both sides of the notes and the bottle was kept back in the cupboard. That the notes with the powder were kept in his pocket and he, the panch witnesses and the members of the raiding party went in a private jeep to Atarsumba. That they went from Nadiad to Mahudha, Kathlal, Dasalvada Cross roads to Antroli and he does not know what Page 15 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined light was placed on the notes but it was pink in colour. From Antroli, they went to Singali and to Atarsumba and he and the panch witness went to the Atarsumba Police Station. That the accused was not in the police station and they were told that he had gone to Vaghavat village and they came back to the Trap Laying Officer and told the Trap Laying Officer that the accused was not in the police station. That they went towards Vaghavat village and waited and after half an hour, the accused came in the government vehicle from Vaghavat village. That, the accused saw the complainant and halted the jeep and got down from the jeep and came towards the complainant and asked whether he had brought Rs.500/- as he was told and the complainant took the currency notes from his shirt pocket with his right hand and gave to the accused and the accused took the money with his right hand and placed it in his left shirt pocket. The accused told him that tomorrow they would go to look for Saroj and he was going towards his vehicle, the panch witness gave the predetermined signal and the members of the raiding party came and caught the accused. That they took the jeep and the accused to the PSI office and a solution of soda was Page 16 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined prepared and the hands of the accused were washed and the solution turned pink. That when the amount was recovered from the accused he was sitting outside and he does not know where the amount was kept. That the panchnama was drawn and he had gone home. This witness has not supported the case of the prosecution and has been declared hostile and has been cross examined at length by the learned APP.
During the cross examination by the learned advocate for the accused, the witness has stated that the complaint was filed by his brother Fatehsinh and he had not gone with Fatehsinh to file the complaint. That at the time of the incident, Saroj was aged 20 years but his brother had mentioned the age of Saroj as 17 years in the complaint. That Saroj was talking to one boy named Natubhai and before the incident, there was a Garba of Goddess at the house of Jesangji Ratnaji. That Amrut i.e. the elder son and Natubhai had a verbal altercation and physical assault at the time of the Garba at Jesangji place and after his daughter Saroj eloped, they had gone to village Kosam and inquired from Natubhai. That Natubhai was present and the complaint was being investigated by the accused but the Page 17 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined accused had not arrested Natubhai. That he himself had gone to the accused and had not taken Fatehsinh when he had gone to meet the accused. That he had asked the accused why he was not investigating the case and the accused had stated that he was investigating the matter and they were falsely implicating Natubhai in the matter. That after this conversation, he had gone to the ACB office. That, when he went to meet the accused, the accused had told him not to teach him how to investigate the matter and he felt insulted. That he was pressurizing the accused to arrest Natubhai and the accused was insisting that Natubhai was not involved in the offence and they unnecessarily harassing Natubhai. That he wanted that the Investigating Officer should be changed and if another Investigating Officer was appointed, he would arrest Natubhai. That he had filed an application and thereafter the investigation was handed over to the Circle Police Inspector and one Bharat @ Tinu Mohanbhai Parmar, residing at Vardari was arrested. That the Circle Police Inspector did not arrest Natubhai. That he had gone alone to the ACB office and after listening to the details, he was asked to wait outside and thereafter was called inside the office and Page 18 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined made to sign on some papers. That when the accused came, Khumansingh and the driver were seated in the jeep and he had raised his hand and halted the jeep. That after the trap, no test was done on his hands and there was one vessel in which they all had washed their hands.
7.1] The prosecution has examined Prosecution Witness No. 2 Sabirhusen Mahebubsa Afdal at Exh: 20 and the witness is the panch witness, who has stated that he had gone to the ACB Office Nadiad on 18/06/2003 at 08:00 am along with the other panch witness Naginbhai M. Patel. This witness has fully supported the case of the prosecution and has narrated in detail all the events that had taken place from the time he and the other panch witness Naginbhai M. Patel went to the ACB Police Station and till the trap was successful. The witness has stated that that while they were waiting at the bus stand between 11:45 am and 01:10 pm, a white colour jeep came with a person in plain clothes sitting inside and the plain clothes person got down and white colour came towards the jeep. That he asked the complainant about the amount of Rs.500/- and the complainant stated that he had brought the same and the Page 19 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined accused took it and kept it in his left shirt pocket. That the accused turned and was going towards the jeep when the complainant gave the predetermined signal and the driver of the jeep was Chhaganbhai Dayabhai Solanki and Khumansinh Abhesingh Solanki Armed Police Constable, Atarsumba Police Station were also in the Jeep. That the jeep along with the accused was taken to the Atarsumba Police Station and the test was done at the Atarsumba Police Station and the tainted currency notes were recovered by the panch No. 2 from the shirt pocket of the accused. That the panchnama was written at Atarsumba Police Station. During the cross examination by the learned advocate for the accused, the witness has stated that no test of filter paper was done to test whether there was any phenolphthalein powder on the filter paper. That the same filter paper that was used at the ACB Police Station were taken along with them and he had not given the predetermined signal but the predetermined signal was given by the complainant. That Chhaganbhai Dayabhai Solanki Atarsumba Police Station and Khumansinh Abhesing Solanki, Armed Police Constable, Atarsumba Police Station were present in the Jeep and no test Page 20 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined was conducted at the place where the trap was successful. That at the place of trap, there was a tea stall and other small shops and no writing work was done at the place of the trap. That the tainted currency notes were not recovered from the pocket of the accused at the spot but were recovered at the police station and the panch No. 2 had taken the currency notes and kept them in his hands.
7.2] The prosecution has examined prosecution witness No. 3. Shashikant Shantilal Trivedi at Exh; 38. This witness is the competent authority who had granted the order of sanction for prosecution, which is produced at Exh: 39 and the witness has supported the case of the prosecution. During the cross examination by the learned advocate for the accused, this witness has stated that the notes were placed by his officer and the draft sanction was sent along with the papers by the ACB office.
7.3] The prosecution has examined prosecution witness No. 4 Manojbhai Khimjibhai Limbat at Exh; 44 and the witness is the Trap Laying Officer who has fully supported the case of the prosecution and has narrated in detail all the events that Page 21 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined had unfolded from the time that the complainant came to the ACB Police Station and the day when the trap was arranged till the trap was successful. During the cross examination by the learned advocate for the accused, the witness has stated that he has not conducted any investigation to test the veracity of the complaint of the complainant and Fatehsinh-brother of the complainant Badarsinh Mathursinh Solanki did not come to him and did not call him. That no test of ultraviolet lamp was done at Nadiad and the predetermined signal was not given by the panch witness. That the Investigating Officer Arvindbhai Ranchhodbhai Patel was present when the Part I and Part II of the panchnama was being written and no test was done on the filter paper to verify as to whether the filter paper had any traces of phenolphthalein powder. That the filter paper that was used in Part II of the panchnama was taken from the same bunch of filter paper that was used in part I of the panchnama and none of the panch witness were Class-II employees. That he had selected the panch witnesses as they would obey his instructions and during the panchnama, the hand wash of no other persons besides the accused was preserved. That they had Page 22 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined to wait about two hours after they went to Atarsumba Police Station and no recovery was made at the place of trap and no test were conducted at the place of trap. That the solution was with him till the time that it was sent to the FSL and the panchnama does not mention as to where the alternative shirt for the accused was arranged from.
7.4] The prosecution has examined Prosecution Witness No. 5 Arvindbhai Ranchhodbhai Patel at Exh: 53 and the witness is the Investigating Officer, who had taken over the investigation from Prosecution Witness No. 4 Manojbhai Khimjibhai Limbat- Trap Laying Officer. This witness has stated that he has recorded the statements of the connected witnesses and after the order of sanction for prosecution was received, he had filed the charge sheet before the Sessions Court. During the cross examination by the learned advocate for the accused, the witness has stated that Fatehsinh- the brother of the complainant Badarsinh Mathursinh Solanki, driver Chhaganbhai Dayabhai Solanki and Constable Khumansinh have not been shown as witnesses in the charge sheet and at the time of the trap, there were carts and small shops at the place of the trap. Page 23 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024
NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined That no person from this place has been shown as a witness in the charge sheet and he was a member of the raiding party and was present from the time that the complaint was filed till the trap was successful. That he had taken over the investigation immediately after the trap and he did not have any written order of his superior officer to take over the investigation. That he had not recorded the statement of Manojbhai Khimjibhai Limbat- the Trapl Laying Officer and had recorded the statement of the other members of the raiding party. That, during investigation, it was found that the complainant Badarsinh Mathursinh Solanki had a grudge against the accused as the accused was not arresting Natubhai Zala.
That in the papers, it was mentioned that Natubhai Zala had eloped with Saroj- the daughter of Fatehsinh and during investigation, it was found that Chamanbhai Badarsinh son of the complainant had a verbal altercation and physical fight with the said Natubhai Zala. That the accused was not a Police Inspector and was not an authorized Officer for the investigation of Atarsumba Police Station I-C.R.No. 20 of 2003 which was filed under Section 363 and 366 of the IPC. That he Page 24 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined had not inquired as to why the test was not conducted at the place of the trap.
7.5] The prosecution has examined prosecution witness No. 6 Markandbhai Kantilal Pathak at Exh:69. The witness has stated that on 02/07/2003 while he was on duty at the FSL as a Scientific Officer, a parcel was received from ACB Police Station Kheda @ Nadiad and a glass bottle with 180 ML of pink solution was received, which was tested and as per the result it was found positive for phenolphthalein. That the report was sent along with a forwarding letter, and the witness has produced at Exh:64 to Exh: 66. During the cross examination by the learned advocate for the accused, this witness has stated that exhibit 64 does not bear his signature and he does not know as to how the specimen was preserved from 18/06/2003 to 02/07/2003. 8] On minutely appreciating the evidence of the prosecution, it is on record that the complainant has not fully supported the case of the prosecution and has been declared hostile. It has also come on record that the complainant had a grudge against the accused and the complainant was insisting that the accused arrest Natubhai Zala of village Kosam as the Page 25 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined complainant had a doubt that Natubhai Zala had eloped with the Saroj- the daughter of his brother Fatehsinh. It had also come on record that the complainant had himself gone to the Atarsumba Police Station and met the accused and had a heated argument with the accused wherein the accused had told him not to teach him how to investigate the offence. The accused had also told him that he was making false allegations against the said Natubhai Zala and the said Natubhai Zala was not involved in the said offence. It is also on record that the complainant had thereafter filed an application before the Circle Police Inspector and the investigation of Atarsumba Police Station I-C.R.No. 20 of 2003 was taken over by Circle Police Inspector and the charge-sheet was filed against Bharat @ Tinu Mohanbhai Parmar, residing at Vardari. That Natubhai Zala was not arrested in the offence and it appears that the complainant was making false allegation against the said Natubhai and as Chamanbhai son of complainant Badarsinh had a verbal altercation and physical fight with Natubhai Zala at the time of garba of the goddess at the house of Ratnaji Javanji, the complainant wanted the accused to arrest the said Natubhai Page 26 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined Zala. It has come on record that the accused was not present at the police station and as he had gone to village Vaghavat and they had to wait for one to one and half hours. That if the accused had in fact demanded the amount of illegal gratification, he would be present at the spot to accept the amount and the prosecution has not examined the driver- Chhaganbhai Dayabhai Solanki, unarmed ASI, buckle No. 786 in Atarsumba Police Station, District: Kheda and Khumansinh Abhesinh Solanki, Armed Police Constable, even though both of them were present at the time of the trap. That Fatehsinh the brother of complainant Badarsinh Solanki has also not been examined and if any demand regarding the investigation of the offence registered with Atarsumba Police Station, I-C.R.No. 20 of 2003 was to be made, it would be made by the accused to Fatehsinh the brother of Badarsinh Solanki. It is pertinent to note that two eye-witnesses, driver of the Jeep Chhaganbhai Dayabhai Solanki Unarmed an Assistant Sub Inspector and Khumansinh Abhesinh Solanki Armed Police Constable, Atarsumba Police Station are public servants and who were eye witnesses to the acceptance of the tainted currency notes by the Page 27 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024 NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined accused, have not been shown as witnesses in the charge sheet. It has come on record that the accused was not the Investigating Officer of the case and the accused was ASI but it appears that the complainant had a grudge against the accused and hence, filed the case against the accused. The demand has not been clearly established in the evidence of the complainant or the panch witness and it has come on record that no recovery of the tainted currency notes or the test of solution of sodium carbonate was done at the spot but as per the case of the prosecution, they were all brought to Atarsumba Police Station where the entire procedure was done. As per the case of the prosecution, the tainted currency notes were recovered in the Atarsumba Police Station by panch No. 2 and the solution of sodium carbonate was with the Trap Laying Officer from 18/06/2003 to 02/07/2003 and there is no iota of evidence as to how the solution of sodium carbonate was preserved. It has also come on record that there was one bowl in the Atarsumba Police Station where the hands of all persons present were dipped and there is no clear evidence of the exchange of tainted currency notes.
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NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined 9] As per the settled position of law, the prosecution has to prove the demand beyond reasonable doubt for establishing the charge against the accused for the offence under the PC Act and in the evidence of the prosecution, the evidence regarding demand of illegal gratification is not clearly forthcoming. The procedure after the acceptance is not clear and when the complainant has turned hostile and has not supported the case of the prosecution and the demand is not clearly established, the presumption under Section 20 of the PC Act would not be available to the prosecution. 10] This Court has perused the findings of the learned trial Court and has found that the learned trial Court has appreciated all the evidence and has given proper reasons for acquitting the accused and there is no perversity or illegality in the findings recorded by the learned trial Court. This Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned trial Court and finds no reason to interfere with the impugned judgment and order of the trial Court.
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NEUTRAL CITATION R/CR.A/210/2008 JUDGMENT DATED: 07/06/2024 undefined 11] In view of the above discussions, the present appeal is devoid of merits and resultantly the same is dismissed. The impugned judgment and order of acquittal dated 31/01/2007 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Kheda @ Nadiad in Special (ACB) Case No. 14 of 2003 is hereby confirmed.
12] Bail bond stands canceled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 30 of 30 Downloaded on : Fri Jul 05 20:44:11 IST 2024