Gujarat High Court
State Of Gujarat vs Mohanbhai Bhailalbhai Rohit on 21 August, 2024
NEUTRAL CITATION
R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2569 of 2009
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
MOHANBHAI BHAILALBHAI ROHIT
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Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
MR. JAVED S QURESHI(6999) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/08/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 10/09/2009 passed by the learned Special Judge & Presiding Officer, Fast Page 1 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined Track Court No. 2, Anand, (hereinafter referred to as the learned trial Court) in Special (ACB) Case No. 1 of 2007, whereby, the learned trial Court was pleased to acquit the respondent from the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act (herein after referred to as 'the P.C.Act'). The respondent is hereinafter referred to as 'the accused' as he stood in the original case, for the sake of convenience, clarity and brevity. 2] The brief facts that emerge from the record of the case are as under:-
2.1] That the accused was an unpaid candidate working in the Mamlatdar Office, Petlad, District: Anand in the year 2006 and was a public servant. That the complainant Sameerbhai Sulemanbhai Vora had a sub dealership of Reliance Gas and the main distributor was Shree Employees Cooperative Credit Consumer Society Ltd., Borsad. The complainant had a shop in Burhan Shah Shopping Centre, Shop No 11, and the complainant used to deliver the gas bottles and collect empty ones from consumers and a commission of ₹12/- was paid to the complainant. That notice was served to the complainant from Page 2 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined the Mamlatdar Office, Petlad as 28 bottles were seized from his shop, and the District Supply Office, Anand had levied a fine of ₹4709/-, which was paid by a challan by the complainant. The complainant sent his brother Yasitbhai with the challan, but the person in the office told Yasitbhai to send the complainant and when he went to the office on 18/04/2006 when he met the accused, who demanded an amount of ₹5000/- as illegal gratification and after bargaining, the amount was fixed at ₹1000/-. The complainant met the accused on 5/5/2006 and once again demanded the amount of illegal gratification of ₹1000/-
and as the complainant did not want to pay the amount of gratification, he went to the ACB Police Station, 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. 6 of 2006 on 7/5/2006. The Trap Laying Officer called the panch-witnesses and introduced the complainant to the panch witnesses and the complainant gave one currency note of the denomination of ₹500/- and five currency notes of the denomination of ₹100/- each and Head Constable- Devdadatbhai C. Patel was instructed to conduct the demonstration of phenolphthalien powder and Page 3 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined solution of sodium carbonate in the presence of the complainant and the witnesses and accordingly the demonstration was conducted and the characteristics of phenolphthalien powder and solution of sodium carbonate was explained to the complainant and the panch witnesses. All the currency notes were smeared with phenolphthalein powder folded and placed in the left shirt pocket of the complainant and the Trap Laying Officer gave necessary instructions to the complainant and the panch witnesses and panchnama Part-I was drawn. The panch witnesses and the Trap Laying Officer affixed their signatures on the panchnama Part-I and the trap was arranged. As decided, the complainant and panch No. 1 went on the scooter of the complainant and the panch No. 2 and other members of the raiding party went in a private Tata Sumo vehicle at about 1:25 pm from the ACB office, Nadiad and went from Pilag Chokdi to Bandhani Chokdi and reached Petlad and halted the vehicle in the market. The complainant and the panch No. 1 went to the Mamlatdar office and went to the 1st floor of the office and the panch No. 2 and other members of the raiding party stood scattered around. The complainant and the accused had a Page 4 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined conversation and the accused demanded the amount of illegal gratification and the complainant took the tainted currency notes from his right pant pocket and gave it to the accused, who accepted it with his right hand and placed it in his right side pant pocket. The complainant gave the predetermined signal and the members of the raiding party came and caught the accused. The necessary tests were done and panchnama Part II was drawn and the Trap Playing Officer and members of the raiding party come and panchnama part-II was drawn and the Trap Laying Officer and panch witnesses affixed their signatures on the Panchnama Part-II.
2.2] The Investigating Officer recorded the statements of the connected witnesses and collected the documentary evidences including the service record and the order of sanction for prosecution and charge sheet was filed before the learned Session Court, Anand, which was registered as Special (ACB) Case No. 1 of 2007.
2.3] That the accused was duly served with the summons from the learned trial Court and the accused appeared before the learned trial Court and after the due Page 5 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 5 was framed against the accused and the statement of the accused was recorded at Exh: 6. The accused denied all contents of the charge and the evidence of the prosecution was taken on record. 2.4] The prosecution has produced the following oral as well as documentary evidences in support of their case.
ORAL EVIDENCE
Sr. Prosecution Name of the witnesses Exhibits
No. Witness
1 P.W.No. 1 Samirbhai Sulemanbhai Vora Exh:11
2 P.W.No.2 Pinakinbhai Ishwarbhai Patel Exh:15
3 P.W.No.3 Abubakar Mohammadbhai Exh:26
Mansuri
4 P.W.No.4 Maulin Dhyutiben Roy Exh:30
5 P.W.No.5 Rajendrasinh Natvarbhai Rana Exh:38
6 P.W.No.6 Ganeshbhai Parshottambhai Patel Exh: 39
7 P.W.No.7 Samual Ishwarbhai Meckwan Exh:41
DOCUMENTARY EVIDENCE
Sr. No Particulars of the documents Exhibits
1 Challan of fine Exh:12
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NEUTRAL CITATION
R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024
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2 Complaint Exh:13
3 Papers of Gas Agency Exh:14
4 Order under Section 6 (A) Exh:18
5 Application of complainant Exh:19
6 panchnama Exh:20
7 Seizure Memo Exh:21
8 Seizure Memo Exh:22
9 panch Slip Exh:23
10 Copy of order Exh:24
11 Yadi Exh:27
12 Copy of Muddamal Exh:28
13 Receipt of muddamal Exh: 29
14 Order of permission to file charge sheet Exh:31
15 Termination Order Exh:32
16 Letter to Collector, Anand Exh:33
17 List of Unpaid Candidate Exh:34
18 Fowardling Letter to FSL Exh:35
19 FSL report Exh:36
20 FSL report, Chemistry Department Exh: 37
2.5] After the closing pursis was filed by the learned
Additional Public Prosecutor at Exh:42, the further statement of Page 7 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined the accused under Section 313 of the Code Of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence produced by the prosecution and after the arguments of the learned Additional Public Prosecutor and the learned Advocate for the accused were heard, the learned trial Court was pleased to pass the impugned judgment and order of acquittal.
3] Being aggrieved and dissatisfied with the judgement and order of acquittal, the Appellant-State has filed the present appeal mainly stating that the judgement and order of acquittal is contrary to law and evidence on record and the learned trial Court has erred in holding that the prosecution has not proved its case beyond reasonable doubts. The learned trial Court has failed to appreciate the evidences of the seven witnesses, who have been examined by the prosecution as also twenty documentary evidences produced on record in support of its case in true and proper perspective. The judgement and order has been passed without properly appreciating the evidence on record and the learned trial Court has committed an error apparent on record of the case by not properly appreciating the Page 8 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined available material on record of the case. The learned trial Court has failed to appreciate that the accused was working as a Clerk in the office at Petlad and had demanded the amount of ₹1000/- from the complainant for doing official work other than legal remuneration. The learned trial Court has not considered the various judgements of this Court and the Hon'ble Apex Court, and has failed to appreciate that the prosecution has proved all the ingredients of demand and acceptance of money by the accused but the learned trial Court has given undue importance to minor omissions and contradictions and disbelieved the evidence of the witnesses. The learned trial Court has not appreciated that marks of phenolphthalein powder were found on the hands of the respondent and the muddamal currency notes have been identified by the witnesses before the learned trial Court. The impugned judgement and order is illegal, invalid, improper, and deserves to be quashed and set aside. 4] Heard learned Additional Public Prosecutor Ms. C.M.Shah appearing for the appellant-State and learned advocate Mr. Nasir Syed for learned advocate Javed S. Qureshi for the respondent. Perused the impugned judgment and order of Page 9 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5] Learned Additional Public Prosecutor Ms. C.M.Shah has taken this Court through the entire evidence of the prosecution and has submitted that the prosecution has proved all the ingredients of demand, acceptance and recovery and the learned trial Court has relied on minor contradictions and omissions and has not appreciated the evidence properly. The complainant has stated that the accused had demanded the amount of gratification and on the day of the trap, in the presence of the panch witness, the amount was demanded and handed over. Though the complainant has been declared hostile but his portion of the evidence, which supports the case of the prosecution can be relied upon and the panch witness after he had refreshed the memory and supported the case of the prosecution. That in the entire evidence of the Trap Laying Officer and the Investigating Officer, the ingredients of acceptance and recovery have been approved and learned Additional Public Prosecutor has urged this Court to allow the appeal and set aside the judgement and order of acquittal and Page 10 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined find the respondent guilty for the said offence. 6] Learned advocate Mr. Nasir Syed for learned Advocate Mr Javed Qureshi has submitted that the prosecution has failed to prove the ingredients of demand and the complainant has not supported the case of the prosecution. There is no of evidence that the respondent was a Government Servant and that the respondent, at any point of time, was employed as a Government Servant in the Mamlatdar Office on the day of the trap. The complainant has turned hostile and the panch witness has not fully supported the case of the prosecution. The learned trial Court has appreciated all the evidence in proper perspective and has discussed each and every evidence in the well reasoned order and has passed the impugned judgement and order acquittal and no interference is required and learned advocate Mr. Nasir Syed has urged this Court to reject the appeal of the appellant.
7] At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 Page 11 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, Page 12 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined "13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."Page 13 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024
NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined 7.1] In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
7.2] The Apex Court, in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under: -Page 14 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024
NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined
(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 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, Page 15 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined 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.
(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."
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NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined 8] As per the settled principles of law, which are very well crystallized with regard to the interference of the Appellate Court in acquittal appeals, the evidence produced by the prosecution must be re-appreciated and only if there is perversity or illegality in the impugned judgment and order, an interference of the Appellate Court would be warranted. It is also settled that if two views are possible and the learned trial Court has taken a view of acquitting the accused, the Appellate Court should not interfere with the impugned judgment and order and it is open for the Appellate Court to re-appreciate the evidence.
9] To bring home the charge against the accused, the prosecution has examined Prosecution Witness No. 1 Samir Sulaimanbhai Vora at Exh:11 and the witness is the complainant, who has stated that in the year 2000, he was having the Sub Dealership of Reliance Gas and there were twenty eight empty bottles at his shop, which was situated in Burhan Shah, Shopping Centre, Shop No. 11 and the bottles were seized by the Mamlatdar Petlad. That he was fined an amount of ₹4709/- by the District Civil Supply, Anand and he Page 17 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined had paid the amount of fine by the Challan, which is produced at Exh:12. That he sent his brother Yasitbhai to the office and he was told to send the complainant, and the complainant went and met an uncle, who told the uncle that he would have to do some transaction and it would cost ₹5000/- to ₹6000/-. That he did not have the money and told him that he would pay ₹1000/- and he went to the ACB office and gave ₹1000/-. That no procedure was done in the ACB office and he had filed the complaint, which is produced at Exh:13. That powder was applied on the notes, and he took the scooter and went to Petlad, and there was another person with him, and they went to the Mamlatdar Office, and the others had followed in a Tata Sumo Car. That he went and asked the accused, what happened to his order and gave him the money and the accused gave the order after taking the signature of Narsibhai. That he had got the bottles released and everyone came and caught the accused and the procedure of test was done. That he does not know what happened in the panchnama and cannot say what procedure was done at the ACB office. The complainant has not supported the case of the prosecution and has been declared hostile and has been cross- Page 18 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024
NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined examined at a great length by the learned Additional Public Prosecutor but nothing to support the case of the prosecution has come on record.
During the cross examination by the learned advocate for the accused, the witness has stated that he had paid the amount of fine and the Mamlatdar office has no jurisdiction to pass any order against the order of the Collector. That his son was ill, and he felt that he would be harassed by the Mamlatdar Office and hence had filed the complaint with the ACB. The accused has no designation in the Mamlatdar Office, and when he went in the Mamlatdar office, the panch witness was behind him. That he went and gave the amount to the accused and at that time, the accused looked at him and asked him what was the money for and he told the accused that the uncle had told him to give the amount and at that time, the panch witness had climbed the stairs and reached near him. The panch witness did not hear the conversation between the accused and him and when the accused was caught, he felt that the uncle had demanded the money and the accused is caught. That when he left the ACB office at Nadiad, he checked the tainted currency Page 19 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined notes, whether they were properly kept in his pocket and with the same hands, he had taken the copy of the order, which was given by the accused, and the accused had taken the copy in his hands and checked it. The person, who had come with him as a panch witness had given the predetermined signal and the members of the raiding party rushed in the office. That he was standing at a distance, when the said amount was being recovered, and he does not know whether the amount was recovered from the pocket of the accused.
9.1] The prosecution has examined Prosecution Witness No. 2 Pinakinbhai Ishwarbhai Patel at Exh:15 and the witness is the panch witness, who has stated that he was called to the ACB Office to be a panch and had gone along with the other panch witness Kantibhai Javedbhai Patel. That he met the complainant Sameerbhai Sulemanbhai Vora and ACB Officer Mansuri and they were introduced to the complainant, and the complaint was read over to them. They had affixed their signatures on the complaint and they had not seen any other papers. That phenolphthalein powder and other items such as candle, Laq, filter Paper, etc., were shown to them and the characteristics Page 20 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined were explained and a bowl of water was brought and washing soda was sprinkled and the water became pink. The witness was not deposing properly and was taking a long time to answer the questions and hence with the permission of the learned trial Court, the witness was allowed to refresh his memory and the panchnama was shown to him and the witnesses thereafter supported the case of the prosecution and stated that the instructions were given to the complainant and the panch witnesses and the currency notes were smeared with phenolphthalein powder and folded and placed in the left pocket of the complainant. That he and the complainant went on scooter number GJ-23-C-5961 and the panch No. 2 and other members of the raiding party followed in Tata Sumo number GJ- 7-R-9054. That he reached the Mamlatdar Office in Petlad and met the accused and the accused told the person sitting on the table to give the order to release the gas bottle and Narsinhbhai, who was sitting on the next table, gave some papers from register, and the accused took the papers and went into the office of the Executive Magistrate and came with the papers and gave them to the complainant stating that the officer Page 21 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined had affixed his signatures. The documents were given to Narsiinhbhai and he made an entry in the register and gave it on the next table to enter it in the dispatch book. The papers were given to the complainant and his signature was taken in the dispatch book, and after the papers were given the accused asked the complainant for the amount and said that the work was done and to give. The complainant took the tainted currency notes from his left shirt pocket and gave it to the accused, who accepted it with his right hand and placed it in his right pant pocket. The complainant gave the predetermined signal and the members of the raiding party came and caught the accused and the necessary procedure was done, the panchnama was drawn and the amount was recovered from the accused.
During the cross examination by the learned advocate for the accused, the witness has stated that he did not see any other document except the complaint in the ACB Office, and when he and the other panch went to the ACB office, they were asked to sit in one room, and the complainant and Mansuri were in another room. That when they went to the Mamlatdar office, Page 22 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined they did not verify whether the Mamlatdar was present or not, and during the procedure, they found that the accused was not holding any post as an employee in the Mamlatdar office. That no amount was demanded from the time they went till the entry was made in the dispatch book and the witness has admitted that the accused did not say to give the money. That the complainant went to the gallery to give the predetermined signal and at that time he was in the room.
9.2] The prosecution has examined Prosecution Witness No. 3 Abubakar Mohammedbhai Mansuri at Exh: 26 and the witness is the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated all the details and procedure that he had undertaken from the time that the complainant came to the ACB office till the trap was successful. The witness has stated that they left Petlad and came to the ACB Office at Nadiad and the offence was registered at 03:45 hours and he had taken over the investigation and recorded the statements of the connected witnesses. That he had sent a Fax Message to the Collector, Anand for information about the unpaid candidates and as per the directions of the Additional Page 23 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined Director, ACB Vadodara, the further investigation was handed over to Police Inspector, ACB Police Station, Godhara.
During the cross examination by the learned advocate for the accused, the witness has stated that he does not know what was the conversation that had taken place between the complainant and the panch No. 1 and he had recorded the statement of the Mamlatdar after the trap. 9.3] The prosecution has examined Prosecution Witness No. 4 Maulin Dhyutiman Roy at Exh:30 and the witness is the Competent Authority, who has given the permission to file the charge sheet against the accused before the learned Sessions Court, which is produced at Exh: 31.
During the cross examination by the learned advocate for the accused, the witness has stated that he had read the entire documents, when the permission for filing the charge sheet was given and the permission for Section 13 was given, but the permission for Section 7 was not given. That in the entire documents, there is no document to show that the accused was receiving any salary from the government and prior to this case, no permission was given to file the charge sheet against an Page 24 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined unpaid candidate. That he read the letter of Collector, Anand, which is produced at Exh: 33, and he felt that the accused was not a public servant. As per the letter dated 19/06/2006 of Mamlatdar Petlad, the accused was relieved from duty and the accused was appointed as an unpaid candidate in 1986. That he did not have any document showing the extension of the services of the accused from 1986 to 2006.
9.4] The prosecution has examined Prosecution Witness No. 5 Rajendrasingh Natwarsingh Rana and the witness is the Investigating Officer, who has stated that he had taken over the investigation from Police Inspector Mansuri and had recorded the statements of the witnesses and on 15/05/2006 had handed over the investigation to Police Inspector Ganesh Parshottambhai Patel - Prosecution Witness No. 6. 9.5] The prosecution has examined Prosecution Witness No. 6 Ganeshbhai Parshottambhai Patel and the witness is the Investigating Officer, who has recorded the statements of some connected witnesses and after the order for permission to file the charge sheet was received, the charge sheet was filed before the learned Session Court.
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NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined 9.6] The prosecution has examined Prosecution Witness No. 7 Samuel Ishwarbhai Macwan at Exh:41 and the witness was working as the Mamlatdar, Petlad and has stated that the accused was working as an unpaid candidate and was not a public servant.
During the cross examination by the learned advocate for the accused, the witness has stated that he does not have information whether the appointment of an unpaid candidate is for a fixed period or not. That during his tenure from 1986 to 2007, he did not see any document where the permission for the unpaid candidate was extended. In his statement recorded before the Investigating Officer, he has stated that the accused was not receiving any government TA or DA and he had also stated that the accused was not given any appointment from the government and was not a public servant.
10] On minute appreciation of the entire evidence of the prosecution, the main point to be determined is whether the accused was a public servant and was employed by the government in the Mamlatdar office Petlad and as per the case of the prosecution, the accused was an unpaid candidate and Page 26 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined not a public servant. The unpaid candidate could only do the work of certified copies, work of supply and correspondence, and could prepare statements and do the work of dispatch. As per the evidence, the accused was appointed as an unpaid candidate in 1986, but there is no iota of evidence to show that the appointment of the accused was extended from that day. The information given by Collector, Anand at Exh:33 shows that the unpaid candidate can be appointed for a period of three months as per the resolution dated 30/09/1980 of the Revenue Department. As per the document produced at Exh:14, the accused was appointed as an unpaid candidate on 13/10/1986 and as per the document produced at Exh:32 by a letter dated 19/06/2009 of the Mamlatdar Petlad, but there is no document to show that the services of the accused were extended till the date of the trap and hence there is no evidence that the accused was a public servant on the day of the trap. In the entire evidence of the prosecution, the complainant has not supported the case of the prosecution, and the complainant has stated that when he went to the Mamlatdar Office, Petlad, he met one uncle, who told him that he would have to pay the amount but Page 27 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined that was not the accused, and hence the factum of demand has not been proved from the evidence of the complainant. The complainant has further stated that when the accused was caught, he felt that an innocent person is caught and the demand was made by the Uncle and not by the accused. Moreover, the panch witness has also expressed a doubt about whether the trap was to be on the accused or on some other person from the evidence of the complainant and the panch witness, there is no evidence regarding the procedure that was undertaken in the office of the ACB and whether the characteristics of phenolphthalein powder were explained to them and there is a contradiction in the currency notes also and the trial Court has discussed all the evidence in detail. 11] As per the settled principles of law, the Appellate Court would not ordinarily interfere with the order of acquittal unless after appreciation of the evidence, it appears that the judgement and order of the learned trial Court is vitiated by some manifest illegality and the conclusion arrived at by the learned trial Court is such that would not be arrived at by any reasonable person, and the decision is perverse. It is also settled Page 28 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined law that the presumption of innocence of the accused is strengthened by the judgement of acquittal and the golden thread, which runs through the web of administration of justice in criminal cases is that when there are two views possible, the view in favour of the accused must be adopted. An appellate court has full power to reappreciate and reconsider the entire evidence of the prosecution and would interfere only if there are substantial and compelling reasons that the judgement is perverse and illegal.
12] In view of the decision of the Apex Court in the case of Mallappa (supra), this Court is of the opinion that the learned trial Court has appreciated the entire evidence of the prosecution and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Page 29 of 30 Uploaded by VISHAL MISHRA(HC01088) on Thu Sep 05 2024 Downloaded on : Fri Sep 06 22:12:12 IST 2024 NEUTRAL CITATION R/CR.A/2569/2009 JUDGMENT DATED: 21/08/2024 undefined Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 13] The impugned judgment and order of acquittal order dated 10/09/2009 passed by the learned Special Judge & Presiding Officer, Fast Track Court No. 2, Anand in Special (ACB) Case No. 1 of 2007 is hereby confirmed. 14] Bail bond stands canceled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
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