Gujarat High Court
Dr Balvantdan Pabaji Khadia vs State Of Gujarat on 23 April, 2024
NEUTRAL CITATION
R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 850 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 see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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DR BALVANTDAN PABAJI KHADIA
Versus
STATE OF GUJARAT
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Appearance:
MR JAYESH A DAVE(253) for the Appellant(s) No. 1
MR MEHUL M MEHTA(3416) for the Appellant(s) No. 1
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 23/04/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Page 1 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined Special Judge, Fast Track Court No. 2, Surendranagar at Limbdi, (hereinafter referred to as "the learned Trial Court") in Special ACB Case No. 1 of 2006 on 05.05.2009, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act").
The appellant 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 working as an Orthopedic Surgeon, Class-I in the R.R. General Hospital, Limbdi at Surendranagar District and the complainant - Bharatbhai Shivubhai Dodiya wanted a disability certificate and he had met the accused for the disability certificate and the accused demanded an amount of Rs. 1300/- as illegal gratification. That the complainant did not want to pay the Page 2 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined amount of illegal gratification and went to the ACB Police Station at Rajkot and filed the complaint under Sections 7, 13(1)(2) and 13(2) of the PC Act which was registered as C.R. No. 1/2005 on 10.03.2005. That the Trap Laying Officer called the panch witnesses and the characteristics of phenolphthalein powder and solution of sodium carbonate was explained and the experiment was carried out in the presence of the panch witnesses and the complainant and the trap was arranged. That on 10.03.2005 at 18.35 hours, the accused demanded and accepted the illegal gratification of Rs. 1300/- in the presence of the shadow witness and after the predetermined signal was given, the members of the raiding party came and caught the accused red handed.
That the Investigating Officer recorded the statements of the connected witnesses and drew the necessary panchnamas and after the order of sanction for prosecution was received, the charge-sheet was filed before the Sessions Court, Surendranagar which was registered as Special Case No. 1/2004.
2.2. That the accused was duly served with the summons Page 3 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined and the accused appeared before the learned Trial Court and after the procedure under Section 207 of Code of Criminal Procedure, 1973 was followed, a charge was framed by the learned Trial Court at Exh. 6 and the statement of the accused was recorded at Exh. 7. The accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution produced the following oral evidence to bring home the charge against the accused.
Sr. No. PW Particulars Exh. 1. 1 Bharatbhai Shivubhai Dodiya 12 2. 2 Gelabhai Nathabhai Rathod 13 3. 3 Adhoksinh Dilipsinh Zala 33 4. 4 Babubhai Natwarlal Leuva 43 5. 5 Jabbarbhai hamirbhai Jalu 45 6. 6 Gulabsinh Dhaniramsinh Rajput 49 2.4 The prosecution also produced the following
documentary evidence to bring home the charge against the accused.
Sr. No. Particulars Exh. 1. Panchnama 14 2. Panchnama 15 Page 4 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined 3. Seizure Memo 16 4. Seizure Memo 17 5. Muddamaal Receipt 18 6. Muddamaal Receipt 19 7. Complaint 25 8. Order of sanction for prosecution 44 9. Letter to call panch. 50 10. Letter of authority to FSL 51 11. Receipt of FSL 52 12. Letter and report of FSL 53 13. Order under Section 165 of CrPC 54 14. Case paper of the complainant of R.R. 55 Hospital 15. Disability certificate 56 16. List of Case paper of R.R. Hospital 57 17. List of Case paper of R.R. Hospital 58 2.5 That after the closing pursis was submitted by the
learned APP at Exh. 60, 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 was pleased to convict the accused for the offences under Sections 7, 13(1)(d) and 13(2) of the PC Act and sentenced the accused to rigorous imprisonment of two years and fine of Rs. 2000/- and in default, simple imprisonment for one year.
3. Being aggrieved and dissatisfied with the said Page 5 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined judgement and order of conviction, the appellant has filed the present appeal mainly stating that the impugned judgement and order passed by the learned Trial Court is erroneous and against the weight of evidence and contrary to the well settled principles of criminal jurisprudence. That the entire trial is vitiated only on the ground that the prosecution has not been able to prove that there was a valid sanction accorded to prosecute the accused under Section 19 of the PC Act. That the sanction has come on record before the learned Trial Court in the evidence of PW4
- Babubhai Natwarlal Leuva who was serving as a Joint Secretary in the Department of Health and Family Planning, State of Gujarat and the witness has stated that he has not accorded the sanction. The witness, while he was serving as a Joint Secretary, had no power to appoint or remove the accused from service and on perusal of the order of sanction for prosecution which is produced at Exh. 44, it shows that the witness Babubhai Natwarlal Leuva has signed the same as a Joint Secretary, Department of Health and Family Planning. That the witness had no authority to accord the Page 6 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined sanction but has mechanically signed the order of sanction for prosecution. It is settled by the Hon'ble Apex Court that grant of sanction in matters of corruption is not an ideal formality or an acrimonious exercise but a very important and sacrosanct act. If sanction is not accorded in accordance with the law laid down by the Hon'ble Apex Court or the sanction is not accorded by the Competent Authorities then the entire trial would stand vitiated. That the learned Trial Court has also not considered that the original complainant has not supported the case of the prosecution and has been declared hostile. That as far as the demand aspect is concerned, the complainant has turned hostile and the complainant has come up with a new story of demand which is observed by the learned Trial Court and has also observed that the evidence of the complainant is not reliable and trustworthy. The learned Trial Court has mainly relied on the evidence of the panch witness - Gelabhai Nathabhai Rathod but there are material contradictions and omissions in the deposition of the witness and the witness has deposed contrary to the Page 7 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined panchnama on record. That the prosecution has not been able to prove the ingredients of demand, acceptance and recovery beyond reasonable doubts and hence, the appeal of the appellant must be allowed and the appellant must be acquitted of all the offences.
4. Heard learned advocate Mr. Jayesh Dave for the appellant and learned APP Ms. Jirga Jhaveri for the respondent State.
5. Learned advocate Mr. Jayesh Dave for the appellant has taken this Court through the entire evidence of the prosecution before the learned Trial Court and has submitted that the complainant has turned hostile and the prosecution has not proved the evidence beyond reasonable doubts. That in fact, there is no evidence to prove that the accused had ever demanded for any amount of illegal gratification and it is also on record that the accused was not competent to give the disability certificate as the disability certificate was to be given by a Board of three members. Moreover, the complainant, even though the ACB Page 8 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined Police Station, Surendranagar had the jurisdiction, had approached the ACB Police Station at Rajkot and there is no evidence on record that the Police Inspector of ACB Police Station, Surendranagar was not present on that day. That the Trap Laying Officer has not followed the correct procedure even during the trap and in fact, after the predetermined signal was given, immediately on entering the room where the raid was carried out, he has stated to the accused that he has been caught in a trap of illegal gratification. Moreover, the Trap Laying Officer was not authorized and there were no written instructions by the Additional Director, ACB to permit the Trap Laying Officer to go and raid the place within the jurisdiction of Surendranagar as he was a Police Inspector of ACB Police Station, Rajkot. That he did not have the authority to arrange for the trap and it is on record that the Police Inspector of ACB Police Station, Surendranagar was present in his office. There are no documents on record to show that the Police Inspector - Mr. Dave of ACB Police Station, Surendranagar was busy in some other work and it is an Page 9 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined admitted position that no marks of phenolphthalein powder were found from the hands of the accused and as per the case of the prosecution, the tainted currency notes were recovered from the pillow on the examination bed in the hospital. There is no evidence regarding the demand and acceptance by the accused and no tainted currency notes were recovered from the person of the accused but the learned Trial Court has not appreciated the evidence properly and hence, the learned advocate for the appellant has urged this Court to allow this appeal and acquit the accused from all the offences.
5.1 Learned advocate Mr. Jayesh Dave has relied on the following judgements:
1. Krishan Chander Vs. State of Delhi reported in AIR 2016 SC 298.
2. M.R. Purushotham Vs. State of Karnataka reported in (2015) 3 SCC 247.
3. Kanubhai Kantibhai Patel Vs. State of Gujarat reported in 1998 (1) GLH 924.
4. State of Rajasthan Vs. Mohan Lal reported in AIR Page 10 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined 2009 SC 1872.
5. Ganapathi Sanya Naik Vs. State of Karnataka reported in AIR 2007 SV 3213.
6. Balwantsinh Dipsinh Vaghela Vs. State of Gujarat passed by this Court, arising out of Criminal Appeal No. 340 of 2001 dated 10.08.2011.
7. M.K. Harshan Vs. State of Kerala reported in AIR 1995 SC 2178.
8. Vishakhapatnam Vs. Surya Sankaram Karri reported in (2006) 7 SCC 172.
6. Learned APP Ms. Jirga Jhaveri for the State has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and even though the complainant has been declared hostile but it is settled position of law that even if a witness has been declared hostile, the portion of his evidence, where he supports the case of prosecution can be relied into. That the panch witness has supported the case of the prosecution and the learned Trial Court has appreciated and relied upon the Page 11 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined evidence of the panch witness. That the accused had accepted the currency notes and had told the complainant to place them under the pillow in the examination room and the tainted currency notes were recovered from under the pillow on the examination bed which was in the custody of the accused. That the learned Trial Court has also appreciated the presumption available to the prosecution under Section 20 of the PC Act and has rightly convicted the accused and hence, no interference is required in the impugned judgement and order and the appeal of the appellant must be dismissed.
7. Before dissecting the evidences adduced by the prosecution on record before the learned Trial Court, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon'ble Apex Court in catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is Page 12 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution.
8. At the outset, it would be appropriate to refer to the observations of the Apex Court in the case of Krishan Chander (supra) relied upon by the learned advocate for the appellant, wherein, the Hon'ble Apex Court in para 34 and 35 has observed as under:
34. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus:
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless Page 13 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI."
In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under:
"21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant Page 14 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 Page 15 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined of the Act would not entail his conviction thereunder."
35. Further, in the case of Satvir Singh v. State of Delhi (2014) 13 SCC 143 this Court has held thus:
"34. This Court, in K.S. Panduranga case has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740-41, para 39) "39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case Page 16 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted."
9. In view of the settled principles in cases under the PC Act and the power of the Appellate Courts to reappreciate the evidence to analyze whether the prosecution as in fact, proved the case against the accused beyond reasonable doubts and whether the learned Trial Court has appreciated the evidence in proper perspective, it is essential to look into the evidence of the prosecution and minutely dissect the same. The prosecution has examined PW1 - Bharatbhai Shivubhai Dodiya at Exh. 12 and this witness is the complainant who has stated that he had suffered from paralysis and his left hand and left leg were paralyzed. That he had suffered an accident about one year after his paralytic stroke and his right leg was also disabled. That he wanted a disability certificate and had gone to the Government Hospital at Limbdi where one person told him Page 17 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined that his certificate could be issued but had demanded for money. That, that person had told him that he would have to pay the doctor some amount and as he did not have the money, he went home. He does not know the person whom he had met. Thereafter, he had gone to a person residing at Sayla and told him that he had to pay some amount for a certificate but that person told him that he did not have to given any illegal gratification and would get the legal certificate and the person took him to the ACB Office at Surendranagar. That he was sent back and was once again called to the ACB Office, Surendranagar after 8 to 10 days and when he had gone to the ACB Office, Surendranagar, Police Inspector - Mr. Dave and Police Inspector - Mr. Jalu and other police officials were there and they told him that they would go to the Government Hospital at Limbdi at 05.00 pm. That he had given the thirteen currency notes of the denomination of Rs. 100/- each to one policeman and some powder was applied on the currency notes and they were placed in his left side shirt pocket. That they had gone to the Government Hospital at Limbdi and he and a panch Page 18 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined witness - Gelabhai had gone walking into the Government Hospital, Limbdi. That he had looked for the person who had demanded the amount earlier and he met the person and that person told him to sit for some time and thereafter, Gadhvi Saheb had come and told him that he would not get the certificate today. That Gadhvi Saheb was sitting at his table and writing something and at that time, the panch witness who was with him told him to place the currency notes of Rs. 1300/- on the bed and he took the tainted currency notes and placed it on the bed. That he told Gadhvi Saheb to give his certificate today as he had travelled a long distance and was poor and Gadhvi Saheb took Rs. 50/- from his pocket and gave him and told him to go and come later. That they went outside and he gave the predetermined signal and the police officials came and caught Gadhvi Saheb. That the police told Gadhvi Saheb that he had taken the money for the certificate but Gadhvi Saheb shouted and said that he was not taking any money. That his hands were dipped in a glass of water and the water turned red and the tainted currency notes were Page 19 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined recovered from the bed where he had kept there. That the police were writing something and asked him to affix his signature. The complainant has not supported the case of prosecution and has been declared hostile and has been cross-examined at length by the learned advocate for the accused but the witness has not supported the case of prosecution and no iota of evidence of demand of any illegal gratification by the accused or the acceptance has come on record in the examination-in-chief of the complainant. During the cross-examination by the learned advocate for the accused, the witness has stated that the bed was behind the back of the accused and if a person was seated on the table and chair, he could not see the bed. That he had not seen the accused prior to the raid and he did not know the accused prior to the raid. That only a Civil Surgeon could give the disability certificate and he had gone to the Government Hospital, Limbdi to get the disability certificate. That he had gone to the ACB Office at Surendranagar and he had taken the person whom he had met for the certificate and gone to the accused and at that time, there Page 20 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined was no one besides the accused, that person and himself. That he had not spoken anything to the accused and there was no conversation between the person whom he had met outside and the accused.
9.1 The prosecution has examined PW2 - Gelabhai Nathabhai Rathod at Exh. 13 and the witness is the shadow witness who was called to the ACB Office with the other panch witness Krushnakumar Govabhai. That they had gone to the ACB Office at Surendranagar and Jalu Saheb and Dave Saheb and the complainant and other staff members were present and at that time Dave Saheb had told him that Jalu Saheb had come from Rajkot and they had to go for a trap at Limbdi. That the experiment of phenolphthalein powder and the solution of sodium carbonate was done and the currency notes of Rs. 1300/- was given by the complainant and the phenolphthalein powder was applied on the currency notes and zinc phosphide and water was also applied. That the currency notes were placed in the pocket of the complainant and they had gone to the Government Hospital at Limbdi. That he Page 21 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined went and sat on the bench outside of the office and the complainant had gone inside and asked for the accused who was not inside. That the witness came and the complainant and the accused went into the room no. 39 which was the Orthopedic Department but the accused was not available as he had gone for an emergency operation. That after some time, the accused came and they went into the room of the accused behind him and the doctor was seated, at that time, the accused demanded for the amount and told the complainant to place it near the pillow and the accused told him that he did not have any amount for his rent back to Sayla and the doctor gave him a currency note of Rs. 50/- from his drawer. That the complainant gave the predetermined signal and the ACB Officers - Mr. Dave and Mr. Jalu came and caught the accused. That Jalu Saheb had searched the table of the accused and an amount of Rs. 5,000/- was found in the drawer and the doctor has stated that, the amount was his salary. That the amount of Rs. 1300/- was also seized. During the cross-examination by the learned advocate for the accused, the witness has stated Page 22 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined that he did not know the complainant before the trap and the manufacturing date and expiry date of the powder is not mentioned in the panchnama. That he did not dictate the panchnama and he does now know the name of the person who was with the complainant. That he cannot describe the clothes of the persons who had accompanied them. That he had affixed his signatures which were about 25 to 30 in the hospital.
9.2 The prosecution has examined PW3 - Ashoksinh Dilipsinh Zala at Exh. 33 and this witness is the PSI who was in the ACB Office at Surendranagar in March 2007 and had conducted the experiment of phenolphthalein powder and the solution of sodium carbonate on the day of the trap. The witness has stated that the complainant had given two currency notes of denomination of Rs. 500/- each and three currency notes of denomination of Rs. 100/- and he had smeared phenolphthalein powder on those currency notes. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know as to who had gone to call the panch witnesses and the Page 23 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined currency notes were not give to him by the complainant to Jalu Saheb in his presence. That he does not know what has occurred at the place of trap was he was not present there. That in his statement recorded by the Investigating Officer, he has not named the complainant and the panch witnesses.
9.3 The prosecution has examined PW4 - Babubhai Natwarlal Leuva at Exh. 43 and this witness was the Joint Secretary in the Department of Health and Family Planning, Gandhinagar. The witness has stated that the accused was an Orthopedic Surgeon, Class-I at the R.R. General Hospital and was a public servant and he had given the order of sanction for prosecution which is produced at Exh. 44. That in the order of sanction which was given on 16.12.2005, the C.R. number is written as 2/2005 R.R. General Hospital instead of C.R. No. 1/2005 ACB, Surendranagar. During the cross-examination by the learned advocate for the accused, the witness has stated that he has not given the sanction but the government had give the sanction and at the relevant time, he was the Joint Secretary and had no Page 24 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined authority to appoint or terminate the accused. That a Medical Board is constituted in the district places under the Civil Surgeon and a Secretary and the Resident Medical Officer are also members of the board. That the Medical Board is the Competent Authority to give the disability certificate which is given in a proforma of the government. 9.4 The prosecution has examined PW5 - Jabbarbhai Hamirbhai Jalu at Exh. 45 and the witness has stated that on 10.03.2005, while he was working as the Police Inspector, ACB Police Station at Rajkot; the Additional Director, ACB had given him a written instruction that Police Inspector - Mr. Dave of the ACB Police Station of Surendranagar had gone for a departmental inquiry and the complainant had come to file a complaint and hence he was asked to go the ACB Office at Surendranagar. The witness had gone to Surendranagar and had thereafter, narrated the entire events that had taken place from the time that he went to Surendranagar and met the complainant and recorded the complaint of the complainant. That he had thereafter, called the panch witness and after the necessary Page 25 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined experiment of phenolphthalein powder and solution of sodium carbonate was done, the trap was arranged and they had gone to the Government Hospital at Limbdi where after the predetermined signal was given, he along with other members of the raiding party rushed and caught the accused red handed. The witness has stated that both the hands of the accused were dipped in the solution of sodium carbonate but the water did not change the colour and on search of the accused, a mobile phone, visiting card, etc, were found and from the drawer of his table, the salary of the accused was found. That all the procedure was done and the seizure memos were prepared of all the documents and muddamaal that were seized and he had thereafter, searched the house of the accused but no objectionable things were found. During the cross-examination, the witness has stated that there is no mention in the panchnama that the panch witnesses were called by Ravubha and a suitcase that they had taken was not searched by the panch witnesses. That after the trap, the hands of the accused were dipped in the solution and the Page 26 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined handwash was then destroyed and the handwash of the panch no. 2 was also destroyed. That the muddamaal was not recovered from the person of the accused and the complainant had Rs. 200/- with him which was not mentioned in the panchnama. That as soon as he entered into the room, he told the accused that he was caught in a trap of illegal gratification and he does not know what had transpired in the room before he had entered into the room. That he had not verified whether the filter papers that were taken with them at the place of the raid, had the presence of phenolphthalein powder or not and the bed-sheet and the pillow were not seized by him. That the currency notes that were placed in the pocket of the complainant were not tested and he had not verified as to whether the panch witnesses knew the complainant or the members of the raiding party. That when they reached the hospital, the accused was not in his room and there were a lot of persons moving about in the lobby outside of the room. 9.5 The prosecution has examined PW6 - Gulabsinh Dhaniramsinh Rajput at Exh. 49 and this witness is the Page 27 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined Investigating Officer who had taken over the investigation from the Police Inspector - Mr. Jabbarbhai Hamirbhai Jalu and had thereafter, recorded the statements of the connected witnesses and has got the order of sanction for prosecution and that thereafter, as he retired on superannuation on 31.03.2006, handed over the further investigation to Police Inspector - Mr. K.M. Varu who had filed the charge-sheet. During the cross-examination, the witness has stated that he has not collected any documentary evidence to show that Police Inspector - Mr. Dave of ACB Police Station, Surendranagar was busy in some other work and there is no documentary evidence to show that the Trap Laying Officer - Mr. Jalu was ordered to arrange for the trap at Surendranagar. That he has recorded the statements of all the members of the raiding party and during the investigation, it was not found as to which panch had written the panchnama. That he had not collected any evidence to find out the handwriting of the person who had given the disability certificate of the complainant which is produced at Exh. 56. That there is a medical board of three Page 28 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined doctors to give the disability certificate and he had recorded the statements of the Civil Surgeon and Resident Medical Officer. That during the investigation, there was no evidence that there was any talk between the accused, the Civil Surgeon and the Resident Medical Officer about the certificate which is produced at Exh. 56. The witness has also stated that during the raid, all the documents were with him and the panch no. 1 has not stated in his statement that the accused had told the complainant to put the amount of illegal gratification near the pillow. That during the investigation, it was also found that the accused was in the emergency ward before the trap and the room was open and there were some persons in the room. That he does not know whose thumb impression was affixed on the certificate produced at Exh. 56.
10. On minutely dissecting the evidence produced by the prosecution on record, there is no evidence of prior demand and demand at the time of incident that can be said to have come on record by cogent and convincing evidence. As per the case of the prosecution, the accused had demanded for Page 29 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined the amount of illegal gratification to give the disability certificate but it has also come on record that the physical disability certificate cannot be given by the Civil Surgeon and the Medical Board constituted for the district is competent to issue the disability certificate. That there are major contradictions in the deposition of the complainant and the witness and the complainant says that he had given thirteen currency notes of the denomination of Rs. 100/- each to the Trap Laying Officer, whereas, the PW3 - Ashoksinh Dilipsinh Zala - the witness who had smeared the currency notes with the phenolphthalein powder, has stated that there were two currency notes of denomination of Rs. 500/- and three currency notes of denomination of Rs. 100/- were the trap money. There is also evidence on record that when the complainant and the panch witness went to the Limbdi Hospital, the accused was not present in his room and moreover, the complainant had the amount of Rs. 200/- with him which is not mentioned in the panchnama before the raid. That in the entire evidence, it appears that the tainted currency notes were placed by the Page 30 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined complainant on the examination bef and the complainant has stated that he had placed the tainted currency notes on the instruction of the panch witness on the examination bed near the pillow and it is the case of the accused that the Police Inspector - Mr. Jabbarbhai Hamirbhai Jalu wanted to trap the accused at any cost. There is no evidence on record as to why the Police Inspector of ACB Police Station, Rajkot had come to Surendranagar to arrange for the trap and there is no evidence that any written instruction was given by the Additional Director, ACB to Police Inspector Mr. Jabbarbhai Hamirbhai Jalu to go to Surendranagar and arrange for the trap. As per the say of PW5 - the Trap Laying Officer - Jabbarbhai Hamirbhai Jalu - Police Inspector, ACB Police Station, Rajkot, the Police Inspector of ACB Police Station of Surendranagar was not present but in the entire evidence, it appears that when the complainant and the panch witnesses went to the ACB Police Station at Surendranagar, Police Inspector - Mr. Dave was present and he had not gone for any work of departmental inquiry at any place. As far as the order of sanction for prosecution is Page 31 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined concerned, there is evidence on record that PW4 - Babubhai Natwarlal Leuva who was the Joint Secretary, Department of Health and Family Planning, at the relevant time was not the competent authority to sign the order of order of sanction for prosecution and order of sanction for prosecution has been given by a person who was not competent to give the order of sanction for prosecution. As far as the recovery of the tainted currency notes is concerned, admittedly no traces of phenolphthalein powder was found on the hands of the accused and the accused had never touched the tainted currency notes. That the tainted currency notes were recovered from the bed which was behind the table and chair of the accused and there is evidence on record that if the accused was sitting and writing at the table, he could not see the bed which was kept behind him. The possibility that the complainant had himself placed the tainted currency notes on the bed near the pillow cannot be ruled out. Moreover, the Trap Laying Officer - Mr. Jalu has also stated that the handwash of the accused was destroyed. There is evidence on record that the Page 32 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined panchnama was not written by the panch witnesses and the panch witnesses were merely asked to sign the panchnama and hence, it cannot be considered as supporting piece of evidence.
11. The learned Trial Court, has in the impugned judgement discussed that PW4 - Babubhai Natwarlal Leuva had admitted that he had no authority or power to appoint or dismiss the accused from his post and he was not in a position to accord sanction and the learned Trial Court has also observed that the Joint Secretary being a witness does not know what is sanction and does not know the seriousness of signing the sanction order and is not conversant with the details of the case. Moreover, the learned Trial Court has also observed that being a Joint Secretary, the witness does not know what is the role of a Secretary in a Government Department. The learned Trial Court has not considered that the trial can be vitiated only if the sanction was not accorded by the Competent Authority. On appreciating the evidence of the complainant and the panch witnesses, the learned Trial Court has Page 33 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined concluded that both the complainant and the panch witness are telling lies and even though the complainant has turned hostile and his evidence is not reliable and trustworthy, but the learned Trial Court has merely considered that as the complainant is a handicapped person and needed the certificate, the backbone of the case is complete. It appears that the learned Trial Court has misread the evidence and has passed the impugned judgement and order of conviction which cannot be sustained.
12. In the entire evidence there is no evidence of demand which is a sine qua non for the offence under the PC Act and there is no clarification as to why the Police Inspector, ACB Police Station, Rajkot had come to arrange for the trap within the jurisdiction of Police Inspector, ACB Police Station, Surendranagar without any authority and even though the Police Inspector, ACB Police Station, Surendranagar was present, he did not arrange for the trap or record the complaint of the complainant. It is settled in a catena of decisions that mere recovery of the currency notes from the room of the accused without proof of demand or Page 34 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined acceptance, cannot constitute an offence under the PC Act and in the instance case, when there is evidence to show that the complainant had himself, on the instruction of the panch witness, placed the tainted currency notes on the bed near the pillow in the room of the accused and the bed was behind the table and chair of the accused and the accused could not see the bed from the place where he was sitting, the recovery of tainted currency notes was not sufficient to constituted the offence under the PC Act and the conviction could not be invoked.
13. Considering the law settled by the Courts in case of Krishan Chander (supra), the prosecution has not proved the case beyond reasonable doubts and the judgement and order of conviction is required to be set aside as the prosecution has miserably failed to prove the case against the accused beyond reasonable doubts. Consequently, the appeal is allowed and the impugned judgement and order passed by the learned learned Special Judge, Fast Track Court No. 2, Surendranagar at Limbdi, in Special ACB Case No. 1 of 2006 on 05.05.2009 is quashed and set aside and Page 35 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024 NEUTRAL CITATION R/CR.A/850/2009 JUDGMENT DATED: 23/04/2024 undefined the appellant is acquitted from all the charges levelled against him.
14. Bail bond stands cancelled. Fine to be refunded to the appellant after due verification. Record and Proceedings be sent back to the Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 36 of 36 Downloaded on : Fri May 03 21:24:07 IST 2024