Gujarat High Court
The State Of Gujarat vs Sureshbhai Babubhai Patel on 4 June, 2024
NEUTRAL CITATION
R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1998 of 2006
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 see the Yes
judgment ?
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 No
interpretation of the Constitution of India or any order made
thereunder ?
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THE STATE OF GUJARAT
Versus
SURESHBHAI BABUBHAI PATEL
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR NK MAJMUDAR(430) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/06/2024
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 the order of acquittal in Special Corruption Case (New) No.14 of 2002 [Special Corruption Page 1 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined Case (Old) No.6 of 1996] passed by the learned Special Judge, Additional District and Sessions Court, Valsad (hereinafter referred to as 'the learned Trial Court') on 20.04.2006, whereby, the learned Trial Court has acquitted the respondent - accused from the offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter 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 relevant facts leading to filing of the present appeal are as under:
2.1. That the complainant Mr.G.J.Sindhi, Police Inspector, ACB Police Station, Vadodara, Camp at Valsad, had received secret information that the employees at RTO Check Post, Bhilad were halting the trucks, which had overloaded weight and were demanding the amount of illegal gratification from the driver of the trucks and were not Page 2 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined giving the receipt for the amount collected by them and hence, Police Inspector Mr.G.J.Sindhi had decided to arrange for a decoy trap and on 10.12.1995, he called the independent witnesses and went to the Bharuch - Surat Highway and reached near Navsari Grid. That at that time, truck No.MWT-8475 was halted at around 2:15pm and the driver Labhsingh Gurudayalsingh and the cleaner Baljitsingh Sadhusingh Saini were asked to cooperate in the decoy trap and they agreed to do so. That the demonstration of anthracene powder and ultraviolet lamp was conducted and the characteristic of anthracene powder and ultraviolet lamp was explained to the panch witnesses and the decoy punter and two currency notes of the denomination of Rs.50/- each were smeared with anthracene powder and kept in the left side pocket of the cleaner Baljitsingh Saini. The shadow witness and the other members of the raiding party sat in the truck No.MWT-8475, which was going towards Mumbai. That when they reached Bhilad Check Post, the punter cleaner Page 3 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined Baljitsingh Saini and panch witness Juzar Hussain Ali Ahmed Ali Painter went to the RTO Check Post and showed the papers of the truck and at that time, deceased accused Navinbhai Tulsibhai Patel was on duty and he checked the papers of truck No.MWT-8475. That at about 5:50 hours, the accused demanded an amount of Rs.50/- as illegal gratification and the punter cleaner Baljitsingh Saini gave the tainted currency note of Rs.50/- which was accepted by the accused and put in the cash box and after receiving the pre-determined signal, the members of the raiding party came and caught the accused red handed.
The Investigating Officer drew the necessary panchnama and recorded the statements of the connected witnesses and filed a charge sheet against the accused before the learned Sessions Court, Valsad, which was registered as Special Corruption Case (Old) No.6 of 1996 [Special Corruption Case (New) No.14 of 2002].
2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and after Page 4 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined the due procedure under Section 207 of the Code of Criminal Procedure was completed, a charge was framed against the accused at Exh.2 and the statement of the accused was recorded at Exh.3, wherein, the accused denied the allegations made in the charge and the evidence of the prosecution was taken on record. 2.4. The prosecution has filed the following oral as well as documentary evidence to prove the charge against the accused.
Oral evidence :
1. Juzar Hussai Ali Ahmed Ali Painter Exh.8
2. Abdul Aziz Mahmadbhai Jamsa Exh.15
3. Gulamkhan Chagatiyakhan Sindhi Exh.23
4. Ambapratapsingh Chandravijaysingh Jadeja Exh.26 Documentary evidence :
1. Complaint Exh.24
2. Panchnama Exh.9
3. Seizure Memo Exh.10,11 Page 5 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined 2.5. That after the entire evidence of the prosecution was taken on record, the learned APP filed a closing pursis at Exh. 29 and the further statement of the accused under section 313 of the Code was recorded, wherein, the accused denied all the evidence against him.
2.6 After the arguments of the learned APP and the learned advocate for the accused, the learned Trial Court acquitted the accused for all the offences vide the impugned judgment and order of acquittal dated 20.04.2006.
3. Being aggrieved and dissatisfied with the impugned judgment and the order of acquittal passed by the learned Trial Court, the appellant - State has filed the present appeal mainly contending that the impugned judgment and order of acquittal is contrary to law and the prosecution has proved the case against the accused by oral as well as the documentary evidence but the learned Trial Court has grossly erred and has passed the order of acquittal. That the learned Trial Court has not appreciated that the prosecution witnesses, who have stated in their Page 6 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined depositions that the accused had accepted the amount of illegal gratification and the same currency notes were recovered from the accused after following the necessary procedure. That there was no reason to disbelieve the depositions of these witnesses and the prosecution has made best efforts to produce the driver Labhsingh Gurudayalsingh and the cleaner Baljitsingh Sadhusingh Saini but they could not locate the addresses of the said witnesses even though sincere efforts were made to produce them before the learned Trial Court. That the learned Trial Court has not considered the other evidence in its true spirit and the panch witness has proved the panchnama beyond reasonable doubts but the learned Trial Court has not believed the same. The learned Trial Court ought to have considered that there was no reason to falsely involved the accused and ought to have convicted the accused for the said offence, for which, he was charged and as the prosecution has proved the case beyond reasonable doubts, the impugned judgment and Page 7 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined order of acquittal deserves to be quashed and set aside and the accused must be found guilty for the offences.
4. Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellant - State and learned advocate Mr.S.J.Nayak for learned advocate Mr.N.K.Majmudar for the accused. Perused the impugned judgment and the order of acquittal and re-appreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence produced on record of the trial Court and has vehemently argued that the prosecution has examined the panch witness and other police witnesses and from their depositions, the ingredients of demand, acceptance and recovery of the amount of illegal gratification are proved beyond reasonable doubts. That the panch witness has clearly stated that he had accompanied the punter and in his presence, the accused had demanded the amount of Rs.50/- as illegal Page 8 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined gratification and the tainted currency notes were accepted by the accused and were recovered from the cash box where it was placed by the accused. That the entire procedure prior to the trap has also been explained in detail by the panch witness and evidence of the panch witness is corroborated with the evidence of the Trap Laying Officer and the prosecution has proved the case beyond reasonable doubts and hence, the impugned judgment and order deserves to be quashed and set aside and the accused must be found guilty for the said offences.
6. Learned advocate Mr.S.J.Nayak for learned advocate Mr.N.K.Majmudar for the applicant has submitted that the prosecution has not produced the evidence of the driver Labhsingh Gurudayalsingh and the cleaner Baljitsingh Saini, who were independent witnesses and the cleaner Baljitsingh Saini had gone along with the documents to the RTO Check Post. That the demand, if any, was made to the cleaner Baljitsingh Saini but it has come on record that the cleaner Baljitsingh has not been examined and there is no Page 9 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined evidence of demand from the accused. Admittedly, the accused is a private person and it is the case of the prosecution that the accused had taken the money on behalf of the deceased Navinbhai Tulsibhai Patel, who was on duty but there is no iota of evidence that the accused was with the said Navinbhai Tulsibhai Patel. The ingredient of the demand of illegal gratification is not proved beyond reasonable doubts by the prosecution and in the entire evidence of the prosecution, it has come on record that the panchnama was not dictated by the panch witness but was dictated by Sindhi Saheb and written by the constable in his own writing. That the accused had not accepted any amount of illegal gratification and the accused had nothing to do with the RTO Check Post. That the prosecution has not proved the case and all the ingredients of demand, acceptance and recovery are not proved beyond reasonable doubts. That the learned Trial Court has discussed the entire evidence of the prosecution in detail and in a well reasoned judgment and the order of Page 10 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined acquittal has given ample reasons for disbelieving the evidence of the prosecution and hence, no interference of this Court is required in the impugned judgment and order. That the appeal filed by the appellant - State must be rejected and the impugned judgment and order passed by the learned Trial Court must be confirmed. 6.1. Learned advocate for the accused has relied upon the decision of the Apex Court in the case of Neeraj Dutta Vs. State (Govt. of NCT of Delhi) reported in 2023 (0) AIJEL-
SC 70625 and the Apex Court has in Para - 88 observed as under:
88. What emerges from the aforesaid discussion is summarised as under:
88.1. (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.
88.2. (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.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved Page 11 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (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 e 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 Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (1) 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 Sections 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 9 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 in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (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 Page 12 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined 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. 88.6. (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. 88.7. (g) Insofar 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 Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
7. The law with regard to the interference of the Appellate Court in acquittal appeals as observed by the Apex Court in the case of Ballu @ Balram @ Balmukund and Anr. Vs. The State of Madhya Pradesh in Criminal Appeal No.1167 of 2018 is relevant and Para-9 reads as under: Page 13 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024
NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined "9. ... ... ....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 9 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."
14. Similar, In case of Harljan Bhala Teja vs. State of Gujarat (2016) 12 SCC 665, the Supreme Court has held that:-
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on Page 14 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined record, or perverse, it is always open far the appellate court to express the right conclusion after reappreciating the evidence If the charge is proved beyond reasonable doubt on record, and convict the accused."
8. In view of the settled principles of law in the acquittal appeals, it is essential to re-appreciate the evidence produced by the prosecution on record before the learned Trial Court and to bring home the charge against the accused, the prosecution has examined PW-1 Juzar Hussain Ali Ahmeda Ali Painter at Exh.8,and this witness has stated that he had gone along with the other panch witness Mudhusudan Vanmalidas to the ACB office and at that time in 1995, they were working in the Bharuch Nagarpalika. That they were taken to ACB Office, Baroda and they were told that the employees at Bhilad Check Post were taking the amount of Rs.50/- to Rs.100/- from people as entry fee and hence, a decoy trap was to be arranged. That the panchnama was written and at around 7:40 hours, they left for the decoy trap along with the other members of the raiding party at Navsari. That they Page 15 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined reached Navsari and at that time, truck No.MWT-8475 was halted and Labhsingh Gurudayalsingh was the driver and Baljitsingh was the cleaner in the truck. That the ACB officer gave two currency notes of the denomination of Rs.50/- and some powder was applied on those currency notes and the currency notes were shown in the machine and the currency notes were shining. That they were explained that the shining marks would come on the hands of the person, who had held the currency notes and they went to Bhilad Check Post. That two currency notes were given to the cleaner Baljitsingh Saini and this witness was instructed to go along with the cleaner Baljitsingh Saini. That he sat in the truck along with Jamsa Saheb, the driver Labhsingh Gurudayalsingh and the cleaner Baljitsingh Sadhusingh Saini and the panch witness No.2 and other members of the raiding party followed them in the jeep. That at around 6:00 hours, they reached Bhilad Check Post and this witness and the cleaner went to show the documents of the truck and the person sitting near the Page 16 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined window, who told them to give Rs.50/- and the cleaner Baljitsinh Saini gave Rs.50/-, which was taken by that person and put into the cash box. That pre-determined signal was given and the members of the raiding party came and recovered the tainted currency notes from the cash box. That the tainted currency notes and the hands of the person were checked in the machine and they were found shining. During the cross-examination by the learned advocate for the accused, the witness has stated that no writing was done after the currency note was recovered from the cash box and the currency note with No.1DG 073557 was found from Navinbhai Tulsibhai Patel and another currency note with No.8EN 967252 was with the cleaner Baljitsinh Saini. That no currency notes were recovered from the accused and it is mentioned that the muster list and duty list were seized from him. That in the cash box, the currency notes of Rs.31,163/- were found and before taking any currency notes from the cash box, no ultraviolet lamp was flashed on the cash box. That he Page 17 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined was standing near the window and he does not know who was in the RTO Check Post. That there were about 8 persons in the RTO Check Post. That the panchnama was dictated by Sindhi Saheb and was being written by the constable and he has not seen that the accused had taken the currency note of Rs.50/-.
8.1. The prosecution has examined PW-2 Abdul Aziz Mahmadbhai Jamsa at Exh.15 and the witness was the police inspector and the member of the raiding party. The witness has fully supported the case of the prosecution and has described all the events that had unfolded and has stated that he was sitting in the cabin of the truck at the time of trap and they had gone to Bhilad Check Post. The witness has stated that after the pre-determined signal was given, they had gone to the Bhilad Check Post and the accused was caught red handed. During the cross- examination, the witness has stated that his statement was recorded on the next day of the trap and the entire procedure was done by Police Inspector Mr. Sindhi. That Page 18 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined he had not played any role in the panchnama and had not given any instruction to the driver or the cleaner of the truck. That he does not remember the number of the truck and before the pre-determined signal was given, he was sitting in the truck and at that time, the truck was about 25-30ft away from the RTO Check Post. That in his statement, he has mentioned that the accused was searched and no objectionable item was found from the accused and he has not seen the acceptance of the currency notes. That the currency notes were seized from the cash box and no test of ultraviolet lamp was done on the pocket of the accused.
8.2. The prosecution has examined PW-3 Gulabkhan Chagatiyakhan Pathan at Exh.23 and this witness is the complainant and the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated in detail about the secret information that he had received and had, thereafter, decided to arrange the decoy trap. That he had called the panch witnesses and the Page 19 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined demonstration of anthracene powder and ultraviolet lamp was done and thereafter, they had gone to the Bhilad Check Post where they arranged for the trap. That the witness has also stated that he had halted truck No.MWT- 8475 and asked the driver and the cleaner to cooperate in the decoy trap and had given the currency notes smeared with anthracene powder to the cleaner Baljitsingh Saini. During the cross examination, this witness has stated that he was the complainant and the Trap Laying Officer and he himself had done the entire procedure of the panchnama. That he had recovered the currency notes of Rs.3016/- from the cash box but no signatures of the panch witnesses were taken on the envelop where the currency notes of Rs.3016/- were placed. That the accused No.2 Navinbhai Tulsibhai Prajapati had expired and he was a public servant. That he has not seen the acceptance of the currency notes by the accused and has not heard any conversation regarding any demand of the illegal gratification. That when he entered into Bhilad Check Post, Page 20 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined there were no currency notes in the hands of the accused. That during the investigation, he found that the accused was a driver and he was called by Mr.N.T.Patel for reservation. That the accused was not a public servant and in the complaint, it is not mentioned that the tainted currency note of Rs.50/- was recovered from the box. That in the complaint, he has not mentioned the name of the panch witnesses or their addresses or the numbers of the currency notes. That he has not conducted the ultraviolet lamp test on the counter of the check post and he himself had prepared three seizure memos. That in the cash box, the currency notes were lying scattered and he had not checked the accused. The witness has produced the complaint at Exh.24 and it appears that the original complaint is placed in the original file at Exh.24. On perusal of the complaint at Exh.24, which is filed by the Police Inspector Mr.G.J.Sindhi, ACB Police Station, Vadodara camp at Valsad, the complaint has been filed by the complainant in his own presence and the complaint Page 21 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined bears the signature of the same person as the complainant. The complaint has been filed on 13:15 hours on 10.12.1995 and the witness has stated that he had received the information about the demand of illegal gratification from the truck driver at Bhilad Check Post and had decided to arrange for the decoy trap and had called the members of the raiding party and the panch witnesses and the panchnama was prepared on 09.12.1995 between 19:00 to 19:30 hours. That they had gone to Navsari and reached at Navsari at 1:10 hours and truck No.MWT-8475 was halted at 2:15 hours and the driver Labhsingh Gurudyalsingh and the cleaner Baljitsingh Saini were asked to cooperate and the demonstration of anthracene powder and ultraviolet lamp was done in their presence and characteristic of anthracene powder and ultraviolet lamp was explained to them and two currency notes of Rs.50/- were given to the cleaner Baljitsingh Saini and placed in the left side pocket of the dress of the cleaner. That at about 5:45 hours, the cleaner and the panch witness No.1 went and the accused Page 22 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined had demanded an amount of Rs.50/- as illegal gratification and accepted the same and was arrested. The complaint does not bear the name of the panch witnesses or the address or the details about the panch witnesses and also does not state whether the tainted currency note of Rs.50/- was recovered even though the complaint was filed after the trap was successful.
8.3. The prosecution has examined PW-4 Ambapratapsingh Chandravijaysingh Jadeja at Exh.27 and this witness is the Investigating Officer, who has stated that the investigation C.R.No. 4 of 1995 was taken over by him but the RTO Officer Jayatibhai Patel had expired and he had filed the charge sheet against the present accused. That he has not carried out any other investigation and during the cross- examination, the witness has stated that he has seen the accused for the first time while filing the charge sheet and he has not gone to the check post.
9. On meticulous dissection of the entire evidence produced Page 23 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined by the prosecution, it has come on record that the complainant, Police Inspector Mr.G.J.Sindhi, has filed the complaint at Exh.24 and has recorded the complaint in his own presence. That though there were two other police inspectors present along with him as the members of the raiding party, he himself had filed the complaint after the raid was successful in his own presence. That the complainant does not mention the names and the addresses of the independent panch witnesses, who were called and even though, at the time of the trap and after the trap was successful, the panch witnesses were present but their names have not been mentioned in the complaint. Moreover, the complaint does not state that the tainted currency notes were recovered from the cash box of the RTO Check Post, Bhilad. This casts a shadow of doubt on the complainant and there is no specific role attributed to the deceased accused Navinbhai Tulsibhai Prajapati, who was the public servant in the RTO Check Post. There is no clear evidence as to whether any demand was made by the Page 24 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined deceased Navinbhai Tulsibhai Patel or by the present accused for any illegal gratification and even acceptance of the tainted currency notes is not proved beyond reasonable doubts. In the evidence of the panch witness, it has come on record that the panch witness was standing outside the window of the RTO Check Post. The punter cleaner Baljitsingh Saini has not been examined before the learned Trial Court and only the punter cleaner Baljitsingh Saini could have deposed as to whether any amount of illegal gratification was, in fact, demanded by the accused or any other amount for any other purpose. It appears that as soon as the amount of illegal gratification was given, the pre-determined signal was given. There is nothing on record to show that the documents that were produced by the punter cleaner Baljitsingh Saini were proper or not or whether any penalty was to be imposed on the truck. That the driver and the cleaner of the truck No.MWT-8475 were independent witnesses but the prosecution has not examined both the indepndent witnesses before the Page 25 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined learned Trial Court and there is no iota of evidence of any demand and acceptance of any illegal gratification by the accused. The evidence of PW-1 Juzar Hassain Ali Ahmed Ali Painter is shaky and does not inspire any confidence and in fact, the panch witness has stated that the tainted currency notes were recovered from possession of Navinbhai Tulsibhai Patel, which is not the case of the prosecution. Moreover, the panch witness has categorically stated that the currency notes were not recovered from possession of the accused and even though, the complaint was filed after the recovery of the currency notes, as per the case of the prosecution, the same is not mentioned in the complaint which casts a huge doubts on the evidence of the prosecution. It has also come on record that the complainant himself was the Trap Laying Officer and it appears that most of the investigation was done by himself and this casts a shadow of doubt on the credibility of the case of the prosecution. Even otherwise, it is on record that the panchnama was not Page 26 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined dictated by the panch witnesses but was dictated by the Trap Laying Officer and it was written by the constable and being the complainant and the Trap Laying Officer, the witness would ensure that the case would be successful and would prepare the documents to favour his case. If the evidence of the panch witnesses is perused, the panch witnesses does not state the type of the powder that was used and also state that the machine was used to check the currency notes and the hands of the accused and as per the principles of settled by the Apex Court, there is no iota of evidence regarding any demand of illegal gratification, acceptance of the same and recovery of the tainted currency notes from the accused.
10. The learned Trial Court has discussed all the aspects of the evidence of the prosecution and has concluded that there is no reliable evidence to support the conviction of the accused and the prosecution has miserably failed to establish the offence charged against the accused. It is settled law that unless the evidence is clear, cogent and Page 27 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined reliable, no conviction can be recorded and on re- appreciating the entire evidence, the evidence is contrary and far from convincing. As observed by the learned Apex Court in the case of Ballu @ Balram @ Balmukund (Supra), the scope of the Appellate Court to interfere in the finding of acquittal is limited and unless and until some perversity and illegality is found in the judgment and order of the learned Trial Court, the Appellate Court will interfere only to ensure that no miscarriage of justice has occurred. In the present case, there is no iota of evidence that any demand for illegal gratification was made by the accused or that the accused had accepted any amount of illegal gratification and the reasons assigned by the learned Trial Court are just and proper. This Court has perused the findings of the learned Trial Court and the learned Trial Court has appreciated all the evidence and has, in a well reasoned judgment and the order, acquitted the accused and there is no perversity or illegality in the findings recorded by the learned Trial Court. This Court is in complete agreement Page 28 of 29 Downloaded on : Fri Jun 21 21:23:17 IST 2024 NEUTRAL CITATION R/CR.A/1998/2006 JUDGMENT DATED: 04/06/2024 undefined with the findings, the reasons, ultimate conclusion and the resultant order of acquittal by the learned Trial Court.
11. This Court finds no reason to interfere with the impugned judgment and the order of acquittal and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order of acquittal in Special Corruption Case (New) No.14 of 2002 [Special Corruption Case (Old) No.6 of 1996] passed by the learned Special Judge, Additional District and Sessions Court, Valsad on 20.04.2006 is hereby confirmed. Bail bonds stand cancelled.
12. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI.....
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