Gujarat High Court
State Of Gujarat vs Rajeshkumar Babulal Solanki ... on 1 August, 2024
NEUTRAL CITATION
R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1394 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
RAJESHKUMAR BABULAL SOLANKI ASST.ENGINEER CLASS-II, TOWN
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(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 : 01/08/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant-State under Section 378(1)(3) of Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the learned Special Judge & Presiding Officer, Fast Track Court No. Page 1 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined 5, Rajkot (hereinafter referred to as "the learned trial Court") in Special (ACB) Case No. 11 of 2000 on 29/04/2009, whereby the learned trial Court has acquitted the respondent for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereafter referred to as "the PC Act" for short). 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 working as an Assistant Engineer Class II in the Town Planning Branch at Rajkot Municipal Corporation and was a public servant. That the complainant Vinodbhai Naranbhai Vikani was doing the business of construction in the name of Amar Agency and had started construction of a commercial building in Manhar Plot, Sheri No. 1 in the name of "Amar Arcade". That the plans of the building were prepared in April 1999 and sent for permission to the Town Planning Branch, Rajkot Municipal Corporation and the plans were at the table of the accused as an overseer. That Page 2 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined generally the plans were passed within 90 days, but the accused was pointing out innumerable objections in the plan and demanding illegal gratification. That, on 6/1/2000, the accused went to the site of the complainant between 10:00 AM and 10:30 AM and got angry and threatened the complainant that he was not giving him the money but as the work of completion was with him. That he would block the completion work. That the accused demanded for an amount of ₹15,000/- as illegal gratification and as the complainant did not have the amount the accused told him that he would come between 06:00 and 07:00 PM at the site and take the amount. That the complainant did not want to pay the amount of illegal gratification and went to the ACB Police Station, Rajkot and filed the complaint, which was registered at I-C.R.No. 1 of 2000 on 6/1/2000 under Sections 7, 13(1)(d) and 13 (2) of the PC act.
2.2] That the Trap Laying Officer called the panch witnesses and the complainant gave thirty currency notes of the denomination of ₹500/- Each to the Trap Laying Officer. That Head Constable S.D.Gohil, under the instructions of the Trap Laying Officer, explained the characteristics of anthracene Page 3 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined powder and ultraviolet lamp to the complainant and the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was done in the presence of the complainant and the panch witnesses and all the thirty currency notes were smeared with anthracene powder on both sides and placed in the left shirt pocket of the complainant.
2.3] That necessary instructions were given to the complainant and the panch witnesses and the panchnama Part - I was drawn and the trap was arranged. As decided, the complainant, panch witnesses, and the members of the raiding party sat in Government Jeep No. GJ-1-G-2988 at 17:40 hours and left from the ACB office to Limda Chowk, Moti Tanki Chowk, Gymkhana, Vidyanagar Main Road and reached the hospital of Dr. Popatni at 19:15 hours and the complainant and the panch witness No. 1 went walking towards Manhar Plot Sheri No. 1 at the site of the construction of the complainant. That the other panch witness and the members of the raiding party stood scattered around. That at around 19:05 hours, the accused came on a Luna moped and the complainant and the accused had a conversation and the accused demanded the Page 4 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined amount of illegal gratification, and the complainant gave the tainted currency notes from his left shirt pocket to the accused who accepted it with his right hand and put them in the right pocket of his jeans. That the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red-handed. That the tests were done and the hands of the complainant was found with traces of anthracene powder and the panchnama was drawn and the amount was seized.
2.4] The Investigating Officer recorded the statements of the connected witnesses and after the documents of the service record of the accused as also the order of sanction for prosecution was received, the chargesheet came to be filed before the Sessions Court Rajkot, which was registered as Special ACB Case No. 11 of 2000.
2.5] That the accused was duly served with the summons and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 22 was framed against the accused and the statement of the accused was Page 5 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined recorded at Exh: 25. 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. Particulars Exhs
No.
1 Jagdish Prasad Nandkishor Gupta 29
2 Vinodbhai Narandas Vikani 52
3 Gunvantbhai Govindbhai Makwana 58
4 Arvindbhai Ranchhodbhai Patel 60
5 Om Prakash Barusingh Sharma 62
6 Jagdishchandra Prabhulal Kotadiya 67
DOCUMENTARY EVIDENCES
Sr. Description of the documents Exh:
No.
1 Prior permission 30
2 Complaint 53
3 Seizure Memo 59
4 Panchnama 60
2.5] After the closing pursis was filed by the learned
Additional Public Prosecutor at Exh:68, the further statement of the accused under Section 313 of the Code Of Criminal Procedure, 1973 was recorded, wherein, the accused denied all Page 6 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined the evidence of 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 has passed the impugned judgment and order of acquittal. 3] Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant-State has filed the present appeal mainly stating that the judgement and order of acquittal is contrary to law and evidence on record and the trial Court has erred in holding that the prosecution has not proved its case on reasonable doubts. That the prosecution has produced the oral evidence of six witnesses and four documentary evidence in support of their case, but the learned trial Court has not appreciated all the evidence in true perspective. That the prosecution has proved beyond all reasonable doubts that the respondent accepted the bribe amount of ₹15000/- from the complainant other than his legal remuneration by misusing his post as a government servant but the learned trial Court has disbelieved the same. That the complainant has fully supported the case of the prosecution and narrated all the details in the FIR and there is ample material on Page 7 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined record of the case to show that there was demand and acceptance of money by the respondent and there was material to show that, powder was found on the hands of the respondent and pocket of the pant of the respondent. The panch witness and the trap laying officer have also supported the case of the prosecution and the learned trial Court ought to have given the emphasis to the evidence of the complainant, who himself has stated that he had put the bribe amount in the hands of the respondent and the respondent had accepted the same. That when the tainted currency notes were recovered from the respondent with other circumstance it leads to the conclusion that the amount of illegal gratification was accepted from the complainant and in view of the provisions contained in Section 20 of the PC Act, the a trial Court ought to have held that the prosecution has proved the case beyond reasonable doubts. That the impugned judgement and order of acquittal is improper, perverse and bad in law and is required to be quashed and set aside.
4] Heard learned Additional Public Prosecutor appearing for the appellate -State. Though served, the Page 8 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined respondent has not appeared either in person or through an advocate. Perused the impugned judgement in order of acquittal and have reappreciated the entire evidence produced on record by the prosecution.
5] 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 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 Page 9 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined 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, "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: -Page 10 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024
NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined 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)."
6.1] 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;Page 11 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024
NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined
(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. 6.2] 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:
-
(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) Page 12 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1) (d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn 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."Page 13 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024
NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined 7] The law with regard to acquittal appeal is well crystallized and in acquittal appeals, there is a presumption of innocence in favour of the accused that has finally culminated when a case ends in an acquittal. That the learned trial Court has appreciated all the evidence and when the learned trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. That there is no inhibition to reappreciate the evidence by the appellate Court but if after reappreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same. 8] To bring home the charge against the accused, the prosecution has examined prosecution witness No. 1 Jagdish Prasad Nandkishor Gupta at Exh: 29 and the witness is the competent authority, who has given the order of sanction for prosecution, which is produced at Exh: 30. The witness has, during the cross examination by the learned advocate for the accused, stated that a draft of the order of prosecution was Page 14 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined prepared from the ACB Office and the order of sanction for prosecution was not typed in his office. That, in the order of sanction for prosecution produced at Exh: 30, the place where the round seal of Rajkot Municipal Corporation was to be affixed was typed and sent.
8.1] The prosecution has examined prosecution witness No. 2 Vinodbhai Narandas Vikani at Exh: 52 and the witness is the complainant, who has deposed as per the FIR and supported the case of the prosecution. The complainant has narrated all the incident that had taken place at the ACB office when he had gone on 6/1/2000, and the panch witnesses were called and the demonstration of anthracene powder and ultraviolet lamp were done in their presence and he had given thirty notes of the denomination of ₹500/- each which were smeared with anthracene powder and placed in the right pocket of his shirt. That as per the instructions of the Police Inspector, he had gone along with the panch witness to his site and waited for the accused and after one hour, the accused came. That, at that time, the accused demanded for the amount and he asked him what amount was to be paid and the accused told him to give Page 15 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined ₹15,000/- that was to be given. That he took the tainted currency notes and gave it to the accused and gave the predetermine signal and the members of the raiding party came and caught the accused. That in the test of ultraviolet lamp, the traces of anthracene powder were found on the hands of the accused.
During the cross-examination by the learned advocate for the accused, the witnesses has stated that the site was in his ownership but he did not receive the permission for construction. That there was query in the proposed plan and the plans were presented in the name of the old house owner. The plans were rejected twice earlier as the objections were not removed and prior to year 1999, his plans were sanctioned but he did not give any amount of illegal gratification or gifts at that time. That the officers of the Rajkot Municipal Corporation visited the site to verify whether the construction is being done as per the plans and if the constructions were not as per the plans, the officers of the Corporation would stop the construction by an oral order, and if inspite of that, the construction would go on, a written order stopping the Page 16 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined construction would follow. That there was an injunction order for construction at his site, which was not vacated and if the construction was continued, the plans certificate would not be given. That his second plan was submitted but no amount of illegal gratification was demanded and the injunction was given on 20/8/1999 and in that it was mentioned that the construction was done without the permission and the existing house was illegally removed without permission and the digging of the cellar/basement was undertaken and an opportunity for explanation was given but he did not give any explanation. That if the house is being demolished, permission is required to be taken from the Municipal Corporation to keep debris on the road. That Manhar Plot Sheri No. 1 was a very narrow road where two vehicles would not pass and the miller for the cement was occupying half of the road and iron and construction material was placed on the road. That the public were facing great difficulties and a complaint was filed in the Rajkot Municipal Corporation. That the officers of the Corporation had told him to remove all the materials and the accused had told him to remove the material as complaints were filed against Page 17 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined him. That even at that time that accused did not demand for any amount of illegal gratification. That his plans were sanctioned one month before the filing of the complaint. That he had filed the complaint as he thought that the accused would harass him in future and if he filed the complaint, all his work would be concluded smoothly. That, at the time of the trap, it was dark and he was having a conversation with the accused. That the work of completion certificate would not come to the table of the accused.
8.2] The prosecution has examined prosecution witness No. 3 Gunvantbhai Govindbhai Makwana at Exh: 58 and the witness is the panch witness who has fully supported the case of the prosecution and has narrated in detail all the incident that had occurred on 6/1/2000 when he and the other panch witness Manharlal Labhshankar Vyas had gone to the ACB office. The witness has narrated about being introduced to the complainant and the demonstration of anthracene powder and ultraviolet lamp was conducted and thereafter the complainant had given thirty currency notes of the denomination of ₹500/- each, which were smeared with anthracene powder on both sides and placed Page 18 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined in the left shirt pocket of the complainant and the trap was arranged. As instructed, the witness had gone along with the complainant to his site and they sat in vacant chairs and waited for the complainant, who came at 07:05 PM on a Luna mopped. That the complainant and the accused had a conversation and the accused asked the complainant what happened to ₹15,000/- what had to be paid to him and the complainant took the tainted currency notes with his right hand and gave it to the accused, who accepted it and put it in the right front pocket of his jeans. The complainant gave the predetermined signal and the members of the raiding party came and caught the accused. That the tests were done and the tips of the fingers of the accused were found with light blue shining lights. That the panch no. 2 was instructed to remove the tainted currency notes from the pocket of the accused and the panchnama produced at Exh: 60 and the seizure memo produced at Exh: 59 were prepared.
During the cross examination by the learned advocate for the accused, the witness has stated that he does not know, who was dictating the panchnama and who was Page 19 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined writing the panchnama but both the panch witnesses did not dictate the panchnama and they had seen the panchnama being written. That the panchnama is signed with a blue pen and the pant was signed with black pen and before the trap, the characteristics of anthracene powder were not explained to them. That, after the trap, they waited for about an hour, and during this time, the ACB officers were writing something but he or the other panch witnesses were not present in the room. That the accused was with the Police Officer and after the writing was completed, their signatures were taken. That in the seizure memo, it is mentioned where the currency notes of ₹500/- were seized from the accused. That if he did not depose as per the panchnama, his job would be in peril and hence he had read and memorized everything.
8.3] The prosecution has examined prosecution witness No. 4 Arvindbhai Ranchhodbhai Patel at Exh: 60 and the witness is the Investigating Officer, who had taken over the investigation from Police Inspector Mr.O.B.Sharma on 10/1/2000. That he had made the necessary correspondence for the service record of the accused and had prepared the draft of Page 20 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined the sanction for prosecution and sent it to the Director, ACB Ahmedabad. That as he was transferred, the investigation was handed over to the Police Inspector Mr.O.B.Sharma.
During the cross-examination by the learned advocate for the accused, the witness has stated that during investigation, it was found that the plans of the complainant were rejected twice and there was an injunction order against the construction. That in the complaint, there was no details about the place and time when the amount of illegal gratification was demanded and the complainant did not clarify the same in his statement recorded by the Investigating Officer. 8.4] The prosecution has examined prosecution witness No. 5 Om Prakash Barusingh Sharma at Exh:62, and the witness is the Trap Laying Officer who has fully supported the case of the prosecution and has narrated in great detail all the procedures that he had undertaken on 6/1/2000 when the complainant came to the ACB office and he had recorded the complaint of the complainant and thereafter called the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was done by Head Constable Santubha Gohil. Page 21 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024
NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined That the complainant had given thirty currency notes of the denomination of ₹500/- each, which were smeared with anthracene powder by Head Constable Santubha Gohil and the tainted currency notes were placed in the left shirt pocket of the complainant and the instructions were given by him to the complainant and the panch witnesses. The witness has stated that thereafter they left in the government vehicle and reached near Dr. Poptani's hospital and at around 09:00 PM, the predetermined signal was given by the complainant and he rushed along with the members of the raiding party and the panch witness No. 2. The witness has stated that the test of ultraviolet lamp was conducted on the hands of the accused and the fingers and the thumb of right hand and portion of the palm was found with traces of anthracene powders. That anthracene powder was also found from the edge of the right side pocket of the jeans of the accused. That the procedure of panchnama and seizure memo was done and thereafter the investigation was handed over to the Police Inspector, Mr A.R. Patel.
During the cross examination by the learned advocate for the accused, the witness has stated that in the Page 22 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined complaint produced at Exh: 53, there is no mention about the date, month and year of the demand and no demand for illegal gratification was made when the first plans were placed till the plans were sanctioned. That, as per the complaint, after the demand of illegal gratification, the plan was rejected, but the complainant did not tell him these facts. That the complainant did not state that he had earlier placed the plans twice and they were rejected and the plans were sanctioned when he placed them for the third time. That the initial demand was in April 1999, and the plans were sanctioned one month before filing of the complaint. That it is the duty of the Investigating Officer to find out whether the work was done as the amount of bribe was taken or whether it was done naturally. That he does not know who had searched the accused and who had counted the amount that was recovered. That he does not remember who had arranged for the alternative pant of the accused and the panchnama does not say that the panch No. 1 was asked about the trap or acceptance.
8.5] The prosecution has examined prosecution witness No. 6 Jagdishchandra Prabhulal Kotadiya at Exh: 67 and the Page 23 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined witness is the Investigating Officer who had filled the charge sheet before the Sessions Court.
9] On minute appreciation of the entire evidence of the prosecution, the infirmities in the case of the prosecution have come on record and there are major contradictions in the evidence of the complainant as well as panchwitness. It has emerged on record that the plan of the building of the complainant was sanctioned one month prior to filing of the complaint and it is the say of the complainant that the accused had threatened to create obstacles in giving the completion certificate but it has come on record that the work of completion certificate was not with the accused. That in fact, the complaint produce at Exh:53 does not give the details about the time, date and place of demand of illegal gratification and even as far as the demand at the time of trap is concerned, there is no iota of evidence that the accused had demanded for the amount of illegal gratification when he came to the site of the complainant. What has emerged on record is that the Rajkot Municipal Corporation had given an injunction against the construction of the complainant and the complainant had demolished the old Page 24 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined house and dug the basement without the permission of Rajkot Municipal Corporation. That the complainant had also started the construction work without the permission of the Rajkot Municipal Corporation and the road where the construction was being done was a narrow road and the complainant had placed his cement miller, iron and debries on the road, which was causing a great inconvenience to the public and a number of complaints were received against the complainant in the Rajkot Municipal Corporation. That the officers of Rajkot Municipal Corporation were authorized to check and verify whether the construction is being carried out as per the plans and on the date of the trap, there was an injunction against the construction but the complainant was carrying on with the constructions.
10] The learned trial Court has in the impugned judgment and order discussed the entire evidence adduced by the prosecution and has discussed all the aspects and as the factum of demand was not proved by the prosecution in the entire evidence adduced on record, the learned trial Court has passed the impugned judgment and order of acquittal. Page 25 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024
NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined 11] In view of the decision of the Apex Court in the case of Mallappa (supra) and Neeraj Dutta (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 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.
12] The impugned judgment and order dated 31/08/2005 passed by learned Special Judge & Presiding Page 26 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024 NEUTRAL CITATION R/CR.A/1394/2009 JUDGMENT DATED: 01/08/2024 undefined Officer, Fast Track Court No. 5, Rajkot in Special (ACB) Case No. 11 of 2000 on 29/04/2009 is hereby confirmed. 13] Bail bonds stand canceled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 27 of 27 Downloaded on : Tue Aug 06 21:11:14 IST 2024