Gujarat High Court
State Of Gujarat vs Jayantilal Dhanabhai Patel on 27 July, 2023
NEUTRAL CITATION
R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1109 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
JAYANTILAL DHANABHAI PATEL & 1 other(s)
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Appearance:
MS MAITHILI D MEHTA, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
VISHAL K ANANDJIWALA(7798) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 27/07/2023
ORAL JUDGMENT
1. The present appeal is filed by the appellant - State of Gujarat against the judgment and order of acquittal dated 13/12/2007 passed by the learned Additional Sessions Judge, Page 1 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined Fast Track Court No.1 (hereinafter referred to as "the Trial Court"), Narmada at Rajpipla in Special (ACB) Case No.7 of 2006, whereby, the learned Trial Court has acquitted the original accused - respondents herein for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
2. The brief facts giving rise to the present appeal are as under :
2.1 The complainant I.B. Vyas, P.I., ACB Police Station, Bharuch received co-operation from one driver who having truck bearing Registration No.GJ-2-Y-5415 residing at Naroda, Ahmedabad. The said driver with one panch went to Sagbara RTO Check Post where accused Nos.1 and 2 were discharging their duties. The accused No.2 demanded some documents and therefore, driver had given the same to the accused No.2.
After going through the same, accused No.2 told the driver that there was some tax due and he had to pay Rs.10,000/-. Thereafter, the driver had replied that he had already paid the tax. In response, the accused No.2 said to the driver that there is no paper in the file regarding the payment of tax so that the driver has to get the same by fax or put the truck for two or Page 2 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined three days. Therefore, the driver had requested to let him go and therefore, the accused No.2 demanded Rs.500/- to let him go. The driver had therefore, given Rs.500/- note on which phenolphthalein powder was sprinkled by the ACB P.I. and which was received by the accused No.2 after permission of accused No.1 and which was put by him between two chairs. On 23.02.2005, at about 16.00 hrs., accused persons had demanded and also accepted the bribe and also caught red handed by the raiding party and the said offence was registered under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 against the accused persons. 2.2 After following necessary procedure of law, trap was arranged by the P.I., Bharuch. After receiving the fixed signal, the panch witness and the members of the raiding party including the P.I., went to the scene of offence and asked the panch witness as to what had happened. To which the panch witness narrated the whole incident. The accused had accepted the bribe money from the punter driver in presence of the panch. The bribe amount of Rs.500/- was recovered from the accused persons hence, strains of phenolphthalein powder was found on the hands of the accused at the time of Page 3 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined conducting the experiment of Ultra violate. P.I. ACB, Bharuch tallied the numbers of currency notes recovered from the accused with the numbers noted at the time of drawing the preliminary panchnama. Thereafter, seizure memo was given to the accused persons and the case was registered against the accused persons after getting the necessary sanction from the competent authority. The bribe amount was recovered from the conscious possession of the accused persons. Thereafter, the case was registered against the accused persons.
2.3 The ACB, Bharuch arrested the accused persons and produced them before the concerned Court. The ACB, Bharuch, after obtaining proper sanction from the Government and after recording evidence of relevant witnesses, prepared charge- sheet against the accused persons and submitted the same before the concerned Court. The case being exclusively sessions triable, was committed to the Special Court, at Rajpipla, as per Section 209 of the Cr.P.C. The accused were produced before the Court and after verifying whether the accused were given all the necessary police papers or not, the learned Special Judge framed charge at Exh.-9 against the Page 4 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined accused persons on 07.10.2006, to which the plea of the accused persons was recorded, wherein, they denied their involvement in the offence.
2.4 In order to bring home charge, the prosecution has examined as many as 7 witnesses and also produced several documentary evidence before the learned Trial Court, which are as under: -
oral evidence
1. Prosecution Witness No.1 Ashabhai Exh.-24 Somabhai Valand (Panch)
2. Prosecution Witness No.2 Gokulpuri Exh.38 Goswami driver who cooperated.
3. Prosecution Witness No.3 Vinodbhai Exh.53 Maganbhai Chauhan
4. Prosecution Witness No.4, P.I. Indravadan Exh.55 Balkrushna Vyas
5. Prosecution Witness No.5, Kishorekumar Exh.60 Khilajibhai Patel
6. Prosecution Witness No.6, Ketanbhai Exh.61 Shantilal Vyas
7. Prosecution Witness No.7, Ranjitsinh Exh.67 Desabhai Vala Investigating Officer Documentary evidence
1. Panchnama of Bribe Decoy Trap Exh.27
2. Slip bearing signatures of Panchas Exh.28 Page 5 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined
3. Memo Book Exh.29
4. Slip bearing signatures of Panchas Exh.30,31, 32,33
5. Seizure list Exh.34, 35
6. Copy of licence of driver who Exh.39 cooperated
7. Copy of Bilti Exh.40
8. Copy of R.C.Book Exh.41
9. Copy of a letter of Transportation Exh.42 Officer
10. Copy of duty list Exh.43
11. Statement Exh.44, 45
12. Copy of letter of the transfer of the Exh.46 accused
13. Copy of letter of Transportation Officer Exh.47 14 Copy of order of Transportation Officer Exh.48 15 Copy of report regarding surrender of Exh.49 the accused
16. Copy of enclosure of Sagbara Check Exh.50 Post
17. Statement Exh.51
18. Approval of the Joint Secretary for Exh.54 conducting trail against the accused J.D.Patel 19 Copy of Yadi for Panchas written to Exh.56 G.E.B. 20 Complaint of Police Inspector I.B.Vyas Exh.57 21 Dispatch note of the Muddamal sent to Exh.58 F.S.L. 22 Panchnama of Physical condition of the Exh.65 accused 23 F.S.L. report Exh.66 Page 6 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined 2.5 After examination of the witnesses in detail and after considering the documentary evidence and after hearing arguments advanced by both the sides, the learned Trial Court has passed the impugned order of acquittal mainly on the ground that the prosecution has failed to establish the case against the accused - respondents herein with regard to the demand and acceptance beyond reasonable doubts.
2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant - State of Gujarat has filed the present appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973.
3. Heard learned APP Ms.Maithili D. Mehta appearing for the appellant - State of Gujarat and learned counsel Mr.Vishal K. Anandjiwala appearing for the respondents - original accused.
4. Learned APP Ms.Mehta has raised the contention that though the prosecution has proved the charge against the respondents accused for illegal gratification as the respondent No.1, who is a Government Officer and serving as an RTO Inspector, has demanded illegal gratification and also accepted Page 7 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined the said amount through accused No.2. While accepting the said amount in a running trap i.e. decoy, the respondents were caught red handed and therefore, the FIR came to be filed before the concerned ACB Police Station. She has further contended that the prosecution has proved the charge levelled against the respondents accused for illegal gratification which was in presence of the Panchas, however, the learned Trial Court has disbelieved the evidence of the said Panchas while passing the impugned judgment and order of acquittal.
4.1 Learned APP Ms.Mehta has further argued that the amount is found at the behest of the respondents accused from the drawer of the table and therefore, acceptance and recovery are proved beyond reasonable doubts, however, the learned Trial Court has not considered the said fact in its true and proper spirit while passing the impugned judgment and order of acquittal. She has further contended that the learned Trial Court has not considered the depositions of the police officers who have supported the case of the prosecution, merely because they are the interested witnesses to prove their case.Page 8 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023
NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined 4.2 The main thrust of argument on the part of the learned APP Ms.Mehta is that, the learned Trial Court ought to have inferred that there was demand as the tainted currency notes were found from the drawer of the table upon which the respondents were discharging their duties. It is submitted by the learned APP that at relevant point of time, the respondents were found with the currency notes having mark of phenolphthelein powder as the accused persons have accepted the amount of bribe, and therefore, the impugned judgment and order of acquittal is erroneous and against the settled principles of law as well as the same deserves to be quashed and set aside and the findings recorded by the learned Trial Court is required to be reversed and the respondents accused to be held guilty of the offence as alleged in the FIR.
4.3 The learned APP Ms.Mehta has strongly referred to and relied upon the recent decision of the Full Bench of the Apex Court in the case of Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) decided on 15th December, 2022, reported in AIR 2023 SC 330, more particularly, the observations made in paragraphs 28 to 35, paragraph 46 and Page 9 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined clause (e) and (f) of paragraph 68, which read as under :
"28. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under:
"1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?"
In order to answer the aforesaid question, it would be useful to recapitulate the relevant provisions of the law of evidence vis-à-vis tendering of oral and documentary evidence; presumptions and circumstantial evidence. Thereafter to analyse the three cases and also other cases cited at the Bar in the background of the question raised and to derive a conclusion from the said discussion. Relevant provisions of Law of Evidence - A discussion:
29. Since the main thrust of this case is on the quality of evidence for proof of demand and acceptance of an illegal gratification before a public servant can be held guilty of an offence under Section 7 and/or Section 13(1)(d) of the Act, it would be appropriate to discuss the salient principles of law of evidence relevant to the question under consideration.
In this context, it would be necessary to refer to Sections 3, 4, 59, 60, 61, 62, 63, 64, 65 and 154 of the Evidence Act.
30. Congruent to the principle of res gestae, a fact includes a state of things or events as well as the mental state i.e. intention or animus. A fact in law of evidence includes the factum probandum i.e., the principal fact to be proved and the factum probans, i.e., the evidentiary fact from which the principal fact follows immediately or by inference. On the other hand, the expression "fact in issue"
means the matters which are in dispute or which form the subject of investigation. (vide Section 3 of Evidence Act).
31. It is well settled that evidence is upon facts pleaded in a case and hence, the principal facts are sometimes the facts in issue. Facts relevant to the issue are evidentiary facts which render Page 10 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined probable the existence or non-existence of a fact in issue or some relevant fact.
32. In criminal cases, the facts in issue are constituted in the charge, or acquisition, in cases of warrant or summon cases. The proof of facts in issue could be oral and documentary evidence. Evidence is the medium through which the court is convinced of the truth or otherwise of the matter under enquiry, i.e., the actual words of witnesses, or documents produced and not the facts which have to be proved by oral and documentary evidence. Of course, the term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge under Section 313 of the Criminal Procedure Code (CrPC).
33. Further, according to Sarkar on Law of Evidence, 20 th Edition, Volume 1, "direct" or "original" evidence means that evidence which establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it, and believed that it established a fact in issue. Direct evidence proves the existence of a fact in issue without any inference of presumption. On the other hand, "indirect evidence" or "substantial evidence" gives rise to the logical inference that such a fact exists, either conclusively or presumptively. The effect of substantial evidence under consideration must be such as not to admit more than one solution and must be inconsistent with any explanation that the fact is not proved. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred.
34. Again, oral evidence can be classified as original and hearsay evidence. Original evidence is that which a witness reports himself to have seen or heard through the medium of his own senses. Hearsay evidence is also called derivative, transmitted, or second- hand evidence in which a witness is merely reporting not what he himself saw or heard, and not what has come under the immediate observation of his own bodily senses, but what he has learnt in respect of the fact through the medium of a third person. Normally, a hearsay witness would be inadmissible, but when it is corroborated by substantive evidence of other witnesses, it would be admissible vide Mukhtiar Singh.
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35. Evidence that does not establish the fact in issue directly but throws light on the circumstances in which the fact in issue did not occur is circumstantial evidence (also called inferential or presumptive evidence). Circumstantial evidence means facts from which another fact is inferred. Although circumstantial evidence does not go to prove directly the fact in issue, it is equally direct. Circumstantial evidence has also to be proved by direct evidence of the circumstances.
Further, letting in evidence should be in accordance with the provision of the Evidence Act by the examination of witnesses, i.e., examination-in-chief, cross-examination, and re-examination.
46. Courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely,
(i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognised by law". The expression "may presume" and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume". "May presume" leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act.
68. What emerges from the aforesaid discussion is summarised as under:
(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 Page 12 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined 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."
4.4 The learned APP, therefore, urged that the present appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside and the respondents - original accused be held guilty of the alleged offence.
5. As against that, the learned counsel Mr.Vishal K. Anandjiwala appearing for the respondents - original accused has strongly objected the present appeal and submitted that the learned Trial Court has rightly appreciated the evidence led by the prosecution in its true and proper spirit and therefore, there is no reason to interfere with the impugned judgment and order of acquittal recorded by the learned Trial Court. It is further submitted by the learned advocate Mr.Anandjiwala that the decoy witness, viz. driver of the vehicle, has not supported Page 13 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined the case of the prosecution and was declared hostile by the learned Trial Court and therefore, the learned Trial Court has rightly considered the evidence of other witnesses vis-a-vis the evidence of this hostile witness discussed in paragraph no.27 in the impugned judgment and the observations made by the learned Trial Court is in accordance with the settled legal principles of law.
5.1 He has further submitted that from the evidence of the Panch Witness - 1 also the demand is not proved beyond reasonable doubts as it is the preliminary requirement for proving the charge under Section 13 of the Prevention of Corruption Act that the prosecution has to prove both the ingredients i.e. demand and acceptance beyond reasonable doubts. He has also further submitted that now, in view of the recent judgment of the Hon'ble Apex Court that merely on recovery of the amount from the possession of the accused, the charge cannot be proved for demand and acceptance and the same is in the present case and therefore, the learned Trial Court has rightly considered all these aspects while determining and appreciating the evidence led by the prosecution while passing the impugned judgment and order of Page 14 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined acquittal.
5.2 He has also further submitted that the present appeal is against the judgment of acquittal where the criteria to consider the appeal against the conviction and the acquittal is completely different as it is now settled and corollary in view of the judgment in case of Chandrappa and other vs. State of Karnataka, reported in [2007] 4 SCC 415, the Hon'ble Apex Court has enunciated the principle to decide an appeal against the acquittal that under which circumstances the Appellate Court can consider an appeal against the acquittal. If there is any illegality or any perversity or any findings which is against the law, the Appellate Court can interfere with the appeal against acquittal. Learned advocate Mr.Anandjiwala has referred to and relied upon the judgment of this Court in the case of State of Gujarat Vs. Devrambhai Manilal Nayi in Criminal Appeal No.390 of 2007, decided on 13.04.2023, wherein, in the similar set of circumstance and the facts, this Court has dismissed the appeal filed by the State of Gujarat against acquittal.
6. PW-4 - Indravadan Balkrushna Vyas (Exh.-55), P.I., has Page 15 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined accepted in his cross-examination that though he has received information from the secret sources with regard to the illegal demand at Sagbara check post by this RTO Inspector from the commuters who are passing through the check post, they are demanding the illegal gratification, such information was neither reduced in writing in the police station register nor it was informed to the higher officer. He has also further accepted in his cross-examination that he had not mentioned this fact in the FIR at the time of registration of the incident. It is the preliminary duty of the officer who is arranging the trap or decoy that before proceeding for arranging the trap or decoy, he has to mention all the facts in the station diary or the station register. In the present case, the I.O., who has registered the FIR against the respondents accused, has categorically admitted in his evidence in paragraph 31 onwards that he had not followed all these process and he had not intimated to his colleague namely PW-7 - Ranjitsinh Desabhai Vala (Exh.-67), who was also an ACB Inspector and discharging his duty alongwith the complainant PW-4 in the said office. Thus, before proceeding for the decoy, he has not informed about the decoy to PW-7 being a colleague P.I. and sitting in the same office. This witness has categorically Page 16 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined admitted all these facts in his evidence and therefore, the learned Trial Court has rightly appreciated the evidence of this witness in detail, and in paragraph 31 onwards, the learned Trial Court has discussed the evidence of PW-4. Even PW-2 - Gokulpuri Kishanpuri Goswami (Exh.-38), who is the decoy witness and driver of the vehicle, through whom the decoy was planned and arranged, has not supported the case of the prosecution. Even PW-1 - Aasabhai Somabhai Vanand (Exh.-
24), who is a Panch witness, has also categorically stated before the Court that in his presence there was no demand or acceptance since he was away from the check post where the alleged incident of demand and acceptance took place.
7. I have heard the learned counsel appearing for the respective parties and perused the material placed on record. After analyzing the evidence recorded by the Trial Court and after perusal of the documentary evidence which is placed before the Trial Court and on re-examination of the evidence, I am of the opinion that the prosecution has not established the case beyond reasonable doubt with regard to the demand made by the present respondents - original accused. After considering the evidence of all the concerned witnesses viz. Page 17 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023
NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined PW-1, PW-2, PW-4 vis-a-vis PW-7, I am of the opinion that the learned Trial Court has not committed any illegality or there is no any perversity in the impugned judgment and order passed by the learned Trial Court. The same is in accordance with the settled legal principles of law and there is no any prime ingredients proved by the prosecution namely demand and acceptance beyond reasonable doubts. Even it is also categorically admitted by PW-2 that there was no excess money found from the possession of the PW-1. The amount which was found was in accordance with memo book and the same tallied with the memo book and therefore, the story put forward by the prosecution with regard to illegal gratification was not proved because no excess money was found from the Panchnama carried out by the trapping officer. Even there is serious lacuna recorded by the learned Trial Court while carrying out the investigation. Even there is material contradiction also found by the learned Trial Court and the same is discussed in paragraph 20 onwards which is the basic diffect found by the learned Trial Court in the case of the prosecution.
7.1 The recent pronouncement by the Apex Court in case of Page 18 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined Neeraj Dutta (Supra), wherein, the Apex Court has considered the case that the demand for gratification and its acceptance must be proved beyond reasonable doubt. The allegation of demand for gratification and acceptance made by a public servant has to be established beyond reasonable doubt as it is observed by the Apex Court after pronouncement of the Full Bench Judgment that this corollary ingredient of the illegal gratification and acceptance is not diluted by the Constitutional Bench of the Apex Court. Thus, I am of the opinion that in the present case, the prosecution has not established the first and foremost requirement with regard to the demand of proof beyond reasonable doubt. Merely the tainted currency note of Rs.500/- was found from the drawer, the inference cannot be drawn against the respondents accused. The first ingredient of the demand is not proved beyond reasonable doubt and therefore, there is no question to infer against the present respondents accused with regard to demand as contended by the learned APP Ms.Mehta, and therefore, the learned Trial Court has rightly passed the impugned judgment and order of acquittal after appreciating the evidence of the prosecution witness. The learned APP is unable to explain this guiding principles laid down by the Apex Page 19 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined Court as there is no any other view to the said guiding principles as enunciated by the Apex Court time and again in the case of Prevention of Corruption Act that the basic requirement to prove the demand and subsequent to that the receipt of the amount of bribe beyond reasonable doubt. Thus, I do not find material substance in the contention raised by the learned APP. Therefore, in the present case, the prosecution has not established the said ingredient or requirement beyond reasonable doubt. Hence, the Trial Court has not committed any error while passing the impugned judgment and order of acquittal.
8. At this stage, it would be appropriate to refer to the decision of this Court in case of State of Gujarat Vs. Ratilal Hirji Jobanputra reported in 2023 LawSuit (Guj.) 783, wherein, the Co-ordinate Bench of this Court in the similar situation and identical facts, while dismissing the appeal filed by the State has observed in paragraphs 14 and 15 as under :
"14. Therefore, on overall analysis of the aforesaid evidence on record, once the complainant himself in his deposition had denied to identify the respondent and not supported the case of the prosecution, which is being further supported by the independent panch witnesses, prosecution failed in proving their case in relation to demand. The sole reliance placed by the appellant on deposition Page 20 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined of PW-5, who was Investigating Officer, remains no evidence as to demand on record and the same loses its evidential value as regards the demand and acceptance, as alleged. The evidence of investigating officer also become meaningless as from the evidence of independent panch witnesses, nothing concrete is revealed that the respondent ever demanded any amount of illegal gratification from the complainant.
15. In view of the aforesaid nature of evidence, learned trial Court has rightly recorded the finding of acquittal thereby rightly acquitted the accused, which does not call for any interference of this Court. Even otherwise also, the case is covered by the decision of K. Shanthamma v. State of Telangana (supra) and on that count also, there appears no merit in the appeal. This Court finds that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal."
9. It is well settled that while dealing with the acquittal appeal, while exercising powers under Section 378(1)(3), the scope and ambit of the powers to the Appellate Court while dealing with the acquittal appeal is as enunciated by the Apex Court in case of Chandrappa and others (Supra) in paragraph 42 is very limited. Of course, the Appellate Court has to re-appreciate and re-examine all the evidence which is recorded by the Trial Court, and on perusal of the said evidence and examination of the evidence recorded by the Page 21 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023 NEUTRAL CITATION R/CR.A/1109/2008 JUDGMENT DATED: 27/07/2023 undefined Trial Court, if any perversity or infirmity is found in the evidence, then in that case only, the Appellate Court can exercise the powers under Section 378(1)(3) of the Code of Criminal Procedure, 1973. Here in the present case, in my opinion, there is no infirmity or any perversity found in the judgment of the learned Trial Court recording acquittal.
10. For the foregoing reasons, the present appeal deserves to be dismissed and is hereby dismissed. The bailable warrant in the sum of Rs.10,000/- issued against each of the respondents at the time of admission of appeal stands cancelled. The bail bond, if any, furnished by the respondents accused also stands cancelled. Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J) Dolly Page 22 of 22 Downloaded on : Sat Sep 16 23:06:09 IST 2023