Gujarat High Court
The State Of Gujarat vs Pitamber Ramrav Desale on 19 July, 2024
NEUTRAL CITATION
R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2323 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
================================================================
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 ?
================================================================
THE STATE OF GUJARAT
Versus
PITAMBER RAMRAV DESALE
================================================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/07/2024
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 A.C.B. Case No.6 of 20021 passed by the learned Presiding Page 1 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined Officer, Fast Track Court No.7, Surat (hereinafter referred to as 'the learned Trial Court') on 30.09.2006, whereby, the learned Trial Court has acquitted the respondent - accused from the offences punishable under Sections 7, 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 accused was working as an Assistant Sub Inspector in the Traffic Branch, Surat City and the complainant was doing the work of diamond polish and was residing at D/154, Matrushakti Society, Kapodra, Surat. That Guddubhai Soransingh Rajput and Shishupal Soransingh Rajput were brothers and were residing in Amardham Society, which was near the society of the complainant and they had two auto rickshaws bearing registration No.GJY-
9458 and No. GJ-5-TT-4746. That both the brothers met the Page 2 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined complainant and told him that the accused had halted their rickshaws and demand an amount of Rs.400/- and had threatened them that he would release the rickshaws only if the amount of Rs.400/- was paid. That the accused had given memo bearing No.19103 to pay the fine and had detained the rickshaw. That he had gone and met the accused at Varachha Baroda Prestige and told the accused to release the rickshaw and they would pay the amount of fine by tomorrow but the accused refused and demanded to pay an amount of Rs.75/- for which receipt would be given and an amount of Rs.1000/- was to be given as fine in the RTO. That as they did not have the amount to pay, the accused told them to give the amount of Rs.400/- to him between 5:00pm to 9:00pm at Varachha Baroda Prestige to return the memo and he would give the receipt of Rs.75/- and would release the rickshaws. That the complainant did not want to give the amount of illegal gratification to the accused and hence, went to the ACB Police Station, Surat on 15.09.1999 and filed a complaint under Sections 7, 13(1)(d) and 13(2) of the P.C.Act, which was registered at C.R.No. 11 of 1999. Page 3 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024
NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined 2.2. That the panch witnesses were called by the Trap Laying Officer and the Trap Laying Officer introduced the complainant and the panch witnesses to each other and the complainant gave two currency notes of the denomination of Rs.100/- each and four currency notes of the denomination of Rs.50/- each to the Trap Laying Officer. That characteristic of anthracene powder and ultraviolet lamp were explained and the demonstration of anthracene powder and ultraviolet lamp was carried out in the presence of the panch witnesses and the complainant and the currency notes were smeared with anthracene powder and placed in the left side shirt pocket of the complainant and necessary instructions were given by the Trap Laying Officer to the complainant and the panch witnesses. That the complainant and the panch witnesses and the members of the raiding party came down from the ACB Office and auto rickshaw No.GJ-5-TT 4746 was hired at the ACB Office and the driver was Radheshyam Antersinh. That the complainant and the panch witness No.1 sat in the rickshaw and went to Varachha Baroda Prastige Cross Roads and the panch witness No. 2 and other Page 4 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined members of the raiding party followed them in a private voyager vehicle No.GJ-7-R-24. That they left from the ACB Office and went through Bhagal, Delhi Gate, Varachha Sugar Bazar and came to Baroda Prestige Cross Roads and reached Baroda Prestige Bust Stand at about 19:30 hours. The rickshaw was halted and the panch witness No.1 went to the police, who was standing at the traffic signal. That the complainant told him that he had brought the memo as discussed and the accused called the complainant and went to the shop named "Shamla Travels" and "Shriji Travels"
and the accused sat on the chair in the shop. The accused asked the complainant whether he had brought Rs.400/- and the complainant replied in the affirmative and demanded for the memo and took the receipt book and gave the receipt to the rickshaw driver to affix the signature and the rickshaw driver affixed his signature on the same. That Rs.75/- was written on the receipt and the accused demanded Rs.400/-, which was given by the complainant and accepted by the accused. That the accused took the currency notes and placed it in right side shirt pocket. That the accused told the Page 5 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined complainant to show the receipt at Varachha Police Station and his rickshaw would be released and the complainant came out and gave the pre-determined signal and the members of the raiding party came and caught the accused red handed. That the necessary panchnama was drawn and the Investigating officer recorded the statement of the connected witnesses and after the order of sanction for prosecution was received, the charge sheet came to be filed before the learned Sessions Court, Surat, which was registered as Special ACB Case No.6 of 2000. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and after the due procedure under Section 207 of the Code of Criminal Procedure was completed, a charge was framed against the accused at Exh.5 and the statement of the accused was recorded at Exh.6, wherein, the accused denied the allegations made in the charge and the evidence of the prosecution was taken on record. The prosecution has produced oral evidence of 5 witnesses and 20 documentary Page 6 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined evidence to prove the charge against the accused. That after the learned APP filed a closing pursis at Exh.56, the further statement of the accused under section 313 of the Code was recorded, wherein, the accused denied all the evidence against him and after arguments of the learned APP and learned advocate for the accused were heard, the learned Trial Court passed the impugned judgment and order of acquittal.
3. Being aggrieved and dissatisfied with the impugned judgment and the order of acquittal, the appellant - State has filed the present appeal mainly contending that the impugned judgment and the order of acquittal is contrary to law and the evidence on record and the learned Trial Court has not appreciated the version of the PW-2 Chhaganbhai Maisurbhai Makwana who has fully supported the case of the prosecution and in the cross-examination, nothing adverse has come on record. That the learned Trial Court has not appreciated the evidence of the Trap Laying Officer and the Investigating Officer and even though, the prosecution Page 7 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined has proved all the ingredients of demand, acceptance and recovery and has proved that the accused had demanded the amount of illegal gratification, the learned Trial Court has not considered the same. That the learned Trial Court has not considered that the bribe amount was seized from the accused during the course of search and seizure and the prosecution has established the factum of demand on the basis of evidence of the complainant and the learned Trial Court was not correct in arriving at the conclusion that the demand is not made out. That looking to the evidence produced before the learned Trial Court, the prosecution has successfully established the case beyond reasonable doubts and the order of acquittal passed by the learned Trial Court is unwarranted and illegal and having no basis in the eye of law. That the learned Trial Court has erred in disbelieving the evidence of the prosecution and the same has resulted into miscarraige of justice and the reasons stated by the learned Trial Court while acquitting the accused are improper, perverse and bad in-law. That even otherwise, the judgment and order of acquittal is illegal, improper and bad Page 8 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined in law and hence, the same deserves to be quashed and set aside.
4. Heard learned Additional Public Prosecutor Ms.Jirga Jhaveri for the appellant - State and learned advocate Mr. Nauman Qureshi for learned advocate Mr. Shakeel Quaresh for the respondent. Perused the impugned judgment and the order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms.Jirga Jhaveri for the appellant - State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the demand, acceptance and recovery of the tainted currency notes and has successfully proved the case against the respondent but the learned Trial Court has not considered the same and has acquitted the respondent. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the respondent Page 9 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined guilty for the said offence as the respondent being a public servant, he could not demand any amount of illegal gratification. Hence, learned APP has urged this Court to allow the present appeal and impose maximum sentence to the respondent.
6. Learned advocate Mr. Nauman Qureshi for learned advocate Mr. Shakeel Qureshi for the respondent has submitted that the learned Trial Court has appreciated all the evidence in true perspective and has not at all committed any error in acquitting the respondent and therefore, no interference of this Court is required in the impugned judgement and the order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal.
7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
Page 10 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024
NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined "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 concretized 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 re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka3, "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, Page 11 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Page 12 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined Sambasivan v. State of Kerala)."
7.1. In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
7.2. The Apex Court, in the case of Neeraj Dutta Vs. State (Govt.
of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, Page 13 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined has observed in Para No. 68, which reads 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) 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 Page 14 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined 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 inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section Page 15 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined 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."
8. As per the settled principles of law, which are very well crystallized with regard to the interference of the Appellate Court in acquittal appeals, the evidence produced by the prosecution must be re-appreciated and only if there is perversity or illegality in the impugned judgment and order, an interference of the Appellate Court would be warranted. It is also settled that if two views are possible and the learned trial Court has taken a view of acquitting the accused, the Appellate Court should not interfere with the impugned judgment and order and it is open for the Appellate Court to re-appreciate the evidence.
9. In view of the settled principles of law by the Apex Court in the cases of Mallappa (Supra) as well as the aspects to be considered in cases under the P.C.Act as laid down in the case of Neeraj Dutta (Supra), the evidence of the Page 16 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined prosecution is required to be minutely dissected. The prosecution has examined PW-1 Madhubhai Karshanbhai Bhayani at Exh.14 and the witness is the panch witness, who has stated that in the year 1999, he was working as a diamond polishing worker and Guddubhai and Shishupal were residing in the society next to his society. That they had two auto rickshaws but he does not remember the registration number of the rickshaw. That Guddubhai had come and had told him that he had to go to Nanpura Police Chowki and he had gone with Guddubhai and they were seated outside of the office and one officer came and asked Guddubhai to sign some papers and he had signed and they went to Varachha Police Station. That he does not know Radheshyam and does not know whether any case regarding the rickshaw had taken place. That the witness has been declared hostile and has denied that he had filed the complaint against the accused at ACB Police Station on 15.09.1999. The witness has been cross-examined at length by the learned APP and the witness has denied each and every aspect of the complaint as well as the procedure undertaken Page 17 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined for the trap and also the details that had occurred at the time of the trap. During the cross-examination by the learned advocate for the accused, the witness has categorically stated that he has not filed any complaint at the ACB Police Station and no panchnama procedure was undertaken in his presence. That the accused had never demanded any amount from him and he had not agreed to pay any amount to the accused. The witness has categorically stated that the accused had not demanded any amount of illegal gratification and he had not filed any complaint in this regard.
9.1. The prosecution has examined PW-2 Chhaganbhai Maisurbhai Makwana at Exh. 18 and the witness is the panch witness, who has stated that he had gone to the ACB Police Station on 15.09.1999 along with the other panch witness Harshadbhai C. Bhavsar. The witness has supported the case of the prosecution and has stated that he along with the other panch witness went to the ACB Police Station and they were introduced to the complainant, who had given two Page 18 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined currency notes of the denomination of Rs.100/- each and four currency notes of the denomination of Rs.50/- each and the witness has deposed about the demonstration of anthracene powder and ultraviolet lamp in their presence and they were explained the characteristic of anthracene powder and ultraviolet lamp. That the currency notes were smeared with anthracene powder and placed in the left side shit pocket of the complainant and the trap was arranged. That they all had left for the place of the trap and the complainant went in auto rickshaw, which was being driven by Radheshyam and others were following them in a private voyager vehicle. That they reached at Varachha Baroda Prestige Cross Roads at about 19:30 hours and driver of the auto rickshaw halted upon the say of the complainant. That there were three policemen and the name plate of the accused was on their right-side shirt pocket. That the complainant had a conversation with the accused and they went to the shop at which the board of "Shamla Travels" and "Shriji Travels" was written and it was a shop selling shoes and slippers. When they went inside the shop, one chair was Page 19 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined in the shop. When the complainant gave the amount of Rs.400/-, the accused took the money and made the receipt and told the complainant to get the signature of the rickshaw driver and the complainant called the rickshaw driver, who had affixed his signature and thereafter, the accused demanded the amount of Rs.400/- and the accused had accepted the said amount and kept in his right side shirt pocket. That a receipt of Rs.75/- was given and the complainant came out and gave the pre-determined signal and the members of the raiding party came and caught the accused red handed and the panchnama was drawn. During the cross-examination by the learned advocate for the accused, the witness has stated that he has never dictated the panchnama and had never seen the ultraviolet lamp or anthracene powder and he does not know whether anthracene powder was sticky or rough and he does not know the use of anthracene powder. That when they left for the ACB office, no other members of the ACB Police Station were with him and the person, in whose name the memo was given, was not with him. That he did not inquire Page 20 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined whether the person, in whose name the memo was given, was alive or not and he did not inquire as to whether the rickshaw was actually detained or not. That the board on the shop was "Shamlaji Travels" and "Shriji Travels" but it was not the office of any transport company and shoes and slippers were being sold at this shop. That a person named Kama Sadanand Saga was present during the entire procedure and was doing the business of selling shoes and slippers. That he did not have any conversation in the shop and when the complainant came out of the shop, he also came out of the shop but he did not see the members of ACB. That the panchnama is produced at Exh.19, the seizure memo is produced at Exh.20, the arrest panchnama of the accused is produced at Exh.21, the memo is produced at Exh.22 and the receipt given by the accused is produced at Exh.23.
9.2. The prosecution has examined PW-3 Manilal Karshanbhai Obhaliya at Exh.34 and the witness is the lamp operator, who was alongwith the members of the raiding party on the Page 21 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined date of the trap. The witness has fully supported the case of the prosecution and has narrated in detail about the entire procedure that had taken place on 15.09.1999 and the procedure that was done by him with regard to the demonstration of anthracene powder and ultraviolet lamp test. During the cross-examination by the learned advocate, the witness has stated that Police Inspector A.M.Rathod was a member of the raiding party and was in the ACB Office till the entire procedure was undertaken and Police Inspector A.M.Rathod was the Investigating Officer. That two Police Inspectors and Digambar Nathu Shinde were also the members of the raiding party and Digambar Nathu Shinde has worked as lamp operator in earlier cases. 8.3. The prosecution has examined PW-4 Lal Mohammad Jummakhan Merunjay at Exh.35 and the witness is the Trap Laying Officer and on 15.09.1999, the complainant had filed the complaint before him. The witness has fully supported the case of the prosecution and the witness has narrated in detail all the events that had unfolded on 15.09.1999. That the Page 22 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined complainant had given two complaints and he had decided for the trap and the procedure that was undertaken after calling the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was carried out in the presence of the panch witnesses and the complainant and the characteristic of anthracene powder and ultraviolet lamp was explained to the complainant and the panch witnesses. That the currency notes were smeared with anthracene powder and thereafter, they went to the place of the trap. During the cross-examination by the learned advocate for the accused, the witness has stated that the complainant was working as a diamond polishing worker and the rickshaws mentioned in the complaint was not in the ownership of the complainant. That the complainant had nothing to do with the rickshaw or with the business of rickshaw driving and at the time of the incident, the owners of both the rickshaws were in Surat city. That as per the law, an Assistant Police Inspector or Officer Superior to him can collect the amount of fine at the spot. That he had sent the memo that was given to the rickshaw driver and in the memo, the rickshaw driver Page 23 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined was charged with more than one offence. That he cannot say whether the fine could be collected at the spot or not and in the memo, the signature of Guddubhai was affixed. That in the memo at Exh.22, Guddubhai had affixed his signature and there was no name of Radheshyam in the memo at Exh.22. That the memo at Exh.22 was with the complainant and at that time, he was with the complainant. That in the panchnama Part-II, the time is not mentioned and the complainant had nothing to do with the memo produced at Exh.22.
9.4. The prosecution has examined PW-5 Ajabsinh Mulsinh Rathod at Exh.41 and the witness has stated that he had taken over the investigation from Police Inspector L.J.Merunjay. That he had recorded the statement of the connected witnesses and after the order of sanction for prosecution was received, he had filed the charge sheet before the learned Trial Court. During the cross-examination by the learned advocate for the accused, the witness has stated that he was a member of the raiding party and was Page 24 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined fully aware of the trap and all the details of the trap. That every trap case cannot be investigated by the person who had arranged the trap and during investigation, he had not found any evidence that rickshaw No.GJ-5-TT-9458 was detained at Varachha Police Station. During the investigation, he had not found that the rickshaw was detained at any place and the panchnama of the rickshaw lying at Varachha Police Station was not drawn by him. That the rickshaw was not detained by Varachha Police Station and in the memo seized from the accused, the amount of Rs.400/- paid as fine was written with a ball pen and the receipt number of Rs.75/- was written and as there is no mention of Rs.75/- on the memo. That in the memo RTO office was not ticked and he has not investigated whether the original memo was sent to RTO Office, Surat or not. That he had not investigated, who was the owner of the shop and there was no board of the footwear on the shop. That he had inquired about the name of the person in the shop and there were the boards of "Shamlaji Travels" and "Shriji Travels' on the shop. That he has recorded the statement of the owners Page 25 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined of the surrounding shops. That the trap was successful but he had not annexed their statements along with the charge sheet.
10. On minute appreciation of the evidence of the prosecution on record, the complainant Madhubhai Karshanbhai Bhayani has been declared hostile and he has not supported the case of the prosecution at all. The witness has completely resiled from his complaint and has categorically stated that he had not filed any complaint with ACB Police Station and he does not know Radheshyam but had merely gone to Nanpura Police Station with Guddubhai. As per the case of the prosecution, the memo at Exh.22 was given to Guddubhai but Guddubhai has not been examined before the learned Trial Court. It has also come on record that the Investigating Officer was a member of the raiding party and was with the Trap Laying Officer at the time when the complainant went to the ACB Police Station. The Investigating Officer has not investigated whether the rickshaw was, in fact, detained at Varachha Police Station or Page 26 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined not and there is no iota of evidence that the rickshaw was detained at any place by the accused.
10.1. If the memo produced at Exh.21 is perused, in the left corner, it is mentioned that the amount of Rs.400/- is paid as fine and the offences have been mentioned against the rickshaw driver, whose name is Guddubhai Turatsinh Thakor. In the evidence, it has also come on record that at the time of the trap, the accused had given the receipt the complainant and asked him to get the signature of Guddubhai affixed on the memo but the complainant called Radheshyam, who had signed as Guddubhai on the documents.
10.2. That in the entire evidence, there is no iota of evidence regarding demand of illegal gratification by the accused and as per the complaint on 15.09.1999, while the complainant was working as a Diamond Polishing Worker in the factory of Popatbhai at Kapodra, Guddubhai Suratsinh, Shishupal Suratsinh and driver Radheshyam had come to meet him and told him that the accused was demanding the amount of Rs.400/-. Hence, prior demand, as per the complaint, has Page 27 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined been made to Guddubhai Suratsinh, Shishupal Suratsinh and driver Radheshyam and none of these have been examined as witnesses before the learned Trial Court. Hence, the factum of prior demand has not been proved by the prosecution. As the complainant has turned hostile and has not supported the case of the prosecution, the demand at the place of the trap has also not been proved beyond reasonable doubt and the memo was with the accused on which necessary tick mark was made regarding RTO office but the Investigating Officer has not investigated the same. There is no iota of evidence that the rickshaw was ever detained at Varachha Police Station and there is no panchnama on record to show that the rickshaw was, in fact, detained on the basis of memo that was issued at Exh.22.
11. On minute re-appreciation of the entire evidence of the prosecution and the impugned judgment and order, it appears that the learned Trial Court has thoroughly appreciated all the evidence on record and has given due consideration to all the material pieces of evidence. The Page 28 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined learned Trial Court has discussed all the oral as well as the documentary evidence and if the evidence produced by the prosecution is examined in light of the law laid down by the Constitution Bench in the case of Neeraj Dutta (Supra), it appears that the learned Trial Court has arrived at findings which are legal and proper and there are no errors of law or in facts. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal.
12. In view of the settled position of law in the decisions of Mallappa (Supra) and Neeraj Dutta (Supra) and appraisal of the evidence produced by the prosecution, the reasons assigned by the learned Trial Court are reasonable and , this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges levelled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed and this Court is Page 29 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024 NEUTRAL CITATION R/CR.A/2323/2006 JUDGMENT DATED: 19/07/2024 undefined in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court.
13. 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.
14. The impugned judgment and order of acquittal dated 30.09.2006 in Special A.C.B. Case No.6 of 20021 passed by the learned Presiding Officer, Fast Track Court No.7, Surat is hereby confirmed.
15. Bail bonds stand cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI.....
Page 30 of 30 Downloaded on : Fri Aug 09 21:08:01 IST 2024