Gujarat High Court
The State Of Gujarat vs Ratilal Hirji Jobanputra on 13 February, 2023
R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1941 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
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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THE STATE OF GUJARAT
Versus
RATILAL HIRJI JOBANPUTRA
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Appearance:
MS JIRGA JHAVERI, LD.ADDL. PUBLIC PROSECUTOR for the Appellant(s).
MR D C SEJPAL(1322) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 13/02/2023
ORAL JUDGMENT
1. This is an appeal preferred by the State of Gujarat under Section 378(3) of Code of Criminal Procedure, 1973 ("The Code" for short) against the judgment and order of acquittal dated 23.06.2006, recorded by learned Special Judge (Fast Page 1 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023 R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 Track Court No.5), Bhuj- Kutch in Special Case No.99 of 1993, whereby the learned trial Court acquitted respondent - accused from the charges of the offences punishable under Sections 7, 13(d) read with 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short).
2. Brief facts leading to the prosecution case is that, on 29.12.1991, respondent was discharging his duties as a Nayak
- Peon in the office of Gujarat State Warehousing Corporation, Bhuj and on that day, complainant-Ramesh Kanji Rathod, resident of Mahdapur, Junavas, Taluka: Bhuj, District: Kutch, came with loaded truck bearing No.GRN 3668. The said truck was loaded with DAP Fertilizers of Gujarat State Fertilizers Co. Ltd., Bhuj Depot, Village: Moti Khavdi, Jamnagar, Sikka and required to be offloaded at the godown of Gujarat Warehousing Corporation, Bhuj. For offloading the truck, on 29.12.1991, the complainant met respondent, who told the complainant that today being Sunday, it was not possible to offload the truck and if he wishes to do the same, he had to pay Rs.50/- and also told him to meet at 'Octroi naka' at around 2:30 p.m. It was case of the prosecution that as the complainant was not ready and willing to pay the amount of illegal gratification, demanded by respondent, he approached Police Inspector, ACB Police Station, Kutch- Bhuj. Pursuant to the said compliant, Police Inspector, ACB Police Station, arranged a trap by calling Page 2 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023 R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 independent panch witnesses and during course of trap, respondent was caught with the amount of illegal gratification and therefore, an offence punishable under sections 7, 13(d) read with 13(2) of Prevention of Corruption Act, was registered against him.
Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondent was arrested. Ultimately, charge- sheet came to be filed before the learned Special Judge, Kutch at Bhuj, where the case was registered as Special Case No.99 of 1993. The trial was initiated against the respondent.
3. To prove the case against the present respondent, the prosecution had examined in all five witnesses and also produced several documentary evidences.
4. At the end of trial, after recording the statement of the respondent under Section 313 of the Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges levelled against him by the impugned judgment and order.
5. Being aggrieved and dis-satisfied with the aforesaid judgment and order passed by learned trial Court, the appellant- State has preferred the present appeal.
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6. Heard Ms. Jirga Jhaveri, learned APP for the appellant - State and Mr.Divyesh Sejpal, learned advocate for respondent - accused.
7. Appearing for the State, learned APP Ms. Jirga Jhaveri by taking this Court to deposition of PW-5- investigating officer, who is also a trapping officer, submitted that, PW-5 in his cross-examination had stated that after following due procedure, the amount of illegal gratification was found from the pocket of respondent. Therefore, as the illegal gratification was accepted by the respondent, there is clear evidence in relation to demand and acceptance, which trial Court had erred in considering. She further submitted that learned trial Court had not properly appreciated the evidence on record and learned trial Court ought to have considered the deposition of PW-5 (investigating officer), who was trapping officer, to establish the demand. Further, the learned trial Court had erred in not properly appreciating the evidence led by the prosecution looking to the provisions of the Act, which establishes that the prosecution had proved all the ingredients of alleged charges against the present respondent. By taking this Court to various oral and documentary evidence, learned APP contended that the learned trial Court's order of acquittal is based on inference not warranted by facts of the present Page 4 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023 R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 case and is based on the presumption, not permitted by law. It is also contended by her that learned Judge had not properly appreciated oral as well as documentary evidences and wrongly acquitted the respondent from alleged offence punishable under sections 7, 13(d) read with 13(2) of Prevention of Corruption Act, which requires to be reassessed as respondent is required to be convicted and this appeal of the State is required to be allowed.
8. On the other hand, learned advocate Mr.Divyesh Sejpal for the respondent-accused supported the impugned judgement and order of acquittal and submitted that the complainant (PW-1) at Exh-9 had not supported the case of prosecution. Referring PW-1's cross-examination, he submitted that the complainant had deposed that he had not seen the respondent prior, except before the Court. He further had stated in his deposition that he had given only one envelop to respondent and was not aware of anything. Further, referring to deposition of PW-2 at Exh-13 (independent panch witness), he contended that even independent panch witness had not identified the respondent. On the contrary, he had stated in his cross- examination that he acted as directed by the police. Even PW- 3- Babuji Sangramsing Lakhiyar at Exh-16, who is independent panch witness, had not supported the case of prosecution. Most importantly, in his deposition, PW -3 had stated that he had Page 5 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023 R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 not seen recovery of amount from the pocket of the respondent as he was standing far from the place of incident. He, thus, submitted that none of the prosecution witnesses have supported the case of prosecution. The person, who had accorded the sanction, was not examined and therefore, the findings recorded by the learned trial Court are in consonance with the evidence on record. He, thus, submitted that in view of the aforesaid background of evidence, prosecution is failed in establishing their case in relation to demand, acceptance and recovery of illegal gratification. Therefore, the findings recorded by the trial Court is based on appreciation of correct facts and evidence on record and does not require any interference by this Court.
9. This Court has minutely perused the oral as well as documentary evidence on record and gone through the impugned judgment and order passed by the trial Court as well as paper book and evidence led by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant - State and learned advocate for respondent.
10. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415, the Hon'ble Apex Court laid down the following principles:
Page 6 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
1. An appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of act and of law.
3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusion", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
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4. An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
11. Similar principle has been laid down by the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Ram Veer Singh, reported in 2007 AIR SCW 5553, that while exercising the appellate power even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the learned trial Court.
12. In the recent decision in the case of K. Shanthamma v. State of Telangana reported in (2022) 4 SCC 574 it has been Page 8 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023 R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 held as under:
"10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.
11. In P. Satyanarayana Murthy v. State of A.P., this Court has summarised the well-settled law on the subject in para 23 which reads thus:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (I) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction Page 9 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023 R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 thereunder."
13. Having heard learned advocates appearing for the respective parties to the present proceedings and having perused the impugned judgement and order as well as record and proceedings, it is surfaced that at the relevant time, the respondent was working as Peon in the office of Gujarat State Warehousing Corporation, Bhuj. Further, place of demand and the demand raised could not be established by the prosecution. None of the panch witnesses have supported the case of the prosecution in relation to demand. Moreover, investigating officer in his deposition, had stated that nothing could be established with regard to charge of godown at the relevant time having been with the respondent. Even from the deposition of panch witnesses, the recovery of demand, as alleged, could not be established.
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 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 Page 10 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023 R/CR.A/1941/2006 JUDGMENT DATED: 13/02/2023 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.
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16. In the result, the present appeal is hereby dismissed. Record and proceedings to be sent back to the trial Court, forthwith.
sd/-
(MAUNA M. BHATT,J) DIPTI PATEL Page 12 of 12 Downloaded on : Tue Feb 14 20:51:34 IST 2023