Gujarat High Court
State Of Gujarat vs Mahendra Nagindas Dapkawala on 15 February, 2024
NEUTRAL CITATION
R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1170 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT
Versus
MAHENDRA NAGINDAS DAPKAWALA & ANR.
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR HARDIK A DAVE(3764) for the Opponent(s)/Respondent(s) No. 1,2
MR HARSHADRAY A DAVE(3461) for the Opponent(s)/Respondent(s) No. 1,2
MR MP SHAH(2418) for the Opponent(s)/Respondent(s) No. 1,2
MS. KRUTI M SHAH(2428) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 15/02/2024
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 order of acquittal in Special (Corruption) Case No.36 of 2002 (Old Case No.7 of 1999) Page 1 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined passed by the learned Presiding Officer, 1st Fast Track Court, Bhavnagar (herein after referred to as 'the learned Trial Court' for short) on 07.10.2005. The respondent hereinafter are referred to as 'the accused' as they 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 FIR No.I-C.R.No.6 of 1997 was filed by Mr. A.C.Jadeja, Police Inspector, ACB Police Station, Valsad against the accused for the offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as 'the Act') mainly stating that the accused who were working in the RTO check-post at Bhilad were demanding illegal gratification from the vehicles that were passing by and different amount were being taken from the drivers of different vehicles. That information was received by the ACB Police Station and hence, with the intention of verifying the same, on 10.07.1999, the panch witnesses were called and after following the necessary procedure, a decoy trap was arranged and both the accused were caught red handed demanding the amount from a driver Bakulbhai Laxmanbhai Solanki and accepting the tainted currency notes and the amount of Rs.2,000/- was Page 2 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined recovered from the accused No.1 and an amount of Rs.480/-
was recovered from the accused No.2. That after due investigation, a charge sheet came to be filed before the learned Sessions Court, Valsad and the case was registered as Special (Corruption) Case No.36 of 2002 (Old Case No.7 of 1999).
2.2. That both the accused were duly summoned and after following the procedure under Section 207 of the Code of Criminal Procedure, a charge was framed by the learned Trial Court at Exh.7 and the statements of the accused were recorded at Exhs. 8 and 9. That the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record. That after the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and after the arguments of all the parties were heard, the learned Trial Court, by the impugned judgment and order dated 07.10.2005, gave the benefit of doubt to both the accused and acquitted them from all the offences.
3. Being aggrieved and dissatisfied with the impugned judgment and order in Special (Corruption) Case No.36 of 2002 (Old Case No.7 of 1999) passed by the learned Trial Page 3 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined Court on 07.10.2005, the State has filed the present appeal mainly contending that the prosecution has led the oral and documentary evidence and has proved the case against both the accused beyond reasonable doubts. That the accused No.1 was working as a Police Inspector of Motor Vehicles at Bhilad RTO check post and was a public servant. That the necessary sanction to initiate the proceedings was taken from the superior officer and from the depositions of the witnesses, it is found that the offence was committed by the accused. That though there are minor contradictions and the trial cannot stand vitiated even though, a witness Bakulbhai Laxmanbhai Solanki, who had played an important role in the decoy trap, has turned hostile. That the learned Trial Court has not appreciated the entire evidence of witness Bakulbhai Laxmanbhai Solanki in proper perspective. That the Investigating Officer has supported the case of the prosecution and the impugned judgment and order is erroneous, improper and unjust and hence, the same may be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant - State and learned Advocate Ms.Kruti Shah for the respondent - accused.
5. Learned APP Ms. Jirga Jhaveri has taken this Court through Page 4 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined the evidence and has submitted that even though, the most important witness has turned hostile, the entire case of the prosecution cannot be thrown out and the complainant Mr. A.C.Jadeja, Police Inspector, ACB Police Station, Valsad and the Investigating Officer Mr. Mahavirsinh Pravinsinh Raol, Police Inspector, ACB Police Station, have fully supported the case of the prosecution and there is no reason to disbelieve their evidence. That the learned Trial Court has erroneously passed the impugned judgment and order, which is required to be quashed and set aside and the accused must be found guilty for the said offence.
6. Learned advocate Ms.Kruti Shah for the accused has submitted that the panch witnesses examined by the prosecution have turned hostile and in fact, PW-2 Ashwinbhai Laljibhai Vandariya has not identified the accused before the learned Trial Court. That merely because the complainant was the Police Inspector of ACB Police Station, Valsad and the Investigating Officer was a member of the raiding party and was with the complainant throughout, it cannot be said that their evidence is required to be believed and the case of the prosecution is proved beyond reasonable doubts. That the prosecution has examined four independent witnesses but all have turned hostile and hence, it is clearly Page 5 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined made out that the accused have been falsely implicated in the offence. That the learned Trial Court has rightly appreciated all the oral and documentary evidence in the proper perspective and has rightly held that the prosecution has not proved the case against the accused beyond the reasonable doubt. Learned advocate Ms. Shah has further submitted that the impugned judgment and order is just and proper and no interference is required and hence, the appeal must be dismissed.
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, for acquittal appeals, has observed in Para Nos. 24 to 26, are 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 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 Page 6 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined 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, 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 Page 7 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined 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 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 Page 8 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined 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, 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 Page 9 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined 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 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 Page 10 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined 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."
8. In view of the above settled principles of law and considering the evidence adduced by the prosecution in the instant case, it is the case of the prosecution that information Page 11 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined was received by the Police Inspector, ACB Police Station, Valsad that the accused were taking illegal gratification from the vehicles passing by and decided to verify the same and lay a decoy trap and one truck driver Bakulbhai Laxmanbhai Solanki, who was going with his truck No.GJ-11-T-9541 was asked as to whether he had to pay anything extra for the truck to cross the border and he stated that he had to pay the amount demanded by the RTO Inspector, at Bhilad check post. That the panch witnesses were called and the decoy trap was laid. The prosecution has examined PW-4 Bakulbhai Laxmanbhai Solanki, who is the driver of the truck No.GJ- 11-T-9541 at Exh.18 but this witness has turned hostile and he has not not supported the case of the prosecution. That even during the cross-examination by the learned APP, he has not narrated the case of the prosecution or the entire allegations of the prosecution. That no iota of evidence that the decoy trap was laid is forthcoming from the the evidence of PW-4 Bakulbhai Laxmanbhai Solanki.
8.1. The prosecution has also examined P.W.-2 Ashwinbhai Laljibhai Vandariya at Exh.15, who was in the same truck No.GJ-11-T-9541 with the driver Bakulbhai Laxmanbhai Solanki and an eye witness to the decoy trap but this witness has also not supported the case of the prosecution. That the Page 12 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined witness has been declared hostile and even during the lengthy cross-examination by the learned APP, no evidence to support the case of the prosecution has come on record.
8.2. The prosecution has examined P.W.1 Gulabbhai Makanbhai at Exh.14. This witness is a panch witness of the decoy trap and had been called by the Police Inspector, ACB Police Station, Valsad, as a panch witness but he has not supported the case of the prosecution. The witness has been declared hostile and even in the cross-examination, in iota of evidence of any decoy trap and demand, acceptance and recovery of tainted currency notes has come on record. Similarly, PW-3 Ashokbhai Dhirubhai Patel has been examined at Exh.17, and this witness is the panch witness and has also not supported the case of the prosecution. That all the independent witnesses, who have been examined by the prosecution, have not supported the case of the prosecution.
8.3. That the prosecution has examined PW-5 Ambapratapsinh Chandravijaysinh Jadeja at Exh.21 and he has stated that he was working as Police Inspector in the ACB Police Station, Valsad since 14.02.1996 and he had received information that the RTO Officer at Bhilad RTO check post was taking bribe amount from the vehicles were passed by and hence on 10.07.1997, two panch witnesses were called and they went Page 13 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined at the board of Mathwad village and at that time, truck No.GJ-11-T-9541 was coming from Navsari side and it was halted and on inquiry, the driver of the said truck had stated that an amount of Rs.20/- was to be paid as entry fee at Bhilad RTO check post. That two currency notes of Rs.10/- each was given by the complainant and the experiment of anthracene powder with ultraviolet lamp was done and the tainted currency notes were placed in the pocket of Bakulbhai Laxmanbhai Solanki, the driver of truck No.GJ-11- T-9541. That the said witness Bakulbhai Laxmanbhai Solanki was instructed not to touch the amount and was directed to only give the amount when the amount was demanded by the accused and PW-1 Gulabbhai Makanbhai at Exh.14 sat in the said truck, which was going towards Bhilad check post. That as per the direction, the amount of Rs.20/- was given to the accused No.2 and the member of the Raiding Party were intimated and the trap was successful and the amount was recovered from the accused No.1. That the witness has deposed as per the complaint, which is produced at Exh.22.
8.4. The prosecution has examined PW-6 Mahavirsinh Pravinsinh Raol at Exh.32 and this witness is the Investigating Officer, who has filed the charge sheet against the accused. That during the cross-examination, it has come Page 14 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined on record that the statement of the witness namely Ashwinbhai Laljibhai Vandariya was taken on the spot and he had not recorded the statement of Ashwinbhai Laljibhai Vandariya and complainant Mr. A.C.Jadeja. Moreover, the statement of driver of the jeep, in which, they had gone for the decoy trap, has not been recorded and the log book of the said jeep has also not been seized. That a sum of Rs.2,000/- consisting of four notes of Rs.500/-each was seized but there is no evidence to prove who those notes belonged to. It has also come on record that the Investigating Officer was assisting the complainant in the decoy trap and he was also a member of the raiding party.
9. In view of the above settled principles of law in the cases of acquittal appeals under the P.C.Act and in the entire evidence of the prosecution, the independent eye witnesses of the decoy trap i.e. driver of the truck Bakulbhai Laxmanbhai Solanki and owner of the truck Ashwinbhai Laljibhai Vandariya, have not supported the case of the prosecution and they have turned hostile. PW-1 Gulabbhai Makanbhai at Exh.14 and PW-3 Ashokbhai Dhirubhai Patel at Exh.17 have also not supported the case of the prosecution. Moreover, from the entire evidence, it is proved on record that part-I of the panchnama, which is produced at Exh.23, was prepared Page 15 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined at the ACB Office and Part-II of the panchnama at Mathwad. That during the deposition of the panch witnesses, they have stated that after the trap, they had their lunch at the RTO check post and at that time, both the panch witnesses were sitting outside and the panchnama was being written inside the checkpost and thereafter, they had affixed their signatures on the panchnama. Moreover, the tainted currency notes were recovered from the accused No.2, who is a private person and the accused No.1 is a public servant but there is no iota of evidence that the accused No.1 had, in fact, instructed the accused No.2 to collect the amount of bribe from public persons on behalf of the accused No.1. In the evidence, it is also on record that the Investigating Officer was also a member of the raiding party and in the entire evidence, the demand of illegal gratification, acceptance and recovery of the tainted currency notes is not proved beyond reasonable doubts.
10. 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 findings that the learned Trial Court has arrived at is legal and proper and there is no error of law or fact. Moreover, the view taken by the learned Trial Court of acquitting both the accused is a fairly possible Page 16 of 17 Downloaded on : Fri Mar 15 20:33:55 IST 2024 NEUTRAL CITATION R/CR.A/1170/2006 JUDGMENT DATED: 15/02/2024 undefined view and there is no legality or perversity in the impugned judgment and order.
11. In view of the above discussion and in light of the settled position of law, the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order of acquittal in Special (Corruption) Case No.36 of 2002 (Old Case No.7 of 1999) passed by the learned Presiding Officer, 1st Fast Track Court, Bhavnagar on 07.10.2005 is hereby confirmed. Bail bonds stand cancelled.
12. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI....
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