Gujarat High Court
The State Of Gujarat vs Bharatbhai Moruji Brahmbhatt Addi. ... on 25 June, 2024
NEUTRAL CITATION
R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 123 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 YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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THE STATE OF GUJARAT
Versus
BHARATBHAI MORUJI BRAHMBHATT ADDI. ASSISTANT ENGINEER
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Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1
MR. JAY M THAKKAR(6677) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/06/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant under Section 378(1)(3) of Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the learned Special Judge (Fast Track Court No.5), Surat (hereinafter Page 1 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined referred to as "the learned trial Court") in Special (A.C.B.) Case No. 03 of 1993 on 13/10/2005, whereby, the learned trial Court has acquitted the respondent for the offence punishable under Sections 7, 12, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988 (hereafter referred to as "the PC Act" for short). The respondent is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity.
2] The brief facts that emerge from the record of the case are as under:
2.1] That accused was an Overseer in the office of Taluka Development Office in the year 1993 and he was a public servant. That the complainant Bapjibhai Ramanbhai Gamit was the Sarpanch of Zakhari Group Gram Panchayat and the Zakhari Group Gram Panchayat, for the financial year 1992-93, was sanctioned ₹64,018/- by the Central Government under the Jawahar Rojgar Scheme for development of the village. That, the first installment of ₹16,004/- was given, which was utilized for the development of Bhurivel village. That the complainant had received a letter from the Taluka Development Office, wherein, Page 2 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined he was informed that on 18/02/993 at 01:00 PM, there was a meeting at the Taluka Panchayat Office, Vyara of all the Sarpanch and Talati-cum-Mantri and he had prepared two proposals for a road from village Bhurivel to village Pirbara and a canal on that road. That, he had met the accused in relation to this work on 15/03/1993 and the accused told him that if he wanted the development work to be undertaken at a speedy pace, he could give the remaining amount of ₹41,864/- on the same day, but he would have to pay an amount of illegal gratification of ₹3000/-. That the complainant bargained and after bargaining the amount was fixed at ₹1000/- on 17/03/1993 at 11:00 am in the office of the accused. That the complainant did not want to pay the amount of illegal gratification and hence went to the ACB Police Station, Surat on 16/03/1993 and filed the complaint at 16:15 hours, which was registered as I-C.R.No. 1 of 1993 under Sections 7, 13(1)(d) and 13(2) of the PC Act. 2.2] The Trap Laying Officer called the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was carried out in their presence and the characteristics of anthracene powder and ultraviolet lamp was explained to Page 3 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined them. That, the complainant gave ten currency notes of the denomination of ₹100/- each, which were smeared with anthracene powder and placed in the left-side shirt pocket of the complainant. That the trap was arranged on 17/03/1993 at the office of the accused and the complainant and the panchwitnesses were given the necessary instructions. That the members of the raiding party, the complainant and the panch witnesses left in a government vehicle and went from Maliyavad, Gandhi Smruti Bhavan to Ring RoAd, Sahara Darwaja, Kuna Kambhadiya Road, Kadodara Four Roads, Bardoli and from there to the Taluka Development Office at Vyara. That the panch No. 1 and the complainant walked into the Taluka Development Office and met the accused and the complainant told the accused that he had brought the amount of ₹1000/- as discussed on 15/03/1993. The accused demanded for the amount which was given by the complainant from his left shirt pocket and the accused told the complainant to place the currency notes in the right side of his table. That the accused opened the drawer and the complainant placed the currency notes on a paper and the accused locked the drawer with the Page 4 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined key and placed the key on the table. That the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red handed and the tainted currency notes were recovered from the right side of the drawer of the accused. The Investigating Officer recorded the statements of the connected witnesses and after the necessary documents and the copies of the service record as also the order of sanction for prosecution was received, a charge sheet was filed before the learned Sessions Court, Surat which was registered as Special ACB Case No. 3 of 1993.
2.3] The accused was duly served with the summons and the accused appeared before the learned trial Court, and after the procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 8 was framed against the accused and the statement of the accused was recorded at Exh. 9, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record.
2.4] The prosecution has produced the following oral witnesses and documentary evidences in support of their case.
Page 5 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined ORAL EVIDENCE Sr. Name of Prosecution Witness Exh; No. 1 Bapjibhai Ramanbhai Gamit 21 2 Manubhai Kesharbhai Patel 23 3 Jayantibhai Icchubhai Patel 121 DOCUMENTARY EVIDENCE Sr. Description Exh; No. 1 Complaint 22 2 Panchnama 24 3 Muddamal receipt 25 4 Appointment letter 122 5 Order of Vyara 125 6 Service book 124 2.5] After the learned APP filed the closing pursis at Exh:
151, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein the accused has stated that the amount of ₹16004/- and ₹41,864/- were paid from the office of the Taluka Development Officer to the complainant by cheques and it was not in his duty to give the cheques to the complainant and the cheques did not bear his signatures. That he had no jurisdiction to allocate any amount and he did not have the power beside the allocation of the amount for the work. That it was his duty to check whether Page 6 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined the amount given to a Sarpanch of the village was utilized for the development of the village as per the resolution and he had to do a spot inspection and submit a report to the Taluka Development Officer. That the amount allocated for the development of the road and the canal was not utilized for the purpose for which it was given and the accused had made a report to the Taluka Development Officer and had also instructed the complainant on a number of occasions and had told the complainant that a criminal case of misappropriation of funds would be filed against him. That the accused was innocent but the complainant has filed a false case against the accused. After the arguments of the learned APP and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order dated 13/10/2005 was pleased to acquit the accused from all the offences. 3] Being aggrieved and dissatisfied with the said impugned judgment and order of acquittal, the appellant - State has filed the present appeal mainly stating that the judgment and order of acquittal passed by the learned trial Court is contrary to law evidence on record and principles of justice and Page 7 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined the same is required to be quashed and set aside. That the learned trial Court has not believed the evidence of the panch witness who has clearly stated that the accused had demanded for the amount of illegal gratification. That the witness was the shadow witness and the witness has also stated that the accused opened his drawer and told the complainant to put the amount of illegal gratification in the drawer. The learned trial Court has not believed the deposition of the Trap Laying Officer and the learned trial Court ought to have appreciated that if the amount of illegal gratification was not to be received, the accused would not have allowed the complainant to put the amount in his drawer. That the same currency notes that were mentioned in the part 1 of the panchnama had been recovered from the accused and the learned trial Court has not appreciated that the traces of anthracene powder was found on the paper on which the tainted currency notes were placed in the drawer of the accused. That the prosecution has proved all the ingredients of the demand, acceptance and the recovery through cogent and convincing evidence and the impugned judgment and order of acquittal is contrary to law and evidence on record and deserves Page 8 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined to be quashed and set aside.
4] Heard learned APP Ms. C.M.Shah for the appellant and learned advocate Mr. Jay M. Thakkar appearing for the respondent.
5] Learned APP Ms. C.M.Shah has taken this Court through the entire evidence of the prosecution produced by the on record and has submitted that the impugned judgment is contrary to the facts on record. That even though the complainant has been declared hostile and has not fully supported the case of the prosecution, the prosecution has proved the case against the accused from the evidence of the panch witness and the Trap Laying Officer. That the panch witness has fully supported the case of the prosecution and the trap was in the office of the accused. That all the ingredients of demand, acceptance and the recovery have been proved beyond reasonable doubts by the prosecution before the learned trial Court and the prosecution has proved that the accused had demanded the amount of illegal gratification, accepted the same in his office and the same currency notes were recovered from the drawer of the table of the accused. Learned APP has urged Page 9 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined this Court to consider all these aspects and allow the appeal and find the accused guilty for the said offences. 6] Learned advocate Mr. Jay M. Thakkar appearing for the respondent has submitted that the prosecution has not proved that the accused was in fact responsible to pay the amount sanctioned by the Central Government under the Jawahar Rojgar Scheme for development of the village to the complainant and it is the case of the accused that the accused did not have any role in the sanctioning of the amount or the disbursement of the amount through cheque. That the accused did not have to sign the cheque and he was in no way related to the disbursement of the amount but in fact the complainant had a grudge against the accused and he was angry on the accused and the said fact has come on record. The complainant has clearly stated that other members of the Panchayat had told him to go to the ACB office and file a case against the accused and the complainant has not supported the case of the prosecution and there is no evidence regarding any demand of illegal gratification made by the accused. That if the demand is not proved mere recovery of tainted currency notes would not Page 10 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined amount to the offence under the PC Act. Moreover, as per the case of the prosecution, the tainted currency notes were found from the drawer of the table of the accused but the tainted currency notes were placed by the complainant without the knowledge of the accused and the prosecution has not proved the case beyond reasonable doubts. That the learned trial Court has discussed all the aspects in great detail in the judgment and order of acquittal and hence no interference is called for and learned advocate Mr. Jay M. Thakkar has urged this Court to reject the appeal of the appellant.
7] Before adverting to the facts of the case on hand, it would be apt to refer to the scope of the learned trial Court in acquittal appeals and the Apex Court in Criminal Appeal No.1167 of 2018 in the case of Ballu @ Balram @ Balmukund and Another Vs State of Madhya Pradesh in para Nos. 8 and 9 has observed thus:-
8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable Page 11 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined doubt.
9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below:
"13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence.
A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the Page 12 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
7.1] The Honourable Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.Page 13 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024
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(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 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 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 intern 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. Page 15 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024
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(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 in the case of Ballu @ Balram @ Balmukund (supra) and Neeraj Dutta Page 16 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined (supra) and in the case of acquittal appeals, under the PC Act the evidence produced by the prosecution before the learned trial Court is required to be reappreciated. The prosecution has examined Prosecution Witness No. 1 Bapjibhai Ramanbhai Gamit at Exh: at 21 and this witness is the complainant, who has stated that in the year 1993, he was the Sarpanch of Zakhari Group Gram Panchayat and an amount of ₹64,018/- was sanctioned to Zakhari Group Gram Panchayat. That a meeting of all Sarpanchs and Talati-cum-Mantris was called and he had attended the meeting. That as per the proposal the roads of Zakhari Group Gram Panchayat, Dholiumar and Bhurivel villages and a canal was to be done and the accused was the supervisor for the said work. That the first installment was received and the complainant had gone to receive the second installment and met the accused and the accused had got angry on the complainant and told him that he was not sitting for his cheque alone. That the accused made the complaint to sit for almost one and half hours outside his office and once against when the complainant went to meet the accused, he got angry him and told him that he would not get the cheque but after Page 17 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined some time, the accused called him and gave him a cheque of the amount of ₹41864/-. That no other conversation had taken place and he told the other members of the panchayat about the behavior of the accused with him. That the members of the Panchayat told him to go to the ACB office at Surat and act as per the say of the officer and hence he went to the ACB office at Surat on 16/03/1993. That he met Patel Saheb and Patel Saheb told him to give an application and ₹1000/- and that they would put Brambhatt Saheb in place. That on the next he went with ten currency notes of the denomination of ₹100/- each and the currency notes were placed in his pocket and they went to Vyara. That Patel Saheb had told him to give the amount to the accused and give the predetermined signal and thereafter he along with four to five persons had gone to the office of the accused. That at that time the accused was not in his office and after half an hour when they went again, they met the accused in his chamber and the complainant told the accused that the work was almost to be completed. That the accused got up and went to the cupboard to search the file and he placed the tainted currency notes in the open drawer of the table of the Page 18 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined accused. That the complainant gave the predetermined signal and the members of the raiding party came. The complainant has not supported the case of the prosecution and has turned hostile and has been cross examined at length by the learned APP.
During the cross examine by the learned advocate by the accused, the complainant has stated that no procedure was done in his presence at Vyara and the accused did not demand for any amount of illegal gratification for him. 8.1] The prosecution has examined Prosecution Witness No. 2 Manubhai Kesharbhai Patel at Exh: 23. The witness is the panchwitness, who has stated that he was called to the ACB Police Station, Surat on 17/03/1993 and he and the other panch witness Dhirubhai Bhagubhai Patel had gone to the ACB office. That they met the complainant and the complainant gave ten currency notes of the denomination of ₹100/- each to the Trap Laying Officer and the demonstration of anthracene powder and the ultraviolet lamp was done in their presence and the characteristics of anthracene powder and the ultraviolet lamp were explained. That the currency notes smeared with Page 19 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined anthracene powder were placed in the left side shirt pocket of the complainant and after the instructions were given, the panch witnesses, complainant and members of the raiding party went to Vyara. That he was instructed to be a shadow witness and he went along with the complainant in the Taluka Development Office. That they met the accused on his table and the accused asked the complainant whether he had brought the amount of ₹1000/- as discussed earlier and to give the amount if he had brought the same. That the complainant stated that he had brought the amount of ₹1000/- and the accused opened his table drawer with his key and told the complainant to place the currency notes on the paper in the drawer. That the complainant took the currency notes from his left side shirt pocket and placed it in the drawer of the table of the accused and the accused closed the table with his key and placed the key on his table. That the complainant went outside and gave the predetermined signal and thereafter the members of the raiding party came and the tainted currency notes were recovered from the drawer of the table of the accused. That traces of anthracene powders were found on the fingers of the Page 20 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined complainant and the amount of ₹1000/- was seized and the panchnama was prepared.
During the cross examination by the learned advocate for the accused, the witness has stated that his statement was recorded three days after the trap in the office. That he has no information whether the cheque of ₹41864/- was given to the complainant on 15/03/1993 and while they had gone to meet the accused, an employee was seated at the next table and was working and even when the members of the raiding party came, the accused and the other employee were sitting on their tables and working. That while he was in the office, it came to his knowledge that the complainant had taken the cheque three days prior to the trap and the panchnama was written by the writer Chaudhary Saheb. That no traces of anthracene powder were found on the fingers or clothes of the accused and while they were in the office, the accused did not stretch his hand to demand the amount of illegal gratification. That the panchnama was drawn after the entire procedure had taken place and rough notes were made by the ACB officials before writing the panchnama but immediately thereafter the witness has stated Page 21 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined that no rough notes were made.
8.2] The prosecution has examined Prosecution Witness No. 3 Jayantibhai Icchubhai Patel at Exh: 121 and the witness is the Trap Laying Officer and the Investigating Officer who has stated that on 16/03/1993 he was working as a Police Inspector at the ACB Office, Surat. The witness has fully supported the case of the prosecution and has narrated the entire events in detail that had unfolded from 16/03/1993 when the complainant came to his office and the complaint was taken down at 16;15 hours and the complaint is produced at Exh: 22. The witness has stated that on the next day, the panchwitnesses were called and the after the demonstration of anthracene powder and the ultraviolet lamp was done, necessary instructions were given to the complainant and the panch witness and they all left for the Taluka Development Office, Vyara. The witness has narrated about the procedure that was undertaken after the complainant gave the predetermined signal and has stated that they returned from Vyara to the ACB office and the complaint was registered at 19:35 hrs at ACB Police Station, Surat as I-C.R.No. 1 of 1993 under Sections 7, 13(1)(d) and 13 (2) of the PC Act. That Page 22 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined thereafter he had recorded the statements of all connected witnesses and made the necessary correspondence for the service record of the accused and also the order of sanction for prosecution and after the same were received, a charge sheet was filed before the learned Sessions Court, Surat.
During the cross examination by the learned advocate for the accused, the witness has stated that the complainant at that time was the Sarpanch of Jakhari, Bedpara, Dholi and Umar and was the Sarpanch Group Gram Panchayat. That as anthracene powder was supplied from the head office, anthracene powder was used in the trap and phenolphthalein powder has not been used. That the statement of Manubhai Patel, Deputy Accountant, who was working in the office of the Taluka Development Office was recorded but the statement of the peon was not recorded. That the statements of Chunilal Singabhai and Narsinhbhai Sukhabhai Patel were also recorded and no traces of anthracene powders were found on the hands and clothes of the accused. That the key of the drawer of the table of the accused and the drawer was not seized and he does not know where the panch witness and the complainant were seated Page 23 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined when they went into the office of accused. That the complainant had received a cheque of ₹16,004/- on 18/02/1993 and a cheque of ₹41864/- on 15/03/1993 from the Taluka Panchayat Office and it was the duty of the accused to supervise whether the amount is utilized properly. That the amount allocated to the Gram Panchayat was to be used for the development of the road and canal and he has not investigated as to whether the amount was properly utilized for the purpose for which it was given. That the signature of the accused was not found on any of the documents whereby the amount was given to the Gram Panchayat and during investigation it was also found that the accused had no authority to give any cheque to the complainant. 9] On minute dissection of the entire evidence of the prosecution, the infirmities in the evidence of the prosecution have come on record and during investigation it was found that the complainant who was the Sarpanch of Zakhari Group Gram Panchayat had received a cheque of the amount of ₹16,004/- on 18/02/1993 and had thereafter received a cheque of remaining amount of ₹41864/- on 15/03/1993. The complainant has stated that he met the accused on 15/03/1993 and at that time the Page 24 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined accused had demanded for the amount of illegal gratification to give the Cheque of the amount of ₹41864/- but it is on record that on 16/03/1993 when the complainant went to file the complaint, no cheque was to be received from the accused. Moreover, it has also come on record that the accused did not have the authority to sign on the cheques or decide when the cheques have to be given and the work of the accused was to oversee the work done by the Gram Panchayat and to check as to whether the amounts that were allocated to the Panchayat were utilized for the purpose for which they were sanctioned. The complainant has not supported the case of the prosecution and has clearly stated that when he went on 15/03/1993, he had a verbal altercation with the accused and the accused got angry on the complainant and made him wait for about one and half hour outside his office. Moreover the complainant has also stated that when he told about the behavior of the complainant to other members of the Panchayat, they informed him to go to the ACB and when he went to ACB office, the Police Inspector told him to bring an amount of ₹1000/- and that they would put the accused in place.
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NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined 10] As per the judgment of Neeraj Dutta (supra), the prosecution must prove the demand, which is a sine-qua-non for the offence under the PC Act. As per the case of prosecution, the amount of ₹1000/- was recovered from the drawer of the table of the accused and the complainant has stated that when the accused went to take a file from his cupboard, the complainant put the amount in his drawer without the knowledge of the accused. Admittedly, the tainted currency notes were recovered from the drawer of the table of the accused and no traces of anthracene powder were found on the hands or clothes of the accused. The possibility that the complainant had placed the tainted currency notes in the open drawer of the table of the accused when he went towards the cupboard to get a file cannot be ruled out and the learned trial Court has discussed all the aspects in the impugned judgment. 11] The learned trial Court has appreciated all the oral and documentary evidences and has assigned reasons for not raising the presumption even though the recovery was from the drawer of the table of the accused.
12] It is settled law that unless and until, the evidence is Page 26 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined clear, cogent and reliable, no conviction can be recorded and on re-appreciating the entire evidence, the evidence is contrary and far from convincing as observed by the Apex Court in the case of Ballu @ Balram @ Balmukund (Supra) , the scope of the appellate Court to interfere in the findings of acquittal is limited and unless and until some perversity and illegality is found in the judgment and the order of trial Court, the appellate Court will interfere only to ensure that no miscarriage of justice has occurred. In the present case, there is no iota of evidence that any accused had made any demand for illegal gratification or that the accused had accepted any amount of illegal gratification and the reasons assigned by the trial Court in the impugned judgment and order are just and proper. This Court has perused the findings of the trial Court and has found that the trial Court has appreciated all the evidence and has given proper reasons for acquitting the accused and there is no perversity or illegality in the findings recorded by the trial Court. This court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Trial Court and finds no reason to interfere with Page 27 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024 NEUTRAL CITATION R/CR.A/123/2006 JUDGMENT DATED: 25/06/2024 undefined the impugned judgment and order of the trial Court. 13] In view of the above discussions, the present appeal is devoid of merits and resultantly the same is dismissed. 14] The impugned judgment and order of acquittal passed by the learned Special Judge, Fast Track Court No.5, Surat in Special (A.C.B.) Case No. 03 of 1993 on 13/10/2005 is hereby confirmed.
15] Bail bond stands canceled. Record and proceedings be sent back to the concerned trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 28 of 28 Downloaded on : Fri Jul 05 22:16:00 IST 2024