Gujarat High Court
State Of Gujarat vs Pritesh Muljibhai Amin on 1 August, 2024
NEUTRAL CITATION
R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2081 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
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 interpretation of the Constitution of No
India or any order made thereunder ?
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STATE OF GUJARAT
Versus
PRITESH MULJIBHAI AMIN
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 01/08/2024
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 judgement and order of acquittal passed by the learned Special Judge, ACB, Court No. 4, Ahmedabad Page 1 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined (hereinafter referred to as "the learned Trial Court") in Special Case No. 16/2002 on 01.04.2008, whereby, the learned Trial Court has extended the benefit of doubt and acquitted the respondent for the offence punishable under Sections 7, 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 in the year 1998-99, the accused was working as a Mamlatdar in Sanand Taluka, District Ahmedabad and was a public servant. That the complainant - Ramanbhai, Becharbhai Makwana was a resident of Dani Limda, Ahmedabad and his father Becharbhai Parmabhai Makwana was the owner of land bearing block nos. 187 and 190 situated in village Sachna, Taluka Sanand. That his father Page 2 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined expired on 21.08.1997 and his mother Jadiben, his brother Narendrakumar, Chandubhai, Vijaykumar and sisters Savitaben and Vimlaben and he were the legal heirs and their names were entered in the revenue records vide mutation entry no. 5740. That Amrutbhai Matambhai was his neighbour and an injuction suit was filed by Amrutbhai Matambhai against his father and the names of Amrutbhai Matambhai and two others were entered in the revenue record of the land of his father illegally. That he met the accused on 21.09.1998 for getting his name entered in the revenue record on the basis of a Will but for a long time, no procedure was done by the accused. That on 08.10.1998, he met the accused in his office and at that time, the accused demanded an amount of Rs. 1 lakh. That the complainant did not have the huge amount and told the accused that he would pay the amount slowly and on 26.10.1998, he met the accused and gave him Rs. 25,000/- and the accused demanded the remaining amount at the earliest. That once again he met the accused on 30.10.1998 where the amount was demanded from him and the accused had told him to Page 3 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined give the amount on the next day evening at his residence which was opposite the common plot, opposite Jivraj Park Mehta Hospital. That the complainant did not want to give the amount of illegal gratification and hence, went to the ACB Police Station on 31.10.1998 and filed the complaint under Sections 7, 13(1)(d) and 13(2) of the PC Act which was registered at C.R. No. 21/1998.
2.2 The Trap Laying Officer called the panch witnesses and the panch witnesses were introduced to the complainant and Police Inspector - H.K. Patel, ACB Police Station, Ahmedabad gave Rs. 75,000/- which were 150 currency notes of the denomination of Rs. 500/- each to Police Constable - Baldevbhai Trikambhai Pandya and the demonstration of anthracene powder and ultraviolet lamp was carried out in the presence of panch witnesses and the complainant and the characteristics of anthracene powder and ultraviolet lamp was explained to the complainant and the panch witnesses. That all the currency notes of Rs.
75,000/- were smeared with anthracene powder and placed in the black rexine purse of the complainant. That as the Page 4 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined complainant alone had to go to the house of the accused, a transmitter and microphone was placed in the under clothes of the complainant and the wireless tape recorded and all the electronic equipments were switched on and the voices of panch witnesses were taped and all the electronic equipments were switched off. That necessary instructions were given to the complainant and the panch witnesses and panchnama part-I was drawn. That the tape recorder and electronic equipments were placed in a Maruti Fronti bearing registration no. GJ-1-G-2955 and the Wireless Police Sub-Inspector - sat on the behind seat and the panch no. 1 sat near the Police Sub-Inspector. That the complainant and the panch no. 2 and went on Luna bearing registration no. GJ-1-N-3606 and the other members of the raiding party sat in the government jeep and they went from ACB Office via Subhash Bridge, Sardar Patel Colony, L.D. Engineering College, Shreyas Crossing, and halted the vehicles at Jaydip Towers. That the microphone transmitter and voice receiver on the body of the complainant was switched on and from there, they went to Jivraj Mehta Page 5 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined Hospital, Reserve Bank Officers Quarters Main Gate and went to House No. 58, Neelkamal Society. That the complainant went into the house of the accused and the accused demanded for the amount of Rs. 75,000/- which was given by the complainant and thereafter, the complainant said the words of the predetermined signal and the members of the raiding party rushed into the house of the accused and caught the accused red handed and recovered the amount from the house of the accused. That the panchnama part-II was drawn and the panch witnesses and the Trap Laying Officer affixed their signatures on the panchnama. The Investigating Officer recorded the statements of the connected witnesses and collected the necessary documents including the service record of the accused as also the order of sanction for prosecution and filed the charge- sheet before the City Civil and Sessions Court, Ahmedabad which was registered as Special Corruption Case No. 16/2002.
2.3 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and Page 6 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined after the procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 31 was framed against the accused and the statement of the accused was recorded at Exh. 32, 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 produced the following oral evidence to bring home the charge against the accused.
Sr. No. PW Particulars Exh. 1. 1 Mahendrakumar Dhirajlal Raval 25 2. 2 Ramanbhai Becharbhai Makwana 35 3. 3 Mahendrakumar Dhirajlal Raval 43 4. 4 Pratapsinh Sardarsinh Rathva 45 5. 5 Harjivan Keshavlal Desai 47 6. 6 Amrutbhai Lallubhai Desai 50 7. 7 Nadealikhan Abhaykhan Pathan 52 2.5 The prosecution also produced the following
documentary evidence to bring home the charge against the accused.
Sr. No. Particulars Exh. 1. FIR 36 2. Panchnama 46 3. Receipt 47 4. Receipt 48 Page 7 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined 5. Panchnama of voice recording 51 6. Panchnama of locker - 7. Casette Audio - 2.6 The learned Additional Public Prosecutor filed the
closing pursis at Exh. 54 and the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard the learned trial Court by the impugned judgment and order was pleased to extend benefit of doubt and exonerate the accused from all the charges leveled against him.
3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgement and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has failed to appreciate the oral evidences of the panch witnesses examined by the prosecution and the documentary evidences which have Page 8 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined been produced by the prosecution in support of the case in proper perspective. That the learned Trial Court has committed a grave error apparent on record of the case and the learned Trial Court has erred in holding that the prosecution has failed to prove the case beyond reasonable doubts. That the complainant has fully supported the case of the prosecution and the amount of Rs. 75,000/- was given by the Trap Laying Officer and all the currency notes were smeared with anthracene powder and after the predetermined signal was given by the complainant, the members of the raiding party rushed into the house of the respondent where the complainant as well the respondent were present and the amount of Rs. 75,000/- was recovered from the showcase in the sitting room of the respondent. That the respondent did not offer any probable or reasonable explanation about possession of the currency notes and the demand is clearly made out and the learned Trial Court has come to a contrary conclusion. That there was no dispute or inimical relationship between the respondent and the witnesses and the learned Trial Court Page 9 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined has failed to appreciate that the currency notes smeared with anthracene powder were given by the complainant and accepted by the respondent and recovered from the showcase of the respondent and in this manner, all the vital ingredients of demand, acceptance and recovery have been proved by the prosecution beyond reasonable doubts. That the learned Trial Court has given undue importance to minor omissions and contradictions and the impugned judgement and order passed by the learned Trial Court is illegal, invalid and improper and the same deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant State. Though served, the respondent has not appeared either in person or through an advocate. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has Page 10 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined submitted that all the ingredients of demand, acceptance and recovery have been proved by the prosecution with oral and documentary evidence. The prosecution has examined seven witnesses and has produced seven documentary evidences to prove the case against the respondent but the learned Trial Court has not believed the evidence and has relied upon minor contradictions and omissions in the evidence. The complainant and the Trap Laying Officer have fully supported the case of the prosecution and in the evidence of the Trap Laying Officer and the Investigating Officer, the entire charge against the respondent has been proved beyond reasonable doubts. That the learned Trial Court has grossly erred in appreciating the entire evidence in true perspective. That the impugned judgement and order of acquittal is required to be quashed and set aside and the respondent must be found guilty of the offences.
6. 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 Page 11 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, 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 concertized 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 reappreciate 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.Page 12 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024
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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 Karnataka,
"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 against acquittal. It Page 13 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined 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, Page 14 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
6.1 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.Page 15 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024
NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined 6.2 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 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 Page 16 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined 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 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 Page 17 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined 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." Page 18 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024
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7. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is a presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. That there is no inhibition to reappreciate the evidence by the Appellate Court but if after reappreciation, the view taken by the learned Trial Court is a possible view, there is no reason for the Appellate Court to interfere in the same.
8. On reappreciating the evidence, the prosecution has examined PW1 - Mahendrakumar Dhirajlal Raval at Exh. 25 who is the authority who has given the order of sanction for prosecution which is produced at Exh. 26 and the same witness has also been examined by the learned Trial Court as PW3 at Exh. 43. There is no reason mentioned as to why the learned Trial Court has examined the same witness Page 19 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined twice and in the cross-examination at Exh. 25, the witness has stated that a Deputy Secretary does not have the authority to give an appointment to a Mamlatdar or to remove a Mamlatdar from service. That he was not present when the Chief Minister had affixed his signature on the file and he had merely given the resolution at Exh. 26. That an order was passed at the Chief Minister's level not to file a criminal case against the accused which is mentioned in pages 83 to 93 of Exh. 22 and the same was intimated to the ACB Branch on 01.12.2000. That the learned Trial Court had passed an order on 29.03.2001 and on the basis of that order, the procedure for the order of sanction for prosecution was once again started and the order of sanction for prosecution produced at Exh. 26 is passed. That on page nos. 101 to 107, the order for reviewing the order has been passed and on page 107, the Chief Minister has made an endorsement that on 27.04.2001 that the case was not fit to grant an order of sanction for prosecution. 8.1 The prosecution has examined PW2 - Ramanbhai Becharbhai Makwana at Exh. 35 and the witness is the Page 20 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined complainant who has stated the facts as narrated in the complaint. The witness has stated that his father had block nos. 187 and 190 in village Sachna, Taluka Sanand and his father had expired on 21.08.1997. That the names of all the legal heirs were entered in the revenue record vide mutation entry no. 5740 and he wanted to enter his name on the basis of a Will executed by his father and for that the accused had demanded an amount of Rs. 1 lakh and he had given an amount of Rs. 25,000/- on 26.10.1998 to the accused at his office. That he did not want to pay the amount of Rs. 75,000/- and hence, has filed the complaint on 31.10.1998. The witness has narrated all the procedure regarding the anthracene powder and ultraviolet lamp that was undertaken and the panch witnesses were called and Police Inspector - H.K. Patel gave 150 currency notes of the denomination of Rs. 500/- each which were all smeared with anthracene powder by Constable - Baldevbhai Trikambhai Pandya and they were placed in his black purse. The witness has also stated that a cassette was also placed in the Philips Company tape recorder and the mic Page 21 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined was of Columbus Company and the micro tape recorder was placed in his black purse and the wireless was placed in Maruti Fronti bearing registration no. GJ-1-G-2955. That he had gone with the panch witness on his Luna bearing registration no. GJ-1-H 3606. That when he went into the house of the accused, the panch witnesses were outside and the accused was sitting on the sofa set and he went in and met the accused who was sitting in a green checks lungi and half sleeves sadra. That the accused demanded the amount and gestured to place the money in the showcase and thereafter, he gave the predetermined signal. That the members of the raiding party came and recovered the currency notes from the showcase and the test of ultraviolet lamp was done and the tips of the thumbs, palms and big toe of the left foot were found with traces of anthracene powder. That the panchnama was drawn and the panch witnesses as also the Trap Laying Officer affixed their signatures. That the tape recorded and microphone and mic were recovered and they heard the conversation that was recorded in the tape recorder. During the cross-examination Page 22 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined by the learned advocate for the accused, the witness has stated that when the panch no. 1 had recovered the amount from the showcase, the door of the showcase was open and the door was a shutter door. That the showcase was placed in the corner between two sofas and he was sitting on one sofa and the accused was sitting on another sofa. That he went into the house of the accused and was there for almost an hour and he had seen mud toys in the showcase. That during the entire time, there was no movement and he had used a tape recorder which was of about 60 minutes on two sides. That he had not turned the cassette in the room and the ACB Officer had instructed him to discuss about Rs. 25,000/- that was given on 26.10.1998 and the remaining amount of Rs. 75,000/- that was to be given. That a complaint under Section 379 and 114 of IPC has been filed in Bavla Police Station against him on 30.08.1991 and on 30.04.1996, a complaint under Section 307 of IPC was filed against him by Matambhai Gandabhai at the Bavla Police Station. That he had also filed a case against Matambhai Gandabhai and Amrutbhai Matambhai at Bavla Police Page 23 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined Station and both the cases were compromised. That on 17.05.1998, he had filed a case against Nandlal Jeshamal Khanchandani under the Atrocity Act and on 15.06.1991, he had filed a case in Bavla Police Station against Chandubhai Mathurbhai under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. That on 30.11.1997, he had filed a complaint under Section 379 of the IPC against 21 persons at the Bavla Police Station and on 22.07.2004, his daughter had filed a case against her in- laws and he was a witness in that case. That his father had filed a complaint on 30.03.1992 at Bavla Police Station, Ahmedabad in which a Summary Report was filed. That his father had expired on 21.08.1997 and mutation entry no. 5740 was entered on 08.10.1998, wherein, the names of all the legal heirs were entered in the revenu record. That he wanted the names of two legal heirs to be deleted on the basis of the Will and on the basis of the succession, eight names were entered. That he wanted the names of both his sisters to be deleted from the revenue record and the dispute was regarding this issue. That he did not say that Page 24 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined the accused had taken illegal gratification of Rs. 25,000/- on the 25th and in the conversation recorded in the tape recorder, there is no mention that Rs. 75,000/- was given for the RTS Case Judgement to be in his favour. That the panchnama does not state that if the amount of Rs. 75,000/- was not paid, the mutation entry would not be made in the revenue record and he had decided on 26.10.1998 that he would trap the accused and the accused had given him his home address as he had gained his confidence. That the accused was collecting contributions for the Chief Minister's Relief Fund and he had touched the big toe of the accused when he fell at the feet of the accused. That at that time, the accused had stated that he was an elderly person and he should not fall at his feet. 8.2 The prosecution has examined PW4 - Pratapsinh Sardarsinh Rathva at Exh. 45 and the witness is the panch witness who had gone along with the other panch witness - Arvindbhai Makabhai Rathva on 31.10.1998 to the ACB Office. The witness has fully supported the case of the prosecution and has narrated all the procedure that was Page 25 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined undertaken at the ACB Office regarding the anthracene powder and the ultraviolet lamp and thereafter, Rs. 75,000/- which were 150 currency notes of the denomination of Rs. 500/- each were smeared with anthracene powder and placed in the black purse of the accused. The witness has also stated that the tape recorder and the microphone were affixed on the body of the complainant and the necessary instructions were given to the complainant and the panch witnesses and they all left in the vehicles to go to the house of the accused. That after the predetermined signal was given by the complainant, they all had rushed in and the tainted currency notes were recovered from the showcase in the house of the accused. During the cross-examination by the learned advocate for the accused, the witness has stated that the conversation in the tape recorder was not clear and the recording was for ninety minutes. That he had heard the conversation after the cassette was recorded and had not heard the conversation while it was taking place. That there was no clear indication that the complainant had given the accused Page 26 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined an amount of Rs. 25,000/- on 26.10.1998 to get the case in his favour and there was no clear indication that the amount of Rs. 75,000/- was to be given with regard to the conversation on 26.10.1998. That in the recording, there was no indication that the accused had stated that if he did not give the amount of Rs. 75,000/-, the case would not be decided in his favour and there was no mention by the complainant that he had brought the amount and that the accused should accept the same. That in the recording, the accused had stated that he was collecting Rs. 1 lakh for the contribution to the Chief Minister's Relief Fund and there were a lot of places where the recording was not clear and the recording in the cassette was breaking and hence, the clear conversation between the complainant and the accused could not be made out.
8.3 The prosecution has examined PW5 - Harjivan Keshavdas Patel at Exh. 47 and the witness is the Trap Laying Officer who has fully supported the case of the prosecution and has narrated in detail all the procedure that he had undertaken on 30.08.1998 when he was Page 27 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined working as a Police Inspector, ACB Police Station, Ahmedabad and the complainant had come to the ACB Police Station to file the complaint. That he had taken the amount of Rs. 75,000/- from the Government Treasury and had given to Constable - Baldevbhai Pandya and the procedure of anthracene powder and ultraviolet lamp was done by Constable - Baldevbhai Pandya. That he had decided to get the transmitter and tape recorded as the accused had told the complainant to come alone and had arranged for the entire trap. That when the predetermined signal was given, he rushed into the house of the accused along with the members of the raiding party and recovered the amount from the showcase as also in the ultraviolet lamp test, the fingers of both the hands of the accused, thumbs and the left big toe were found with traces of anthracene powder. During the cross-examination by the learned advocate for the accused, the witness has stated that the shutter of the showcase was open and the currency notes were inside the showcase. That the depth of the showcase was about 1½ to 2 feet and there were 10 to 15 Page 28 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined mud toys in the showcase. That the amount was between the toys about 1½ to 3/4 feet inside the showcase in between the toys and the currency notes could not be seen from outside. That he could not see the currency notes and only after the complainant told him, he could see the currency notes. That the panch witnesses also could not see the currency notes inside the showcase and the information about the location of the currency notes was taken from the complainant. That he had not heard the conversation between the complainant and the accused as the conversation was breaking and the complainant had insisted that he alone would go into the house of the accused and the hence, the shadow witness was kept outside. That if the entry as per the Will was made in the revenue record, there was no dispute by the complainant and he did not verify as to whether the mutation entry was made before the filing of the complaint. That he had not verified the antecedents of the complainant before filing of the complaint and there was no clear conversation that if the amount of illegal gratification was not given, the entry Page 29 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined would not be made in the revenue record. That the complainant did not have the conversation as stated in the complaint with the accused and the accused had stated that he had to give an amount of Rs. 1 lakh as contribution to the Chief Minister's Relief Fund. That in the panchnama at Exh. 46, no evidence as per the complaint was found. 8.4 The prosecution has examined PW6 - Amrutbhai Lallubhai Desai at Exh. 50 and the witness is the Investigating Officer who has arrested the accused and collected the voice samples of the complainant and the accused and had drawn the necessary panchnama regarding the search of the bank locker of the accused. That the further investigation was handed over to Police Inspector - Mr. Pathan and once again he had taken over the investigation and had recorded the statements of the panch witnesses. That once again, the investigation was handed over to Police Inspector - Mr. N.A. Pathan. 8.5 The prosecution has examined PW7 - Nadealikhan Abhaykhan Pathan at Exh. 52 and the witness is the Investigating Officer who has recorded the statements of the Page 30 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined connected witnesses and thereafter, had collected the service record of the accused and had made the necessary correspondence for the order of sanction for prosecution. That the revenue department of Gujarat Government had refused to grant the order of sanction for prosecution and the witness had filed an A Summary Report before the learned Trial Court. That the learned Trial Court had rejected the A Final Summary and the further investigation was handed over to Police Inspector - Mr. K.S. Varanda. That he had recorded the statements of the connected witnesses and had drawn the necessary panchnama. During the cross-examination by the learned advocate for the accused, the witness has stated that no assets more than the income of the accused was found by which it could be concluded that the accused was corrupt. That in the panchnama, there was no mention that the accused had demanded for the amount of illegal gratification and there was no threat made by the accused that if the amount was not paid, his work would not be done. That the mutation entry was entered in the revenue record on the basis of the Page 31 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined Will on 27.10.1998 and the complainant did not have the conversation with the accused as per the instruction of the Trap Laying Officer. That the complainant and the accused had conversation about other subjects and whiled away the time and in the trap conversation, there was nothing by which it could be concluded that the accused had demanded for any amount from the complainant and the complainant had given the amount. That there was no mention as to how the tainted currency notes reached into the showcase and who had placed it in the showcase. That the FSL Officers could not identify the voice in Q1 and the government had refused to give the order of sanction for prosecution of the accused twice. That on the third attempt, the order of sanction for prosecution was given.
9. On minute dissection of the entire evidence of the prosecution, as per the complaint, the complainant has stated that he wanted his name to be entered in the revenue record on the basis of the Will executed by his father but in the evidence of the Investigating Officer, it has come on record that the names on the basis of the Will were already Page 32 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined entered in the revenue record on 27.10.1998. The complaint has been filed on 31.10.1998 and there was no reason for the accused to demand the amount of illegal gratification as the names had already been entered prior to filing of the complaint. The complainant has supported his say but the conversation of the complainant and the accused at the time of trap does not reveal that the amount of Rs. 25,000/- was earlier paid to the accused on 26.10.1998 or that there was any demand of any amount of illegal gratification that was to be paid on 31.10.1998. It has emerged on record that the complainant was habitual of filing complaints including complaints under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against various person and there were cases under Section 379 and 307 of IPC filed against the complainant. It has also emerged on record that twice the Competent Authority had refused to grant the order of sanction for prosecution as there was no evidence regarding the demand of any illegal gratification by the accused.
9.1 As far as the demand on the day of the trap is Page 33 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined concerned, in the evidence of the Trap Laying Officer, it has emerged that the complainant had insisted that he should go alone into the house of the accused and the panch witness was not allowed to enter into the house of the accused and hence, there is no evidence that the panch witness had heard any demand for illegal gratification made by the accused. It has also emerged on record that the complainant was in the house of the complainant for more than an hour and the tape recorder had a cassette of sixty minutes both sides. There is no iota of evidence that the complainant had turned the cassette and it is clear that the recording was not clear and the voice was breaking and there was no way that the demand was heard by the panch witnesses or the Trap Laying Officer. Hence, except for the bald allegations of the complainant, whose credibility is in a doubt and the reason for demand of the amount was concluded on 26.10.1998, there is no iota of evidence that the accused had demanded any amount of illegal gratification on the day of the trap.
9.2 As far as the recovery aspect is concerned, the tainted Page 34 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined currency notes of Rs. 75,000/- were found in the showcase in the house of the accused and the Trap Laying Officer has clearly stated that he could not see that the tainted currency notes while they were lying in the showcase when he came into the house of the accused and the panch witnesses also could not see where the tainted currency notes were placed. That the tainted currency notes were found on the say of the complainant and it appears that the complainant who was sitting on the sofa which was near to the showcase, had placed the tainted currency notes in the showcase without the knowledge of the accused. Moreover, the sanction for prosecution was rejected twice earlier and the order of sanction for prosecution was granted on the third attempt, after the judicial order was passed by the learned Trial Court. As observed by the learned Trial Court in the order, the grant of sanction or refusal of sanction is an administrative function of the Competent Authority and not a judicial act by which the Competent Authority had to conduct an independent inquiry. It is the privilege of the Competent Authority to grant sanction and Courts are not Page 35 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined permitted to act as Advisory Board. That the Government of Gujarat had declined to accord sanction twice and it appears that the sanction for prosecution accorded on the third attempt was after the direction of the learned Trial Court.
10. 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 learned Trial Court has discussed all the oral as well as documentary evidences 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 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.
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NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined
11. In view of the settled position of law in the decisions of Mallappa (Supra) and Neeraj Dutta (Supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 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.
12. The impugned judgment and order passed by the learned Special Judge, ACB, Court No. 4, Ahmedabad in Special Case No. 16/2002 on 01.04.2008 is hereby Page 37 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024 NEUTRAL CITATION R/CR.A/2081/2008 JUDGMENT DATED: 01/08/2024 undefined confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) Vasim Page 38 of 38 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 20:38:20 IST 2024