Gujarat High Court
State Of Gujarat vs Vilasbhai Jangeshbhai Patel on 12 July, 2024
NEUTRAL CITATION
R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1586 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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STATE OF GUJARAT
Versus
VILASBHAI JANGESHBHAI PATEL
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 12/07/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant-State under Section 378(1)(3) of Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the learned Additional Sessions Judge & Presiding Officer, 4th Fast Track Page 1 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined Court, Surat (hereinafter referred to as "the learned trial Court") in Special (ACB) Case No. 57 of 1996 on 31/08/2005, whereby the learned trial Court has acquitted the respondent for the offence punishable under Sections 7, 13(1)(d), (1)(2)(3) 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 the accused was a Medical Officer in the Community Health Centre, Patal village, Taluka: Mandvi and was a public servant. That the complainant Jayantilal Ichchhulal Patel, Police Inspector, ACB Police Station, Surat had received secret information that the accused was demanding for illegal gratification of the amounts ranging from ₹50/- to ₹200/- from the patients, who wanted a medical certificate of their illness and a decoy trap was arranged. That the complainant called the panchwitnesses and the demonstration of anthracene powder and ultraviolet lamp was done in the presence of the decoy and Page 2 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined panchwitnesses and the complainant took two currency notes of the denomination of ₹50/- each and ten currency notes of the denomination of ₹10/- each and all the currency notes were smeared with anthracene powder and placed in the left shirt pocket of the decoy Dhansukhbhai Chimanbhai Gamit. That the panchwitness and decoy Dhansukhbhai Chimanbhai Gamit went on 22/09/1995 to the Community Health Centre, Village: Patal, Taluka: Mandvi, District: Surat. That decoy Dhansukhbhai Chimanbhai Gamit residing at village Patal, Taluka: Mandvi, District: Surat was explained about the decoy trap and he had agreed to cooperate and the trap was arranged and the accused demanded for the illegal gratification of ₹70/- for issuing a certificate to the decoy Dhansukhbhai Chimanbhai Gamit and accepted the same and after the predetermined signal was given, the members of the raiding party came and caught the accused. The complainant filed complaint at ACB Police Station, Surat under Sections 7, 13 (1)(d), 1, 2, 3 and 13 (2) of the PC Act, which was registered at C.R. No. 9 of 1995 on 22/09/1995.
2.2] That the Investigating Officer recorded the statements of the connected witnesses and after the necessary Page 3 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined documents including the service record and the order of sanction for prosecution was received, a chargesheet came to be filed before the learned Sessions Court, Surat, which was registered as Special ACB Case No. 57 of 1996. 2.3] That the accused was duly served with the summon and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 6 was framed against the accused and the statement of the accused was recorded at Exh:7. The accused denied all contents of the charge and the evidence of the prosecution was taken on record.
2.4] The prosecution has produced the following oral as well as documentary evidences in support of their case.
ORAL EVIDENCE
P.W.No. 1 Dhansukhbhai Chimanbhai Gamit Exh: 12
P.W.No.2 Rajendrakukar Ishwarsinh Barot Exh: 18
P.W.No.3 Sureshbhai Gangaram Badgujar Exh: 27
P.W.No.4 Ajabsinh Mulsinh Rathod Exh: 39
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DOCUMENTARY EVIDENCE
1 Receipt of seized note Exh:13
2 Receipt of Seized muddamal Exh:19
3 Panchnama Exh:20
4 Complaint Exh:35
5 Case Papers of dated 22/09/1995 Exh:40
6 Case Papers of dated 19/09/1995 Exh:41
7 Transfer order Exh:42
8 Appointment order of transfer order Exh:43
9 Order of leaving charge Exh:44
10 Order of sanction for prosecution Exh:45
2.5] After the closing pursis was filed by the learned
Additional Public Prosecutor at Exh:46, the further statement under Section 313 of the Code Of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence of the prosecution and further stated that he was a Medical Officer in the Community Health Centre at village Patal and he has never demanded for any amount of illegal gratification from Dhansukhbhai Chimanbhai Gamit or from any other person. He is residing at Bardoli and was commuting to Village Patal from Bardoli and on 19/9/1995, Dhansukhbhai Chimanbhai Gamit had come with his son aged two and half years, who had a boil and required some medicines, which were not available at the Page 5 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined Community Health Centre, Patal. That he had brought the medicines from Bardoli for the son of Dhansukhbhai Chimanbhai Gamit and had given the medicines to him and he wants to pay the cost of the medicines to him and on the day of the trap, the amount that was accepted was towards the medicines, which was purchased by the accused from Bardoli for the son of Dhansukhbhai Chimanbhai Gamit. After the arguments of learned Additional Public Prosecutor and learned Advocate for the accused were heard, the learned trial Court passed the impugned judgment and order of acquittal. 3] Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant-State has filed the present appeal mainly stating that the judgement and order of acquittal is contrary to law and evidence on record and the learned trial Court has erred in believing that the prosecution has failed to prove its case beyond reasonable doubts. That the learned trial Court has failed to appreciate that the complainant Jayantilal Ichchhulal Patel had received secret information and had arranged for the decoy trap and the complainant, who is the Trap Laying Officer has fully supported the case of the Page 6 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined prosecution. That in the evidence of the Trap Laying Officer and the panchwitness, the entire charge has been proved against the accused. That even though the decoy Dhansukhbhai Chimanbhai Gamit has turned hostile but there is a sufficient evidence in the deposition of the panchwitness as also the Trap Laying Officer that the respondent had in fact demanded the amount of illegal gratification, and the same was recovered from him. That the learned trial Court has failed to appreciate the evidence in its real perspective and has acquitted the respondent but the prosecution has proved that the illegal demand of money was made from the decoy. That the judgement and order of acquittal is contrary to law and evidence on record and deserves to be quashed and set aside.
4] Heard learned Additional Public Prosecutor Ms. C.M.Shah and learned advocate Mr. Shakeel Qureshi for the respondent. Perused the impugned judgment and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5] Learned Additional Public Prosecutor Ms. C.M.Shah has taken this Court through the entire evidence of all the Page 7 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined witnesses and the documentary evidences and has submitted that even though the decoy has not supported the case of the prosecution, it is settled law that the portion of the evidence that supports the case of the prosecution, in the deposition of hostile witnesses, must be considered and the decoy Dhansukhbhai Chimanbhai Gamit has stated that the amount of ₹70/- was given to the respondent and the tainted currency notes have been recovered from the respondent. That the Panch witness has fully supported the case of the prosecution and the complainant who himself is the Trap Laying Officer and who had received the secret information had arranged for the trap and the prosecution has fully proved all the ingredients of demand, acceptance, and recovery of the tainted currency notes from the possession of the respondent. That the learned trial Court has not given the benefit of presumption to the prosecution and as the tainted currency notes were recovered from the possession of the respondent, it can be presumed that there was a demand for illegal gratification and the same was accepted by the respondent and the learned trial Court has erred in appreciating the evidence of the prosecution. Learned Additional Public Page 8 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined Prosecutor has urged this Court to allow the appeal and set aside the impugned judgement and order of acquittal find the accused guilty for the said offences.
5.1] Learned Advocate Mr. Shakeel Qureshi for the respondent has submitted that the tainted currency notes were recovered from the possession of the respondent but the respondent has raised a probable defence and decoy Dhansukhbhai Chimanbhai Gamit has himself stated that he had gone to the respondent for treatment of his son who had a boil and a medicine that was to be applied was not available with the Community Health Centre and the respondent had brought that medicine from Bardoli. That in the further statement, the respondent has clearly stated these facts, and there is no evidence that the respondent had demanded for any amount of illegal gratification. That in fact, when the decoy Dhansukhbhai Chimanbhai Gamit had demanded for the certificate from the respondent, the respondent had stated that he could not issue the certificate as the Clerk was on leave, and the rubber stamps were in the custody of the Clerk and had asked the decoy Dhansukhbhai Chimanbhai Gamit to come later and collect the Page 9 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined certificate. That there is no iota of evidence that any demand of illegal gratification was made by the respondent and the prosecution has not proved the ingredients of demand and acceptance beyond reasonable doubts and hence the presumption under Section 20 of the PC Act would not be available to the case of the prosecution. That the learned trial Court has discussed the entire evidence in proper perspective and has, in a well reason judgement, concluded that the demand has not been proved by the prosecution and hence learned advocate Mr. Shakeel Qureshi has urged this Court to reject the appeal and confirm the impugned judgement and order of acquittal.
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 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 Page 10 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined 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.
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 Page 11 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see 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 Page 12 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined 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.
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.Page 13 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024
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(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public 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 Page 14 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined 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."
7] In view of the above settled principles of law in acquittal appeals and in cases under the PC Act in light of the decision of the Apex Court in Mallappa (supra) and Neeraj Dutta (supra), the entire evidence of the prosecution has been Page 15 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined reappreciated and to bring home the charge against the accused, the prosecution has examined Prosecution Witness No. 1 Dhansukhbhai Chimanbhai Gamit at Exh:12. The witness has stated that he was residing in Patal village in the year 1995 and one Govindbhai Chimanbhai Gamit of his village had taken him to Surat and had told him that he knew some officer and would give him job as a Peon. That he was taken to the ACB office and Govindbhai went inside and spoke to the officers and thereafter called him inside the office. That he was asked his name and other details and he was told that Govindbhai Chimanbhai Gamit had given the information that the Medical Officer of his village was demanding for illegal gratification but he had stated that he did not know about any such incident. That the Medical Officer at Patal Community Health Centre was Dr. V.J.Patel, and the officer had told him that as Govindbhai Chimanbhai Gamit had given him the information, a decoy trap was to be arranged. He told Govindbhai that he was not ready to be the decoy but Govindbhai told him that he would not get the job. That he was given snacks and two other persons were called and they were also told about the decoy trap. That some money was taken and Page 16 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined some powder was applied on the currency notes and the currency notes were shown to them in some lamp and the currency notes were signing. That the currency notes were placed in his left side pocket but he does not know what amount it was. That they all went to Patal in the jeep and he and one another person, who had come from Surat had gone to the government hospital in Patal. That he told the doctor that he was having a headache, fever and was feeling cold and the doctor asked him to get a blood test done. That he had gone and given his blood for testing and he sat on the bench, which was outside of the room of the doctor, and the doctor went into the other room to have his snacks. That after the doctor returned, he was given medicines and the person who had come with him was sitting outside on the bench. That he demanded for the certificate from the doctor but the doctor told him that the Senior Clerk was on leave and would come after one week. That two days prior to the date of the trap, his son had a boil in the throat and the doctor had given him medicine and he had given the money to the doctor. That some of the currency notes which were placed by the ACB officers in his shirt pocket, were placed Page 17 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined by him in the pant pocket on the road and he had given more than ₹50/- to the doctor who took the amount and without counting, put it in his pocket. That he gave the predetermined signal and the members of the raiding party came and caught the doctor, but the doctor stated that he has not taken any amount of illegal gratification and had taken the money towards the medicines. The witness has not supported the case of the prosecution and had been declared hostile and during the lengthy cross examination by the learned APP , the witness has not supported the case of the prosecution.
During the cross-examination by the learned advocate for the accused, the witness has stated that the timings of the Community Health Centre of Patal village are from 09:00 am to 12:00 pm and sometimes medicine, which is not available in the hospital, has to be brought from outside. That sometime the doctors bring the medicine from outside and collect the cost of the medicines from the patient. That at that time, his son had a boil and a minor surgery was required and medicine was to be purchased from outside, which was brought by the doctor, and he had given the money towards the medicine. That besides that Page 18 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined he had not given the doctor any other amount. That when he had gone to the office with Govindbhai Chimanbhai Gamit, he was sitting outside and Govindbhai had a conversation with the ACB officials , and he was asked to affix his signature on some documents. That between 19/9/1995 and 22/9/1995, he was going to the hospital for the treatment of his son, and he had not taken any treatment during that time.
7.1] The prosecution has examined Prosecution Witness No. 2, Rajendrasinh Ishwarsinh Barot at Exh:18 and the witness is the panch witness, who has stated that on 01/09/1988, he and other panch witness Shyam Natawar Teniya had gone to the ACB office and they were explained about the decoy trap. The witness has fully supported the case of the prosecution and has narrated in detail about the currency notes, which were two currency notes of the denomination of ₹50/- each and 10 currency notes of the denomination of ₹10/- each that were given by the Police Inspector, Mr. Jayantilal Ichchhulal Patel and decoy Dhansukhbhai Chimanbhai Gamit was also present. The witness has narrated the entire procedure of anthracene powder and ultraviolet lamp that was demonstrated in their Page 19 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined presence and thereafter the necessary instructions were given and the trap was arranged. That at 12:40 am, the Decoy Dhansukhbhai Chimanbhai Gamit, both the panch witnesses, Police Inspector Jayantilal Ichchhulal Patel, Writer Constable of Police Inspector Jayantilal Ichchhulal Patel and 2 to 3 other persons had left in the government jeep and gone from Athwa Gate to ring road to Sahara Darwaja, Varachha Road, Kamrej Cross Roads on the National Highway, Kim cross road and Mandvi Road to Zanp village and had reached Patal village. That they halted the government vehicle a little away from the Community Health Centre and he and the decoy Dhansukhbhai Chimanbhai Gamit had gone to the Community Health Centre and met the accused in his chamber. That the decoy Dhansukhbhai Chimanbhai Gamit told the doctor that he was feeling cold had a fever, bodyache and headache and he was examined by the accused and his blood sample was taken in the opposite room. That he sat in the doctor's chamber and had told the doctor that he was Dhansukhbhai's friend. That after the blood sample was taken, Dhansukhbhai came back to the doctor's chamber and both of them were asked to sit outside on Page 20 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined the bench as the doctor wanted to take snacks. That after the doctor returned, they went into the chamber and the prescription was given and decoy Dhansukhbhai Chimanbhai Gamit asked for a medical certificate from 19/09/95 to 25/09/95, and at that time, the accused told him that as the Senior Clerk was on leave and the rubber stamps were in his cupboard, he could not give him the certificate and to collect the certificate on 25/09/95. That at that time the accused demanded for the amount of ₹70/- towards the medical certificate and the decoy took seven currency notes of the denomination of ₹10/- each from the tainted currency notes that were placed in his left side pocket and gave them to the accused and the accused accepted the same and put the currency notes in his left side pocket. That the predetermined signal was given by the decoy and the members of the raiding party came, and the entire procedure was done, and the amount was recovered from the accused.
During the cross-examination by the learned advocate for the accused, the witness has stated that whenever any person comes to the Government Hospital, the case papers have to be made but he does not remember as to whether any note was Page 21 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined made on the case papers. That he does not know, who had called the person to take the blood sample of the decoy and they were sitting on the bench outside of the room. That he does not know as to whether when they went once again into the chamber whether the blood test report of Dhansukhbhai was received or not and the doctor had not inquired about the details of the decoy Dhansukhbhai Chimanbhai Gamit. That the accused had a thermometer, pen and other papers in the shirt pocket and all the items were tested under the ultraviolet lamp and at that time the thermometer and the pen did not have any trace of anthracene powder. That he removed the items from the pocket of the accused, but he does not remember as to whether his hands were tested in the ultraviolet lamp or not. That he does not remember,where the alternative shirt was arranged by the Trap Laying Officer.
7.2] The prosecution has examined Prosecution Witness No. 3 Sureshbhai Gangaram Badgujar at Exh:27 and the witness is the Lamp Operator, who had conducted the demonstration and was also a member of the raiding party. The witness has fully supported the case of the prosecution and has narrated the Page 22 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined procedure that was undertaken by him and the test done after the trap was successful.
During the cross-examination by the learned advocate for the accused, the witness has stated that he has worked as a Lamp Operator, a member of the raiding party in many cases and as a writer and is well aware of the entire procedure of filing of the complaint till the filing of the chargesheet in ACB cases. That he has not undertaken any special training for anthracene powder and ultraviolet lamp and he had studied up to SSC. That he does not remember when the decoy Dhansukhbhai had come for the first time to the ACB office and whether the decoy was arranged on 22/09/1995. That the pen and the thermometer, that were in the pocket of the accused, were tested under the ultraviolet lamp and no traces of anthracene powder were found on them, and the seizure memo does not show that pen and thermometer were seized by the Trap Laying Officer.
7.3] The prosecution has examined Prosecution Witness No. 4 Jayantilal Ichchhulal Patel at Exh:34 and the witness is the Complainant and the Trap Laying Officer, who has fully Page 23 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined supported the case of the prosecution and has narrated in detail about the secret information that he had received and the decoy trap that was arranged by him on 22/09/1995. That after the trap was successful, the witness filed the complaint in the ACB Police Station, Surat for the offence punishable under Sections 7, 13(1)(d), 1, 2, 3 and 13 (2) of the PC Act, which was registered as C.R.No. 09 of 1995 and he had recorded the further statement of decoy Dhansukhbhai Chimanbhai Gamit as also the statements of the connected witnesses and the employees, who were working in the Community Health Centre at village Patal. That in the further statement, the decoy had stated that he had gone and met the doctor two days prior to the trap as his son had a boil in the throat and the doctor had told him that he would bring the medicines and on the day of the trap he had given the money for the medicines to the doctor. That after the trap, when the ACB officers came, the doctor had stated that he had taken the money for the medicines, but the ACB officers had told him not to speak anything. That he has not investigated as to whether decoy Dhansukhbhai Chimanbhai Gamit had gone to the hospital on 19/09/1995 and on the day of Page 24 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined the trap, the decoy was not unknown to the accused. That he had not instructed the decoy to get the case papers issued on 22/09/1995. That he does not remember as to whether during investigation, he had found that the son of the decoy was not well and he had a boil and was being treated by the accused. 7.4] The prosecution has examined Prosecution Witness No. 5 Ajabsinh Mulsinh Rathod at Exh:39 and the witness has stated that he had taken over the investigation from the Police Inspector Mr. Jayantilal Ichchhulal Patel and had collected the necessary documents and after the order of sanction for prosecution, which is produced at Exh:45 was received, he had filed the chargesheet.
8] On minute dissection of the entire evidence of the prosecution on record, the decoy, from whom, the accused is said to have been made the demand for illegal gratification, has not supported the case of the prosecution and has turned hostile and has stated that two days prior to the day of the trap, he had gone to the Community Health Centre and had met the accused for his son and his son was suffering from a boil, for which, the medicine was not available at the Community Health Centre at Page 25 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined village Patal. That the medicine was brought by the accused from Bardoli and it is the defence of the accused that the money that was accepted by him was towards the medicine that was purchased by him from Bardoli for the son of the decoy Dhansukhbhai Chimanbhai Gamit. During the cross examination of the complainant, who is also the Trap Laying Officer and has partly investigated the offence, it has come on record that the same statement was made by the accused immediately after the trap, and when the accused was caught with the tainted currency notes, he had stated that the amount has been paid towards the medicine that he had brought from Bardoli for the son of Dhansukhbhai Chimanbhai Gamit. That during investigation, in the further statement of the decoy, that was recorded by Police Inspector, Mr. Jayantilal Ichchhulal Patel, the complainant and the Trap Laying Officer, the Decoy Dhansukhbhai Chimanbhai Gamit has stated the same facts but the Investigating Officer has not investigated about the illness of the son of the decoy Dhansukhbhai Chimanbhai Gamit. That the accused has raised a plausible defence and the demand has not been proved by the prosecution, which is a sine-qua-non for Page 26 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined the offence under the PC Act. Admittedly, the seven currency notes of the denomination of ₹10/- each were found from the pocket of the accused as per the case of the prosecution but it has also come on record that the pen and the thermometer which were in the left side pocket of the accused did not have traces of anthracene powder and the Lamp Operator, Prosecution Witness No. 3 Sureshbhai Gangaram Badgujar had stated that no traces of anthracene powder were found on the thermometer and the pen but the same have not been seized by the Investigating Officer.
9] The factum of demand has not been proved by the prosecution beyond reasonable doubts and even if the recovery of the tainted currency notes is believed to be from the possession of the accused, the accused has raised a plausible demand and even the decoy has stated the same facts and the learned trial Court has discussed all the evidence in proper perspective. Moreover, in the evidence of the prosecution, Govindbhai Chimanbhai Gamit, who was the informant about the illegal gratification being demanded by the accused is an important witness, but he has not been examined before the Page 27 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined learned trial Court and when the factum of demand was not proved beyond reasonable doubts, the presumption under Section 20 of the Act could not be invoked before the learned trial Court.
10] The learned trial Court has in the impugned judgment and order discussed the entire evidence adduced by the prosecution and has discussed all the aspects and as the factum of demand was not proved by the prosecution in the entire evidence adduced on record, the learned trial Court has passed the impugned judgment and order of acquittal. 11] In view of the decision of the Apex Court in the case of Neeraj Dutta (supra), this Court is of the opinion that the learned trial Court has appreciated the entire evidence of the prosecution 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 Page 28 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024 NEUTRAL CITATION R/CR.A/1586/2006 JUDGMENT DATED: 12/07/2024 undefined 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 dated 31/08/2005 passed by learned Additional Sessions Judge & Presiding Officer, 4th Fast Track Court, Surat in Special (ACB) Case No. 57 of 1996 is hereby confirmed. Bail bonds stand canceled.
13] Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 29 of 29 Downloaded on : Fri Jul 26 22:12:18 IST 2024