Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 1071 (GUJ)

Govindji Dhalaji Majitrana v. State Of Gujarat

2023-09-06

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : 1. The Criminal Appeal No.31 of 2004 is filed by the appellant – original accused No.2 under Section 374 of the Code of Criminal Procedure, 1973, (for short “the Cr.P.C.”) against the judgment and order of conviction and sentence dated 21/11/2003 passed by the learned Special Judge, Court No.3, City Sessions Court, Bhadra, Ahmedabad in Special Case No.29 of 1993, whereby, the learned Sessions Judge has convicted the appellant herein for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act, 1988”). The appellant was sentenced to undergo rigorous imprisonment for a period of 6 months and awarded fine of Rs.250/-, and in default of payment of fine, to undergo further rigorous imprisonment of 15 days for the offence under Section 7 of the Act. He was also sentenced to undergo rigorous imprisonment of one year with a fine of Rs.250/-, in default to undergo further rigorous imprisonment for 15 days for the offence under Sections 13(1)(d) read with Section 13(2) of the Act. Whereas, the Criminal Appeal No.560 of 2004 is filed by the appellant – Central Bureau of Investigation challenging the very same judgment and order dated 21/11/2003 so far as acquittal of the respondent – original accused No.1 under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is concerned. 2. The brief facts giving rise to the captioned appeals are as under : 2.1 The original accused No.1 - M.K. Katariya was serving as Regional Deputy Director and original accused No.2 – Govindji Dhalaji Majirana was serving as lower division clerk in the office of Regional Director of National Savings Organization at Ahmedabad. It is the case of the prosecution that an application was given by one lady namely, Sunitaben Tarachand Koshti for getting agency of Monthly Recurring Deposits Scheme, and for that, the said lady who is the wife of the complainant had approached the office of the accused, at that time accused No.2 had asked for Rs.600/- towards bribe by saying that she would not be required to come for an interview if she pays that amount. She was told that if she would not pay the amount then she would not get agency, inspite of giving interview. She was told that if she would not pay the amount then she would not get agency, inspite of giving interview. It was also told to her that out of the said amount, some share had to be given to his subordinate officer Mr.Manilal K. Kataria, accused No.1. It is further the case of the prosecution that thereafter, as the lady was not inclined to give the amount of Rs.600/- towards bribe, her husband Tarachand Koshti filed a complaint before the office of CBI on 25.08.1993 and on the basis of the said complaint, the Police Inspector, CBI called two panch witnesses and after going through all the procedure for raid, had arranged for a raid on 26.08.1993. It is also the case of the prosecution that the complainant alongwith panch witness no.1 met accused No.2. They were having some conversation and thereafter, they had gone to the tea stall where some conversation had taken place between them and then the amount was offered and the same was accepted. Thereafter, on receiving the signal, the raiding party immediately rushed at the spot and accused No.2 was apprehended. On enquiry, it was disclosed by accused No.2 that the amount of bribe was not for himself but, it had been taken on behalf of his officer and from this amount, he was to pay some share to his officer also. Thereafter, Mr.Jitendrasinh again made some experiment of phenolphthalein powder on the currency notes and the said amount was given to accused No.2 to give the share to his officer. Thereafter, the raiding party alongwith the complainant and panch witness No.1 had accompanied accused No.2 and went to the chamber of accused No.1 where also some conversation took place and the amount was offered by accused No.2 to accused No.1, which was accepted and upon signal received from inside the chamber, the raiding party had raided the chamber of accused No.1 in the office. It is alleged that on seeing the members of the raiding party, the accused No.1 had thrown away the money on the floor from where, the amount was recovered. 2.2 Both the accused were apprehended and on completion of raid, Mr.G.L. Thomas had taken over the charge. He had recorded the statements of witnesses and had recovered certain documents. As the accused were serving in capacity of public servants, necessary sanction was obtained to prosecute the accused. 2.2 Both the accused were apprehended and on completion of raid, Mr.G.L. Thomas had taken over the charge. He had recorded the statements of witnesses and had recovered certain documents. As the accused were serving in capacity of public servants, necessary sanction was obtained to prosecute the accused. Thereafter the charge-sheet was filed. After charge-sheet, the copies of all the papers and other documents were supplied to the accused persons and thereafter, the Trial Court had framed the charge at Exh.-8. The charge was read over and explained to the accused, to which they have denied the guilt and then the prosecution was allowed to led the evidence. 2.3 In order to bring home charge, the prosecution has examined following witnesses : - Oral evidence : Sr.No. Name of witnesses Exh. 1. PW-1 – Tarachand Gayaprasad Koshti (Complainant) 27 2. PW-2 – Ashitkumar Balwantrai Acharya (Panch no.1) 32 3. PW-3 – Natharam Kalaji 42 4. PW-4 – Purshotam Shomabhai Patel (independent person who was present in the chamber of accused no.1) 44 5. PW-5 – Satwant Kaur Harbansh Sinh (Employee of NSO) 45 6. PW-6 – Chandrakumar Kishanchand Bhatiya (in his presence specimen signature of accused no.2 were taken) 47 7. PW-7 – Rambhau Marutirao Dahat (Employee of NSO) 49 8. PW-8 – Jitendrasinh Vishwanathsinh (Trap lying officer) 51 9. PW-9 – Hari M. Saxena (Govt. examiner of questioned documents) 53 10. PW-10 – G.L. Thomas 67 2.4 The prosecution has produced the following documentary evidence :- Documentary evidence : Sr.No. Details of documentary evidence Exh. 1. Application of Ms.Sunita T. Koshti 28 2. Complaint of Shri Koshti 29 3. Recovery memo 33 4. Trap Panchnama 34 5. Report given by Natharam Kalaji 43 2.5 After examination of the witnesses in detail and after considering the documentary evidence and after hearing the arguments advanced by both the sides, the Trial Court has passed the impugned order of conviction convicting the appellants for the offences as mentioned hereinabove. Recovery memo 33 4. Trap Panchnama 34 5. Report given by Natharam Kalaji 43 2.5 After examination of the witnesses in detail and after considering the documentary evidence and after hearing the arguments advanced by both the sides, the Trial Court has passed the impugned order of conviction convicting the appellants for the offences as mentioned hereinabove. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant – original accused No.2 has filed the Criminal Appeal No.31 of 2004 under Section 374 of the Code of Criminal Procedure, 1973, whereas, being aggrieved and dissatisfied with the impugned judgment and order of acquittal of original accused No.1, the appellant – Central Bureau of Investigation has filed Criminal Appeal No.560 of 2004 under Section 378 of the Code of Criminal Procedure, 1973. 3. Heard learned counsel Mr.Bhadrish Raju, assisted by Mr.Dharamveersinh Solanki, the learned counsel appearing for the appellant – original accused No.2, Ms.Maithili D. Mehta, the learned APP appearing for the respondent – State of Gujarat, Mr.R.C. Kodekar, the learned counsel appearing for Central Bureau of Investigation and Mr.K.B. Anandjiwala, the learned senior counsel appearing for the original accused No.1. 4. Mr.Bhadrish Raju, the learned counsel appearing for the appellant – original accused No.2 in Criminal Appeal No.31 of 2004 has contended that the Trial Court has failed to appreciate that both the ingredients as are indispensably necessary to be proved in relation to the demand and acceptance have not been proved in respect of the present accused. He has further contended that the present appellant accused had not played any role in committing any act of omission or commission in the entire subject matter. It is contended that the appellant was serving as a Lower Division Clerk and had neither the powers to grant or reject the application in respect of agency. He has contended that reliance cannot be placed upon the deposition of the witness – Jitendrasingh Vishwanathsingh as the same would be hit by Section 27 and 24 of the Evidence Act. He has also contended that the Trial court has further erred in relying upon the depositions of the witnesses who have not supported the case of the prosecution and therefore, the impugned judgment and order of conviction is bad in law and against the weight of material on record. He has also contended that the Trial court has further erred in relying upon the depositions of the witnesses who have not supported the case of the prosecution and therefore, the impugned judgment and order of conviction is bad in law and against the weight of material on record. 4.1 It was contended by learned advocate Mr.Bhadrish Raju that the Constitution Bench of Hon’ble Supreme Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731 has held and observed in paragraph 88(a) that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue is a sine qua non in order to establish the guilt of the accused under Sections 7 and 13(1)(d)(i) and (ii) of the Act, 1988 and further held in paragraph 88 that the same can be proved by direct i.e. oral and documentary evidence and can also be proved by circumstantial evidence in absence of direct oral and documentary evidence. In the present, case no direct and/ or circumstantial evidence has been placed on record by the prosecution which satisfies the mandatory requirement of demand by the present appellant and the subsequent acceptance of illegal gratification. 4.2 Mr.Bhadrish Raju has further contended that the prosecution has relied on two alleged instances of demand against the present appellant, both of which have not been proved against the appellant, which are discussed as under : 4.2.1 With regard to demand 1 made on 25.08.1993 (alleged in presence of complainant alone), he has submitted that the Complainant, who was declared a hostile witness in his deposition Exh 27 at para 2 last 11th line, has stated that few people sitting around in N.S.O office mentioned that “it will cost you money here for work to be done” clearly exonerating the appellant from any illegal demand made on 25.08.1993. Furthermore, even the learned Judge at page 16, line 8 of the impugned judgment has relied on the same. He has submitted that the complainant was not declared hostile at this stage however, he was declared hostile subsequently. It was further submitted by Mr.Raju that the complainant on oath during the cross examination at page no. 303 has clearly and categorically exonerated the present appellant and stated that the appellant did not ask for any illegal gratification from the complainant. It was further submitted by Mr.Raju that the complainant on oath during the cross examination at page no. 303 has clearly and categorically exonerated the present appellant and stated that the appellant did not ask for any illegal gratification from the complainant. He, therefore, submitted that no reliance can be sought to be placed on any 161 statement of the complainant as the principles laid down by the Hon’ble Apex Court in the case of (i) Sondarajan Vs. State Rep. by Inspector of Police Vigilance Anticorruption Dindigul, reported in 2023 SCC OnLine SC 424 (para 10,11), and (ii) V.K. Mishra and Anr. Vs. State of Uttrakhand and Anr., reported in 2015 (9) SCC 588 (para 16-20) has not been followed and therefore, there remains no oral evidence or circumstantial evidence insofar as the first alleged demand is concerned. (i) The relevant observations made by the Hon’ble Apex Court in case of Sondarajan Vs. State Rep. by Inspector of Police Vigilance Anticorruption Dindigul, reported in 2023 SCC OnLine SC 424 is as under : “10. As stated earlier, complainant PW2 has not supported the prosecution. He has not said anything in his examination-in-chief about the demand made by the appellant. The public prosecutor crossexamined PW2. The witness stated that there was no demand of a bribe made by the appellant. According to him, he filed a complaint as the return of the sale deed was delayed. Though PW2 accepted that he had filed the complaint, in the cross examination, he was not confronted with the material portions of the complaint in which he had narrated how the alleged demand was made. The public prosecutor ought to have confronted the witness with his alleged prior statements in the complaint and proved that part of the complaint through the concerned police officer who had reduced the complaint into writing. However, that was not done. 11. Now, we turn to the evidence of the shadow witness (PW3). In the examination-in-chief, he stated that the appellant asked the PW2 whether he had brought the amount. PW3 did not say that the appellant made a specific demand of gratification in his presence to PW2. To attract Section 7 of the PC Act, the demand for gratification has to be proved by the prosecution beyond a reasonable doubt. The word used in Section 7, as it existed before 26th July 2018, is 'gratification'. PW3 did not say that the appellant made a specific demand of gratification in his presence to PW2. To attract Section 7 of the PC Act, the demand for gratification has to be proved by the prosecution beyond a reasonable doubt. The word used in Section 7, as it existed before 26th July 2018, is 'gratification'. There has to be a demand for gratification. It is not a simple demand for money, but it has to be a demand for gratification. If the factum of demand of gratification and acceptance thereof is proved, then the presumption under Section 20 can be invoked, and the Court can presume that the demand must be as a motive or reward for doing any official act. This presumption can be rebutted by the accused.” (ii) The relevant observations made by the Hon’ble Apex Court in case of V.K. Mishra and Anr. Vs. State of Uttrakhand and Anr., reported in 2015 (9) SCC 588 is as under : “16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary. 17. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the crossexamination of the investigating officer. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the crossexamination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 18. Section 145 of the Evidence Act reads as under: “145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his crossexamination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction. 20. In the case at hand, PW-1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW-1 nor the investigating officer were confronted with the statement and questioned about it, PW-1’s statement recorded under Section 161 Cr.P.C. cannot be looked into for any purpose much less to discredit the testimony of PW-1 and the prosecution version.” (iii) He has submitted that the same is observed by the Hon’ble Apex Court in Sondarajan (Supra) (para 11) and in para 8 of B. Jayraj Vs State of Andhra Pradesh, reported in (2014) 13 SCC 55 that a demand for illegal gratification is sine qua non which is not the case herein. Paragraph 8 is reproduced as under : “8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.” 4.2.2 With respect to demand 2 made on 26.08.1993 (The alleged offence taking place at Tea Stall at the time of trap), learned advocate Mr.Raju has submitted that in the present case the alleged demand 2 took place at the tea stall which is a busy and crowded location as has been stated by PW 8 Jitendrasingh in his cross examination at page 533 of the paper-book. Thus, despite the place of alleged demand 2 and acceptance being a crowded and busy location, no independent witness were examined. He further submitted that insofar as the complainant is concerned, the complainant has not supported the case of the prosecution for the 2nd Demand as well and the procedure highlighted earlier in connection with hostile witnesses has not been followed. He further submitted that insofar as the complainant is concerned, the complainant has not supported the case of the prosecution for the 2nd Demand as well and the procedure highlighted earlier in connection with hostile witnesses has not been followed. He has submitted that even insofar as the Panch PW-2 is concerned, his entire evidence does not disclose any demand whatsoever by the appellant and therefore, there is no direct evidence - oral and/or documentary in the present case to establish the 2nd demand, which is required to be a demand for illegal gratification. (i) He further submitted that the Hon'ble Apex Court in the case of Gulam Mahmood A Malek Vs. State of Gujarat, reported in 1980 (Supp) SCC 684 in para 6 has held as follows: “Though the panch witness corroborates the complainant, regarding the recovery, the delay in effecting the recovery of the money, the failure to examine independent witnesses who were admittedly in the Court hall and in the next room to which the accused was taken and the recovery made makes the entire prosecution case unacceptable.” (ii) He has submitted that the Hon’ble Apex Court in the case of Darshan Lal Vs. The Delhi Administration, reported in (1974) 3 SCC 595 at para 6, has held and observed as under : “6. Having regard to all these circumstances we think it is a fit case where the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap. In Ram Prakash Arora Vs. The State of Punjab this Court speaking about the evidence of trap witnesses, observed: “(They) were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any interested witness and in a proper case the court ma took for independent corroboration before convicting the accused persons. … … ...” 4.3 He has further submitted that there are inherent contradictions in the versions put forth by the PW2 and the Complainant in that the Panch PW-2 states that it was the present appellant who took the panch along with the complainant to the tea stall, however the complainant states at page no. 297 that that Complainant was the one who took the present appellant to the tea stall. 297 that that Complainant was the one who took the present appellant to the tea stall. He has submitted that in the present case even though tea stall being a crowded and busy location the investigating agency had failed to examine any independent witness and produce any corroborative evidence for the 2nd demand and there is also no circumstantial evidence placed on record and relied upon by the prosecution to seek to establish demand. 4.4 Learned advocate for the appellant has submitted that the learned Judge has referred to on one pre-demand factor which is not forming part of any alleged demand or acceptance. While the same is not considered as a demand and is therefore not addressed, since certain arguments were canvassed before this Court regarding the same, it is stated that insofar as this intervening factor is concerned, the complainant has turned hostile for the same and has clearly deposed that he did not enter the premises with PW-3 Natharam and the procedure highlighted earlier in connection with hostile witnesses has not been followed. Moreover admittedly Mr.Natharam PW-3 is a police officer having an interest in the successful outcome of the trap and therefore also, his testimony cannot be relied upon in the absence of any corroborating evidence, and admittedly there is none. 4.5 It was submitted by learned advocate Mr.Raju that regarding the acceptance of the alleged gratification, it is an admitted fact that the trap took at a crowded tea stall however, no independent witness including the owner of tea stall were examined. He has submitted that there the complainant turned hostile even with regard to the acceptance and clearly deposed (page no.299) that the appellant was holding a teacup and a saucer in both hands and the notes were not taken by the appellant but fell to the ground. This is in line with the Further statement u/s 313 of Cr.P.C. given by the appellant (page no.207) as well. He further submitted that there is a clear contradiction between the statements of the panch witness PW-2 (page no.333) and the trap officer PW-8 (page no.517) who stated that the complainant handed over the illegal gratification directly to the present appellant who counted the money and put it in his pocket. 4.6 Learned advocate Mr.Raju has further submitted that as observed by the Hon'ble Apex Court in the case of Som Prakash Vs. 4.6 Learned advocate Mr.Raju has further submitted that as observed by the Hon'ble Apex Court in the case of Som Prakash Vs. State of Punjab, reported in 1992 Supp (1) SCC 428 at para 2 last 4 lines, that: “We agree with the learned Counsel for the appellant that in the face of the finding that the witness who formed part of the raiding party were not independent and the evidence regarding handing over the money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. … … ...” 4.7 The learned advocate for the appellant has also pointed out at page no.669 marked as D8 Exh.-70, which is FSL report for the sealed samples wherein the date mentioned is 02.09.1993 i.e, after the delay of 7 days from the day of trap i.e., 26.08.1993. He has further pointed out that the report categorically states that while the seals are intact the impressions on the seals are not readable. There is the seizure of the pant worn by accused No.2 at the time of the alleged offence. The failure to address or acknowledge this crucial aspect makes the impugned order vulnerable. Therefore, the case of the prosecution even for the purpose of acceptance is not proved beyond reasonable doubt. 4.8 He has submitted that further statement of accused No.1 (page 155) clearly states that the authority to approve the application was the Regional Director and there was a mandatory interview prior to the application being allowed and the appellant was mere a clerk in the department. He has submitted that the panchnama (page 403) recorded that the accused No.1 provided the name of the Regional Director however, the raid was stopped there and no further steps were taken to investigate further the alleged accused on whose behalf the prosecution alleged that demand was made. He has further submitted that it cannot be believed that the appellant would repeatedly ask three times for illegal gratification in front of different individuals at different instances and it cannot be believed that the appellant agreed to accept the alleged illegal gratification at a tea stall, which is a public space having many persons, instead of a private space. He has also submitted that the pen with which the appellant had allegedly written the date on the application is also not seized. He has also submitted that the pen with which the appellant had allegedly written the date on the application is also not seized. He has therefore, submitted that other contradictions and lacunae in the prosecution case as detailed hereinabove establish, beyond a reasonable doubt, that no case under the provisions of the Act, 1988 can be made out against the present appellant and therefore, the present appeal is required to be allowed and the appellant is required to be acquitted. 4.9 Learned advocate Mr.Raju has submitted that the prosecution has not proved the charge levelled against the appellant accused in the present case as no demand and acceptance is proved beyond reasonable doubts by leading cogent and material evidence on record. It is also further submitted that prosecution has miserably failed to establish two prime ingredients to prove the charge levelled against the appellant accused and therefore, the Trial Court has committed an error by passing the impugned judgment and order of conviction and sentence against the present appellant accused. It is also further argued that at the time of arranging trap, the tainted currency notes were not found from the possession of the appellant accused and therefore, the case against the appellant accused cannot be believed as proved by the prosecution and hence, the conviction and sentence imposed upon the appellant accused is erroneous and bad in law and the same deserves to be quashed and set aside. Learned advocate Mr.Raju has further argued that the prosecution has planted the witness but, being a chance witness who had supported the case of the prosecution, his evidence cannot be believed as his evidence does not inspire any confidence so far as the demand and acceptance are concerned. Over and above, the appellant is wrongly convicted by the Trial court in the given facts and circumstances and thereby the Trial Court has committed a serious error of law and on facts while appreciating the evidence led by the prosecution and therefore, the impugned judgment and order of conviction passed against the appellant accused deserves to be quashed and set aside and the appellant be acquitted. 5. 5. As against that, Mr.R.C. Kodekar, the learned counsel appearing for the respondent No.2 – Central Bureau of Investigation has vehemently opposed the present appeal and submitted that the Trial Court has rightly convicted the appellant – original accused No.2 for the alleged offence of illegal gratification. He has further submitted that so far as the evidence against the present appellant is concerned, the oral evidence in the form of Panch Witness No.1 and PW-3 Natharam Kalaji is evidently established the demand made by the present appellant and thereafter, the acceptance and recovery was established by the oral evidence of Panch Witness No.1 beyond reasonable doubts. He, therefore, submitted that the present appellant has been rightly convicted by the Trial Court after examining the witnesses and after going through the documentary evidence on record and therefore, no interference is required to be called for in the impugned judgment and order of conviction passed by the Trial Court. 6. Learned APP Ms.Mehta has adopted the submissions canvassed by learned advocate Mr.R.C. Kodekar and submitted that the appellant accused has been rightly convicted by the Trial Court and therefore, no interference is required to be called for in the impugned judgment and order of conviction. 7. So far as the Criminal Appeal No.560 of 2004 acquitting the original accused No.1 is concerned, Mr.R.C. Kodekar, the learned counsel appearing for the appellant – Central Bureau of Investigation has submitted that the impugned judgment and order passed by the Trial Court is bad, illegal and contrary to law and evidence on record. He has submitted that the Trial Court has committed an error in acquitting the accused No.1 without considering the evidence adduced by the prosecution. He has submitted that the currency notes which has been thrown over the ground floor by the accused No.1 came to be recovered under the panchnama and the punch witness supported the version of panchnama which establishes the acceptance and recovery of the bribe money and no adverse conclusion came to be arrived at during the course of crossexamination. It was submitted by learned advocate Mr.Kodekar that PW-4 – Purshotam Shomabhai Patel has categorically deposed before the Trial Court with regard to acceptance and recovery of the currency notes from the chamber of accused No.1. It was submitted by learned advocate Mr.Kodekar that PW-4 – Purshotam Shomabhai Patel has categorically deposed before the Trial Court with regard to acceptance and recovery of the currency notes from the chamber of accused No.1. It was further submitted by Mr.Kodekar that the experiment with phenolphthalein powder establishes the facts of dipping the fingers of accused No.1 into the solution of Sodium Carbonate whereupon, colour of the sodium turned pink. The pocket of the pant of accused No.1 in which the bribe money was placed was also dipped into the solution of Sodium Carbonate which also turned pink, which also establishes the acceptance of the currency notes by the accused No.1. 7.1 It was submitted by the learned advocate Mr.Kodekar that the Trial Court, as observed in paragraph no.13 of the impugned judgment that no demand was made by Mr.Katariya, the amount was offered by his subordinate and not by third person, is not worthy of acceptance as the amount of bribe was given by the accused No.2 by referring the application given by the complainant party, wherein, punch witness No.1 and another independent witness PW-4 Purshotam Somabhai Patel was present, wherein, the amount was accepted and placed in the pocket of the pant and only after raiding party entered into the chamber, where the accused No.1 threw away the currency notes. This evidence would be in the form of the circumstantial evidence in the absence of direct oral and documentary evidence of any expressed demand. 7.2 It is submitted by the learned advocate Mr.Kodekar that at relevant point of time, the accused was found with the currency notes having mark of phenolphthelein powder as the accused had accepted the amount of bribe, and therefore, the impugned judgment and order of acquittal is erroneous and against the settled principles of law as well as the same deserves to be quashed and set aside and the findings recorded by the Trial Court is required to be reversed and the accused to be held guilty of the offence as alleged in the FIR. 7.3 Learned advocate Mr.Kodekar has strongly referred to and relied upon the recent decision of the Full Bench of the Apex Court in the case of Neeraj Datta Vs. State (Govt. 7.3 Learned advocate Mr.Kodekar has strongly referred to and relied upon the recent decision of the Full Bench of the Apex Court in the case of Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) decided on 15th December, 2022, reported in AIR 2023 SC 330 , more particularly, the observations made in paragraphs 28 to 35, paragraph 46 and clause (e) and (f) of paragraph 68, which read as under : “28. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under: “1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?” In order to answer the aforesaid question, it would be useful to recapitulate the relevant provisions of the law of evidence vis-à-vis tendering of oral and documentary evidence; presumptions and circumstantial evidence. Thereafter to analyse the three cases and also other cases cited at the Bar in the background of the question raised and to derive a conclusion from the said discussion. Relevant provisions of Law of Evidence - A discussion: 29. Since the main thrust of this case is on the quality of evidence for proof of demand and acceptance of an illegal gratification before a public servant can be held guilty of an offence under Section 7 and/or Section 13(1)(d) of the Act, it would be appropriate to discuss the salient principles of law of evidence relevant to the question under consideration. In this context, it would be necessary to refer to Sections 3, 4, 59, 60, 61, 62, 63, 64, 65 and 154 of the Evidence Act. 30. Congruent to the principle of res gestae, a fact includes a state of things or events as well as the mental state i.e. intention or animus. A fact in law of evidence includes the factum probandum i.e., the principal fact to be proved and the factum probans, i.e., the evidentiary fact from which the principal fact follows immediately or by inference. On the other hand, the expression “fact in issue” means the matters which are in dispute or which form the subject of investigation. (vide Section 3 of Evidence Act). 31. On the other hand, the expression “fact in issue” means the matters which are in dispute or which form the subject of investigation. (vide Section 3 of Evidence Act). 31. It is well settled that evidence is upon facts pleaded in a case and hence, the principal facts are sometimes the facts in issue. Facts relevant to the issue are evidentiary facts which render probable the existence or non-existence of a fact in issue or some relevant fact. 32. In criminal cases, the facts in issue are constituted in the charge, or acquisition, in cases of warrant or summon cases. The proof of facts in issue could be oral and documentary evidence. Evidence is the medium through which the court is convinced of the truth or otherwise of the matter under enquiry, i.e., the actual words of witnesses, or documents produced and not the facts which have to be proved by oral and documentary evidence. Of course, the term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge under Section 313 of the Criminal Procedure Code (CrPC). 33. Further, according to Sarkar on Law of Evidence, 20th Edition, Volume 1, “direct” or “original” evidence means that evidence which establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it, and believed that it established a fact in issue. Direct evidence proves the existence of a fact in issue without any inference of presumption. On the other hand, “indirect evidence” or “substantial evidence” gives rise to the logical inference that such a fact exists, either conclusively or presumptively. The effect of substantial evidence under consideration must be such as not to admit more than one solution and must be inconsistent with any explanation that the fact is not proved. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred. 34. Again, oral evidence can be classified as original and hearsay evidence. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred. 34. Again, oral evidence can be classified as original and hearsay evidence. Original evidence is that which a witness reports himself to have seen or heard through the medium of his own senses. Hearsay evidence is also called derivative, transmitted, or secondhand evidence in which a witness is merely reporting not what he himself saw or heard, and not what has come under the immediate observation of his own bodily senses, but what he has learnt in respect of the fact through the medium of a third person. Normally, a hearsay witness would be inadmissible, but when it is corroborated by substantive evidence of other witnesses, it would be admissible vide Mukhtiar Singh. 35. Evidence that does not establish the fact in issue directly but throws light on the circumstances in which the fact in issue did not occur is circumstantial evidence (also called inferential or presumptive evidence). Circumstantial evidence means facts from which another fact is inferred. Although circumstantial evidence does not go to prove directly the fact in issue, it is equally direct. Circumstantial evidence has also to be proved by direct evidence of the circumstances. Further, letting in evidence should be in accordance with the provision of the Evidence Act by the examination of witnesses, i.e., examination-in-chief, cross-examination, and re-examination. 46. Courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., “presumptions of mixed law and fact” or “presumptions of fact recognised by law”. The expression “may presume” and “shall presume” in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of “may presume” while legal presumptions or compulsory presumptions come under the division of “shall presume”. The expression “may presume” and “shall presume” in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of “may presume” while legal presumptions or compulsory presumptions come under the division of “shall presume”. “May presume” leaves it to the discretion of the court to make the presumption according to the circumstances of the case but “shall presume” leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression “shall presume” is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act. 68. What emerges from the aforesaid discussion is summarised as under: (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.” 7.4 Learned advocate Mr.Kodekar, therefore, urged that the present appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside and the respondent – original accused No.1 be held guilty of the alleged offence. 8. The trial does not abate nor does it result in an order of acquittal of the accused public servant.” 7.4 Learned advocate Mr.Kodekar, therefore, urged that the present appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside and the respondent – original accused No.1 be held guilty of the alleged offence. 8. As against that, the learned senior counsel Mr.K.B. Anandjiwala appearing for the respondent – original accused No.1 has strongly objected the present appeal and submitted that the Trial Court has rightly appreciated the evidence led by the prosecution in its true and proper spirit and therefore, there is no reason to interfere with the impugned judgment and order of acquittal recorded by the Trial Court. 9. I have heard the learned counsel appearing for the respective parties and perused the material placed on record of both the appeals. First of all I deal with the contentions raised by the learned advocate Mr.Raju with regard to preliminary demand, subsequent demand and the acceptance. It is the case of the prosecution that on 25.08.1993, when the complainant visited the office of Regional Director of National Savings Organization at Ahmedabad, he met the present appellant for the first time and he entered into conversation with the present appellant and thereafter, the present appellant had made a preliminary demand of Rs.600/- and he had given an understanding that if the complainant pays Rs.600/- towards illegal gratification, then his wife would not be required to come for the purpose of interview and directly she would be given agency for small savings agent under the scheme. The complainant had also given all these details with regard to the application made by him and therefore, on 25.08.1993, the complainant after discussing with the accused No.2 went to the office of P.I., CBI and the concerned police officer had recorded the information received from the complainant and reduced into writing and he also called the panchas at the place and the trap was arranged on 26.08.1993. They proceeded at the place of the office of Regional Director of National Savings Organization situated near Lal Darwaja, Ahmedabad and at the second time also, the appellant accused had raised demand of Rs.600/- and ultimately, in turn they went to the tea-stall and there the trapping officer had caught the appellant accused with tainted currency notes and when the accused saw the officer, he threw the notes on the ground but, the imprints of phenolphthalein powder were found on the tips of the fingers of the appellant accused. Till that moment, the complainant had fully corroborated the case of the prosecution and even from his cross-examination, the defence has not elicited any material which can be favourable to the present appellant accused and from the first part of his deposition and the evidence qua the first part of the trap against the appellant accused is concerned, the evidence of PW-1 complainant Tarachand Gayaprasad Koshti (Exh.-27) is not shaken on any aspect and therefore, the Trial Court has rightly believed the first part of the deposition of the complainant and passed the impugned judgment and order which is in consonance with the provisions of settled principles of law and the same is rightly discussed by the Trial Court while appreciating the evidence of PW-1 complainant and therefore, the impugned judgment and order of conviction and sentence qua the appellant - accused No.2 is concerned, there is no any infirmity or any perversity and hence, the same is deserves to be dismissed. 9.1 Even from the bare perusal of the evidence of PW-1, he has categorically stated that the appellant accused No.2 came with the copy of the application and had shown to the complainant that with regard to this application, if he is paying Rs.600/- then all the procedure would be bi-parted and the agency would be given to his wife. Further, PW-2 – Ashitkumar Balwantrai Acharya (Panch No.1) (Exh.-36) has fully supported the case of the prosecution qua the charges levelled against the appellant accused No.2 and therefore, the prosecution has rightly proved the case against the appellant beyond reasonable doubts, whereby the appellant held guilty for the alleged offence and convicted for the same. In my humble opinion, the Trial Court has not committed any error of facts and law in passing the impugned judgment and order of conviction and sentence qua the appellant accused No.2. In my humble opinion, the Trial Court has not committed any error of facts and law in passing the impugned judgment and order of conviction and sentence qua the appellant accused No.2. Of course, there are some minor discrepancies found in the deposition of PW-2 with regard to the currency notes which were thrown on the ground or with regard to putting them but, merely by these minor discrepancies, the whole evidence of PW-2 cannot be discarded. 9.2 The prosecution has also proved the fact by examining the hand-writing expert. It was deposed before the Court that the disputed documents bearing the hand-writing of the appellant – original accused No.2 matched with the specimen collected by the hand-writing experts by which the prosecution has proved that the appellant – original accused No.2 was dealing with the application of the wife of the complainant with regard to getting agency of Monthly Recurring Deposit Scheme and being a clerk, through his table the application was to be processed further and therefore, he had all occasion to deal with the application of the wife of the complainant and he had posted the date on the application. The said hand-writing is proved by the prosecution by leading cogent and material evidence by examining the hand-writing expert PW-9 at Exh.- 53 and therefore, the prosecution has rightly established the case against the appellant accused, which cannot be ignored. 9.3 The prosecution has also proved the case against the appellant – original accused No.2 by leading the evidence of PW-8 – Jitendrasinh Vishwanathsinh (Exh.-51), merely being a police officer his evidence cannot be brushed aside. In his deposition, detailed cross-examination was made on behalf of the defence and there is no any illicit material came on record which supports the say of the present appellant – original accused No.2. After examining the evidence in its true and proper spirit and in detail, I am of the opinion that the Trial Court has not committed any error while passing the impugned judgment and order of conviction and sentence against the appellant accused No.2. After examining the evidence in its true and proper spirit and in detail, I am of the opinion that the Trial Court has not committed any error while passing the impugned judgment and order of conviction and sentence against the appellant accused No.2. Even the appellant accused was not able to put any question or any suggestion with regard to any animosity with the trapping officer and therefore, the deposition of the trapping officer cannot be disbelieved or discarded, otherwise, the same has supported the case of the prosecution and therefore, the impugned judgment and order of the Trial Court is in consonance with the provisions of settled legal principles. 9.4 At this juncture, it would be appropriate to refer to the following decisions : [I] In case of Som Prakash Vs. State of Delhi, reported in [1974] 4 SCC 84, wherein, in paragraph nos.8, 12, 13 and 15 the Hon’ble Apex Court has observed and held as under : “8. The appellant's general denunciation of investigating officers as a suspect species also ill merits acceptance. The demanding degree of proof traditionally required in a criminal case and the devaluations suffered by a witness who is naturally involved in the fruits of his investigative efforts, suggest the legitimate search for corroboration from an independent or unfaltering source-human or circumstantial to make judicial certitude doubly sure. Not that this approach casts any pejorative reflection on the police officer's integrity, but that the hazard of holding a man guilty on interested, even if honest, evidence may, impair confidence in the system of justice. We are aware of the exaggerated criticisms of the police force as a whole and of the reluctance of the framers of the Criminal Procedure Code to trust statements recorded by police investigators but these are, partly atleast, the hangover of the British past. To-day, trust begets trust and the higher officers of the Indian Police, especially in the Special Police Establishment deserve better credence. We are certainly inclined not to swallow the evidence of P Ws. 7 and 8 without scrutiny but after having heard the appellant at length we are prepared to agree with the High Court that the evidence of P.Ws.7 and 8 are substantially correct.. Even here, we must underscore the importance of the findings of the: trap experiment, since they go a long way to underwrite the veracity, of the prosecution story. 12. Even here, we must underscore the importance of the findings of the: trap experiment, since they go a long way to underwrite the veracity, of the prosecution story. 12. In this very case, on the ill-starred day, duty had been fully paid and only his signature to the pro forma had to be appended for which the bribe was sought. We have little hesitation in taking the view that " speed money" is the key to getting lawful things done in good time and " operation signature", be it on a gate pass or a pro forma, can delay the movement of goods, the economics whereof induces investment in bribery. 13. Every pass and pro forma tempts and every discretionary power induces illicit demands, given a declining ethos where giving and taking of illegal gratification is looked upon as an inevitable evil which has come to stay-more and more inevitable and less and less evil, as the habit catches on. Producers depend for their rolling capital on quick turn- over which is clogged when forms and passes to be signed by officials are issued with purposeful reluctance and official slow- motion becomes the signal for use of that paper lubricant which on expanding class of businessmen blessed with dubious morals consider an, invisible component of the cost of production and a widening circle of officials gifted with low key consciences. regard as the unobjectionable art of coking out untaxed additions to their emoluments May be, this exaggerated version of the situation is but the folklore of corruption but knocks the bottom of the appellant's plea against motive. 15. The Central Law Commission considering white-collar crime as a serious menace has made are port on the subject, and the Senthanan Committee has much earlier highlighted the dangers in this area. In this social context judicial severity cannot err on the high side an we think the "ends of justice" referred to by the High Court for toning down the sentence is perhaps an error on the side of leniency. In this social context judicial severity cannot err on the high side an we think the "ends of justice" referred to by the High Court for toning down the sentence is perhaps an error on the side of leniency. If at 'all, intensive efforts to track down bigger corruption must be made ; but courts cannot slow down because bigger criminals are not caught ,although public morals is boosted better by one big fish being caught ,in the criminal not than by a hundred small fry perishing ashore, However, since the State has not quarrelled with the reduction of sentence by way of appeal we leave the matter well alone.” [II] In case of State of U.P. Vs. Zakaullah, reported in AIR 1998 SC 1474 , in paragraph nos.10 and 13, the Hon’ble Apex Court has observed and held as under : “10. The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other Acquaintance with the police by itself would not destroy a man s independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. Of the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that hew was a dependent of the police or other officials for any purpose whatsoever.(Hazari Lal vs. Delhi Administration : 1980 (2) SCR 1053 ). 13. The reasoning of the High Court that reliability of the trap was impaired as the solution collected in the phial was not sent to chemical Examiner is too puerile for acceptance. 13. The reasoning of the High Court that reliability of the trap was impaired as the solution collected in the phial was not sent to chemical Examiner is too puerile for acceptance. We have not come across any case where a trap was conducted by the police in which the phenolphthalein solution was sent to the Chemical Examiner. We know that the said solution is always used not because there is any such direction by the statutory public servant would have really handled the bribed money. There is no material discrepancy in the evidence regarding preparation of recovery-memo and the minor contradiction mentioned by the learned single judge is not worth considering.” 7. So far as the Criminal Appeal No.560 of 2004 filed by the appellant - Central Bureau of Investigation against the acquittal of the respondent – original accused No.1 is concerned, from the bare perusal of the evidence of PW-1 and PW-2 it appears that, at the first instance of first visit by the complainant at the office of Regional Director of National Savings Organization, he met only to the accused No.2 and he never even referred and mentioned about accused No.1 – respondent herein. He did not even know the respondent accused till the date of trap and therefore, he has not supported the case of the prosecution and qua subsequent part of the trap is concerned, the present respondent accused is involved in the alleged commission of crime. Even from the bare perusal of the evidence of the so-called and got-up witness being a chance witness to the incident, it reveals that no fruitful material is established by the prosecution against the respondent accused regarding involvement of the respondent accused in the commission of the crime in question and therefore, the Trial Court has rightly considered this aspect while coming to the conclusion that the prosecution has not proved the case against the respondent accused and therefore, the Trial Court has made exhaustive discussion in paragraph 12 of the impugned judgment and the conclusion arrived at by the Trial Court cannot be faulted with. Even as per the case of the prosecution, at the time of subsequent trap, there is no clear or any uncertain terms, the demand made by the present respondent accused with regard to any illegal gratification and therefore, mere acceptance, if at all, cannot conclude the guilt of the respondent accused and therefore, the Trial Court has rightly passed the impugned judgment and order of acquittal qua the respondent accused No.1. 7.1 It is the case of the prosecution that at the first instance, the demand was made by the original accused No.2 and not by the accused No.1. Even upto second instance, the involvement of the accused No.1 was not shown in the first part of the complaint and therefore, the Trial Court has rightly considered the case and passed the impugned judgment and order of acquittal against the respondent accused and thus, the appeal filed by the Central bureau of Investigation deserves to be dismissed. It is also settled legal principle that while dealing with appeal against acquittal the appellate Court while reappreciating the evidence has to keep in mind that if any illegality or any perversity is found in the judgment, then in such circumstances, only the appellate Court exercise power under Section 378 read with clause (1) and (3) of the Cr.P.C. 8. At this stage, it would be appropriate to consider the guiding principles enunciated by the Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. 9. It is well settled that while dealing with the acquittal appeal, while exercising powers under Section 378(1)(3), the scope and ambit of the powers to the Appellate Court while dealing with the acquittal appeal is as enunciated by the Apex Court in case of Chandrappa and others (Supra) in paragraph 42 is very limited. 9. It is well settled that while dealing with the acquittal appeal, while exercising powers under Section 378(1)(3), the scope and ambit of the powers to the Appellate Court while dealing with the acquittal appeal is as enunciated by the Apex Court in case of Chandrappa and others (Supra) in paragraph 42 is very limited. Of course, the Appellate Court has to re-appreciate and re-examine all the evidence which is recorded by the Trial Court, and on perusal of the said evidence and examination of the evidence recorded by the Trial Court, if any perversity or infirmity is found in the evidence, then in that case only, the Appellate Court can exercise the powers under Section 378(1)(3) of the Code of Criminal Procedure, 1973. Here in the present case, in my opinion, there is no infirmity or any perversity found in the judgment of the Trial Court recording acquittal. 10. For the foregoing reasons and in view of the reported decisions of the Hon’ble Apex Court, the Criminal Appeal No.31 of 2004 filed by the appellant – original accused No.2 – Govindji Dholaji Majirana deserves to be dismissed and it is hereby dismissed. The impugned judgment and order of conviction and sentence dated 21/11/2003 passed by the learned Special Judge, Court No.3, City Sessions Court, Bhadra, Ahmedabad in Special Case No.29 of 1993 qua appellant – original accused No.2 is hereby confirmed. The appellant – original accused No.2 is directed to surrender before the judicial custody of the concerned Trial Court forthwith. The bail and bail bond, if any, while enlarging the appellant on bail stands cancelled. Surety, if any, shall stand discharged. The Criminal Appeal No.560 of 2004 filed by the appellant – Central Bureau of Investigation deserves to be dismissed and is hereby dismissed. The bail bond, if any, furnished by the respondent- original accused No.1 also stands cancelled. Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith. FURTHER ORDER Learned advocate for the appellant – original accused No.2 has requested for some time to surrender. Request is acceded to. The appellant – original accused No.2 shall surrender before the judicial custody of the concerned Trial Court within a period of 8 (Eight) weeks from today.