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2023 DIGILAW 265 (GUJ)

State Of Gujarat v. Ashokbhai Shankerbhai Patil

2023-02-07

MAUNA M.BHATT

body2023
JUDGMENT : 1. This is an appeal preferred by the State of Gujarat under Section 378(3) of Code of Criminal Procedure, 1973 (“The Code” for short) against the judgment and order of acquittal dated 18.10.2006, recorded by learned Special Judge, Vadodara in Special (A.C.B.) Case No.04 of 2004, whereby the learned trial Court acquitted the respondent – accused from the charges for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short). 2. Brief facts, leading to the present appeal, are as under: The complainant – Laxshmanbhai Tersingbhai Tathva, was resident of Village: Gambhirpura, Nava Faliya, Jetpur Pavi, Chhota Udepur, Vadodara. The complainant was having ancestral land of 12 Acres, which he was cultivating and his name was also registered in the revenue record. It was case of the prosecution that one Budhiyabhai-uncle of the complainant, had lodged a complaint against the complainant and his family in Jetpurpavi Police Station to get his share in subject land. It was case of the prosecution that respondent-accused wanted to put the complainant in the jail but one Bhimsinh Rathva interfered and pursuant to his intervention, respondent-accused, agreed not to take him in the jail but he demanded Rs.200/- for petrol of his bike. On the next day, when the complainant, his mother and his brother went to Jetpurpavi Police Station, respondent-accused threatened complainant to put them in jail and for not doing so, he demanded Rs.2,000/- as illegal gratification. At that time, the complainant paid Rs.1,000/- to the respondent-accused and balance amount of Rs.1,000/-, was agreed, to be paid next day. It was further case of the prosecution that as the complainant failed to make payment on 16.12.2003, respondent-accused went to the complainant's house and informed to reach at police station with money. Therefore, on 18.12.2003, the complainant approached ACB, Vadodara and filed complaint against the respondent-accused. Pursuant to the said complaint, a trap was arranged by the ACB, Vadodara and during course of trap, respondent-accused was caught with illegal gratification. Therefore, offence punishable under sections 7, 13(1)(d) read with 13(2) of the Act, registered against the respondent-accused. Necessary investigation was carried out and statements of several witnesses were recorded. During course of investigation, the respondent- accused was arrested and thereafter released on bail. Therefore, offence punishable under sections 7, 13(1)(d) read with 13(2) of the Act, registered against the respondent-accused. Necessary investigation was carried out and statements of several witnesses were recorded. During course of investigation, the respondent- accused was arrested and thereafter released on bail. Ultimately, charge-sheet was filed before the learned Special Judge, where the case was registered as Special (ACB) Case No.4 of 2004. The trial was initiated against the respondent-accused. 3. To prove the case against the present respondent - accused, the prosecution has examined in all five witnesses and also produced several documentary evidences. 4. At the end of trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges levelled against him by the impugned judgment and order. 5. Being aggrieved and dis-satisfied with the aforesaid judgment and order passed by learned trial Court, the appellant State has preferred the present appeal. 6. Heard Ms. Jirga Jhaveri, learned APP for the appellant – State and Ms.Dhruti Pandya, learned advocate for the respondent – accused. 7. Appearing for the State, learned APP Ms. Jhaveri submitted that learned trial Court has not properly appreciated the evidence on record and learned trial Court ought to have considered the deposition of shadow witnesses, who are independent panch witnesses sufficient to establish the demand. It is contended by learned APP that the learned trial Court has erred in not properly appreciating the evidence led by the prosecution looking to the provisions of the Act which establishes that the prosecution has proved all the ingredients of alleged charges against the present respondent. By taking this Court to various oral and documentary evidence, learned APP contended that the learned trial Court’s order of acquittal is based on inference not warranted by facts of the present case and it is based on the presumption which is not permitted by law. Relying upon the deposition of PW-1 - complainant at Exh.12, she submitted that the respondent-accused demanded illegal gratification from the complainant by telling him to come at the backside of the police station and there was motive to demand the illegal gratification as the land chapter case was pending for investigation before the respondent accused. Relying upon the deposition of PW-1 - complainant at Exh.12, she submitted that the respondent-accused demanded illegal gratification from the complainant by telling him to come at the backside of the police station and there was motive to demand the illegal gratification as the land chapter case was pending for investigation before the respondent accused. She further contended that as the recovery of demand was established, learned trial Court has erred in not considering the said aspect and on this ground, the appeal of the State is required to be allowed. 8. On the other hand, learned advocate Ms.Dhruti Pandya for learned advocate Ms. Kruti Shah, for respondent-accused submitted that the prosecution failed in establishing the demand raised, by leading any evidence in support of the same. Relying upon the deposition of P.W. 1 (complainant) at Exh.12, she submitted that in the cross-examination the complainant had not supported the case of the prosecution that the demand was raised by respondent-accused for doing certain work. On the contrary, it is on record that prior to the date of complaint i.e. on 18.12.2003, the complainant was presented before Mamlatdar and released on bail and therefore, no work was pending for which, respondent demanded illegal gratification. She further relied on deposition of PW-2 (independent panch witness – Karshanbhai Babubhai Adila) at Exh.15, who stated that he joined the trap as informed and was not aware about any demand of illegal gratification. Moreover, in the deposition of PW-2- Karshanbhai Babubhai, had stated that he had not witnessed acceptance of any illegal gratification by respondent-accused. Even the complainant had stated in the cross examination that he placed the currency notes in the papers which fell down. Further, P.W.5 – Rakesh Baldevkrishna Sharma at Exh.22 - a trapping officer, had not supported the case of prosecution in relation to demand, as alleged in the complaint. PW-5-a trapping officer at Exhi-22, had deposed that preliminary inquiry was not made in relation to demand. Therefore, as prosecution failed in establishing their case in relation to demand raised by the respondent accused, learned trial Court is correct in appreciating the evidence on record. The findings recorded by the trial Court is based on appreciation of correct facts and evidence on record and does not require interference by this Court. 9. Therefore, as prosecution failed in establishing their case in relation to demand raised by the respondent accused, learned trial Court is correct in appreciating the evidence on record. The findings recorded by the trial Court is based on appreciation of correct facts and evidence on record and does not require interference by this Court. 9. This Court has minutely perused the oral as well as documentary evidence on record and gone through the impugned judgment and order passed by the trial Court as well as paper book and evidence led by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant – State and learned advocate for respondent. 10. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 , the Hon’ble Apex Court laid down the following principles: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: 1. An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of act and of law. 3. Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusion”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. 4. An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is 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. 5. Firstly, the presumption of innocence is 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. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 11. Similar principle has been laid down by the Hon’ble Supreme Court in the case of State of Uttar Pradesh v. Ram Veer Singh, reported in 2007 AIR SCW 5553, that while exercising the appellate power even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the learned trial Court. 12. In the recent decision in the case of K. Shanthamma v. State of Telangana reported in (2022) 4 SCC 574 it has been held as under: “10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act. 11. In P. Satyanarayana Murthy v. State of A.P., this Court has summarised the well-settled law on the subject in para 23 which reads thus: “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (I) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” 13. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” 13. In facts of the present case, as can be seen, the prosecution failed in establishing its case in relation to demand raised by respondent-accused. It is clear from the deposition of P.W.-1 (complainant) at Exh.-12 and depositions of independent panch witnesses at P.W.-2 that the accused-respondent had not demanded illegal gratification. P.W-1, in his cross-examination, had stated that he went to the backside of the police station and kept money in the papers which fell down, of respondent-accused. Further, P.W-4- Jasubhai lallubhai Parmar at Exhi-20, an independent panch witness had also not supported the case of prosecution in relation to demand. This has been further supported by the deposition of PW-5 - Rakesh Baldevkrishna Sharma, that no investigation was carried out prior to trap in relation to demand raised by the respondent-accused. P.W-3 – Vinitkumar Shyamswarup Gupta at Exh.17 (sanctioning authority), had stated that he accorded the sanction based on papers placed before him and not aware about any demand raised. Thus, PW-3 at Exh-17, had also not supported the case of the prosecution in support of the demand raised by respondent-accused. 14. Therefore, on overall analysis of the aforesaid evidence on record, once the complainant had stated that he himself placed the amount in the papers of respondent-accused which fell down, dose not supported the case of the prosecution, which is being further supported by the depositions of PW- 2, 4 and 5, remains no evidence as to demand on record and the same loses its evidential value as regards the demand and acceptance. The evidence of shadow panch also become meaningless as from the evidence of shadow panch, nothing concrete is revealed that the accused ever demanded any amount of illegal gratification from the complainant and in response thereto, the complainant handed over remaining amount of Rs.1,000/- to the accused. Most importantly, the complainant himself had stated that on the date of complaint i.e on 18.12.2003, no case was pending, which motivated respondent-accused to raise the demand of any illegal gratification. 15. Most importantly, the complainant himself had stated that on the date of complaint i.e on 18.12.2003, no case was pending, which motivated respondent-accused to raise the demand of any illegal gratification. 15. In view of the aforesaid nature of evidence, learned trial Court has rightly recorded the finding of acquittal thereby rightly acquitted the accused, which does not call for any interference of this Court. Even otherwise also, the case is covered by the decision of K. Shanthamma v. State of Telangana (supra) and on that count also, there appears no merit in the appeal. This Court finds that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal. 16. In the result, the present appeal is hereby dismissed. Record and proceedings to be sent back to the trial Court, forthwith.