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2024 DIGILAW 945 (GUJ)

State Of Gujarat v. Virambhai Lilabhai Desai

2024-04-19

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant – State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 18.07.2006 passed by the learned Special Judge (A.C.B.) at Gandhinagar (herein after referred to as ‘the learned Trial Court’) in Special (ACB) Case No. 02 of 2003, whereby, the learned trial Court has acquitted the respondents from the offences punishable under Sections 7, 13(1) (d) read with 13(2) of the Prevention of Corruption Act (herein after referred to as ‘the Act’). The respondents are hereinafter referred to as ‘the accused’ as they 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 No. 1 Virambhai Lilabhai Desai was Deputy Mamlatdar in the Collector Office at Gandhinagar in the Year 2002 and was a public servant. That the complainant Arunkumar Shantilal Purohit and other witnesses were the owners of the Gas Service Agencies and the complainant Arunkumar Shantilal Purohit was the owner of Mahalaxmi Gas Agency. That the complainant and other witnesses were supplying gas cylinders to the customers residing within the territory of 30 km of Pethapur village and the transportation charges were required to be recovered by the complainant and others and the rates of transportation and refilling of gas cylinders were to be fixed by the District Supply Officer and its office. That one Mr. D.A.Shah was the District Supply Officer at Gandhinagar and the complainant Arunkumar Shantilal Purohit was called by one Jitendrasingh Joravarsinh Parmar, the proprietor of Dinesh Gas Agency on 03/10/2002 and both of them met Mr. D.A.Shah, the District Supply Officer at Gandhinagar. That there was a conversation between Mr. D.A.Shah, the District Supply Officer and Mr. Jitendrasinh Joravarsinh Parmar and the complainant Arunkumar Shantilal Purohit in the presence of the accused No. 1 Virambhai Lilabhai Desai and during negotiations, Mr. D.A.Shah, the District Supply Officer demanded an amount of Rs. 5/- lakhs as the illegal gratification from all the agencies. That all the agents met on 04/10/2002 in relation to the demand raised by Mr. D.A.Shah, the District Supply Officer and Mr. Jitendrasinh Joravarsinh Parmar called upon the complainant Arunkumar Shantilal Purohit and the other witnesses to arrange for the illegal gratification to be given to Mr. 5/- lakhs as the illegal gratification from all the agencies. That all the agents met on 04/10/2002 in relation to the demand raised by Mr. D.A.Shah, the District Supply Officer and Mr. Jitendrasinh Joravarsinh Parmar called upon the complainant Arunkumar Shantilal Purohit and the other witnesses to arrange for the illegal gratification to be given to Mr. D.A.Shah, the District Supply Officer through the accused No.1 Mr. Virambhai Lilabhai Desai. That the complainant was not willing to pay the amount of illegal gratification and hence he approached the ACB Police Ahmedabad, Ahmedabad (Rural) at Gandhinagar and filed the complaint under Sections 7, 12, 13(1)(d) and 1, 2, 3, and 13 (2) of the Act, which was registered at C.R. No.9/2002 on 6/10/2002. That the Trap Laying Officer called the Panch witnesses and the characteristic of anthracene powder and ultraviolet lamp was explained to the Panch witnesses and the complainant and the demonstration of anthracene powder and ultraviolet lamp was conducted and the trap was arranged. That, on 5/10/2002, the complainant Arunkumar Shantilal Purohit along with the Panch witness No. 1 went and met Jitendrasinh Joravarsinh Parmar and went to the office of Mr. D.A.Shah, the District Supply Officer at Gandhinagar. That they met the accused No. 1 and the accused No. 1 and Jitendrasinh Joravarsinh Parmar went into the chamber of Mr. D.A.Shah, the District Supply Officer, and thereafter, the accused No. 1 and Jitendrasinh Joravarsinh Parmar left the office. That the Trap Laying Officer and the other members of the reading party came, but they could not find Mr. D.A.Shah, the District Supply Officer or Mr. Virambhai Lilabhai Desai and the office of Mr. D.A.Shah was also searched, but nothing was found from his office. That during the investigation, the tainted currency notes were found lying in a abandoned car which was parked in the compound of District Magistrate at Gandhinagar, and the entire amount was seized by the Investigating Officer during the investigation. That the Investigating Officer has recorded the statements of the connected witnesses, drew necessary panchnamas and made necessary correspondence for sanction for prosecution of Mr. D.A.Shah, the District Supply Officer and the accused No. 1 Mr Virambhai Lilabhai Desai. That the Government of Gujarat did not find it suitable to grant the order of sanction for prosecution of Mr. D.A.Shah, the District Supply Officer and only granted sanction to prosecute the accused No. 1 Mr. D.A.Shah, the District Supply Officer and the accused No. 1 Mr Virambhai Lilabhai Desai. That the Government of Gujarat did not find it suitable to grant the order of sanction for prosecution of Mr. D.A.Shah, the District Supply Officer and only granted sanction to prosecute the accused No. 1 Mr. Virambhai Lilabhai Desai and hence the chargesheet was filed against the accused No. 1 Mr Virambhai Lilabhai Desai before the Session Court at Gandhinagar, which came to be registered as Special ACB Case No. 2/2003. 2.2. That, the accused No. 1 was duly summoned and after the due procedure under Section 207 of the Code of Criminal Procedure, 1973 was completed, a charge at Exh; 73 was framed against the accused and the statement of the accused was recorded at Exh: 74, wherein the accused No.1 denied the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3. That the prosecution examined 8 witnesses and filed 18 documentary evidences in support of their case and the further statement of the accused No. 1 was recorded under section 313 of the Code of Criminal Procedure, 1973. That while preparing the further statement of the accused No. 1, the learned trial Court found that the offence was also made out against the witness Jitendrasinh Joravarsinh Parmar and the learned trial Court exercised discretion under Section 319 of the Code and cognizance for the offence punishable under sections 8 and 9 of the Act was order to be taken against Jitendrasinh Joravarsinh Parmar and he was ordered to face the trial along with the Accused No.1 Virambhai Lilabhai Desai. A Non-bailable warrant was issued against Jitendrasinh Joravarsinh Parmar and arrested and taken into custody and he filed a bail application at Exh: 107 on 9/6/2006 and by an order deted 13/6/2006, the said accused No. 2 Jitendrasinh Joravarsinh Parmar was released on bail on certain terms and conditions. That the learned advocate for the accused filed an application at Exh: 108 for recall of the witnesses, which was allowed and the charge at Exh 109 was framed against the accused No. 2 and the statement of the accused No. 2 was recorded at Exh: 110. That the learned advocate for the accused filed an application at Exh: 108 for recall of the witnesses, which was allowed and the charge at Exh 109 was framed against the accused No. 2 and the statement of the accused No. 2 was recorded at Exh: 110. That once again a combined charge against both accused was framed by the learned trial Court at Exh: 115 on 15/06/2006 and the statements of the accused were recorded at Exh: 116 and 117 respectively and all the witnesses were recalled and their further evidence was taken on record. That the accused No. 2 Jitendrasinh Joravarsinh Parmar was also a witness and his deposition was earlier recorded as Prosecution Witness No. 3 at Exh: 85. That the prosecution filed the closing pursis at Exh:129 and the further the statement of both accused under Section 313 of the Code was recorded. That the arguments of the learned APP and learned advocate for the accused were heard and by the judgment and order dated 18/7/2006 both, the accused were exonerated from the charges leveled against them by giving benefit of doubt and both the accused were acquitted from all offences. 3. Being aggrieved and dissatisfied with the judgment and order of acquittal, the appellant-State has filed the present appeal mainly stating that the judgment and order passed by the learned trial Court is illegal, unjust and improper and is required to be quashed and set aside. That the case of the prosecution is that the accused No. 1 who was serving as a Deputy Mamlatdar in District Supply Office was present in the meeting with the District Supply Officer, Mr D.A.Shah and after negotiations, the amount was fixed at Rs. 2,50,000/-. That the owners of the Gas Agencies had agreed that each member shall pay an amount of Rs. 12,000/-, and the entire amount was required to be paid on 05/10/2002. That on the day of the trap, the complainant along with the Panch witness went to Ashirwad Gas Agency, Sector 11, Gandhinagar, where they met the accused No. 2 Jitendrasinh Joravarsinh Parmar and they handed over the currency notes of Rs. 24,000/- to the accused No. 2 Jitendrasinh Joravarsinh Parmar, who added the currency notes of Rs. 24,000/- to the currency notes which were collected from the other distributors and the entire sum of Rs. 24,000/- to the accused No. 2 Jitendrasinh Joravarsinh Parmar, who added the currency notes of Rs. 24,000/- to the currency notes which were collected from the other distributors and the entire sum of Rs. 72,000/- was wrapped in the newspaper and the complainant, panch witness, and Jitendrasinh Joravarsinh Parmar went to the office of the accused. It is the case of the prosecution that both the accused had gone into the chamber of Mr.D.A.Shah, District Supply Officer and thereafter the accused No. 1 escaped from the place of incident. That the muddamal was recovered from one abandoned car, which was parked in the compound of District Magistrate, Gandhinagar and when the Trap Laying Officer had reached the chamber of Mr. D.A.Shah, District Supply Officer, the accused No. 1 escaped from the place of incident, which clearly shows that the accused No. 1 was the culprit and when the hands of the accused No. 2 were checked, they were found with the traces of the anthracene powder. That the traces of anthracene powder was also found on the table, which was occupied by the accused No. 1 and Prosecution Witness No. 4-the panch witness has clearly stated that the bundle of currency notes was given to the accused No. 2, which shows that the accused No. 2 was also involved in the offences. That the learned trial Court has not considered the evidence of the prosecution and has misread the evidence and passed the order of acquittal, which is required to be quashed and set aside and both the accused must be found guilty for the offences. 4. Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellate-State and Mr. I.H.Syed, learned Senior advocate assisted by Mr. B.G.Gupta, learned advocate for the respondents. Perused the impugned judgment and order of acquittal and hence re-appreciated the entire evidence on record of the case. 5. Before the evidence of the prosecution is appreciated and dissected, it is essential to reiterate the cardinal principles of criminal jurisdiction as settled by the Honourable Apex Court in a Catena of decision and the first cardinal principle is that the prosecution in a criminal trial is required to prove the case against the accused beyond reasonable doubts and the prosecution cannot benefit from the weaknesses of defense. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless and until he is found guilty by the evidence produced by the prosecution beyond reasonable doubts and the third cardinal principle of law is that the onus of burden of proof never shifts from the prosecution. 6. Before adverting to the facts of the case on hand, it would be apt to refer to the scope of the learned trial Court in acquittal appeals and the Honourable Apex Court in Criminal Appeal No.1167 of 2018 in the case of Ballu @ Balram @ Balmukund and Another Vs State of Madhya Pradesh in para Nos. 8 and 9 has observed thus:- 8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. 9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below: "13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:- "In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded." 6.1 The Honourable Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under: “68. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (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. 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 intern there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 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 the instance case, it is the case of the prosecution that the demand was made by Mr. D.A.Shah, District Supply Officer, who was the competent authority to fix the rate of transportation and the owners of the Gas Agency needed to increase the transportation rate for transportation of Gas Cylinder from one place to other and they had met Mr. D.A.Shah, District Supply Officer in the presence of the accused No. 1 Virambhai Lilabhai Desai and the accused No. 2 Jitendrasinh Joravarsinh Parmar. It is pertinent to note that the competent authority did not accord sanction for prosecution of Mr. D.A.Shah, the District Supply Officer and the sanction for prosecution was granted for the accused No. 1 Virambhai Lilabhai Desai, who was the Deputy Mamlatdar in the District Supply Office. 7.1. It is pertinent to note that the competent authority did not accord sanction for prosecution of Mr. D.A.Shah, the District Supply Officer and the sanction for prosecution was granted for the accused No. 1 Virambhai Lilabhai Desai, who was the Deputy Mamlatdar in the District Supply Office. 7.1. The prosecution has examined the Prosecution Witness No. 1 Arunkumar Shantilal Purohit at Exh: 78, and this witness is the complainant, who has stated that he is the owner of Mahalaxmi Gas Agency, situated at Pethapur and an application for fixing the charges was given by all the owners of the Gas Agencies to the District Supply Officer on 24/09/2002. That, on 03/10/2002, he had met Jitendrasingh Joravarsinh Parmar and they went to meet Mr. D.A.Shah, District Supply Officer, who had called the accused No. 1 Virambhai Lilabhai Desai and in his presence a demand of illegal gratification of Rs. 5/- lakhs was made. That, after negotiation, the amount was fixed at Rs. 2,50,000/- That, on 04/10/2002 all the owners met at Ashirwad Gas Agency, and decided that each person would give an amount of Rs. 12,000/-. That the complainant did not want to pay the amount of illegal gratification and on 05/10/2002, the complainant and Chimanlal Sharma, the Administrator of Aagman Indian Gas Agency went to the ACB Office at Sahibaug and filed the complaint which is produced at Exh:79 and as they did not have the amount of Rs. 24,000/- to be given as illegal gratification, the ACB officer took the amount of Rs. 24,000/-, which were 48 currency notes of the denomination of Rs. 500/- each and the experiment of anthracene powder and ultraviolet lamp was done in the presence of the panch witnesses and all of them left for Ashirwad Indian Gas Agency. That they gave the amount of Rs. 24,000/-, which were the tainted currency notes to the accuse No. 2 Jitendrasinh Joravarsinh Parmar, who counted the same and added them to the amount that was already collected and the entire amount of Rs. 72,000/- was packed in a newspaper. That the complainant, panch witness and Chimanlal Sharma went in the Esteem Car of Chimanlal Sharma and the accused No. 2, Jitendrasinh Jorvarsinh Parmar came in his “Tata Sumo” to the Collector Office. 72,000/- was packed in a newspaper. That the complainant, panch witness and Chimanlal Sharma went in the Esteem Car of Chimanlal Sharma and the accused No. 2, Jitendrasinh Jorvarsinh Parmar came in his “Tata Sumo” to the Collector Office. That they went and met the accused No. 1 Virambhai Lilabhai Desai and at that time, accused No. 2 gave the packet of money to the accused No. 1. That they came outside and after sometime, both the accused came out and went down the stairs. That both the accused quickly came down the stairs and they could not see the accused No. 1, but the accused No. 2 was with them. That they had a doubt that the accused No. 2 had informed the accused No. 1 and the mobile of the accused No. 2 was seized and the last call was to accused No. 1. That they went into the chamber of Mr. D.A.Shah, District Supply Officer, but could not find anything in the office of Mr. D.A.Shah, District Supply Officer or the table of the accused No. 1. That the Panchnama was drawn and the hands of the the accused No. 2 were checked and traces of anthracene powder were found on the hands of the accused No. 2. During the cross examination by the learned advocate of the accused, the witness has stated that the accused No. 2 was not present when the complaint was filed at the ACB Office and they had given the tainted currency notes to the accused No. 2, who counted the same and gave the entire amount to Manojbhai, who wrapped it into the newspaper and thereafter the bundle of notes were with the accused No. 2. That he and the accused No. 2 were in different vehicles and when he had gone into the office of accused number 1, three to four other persons were on duty. That he does not know, as to when the accused No. 1 and the accused No. 2 came down the stairs, whether they had the packet of the currency notes in their hands. The accused No. 2 was a mediator and the tainted currency note were not recovered on that day. That he does not know, as to when the accused No. 1 and the accused No. 2 came down the stairs, whether they had the packet of the currency notes in their hands. The accused No. 2 was a mediator and the tainted currency note were not recovered on that day. That when they went into the office, they did not see, as to whether, the currency notes were in the bundle or not and the ACB officers had not seen the packet in the hands of the accused No. 2. That when he had gone to the ACB Office to file the complaint, Chimanlal Sharma was with him and the accused No. 2 did not know about the complaint that he had filed with the ACB. That Mr. D.A.Shah, District Supply Officer had told them all collectively to give the amount of Rs. 5/- lakhs, and at that time, Mr. D.A.Shah, District Supply Officer had decided to take Rs. 2,50,000/-. That on 3/10/2002, he and Jitendrasinh Joravarsinh Parmar, the accused No. 2 did not want to give the amount of illegal gratification and on 4/10/2002 when all the dealers met, they had agreed to keep the accused No. 2 as their representative. That he does not know, as to which, daily newspaper, the amount was wrapped in and the bundle of notes were seen by him, and the packet was big, and it could not be kept in the shirt pocket. That on that day, Mr. D.A.Shah, District Supply Officer was in his chamber, but he did not see Mr. D.A.Shah, District Supply Officer getting down the stairs. That when the accused No. 1 Virambhai Lilabhai Desai and accused No. 2 Jitendrasingh Joravarsinh Parmar were coming down the stairs, they did not have the packet in their hands and the entire amount that they had collected had reached Mr. D.A.Shah, District Supply Officer. That the packet that was prepared was on behalf of all the dealers and the accused No. 2 had done the procedure as their representative. 7.2. The prosecution examined the Prosecution Witness No.2 Pravinkumar Kalidas Makwana, at Exh: 81 and this witness has stated that on 17/10/2002, he was called to his superior officer and he went to the ACB office as per the instruction of the ACB officer. 7.2. The prosecution examined the Prosecution Witness No.2 Pravinkumar Kalidas Makwana, at Exh: 81 and this witness has stated that on 17/10/2002, he was called to his superior officer and he went to the ACB office as per the instruction of the ACB officer. He had gone to the Collector Office compound, Gandhinagar and that at that time in one open jeep, a packet was found and the dog squad, bomb squad and offices of the Forensic Science Laboratory were at the spot. That no bomb was found and on opening the packet, which was below the driver seat in the open jeep, they found a plastic packet, on which, Derani-Jethani Saree Center, Manasa was written and from that packet, in the daily newspaper, Gujarat Samachara 87 currency notes of the denomination of denomination of Rs. 500/- each, 270 currency notes of the Rs. 100/- each and 30 currency notes of the denomination of Rs. 50/- each were found seized by the ACB Police officials vide Panchnama dated 05/10/2002 and the Panchnama is produced at Exh:82. The witness has, during the cross examination by the learned advocate for the accused, has stated that the jeep was an open jeep and his signature is not on any article that was seized. 7.3. The prosecution has examined Prosecution Witness No. 3, Jitendrasinh Joravarsinh Parmar at Exh: 85, and this witness was later on arraigned as an accused by the trial Court. 7.4. The prosecution has examined Prosecution Witness No. 4 Nikhil Jayantilal Shah at Exh:86 and this witness is the panch witness, who had accompanied the complainant on the day of the trap. This witness has fully supported the case of the prosecution and he has stated that when they went to the office of the accused No. 1, the accused No. 1 told him and the complainant to stand near his table, and both the accused went into the chamber and came out after five minutes. That when they came out the bundle was not with the accused No. 2, and while they were going into the chamber, the accused No.2 had given the bundle of notes to the accused No. 1. That both the accused went out and thereafter and accused No.2 came back. That when they came out the bundle was not with the accused No. 2, and while they were going into the chamber, the accused No.2 had given the bundle of notes to the accused No. 1. That both the accused went out and thereafter and accused No.2 came back. That when the officers came, the complainant stated that he had forgotten to give the predetermined signal and the person who had taken the money had gone out of the office. That the accused No. 2 was stopped and came back to the office of the accused No. 1. That Mr. D.A.Shah, District Supply Officer was not in his chamber and the tainted currency notes were not found at any place. During the cross examination by the learned advocate for the accused, the witness stated that nobody had opened the bundle in the Collector Office, which was in the hands of accused No. 2, and nobody had verified what was in the bundle. That the currency notes were not found during the search that was made and that he had not seen whether Mr. D.A.Shah, District Supply Officer was in his chamber or not and the complainant did not give the predetermined signal. That, when the accused No. 2 stated that the work was over, the accused No. 1 did not have the bundle. 7.5. The prosecution examined Prosecution Witness No. 5 Arjunsingh Sabalsinh Rathod at Exh: 92, and this witness is the Trap Laying Officer, who has supported the case of the prosecution and has deposed about all the events that that had unfolded right from the time the complainant came to the ACB Office and the trap was arranged and they all had gone for the trap. During the cross examination by the learned advocate for the accused, this witness has stated that the accused No. 1 did not demand for any amount of illegal gratification and it was not decided that the accused No. 1 would take any amount of illegal gratification. That the accused No. 2 had helped the Government employee in taking the amount of illegal gratification, and he does not know about the conversation that had taken place between the complainant and the accused. That the accused No. 2 had helped the Government employee in taking the amount of illegal gratification, and he does not know about the conversation that had taken place between the complainant and the accused. That he had not seen whom the complainant had given the tainted currency notes which were placed in his pocket, and he has not seen what had transpired in Ashirwad Indian Gas Agency. That when the accused No. 2, complainant and the panch witness No. 1, left the agencies, the packet was in the hands of accused No. 2, but the packet or the currency notes were not found till the end of the day. That nobody had opened the packet, which was in the hands of the accused No. 2 and he does not know what was in the packet. That, as per the complaint, the main accused was Mr. D.A.Shah, the District Supply Officer, who was the competent authority to decide the disputed question. That the authority to favour the complainant and the other applicants was with Mr. D.A.Shah, the District Supply Officer and no currency notes were recovered on the day of the trap. That the car of the accused No. 1 was in the compound and the other Deputy Mamlatdars were present in the office. That, no person had stated that they accused No. 1 left with the packet of currency notes and the accused No. 2 had told him that the the packet was given. That Mr. D.A.Shah, the District Supply Officer had demanded Rs. 5/- lakhs from all the dealers and it was decided that each dealer would pay Rs. 12,000/- each. That the amount of demand was made by Mr. D.A.Shah, District Supply Officer in the presence of the complainant and the accused No. 2 and all the owners of the Gas Agencies had made the accused No. 2 as their representative. That the complainant, accused No. 2 and the owners of the Gas Agencies were victims and in the list of names of persons, who had paid the money was prepared, the name of Jitendrasinh Joravarsinh Parmar- accused No. 2 was mentioned. That there was no amount that was to be taken by the accused No. 2 and there was no evidence that the accused No. 2 was the man of accused No. 1 Virambhai Lilabhai Desaid or Mr. D.A.Shah, District Supply Officer. 7.6. That there was no amount that was to be taken by the accused No. 2 and there was no evidence that the accused No. 2 was the man of accused No. 1 Virambhai Lilabhai Desaid or Mr. D.A.Shah, District Supply Officer. 7.6. The prosecution has examined Prosecution Witness No. 6 Shankarbhai Khatubhai Parmar at Exh:93, and this witness is the Investigating Officer, who has recovered the amount of Rs. 72,000/- from the abandoned Car in the compound of the District Collector. During the cross examination by the learned advocate for the accused, this witness has stated that during the investigation, he found that Mr. D.A.Shah, District Supply Officer was also an accused and no traces of anthracene powder was found from the clothes of the accused No. 1. That no evidence was found during the investigation that both the accused and Mr. D.A.Shah, District Supply Officer had conspired with each other and the accused No. 2 was also a victim as he had also given the amount as decided and hence he had placed the accused No. 2 as a witness in the charge sheet. That the sanction for prosecution of Mr. D.A.Shah, District Supply Officer was not received from the State Government but Mr. D.A.Shah, District Supply Officer was completely involved in offence. 7.7. The prosecution has examined Prosecution Witness No. 7, Keshavlal Vallabhbhai Bhater at Exh: 100 and this witness is the Investigating Officer, who has received the sanction for prosecution of the accused No. 1 and has filed the charge sheet before the Sessions Court. During the cross examination by the learned advocate for the accused, this witness has stated that during investigation, he had found that Mr. D.A.Shah, District Supply Officer was involved in the offence. 7.8. The prosecution examined Prosecution Witness No. 8 Syed Javed Hyder Saiyed Murtuja Saiyad at Exh: 102 and the witness is the competent authority, who has given the order of sanction for prosecution of the accused No. 1, which is produced at Exh: 103. During the cross examination by the learned Advocate for the accused, this witness has stated that he did not have the authority to give the sanction for prosecution of Mr. D.A.Shah, District Supply Officer and he has not studied the charge sheet papers before giving the sanction for prosecution. 8. During the cross examination by the learned Advocate for the accused, this witness has stated that he did not have the authority to give the sanction for prosecution of Mr. D.A.Shah, District Supply Officer and he has not studied the charge sheet papers before giving the sanction for prosecution. 8. On appreciation of the entire documents produced by the prosecution on record, it is the case of the prosecution that a demand of Rs. 5/- lakhs from the owners of the Gas Agencies was made by Mr. D.A.Shah, District Supply Officer in the presence of accused No. 1, Virambhai Lilabhai Desai and the accused No. 2 , Jitendrasinh Joravarsinh Parmar and the complainant. That in the entire evidence, there is no iota of evidence that the demand was raised by the accused No. 1 and that the accused No. 1 had to take any share of amount. The complainant has clearly deposed that the demand of illegal gratification was made by the Mr. D.A.Shah, District Supply Officer and the accused No. 1, Mr Virambhai Lilabhai Desai had never demanded any amount of illegal gratification from the complainant or from any other person. It is the case of the prosecution that the demand was raised in the presence of the other distributors and all the distributors had a meeting at the place of Jitendrasinh Joravarsinh Parmar, but the prosecution has not examined any of the distributors before the learned trial Court. It is also on record that accused No.2 had contributed the amount of Rs. 12,000/- that was decided to be paid by each distributor and there is no evidence whatsoever, as to where, the bundle of currency notes had disappeared on the day of the trap. The evidence that emerges from the deposition of the prosecution witness No 1-the complainant-Arunkumar Shantilal Purohit and prosecution witness No. 4- Nikhil Jayantilal Shah- the panch witness, is that when they had gone to District Supply Office, the complainant, the panch witness and the accused No. 2 Jitendrasinh Joravarsinh Parmar met the accused No. 1- Mr. Virambhai Lilabhai Desai. That the complainant and the panch witness were standing outside and at that time the accused No.1- Virambhai Lilabhai Desai and the Accused No. 2 Jitendrasinh Joravarsinh Parmar went into the chamber of Mr. D.A.Shah, District Supply Officer. There is no evidence whatsoever as to whether Mr. Virambhai Lilabhai Desai. That the complainant and the panch witness were standing outside and at that time the accused No.1- Virambhai Lilabhai Desai and the Accused No. 2 Jitendrasinh Joravarsinh Parmar went into the chamber of Mr. D.A.Shah, District Supply Officer. There is no evidence whatsoever as to whether Mr. D.A.Shah, District Supply Officer was in fact in the chamber or not and nobody had seen him in the chamber and when they came out of the chamber, the bundle of currency notes were not found with them, and both the accused thereafter came down the stairs and the accused No. 1 left the compound. That immediately, thereafter the chamber of Mr.D.A.Shah, District Supply Officer and place where the accused No. 1 was seated was searched, but the bundle of tainted currency notes were not found on the day of the trap. It is pertinent to note that there is evidence that there were other employees working at that time but the prosecution has not examined any independent witness who were eye witnesses to the incident. That in the evidence of the eye witnesses it would have come on record as to who had taken the bundle of currency notes and as to whether, Mr.D.A.Shah, District Supply Officer had left the office at that point of time or whether he was in fact in his chamber at the time of the trap. There is no iota of evidence about any demand made by the accused No. 1 and the accused No. 2 was merely a middleman and a victim as he was also supposed to pay the amount decided by the owners of the Gas Agencies. It appears that accused No. 2 was merely acting as a representative of all other owners of Gas Agencies and there is evidence that the bundle of notes were found from an abandoned car in the Collector Office, but there is no evidence as to how this bundle of currency notes came in the abandoned car and who had actually seen the bundle of notes at the first instance. That as there is no recovery from the physical and conscious possession of any of the accused and there is no iota of demand, which is a sine-qua-non for the offence under the PC act, the learned trial court has appreciated the entire evidence and given reasons for disbelieving the case of the prosecution and has acquitted the accused by the impugned judgment and order dated 18.07.2006 passed by the learned Special Judge (ACB) at Gandhinagar in Special (ACB) Case No. 02 of 2003. 9. As discussed above and in light of the judgment of the Hon’ble Apex Court in the case of Ballu @ Balram @ Balmukund Krishan Chander (supra) and Neeraj Dutta (supra), the evidence of the prosecution is contrary and far from convincing and the learned trial Court has discussed all the aspects of the evidence in proper perspective and has given adequate reasons for acquittal of the accused. In the considered opinion of this Court, the learned trial Court is completely justified in acquitting the accused from all charges leveled against him and this Court finds no perversity, illegality or infirmity in the findings recorded by the learned trial Court and is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 10. 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. The impugned judgment and order dated 18.07.2006 passed by the learned Special Judge (ACB) at Gandhinagar in Special (ACB) Case No. 02 of 2003 is hereby confirmed. Bail bonds stand cancelled. 11. Record and proceedings be sent back to the concerned Trial Court forthwith.