State Of Gujarat vs Mafatbhai Tribhovandas Parekh on 8 April, 2026

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    Gujarat High Court

    State Of Gujarat vs Mafatbhai Tribhovandas Parekh on 8 April, 2026

                                                                                                                    NEUTRAL CITATION
    
    
    
    
                                 R/CR.A/1627/2006                                  JUDGMENT DATED: 08/04/2026
    
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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                                    R/CRIMINAL APPEAL NO. 1627 of 2006
    
    
                            FOR APPROVAL AND SIGNATURE:
    
                            HONOURABLE MS. JUSTICE S.V. PINTO                        Sd/-
    
                            ========================================================
    
                                             Approved for Reporting                   Yes               No
                                                                                       √
    
                            ========================================================
                                                              STATE OF GUJARAT
                                                                     Versus
                                                        MAFATBHAI TRIBHOVANDAS PAREKH
                            ========================================================
                            Appearance:
                            MS.C.M.SHAH, APP for the Appellant(s) No. 1
                            MR VINOD M GAMARA(5910) for the Opponent(s)/Respondent(s) No. 1
                            ========================================================
    
                               CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
    
                                                               Date : 08/04/2026
    
                                                               ORAL JUDGMENT

    1. This appeal has been filed by the appellant – State

    under Section 378(1)(3) of the Code of Criminal Procedure, 1973

    SPONSORED

    against the judgment and the order of acquittal passed by the

    learned Presiding Officer, 11 th Fast Track Court, Kheda at

    Nadiad (hereinafter referred to as ‘the learned Trial Court’) in

    Special (ACB) Case No.11 of 2004 on 14.03.2006, whereby, the

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    learned Trial Court has acquitted the respondent – original

    accused from the offences punishable under Sections 7, 13(1)(d)

    and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter

    referred to as ‘the P.C.Act’).

    1.1. The respondent hereinafter is referred to as ‘the

    accused’ as he stood in the original case, for the sake of

    convenience, clarity and brevity.

    2. The relevant facts leading to filing of the present

    appeal are as under:

    2.1. The accused was working as the Talati-cum-Mantri of

    Kansari Gram panchayat and was a Public Servant. Chunilal

    Haribhai Patel, the father of the complainant, owned 36 guntas of

    land of Survey No. 146, Paiki, which was new tenure land and

    the land was converted to old tenure land on 18-07-2002.

    Chunilal Haribhai Patel had executed a sale deed in the name of

    the complainant – Chetankumar Chunilal Patel, his mother

    Kamalaben and his sister Vimalaben. On the basis of the sale

    deed and the index, the complainant had given an application

    for mutating their names in the revenue record to the Talati-

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    cum-Mantri of Kansari and the accused had given the notice

    under Section 135-D of the Land Revenue Code. The outstanding

    dues of the land was paid on 24.06.2003. On inquiring from the

    accused, the complainant was told that the entry would be

    certified, but on 19.02.2004, when the complainant went to the

    Gram Panchayat Office and met the accused, he was told that

    the entry was rejected by Macwan Saheb, the Circle Officer,

    and demanded an amount of illegal gratification of Rs.4,000/- for

    himself and for Circle Officer, Macwan Saheb. The accused told

    the complainant to give an amount of Rs.2,000/- in the first

    instance and the remaining amount of Rs.2,000/- after the entry

    was certified and demanded the amount of Rs.2,000/- on

    23.02.2004. The complainant did not want to give the amount of

    illegal gratification and on 23.02.2004, went to the ACB Police

    Station, Nadiad and the complaint of the complainant was

    recorded between 5.00 to 5.30 hours.

    2.2. The Trap Laying Officer called the panch witnesses

    and the demonstration of phenolphthalein powder and solution

    of Sodium Carbonate was carried out in the presence of the

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    complainant and the panch witnesses and the characteristics of

    phenolphthalein powder and solution of Sodium Carbonate

    were explained to the panch witnesses and the complainant.

    The complainant gave twenty currency notes of the

    denomination of Rs.100/- each and all the currency notes were

    smeared with phenolphthalein powder and placed in the left

    shirt pocket of the complainant and the trap was arranged. The

    complainant, the panch witnesses and the members of the

    raiding party started in Government Jeep No.GJ-1-G-3365 from

    Nadiad to village Kansari, and thereafter, the complainant and

    the panch witness no. 1 reached the office of Gram Panchayat,

    Kansari and at about 14:00 hours and met the accused. The

    complainant inquired from the accused about the cancellation of

    entry to be mutated in the revenue record of land bearing

    Survey No.146, the accused told the complainant that he was

    overburdened withwork and he would do the same, and

    demanded the amount of illegal gratification, and accordingly,

    the complainant gave the tainted currency notes of Rs.2,000/-

    for sanctioning the entry that was cancelled. The accused

    accepted the same and put the currency notes in his shirt

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    pocket. The predetermined signal was given and the members

    of the raiding party came and caught the accused red handed.

    The offence was registered at Nadiad ACB Police Station

    C.R.No.2 of 2004 under Sections 7, 13(1)(d) and 13(2) of the

    P.C.Act.

    2.3. The accused was duly served with the summons and

    the accused appeared before the learned Trial Court and after

    the due procedure under Section 207 of the Code of Criminal

    Procedure was completed, a charge was framed against the

    accused at Exh.6 and the statement of the accused was

    recorded, wherein, the accused denied the allegations made in

    the charge and the entire evidence of the prosecution was taken

    on record. The prosecution examined 5 witnesses and produced

    18 documentary evidences to prove the charge against the

    accused. The learned APP filed a closing pursis at Exh.36 and

    the further statements of the accused under Section 313 of the

    Code of Criminal Procedure was recorded, wherein, the

    accused denied all the evidence against him and stated that a

    false case has been filed against him.

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    2.4. After the arguments of the learned APP and learned

    advocate for the accused were heard, the learned Trial Court

    acquitted the accused from all the offences by the impugned

    judgement and the order.

    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 is contrary to

    law evidence on record and principles of justice. The learned

    Trial Court has not appreciated the oral and documentary

    evidence, and particularly, the evidence of the complainant,

    who has clearly deposed that the accused had demanded an

    amount of illegal gratification. The learned Trial Court has failed

    to prove the case beyond reasonable doubts. The learned Trial

    Court has failed to appreciate that the ingredients of the offence

    i.e. demand, acceptance and recovery have been clearly

    proved beyond reasonable doubts; however, the learned Trial

    Court has discarded the important aspects and has committed

    grave error, which has resulted into the miscarriage of justice.

    The reasons assigned by the learned Trial Court, while

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    acquitting the respondent, are improper, perverse and bad in

    law and the impugned judgment is illegal, improper and

    perverse and is required to be quashed and set aside.

    4. Heard learned Additional Public Prosecutor

    Ms.C.M.Shah for the appellant – State and learned advocate Mr.

    Vinod Gamara for the respondent – original accused. Perused

    the impugned judgment and the order of acquittal and have re-

    appreciated the entire evidence of the prosecution on record of

    the case.

    5. Learned APP Ms.C.M.Shah for the appellant – State

    has taken this Court through the entire evidence of the

    prosecution on record and has vehemently argued that the

    impugned judgment of acquittal is illegal, perverse and

    contrary to the evidence on record, inasmuch as the learned

    Trial Court has failed to appreciate that there is cogent, direct as

    well as circumstantial evidence connecting the respondent with

    the alleged offences under Sections 7, 13(1)(d) and 13(2) of the

    P.C.Act. The prosecution proved all the ingredients of demand,

    acceptance and recovery and the involvement of the

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    respondents in the offence, hence, the appeal must be allowed

    and the respondent held guilty for the said offence.

    6. Learned advocate Mr.Vinod Gamara for the

    respondent has submitted that the learned Trial Court has

    properly appreciated all the oral and documentary evidence

    and there is no perversity or illegality in the impugned and

    judgment and order and the appeal may be rejected.

    7. At the outset, before discussing the facts of the

    present case, it would be appropriate to produce the

    observations in Para.11 of the Apex Court in the case of

    Surendra Singh and Ors. Vs. State of Uttarakhand reported in

    2025 INSC 114, has observed in Para No. 11 as under:

    “11. Recently, in the case of Babu Sahebagouda Rudragoudar and
    others v. State of Karnataka6
    , a Bench of this Court to which
    one of us was a Member (B.R.Gavai, J.) had an occasion to
    consider the legal position with regard to the scope of
    interference in an appeal against acquittal. It was observed
    thus:

    “38. First of all, we would like to reiterate the principles laid
    down by
    this Court governing the scope of interference
    by the High Court in an appeal filed by the State for
    challenging acquittal of the accused recorded by the
    trial court.

    39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
    Prasad
    v. State of Bihar, (2022) 3 SCC 471 : (2022) 2

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    SCC (Cri) 31] encapsulated the legal position covering
    the field after considering various earlier judgments
    and held as below : (SCC pp. 482-83, para 29)

    29. After referring to a catena of judgments, this Court
    culled out the following general principles regarding
    the powers of the appellate court while dealing with an
    appeal against an order of acquittal in the following
    words : (Chandrappa case [Chandrappa v. State of
    Karnataka
    , (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] ,
    SCC p. 432, para 42)

    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,
    reappreciate and reconsider the evidence upon which
    the order of acquittal is founded.

    (2) The Criminal Procedure Code, 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 fact and of
    law.

    (3) Various expressions, such as, “substantial and
    compelling reasons”, “good and sufficient grounds”,
    “very strong circumstances”, “distorted conclusions”,
    “glaring mistakes”, etc. are not intended to curtail
    extensive powers of an appellate court in an appeal
    against acquittal. Such phraseologies are more in the
    nature of “flourishes of language” to emphasise 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.

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    (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.”

    40. Further, in H.D. Sundara v. State of Karnataka [H.D.
    Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023)
    3 SCC (Cri) 748] this Court summarised the principles
    governing the exercise of appellate jurisdiction while
    dealing with an appeal against acquittal under Section
    378CrPC as follows : (SCC p. 584, para 8)
    “8. … XXX XXX XXX
    8.1. The acquittal of the accused further strengthens the
    presumption of innocence;

    8.2. The appellate court, while hearing an appeal against
    acquittal, is entitled to reappreciate the oral and
    documentary evidence;

    8.3. The appellate court, while deciding an appeal against
    acquittal, after reappreciating the evidence, is required
    to consider whether the view taken by the trial court is
    a possible view which could have been taken on the
    basis of the evidence on record;

    8.4. If the view taken is a possible view, the appellate court
    cannot overturn the order of acquittal on the ground
    that another view was also possible; and
    8.5. The appellate court can interfere with the order of
    acquittal only if it comes to a finding that the only
    conclusion which can be recorded on the basis of the
    evidence on record was that the guilt of the accused
    was proved beyond a reasonable doubt and no other
    conclusion was possible.”

    41. Thus, it is beyond the pale of doubt that the scope of
    interference by an appellate court for reversing the
    judgment of acquittal recorded by the trial court in
    favour of the accused has to be exercised within the
    four corners of the following principles:

    41.1. That the judgment of acquittal suffers from patent
    perversity;

    41.2. That the same is based on a misreading/omission to
    consider material evidence on record; and
    41.3. That no two reasonable views are possible and only the
    view consistent with the guilt of the accused is possible
    from the evidence available on record.”

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    8. It is a settled principle of law that in an appeal

    against acquittal, the Appellate Court is circumscribed by

    limitation that no interference has to be made in the order of

    acquittal unless after appreciation of the evidence produced

    before the learned Trial Court, it appears that there are some

    manifest illegality or perversity which could not have been

    possibly arrived at by the Court. It is also a settled principle that

    there is no embargo on the Appellate Court to review the

    evidence but, generally the order of acquittal shall not be

    interfered with as the presumption of innocence of the accused

    is further strengthened by the order of acquittal. The golden

    thread which runs through the web of administration of justice in

    criminal cases is that if two views are possible on the evidence

    adduced in the case of the prosecution i.e. (i) guilt of the

    accused and (ii) his innocence, the view, which is in favour of the

    accused, should be adopted, and if the trial Court has taken the

    view in favour of the accused, the Appellate Court should not

    disturb the findings of the acquittal. The Appellate Court can

    interfere with the judgment and order of acquittal only when

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    there are compelling and substantial reasons and the order is

    clearly unreasonable and where the Appellate Court comes to

    conclusion that based on the evidence, the conviction is a must.

    9. With regard to the cases under the PC Act, the Apex

    Court, in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of

    Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in

    Para No. 68 as under:

    “68. What emerges from the aforesaid discussion is summarised as
    under: –

    (a) Proof of demand and acceptance of illegal gratification
    by a public servant as a fact in issue by the prosecution
    is a sine qua non in order to establish the guilt of the
    accused public servant under Sections 7 and 13 (1)(d)
    (I)
    and(ii) of the Act.

    (b) In order to bring home the guilt of the accused, the
    prosecution has to first prove the demand of illegal
    gratification and the subsequent acceptance as a matter
    of fact. This fact in issue can be proved either by direct
    evidence which can be in the nature of oral evidence or
    documentary evidence.

    (c) Further, the fact in issue, namely, the proof of demand
    and acceptance of illegal gratification can also be
    proved by circumstantial evidence in the absence of
    direct oral and documentary evidence.

    (d) In order to prove the fact in issue, namely, the demand
    and acceptance of illegal gratification by the public
    servant, the following aspects have to be borne in
    mind:

    (i) if there is an offer to pay by the bribe giver
    without there being any demand from the public
    servant and the latter simply accepts the offer

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    and receives the illegal gratification, it is a case
    of acceptance as per Section 7 of the Act. In such
    a case, there need not be a prior demand by the
    public servant.

    (ii) On the other hand, if the public servant makes a
    demand and the bribe giver accepts the demand
    and tenders the demanded gratification which in
    turn is received by the public servant, it is a case
    of obtainment. In the case of obtainment, the
    prior demand for illegal gratification emanates
    from the public servant. This is an offence under
    Section 13 (1)(d)(i) and (ii) of the Act.

    (iii) In both cases of (i) and (ii) above, the offer by
    the bribe giver and the demand by the public
    servant respectively have to be proved by the
    prosecution as a fact in issue. In other words,
    mere acceptance or receipt of an illegal
    gratification without anything more would not
    make it an offence under Section 7 or Section 13
    (1) (d)
    , (i) and (ii) respectively of the Act.

    Therefore, under Section 7 of the Act, in order to
    bring home the offence, there must be an offer
    which emanates from the bribe giver which is
    accepted by the public servant which would
    make it an offence. Similarly, a prior demand by
    the public servant when accepted by the bribe
    giver and inturn there is a payment made which
    is received by the public servant, would be an
    offence of obtainment under Section 13 (1)(d)
    and (i) and (ii) of the Act.

    (e) The presumption of fact with regard to the demand and
    acceptance or obtainment of an illegal gratification may
    be made by a Court of law by way of an inference only
    when the foundational facts have been proved by
    relevant oral and documentary evidence and not in the
    absence thereof. On the basis of the material on record,
    the Court has the discretion to raise a presumption of
    fact while considering whether the fact of demand has
    been proved by the prosecution or not. Of course, a
    presumption of fact is subject to rebuttal by the
    accused and in the absence of rebuttal presumption
    stands.

    (f) In the event the complainant turns ‘hostile’, or has died
    or is unavailable to let in his evidence during trial,

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    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.”

    10. In light of the settled principles of law, the evidence

    on record is re-appreciated and PW-1 Chetankumar Chunilal

    Patel, the complainant, has been examined at Exh.10 and the

    witness has narrated the contents of the complaint, which was

    produced at Exh.12. The complainant has narrated the entire

    procedure undertaken by the Trap Laying Officer for arranging

    the trap and in the cross-examination by the learned advocate

    for the accused, the witness has stated that he went to the ACB

    office on 19.02.2004 at 5.00pm. He had told the Trap Laying

    Officer that the accused was demanding the amount of illegal

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    gratification and had also told him that the amount was for the

    accused and for the Circle Officer, Macwan Saheb. The entry

    was rejected by the Circle Officer, Macwan Saheb and the Trap

    Laying Officer was also in the office on the night of 22.02.2022.

    He had stayed for the night at the ACB Office and he was

    awoken at 5.00am by the Trap Laying Officer, and at that time

    the panch witnesses were present. While his complaint was

    being written, both the panch witnesses, the Trap Laying

    Officer and the writer were also present and the complaint was

    taken down in the handwriting of the writer. He had informed

    the contents of the complaint to the Trap Laying Officer and as

    he was narrating the details of his complaint, the complaint was

    being written by the writer which was dictated by the Trap

    Laying Officer. He had given an amount of Rs.2000/- to the Trap

    Laying Officer, but the Trap Laying Officer did not inquire from

    him whether there was any outstanding dues to be paid at the

    Kansari Gram Panchayat. He had written a cheque for

    Rs.11,775/- on 12.08.1987, which was to be paid as conversion

    tax amount at the Kansari Gram Panchayat which was returned

    due to “insufficient funds” and a receipt is issued for any

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    amount that is paid in the Government Office. He does not have

    any evidence to show that he had paid the entire amount of

    conversion tax and he had to pay the amount of tax for the year

    2000 to the Trap Laying Officer and had to take the receipt for

    the same from him. On 19.02.2004, when he met the accused,

    he was informed that the entry was rejected by the Circle

    Officer, Macwan Saheb. He was fully aware as to who was the

    person who could certify the entry and knew that Circle Officer

    Macwan Saheb was the person to certify the entry. He did not

    give any amount to the accused before 23.02.2004 and he felt

    that his entry was rejected because of the mistake of the

    accused. The place where the accused was seated had other

    employees working and the room was about 10 feet X 14 feet.

    He had initiated the conversation with the accused and had

    asked the accused what procedure was undertaken for the

    entry that was rejected. The accused had told him that he was

    overburdened with work today and his work would be done at

    a later date and at that time, he had told the accused that he had

    brought the amount of Rs.2000/- with him. The accused told him

    that there was an auction of the acacia trees at the roadside and

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    he was going to that place and had called the complainant to

    that place. The accused immediately left for that place on his

    scooter and he and the panch witness followed the accused. He

    had a conversation with the accused about certifying the entry

    and the shirt of the accused was changed at the Panchayat

    Office but he does not know who had brought the alternative

    shirt. The witness has produced the copy of the Village Form

    No.6 Mutation Entry No.2689 dated 19.06.2003 at Exh.11 and on

    perusal the entry was rejected by the Circle Officer,

    S.I.Macwan, Deputy Mamalatdar, Khambhat. The witness has

    also produced the complaint at Exh.12, the notice under Section

    135-D of the Land Revenue Code at Exh.13 and a copy of the

    index at Exh.14.

    10.1. PW-2 Sanjaybhai Pranashankar Joshi examined at

    Exh.15 as the panch witness who has narrated all the events that

    had unfolded on 23.02.2004 when he and the other panch

    witness Kanubhai Lalabhai Solanki went to the ACB office at

    Nadiyad at 5:45am and the procedure undertaken by the Trap

    Laying Officer for the laying of the trap until the trap was

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    successful. As far as the trap is concerned, the witness has

    stated that he and the complainant along with the other panch

    witness and the Trap Laying Officer and other members of the

    raiding party reached Kansari village at about 9:45am in a

    vehicle and halted the vehicle outside of Kansari village. He

    and the complainant had gone into the panchayat office and the

    panch no.2 and other members of the raiding party stood

    scattered around. The complainant met the accused and they

    sat in the Gram Panchayat Office till about 2:00pm. The accused

    was overburdened work and at around 2:00pm, the

    complainant asked the accused what procedure was

    undertaken for the entry that was rejected and the accused told

    him that as he was overburdened work, his work would be

    done and asked whether he had brought the amount. The

    complainant told him that he had brought Rs.2,000/- and the

    accused told him that he was going to the roadside where the

    auction of acacia trees was going on near the pond and had

    called him to that place. The accused took his scooter and left

    for that place. The complainant and the witness also followed

    him and when they reached near the pond, the accused told the

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    complainant that he would complete the work and the

    complainant informed the accused that he had brought the

    amount of Rs.2,000/- and took the currency notes from his left

    pocket with his right hand and gave it to the accused with his

    left hand. The accused accepted the amount with his right hand

    and counted the amount and placed it in his left shirt pocket.

    The complainant gave the pre-determined signal and the

    members of the raidng party came and caught the accused and

    they brought the accused to the Rest House at Kambhat as the

    ‘Pulse Polio Program’ was going on and the place where the

    trap had taken place was a public road. The procedure

    thereafter was done at the Rest House at Kambhat. The

    Panchdama Part-II was drawn which was produced at Exh.18

    and the seizure memo is at Exh.17. In the cross-examination by

    the learned advocate for the accused, the witness has stated

    that he did not know whether any government dues were

    outstanding from the complainant and when they reached the

    office of the Talati till 2:00pm, there was no conversation

    between the complainant and the accused. In the room where

    the Talati was seated other employees were also seated and the

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    complainant started the conversation with the accused at

    around 2:00p.m. The accused took his scooter and went to the

    pond where the auction of the acacia trees was going on and

    the complainant and the panch witness followed the accused to

    that place. After the trap, the accused was taken to the Rest

    House and the Panchayat Office was on the way to the Rest

    House from the pond but they did not go to the Panchayat

    Office. The Trap Laying Officer had decided to conduct the test

    at the Rest House and not at the place of the trap and he does

    not know who had brought the alternative shirt for the accused.

    The bottles containing the solution of sodium carbonate were

    sealed with the lac seal of Police Inspector, ACB, Nadiad and

    the panchnama was signed at the Panchayat Office. He does not

    know which part of the panchnama was written at the rest house

    and the signatures were affixed at the Panchayat Office. He

    cannot say which part of the panchnama was dictated by him

    and which part was dictated by the Panch No.2.

    10.2. PW-3 Shaileshbhai Laherchand Shah examined at

    Exh.19 is the Competent Authority who has given the order of

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    sanction for prosecution which is produced at Exh.20. In the

    cross-examination by the learned advocate for the accused, the

    witness has stated that he did not see the notice under Section

    135-D of the Bombay Land Revenue Code in the papers that

    were sent by the ACB but he had seen the Mutation Entry

    No.2689. He had also read the reasons for rejection of the entry

    but he cannot say whether the necessary documents for

    rejection of the entry were placed in the papers or not. A draft

    sanction order was also sent by the ACB along with the papers

    and the sanction order as also the draft sanction order are

    verbatim same and the witness has stated that he had merely

    filled up the blanks in the draft sanction order.

    10.3. PW-4 Manoj Khimjibhai Limbachiya examined at

    Exh.23 is the Trap Laying Officer who has narrated the entire

    procedure that was undertaken by him on 23.02.2004 when the

    complainant came to the ACB office and the procedure

    undertaken by him for the trap as also the till the trap was

    successful. In the cross-examination by the learned advocate

    for the accused, the witness has stated that he had met the

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    complainant for the first time on 23.02.2004 at 4:45am and the

    panch witnesses had come at around 5:30am. He had instructed

    the panch witnesses to come at 5:30am and they came after the

    complaint of the complainant was recorded. He inquired from

    the complainant as to whether any Government dues were to be

    paid at the Kansari Gram Panchayat but he did not verify

    whether the reply given by the complainant was true or not. On

    the day of the incident, the work of Pulse Polio Programme was

    going on but he did not record any statements of any

    employees. There were other residential houses near the Gram

    Panchayat Office and he waited outside of the Gram Panchayat

    Office from 10:00am to 2:00pm but he did not verify as to why

    the complainant and the panch witnesses were at the Panchayat

    Office from 10:00am to 2:00pm. The place at the pond was a

    public road and he may have had some conversation with the

    panch no.1 at the pond which may be about the acceptance of

    the bribe amount. He did not record the statement of any

    person at the rest house and did not take any certificate about

    the allotment of the room at the rest house. The shirt of the

    accused was changed at the rest house and the trap money that

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    was seized was placed in a sealed cover. He could not say what

    procedure he had undertaken for sealing the solution of sodium

    carbonate and he had not placed any panch slip with the

    signatures of the panch witnesses on the mouth of the bottle

    while tying the bottle with the thread.

    10.4. PW-5 Abubakar Mohammedbhai Mansuri examined

    at Exh.25 is the Investigating Officer who has narrated the

    procedure undertaken by him during investigation. In the

    cross-examination by the learned advocate for the accused, the

    witness has stated that he did not investigate as to whether any

    government dues were outstanding from the complainant and

    the document at Exh.34 shows that the accused was at

    Khambhat on 19.02.2004. He does not know whether the

    muddamal bottles were lying at the ACB Office from 27.02.2004

    to 04.03.2004 and he had handed and he had taken over the

    investigation on 27.02.2004. He did not record the statement of

    the person who had taken the muddamal for analysis to the FSL

    and as per his say, Police Constable Kiranbhai Chawda had

    taken the muddamal to hand it over to the FSL for analysis, but

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    he could not say on which date the muddamal had reached the

    FSL. As per the record, the muddamal had reached the FSL on

    04.03.2004 and during investigation, it was found that the entry

    was rejected by Circle Officer Macwan Saheb. He recorded the

    statement of Circle Officer Macwan Saheb and had verified the

    reason for the rejection of the entry. It was also found during

    investigation that the power of allowing or rejecting the entry,

    the mutation entry was with the Circle Officer Macwan Saheb

    and the complainant did not make any allegations against

    Circle Officer Macwan Saheb.

    11. On a fresh and independent re-appreciation of the

    entire oral as well as documentary evidence on record, this

    Court finds that the prosecution has failed to establish the

    foundational facts of demand and acceptance of illegal

    gratification beyond reasonable doubt and the view taken by

    the learned Trial Court in recording acquittal is a possible and

    reasonable view warranting no interference in an appeal

    against acquittal. As per the complaint produced at Exh.12, the

    Mutation Entry for entering the names of the complainant, his

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    sister and his mother came to be rejected by the Circle Officer

    S.I.Macwan and it is the case of the complainant that when he

    visited Kansari Gram Panchayat on 19.02.2004, he came to

    know from the accused that such entry had been rejected.

    According to the complainant, on the very same day, the first

    demand of illegal gratification of Rs.4,000/- was allegedly made

    by the accused for himself as well as for Circle Officer Macwan.

    However, the prosecution evidence itself creates serious doubt

    regarding the very presence of the accused at Kansari Gram

    Panchayat on 19.02.2004. The daily diary of the accused is

    produced at Exh.34, on perusal, clearly indicates that on

    19.02.2004, the accused was at Khambhat and even the

    Investigating Officer has admitted the said documentary

    position. This materially contradicts the version of the

    complainant that he had met the accused at Kansari Gram

    Panchayat on that date, thereby creating a substantial doubt

    regarding the very genesis of the alleged first demand. Further,

    the Investigating Officer has failed to investigate an important

    defence raised by the accused regarding outstanding

    government dues payable by the complainant. In the cross-

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    examination of the complainant, it has come on record that he

    had issued a cheque of Rs.11,775/- dated 12.08.1997 towards

    conversion tax, which was dishonoured with the endorsement

    “Insufficient Funds”, and there is no evidence produced by the

    complainant to show that such amount had been cleared till

    February, 2004. The defence of the accused that the

    complainant was making payment of conversion tax in

    installments and that the amount allegedly accepted by him was

    towards such outstanding dues, therefore, emerges as a

    plausible and probable defence. In a prosecution under the

    P.C.Act, once such a reasonable explanation arises from the

    record itself, the burden upon the prosecution to prove illegal

    demand and conscious acceptance becomes heavier, which

    burden has not been discharged in the present case. Even the

    trap proceedings do not inspire confidence. As per the

    prosecution, the tainted amount was accepted near the pond,

    and immediately thereafter, the accused was taken to the

    Government Rest House at Khambhat, instead of conducting the

    necessary verification and recovery proceedings at or near the

    spot itself, though the Gram Panchayat Office at Kansari was on

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    the way and other suitable places were available nearby. PW-2

    Sanjaybhai Pranayshankar Joshi, the shadow panch, has

    specifically stated that it was only at the Government Rest

    House that the Trap Laying Officer inquired from him regarding

    the details of the transaction. Even the Trap Laying Officer has

    not categorically stated that any immediate inquiry was made at

    the place of trap from either the complainant or the panch

    witness regarding the transaction. Thus, the recovery of tainted

    currency notes and the panchnama procedure were not

    undertaken at the spot but subsequently at the Government

    Rest House, which renders the prosecution version doubtful and

    affects the sanctity of the trap proceedings. There are also

    material contradictions regarding the lodging of the complaint

    itself. The complainant states that he had reached the ACB

    Office, Nadiad on 22.02.2004 at about 5:00p.m., stayed there

    overnight and that the complaint was recorded in the presence

    of the panch witnesses. In contrast, the Trap Laying Officer has

    categorically deposed that he met the complainant for the first

    time only on 23.02.2004 at about 4:45am, and that the panch

    witnesses arrived at about 5:30am, i.e., after the complaint had

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    already been recorded. This contradiction goes to the root of

    the prosecution case and affects the credibility of the entire

    pre-trap procedure. There is also no cogent evidence

    regarding seizure of the shirt of the accused. There is no

    evidence as to who arranged the alternate shirt for the accused

    or who brought it, though the shirt allegedly worn by the

    accused was seized during the trap proceedings. The

    Investigating Officer has also not recorded the statements of the

    father, mother or sister of the complainant, though they were

    material witnesses in the background of the dispute. It has

    further come on record that one independent person was

    present at the place of trap, yet such independent witness has

    not been examined before the learned Trial Court, thereby

    depriving the prosecution case of valuable corroboration. As

    regards the muddamal and F.S.L. procedure, serious

    inconsistencies are also noticed. Though the trap was

    conducted on 23.02.2004 and PW-5 Abubaker Mohammadbhai

    Mansuri states that he took over investigation only on

    27.02.2004, the record shows that the muddamal had reached

    the F.S.L. only on 04.03.2004. There is absolutely no evidence

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    regarding safe custody of the bottles containing hand-wash

    samples of the accused marked as Article “A” and “B” during

    the intervening period from 23.02.2004 till their dispatch.

    Though the Investigating Officer states that Police Constable

    Kiranbhai Chawda had carried the muddamal to F.S.L.,

    Ahmedabad, the said constable has not been examined before

    the learned Trial Court. Thus, the chain of custody of the

    muddamal remains unproved, creating serious doubt

    regarding the integrity of the scientific evidence. Even the

    sanction for prosecution produced at Exh.20 does not inspire

    confidence. PW-3 Shaileshbhai Laherchand Shah, the

    Sanctioning Authority, has categorically admitted that the draft

    sanction order had been sent by the ACB Office and that he had

    merely filled in the blanks therein. This clearly indicates

    absence of independent application of mind by the Sanctioning

    Authority, thereby affecting the validity of sanction itself. In

    view of the aforesaid serious infirmities, contradictions and

    omissions, the prosecution has failed to prove the essential

    ingredients of demand, acceptance and recovery of illegal

    gratification beyond reasonable doubt. The learned Trial Court

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    has, therefore, rightly extended the benefit of doubt to the

    accused and recorded an order of acquittal. This Court finds no

    perversity, illegality or misappreciation of evidence in the

    impugned judgment so as to warrant interference in an appeal

    against acquittal. The findings recorded by the learned Trial

    Court being based on proper appreciation of evidence and

    being a plausible view, the judgment and order of acquittal

    deserve to be confirmed.

    12. The impugned judgment and order passed by the

    learned Presiding Officer, 11 th Fast Track Court, Kheda at

    Nadiad in Special (ACB) Case No.11 of 2004 on 14.03.2006 is

    hereby confirmed. Bail bonds stand cancelled.

    13. Record and proceedings be sent back to the

    concerned Trial Court forthwith.

    Sd/-

    (S. V. PINTO,J)
    F.S.KAZI…..

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