Gujarat High Court
State Of Gujarat vs Virambhai Sidibhai Parmar Police Sub … on 7 April, 2026
NEUTRAL CITATION
R/CR.A/1393/2009 JUDGMENT DATED: 07/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1393 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting No Yes
✓
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STATE OF GUJARAT
Versus
VIRAMBHAI SIDIBHAI PARMAR POLICE SUB INSPECTOR &
ANR.
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Appearance:
MR. ADITYA JADEJA, APP for the Appellant(s) No. 1
ADVOCATE NOTICE NOT RECD BACK for the
Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/04/2026
JUDGMENT
1. The appeal is filed by the appellant State under Section
378 of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal passed by the learned
Additional Sessions Judge & Presiding Officer, 6 th Fast Track
Court, Rajkot (hereinafter referred to as “the learned Trial
Court”) in Special ACB Case no. 16/1994 on 31.03.2009,
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whereby, the learned Trial Court has acquitted the
respondents for the offence punishable under Sections 7, 12,
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as “the PC Act” for short).
1.1 The respondents are hereinafter referred to as “the
accused” in the rank and file 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 The accused No.1 was working as a PSI at Jubilee Police
Chowki of Pradyumannagar Police Station, Rajkot and was a
public servant and the accused No.2 was a private person. An
offence under Section 420 of the IPC was registered at
Pradyumannagar Police Station, CR No. 2 of 1994, which was
being investigated by the accused No.1. As per the offence,
the complainant Rahimbhai Abdulbhai Satar Mor was the
Manager of Shramjivi Co-operative Credit Society, Rajkot and
on 21.12.1993, Ashrafbhai Indawala, a member of the Society
had written a chit to the complainant and sent it along with
one Vinay Chandulal Shah who wanted to open an account in
the Bank of Baroda, Kalawad Road Branch, Rajkot. The
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complainant Rahimbhai Abdulbhai Satar Mor had affixed his
signature as an introducer to the said Vinay Chandulal Shah
who opened an account in the name of Hindustan Petroleum
at Bank of Baroda, Kalawad Branch. After 4 to 5 days, the
Branch Manager of Bank of Baroda, Kalawad Road Branch,
came to the complainant and told him that the person whom
he had introduced had cheated the bank to the tune of
Rs.84,000/- and an offence under Section 420 was registered
at the Pradyumannagar Police Station against Vinay
Chandulal Shah. On 03.01.1994, the accused No.1 came to the
office of the Society and met the complainant and called him
to the Pradyumannagar Police Station. The complainant had
gone to the Police Station along with one Naranbhai Gohil and
the statement of the complainant was recorded and at that
time, the accused No.1 told the complainant that he would be
taken as an abettor and an accused in the offence and on the
pretext of searching for the chit written by Ashrafbhai
Indawala, the complainant left the Police Station and went to
meet his advocate and filed an application for Anticipatory
Bail which was granted by the Additional Session Judge,
Rajkot on 06.01.1994. The accused No.1 telephoned the
complainant and asked him why he had not come to the Police
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Station and the complainant told him that he had received the
Anticipatory Bail from the Sessions Court, but the accused
No.1 threatened to tear the Anticipatory Bail Order and fix
him in the offence as an accused. On 23.03.1994, once again,
the accused No.1 and his writer Chaman Shah Shamdar came
to the office of the Society and at that time, Naranbhai Gohil
was also present and the accused No.1 called him to the
Jubilee Police Chowki. On the next morning, at around 10:00
am, the complainant went with Naranbhai Gohil to the Jubilee
Police Chowki and met the accused No.1 and Naranbhai Gohil
requested the accused No.1 to wind up the case of the
complainant. The accused No.1 demanded an amount of
Rs.5000/- as illegal gratification, and also told them that an
amount of Rs.3000/- could be given immediately and the
remaining amount of Rs.2000/- could be given later on. The
complainant and Naranbhai Gohil left the Police Chowki and
as the complainant did not want to pay the amount of illegal
gratification, he went to the ACB Police Station, Rajkot on
24.03.1994 and the complaint of the complainant was
recorded.
2.2 The Trap Laying Officer called the panch witnesses and
the complainant gave 30 currency notes of the denomination
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of Rs.100/- each and under instructions of the Trap Laying
Officer, Police Sub-Inspector – M.H. Tank conducted the
demonstration of anthracene powder and ultraviolet lamp and
explained the characteristics of anthracene powder and
ultraviolet lamp to the complainant and the panch witnesses.
All the currency notes were smeared with anthracene powder
and placed in the left shirt pocket of the complainant by PSI –
M.H. Tank and necessary instructions to all concerned were
given. The Panchnama Part-I was drawn and the signatures of
all concerned were taken and the complainant, his friend
Naranbhai and panch No.1 went on the Kinetic Honda of the
complainant to the Jubilee Police Chowki. The panch No.2 and
other members of the raiding party came and stood scattered
around the Jubilee Police Chowki. The complainant, panch
No.1 and Naranbhai went into the chamber of the accused
No.1 and at that time, the accused No.1 was seated on his
chair and they sat on the bench and stool in front of the table
of the accused No.1. Naranbhai had a conversation with the
accused No.1 and Naranbhai told the accused No.1 that he
had brought the amount of Rs.3000/- as discussed earlier and
would pay the remaining amount of Rs.2000/- later on. The
complainant took the tainted currency notes from his left shirt
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pocket and extended his hand towards the accused No.1 but
the accused No.1 refused to accept the amount and told him
that he would taken it later and told Naranbhai that he would
taken the money from him. The complainant placed the
tainted currency notes back in his shirt pocket and Naranbhai
told the accused No.1 that he would meet him later. The
accused No.1 told him that he could contact him after 08:00
pm and they all returned to the ACB Office. At around 17:45
hours, Naranbhai telephoned the Jubilee Police Chowki and
was told that no one was present at the Chowki and to come
after half an hour. As the amount was to be taken from
Naranbhai, the tainted currency notes were taken from the
pocket of the complainant and placed in the left shirt pocket
of Naranbhai and necessary instructions were given and once
again, Naranbhai and the shadow witness – panch No.1 went
on the Kinetic Honda, motorcycle of the complainant, at
around 20:05 hours and reached the Chowki at 20:15 hours.
The panch No.2 and members of the raiding party followed
them and the accused No.1 was not present so they waited
outside the Chowki. At around 20:35 hours the accused No.1
came and went in his chamber and the panch No.1 and
Naranbhai went into the chamber of the accused No.1. They
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sat on the chairs opposite the table of the accused and
thereafter, Naranbhai told the accused that he had brought
the money and the accused No.1 got up from his chair and
went outside to the urinal and called one person inside and
told him to accept the amount that would be given by the
person sitting inside. The accused No.1 came in and told
Naranbhai to give the amount to the person who had come
and the accused No.1 told that person not to count the money
but to taken his scooter and leave. The person left and
Naranbhai and the panch came outside and Naranbhai lit a
cigarette and gave the predetermined signal and at that time,
the person who had taken the money had reached scooter No.
GCI-2992 and the Trap Laying Officer was told that the money
was with that person and he was caught and on inquiring from
him his name was Mehmood Kareem Shah Fakir, a resident of
HUDCO Quarter No. C-69, Kotharia Main Road. The
necessary tests were done and the Panchnama Part-II was
drawn and the offence was registered under Sections 7, 12,
13(1)(d), 1, 2, 3 and 13(2) of the Prevention of Corruption Act
at ACB Rajkot Police Station, CR number 6 of 1994.
2.3 The Investigating Officer recorded the statements of the
connected witnesses and seized the necessary documents and
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after completion of investigation, a charge-sheet came to be
filed before the learned Sessions Judge, Rajkot and the case
was registered as Special Case no. 16/1994.
2.4 The accused was duly served with the summons and the
accused appeared before the learned Trial Court and it was
verified whether the copies of all the police papers were
provided to the accused as per the provisions of Section 207
of the Code. A charge at Exh. 22 was framed against the
accused and the statement of the accused was recorded at
Exh. 23 wherein, the accused denied the contents of the
charge and the entire evidence of the prosecution was taken
on record.
2.5 The prosecution examined 3 witnesses and produced 19
documentary evidences on record in support of their case and
after the learned Additional Public Prosecutor filed the closing
pursis, the further statement of the accused under Section
313 of the Code of Criminal Procedure, 1973 was recorded,
wherein, the accused denied all the evidence and refused to
step into the witness box or lead evidence but stated that a
false case has been filed against him. After the arguments of
the learned Additional Public Prosecutor and the learned
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advocate for the accused were heard, the learned Trial Court
by the impugned judgement and order was pleased to acquit
the accused from the charges levelled against him.
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 of acquittal
is contrary to law and evidence on record and the learned
Trial Court has erred in holding that the prosecution has not
proved its case beyond reasonable doubts. The prosecution
has examined 03 witnesses and produced 19 documentary
evidences in support of his case but, however, without
appreciating the evidence available on record of the case and
from proper perspective, the learned Trial Court has acquitted
the respondents holding that the prosecution has failed to
prove the offence beyond reasonable doubts. That in fact, the
witnesses have supported the case of the prosecution and the
contents of the complaint produced at Exh. 71 and the
Panchnama at Exh. 91 have not been appreciated properly.
The learned Trial Court has given undue importance to minor
omissions and contradictions and has disbelieved the evidence
of the witnesses and from the evidence, it is clear that marks
of anthracene powder were found on the currency notes and it
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is proved that the respondents had accepted the amount of
bribe. Without resorting to the presumption under Section 20
of the Act, the learned Trial Court has acquitted the
respondents and the ingredients of demand, acceptance and
recovery have been proved by the prosecution beyond
reasonable doubts. The learned Trial Court has failed to
appreciate that the complainant and members of the raiding
party do not have any enmity against the respondents and
there was no reason to falsely involve the respondents in any
manner and hence, the judgment and order of acquittal being
contrary to law and evidence on record deserves to be
quashed and set aside.
4. Heard learned Additional Public Prosecutor, Mr. Aditya
Jadeja for the appellant State. Perused the impugned
judgement and order of acquittal and have reappreciated the
entire evidence of the prosecution on record of the case.
5. Learned APP, Mr. Aditya Jadeja has taken this court
through the entire evidence of the prosecution and has stated
that even though the complainant has not fully supported the
case of the prosecution and has been declared hostile, the
evidence that supports the case of the prosecution is to be
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considered and read along with the contents of the complaint
as also the evidence of the other witnesses which proves that
the prosecution has proved the ingredients of demand,
acceptance and recovery and the prosecution has proved the
case beyond reasonable doubts and hence, the impugned
judgment and order of acquittal is required to be quashed and
set aside. The respondents must be found guilty for the said
offences and the appeal must be allowed.
6. At the outset, before discussing the facts of the present
case, it would be appropriate to refer to the observations of
the Apex Court in para 11 and 12 with regard to the powers
of the Appellate Court while dealing with acquittal appeals in
the case of P. Somaraju Vs. State of Andhra Pradesh
reported in 2025 LawSuit (SC) 1423:
11. Before proceeding, it would be appropriate to recapitulate the
well-settled principles governing interference with an order of
acquittal by an Appellate Court, which were also discussed by the
High Court in the impugned judgment. At the outset, we rely upon
the seminal case of Chandrappa & Ors. vs. State of Karnataka 2007
(4) SCC 415 wherein this Court had laid down the five-point
canonical test as follows:
“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:
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(1) An appellate court has full power to review, reappreciate
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 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.
(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.” 4 (2007) 4
SCC 415.
12. To summarize, an Appellate Court undoubtedly has full power
to review and reappreciate evidence in an appeal against acquittal
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under Section 378 and 386 of the Code of Criminal Procedure,
1973. However, due to the reinforced or ‘double’ presumption of
innocence after acquittal, interference must be limited. If two
reasonable views are possible on the basis of the record, the
acquittal should not be disturbed. Judicial intervention is only
warranted where the Trial Court’s view is perverse, based on
misreading or ignoring material evidence, or results in manifest
miscarriage of justice. Moreover, the Appellate Court must address
the reasons given by the Trial Court for acquittal before reversing
it and assigning its own. A catena of the recent judgements of this
Court has more firmly entrenched this position, including, inter
alia, Mallappa & Ors. vs. State of Karnataka, 2024 INSC 104, Ballu
@ Balram @ Balmukund & Anr. vs. The State of Madhya Pradesh
2024 INSC 258, Babu Sahebagauda Rudragaudar and Ors. vs.
State of Karnataka 2024 INSC 320 and Constable 907 Surendra
Singh & Anr. vs. State of Uttarakhand 2025 INSC 114.
7. 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
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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 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.
8. 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.
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(b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter of
fact. This fact in issue can be proved either by direct evidence
which can be in the nature of oral evidence or documentary
evidence.
(c) Further, the fact in issue, namely, the proof of demand and
acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and
acceptance of illegal gratification by the public servant, the
following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without
there being any demand from the public servant and the
latter simply accepts the offer and receives the illegal
gratification, it is a case of acceptance as per Section 7 of
the Act. In such a case, there need not be a prior demand
by the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal
gratification emanates from the public servant. This is an
offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe
giver and the demand by the public servant respectively
have to be proved by the prosecution as a fact in issue. In
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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, 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
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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.”
9. In view of the settled principles of law in acquittal
appeals, the evidence is reappreciated and to prove the
offence against the accused, the prosecution has in all
examined four witnesses. PW1 – Rahimbhai Abdulbhai Satar
Mor examined at Exh. 70 is the complainant who has
narrated the contents of the complaint which is produced at
Exh. 71. The witness has not fully supported the case of the
prosecution and in spite of warnings, was not responding
properly and has been examined under Section 154 of the
Indian Evidence Act by the learned APP. In the cross-
examination by the learned advocate for the accused, the
witness has stated that he had asked Naranbhai to contact
the accused No.1 so that he would not be arrested in the
offence and the accused No.1 had told Naranbhai to produce
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Vijay. The witness has admitted that both the accused did not
meet him and demand for any amount of illegal gratification
from him and he has stated that when he and Naranbhai and
the panch No.1 went to the Police Station, he does not
recollect the conversation that had taken place but
remembers that he had left the Police Chowki with the
tainted currency notes in his pocket. The witness has stated
that he had never seen the accused No.2 prior to seeing him
in the Court and there was no conversation regarding any
amount in the presence of the accused No.2. He had met the
accused No.1 only once on 24.03.1994, and he does not
remember whether he was told to call Ashraf. Naranbhai was
an employee of his Society.
9.1 PW2 – Lalubhai Veerjibhai Dama examined at Exh. 88 is
the panch witness who has narrated the procedure that was
undertaken by the Trap Laying Officer in his presence on
24.03.1994, when he and the other panch witness Babulal
Bhawanbhai Parmar went to the ACB Police Station, Rajkot
until the trap was successful. In the cross- examination by the
learned advocate for the accused, the witness has stated that
he had gone to the chamber of the accused No.1 and until
Naranbhai had given the predetermined signal, he was sitting
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in the chamber. They were seated in the chamber at around
09:00 pm and from the chamber, the front portion of the
Police Chowki, the road, the staircase or the grill area could
not be seen. While he was seated he could not see whether
the accused had gone to the urinal and until a person came to
the door of the chamber, the portion of the washroom could
not be seen. The person that was called was called from
outside and while seated in the room, he could not see
whether the person was called from outside and he could not
hear any conversation that was taking place near the
staircase. He had seen the accused No.2 for the first time
when he came into the chamber and there was no
conversation between the accused No.1 and accused No.2 in
the chamber. There was no conversation about the amount or
the reason for accepting the amount and he does not know
the reason why the accused No.2 had come to the Police
Chowki. It was only when the Trap Laying Officer asked the
name of the accused No.2 that he came to know his name and
when Naranbhai was searched at the ACB Office no cigarette
was found on him. He does not know where Naranbhai got
the cigarette and the matchbox for giving the predetermined
signal from. When they went into the chamber at night,
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Naranbhai had himself stated that he had brought the money
and at that time, the accused did not demand for any amount
from Naranbhai. Even earlier, the complainant had told the
accused that he had brought the money and the accused did
not demand for any amount in his presence.
9.2 PW3 – Om Prakash Barusing Sharma examined at Exh.
101 was a member of the raiding party and he has stated that
the Trap Laying Officer and the Investigating Officer – C.N.
Zala has expired. The witness has narrated the procedure
that was undertaken by the Trap Laying Officer on the day of
the trap, until the trap was successful and has stated that he
was a member of the raiding party. In the cross-examination
by the learned advocate for the accused the witness has
stated that he does not know who had called the panch and
he does not know whether the panch was a friend of the
complainant or whether the Trap Laying Officer had inquired
about the relationship, if any, between the complainant and
the panch witness. He was writing the panchnama which was
dictated by the Trap Laying Officer – C.N. Zala and he cannot
say as to which part of the panchnama, if any, was stated by
the panch and dictated by the Trap Laying Officer. At the
time of the trap, the panch witnesses were separate and the
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events that had taken place after 05:00 pm are written
continuously in the panchnama and they were dictated after
the trap and after the predetermined signal was given. He
had seen Naranbhai and the panch No.1 coming out of the
Police Chowki and had seen the accused No.2 coming out of
the Police Chowki before them. When he went into the
chamber of the accused No.1, the accused No.1 was seated
and from the place where he was seated, he could not see
anything that was taking place outside of the chamber. They
had taken the accused No.2 from outside to the chamber and
the predetermined signal was given while lighting a cigarette.
When they had searched Naranbhai, no cigarette, matchbox
or lighter was found on him and he does not remember how
the cigarette was lit by Naranbhai. He cannot say whether
after the raid, when Naranbhai was searched the cigarette,
matchbox or lighter was found on him and he did not see
from where Naranbhai had removed the cigarette.
10. Upon a fresh and independent reappreciation of the
entire evidence on record, this Court finds that the
prosecution has failed to establish the essential ingredients of
demand, acceptance, and recovery of illegal gratification
beyond reasonable doubts. PW-1, Rahimbhai Abdulbhai Satar
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Mor, the complainant himself, has not supported the case of
the prosecution and was declared hostile. Though he was
cross-examined by the learned Additional Public Prosecutor
and leading questions were put to him, he did not fully
support the prosecution version. In his deposition, the
complainant has admitted that he himself had requested
Naranbhai to contact accused No.1 so as to ensure that he
would not be arrested, and that accused No.1 was only
insisting that Vijay be produced before him. Significantly, he
has further stated that he does not remember whether any
demand of illegal gratification was made by accused No.1 and
that he does not recollect the conversation which took place
inside the chamber of accused No.1. He merely stated that he
came out of the chamber with the tainted currency notes still
in his pocket. Thus, the very foundation of the prosecution
case, namely proof of demand, remains unestablished. As per
the prosecution case, at the relevant time, Naranbhai Ratilal
Gohil, an employee of Shramjivi Co-operative Credit Society,
was present and it is alleged that he had handed over the
tainted currency notes to accused No.2 at the instructions of
accused No.1. However, it is highly significant that the said
Naranbhai Ratilal Gohil, who was an independent and most
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material witness to the alleged demand, acceptance, and even
the predetermined signal, has not been examined before the
learned Trial Court. The complainant himself has consistently
stated that he had gone to the ACB Police Station along with
the said Naranbhai and that his presence continued
throughout the trap proceedings. Despite being the most
crucial witness to the entire transaction, his non-examination
creates a serious and fatal lacuna in the prosecution case.
Similarly, the complainant has stated that he had initially
gone to the Police Station with his President, Mahendrasinh
Parbatsinh Zala, and that the said Mahendrasinh had taken
him to the ACB Director, Subhash P. Trivedi, and informed
him about the complaint. However, even the said
Mahendrasinh Parbatsinh Zala has not been examined by the
prosecution before the learned Trial Court. The withholding
of such material witnesses further weakens the prosecution
case and gives rise to an adverse inference. It is also
pertinent to note that as per the prosecution case, after
acceptance of the amount by accused No.2, the
predetermined signal was to be given by Naranbhai Ratilal
Gohil by lighting a cigarette. However, there is no evidence
on record to show that when Naranbhai was searched at the
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ACB Office prior to the trap, any cigarette, matchbox, or
lighter was found in his possession. PW-3 Omprakash
Barusing Sharma, PSI and a member of the raiding party, has
categorically stated that he did not see from where
Naranbhai removed the cigarette and further admitted that
when Naranbhai was searched at the ACB Office, he did not
possess any cigarette, matchbox, or lighter. This
circumstance renders the prosecution version regarding the
predetermined signal highly doubtful. Though, the Trap
Laying Officer and the Investigating Officer could not be
examined, as they had expired, the evidence of PW-2
Lalubhai Veerjibhai Dama, who was admittedly known to the
complainant, also does not satisfactorily establish demand.
His deposition reveals that when he first accompanied the
complainant, Rahimbhai, and Naranbhai to the chamber of
accused No.1, no demand of illegal gratification was made by
accused No.1. On the contrary, the complainant himself
offered money, which accused No.1 initially refused to accept.
Even on the subsequent occasion, when the complainant and
Naranbhai again went to the chamber, no demand was made
by accused No.1; rather, Naranbhai himself volunteered and
stated that he had brought the amount. Though the
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prosecution alleges that accused No.1 thereafter went
outside and instructed accused No.2 to accept the amount,
PW-2 has admitted that he remained seated inside the
chamber throughout, could neither hear any conversation
which took place outside between accused No.1 and accused
No.2, nor could he see the place outside where accused No.2
was allegedly called. Therefore, this part of the prosecution
case also remains unsupported by reliable evidence. Most
importantly, Naranbhai Ratilal Gohil, whose presence is
continuous from the lodging of the complaint till the alleged
successful trap and who was the most material witness to the
demand, acceptance, signal, and recovery, has not been
examined before the learned Trial Court. His non-examination
strikes at the very root of the prosecution case. In corruption
cases, proof of demand is sine qua non, and mere recovery of
tainted currency is not sufficient in the absence of reliable
evidence of demand and voluntary acceptance.
11. In view of these serious infirmities, contradictions, and
material omissions, the prosecution has failed to prove its
case beyond reasonable doubts. The learned Trial Court has,
upon proper appreciation of the evidence, rightly extended
the benefit of doubt to the accused and recorded an order of
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acquittal. No perversity, illegality, or misappreciation of
evidence is demonstrated warranting interference in an
appeal against acquittal. The view taken by the learned Trial
Court is a plausible and reasonable view based on the
evidence on record and therefore deserves to be affirmed.
12. Accordingly, the impugned judgement and order of
acquittal passed by the learned Additional Sessions Judge &
Presiding Officer, 6th Fast Track Court, Rajkot in Special ACB
Case no. 16/1994 on 31.03.2009, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
ROHAN SONI
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