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Judgment
K.S. Jhaveri, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of
acquittal dated 29/11/1994 passed by the learned Special Judge, Bharuch in Special Case No. 3 of 1989 whereby present respondent-original
accused was acquitted of the charges leveled against him.
The brief facts of the prosecution case are as under:
2.1. When Complainant Gulabsinh Parmar was Sarpanch of Bojadara Gram Panchayat of Jambusar Taluka in the year 1988-89, in lands owned
by Mangalbhai Manjibhai Harijan and Nansingbhai Nagjibhai Rathod, there was approval of construction of new wells under scheme of 100%
help of Jivandhara Yojana of Government. For the said work, beneficiary has to pay expenses first and after the work is done, he has to get
reimbursement of the bill amount for the said work. Accordingly digging work of well of Nansingbhai was over and construction was not
commenced whereas digging and construction work of well of Mangalbhai was over and for that measurement was taken in the year January-
1989. Advance amount was given by the complainant to Mangalbhai for labour work. Supervisor Shri P. B. Patel has told the complainant and
Mangalbhai that cheque of running bill was received by him and therefore he has made the bill accordingly and therefore, 10% of the same to be
given to him. Complainant has thereafter stated that at that time he had to complete some debit and therefore said money of 10% to be given at the
time of final bill. Thereafter complainant and Mangalbhai met Supervisor Shri P. B. Patel for making final bill and requested to pay the money. Then
Shri P. B. Patel stated that first complainant has to give at least Rs. 1,000/- and thereafter he will prepare final bill. Thereafter, as the complainant
felt that Shri P. B. Patel is unnecessarily demanding the said money and that should not be given to him, he filed complaint before the ACB Police
Bharuch on 21/11989 and accordingly trap was arranged. Necessary formalities for trap was completed and accordingly currency notes cotted
with enthracene powder was recovered from drawer of accused Shri P. B. Patel and he was caught during the trap.
2.2 As the trap was proved successful, necessary investigation was carried out and statements of witnesses were recorded and ultimately, charge
sheet was filed against the respondent-accused before the court of learned JMFC, Bharuch.
2.3 Thereafter, as the case was exclusively triable by the Special Court, the same was committed to the Court of learned Special Judge, Bharuch
u/s 209 of Cr.P.C. The case was numbered as Special Case No. 3 of 1989. The trial was initiated against the respondent-accused.
2.4 To prove the guilt against the accused the prosecution has examined the following witnesses:
[1] Amarsinh Gulabsinh Parmar (complainant) - Exh.20
[2] Himmatlal Bhikhubhai Solanki (PW) - Exh.26
[3] Mangalbhai Maniyabhai - Exh.32
[4] Ajaybhai Chandravadan Bhandari - Exh.34
[5] Rasulbhai Porabhai Sonesara - Exh.47
[6] Kanubhai Somabhai Prajapati - Exh.48
[7] Bhimsing Sursing Vasava - Exh.54
2.5 In order to support the case, the prosecution has produced the following documents:
[1] Approval for proceedings against the accused - Exh.19
[2] Files of muddamal articles - Exh.21 and 22
[3] Primary panchnama for raid made in ACB Office - Exh.27
[4] Note signed by panchas received from sealed cover of muddamal article No. 1 - Exh.28
[5] Panchnama of raid proceedings - Exh.30
[6] Panchnama of seizer of muddamal article Nos. 4 and 5 produced by accused - Exh.31
[7] Three bills of Shrinathji Traders of Jambusar - Exh.36,37 and 38
[8] Bill of Naginlal and Sons (Bhandari) - Exh.39
[9] Bill Jambusar Corporation - Exh.40
[10] Notification dated 23/12/1988 - Exh.42
[11] Notification dated 11/5/1988 - Exh.43
[12] Letter dated 29/12/1988 to all TDO - Exh.44
[13] Letter dated 15/12/1988 to Commissioner of Rural Development, Gandhinagar - Exh.45
[14] Letter dated 241/1989 of TDO, Jambusar to Director of Bharuch District Gram Vikas Agency - Exh.46
[15] Xerox copy of presence sheet of January-1989 and February-1989 of employee of office of Taluka Panchayat, Jambusar - Exh.52
[16] Original complaint dated 21/2/1989 - Exh.55
[17] Closing pursis - Exh.56
2.6 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the
defense, the learned Special Judge acquitted the respondent of all the charges leveled against him by judgement and order dated 29/11/1994.
2.7 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Special Judge, Bharuch the appellant-State has
preferred the present appeal.
Though served, the respondent-accused has not remained present.
Ms. Manisha Lavkumar Shah learned APP contended that the judgement and order of the Special Court is against the provisions of law; the
Special Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the
prosecution has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this Court through the
oral as well as the entire documentary evidence. She submitted that the prosecution witness had clearly deposed in his deposition that the
respondent-accused was found committing offence punishable under Sections 7, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act,
1988. She further submitted that there was no reason for the Special Judge to disbelieve the prosecution case and to acquit the respondent-
accused.
At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order
of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S.
Narayana Menon @ Mani Vs. State of Kerala and Another, the Apex Court has narrated about the powers of the High Court in appeal against
the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction.
Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of
law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
5.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles:
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 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 curtain extensive powers of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of ''flourishes of language'' to emphasis the reluctance of an appellate court to interfere with acquittal than to
curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] 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.''
5.2 Thus, it is a settled principle that while exercising appellate power, even 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.
5.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007)3 SCC 75, the Court
has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would
not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion
arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two
views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the
appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court
has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances,
to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is
connected with the commission of the crime he is charged with.
5.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors reported in AIR
2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may
exercise against an order of acquittal are well settled.
5.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonigns,
when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State
of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein it is held as under:
This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate court when it
agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court
expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
5.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not
necessary.
We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led by
the trial court and also considered the submissions made by learned Advocate for the appellant.
6.1 On the facts of the case the notes were recovered from the drawer of the table. The accused has not touched the notes in question. It is also in
the evidence that the accused has not even opened the drawer. There is nothing to show that the accused has demanded the money and he
accepted the same and placed in the drawer. If the complainant has placed the notes in the drawer, then in that case no liability can be fastened
upon the accused.
6.2 While considering the oral as well as documentary evidence, it is found that there were serious contradictions in the version of the complainant.
Panchas were held to be not independent. It was also established that demand of bribe and acceptance of the same is not proved. Therefore the
trial court has given the benefit of doubt to the accused. The view taken by the trial Court is just and proper and therefore we do not find any
reason to interfere with the said finding.
6.3 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Ms. Manisha Lavkumar
Shah, learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated
by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the
charges leveled against him. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings,
no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant
order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Further this Court has limited scope to decide
the appeal. Hence the appeal is hereby dismissed.
Record and Proceedings be sent back forthwith.