State of Gujarat vs Vijaykumar Kantilal Shah

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 23.01.1998 passed by the learned Special Judge, Jamnagar in Special Case No. 9 of 1995 whereby the accused were acquitted of the charges leveled against them.

The brief facts of the prosecution case are as under:

2.1 The complainant Bhailal Vithaldas Chavda was running the shop of tailoring in the name and style of New Olypic Tailor in the Super Market Area of Jamnagar. On 29.09.1994 when the complainant and his brother Girishbhai were present in their shop. The accused No. 1-Vijaykumar Kantilal Shah who was Government Labour Officer and Inspector of Minimum Wages came there for checking. Upon Checking it was found that the presence sheet, register, salary register of the workers of shop of the complainant were not maintained. He demanded Rs. 5000/- by way of illegal gratification but complainant did not give the bribe amount.

2.2 On 04.10.1994 the accused No. 1 wrote letter to the complainant by registered post A.D for not maintaining the registers of the workers. The accused No. 1 wrote in his letter to complete the procedure of maintaining the registers. The complainant did not go to the office of the accused No. 1. On 21.12.1994 the accused No. 1 with accused No. 2 Jayantilal Mithabhai Darindra again came to the complainant. THe complainant said that he had no big business and he did not want to enter into any trouble. The complainant requested the accused to solve the problem. The accused No. 1 told that if the complainant wanted to solve the problem he had to give Rs. 1000/-. Ultimately the amount was settled at Rs. 5000/- and complainant was told that accused No. 2 will come to take bribe. On 20.12.1994 at 6.30 P.M. the accused No. 2 came to the complainant and demanded Rs. 5000/-. At the relevant point of time, the complainant did not have such amount. The accused No. 2 told complainant to come at Trimurty Guest House where the accused No. 1 was present. The complainant went there. The accused No. 1 threatened the complainant that if he would not give the said amount he will file case against the complainant. Thereafter accused No. 1 demanded Rs. 3000/- and also to stitch one coat for him from the complainant. As the complainant was not willing to give the bribe amount of Rs. 3000/- he went to A.C.B. Jamnagar and lodged a complaint.

2.2 After lodging complaint, P.I., ACB, Jamnagar and after following necessary procedure trap was arranged by the P.I., Jamnagar. Panchnama was prepared. The numbers of currency notes were recorded and experiment of Anthracene powder was made. After carrying out the introduction parade with all the members of raiding party, panch members and complainant with each other whole procedure were completed. Thereafter, the accused had accepted money of bribe from the complainant in the presence of the panch. Bribe amount was recovered from the accused. Hence, stains of Anthracene powder was found on the hand of the accused at the time of conducting the experiment of ultra violet rays. Thus, the accused persons had misused their designation and demanded and accepted bribe. Thereafter, the case was registered against the accused before the A.C.B, Jamnagar after obtaining proper sanction from the Government and after recording evidence of relevant witnesses for the alleged commission of offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

2.3 Necessary investigation was carried out and statements of witnesses were recorded.

2.4 The case was numbered as Special Case No. 9 of 1995 in the Court of learned Special Judge, Jamnagar. The trial was initiated against the respondent.

2.5 To prove the guilt against the accused the prosecution has examined the following witnesses:

[1] Bhailal Vithhaldas Chavda-Exh. 12

[2] Vithhaldas Madavbhai Dave-Exh.17

[3] Natwarlal Narshibhai Nagar-Exh. 22

[4] Gunvantbhai Harkhabhai Algotar-Exh. 25

2.6 In order to support the case, the prosecution has produced the following documents:

[1] A copy of the order to prosecute case against the accused No. 1 Vijaykumar Shah - Exh.20

[2] A copy of the order to prosecute case against the accused No. 2 Jayantilal Mithabhai Daridra - Exh.21

[3] Panchnama regarding trap-Exh. 18

[4] A copy of transfer order of accused No. 2-Exh. 10

[5] A certified copy of the letter addressed to Labour Commissioner, by P.I., A.C.B.-Exh. 11

[6] Letter sent by Labour Commissioner, Ahmedabad regarding the information of the head of the Department of the accused- Exh. 12

[7] A copy of the page Nos. 1 and 2 of the service book of the accused sent by Deputy Labour Commissioner to P.I., A.C.B.,Jamnagar-Exh. 13,14,15

[8] A certified copy of the seizure memo of accused No. 1.- Exh. 16

2.7 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 defence, the learned Presiding Officer acquitted the respondent of all the charges leveled against him by judgement and order dated 23.01.1998.

2.8 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the learned Special Judge the appellant State has preferred the present appeal.

3.0 Mr. R.C. Kodekar, learned APP contended that the judgement and order of the learned Judge is against the provisions of law; the learned Judge 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 respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. He submitted that accused No. 1 had demanded Rs. 3000/- and 30 notes of the denomination of Rs. 100/- each smeared with the anthracene powder were recovered from the pocket of the pant of the accused No. 1. Therefore, demand and acceptance of bribe has been clearly proved beyond all reasonable doubt. Learned APP further submitted that evidence of P.I. Shri Nagar has given his evidence as to the recovery of the note from the accused No. 1 and it is at Exh. 22.

4.0 Mr. T.S. Nanavati, learned advocate for the respondents-accused submitted that the trial court has rightly reached the conclusion by acquitting the respondents-accused and the appeal preferred by the State may be dismissed.

5.0 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 reasonings, 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.

6.0 We have heard the learned advocates for the respective parties and gone through the judgement 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 APP and learned advocate for the respondents-accused.

6.1 The trial Court after appreciation of the evidence held that there is doubt regarding the time of lodging complaint against the accused. The complainant had not stated about the presence of accused No. 2 at the time of incident and it is not proved that he is involved in the said offence. There is no eye witness to the incident. There is no evidence that complainant had gone to A.C.B office. The complainant deposed in his cross-examination that he has seen the accused No. 2 for the first time at the time of raid. He also deposed that at 9.00 to 9.25 P.M. the accused No. 2 was wrongly involved in the offence by the complainant and witnesses. In this case the complainant himself does not support the prosecution case.

6.2 In this fact situation the learned Judge has found that there are serious lacuna in the prosecution case and the prosecution has failed to establish the case against the respondents. There are contradictory statements in the complaint and the evidence of panch. Therefore the trial court has given the benefit of doubt to the accused and 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. Mr. Kodekar, 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.

7.0 In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. 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.

8.0 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. Hence the appeal is hereby dismissed. Bailbond stands cancelled.