1. Though served, but nobody is appearing on behalf of the respondent. Hence, the Appeal is taken up for hearing today.
2. The present appeal, under Section 378(1) (3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 13.7.1999 passed by the learned Special Judge, Sabarkantha at Himatnagar, in Special Case No.1 of 1995, whereby the accused has been acquitted from the charges leveled against him.
3. As per the case of the prosecution, the appellant being pubic servant, was serving in the office of Nagarpalika as Clerk. The complainant met the appellant – accused for the work of transferring the house on the name of complainant. The accused for doing such work, demanded Rs.700/ from the complainant. As per the complainant, the accused told him that without giving the amount of bribe, the accused would not do the work of the complainant. The complainant did not give such amount to the accused, therefore, he approached the ACB Office, Himatnagar. Thereafter, after completing necessary formalities, the trap was arranged and as per the case of the prosecution, the accused demanded and accepted the amount of bribe from the complainant. Therefore, the complaint for the offences punishable under Sections 7, 13(1)(d), (1)(2)(3) and Section 13(2) of the Prevention of Corruption Act against the accused.
4. To prove the case against the present accused, the prosecution has produced several documentary evidence and examined witnesses like P.W.1 Dhanraj Chunilal Khatri, complainant at Exhibit 26, P.W.2 Rangusinh Sardarsinh Makwana, Peon of Nagarpalika at Exhibit 28, P.W 3 Khengarbhai Kanjibhai Vankar, Panch, at Exhibit 30, P.W 4 Abdulajij Mohmmadbhai Jamsa, P.I. and Investigating Officer at Exhibit 35.
5. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 13.7.1999.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order dated 13.7.1999 passed by the Special Court, the appellant State has preferred the present appeal.
7. It is submitted by learned APP that the judgment and order of the Sessions Court is against the provisions of law; the Sessions 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 respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence. She submitted that there is direct evidence against the accused for the offence alleged. She further submitted that the respondent was working as Clerk in the Nagarpalika and while performing his duties, he demanded Rs.700/ from the complainant which was accepted by the accused during raid in the presence of panch No.1 as illegal gratification. Even from the evidence of PI. And Investigating Officer, Exhibit 35, it appears that this witness disclosed the fact that on experiment of ultraviolate lamp, the marks of anthracene powder were found on the hands of the accused. The amount of bribe was recovered from the accused during the raid process. She further submitted that the notes, which were recovered from the accused are the same as mentioned in preliminary panchnama. She further submitted that from the evidence of Khengarbhai Kanjibhia Vankar, Exhibit 30, it appears that the muddamal notes were recovered from the drawer of the table and said table and drawer were seen in the ultraviolate lamp, where the marks of anthracene powder were found.
In the present case, no independent investigation is done in this case. He further submitted that looking to even documentary evidence, the offence as alleged against the accused, is proved. She also submitted that though the complainant turned hostile, the case against the accused is proved through other evidence like Investigating Officer as well as panch. Therefore, it cannot be said that the prosecution has not proved the case, but the learned trial Judge has not properly appreciated the evidence on record. Therefore, there is no reason to disbelieve the case of the prosecution and hence, the Appeal is required to be allowed by awarding sentence in favour of the accused and to quash and set aside the judgment and order of acquittal passed by the learned Special Judge.
8. I have perused the record and considered the submissions made by the parties. I have perused the oral evidence of the witnesses examined by the trial Court. The complainant lodged complaint against the accused for the offence punishable under Sections 7, 13(1)(d)(1)(2)(3) read with Section 13(2) of the Prevention of Corruption Act. Looking to the record, the notice dated 17.3.1994, which was received by the complainant and in the said notice, the complainant was ordered to pay Rs.654.20 towards the reconnection of water supply, which was disconnected earlier. Herein the the contents of the complaint reflects about the amount of Rs.700/, which was demanded by the accused in form of bribe. Therefore, it can be said that the complaint was lodged only on the basis of presumption that the accused demanded money towards the illegal gratification. During the course of investigation, the mark of anthracene powder was not found on the body of the accused. Therefore, looking to the chronology of events, it appears that the accused had not made any demand, which can be said as demand towards illegal gratification and as there was no marks of anthracene powder were found on the body of the accused, it can be said that aspect of the acceptance of the bribe amount is not proved. The learned trial Judge has rightly observed that in para 13 about evidence of panch No.2, who Khengarbhai during the course of trial. Even the criminal misconduct is not proved on the part of the accused. Therefore, it appears that the prosecution has absolutely failed to prove the case against the accused. Therefore, learned Special Judge has rightly acquitted the accused from the charges by appreciating the evidence on record, in true manner.
9. It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper.
10. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellantState. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
11. 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.
12. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against her.
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13. I 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.
14. I am, 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. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.
(Z.K. SAIYED, J.) ynvyas