[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 24.12.1997 passed by the learned Special Judge, Porbandar, in Special Criminal Case No.3 of 1996, whereby the learned Judge has acquitted the respondent – accused from the charges levelled against him.
[2] The brief facts of the case of prosecution are that complainant – Shantilal Virjibhai Patel (Matalia) lodged a complaint against the respondent - accused on 11.08.1989 alleging that the accused was serving as Principal in Primary School at Taluka : Kutiayana, Village : Devda and the wife of the accused Prabhaben was serving as Manager in Midday Meal Centre in the said school. It is alleged in the complaint that at the end of the month, for certifying the numbers of the students, who took the benefit of the scheme (Midday Meal), the signature of the Manager was taken in the register. It is alleged that as per the ratio of students, the salary was given to the Manager and for that, the accused demanded Rs.100/- as illegal gratification from the Manager who was serving there. It is alleged that the complainant, however, was not willing to pay such amount and hence, the complainant lodged complaint against the accused – respondents for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1947 before the A.C.B Office, Junagadh on 11.08.1989.
[3] Thereafter, the concerned officer, after completing the necessary procedure arranged the trap. The raid was carried out and the respondent accused was caught red-handed. After completion of investigation, the charge-sheet has been filed. Thereafter, the charge was framed against the respondent – accused. The respondent – accused pleaded not guilty to the charge and claimed to be tried.
[4] To prove the case against the accused, the prosecution has examined the witnesses and relied upon certain documents. At the end of trial, after recording the statements of the respondents – accused, under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge vide the impugned Judgment and order, has acquitted the respondent – accused from the charges levelled against him.
[5] Being aggrieved and dissatisfied with the Judgment and order passed by the Special Judge the appellant – State has preferred the present Appeal.
[6] Heard Ms.Jirga Jhaveri, learned APP for the appellant and Mr.H.
M. Prachchhak, learned advocate for the respondent.
[7] Learned APP has contended that the learned Judge has given undue importance to the minor contradictions in the evidence of the complainant forgetting that the FIR was lodged on 11.08.1989, while the complainant gave his deposition on 15.10.1997 i.e. after about eight years. She has contended that there are other evidence connecting the accused with the crime. Hence, there is some contradictions between what he stated in the FIR and his say after eight years before the Court. She has contended that the learned Judge has erred in holding that though the evidence of panch is reliable but as there are discrepancies in the evidence of the complainant only on the evidence of panch the accused could not be held guilty. She has contended that the complainant, panch witnesses and other witnesses have supported the case of the prosecution. She has contended that so far as the evidence of panch witnesses is concerned, the prosecution has proved the demand and acceptance and therefore the learned Special Judge has wrongly observed that the prosecution has not proved the demand and acceptance. She has argued that as per deposition of the P.W.2, there was some monetary transaction with the accused and that cannot be considered as probable defence. She has contended that the illegal gratification is recovered from the possession of the accused and it is proved by the prosecution beyond reasonable doubt. She has contended that the prosecution has proved its case beyond reasonable doubt and the judgment and order of the Special Judge is required to be quashed and set aside. It has been contended by the learned APP that the Judgment and order of the Special Judge is against the provisions of law; the Special Judge has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the prosecution has proved all the 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.
[8] Learned advocate for the respondent has supported the judgment and order of the trial Court and contended that looking to the facts of the case the learned Judge has rightly not believed the case of the prosecution and, therefore, no interference may be called for. He has contended that there are material contradictions which are already proved from the oral version of the Investigating Officer. He has contended that the conduct of the complainant has created some doubt. He has contended that in the case of corruption, demand and acceptance is required to be proved beyond reasonable doubt. He has contended that when demand, recovery and acceptance is not proved by the prosecution, the learned Judge has not committed any error in acquitting the respondent from the charges levelled against him. He has therefore prayed that the present appeal deserves to be dismissed and the impugned judgment and order deserves to be confirmed.
[9] 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 Special Judge 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 & Anr, reported in (2006) 6 SCC, 39, 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:
“54. 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.”
[10] Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & 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:
“16. 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.”
[11] It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, 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, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) 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.”
[12] 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.
[13] I have gone through the judgment and order passed by the Special Judge. I have also perused the oral as well as documentary evidence led before the Special Judge and also considered the submissions made by learned advocate for the respective parties. Looking to the facts and circumstances of the case, three ingredients i.e demand, acceptance and recovery are completely lacking in the present case. So far as the demand, acceptance and recovery are concerned, the panch witness who is a public servant, examined by the prosecution, has disclosed before the learned Judge that it is true that no demand is made by the respondent in his presence. It also appears that the evidence of the complainant and the panch witnesses are contradictory about the place where the first demand was made. Looking to the evidence, in present case, when the demand is not proved and recovery is also not proved, then the learned Judge has not committed any mistake in not believing the case of the prosecution. It appears that the register of the payment is material documentary evidence in the case and looking to the facts of the case, it is difficult to establish that respondent had made any demand to sign in the Register. In the cross-examination of the complainant, he has deposed that he had asked the accused to sign the register. That conduct of the complainant creates doubt. It is clearly appears that at the time of making the signature, no demand was made by the accused for illegal gratification. I have perused further cross-examination of the complainant and from the cross- examination of the wife of the complainant, it appears that there was some transaction of money between them. Looking to the facts and circumstances and evidence on record, I am of the opinion that the learned Special Judge after appreciating the oral as well as documentary evidence has rightly acquitted the respondent of the charges levelled against him. The learned Special Judge, has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The learned Special Judge has also found that there are serious lacunae in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the Special Judge.
[14] Thus, the appellant could not bring home the charge against the respondent – accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent – accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[15] Learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Special Judge is vitiated by some manifest illegality or that the decision is perverse or that the Special Judge has ignored the material evidence on record.
[16] In above view of the matter, I am of the considered opinion that the Special Judge was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the Special Judge are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[17] 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 deserves to be dismissed.
[18] In view of above the Appeal is dismissed. The judgment and order of dated 24.12.1997 passed by the learned Special Judge, Porbandar, in Special Criminal Case No.3 of 1996 acquitting the respondent – accused of the offences charged against him is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the Special Judge.
[ Z. K. SAIYED, J. ] vijay