Gujarat High Court
State Of Gujarat vs Samsuddin Husainmiya Shaikh on 6 June, 2025
NEUTRAL CITATION
R/CR.A/2979/2008 JUDGMENT DATED: 06/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2979 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
SAMSUDDIN HUSAINMIYA SHAIKH & ANR.
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Appearance:
MR MEET THAKKAR, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/06/2025
ORAL JUDGMENT
1. The present acquittal appeal has been filed by the State
under Section-378 of the Code of Criminal Procedure, 1973,
challenging the judgment and order dated 30.08.2008 passed
by learned Additional Sessions Judge, Fast Track Court No.3,
Ahmedabad (hereinafter referred to as “the Trial Court”) in
Special ACB Case No.01 of 2001. By way of the impugned
judgment and order, the Accused have been acquitted of all
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the charges levelled against them under Sections-7, 12, 13(1)
(d) and 13(2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as “Corruption Act“).
2. The short facts emerging from the record, reads as
under:-
2.1. The accused no.1 herein was serving as a Deputy
Mamlatdar, and accused no.2 herein was serving as a Clerk,
Civil Supply Department. Mother of complainant Shri
Mansukhbhai Shankarlal Raval having license for selling and
stocking about 3000 to 4000 liters kerosene. However, the
business was run by the complainant due to old-age of his
mother, following the rules and regulations.
2.2. It is the case of the prosecution that every month a
meeting calling all license holder held by the accused persons,
and after meeting, the accused persons demand money from
all the license holders for the work which was coming under
the duty of the accused persons and if any license holders did
not pay money, the accused harassed them. Hence, the
complainant used to pay money to the accused persons every
month since 1984. Gradually, the accused persons increased
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the amount and the complainant was paying of Rs.300/- to the
accused no.1, and Rs.100/- to the accused no.2. The
complainant did not want to pay bribe amount to accused
persons, so, he approached Anti Corruption Bureau (ACB),
Ahmedabad and filed a complaint with Police Inspector, ACB,
Ahmedabad.
2.3. After verifying the correctness of the said complaint, the
Police Inspector called two panchas and explained about the
trap which will be done by him. For the purpose of trap, the
Police Inspector, ACB collected Rs.500/-, five notes each of
Rs.100/-, for giving the same in the trap when the demand will
be made.
2.4. Thereafter, all of them were explained the use and
characteristics of Antharacene powder and experiment of
Antharacene powder was made. Thereafter, notes of Rs.500/-
treated with the Antharacene powder were put in the left-
hand side pocket of the shirt of complainant with the
instruction that unless and until demanded, he should not
touch the currency notes. Panch witness no.1 was instructed
to accompany the complainant and watch, hear and see what
transpires between the complainant and the accused. The
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complainant was instructed that if accused asks any amount,
then only he was to pay and when the notes were accepted he
must give a signal to the members of raiding party.
Accordingly, first part of the Panchnama was prepared in
presence of panchas.
2.5. Thereafter, panchas, complainant alongwith the
members of raiding party proceeded towards the Mamlatdar
Office. The complainant and Panch no.1 went to the
Mamlatdar office via Viramgam Bus stand to Golvadi Darwaja
by walking, and Panch No.2 and raiding staff were also went
the Mamlatdar office and sitting outside in the gallery.
Thereafter, the complainant went into the cabin and asked to
the accused no.1 ‘where should he put the money.’ The
accused no.1 asked him to put it into the drawer of his table.
Hence, the complainant took out tainted currency notes of
Rs.300/-, each of Rs.100/- denomination, smeared with
Antharacene powder from the left side pocket of his shirt and
put the same into the drawer of table of the accused, and
thereafter, the complainant gave Rs.100/- to the accused no.1
who accepted the same with his right hand and put into the
left pocket of his shirt.
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2.6. Thereafter, the complainant gave a fixed signal to the
raiding party and upon getting the signal, the raiding party
came to scene of the incident. The bribe amount of currency
notes which were smeared with Antharacene powder were
recovered from the conscious possession of the accused and
necessary procedures were followed. The raiding party
obtained signatures of the panch witnesses and issued seizure
memo to the accused respondents.
2.7. After due completion of the investigation, the
Investigating Officer arrested the accused persons, filed
charge-sheet against the them before the Special Court,
Ahmedabad and upon production of the accused persons and
after verifying the receipt of all the necessary police papers by
the accused persons, the charges were framed against the
accused for the offence punishable under Sections 7, 12, 13
(2) and 13(1) (d) of the Prevention of Corruption Act, 1988.
2.8. The accused persons were also explained and read over
charges to which they denied their involvement in the offence
and pleaded to be tried. Thereafter, the case was transferred
to the Trial Court for its final disposal. Upon filing of closing
pursis, in further statement under Section 313 of the Code of
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Criminal Procedure also, the accused denied the charges in
toto.
3. The prosecution led following oral and documentary
evidences in support of it’s case and to bring home the
charges against Accused.
Oral Evidences of Prosecution
Sr. No. Name and Particulars Exh.
1. Deposition of Mansukhlal Shankarlal 23
Raval
2. Deposition of panch witness Pravibhai 37
Chandubhai
3. Deposition of Police Inspector 48
Shankarbhai Khatubhai
4. Deposition of approver Katikithal 62
Shrinivas
5. Deposition of Police Inspector Examiner 66
Kerman Khursid Maisurwala
Documentary Evidences
Sr.No. Document Particulars Exh.
1. Original Complaint 24
2. Panchnama 38
3. Office copy of receipt of items taken in 42
custody from accused no.1
4. Office copy of receipt of items taken in 44
custody from complainant
5. Office copy of receipt of items taken in 46
custody from accused no.2
6. Permission letter to prosecute against 63
accused
3.1. After conducting the Trial and appreciating the evidence
on record, the Trial Court has found that prosecution has
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failed to establish the case and not able to prove the charges
beyond doubt, thereby acquitted the Accused from all the
charges levelled against them.
4. Heard learned Additional Public Prosecutor Mr. Meet
Thakkar for Appellant – State.
4.1. Learned APP has taken me through various oral as well
as documentary evidence, which are on record of the case. I
have also independently examined and re-appreciated
evidence of witnesses examined by prosecution.
4.2. Learned APP would submit that the findings of acquittal
are contrary to law and evidence on record and the findings
recorded by the Trial Court are erroneous and based on
irrelevant material.
4.3. Learned APP would submit that prosecution has
established the guilt of accused as complainant and Panch
witnesses have clearly deposed that accused had demanded
and accepted bribe from complainant during the course of
trap thereby, Trial Court required to have convicted accused.
4.4. Learned APP would further submit that since inception,
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complainant has maintained the fact that there was a rampant
corruption going on in the office of the accused and every
month all license holders of kerosene were required to pay
bribe money to the officer including accused of the concerned
Mamlatdar Office through Precedent of their License Holder
Association.
4.5. It is submitted that once such serious allegation of
demanding and accepting the bribe are proved on record,
Trial Court ought not to have drawn undue inference and
unwarranted observation contrary to record. Learned APP
would further submit that merely because complainant was
not a license holder, but, his mother was undisputedly license
holder of selling kerosene, his evidence cannot be brush aside
on such aspect of the matter.
4.6. So, making the aforesaid submissions, learned APP
would request this Court to allow the present appeal.
5. Before dealing with merit of the appeal, at this stage, I
would first like to remind myself the position of law
propounded by Hon’ble Supreme Court of India in its various
decisions, whereby it has laid down several criteria while
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deciding acquittal appeal especially in Anti-Corruption cases.
5.1. It would be apt to refer and rely upon the decision of the
Constitutional Bench of the Hon’ble Supreme Court of India in
a case of Neeraj Dutta V/s. State (Govt. of N.C.T. of
Delhi) reported in (2023) 4 SCC 731 wherein it held as
under.
“88.What emerges from the aforesaid discussion is
summarised as under:
88.1 (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.
88.2 (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.
88.3 (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.
88.4 (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
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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 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.
88.5 (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
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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.
88.6 (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.
88.7 (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 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.
88.8 (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.”
(emphasis supplied)”
5.2. It would be also appropriate to refer and rely upon the
decision of Hon’ble Supreme Court of India in the case of
Mallappa and Ors. V/s. State of Karnataka reported in
(2024) 3 SCC 544 wherein scope of acquittal is succinctly
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discussed and elaborated held thus:-
“24. We may firstly discuss the position of law
regarding the scope of intervention in a criminal appeal.
For, that is the foundation of this challenge. It is the
cardinal principle of criminal jurisprudence that there is
a presumption of innocence in favour of the Accused,
unless proven guilty. The presumption continues at all
stages of the trial and finally culminates into a fact
when the case ends in acquittal. The presumption of
innocence gets concretized when the case ends in
acquittal. It is so because once the Trial Court, on
appreciation of the evidence on record, finds that the
Accused was not guilty, the presumption gets
strengthened and a higher threshold is expected to
rebut the same in appeal.”
“25. No doubt, an order of acquittal is open to appeal
and there is no quarrel about that. It is also beyond
doubt that in the exercise of appellate powers, there is
no inhibition on the High Court to re-appreciate or re-
visit the evidence on record. However, the power of the
High Court to re-appreciate the evidence is a qualified
power, especially when the order under challenge is of
acquittal. The first and foremost question to be asked is
whether the Trial Court thoroughly appreciated the
evidence on record and gave due consideration to all
material pieces of evidence. The second point for
consideration is whether the finding of the Trial Court is
illegal or affected by an error of law or fact. If not, the
third consideration is whether the view taken by the
Trial Court is a fairly possible view. A decision of
acquittal is not meant to be reversed on a mere
difference of opinion. What is required is an illegality or
perversity.”
“26. It may be noted that the possibility of two views in
a criminal case is not an extraordinary phenomenon.
The ‘two-views theory’ has been judicially recognized by
the Courts and it comes into play when the appreciation
of evidence results into two equally plausible views.
However, the controversy is to be resolved in favour ofPage 12 of 20
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the Accused. For, the very existence of an equally
plausible view in favour of innocence of the Accused is
in itself a reasonable doubt in the case of the
prosecution. Moreover, it reinforces the presumption of
innocence. And therefore, when two views are possible,
following the one in favour of innocence of the Accused
is the safest course of action. Furthermore, it is also
settled that if the view of the Trial Court, in a case of
acquittal, is a plausible view, it is not open for the High
Court to convict the Accused by reappreciating the
evidence. If such a course is permissible, it would make
it practically impossible to settle the rights and
liabilities in the eyes of law. In Selvaraj v. State of
Karnataka, 2015 10 SCC 230“13. Considering the reasons given by the trial court
and on appraisal of the evidence, in our considered
view, the view taken by the trial court was a possible
one. Thus, the High Court should not have interfered
with the judgment of acquittal. This Court in Jagan M.
Seshadri v. State of T.N., 2002 9 SCC 639 has laid down
that as the appreciation of evidence made by the trial
court while recording the acquittal is a reasonable view,
it is not permissible to interfere in appeal. The duty of
the High Court while reversing the acquittal has been
dealt with by this Court, thus:
“9. We are constrained to observe that the High
Court was dealing with an appeal against acquittal.
It was required to deal with various grounds on
which acquittal had been based and to dispel those
grounds. It has not done so. Salutary principles
while dealing with appeal against acquittal have
been overlooked by the High Court. If the
appreciation of evidence by the trial court did not
suffer from any flaw, as indeed none has been
pointed out in the impugned judgment, the order of
acquittal could not have been set aside. The view
taken by the learned trial court was a reasonable
view and even if by any stretch of imagination, it
could be said that another view was possible, that
was not a ground sound enough to set aside an
order of acquittal.””
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(emphasis supplied)
In Sanjeev v. State of H.P., 2022 6 SCC 294 the Hon’ble
Supreme Court analyzed the relevant decisions and
summarized the approach of the appellate Court while
deciding an appeal from the order of acquittal. It
observed thus:
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal,
the reasons which had weighed with the trial court
in acquitting the Accused must be dealt with, in
case the appellate court is of the view that the
acquittal rendered by the trial court deserves to be
upturned (see Vijay Mohan Singh v. State of
Karnataka, 2019 5 SCC 436 Anwar Ali v. State of
H.P., 2020 10 SCC 166)7.2. With an order of acquittal by the trial court,
the normal presumption of innocence in a criminal
matter gets reinforced (see Atley v. State of U.P.,
1955 AIR(SC) 807)7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow
in interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala, 1998 5 SCC 412)”
(emphasis supplied)”
5.3. The law on the issue germane in the present appeal has
also been succinctly discussed by the Hon’ble Supreme Court
of India in its recent judgment in the case of State of
Lokayuktha Police, Devanagere V/s. C. B. Nagaraj
(supra), wherein held as under:
“25. It is pertinent to note that till 05.02.2007, when the
Respondent had conducted the physical/spot inspection,Page 14 of 20
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there is not even a whisper of there being any demand
of bribe. Moreover, when the Complainant went back to
the Respondent’s office at 5:30 PM with the money, the
prosecution case itself as per the deposition of its
witnesses makes it clear that the Respondent had
informed the Complainant that he had already
forwarded the concerned file. Thus, if the same is
accepted, there was no occasion for the Complainant to
go ahead with paying the amount, which he claims to be
in the nature of bribe demanded by the Respondent,
after the work for which the bribe was purportedly
sought, had already been done. The observation of
the High Court to this extent is correct that just
because money changed hands, in cases like the
present, it cannot be ipso facto presumed that the
same was pursuant to a demand, for the law
requires that for conviction under the Act, an
entire chain – beginning from demand,
acceptance, and recovery has to be completed. In
the case at hand, when the initial demand itself is
suspicious, even if the two other components – of
payment and recovery can be held to have been
proved, the chain would not be complete. A penal
law has to be strictly construed [Md. Rahim Ali v
State of Assam, 2024 SCC OnLine SC 1695 @
Paragraph 45 and Jay Kishan v State of U.P., 2025
SCC OnLine SC 296 @ Paragraph 24]. While we will
advert to the presumption under Section 20 of the Act
hereinafter, there is no cavil that while a reverse onus
under specific statute can be placed on an Accused,
even then, there cannot be a presumption which casts
an uncalled for onus on the Accused. Chandrasha
(supra) would not apply as demand has not been
proven. In Paritala Sudhakar v State of Telangana, 2025
SCC OnLine SC 1072, it was stated thus:
21. As far as the submission of the State is that the
presumption under Section 20 of the Act, as it then
was, would operate against the Appellant is
concerned, our analysis supra would indicate that the
factum of demand, in the backdrop of an element of
animus between the Appellant and complainant, is
not proved. In such circumstances, the presumptionPage 15 of 20
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under Section 20 of the Act would not militate
against the Appellant, in terms of the pronouncement
in Om Parkash v. State of Haryana, (2006) 2 SCC
250:
22. In view of the aforementioned discrepancies in
the prosecution case, we are of the opinion that the
defence story set up by the appellant cannot be said
to be wholly improbable. Furthermore, it is not a
case where the burden of proof was on the Accused
in terms of Section 20 of the Act. Even otherwise,
where demand has not been proved, Section 20
will also have no application. (Union of India v.
Purnandu Biswas [(2005) 12 SCC 576: (2005) 8
Scale 246] and T. Subramanian v. State of T.N.
[(2006) 1 SCC 401: (2006) 1 Scale 116])”
5.4. Thus, it is now a well-settled legal position of law that a
heavy burden is cast upon the prosecution to prove that the
Accused persons have demanded and accepted the bribe, and
the same would have to be recovered from Accused. In a case
where any of these ingredients are missing, the charges
levelled against Accused under Section 7 read with Section 13
would not be attracted.
6. After reexamining and re-appreciating evidence on
record, following glaring facts emerge from evidence led by
prosecution need to be considered:-
i. It has been deposed and admitted by complainant in his
oral evidence that at the time of trap, when he along with
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Panch No.1 went inside office of the accused, he put bribe
money in the drawer of the table of the accused no.1 as other
persons were doing it. There is no whisper in his evidence
that at the time of such trap, accused no.1 has demanded any
money as bribe from him.
ii. So far as case of accused no.2 is concerned, complainant
has categorically admitted in his cross-examination that
Rs.100/- received by accused no.2 was as such required to be
paid to him as per the instruction given by his elder brother as
Rs.100/- was due by his elder brother to accused no.2.
iii. It has further not come on record that accused no.1 has
actually received any amount from complainant in presence of
panch witness (PW-2). The recovery of Rs.300/- from the
drawer of the accused no.1 as referred to hereinabove was
due to volunteer act on the part of the complainant to put
such money in the drawer of the accused no.1. Rs.100/-
recovered from the accused no.2 was an amount due and
payable by elder brother of the complainant which has come
on record through cross-examination of complainant.
iv. The evidence of panch witness examined by prosecution
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has also not thrown any more light in relation to demand and
acceptance of bribe money by accused. Furthermore,
complaint given by complainant was not recorded in presence
of Panchas. It appears from reading cross-examination of PW-
2 that even he stated anything different than what has been
stated in Panchnama, he might be subjected to departmental
proceeding. So, possibility of independentness of giving
evidence cannot be ruled out. Trial Court has correctly
observed that Panchas were ready to be a part of trap under
compulsion thereby their evidence may not be as independent
as to be accepted in trial of corruption cases.
v. The prosecution has not examined any other
independent witness like any other license holder as their
presence were confirmed by complainant in his evidence
when actual alleged demand and acceptance of bribe money
by accused. Even, no statement of President of Association
wherein, the mother of the complainant being member, was
recorded by Investigating Officer to confirm the fact about
any rampant corruption going on in the concerned Mamlatdar
Office.
7. Thus, in view of the aforesaid peculiar facts and
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NEUTRAL CITATION
R/CR.A/2979/2008 JUDGMENT DATED: 06/06/2025
undefined
circumstances of the present case, prosecution has failed to
prove beyond doubt that accused have demanded and
accepted the money from the complainant as per the charge
levelled against them. Once, prosecution has failed to prove
these basic ingredients in the case on hand, no fault can be
found with the Trial Court when it acquitted accused from
charge.
8. Hence, an overall assessment and examination of
evidence would suggest that the prosecution has egregiously
failed to prove the fact that Accused has demanded a bribe
thereby, failed to prove the charges levelled against the
Accused. So, after overall assessment of evidence and its re-
appreciation as well as reasons assigned by learned Trial
Court, I am in complete agreement with view taken by the
Trial Court having acquitted the Accused.
9. So, considering these set of evidence on record and in
light of the aforesaid decisions of the Hon’ble Supreme Court
as reproduced hereinabove, which deals with the law on
acquittal so also issue germane in the appeal, I am of the
opinion that no error has been committed by the Trial Court
while acquitting the respondent.
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NEUTRAL CITATION
R/CR.A/2979/2008 JUDGMENT DATED: 06/06/2025
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10. Consequently, the appeal is dismissed. Resultantly, the
impugned judgment and order of the trial court is hereby
confirmed. Bail bond, if any, shall stand cancelled. Record and
proceedings, if called for, be sent back to the concerned Trial
Court forthwith.
(MAULIK J.SHELAT,J)
Bhoomi
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