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CR.MA/16096/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 16096 of 2010
In
CRIMINAL
APPEAL No. 2253 of 2010
=====================================
STATE
OF GUJARAT - Applicant(s)
Versus
SHAILESHBHAI
HARJIVANBHAI RATHOD - Respondent(s)
=====================================
Appearance
:
MR JK SHAH, APP for
Applicant(s) : 1,
None for Respondent(s) :
1,
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE P. P. BHATT
Date
: 27/04/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1.0 Present
application is filed by the State of Gujarat through learned Public
Prosecutor, High Court of Gujarat, Ahmedabad seeking leave to appeal
against judgment and order dated
30th September 2010,
passed by the learned Special Judge, Amreli in Special (ACB) Case No.
57 of 2003, whereby, the learned Judge was pleased to record
acquittal under Section 235(1) of the Code of Criminal Procedure in
the matter of Prevention of Corruption Act, 1988, for the offences
punishable under Sections 7, 13(1)(d), 13(2).
2.0 The
learned Additional Public Prosecutor Mr. Shah vehemently submitted
that the learned Judge has committed an error in recording acquittal
despite the prosecution placing on record oral as well documentary
evidence in support of its case. The learned Additional Public
Prosecutor invited the attention of the Court to the grounds set out
in Appeal Memo, on which, the judgment and order of acquittal is
assailed.
3.0 On
perusal of the judgment and order, it is noticed that in Sub-Para 2.1
of Para 21, the learned Judge has recorded that, ‘the witness of
the prosecution – Hanubhai Mulubhai, exh. 32 has deposed that
the accused and the complainant had a monetary transaction and
accused had lent money to the complainant and this fact was within
his knowledge’. The learned Judge has rightly appreciated this
fact and has observed that, ‘if there is evidence to the effect
that the accused and the complainant had monetary transaction of
lending money and complainant returned that money to the accused, if
the amount is recovered from the accused, it cannot be
presumed that, that amount was offered as illegal gratification’.
Besides, the leaned Judge has also appreciated in Sub-Para 4 of Para
21 that, ‘there is discrepancy in the evidence about the place at
which the amount was recovered from the accused’, and this created
suspicion in the mind of the learned Judge.
3.1 The
learned Judge has also mentioned in Para 22 that, ‘the prosecution
could not examine the complainant, as he had expired’, this might
have hampered the case of the prosecution but then the Court has to
adjudicate a matter on the basis of the evidence placed before it’.
4.0 Taking
into consideration the totality of the evidence led before the
learned Judge and the relevant discussion on the point, this Court is
of the opinion that learned Judge has not committed any error in
recording acquittal. Hence, this application for leave to appeal
fails. The same is rejected.
[
Ravi R. Tripathi, J. ]
[
P. P. Bhatt, J. ]
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