High Court

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.636 OF 20231Meena Sukhadev Bakal,Age 38 yrs., Occ. Service,R/o Snehnagar, Police Colony,Nanded, Tq. & Dist. Nanded. 2Kulbhushan Prabhakar Bavaskar,Age 42 yrs., Occ. Business,Applicant Nos.1 and 2 are originalR/o H. No. D-31, Sankul,Near MIT High School, N-4, CIDCO,Aurangabad. … Applicants… Versus …1The State of Maharashtra2Khwaja Magdum Shaikh,Age 41 yrs., Occ. Electrician,R/o Dastagir Galli, Ahmedpur, Tq. Ahmedpur, Dist. Latur. … Respondents...Mrs. Rashmi S. Kulkarni and Mrs. Namita P. Thole, Advocates for applicantsMr. A.R. Kale, APP for respondent No.1Mr. R.V. Dasalkar, Advocate (appointed) for respondent No.2...CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. 2Cri.Appln_636_2023RESERVED ON :01st JULY, 2025PRONOUNCED ON :07th AUGUST, 2025ORDER : ( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed under Section 482 of the Codeof Criminal Procedure, 1973 initially for quashment of First InformationReport vide Crime No.355/2022 dated 21.11.2022 registered with PoliceStation, Mukhed, Tq. Mukhed, Dist. Nanded, for the offence punishableunder Section 7-A of the Prevention of Corruption Act, 1988 and later on byway of amendment for quashing the proceedings in Special Case No.10/2024pending before learned Additional Special Judge, under PC Act, Mukhed,Dist. Nanded. 2Heard learned Advocate Mrs. Rashmi S. Kulkarni for applicants,learned APP Mr. A.R. Kale for respondent No.1 and learned appointedAdvocate Mr. R.V. Dasalkar for respondent No.2. 3Learned Advocate for applicants submits that applicant No.1 is aPolice Officer, who was working as Police Inspector in Anti Corruption BureauClass-1, Nanded at the relevant time and applicant No.2 is her husband.Respondent No.2 had approached Mukhed Police Station and informed thathis brother Shaikh Mehraj is doing the work of preparing files etc. outside the 3Cri.Appln_636_2023Tahsil Office, Kandhar. Mehraj has received a phone call from ACB office,Nanded on 15.11.2022. The person who was speaking to him was a lady,who disclosed to him that ACB office has received a complaint against himand invited her to the office. The informant – complainant states that as hisbrother told the said fact to him, he gave a phone call around 2.00 p.m. onthe said phone number and asked as to whether lady officer is in the officeand he also disclosed that he is brother of Mehraj. The lady officer told himthat she is there in the office til 8.00 p.m. and he should come alone. After awhile he received phone call from another number and the male person toldthat he should not go to ACB office, Nanded, but come to Jamb. Informantsays that he went to Jamb around 7.30 p.m., however, did not meet anybody,but went to Nanded. He tried to contact the lady Police Officer, who receivedthe phone, but did not speak anything. On 16.11.2022 he received phonecall having called id as ‘PA Sayyad Sir, Mumbai’. He was then called toShivaji Chowk, Udgir. Informant went there and met that person, whodisclosed his name as Sayyad. He showed the complaint application given byMehraj, wherein he had made complaint that Tahsildar and Talathi, Kandharare taking bribe of Rs.10,000/- for making signatures. Said Sayyad told thatfor sanction a positive report he should give amount of Rs.1,00,000/- to thelady Police Officer. Upon the compromise the said amount was fixed atRs.70,000/-. Said Sayyad immediately made a phone call to lady Police 4Cri.Appln_636_2023Officer and in the presence of informant told that the talks have been done.Thereafter, the informant went home. He had no desire to give the illegalgratification and, therefore, lodged the report with Aurangabad ACB office. 4It is the prosecution story that in order to verify the demand thetrap was laid by arranging panchas and it is stated that said Sayyad made thedemand of Rs.70,000/- and it was then decided that the amount ofRs.60,000/- would be given on 20.11.2022. The trap was then laid and saidSayyad Ismail accepted the amount. 5Learned Advocate for applicants submits that applicant No.1 isaccepting that the office had received online complaint against Talathi,Kandhar or whole Tahsil of Kandhar on 08.09.2022 at 12.49 p.m. She hadsought guidance from the superior as complainant’s name as it was appearingwas Tahsil, Kandhar but the contact number was given. On 23.09.2022Superintendent, ACB, Nanded Division gave her guidance to see whether thecomplainant is in existence. On 11.10.2022 after making preliminary inquiryapplicant No.1 had given report to Director General, ACB, Mumbai statingthat complaint application appears to have been given anonymouslyintentionally with mala fide intention. The mobile number is wrong and,therefore, the said application should be treated as closed. However, againon 17.09.2022 another complaint was given by anonymous person by stating 5Cri.Appln_636_2023himself as ‘XYZ’ and reasons for the bribe was stated to be that, “Theattached number is of pappu dalal who are attachment of Talathi and themediator takes thousands of rupees for documents, in Kandhar Tahsil notonly Talathi everyone is correct.” Applicant No.1 had then receiveddirections from her superior on 27.09.2022 for considering both theapplications together. Some lacunas were found in the inquiry which wasthen informed by the superior and applicant No.1 has made corrections in thesame. Again on 20.09.2022 Pappu Shaikh had given complaint. ApplicantNo.1 was making inquiry regarding same and it took her time, however, inthat connection only she had given a call to the number which turned out tobe that of Mehraj and Mehraj says that his name is Mehraj @ Pappu.Interestingly, he has not taken part in the latter process, but the complainantwho is his brother has taken the part. Now, there is nothing to show thatpresent applicants had ever authorized any such person by name Sayyad todemand amount for and on behalf of them. Certain data is stated to havebeen collected in respect of mobile numbers. However, further details toinvolve the applicants are not there. Applicant No.2 had not played any rolein abetment. He has been involved with ulterior motive. The role tried to beattributed to him is that he had received phone call of other accused personand it is then stated that at that time applicant No.1 was on leave. Section12 of the Prevention of Corruption Act will not get attracted. The complaint 6Cri.Appln_636_2023allegedly made by Mehraj was forwarded by applicant No.2 to co-accusedSayyad only to get it translated in Marathi, as applicant No.1 is not muchconversant with Marathi. For the acts done by said Sayyad applicants cannotbe held responsible. When there is no evidence to connect applicants withthe crime, it would be an abuse of process of law to ask them to face the trial.6Per contra, learned APP for respondent No.1 and learnedAdvocate Mr. R.V. Dasalkar appointed to represent cause of respondent No.2strongly opposed the application. They have also taken us through the entirecharge sheet and submitted that there is sufficient material collected to showthe conversations that had taken place between co-accused Sayyad andpresent applicants. The transcript of conversations between informant andco-accused Sayyad, Mehraj and co-accused Sayyad, co-accused Sayyad andpresent applicants are produced. It appears that Sayyad, who is stated to beworking as PA in Mantralaya, Mumbai was acting for present applicants. Theinvolvement of applicant No.2 is also clear. He has also given the nod to thebribe amount. The CDR, SDR and CAF of mobile numbers have beencollected. Therefore, this is not a fit case where the Court should exercise itspowers under Section 482 of the Code of Criminal Procedure. 7The facts under which the complaint came to be filed and thenhow First Information Report has been registered has already been narrated 7Cri.Appln_636_2023to the extent that applicant No.1 had given phone call to Mehraj on15.11.2022. She admits the same and even in writing there is evidence tothat effect. According to her, she was making preliminary inquiry whenanonymous complaints were received. However, it is to be seen that thosedates are from September 8, 2022 onwards and on 10.11.2022 she had givenone letter to Director General, ACB, Mumbai to treat the complaints dated28.09.2022 and 06.10.2022 as filed. Then the question that requires to begone into is, why she should then give a phone call on 15.11.2022 toMehraj ? There is a letter on record given by Superintendent, ACB, NandedDivision dated 11.11.2022 to Deputy Superintendent of Police, Nandedstating that the preliminary inquiry in respect of complaint application dated27.09.2022 is still pending and he had called then the report as early aspossible. One document has been seized which has too many corrections andappears to have been singed by applicant No.1, wherein it is stated that saidcomplaint applications should be treated as ‘closed’, and then it is stated thaton 14.11.2022 the corrected report was sent on 14.11.2022 to DirectorGeneral, ACB, Mumbai. Still the question remains, why there should be acall by applicant No.1 to Mehraj on 15.11.2022 i.e. on the next day of herown communication dated 14.11.2022. 8Why the complainant/informant was taking active part than 8Cri.Appln_636_2023Mehraj would be explained by him and Mehraj and that cannot be a groundfor quashing the proceedings. As regards the communication betweeninformant and co-accused Sayyad, there is evidence in the form ofconversation recorded on the voice recorder, to which Panch No.1 appears tobe the witness, thereafter the raid was conducted and the amount wasaccepted by co-accused Sayyad. There is a panchnama executed to thatextent. Thereafter, when co-accused Sayyad was arrested and his mobilephone has been seized, there appears to be the conversation recorded in thesame and conversations are as the data reveals is between informant and co-accused. This is also seen from the mobile phone of informant. The screenshots of the conversation slots or record have also been taken. There are alsoconversations recorded between Mehraj and co-accused Sayyad. There isalso evidence in the form of WhatsApp chats and it is stated that the numberof applicant No.1 has been saved in the name ‘Boss’. Further, as regardsapplicant No.2 is concerned, there is conversation i.e. in the form ofrecording. Therefore, when such evidence is there, this will not be a fit casewhere we should exercise our powers under Section 482 of the Code ofCriminal Procedure. Hence, following order. ORDERi)Criminal Application stands rejected. 9Cri.Appln_636_2023ii)Fees of the appointed Advocate is quantified at Rs.10,000/-(Rupees Ten Thousand only), to be paid by High Court Legal Services SubCommittee, Aurangabad. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd