High Court
Legal Reasoning
{1} CRI APPEAL 304 OF 2006IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 304 OF 2006Syed Zulfequaroddin Syed BashiroddinAge: 41 years, Occu.: At present Nil,R/o. Dadarao Plot, Iqbal Nagar,Parbhani, District Parbhani.….Appellant (Original Accused)VersusThe State of Maharashtra…..Respondent …..Advocate for Appellant : Mr.S.P.ChapalgaonkarAPP for Respondent : Mrs.Uma S.Bhosale ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 24 JUNE, 2024 PRONOUNCED ON : 02 JULY, 2024 JUDGMENT :- 1. Judgment and order passed by the learned Special Judge,Parbhani dated 04-04-2006 in Special Case (ACB) No.1 of 2006,thereby convicting present appellant under Sections 7, 13(1)(d) readwith 13(2) of the Prevention of Corruption Act, is questioned byappellant by way of instant appeal. FACTS LEADING TO THE TRIAL 2. PW1 Balasaheb, complainant approached ACB and lodged {2} CRI APPEAL 304 OF 2006report alleging that accused, a clerk in the Tahsil Office, demandedRs.200/- for completing procedure of surety on account ofcomplainant’s involvement in Criminal Case No.282 of 2005 underSection 107 of the Code of Criminal Procedure. Accused finallyagreed to do the needful on payment of bribe of Rs.100/-. Ascomplainant was not willing to meet unlawful demand, he lodgedcomplaint. 3.On receipt of complaint, PW5 Jadhav (PI) summoned twoPanchas, introduced them to complainant, showed complaint to themand thereafter, trap was planned, panchanama was drawn, details ofthe tainted currency to be given were noted and complainant andone PW2 Mohammad were directed to carry tainted currency note tobe paid on demand to accused and on acceptance, relay necessarysignal to the raiding party.Accordingly, on 24-10-2005, PW1 Balasaheb, complainant andPW2 Mohammad, shadow pancha walked to the Tahsil Office.Accused demanded and accepted Rs.100/- and pocketed it.Complainant gave signal and raiding party apprehended accused,who was found in possession of tainted currency and therefore,complaint was lodged.
Legal Reasoning
{3} CRI APPEAL 304 OF 2006After accused was chargesheeted, he was tried before learnedSpecial Judge, Parbhani vide Special Case (ACB) No.1 of 2006. Trialculminated into conviction, resulting into filing of instant appeal. SUBMISSIONSOn behalf of appellant :4. Learned Counsel for the appellant would submit thatprosecution has failed to establish the case. That not onlycomplainant did not fully support prosecution, rather he gave selfcontradictory version on the point of actual amount demanded. Thateven PW2 Mohammad, independent pancha, who had allegedlyaccompanied complainant, has not supported prosecution.Therefore, entire case of prosecution has collapsed. That there wasmechanical sanction i.e. without application of mind. According tolearned Counsel, still learned trial Court recorded conviction byapplying evidence of PW3 Vithal, who was not party to theconversation of demand. Therefore, according to learned Counsel forappellant, there is erroneous approach both in appreciation ofevidence as well as in arriving to conclusion. That settled law hasnot been taken into account and therefore, learned Counsel prays to {4} CRI APPEAL 304 OF 2006set aside the impugned judgment by allowing the appeal. On behalf of State :5.Canvassing in favour of impugned judgment, learned APPsubmitted that illegal gratification of Rs.200/- was demanded byaccused. Finally, he agreed to accept Rs.100/-. That complaint wasreceived from PW1 Balasaheb and trap was arranged and planned.PW2 Mohammad and PW3 Vithal, who acted as panchas, areexamined in trial Court. Learned APP pointed out that though PW2Mohammad did not support prosecution case, PW1 complainant’stestimony finds corroboration from evidence of PW3 Vithal.Therefore, offence is complete and established. That there is propersanction and therefore, learned trial Court rightly held presentappellant guilty and so she prays to dismiss the appeal for want ofmerits. SUM AND SUBSTANCE OF PROSECUTION EVIDENCE 6.In support of its case, prosecution has adduced evidence of inall six witnesses. Sum and substance of their evidence is as under : PW1 Balasaheb Yeshwant Sawne is complainant. He testified {5} CRI APPEAL 304 OF 2006that as he was in need of surety, he was required to approach TahsilOffice. Accused was Incharge Clerk and he demanded Rs.200/- fortea alongwith Rs.20/- for xerox copies. That accused finallydemanded Rs.100/- but as he was not willing, he approached ACBand lodged report. ACB authorities obtained Rs.100/- fromcomplainant, arranged two Panchas and all of them were explainedthe procedure regarding trap. Accordingly, complainant and PW2Mohammad visited the office of accused and on his demand, gavehim Rs.100/-, which he pocketed apart from Rs.20/- towards xeroxand so he went out and gave signal to raiding party, who came andapprehended accused. PW2 Mohammad Sayeed Md.Wahidoddin, deposed that heacted as shadow pancha and on information and instruction of ACBOfficer, he accompanied complainant, but according to him, he didnot hear the conversation between complainant and accused. Hefurther deposed that complainant forcibly thrust amount in thepocket of accused. Hence, finding him not supporting, he wasdeclared hostile and cross-examined by APP.PW3 Vithal Tukaram Chavan, second pancha, stated that heand PW2 Mohammad worked in the same office. They were called to {6} CRI APPEAL 304 OF 2006ACB Office, introduced to complainant and made aware of thecomplaint and proposed trap. This witness stated that he was withthe raiding party when complainant and PW2 Mohammad went inthe Tahsil Office. According to him, after complainant gave signal,they entered the Office and complainant told that accused demandedand accepted money and this witness was directed to remove thecurrency from pocket of accused and he did as directed and foundRs.100/- currency note and accused to be arrested. PW4 Madhukar Sukhdev Choudhari is the SanctioningAuthority and according to him, he studied the papers received fromACB and granted sanction.PW5 Prakash Daulat Jadhav (PI) and PW6 Pandit GovardhanKendre ( Dy.S.P.) are Investigating Officers. ANALYSIS 7. On re-appreciating the evidence, it is emerging from testimonyof PW1 Balasaheb, complainant that he was required to approachTahsil authority for surety papers to be furnished in Criminal CaseNo.282 of 2005 under Section 107 of the Code of Criminal {7} CRI APPEAL 304 OF 2006Procedure initiated against him. It is his testimony that for saidwork, present appellant, a Clerk, demanded Rs.200/- for the work.Finally, he agreed to accept Rs.100/- and therefore, complainantlodged report with ACB to arrange plan. In cross-examination his above testimony has not beendisturbed except the fact that there was demand of Rs.200/-, but inreport he conveyed about demand of Rs.100/-. As to when andwhere amount was reduced to Rs.100/-, there is no clarification,because according to him, after initial demand of Rs.200/- on20-10-2005, he had already left Tahsil Office. In cross-examination,he answered that he never produced surety papers in theproceedings. Therefore, on what count amount was paid, is notexplained by the prosecution. 8.It is fairly settled position that complainant being interestedwitness, there has to be sufficient corroboration from independentcorner. Here, shadow pancha PW2 Mohammad, who allegedlyaccompanied complainant to the office of accused, stated that hecould not hear conversation between complainant and accused andthey both went out of the office. He further stated that complainantforcibly thrust money in the pocket of accused. Therefore, the main {8} CRI APPEAL 304 OF 2006pancha PW2 Mohammad, who had accompanied complainant andwas expected to be party to the alleged conversation of demandbetween complainant and accused, has retracted. 9.Learned trial Court seems to have relied and taken recourse tothe testimony of PW3 Vithal, second pancha to reach to conclusionand finding, but apparently said panch was waiting outside withraiding party and he was not present during actual conversationbetween complainant and accused regarding demand. Thoughamount has been recovered from accused, PW2 Mohammad hadalready deposed that complainant had thrusted the amount in thepocket of accused. 10.It is fairly settled that demand has to be cogently proved. Merepossession of currency is not sufficient to record guilt. Here case ofprosecution was rendered doubtful because there was nocorroboration to the testimony of complainant on the point of actualdemand. CONCLUSION11.Perused the judgment under challenge. Though learned trialJudge has accepted that PW2 Mohammad has not supported {9} CRI APPEAL 304 OF 2006prosecution case, only by relying on testimony of PW3 Vithal, whowas not party to the actual conversation of demand, conviction hasbeen recorded. Even trial Court, in paragraph 35, has observed thatthere is some variance in the quantum of amount, which is alleged tobe demanded and which is reported in the complaint, but still,prosecution version is accepted that subsequently demand was ofRs.100/- and therefore, said amount was reflected in the complaint.Lastly, trial Court has held that accused has not based his defence onhis immediate statement made before Trap officer. Here learned trialCourt seems to have deviated from settled and cardinal principle thatprosecution has to discharge the burden of proving the guilt beyondreasonable doubt and accused is entitled to remain silent. Even before applying presumption available under Section 20of the Prevention of Corruption Act, learned trial Court did notconsider that prosecution has not proved the foundational facts ordischarged the initial burden of proving demand and therefore, thereis erroneous approach in employing provisions of Section 20 of thePrevention of Corruption Act. For all above reasons, finding it a caseof benefit of doubt, the impugned judgment requires to be interferedwith. Accordingly, I proceed to pass following order. {10} CRI APPEAL 304 OF 2006ORDERI)Criminal Appeal No.304 of 2006 is allowed.II)The conviction awarded to appellant Syed Zulfequaroddins/o Syed Bashiroddin in Special Case (ACB) No.1 of 2006 bythe learned Special Judge, Parbhani on 04-04-2006 for theoffence punishable under Sections 7, 13(1)(d) read with 13(2)of the Prevention of Corruption Act, stands quashed and setaside. III)The appellant stands acquitted of the offence punishableunder Sections Sections 7, 13(1)(d) read with 13(2) of thePrevention of Corruption Act.IV)The bail bond of appellant stands cancelled. V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT