Bombaybench High Court
Case Details
ALS 87 OF 2019-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPLICATION FOR LEAVE TO APPEAL BY STATE NO. 87 OF2019The State of MaharashtraThrough Police Station Officer,City Police Station, Ambajogai (City)District Beed....Appellant(Original Complainant)VERSUSMohan s/o Bhanudas Andhale,Age; 47 years, Occ; Police Naik,B. No. 1202, Ambajogai City PoliceStation, R/o. Police Colony,Ambajogai....Respondent (Original Accused)…APP for Appellant-State : Mr. N. D. BatuleAdvocate for Respondent : Mr. S.S. Thombre h/f Mr. KuldeepR. Chaudhari..... CORAM :ABHAY S. WAGHWASE, J. Reserved Date : 03.04.2024Pronouncement Date : 22.04.2024ORDER : 1.On account of acquittal of the Respondent from offenceunder Sections 7, 13(1)(d) read with Section 13 (2) thePrevention of Corruption Act, vide judgment and order dated ALS 87 OF 2019-2- 22.02.2018 passed by the learned Additional Sessions Judge,Ambajogai, the State intends to prefer an appeal. Hence thisleave application.2.Learned APP appraised this Court about the prosecutionlaunched against the present respondent, submitting that oneYuvraj Mule, who was working as driver in Ambajogai Divisionof MSRTC, lodged a complaint with Ambajogai City PoliceStation regarding beating to him by unknown persons. It isthe case of prosecution that, in connection with the saidincident, present complainant Gajanan, who was working asdriver at MSRTC Beed, received a phone call from the accusedinquiring about the occurrence. It is alleged that the accused,who was Police Naik, demanded Rs. 25,000/- to not toimplicate the complainant in the said complaint filed byYuvraj Mule. After bargain, accused brought down the figureof demand to Rs. 5,000/- each from both, the complainantand one Anil Galphade. As the complainant was not willing topay bribe, he approached the Anti Corruption Bureau Office,Latur, (for short “ACB”) and lodged report Exhibit 16.
Legal Reasoning
ALS 87 OF 2019-3- 3.Learned APP submits that after receipt of the complaint,ACB authorities summoned the complainant and shadowpancha. Both, the Complainant and the shadow pancha, wereappraised about the procedure of application of anthracenepowder and planned trap. Thereafter, both approached theaccused. There was demand of bribe as well as acceptance.The evidence of the Complainant and shadow pancha wasconsistent. There was proper sanction, but still the learnedtrial Court failed to appreciate the evidence on record incorrect perspective and acquitted the accused on the groundthat, the testimonies of complainant and shadow pancha arenot consistent with each other and that there is non-application of mind by the sanctioning authority. In fact,according to learned APP, a formidable case was made out bythe prosecution, still there is acquittal. The evidence on recordhas not been properly appreciated by the trial Judge andtherefore, there being a good case on merit for appeal, thelearned APP seeks leave to file the appeal.4.The above application is opposed by learned counsel forthe accused. He pointed out that prosecution failed to ALS 87 OF 2019-4- establish its case beyond reasonable doubt. Moreover,according to him, complainant himself has not supported theprosecution. He submits that there was no corroboration bythe shadow pancha to the evidence of complainant. That,there are material contradictions and variances in theirevidence. Even the sanctioning authority has not applied itsmind before according sanction. Therefore, learned trial courthas rightly acquitted the accused. According to the him, thejudgment of the trial Court is perfect and valid as per law andhence he prays for refusing the leave.5.Heard both the sides. Perused the papers.6.It seems that the case of the prosecution is based onevidence of in all five witnesses i.e. PW-1 complainantGajanan, PW-2 shadow pancha Vishwanath, PW-3sanctioning authority, PW-4 Police Officer and PW-5Investigating Officer.7.It is emerging that a complaint was allegedly filed byYuvraj Mule for alleged beating to him at the hands of ALS 87 OF 2019-5- unknown persons. According to the complainant, he receiveda phone call from the present accused summoning him in viewof the above complaint. Complainant has reproduced a phonenumber alleged to be of the accused. It is the case of theprosecution that complainant and Anil Galphade, who wereboth drivers, approached the Ambajogai City Police Stationand they met the accused, who allegedly told them that, toavoid any action against them, they would have to payRs. 25,000/- to him. According to them, they both havedenied their involvement in the offence and even denied theircapacity to pay that much amount to him. It seems that twodays thereafter, complainant and said Anil Galphadethemselves approached the accused with a request to reducethe amount of bribe. According to complainant, accusedreduced the amount of bribe to Rs. 5,000/- each. Initially,demand of Rs. 5,000/- was decided to be met on 26.03.2014and remaining amount of Rs. 5,000/- was decided to be paidon next month’s salary. However, complaint was not willing topay bribe and hence he lodged complaint with ACB on26.03.2014. ALS 87 OF 2019-6- 8.Record shows that while in witness box, after deposingthat he and pancha Khose returned to the Rest House, i.e.after recording the demand, the complainant has refused toadduce the evidence. Subsequently after almost four months,his remaining examination-in-chief has been recorded,wherein, he narrated about the verification of demand andpre-trap panchanama and about the he himself, pancha andAnil Galphade going to Rajdhani Hotel, accused demandingmoney and it being paid. 9.Even pancha witness speaks about accompanying thecomplainant initially at the Guest House for verification ofdemand and subsequently accompanying the complainant tothe hotel and on demand, the amount being paid andthereafter raid being carried out and concluded. 10.It seems that the Investigating Officer has not got itcross-checked whether the instrument allegedly received fromthe accused was in fact a mobile, owned and possessed by theaccused. Secondly, the prosecution seems to have failed toexhibit the voice recording panchnama and no certificate ALS 87 OF 2019-7- under Section 65B of the Evidence Act is placed on record.Thirdly, when the pancha and complainant are deposingabout the amount being demanded and paid while taking tea,the containers used for tea are apparently not seized whichmust be carrying the anthracene powder. 11. Admittedly, complainant states that a complaint lodgedby Yuvraj Mule regarding to beating to him by unknownpersons was there, but said Yuvraj happens to be in MSRTC,Ambajogai. Therefore, when said Yuvraj has not specificallynamed present complainant and Anil Galphade to have beatenhim, the question that arises is, why would a specific call bemade to the complainant. From complainant’s evidence, it isseen that on the date when alleged call was received from theaccused, Anil Galphade was with him. He was alsoaccompanying complainant at the time of trap. However, saidAnil Galphade is not examined by the prosecution. Therefore,there is serious doubt about the prosecution version. Whenthe complainant himself has not supported, the case ofprosecution apparently rendered weak. ALS 87 OF 2019-8- 12.The investigating machinery has apparently failed togather the crucial evidence and moreover, failed to identifythat it is accused alone who had made phone call and put upthe demand of bribe. Prosecution also does not seem to haveexamined said Yuvraj Mule who filed complaint about beating,nor the alleged complaint at his instance is got exhibited.Therefore, on various grounds, prosecution story is weak. 13.There was heavy burden on the prosecution to establishthe charges. However, evidence of prosecution was apparentlynot convincing. No good ground is made out before this Courtto grant leave. No case being made out, I proceed to passfollowing order :ORDERThe application is rejected. [ABHAY S. WAGHWASE, J.]mahajansb/