Criminal Appeal No. 346 of 2016 · High Court · 2026

{1} CrAppeal-346-2016IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 346 OF 2016.Dilip Bhikanrao Solunke(Original Appellant) (Died) Through his L.Rs.1-A Chandrakala W/o Dilip SolunkeAge : 50 yeas, Occu.: Housewife,R/o. Tembhurni, Tq.Jafrabad, District: Jalna.….Appellant (Wife of deceased - DilipBhikanrao Solunke)Versus.The State of Maharashtra…..Respondent …..Mr. Joydeep Chatterji, Advocate for Appellant.Mrs.Chaitali Chaudhari Kutti, APP for Respondent. ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 25 AUGUST, 2026 PRONOUNCED ON : 27 AUGUST, 2026 JUDGMENT : 1. Appellant, original accused, challenges judgment and orderdated 12-05-2016 passed by learned Additional Sessions Judge-2,Jalna, in Special Case (PCA) No.1 of 2011 by which conviction hasbeen recorded for offence under Section 7 of the Prevention ofCorruption Act (PC Act). {2} CrAppeal-346-2016BRIEF FACTS OF THE CASE2. In brief, case of prosecution in trial Court was that,complainant, in order to get some land owned by his fathertransferred in his name, approached accused, a Talathi and forcarrying out necessary mutation entry, it is the case of prosecutionthat, for the said work, accused demanded Rs.1,500/-, and ascomplainant was not willing to pay bribe, he approached AntiCorruption Bureau (ACB), lodged complaint exh.17, on the basis ofwhich, ACB authorities planned and executed trap, complaint wasfiled against accused by the Investigating Officer and furtherinvestigation was carried out and subsequently, accused was triedvide above special case and he stood convicted for above offence.Hence, the appeal by accused. SUBMISSIONSOn behalf of appellant/accused :3. Learned counsel for appellant would point out that, there isfalse implication. That, there is no convincing, cogent and reliableevidence to prove the charges. He would submit that, in view of thecharge, it was incumbent upon prosecution to prove very demand,but here, there was no demand at all and thus, according to him,case of prosecution collapsed then and there itself. On the point of {3} CrAppeal-346-2016demand, he invited attention of this Court to paragraph 1 ofexamination-in-chief of complainant. He also submitted that,evidence of complainant and shadow pancha is full of materialomissions and contradictions. 4.It is submitted that, specific defence of accused in trial Courtwas that, he had cordial relations with father of complainant. That,complainant and other siblings have agreed to pay the Rs.10,000/-each to their father for recording the land in their name. That,informant herein, who is son of Court Witness Bhanudas Jadhav, hadpaid merely Rs.8,500/- and therefore, at the instance of CourtWitness, accused had accepted the said amount. That, it was not abribe amount. That, even there is admission of complainant to thatextent on the point of he paying only Rs.8,500/-. Thus, according tohim, in view of the evidence of Court witness i.e. none other thanfather of complainant, accused has probabilized defence byanswering to that extent while facing answers to the questions underSection 313 of the Cr.P.C. Consequently, learned counsel submitsthat, accused has probabilized his defence and therefore, learned trialCourt ought to have accepted the same, but as it failed, he urges forreconsideration of defence case by setting aside the impugned {4} CrAppeal-346-2016judgment. On behalf of State :5. Learned APP would also took this Court through testimony ofcomplainant and would submit that, there was clear demand byaccused. That, evidence of complainant has to be read in its entiretyand not in isolation. That, there is clear reference of demandfollowed by acceptance and therefore, according to her, learned trialCourt has rightly accepted the case of prosecution and same needs nointerference. 6.On the point of Court witness and credibility of this witness,she would submit that his evidence has rightly discarded by learnedtrial Court. For all above reasons, she urges to dismiss the appeal forwant of merits. BRIEF ACCOUNT EVIDENCE IN TRIAL COURT7.Re-appreciated the evidence. Though prosecution has adducedevidence of as many of six witnesses, crucial evidence is of PW1complainant and PW2 shadow pancha, which is decisive on the pointof demand as well as acceptance. Here, equal importance is of the {5} CrAppeal-346-2016evidence of Court witness i.e. in view of defence taken by accused.Hence, testimonies of such witnesses are put to scrutiny.8.PW1 Janardhan Jadhav, who is examined at exh.16, in initialexamination-in-chief deposed about approaching accused fortransferring 1.5 acre land owned by his father in his own name. Heclaims that, during initial talks, accused told him to bring bond,which was brought and handed over and after which he again claimsto have visited the office of accused to verify whether his work isdone and it is deposed that, accused demanded Rs.1,500/- from him.Therefore, as he was unable to pay, he approached ACB and gavecomplaint exh.17. In further examination-in-chief, he deposed that he alongwithpancha had been to office of Talathi to make enquiry whether hiswork was over and accused stated to pay the amount and get thework done and they came back and informed the events to theInvestigating Officer. In paragraph 2 of the examination-in-chief, henarrated events of demonstration of application of anthracenepowder to the currency notes and about he again going in thecompany of shadow pancha Kulkarni to the office of accused.However, in examination-in-chief, as pointed out, he deposed that, {6} CrAppeal-346-2016“he stated accused to get his amount and to do the work andthereafter, handed over amount to accused which was said to beaccepted”. Thus, as pointed out, during the events of main trap,there does not seem to be any demand by accused. Further aspointed out, though accused has initially twice approached accused,when exact demand was raised has not been stated by him. Even incross-examination, complainant has admitted that, demand of cashwas made at the third visit, but as stated above, during the third visit,there does not seem to be distinct demand by accused. He admittedthat, during visit to office of Talathi, 5-6 villagers were present andconversation between him and accused took place in their presence.But none of the villagers seems to have been examined.9.PW2 Vilas Kulkarni, shadow pancha, who is examined atexh.19, claims to have acted as pancha. In paragraph 2 ofexamination-in-chief, he deposed that, Talathi had calledcomplainant with cash amount. That, verification panchanamaexh.20 was drawn and he accompanied complainant to the office ofaccused. There, complainant greeted accused and further asked him,whether his work was over, upon which accused allegedly said thathis work would not be done unless he complies with demand and {7} CrAppeal-346-2016further said that, he would have to pay as decided earlier. (Such isnot the narrative of complainant himself). Then he deposed that,complainant enquired how much amount is to be paid and accusedreplied and demanded Rs.1,500/- and witness deposed that, uponsuch reply, complainant told accused that, his father had been to sellhe-goat and he will pay the amount by selling the same. In furtherexamination-in-chief, he deposed that, after application ofanthracene powder to the currency, which was in possession ofcomplainant and pre-trap panchanama exh.22, he accompaniedcomplainant to the office of accused, who was found to be sitting ona chair. Witness deposed that, complainant stated to him to reducethe amount upon which accused said that it cannot be done and thencomplainant stated that, he had brought the amount as per his sayand accused stated him to pay the amount. While under cross-examination, he also admitted that, duringthe first conversation between complainant and accused, accused hasnot started with demand of cash amount. He also admitted that, 2-3persons were present in Talathi office during first visit and furtheradmitted that Police have noted names of those persons, but he doesnot remember whether Police made enquiry with such persons. {8} CrAppeal-346-2016ANALYSIS10.Therefore, on carefully going through evidence of PW1complainant and PW2 shadow pancha, as stated, complainant doesnot speak of any demand and rather he himself makes an offer. EvenPW2 shadow pancha, at the time of demand verification, hasnarrated a very different story than the one stated by complainanthimself. Regarding the main trap, even he too states that afteroccupying seats, complainant started discussion by saying thatamount should be reduced and when accused denied, according tothis witness, complainant himself has stated that he has broughtamount as per his say. But both PW1 complainant and PW2 shadowpancha in cross-examination admitted that, there was no demandduring initial meeting. Resultantly, the very crucial and essential aspect like demandcomes under shadow of doubt. It is fairly settled position that, mererecovery of tainted currency is of no avail unless demand is provedand law to this extent has been time and again reiterated and the fewcases that can be named are P. Satyanarayana Murthy v. DistrictInspector of Police, State of Andhra Pradesh, (2015) 10 SCC 152;Mukhtiar Singh (since deceased) through his Legal Representatives v.State of Punjab, (2017) 8 SCC, 136, K.Shanthamma v. State of {9} CrAppeal-346-2016Telangana, (2022) 4 SCC 574.11.Here, specific defence of accused is that, he indeed acceptedthe amount from complainant but it was so done at the instance offather of complainant. In support of such defence, reliance is placedon the evidence of Court Witness Bhanudas Jadhav and it will beappropriate to give brief account of Court Witness, which is atexh.60. This witness Bhanudas deposed that, he has 3 sons and 4daughters. That, he effected partition of his land in the last summerand it was settled that, his each son shall pay him Rs.10,000/- uponwhich land would be transferred in their names. In furtherexamination-in-chief i.e. in paragraph 2, he stated that, he knewaccused and prior to 2 years, it was agreed that his sons shoulddeposit Rs.10,000/- each with Talathi and after collecting thatamount, Talathi should pay the amount to him. His other sons paidthe same, but Janardhan i.e. present complainant paid onlyRs.8,500/-. He demanded remaining amount from accused. In cross-examination at the hands of learned APP, he admittedthat, Investigating Officer did not record his statement. He denied asuggestion that, it is not true that it was not agreed that his sons shalldeposit money with Talathi. He expressed his ignorance about {10} CrAppeal-346-2016accused demanding bribe to the tune of Rs.1,500/- from his sonJanardhan. While under cross-examination at the hands of accused, headmitted that, his son Janardhan was intending to apply for a well inthe Government Scheme and needed atleast two acres of land in hisown name and therefore, as only 1.5 acre land was standing in hisname, 50 Are land of their family was agreed to be mutated in hisname. He further deposed that, he accordingly executed partitionamongst his sons and daughters. He also deposed about accusedhaving cordial relations with his family members and therefore, hewas a mediator and his son Janardhan deposited Rs.8,500/- towardshis share, which he received from Talathi, who further told him thathe will recover remaining Rs.1,500/- from Janardhan, who wasavoiding to pay. He admitted that, it was agreed that, unless anduntil amount of Rs.1,500/- is paid, the matter shall not be forwardedfor mutation. 12.Learned counsel for appellant invited attention of this Court tothe cross-examination faced by PW1 complainant, more particularlyparagraph 5 wherein he admitted that, he has other siblings. He alsoadmitted that, six months prior to the incident, there were talks {11} CrAppeal-346-2016pertaining to recording lands in his name as well as in the name ofhis brothers and sisters. He admitted that, it was decided in meetingbefore Talathi that he would pay Rs.10,000/- each to his brothers andsisters for recording the land in his name. He admitted that, he hasgiven Rs.10,000/- each to his brothers and sisters except his father inthe presence of very Talathi. He admitted that, out of Rs.10,000/-,an amount of Rs.8,500/- was only handed over by him to Talathi,who had asked him to bring remaining Rs.1,500/-. It is categoricallyadmitted that, on the day when accused was caught, he has paidremaining amount of Rs.1,500/- to Talathi. 13.Thus, here, from the evidence of Court Witness, who is fatherof complainant, defence put-forth by accused is sought to beprobabilized. As stated above, very complainant has also in cross-examiantion admitted that, he paid only Rs.8,500/- out ofRs.10,000/-, which was meant to be paid to his father throughTalathi and that Rs.1,500/- had remained balance and on the day oftrap, he had paid such amount to Talathi. 14.Learned trial Court has disbelieved the above defence and onecomes across observations to that extent in paragraph 33 and 34 of {12} CrAppeal-346-2016impugned judgment. Reason assigned by trial Court is that, witnesswas own over as complainant’s evidence was over on 03-02-2014whereas Court Witness was examined on 21-11-2015 and thedeposition of Court Witness has no nexus with original complainantand trap by ACB and so the defence so put-forth has notprobabilized. However, as stated above, not only Court Witnessacknowledges the transaction to be done through accused, but hisown son complainant in paragraph 5 of cross-examination hascategorically admitted that an amount of Rs.1,500/-, which was dueto his father, was paid to the accused on the day of trap. Suchadmission has come from complainant in his cross-examination, whois apparently examined by trial Court on 03-02-2014 i.e. much priorto deposition of Court Witness. Further Court Witness has alsocategorically stated that, there were cordial relations between himand accused and said transaction has taken place on being mediatedby accused. Consequently, such defence through above witnesscannot be lightly brushed aside. 15.It is fairly settled position that, in criminal jurisprudence andtrial, accused is merely expected to probabilize his defence and {13} CrAppeal-346-2016burden upon him is not as high as the primary burden onprosecution. Here, in the considered opinion of this Court, throughCourt Witness, accused has discharged the said burden and therefore,learned trial Court ought to have accepted the same, but it chose toreject the same without assigning sound reasons.SUMMATION16.To sum up, here, prosecution case fails to inspire confidencefor the reasons that, firstly demand itself is not cogently proved andsecondly, accused has succeeded in probabilizing his defence. Forsuch reasons, on re-appreciation of available evidence, this Court hascome to a conclusion that case of prosecution is not proved beyondreasonable doubt. As learned trial Court has failed to consider and appreciateavailable evidence in its correct perspective and has further failed toappreciate defence of the accused, interference is called for.Accordingly, following order is passed : ORDERI.The appeal is allowed. {14} CrAppeal-346-2016II.Conviction awarded to the appellant - Dilip Bhikanrao Solunke,by learned Additional Sessions Judge-2, Jalna in Special Case (PCA)No.1 of 2011 under Section 7 of the Prevention of Corruption Act, on12-05-2016 stands quashed and set aside.III.Appellant stands acquitted of the offence punishable under 7 ofthe Prevention of Corruption Act.IV.The bail bonds of appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the LegalRepresentative of appellant after the statutory period.VI. It is clarified that there is no change as regards the orderregarding disposal of Muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT