High Court
Legal Reasoning
{1} CRI APPEAL 14 of 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 14 OF 2004Tejrao s/o Natha SalveAge: 40 years, Occu.: Service,Police Head Constable,R/o. Building No.26,Room No.7, Police Line,HUDCO, Aurangabad.….Appellant (Original Accused)VersusThe State of Maharashtra…..Respondent …..Advocate for Appellant : Mr. S.S.Jadhavar ( Appointed) APP for Respondent : Mr.A.A.A.Khan ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 05 JULY, 2024 PRONOUNCED ON : 12 JULY, 2024 JUDGMENT :- 1. Convict for offence under Sections 7,13(1)(d) read with 13(2)of the Prevention of Corruption Act hereby takes exception to thejudgment and order passed by the Special Judge, Aurangabad inSpecial Case No.18 of 1999 dated 17-12-2003. PROSECUTION CASE IN SHORT2. One Meerabai lodged complaint against Ganpat, brother of {2} CRI APPEAL 14 of 2004complainant and therefore, presence of Ganpat was sought at PoliceStation, Gangapur. PW1 Karbhari, complainant, accordingly visitedPolice Station and he was told by accused, a Police Head Constablethat, to avoid action against his brother, Rs.1,500/- would berequired. Deal was finally stuck to Rs.700/-. Complainant PW1approached ACB, lodged report exh.10, on the basis of which ACB,authorities planned and arranged trap. Accused Police HeadConstable, who demanded amount, directed complainant to payamount to PW3 Parasmal, a shop owner. Tainted currency was seizedfrom PW3 Parasmal. PW4 Borse (PI), Investigating Officer registered crime againstaccused and after completion of investigation, accused waschargesheeted and tried before the Special Judge vide Sessions CaseNo.18 of 1999. Trial concluded in conviction of accused for above offence andsaid judgment and order passed by the Special Judge dated 17-12-2003, is now questioned by filing instant appeal. SUBMISSIONSOn behalf of appellant :3. Apprising this Court about the prosecution case in trial Court,
Legal Reasoning
{3} CRI APPEAL 14 of 2004learned Counsel for appellant pointed out that, at the outsetprosecution case itself is entirely shrouded with mystery and doubt.He pointed out that appellant is held guilty even when there is clearevidence that he had not accepted any bribe amount. He pointed outthat he was chargesheeted on the premise that he had demandedbribe for not taking action against Ganpat, who is brother ofcomplainant in the backdrop of some complaint of outraging modestyreceived from a lady and for not taking action, Rs.1,500/- wasdemanded, but it is pointed out that finally it is claim of prosecutionthat amount was brought down to Rs.700/-. Learned Counselsubmitted that there is no evidence about any complaint lodged bysaid lady, nor she is examined or even the Police, who alledgely wentin search of brother of complainant to the village, is not examined.Thus, according to learned Counsel, material witnesses are notexamined for the best reasons known to investigating machinery. 4.It is next pointed out that, according to complainant, amountwas paid to a show owner PW3 Parasmal and case of prosecution wasthat bribe amount demanded was directed to be paid to the shopowner to clear his previous credit dues. But according to learnedCounsel, there is no distinct evidence, gathered by Investigating {4} CRI APPEAL 14 of 2004Officer, about so called credit record of accused. On this point, heinvited attention to cross-examination of the Investigating Officer andit is pointed out that even Investigating Officer has admitted that hedid not verify credit from ledger maintained by PW3 Parasmal.5.Learned Counsel further submitted that his presence is notmarked at the time of payment of alleged bribe amount to PW3Parasmal and even PW3 Parasmal as well as complainant admit tothat extent. Thus, according to learned Counsel, there is no evidenceto show that PW3 Parasmal had accepted amount, which was allegedto be bribe on behalf of accused. 6.He further pointed out that PW3 Parasmal from whom therewas recovery of tainted currency is made an witness, who merelyfalsely implicated appellant. He pointed out that even so calledreceipt issued by PW3 Parasmal was not in the name of accusedappellant so as to accept case of prosecution that bribe amount wasused to settle previous credit. Thus, according to him, when saidreceipt does not carry his name, his very implication and charge ofaccepting bribe was itself misplaced. {5} CRI APPEAL 14 of 20047.Lastly, he submitted that there is improper appreciation ofevidence by learned trial Judge that there was acceptance of bribeamount by appellant. That learned trial Court itself had entertaineddoubt about prosecution story, but still conviction is recorded and sohe submits that such judgment cannot be allowed to be sustained. On behalf of State :8.In answer to above, learned APP also took this Court throughthe testimonies of complainant PW1 Karbhari, PW2 Limbaji, shadowpancha, PW3 Parasmal and would submit that this was unique tacticadopted by accused to demand bribe but to apply the same to settleprevious credit. Learned APP pointed out that there was demand ofbribe for not taking action against brother of complainant. That inpresence of shadow Pancha, accused took complainant to shop ofPW3 Parasmal and after making demand of bribe, directed it to bepaid it to PW3 Parasmal on his behalf. PW3 Parasmal, who acceptedamount on his behalf has testified in the Court. Therefore, offence iscomplete as there is demand as well as acceptance but on behalf ofaccused. Thus, according to learned APP, learned trial Court rightlyheld the charges proved and prays not to disturb such sound andreasoned judgment and findings. {6} CRI APPEAL 14 of 2004EVIDENCE BEFORE TRIAL COURT9.Prosecution has adduced evidence of four witnesses in supportof its case. Sum and substance of their evidence is as under : PW1 Karbhari, complainant stated that Meerabai lodgedcomplaint against his brother Ganpat. That Police visited to securepresence of Ganpat for registration of crime. That PW1 Karbhari,brother of Ganpat, approached Police Station as well as accused, whodemanded Rs.1,500/- to avoid registration of case. That finallyaccused agreed to accept Rs.700/- and asked complainant to comenext day. That he approached ACB, who arranged plan and he,shadow pancha accompanied by accused visited to the shop andthere, on directions of accused, he paid Rs.700/- to shop owner asthere was credit of accused, which had remained unpaid and he gavetainted currency to shop owner, who accepted it. That he gavesignal, raiding part apprehended show owner and brought him tothe Police Station. That crime was registered. PW2 Limbaji Sukhdeo Shinde, Shadow Pancha also stated thathe was called to ACB Office, introduced to complainant, he verifiedthe complaint, preparation of pre-trap panchanama being done and {7} CRI APPEAL 14 of 2004he and complainant explained procedure and there wasdemonstration of currency being tainted, which was to be paid ondemand. He accompanied complainant initially to the Police Stationand thereafter, accused taking them to shop of PW3 Parasmal towhom accused directed amount to be paid, and said shop owneraccepted it at the instance of accused.PW3 Parasmal Shantilal Chaged, shop owner deposed atexh.17 that he run cloth shop namely Hindustan cloth and ready-made center. That his brother Subhash jointly run the shop andSubhash used to write the account. That he know accused. That hehad opened a credit account in his shop. He stated that on 23-12-1998 at about 12:00 Noon, accusedalognwith one person came came to his shop. That accusedsuggested this witness to collect Rs.700/- from that person towardsthe balance of his credit money. That the said person told his nameKarbhari Shinde. That he paid this witness Rs.700/-, which thiswitness put in the pocket of his shirt. That accused had then left.That this witness then issued a receipt of Rs.700/-. He identifiedreceipt exh.18 to be in his handwriting and bears his signature. Thatafter some time, some Policemen came in plan dresses and asked {8} CRI APPEAL 14 of 2004about said receipt of Rs.700/-. This witness said yes. Then thiswitness was taken to Police Station and tainted notes of Rs.700/-were collected from him. PW4 Ashok Ganpat Borse (PI) is the Investigating Officer. ANALYSIS 10. In short gist of prosecution case is that, accused a PoliceConstable demanded illegal gratification to refrain from taking anyaction against brother of complainant in the backdrop of complaintreceived from one Meerabai for outraging her modesty by Ganpat. Itis a specific case of prosecution that demand was of Rs.1,500/- butsubsequently accused agreed to accept Rs.700/- and whencomplainant and pancha approached him, he took them to the shop,where he had maintained credit and directed PW1 complainant topay the bribe amount to settle his previous credit. 11.Admittedly, what is emerging from above story is that, accusedappellant has not directly accepted the bribe and prosecution evendoes not dispute the same. As pointed out that, to substantiate thatthere was demand of bribe for not taking penal action againstbrother in consequence to complaint received from Meerbai, neither {9} CRI APPEAL 14 of 2004said lady is examined, nor the Police personnel, who allegedly wentfor a look out for Ganpat are examined. These were the foundationalfacts, which were expected to be demonstrated by prosecution toaccept the version that for not taking action against Ganpat, bribewas demanded from his brother PW1 Karbhari. 12.Even very complainant speaks that when he approachedaccused, accused made queries regarding Ganpat and asked wherewas he as his presence was necessary to cause signatures on Policepapers. Such version of complainant goes to show that accused hadsought and tried to secure presence of Ganpat against whomcomplaint has been received. Such questioning by accused reflectssome other intention of accused. Had it been a case as is put forth byprosecution, then to prevent action against Ganpat, his presenceought not to have been insisted upon by accused. Therefore, theabove material coming on record, also does not confirm and supportprosecution version of bribe being demanded to avoid action againstGanpat.13.Prosecution evidence themselves speak that complainant PW1Karbhari and shadow pancha PW2 Limbaji on the day of trap {10} CRI APPEAL 14 of 2004approached accused. According to PW1 Karbhari, they first had teaand then visited Xerox Center, came back to the Police Station andthen accused asked them to come out and took them to cloth shop ofPW3 Parasmal. However, it is complainant’s version that he tookthem to the cloth shop and there told that he is in arrears of somecharges of the said shop and to pay the money there and resultantlycurrency were offered to shop owner and not to accused. Therefore,as pointed out, accused has himself not accepted the taintedcurrency. Complainant himself deposed in paragraph 5 that PW3shop owner collected the currency and put it in his own pocket andat that time Salve had already left them. 14.PW2 Limbaji, shadow pancha, who accompanied complainant,in paragraph 3 of his examination-in-chief has stated that accusedasked complainant about his brother and then took them to Xeroxshop. There according to this witness, accused asked complainantwhether his work was done. Such version is not stated bycomplainant himself. According to this witness, complainant askedaccused whether he should pay. Even such version is not comingfrom the very complainant, who was actually having conversationwith accused. Therefore, complainant and shadow pancha witness {11} CRI APPEAL 14 of 2004are not lending support to each other inspite of claiming to betogether on the aspect of demand.15.PW3 Parasmal, who has infact accepted the currency deposedthat he knew accused, who had credit account in his shop. Accordingto him, on 23-012-1998 accused came with a person to his shop.Thus, PW3 does not speak about presence of PW2 shadow panchaand he only marks presence of accused and complainant. He statedthat accused suggested him to collect Rs.700/- from that persontowards the balance of his own credit. He took that money and keptit in his pocket and accused went away and therefore, he issuedreceipt of Rs.700/-. It is pertinent to note that the receipt, which iscollected by Investigating Officer for payment of Rs.700/- does notstand in the name of accused, rather it is issued in the name of PW1Karbhari. Even PW3 Parasmal, in his very examinaion-in-chief hasstated that he issued receipt in the name of PW1 Karbhari. Thus, if at all according to prosecution, the bribe amount wastowards settlement of previous credit of accused, then there was noreason for PW3 Parasmal to issue receipt in the name of complainant,who had no transaction with PW3. Consequently, very case ofprosecution of PW3 Parasmal accepting bribe on direction of accused, {12} CRI APPEAL 14 of 2004itself come under shadow of doubt. Article-A (exh.18) receipt is nottowards settlement of previous credit so as to accept prosecutionversion that bribe amount was applied towards previous credit. PW4Investigating Officer has admitted that he did not gather ledger orcredit record of accused maintained in the shop of PW3. 16.It is also pertinent to note that PW3 Parasmal is the recipientof tainted currency and there is recovery of the same from him but heis not arrested on 23-12-1998, rather his statement is recorded nextday and he is made prosecution witnesses. For above reasons, here it is apparent from the prosecutionevidence itself that there is no convincing evidence both on the pointof demand of bribe to prevent action against brother of complainantand acceptance of bribe by accused. Admittedly, accused has notbeen apprehended while in possession of tainted currency. Therefore,case of prosecution has come under shadow of doubt.CONCLUSION17.Perused the impugned judgment. The findings arrived at bythe trial Court are reflected from paragraph 19 onwards. It is noticedthat after discussing the prosecution evidence, even learned trial {13} CRI APPEAL 14 of 2004Judge, in paragraph 23, has observed that PW3 Parasmal has notbeen arrested. Trap Officer Borse’s conduct has been noted byexpressing doubt over manner of adducing evidence. It iscategorically observed that there is no document in support ofoutstanding dues of accused towards PW3 Parasmal and therefore,learned trial Judge has in clear terms expressed doubt overimplication of sole appellant. Even in paragraph 25 of the judgment,learned trial Judge has observed that Investigating Officer did notcollect evidence to ascertain alleged credit of accused in the sameshop. Therefore, the very case of prosecution that bribe demandedwas applied towards the credit of accused, itself is doubted by trialJudge. However,, absence of accused till 11-01-1999 is takenrecourse to, to draw adverse inference on his conduct. Suchapproach of the trial Court propels this Court to hold that inspite ofno clear evidence about demand and acceptance, guilt of appellanthas been recorded. Conclusion drawn is contrary to the findings andobservations. Hence, interference at the hands of this Court is calledfor. Accordingly, I pass following order : ORDERI)Criminal Appeal No.14 of 2004 is allowed. {14} CRI APPEAL 14 of 2004II)The conviction awarded to appellant Tejrao s/o NathaSalve in Special Case No.18 of 1999 by the learned SpecialJudge, Aurangabad on 17-12-2003 for the offence punishableunder Sections 7, 13(1)(d) read with 13(2) of the Prevention ofCorruption Act, stands quashed and set aside. 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 bonds of appellant stand 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. VII)Fees of the learned Counsel appointed for the appellant bepaid through the High Court Legal Services Sub-Committee,Aurangabad as per Rules. ( ABHAY S. WAGHWASE ) JUDGE SPT