Ramesh Dinkarrao Jain v. The State of Maharashtra

CriAppeal-150-2003-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 150 OF 2003Ramesh Dinkarrao JainAge : 30 years, Occu: Business,R/o. Kannad, Dist. Aurangabad.… AppellantVersusThe State of Maharashtra… Respondent…..Mr. Anant Amol Kakade h/f Mr. Amol N. Kakade, Advocate for the Appellant.Mr. K. K. Naik, APP for the Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 14.03.2024Pronounced on: 02.04.2024JUDGMENT : 1.Judgment and order passed by Special Judge, Aurangabaddated 31.01.2003 in Special Case No. 1 of 1998, convicting appellant-original accused no.2 for offence punishable under Sections 7 and 12of the Prevention of Corruption Act, 1988 [PC Act] is taken exceptionto by filing instant appeal. IN NUTSHELL CASE OF PROSECUTION IS AS UNDER2.Complainant Ravindra Rajput was owner of a matador vehiclewhich was used for transportation of goods. On 23.09.1997, said CriAppeal-150-2003-2- vehicle met with an accident, i.e. on account of dash given by aspeeding luxury bus, and said occurrence was reported to KannadPolice Station. The Investigation of such complaint/report wasentrusted to Head Constable Kendre. Said I.O. collected papers ofmatador and asked PW2 complainant to produce surety on the nextday morning. 3.Consequently, on 24.09.1997, PW2 complainant visited KannadPolice Station with surety namely, Laxmanrao Deshmukh. However,I.O. Kendre was absent. The PSO on duty, namely Savant, acceptedthe surety bond and when PW1 demanded his papers back along withcopies of panchanama, said PSO asked him to collect it from ASIKendre. He then told PW2 complainant to meet a person sitting atpolice station. Accordingly, PW2 complainant went outside the policestation and met said unknown person, who told him that he is ownerof ready-made shop, namely, Lajari and that PSO Savant had askedcomplainant to pay Rs.1,500/- for handing over papers.4.On 25.09.1997, again PW2 complainant visited police stationbut even this time, ASI Kendre was not available. PSO Savant, whomet him, directed him to meet owner of Lajari ready-made shop andso he went to said shop to collect papers. However, owner of said CriAppeal-150-2003-3- shop told complainant that Savant had phoned him to handoverpapers of complainant, but on payment of Rs.1,500/- only. Agreeingto pay, PW2 complainant left. 5.However, on 26.09.1997, PW2 lodged report Exhibit 34 withACB authorities, who planned and laid trap and finally on conclusionof investigation, police official Savant and present appellant wereboth chargesheeted for offence under Sections 7, 13(1)(d) and 13(2)of the PC Act.On trial, learned trial Judge acquitted accused Savant andconvicted present appellant alone for offence under Sections 7 and 12of PC Act. Hence the Appeal.SUBMISSIONSOn behalf of the appellant :6.Learned counsel or the appellant would point out thatprosecution has miserably failed to establish the charges. Hestrenuously submitted that present appellant is a businessman and assuch, being a private person, he ought not to have been held guilty ofoffence under the provisions of the PC Act. He pointed out thatlearned trial court has misconstrued the legal position and has CriAppeal-150-2003-4- recorded the guilt. He further pointed out that including complainantand shadow pancha, none have supported prosecution. Answers givenby these witnesses in cross apparently show that charge has not beenmade out. There is reasonable doubt about very identity of the shopowner of ready-made clothes. Complainant as well as panchawitnesses have not identified accused who allegedly met complainantat police station. Therefore, apparently case of prosecution was weak. However, still learned trial court on assumptions, presumptions, conjectures and surmises, has convicted appellant, a privatebusinessman, even when the main public servant accused no.1 hasbeen let scot-free. For all above reasons, he submits that judgmentbeing illegal and not sustainable in the eyes of law, the same bequashed and set aside by allowing the appeal.On behalf of the State : 7.In answer to above, learned APP pointed out that thoughaccused i.e. present appellant is shown to be a private person, he hadindulged in abetting commission of offence putting demand andaccepting illegal gratification/bribe. He was in constant touch withinformant PW2. Repeatedly he had instigated PW2 to pay Rs.1,500/-for receiving back his own papers. Therefore, complaint was alsolodged and ACB authorities had duly laid trap. It was successful. CriAppeal-150-2003-5- Present appellant was caught red handed accepting bribe on behalf ofaccused no.1. That, necessary ingredients for attracting offence underSections 7 and 12 of the PC Act are very much available in theprosecution evidence and as such, learned trial court has committedno error in recording guilt. Hence, for want of merits, he prays todismiss the appeal.STATUS OF WITNESSES AND SUM AND SUBSTANCE OF THEIREVIDENCE.8.Prosecution seems to have adduced evidence of followingwitnesses to establish its case:PW1 Sanctioning authority, who granted sanction to prosecuteaccused Savant.PW2 Ravindra is the complainant. He is the owner of the matador. The sum and substance of his evidence is that, his matador wastransporting goods on 22.09.1997. His vehicle met withaccident on account of dash being given by a luxury bus. Therefore, he approached Kannad police station and lodgedreport. Police authorities retained his papers and he was askedto come with a surety for release of vehicle. Therefore, next daywhen he went to the police station. Concerned I.O. was notpresent. However, accused no.1 met him and introduced him toanother person sitting in the police station. On introduction CriAppeal-150-2003-6- with said person, he was asked to pay Rs.1,500/- which wouldbe required to be paid to the superior. Similarly, he visitedpolice station as well as shop on 25.09.1997 and 26.09.1997. Ashe was not intending to pay bribe, he lodged report Exhibit 34.He further deposed about ACB authorities arranging andexplaining trap to him as well as pancha and then, as agreed, they first visited police station and thereafter went to LajariCollection shop. There, he paid tainted currency to accusedRamesh, who collected the notes and kept it in his pocket. ACBauthorities rushed and caught Ramesh.PW3 Pawar deposed that he acted as pancha and he was introducedto PW2. He deposed about being appraised about the complaintof PW2 and then he and PW2 being instructed by ACBauthorities, panchanama Exhibit 38 being drawn and he andPW2 initially went to Kannad Police Station, where Savant metthem and told complainant to pay amount of Rs.1,500/- toRamesh Seth of Mayuri Collection. Therefore, he and PW2walked towards Mayuri Collection. There, PW2 told RameshSeth that Savant had sent him and to hand over papers of thevehicle. Said Ramesh Seth again directed them to police stationalong with a bond paper. At police station, When PW2 toldSavant that he has brought amount of Rs.1,500/-, again he wasdirected to visit Mayuri Collection shop where they met RameshSeth, who asked PW2 as to how much amount has beenbrought and when amount was held, Ramesh accepted it andkept it in his pocket and thereafter, on giving signal, he wasapprehended by ACB authorities. CriAppeal-150-2003-7- PW4 Hanumant Kulkarni was the Investigating Officer. He narratedall steps taken since receipt of complaint from PW2 tillchargesheeting accused.ANALYSIS9.Apparently, present appellant is shown to be the owner of acloth shop and thus, not a public servant. Now, law is fairly settledthat even a private person can be arraigned and tried under theprovisions of the PC Act. However rider is that, while trying a privateindividual, it has to be demonstrated that he was party to theacceptance of illegal gratification and he has entered into conspiracyfor demanding and accepting bribe or even has abetted commission ofoffence under Sections 7, 11 or 12 of the PC Act. Resultantly, even aprivate individual can be both, tried as well as punished, under theprovisions of the PC Act. 10.On carefully visiting the evidence of complainant PW2 andshadow pancha PW3, it is emerging that their testimonies are bereftof essentials for applying conspiracy or even abetment. There isnothing to show that accused no.2/appellant has entered into aconspiracy to compel complainant to pay illegal gratification toaccused no.1 for receiving back title papers of his vehicle allegedly in CriAppeal-150-2003-8- possession of accused no.1 Savant or Head Constable Kendre. Anotherdistinct feature is that said Head Constable Kendre has not beenexamined here, who in fact seems to be a crucial witness. It is alsonoticed on analyzing evidence of complainant that he speaks ofmeeting a person outside police station informing him to be owner ofLajari shop and such shop is named in the complaint. But insubstantive evidence, he speaks of meeting accused, a owner ofMayuri shop and directly handing him tainted currency. Further, both, complainant and shadow pancha, have not identified accusedpresent in the court to be the same person who had allegedly askedcomplainant to pay Rs.1,500/-. What complainant in para 7 of hisexamination-in-chief states is that, after meeting present accused hedirectly asked him to pay amount of Rs.1,500/- to Head ConstableKendre and even collect the papers of vehicle. Thus, apparently, thereis no demand by accused Ramesh. 11.In cross, para 8 complainant answered that he knew RameshSeth of Mayuri collection. But in chief para 7 he has spoken aboutapproaching accused and paying him currency in the shop of LajariCollection. In cross he stated that while standing outside the policestation after furnishing bail, a person claiming to be owner of LajariCollection had met them and further admitted that he had seen that CriAppeal-150-2003-9- person for the first time and such person is not present in the court.He further admitted that he met present accused for the first time onthe day of trap. He went to the extent of admitting that though hegave a written complaint to the ACB office, he did not sign it. Complainant himself is found to be admitting in cross para 8 thataccused no.1 Savant never demanded or told him to pay money toanybody for the documents. Complainant has further admitted incross para 10 that accused Ramesh has a shop at Chalisgaon and thathe used to come there. Complainant has also admitted that he hasrequested accused Ramesh to get his work done from Head ConstableKendre and that, on his own, accused did not agree to do the work. From such answers of complainant himself, it is apparent that he hasnot supported prosecution.12.Therefore, the moot question that arises is when there is nomaterial either in the evidence of complainant PW2 or panchan PW3suggesting present appellant Ramesh entering into any conspiracywith main accused Savant to persuade complainant to pay bribe, andwhen there is no further material that present appellant abettedcomplainant to pay bribe, it is unsafe to rope in present appellantalso. Shadow pancha also admits in cross that on reaching the shop, complainant alone went inside the shop and returned with the shop CriAppeal-150-2003-10- owner and even he went to the extent of admitting that complainantdid not gave the signal on paying money. Therefore, such answers byshadow pancha further weakens the prosecution version aboutaccused appellant Ramesh to be making any demand or receiving itthereupon.13.Therefore, in view of above discussion, here, there is nothing toshow that accused no.1 Savant authorized accused no.2 appellant toreceive illegal gratification on his behalf. As stated above, learnedtrial court has acquitted main accused and therefore, unless there isstrong foundation in support of charge of abetment, accused no.2 i.e.present appellant cannot be tied down and held guilty.14.Here, complainant and shadow pancha have apparently notsupported prosecution rendering the case doubtful. Consequently, when main accused was let scot-free, in absence of essentialingredients for attracting Sections 7 and 12 of the PC Act, guilt ofaccused no.2 i.e. present appellant alone could not have beenrecorded. There is no material regarding instigation or abetment byaccused no.2 or engagement of minds between accused nos.1 and 2 tocommit the offence of demanding and accepting bribe. CriAppeal-150-2003-11- 15.Perused the judgment under challenge. Learned trial court hastaken pains to discuss current scenario about fate of prosecutionbeing decided by winning over witnesses ; the role of courts whileappreciating evidence to find out the truth ; the menace of corruptionthat has spread in the society ; procedural delay in technicalities inlaw ; public interest and societal interest etc., of which there isapparently no second opinion. In para 23 of the judgment, learnedtrial court has reached to a finding that there are variances on crucialaspects in the evidence of material witnesses. Hence, guilt of accusedno.2/appellant is apparently improper. Resultantly, appellantsucceeds. Accordingly, following order is passed:ORDERI.The appeal is allowed.II.The conviction awarded to the appellant RameshDinkarrao Jain, by learned Special Judge, Aurangabad inSpecial Case No. 01 of 1998 under Sections 7 and 12 ofPrevention of Corruption Act on 31.01.2003 standsquashed and set aside.III.The appellant stand acquitted of the offence punishableunder Sections 7 and 12 of Prevention of Corruption Act. CriAppeal-150-2003-12- IV.The bail bonds of the appellant stand cancelled.V.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 orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre