High Court · 2025

Legal Reasoning

Cri.Appeal.835.2005-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 835 OF 2005The State of Maharashtra,Through Anti-Corruption Bureau, Latur.… Appellant(Orig. Complainant)VersusTrimbak S/o. Madhavrao Waghmare,Age : 44 years, at present residingSajja Gaundagaon, Tq. Udgir,Dist. Latur.… Respondent.(Orig. Accused No.1)…..Mr. S. M. Ganachari, AGP for Appellant – StateMr. H. I. Pathan, Advocate for Respondent…..CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :16 JULY 2025PRONOUNCED ON :29 JULY 2025 JUDGMENT : 1.State is hereby questioning the judgment and order dated30.08.2005 passed by learned Special Judge/Additional SessionsJudge, Latur in Special Case No. 1 of 1991 acquitting respondentsfrom charge of offence under sections 7, 13(1)(d) read with section13(2) of Prevention of Corruption Act. PROSECUTION CASE IN BRIEF IN TRIAL COURT IS AS UNDER2.Complainant’s aunt Kewalbai held agricultural land Cri.Appeal.835.2005-2-which had a well. She intended to install electric motor for pumpingwater, for which she required 7/12 extract carrying entry regardingwell and also entry in the revenue record to that extent. Sheaccordingly had applied. On her behalf her nephew complainant PW1Tukaram took follow up by visiting Tahsil office and he too madeanother application to issue the document. It is the case ofprosecution that, to issue 7/12 extract accused initially demandedRs.500/- and on negotiations it brought down to Rs.400/-. Accusedput up demand to pay Rs.200/- on Monday i.e. on 19.02.1990 andremaining amount asked to be paid after work is over. PW1 Tukaramas was not willing to pay bribe, he approached ACB authorities,lodged report, followed by laying of trap by engaging independentpanch and issuing necessary instructions to both, complainant andpanch to go together and to offer bribe on demand and relay signal.Accordingly, after drawing pre-trap panchanama, both approachedaccused. However, accused no.1 though raised demand, directedcurrency to be paid to accused no.2. Accused no.2 accepted thecurrency and accused were apprehended and finally tried by learnedSpecial Judge, Latur, who was pleased to acquit them. Hence, theinstant appeal. SUBMISSIONS3.Sum and substance of arguments advanced by thelearned APP is that, accused no.1 is a Talathi, whereas, accused no.2 Cri.Appeal.835.2005-3-is his acquaintance and though a private person, he used to acceptbribe on behalf of accused no.1. Here, there is demand which iscategorically reported and even deposed in the testimony by PW1Tukaram in his evidence at Exh.79. That, shadow panch, who hadaccompanied him, has also deposed about accused no.1 demandingbribe and at the time of it was being handed over, he directed it to bepaid to accused no.2. That, both these witnesses i.e. complainant PW1and shadow panch PW2 Bhimrao are consistent. That, initial amountof Rs.200/- was already accepted from PW1 Tukaram to the extent ofwhich PW1 Tukaram has categorically stated. Learned APP pointedout that, in presence of PW2 Bhimrao accused no.1 directed amountto be handed over to accused no.2. Thus, there was both convincingand cogent evidence regarding demand and acceptance. Both of themwere lending support to each other on the core of prosecution case,but the same has not been considered and appreciated by learnedtrial Judge.4.Taking this court the observations of Hon’ble learnedtrial court in paragraph 20 and would submit that, trial court hasmisread and misinterpret the evidence of complainant and shadowpanch while recording finding that they are not consistent. LearnedAPP would pose a question when there was no ill intention, whyaccused no.1 asked shadow panch to leave. Therefore, according to Cri.Appeal.835.2005-4-him, all these circumstances ought to have been correctlyappreciated, but according to him, the same has not been done.5.Taking this court through the answers given by accusednos.1 and 2 under section 313 of Cr.P.C., he would submit that,question nos. 20 and 21 put to accused no.2 were duly answeredwhich clearly established the case of prosecution. That, evenstatement of accused no.2 recorded immediately after the trap,clearly indicates that he acted at the instance of accused no.1. That,in spite of such quality of evidence, learned APP would submit that,surprisingly the trial court has disbelieved the prosecution case andhence he urges for interference by allowing the appeal. 6.Learned counsel for respondent original accusedsupported the findings of learned trial Judge and would submit thatthe conclusion drawn by the trial court is the correct view that couldemerge with such quality of evidence. It is doubtful whether therewas any demand at all. Rather, he pointed out that, evidence ofcomplainant categorically shows that, being previously acquaintedcomplainant and accused no.2 were lending financial support to eachother as and when required. He pointed out that, complainant himselfadmitted to that extent in paragraph 13 of cross-examination. Hefurther pointed out that, shadow panch was not present nor was in Cri.Appeal.835.2005-5-the company of complainant and accused at relevant time. Thus,there is no corroboration to the testimony of complainant which isessential. That, while concluding it is submitted that evidence onbehalf of prosecution was full of doubts and therefore, learned trialcourt committed no error whatsoever in acquitting the accused andhe prays to dismiss the appeal for want of merits.EVIDENCE ON RECORD7.In trial court, prosecution seems to have rested its caseon the evidence of following witnesses :- PW1 Tukaram is the complainant. His evidence at Exh.79. PW2 Bhimrao is the shadow panch. PW3 Honaji Jawale is the Sanctioning Authority. PW4 Shankar Gute, is the Investigating Officer and his evidence is at Exh.104SUM AND SUBSTANCE OE EVIDENCE OF PW1 AND PW28.Re-appreciated and reanalyzed the evidence. PW1Tukaram is the complainant. PW2 Bhimrao is the shadow panch.PW3 Honaji Jawale, is sanctioning authority and PW4 Shankar Gutteis the Investigating Officer. In view of nature of the complaint,evidence of complainant and that of shadow panch is crucial. It is Cri.Appeal.835.2005-6-settled principle that complainant being interested party, lawrequires corroboration to his testimony, more particularly fromshadow panch, who is expected to be party to the demand as well asacceptance. On visiting evidence of PW1 Tukaram, in his examination-in-chief, he has reiterated that he approached accused on 15.02.1990on behalf of his aunt for 7/12 extract and claims that accused put updemand of Rs.500/- for the said work. On negotiations, brought downthe figure at Rs.400/- and directed complainant to pay Rs.200/- inadvance on Monday i.e. 19.02.1990 and remaining after the work.So complaint Exh.80 was lodged with Anti Corruption Bureau, whoplanned trap. It has come in his evidence that, he and shadow panchapproached office of Talathi and then claims to have made inquirywith accused and further claims accused inquiring him whetheramount is brought as demanded. That, accused also questionedcomplainant as to who shadow panch accompanying him andthereafter they went to hotel to take tea and then going to cloth shopof one Babu Yellale and again going to take tea stall and on the waythey meet accused no.2. It is his case that, at that time, accused no.1told complainant to pay amount to accused no.2. While they wereentering Marathwada footwear, accused no.1 asked PW2 Bhimrao tostay back and only he himself, accused no.1 and accused no.2 enteredthe shop. He further deposed that, in the shop accused no.1 asked Cri.Appeal.835.2005-7-him to deliver amount of Rs.200/- to accused no.2 and accordingly itwas done and accused no.2 accepted the currency. After which, bothaccused left the shop and he gave signal, after which raiding partyapprehended both accused. While under cross, in paragraph 13 complainant hasadmitted his acquittance with accused no.2 and accused no.2 to be abusinessmen and that whenever accused no.2 needed money, he tookit from him as well as whenever he himself needed money he took itfrom accused no.2. In further cross-examination he admitted that,after approaching accused no.1 in the office, he allegedly told thatafter election, 7/12 extract be collected. Surprisingly, in furthercross, he admitted that after taking tea in the hotel, accused no.1alone left the hotel, saying that, he is going. He further answeredthat, accused no.1 entered the shop of Babu Yellale and he and panchfollowed accused no.1 and spent 10 minutes in the cloth shop. Heanswered that in said shop again accused told him to come afterelection. He again answered that, only accused no.1 left the clothshop also and started walking and that time accused no.2 met him.He claims that, thereafter again accused no.1 took accused no.2 withhim in the hotel for tea and he answered that thereafter again hehimself and panch, both too entered the hotel. Witness does not speakabout asking accused also to join them in the hotel. He further Cri.Appeal.835.2005-8-answered, after spending 25 to 30 minutes in the hotel, accused no.1alone entered footwear shop. Then he answered in paragraph 14 thataccused no.2 asked him to pay amount of credit as he was in need ofRs.500/- to Rs.1000/- to go for shopping at Nanded. He furtheranswered that, he told accused no.2 that, he does not have suchamount and he only posses Rs.200/- and after conversation, he gaveit to accused no.2. Paragraph 16 are omissions, but the same are notto material. 9.PW2 Bhimrao in his evidence at Exh.92 deposed aboutbeing summoned to ACB office, introduce to complainant, hearing hiscase causing signature over the complaint. He further deposed aboutthe procedure of application of anthracene and instructions issued byInvestigating Officer. That, he was instructed to accompanycomplainant and to be watchful and PW1 being provided with minitape recorder to record conversation. He further deposed that ataround 8:45 a.m., he and PW1 Tukaram went near the house of oneNarba Gunale and entered the office, which was on upper story. Hefurther stated that, accused took them to have a tea near the hotel.After tea, witness deposed that accused no.1 started walking andwent to cloth shop and he himself and PW1 Tukaram following him.He further stated that, accused had asked cloth shop owner BabuYellale to verify whether this witness was really maternal uncle of Cri.Appeal.835.2005-9-PW1 and accordingly Babu making inquiry with him. (evidence ofPW1 is silent on this aspect). He further stated that, PW1 Tukaramtold accused that as told by him, he has brought the amount and totake the amount of Rs.200/- otherwise it would be spent. Thus,apparently, from such version of this witness, it is clear that evenbefore making demand by accused no.1, PW1 himself has offeredbribe. It is further stated that, at that time, accused demandedRs.400/- and that he should give whole amount. This is contrary to itPW1 has already stated that only Rs.200/- were paid on Monday andremaining Rs.200 were to be paid after work is to be done. Witnessfurther stated that, while he and PW1 Tukaram were followingaccused, accused no.2 met them and again PW1 Tukaram and hehimself returned to the said hotel. He deposed that both accused tooktea, after which accused no.1 and PW1 Tukaram went inside the hotelwhile he himself and accused no.2 sitting in the hotel itself. Hefurther deposed that, both accused and PW1 asked him to wait thereonly, but he claims that in spite of it, he followed them to the footwearshop and while he was on the staircase, there were talks betweenaccused no.1 and PW1 Tukaram. What was the actual conservation isnot stated by this witness. He stated that, PW1 Tukaram took outamount from watch pocket and headed it over to accused no.2, whoaccepted it, followed by signal relayed by PW1 Tukaram and raidingparty approached him. Cri.Appeal.835.2005-10- Answers given in paragraph 9 of cross examination ofthis witness, to which attention of this court is invited, are relevant.It is noticed that, this witness in cross examination admitted that,during their visit to the office of accused, he told them that workwould be done after election is over. He admitted that, in the office,accused no.1 had not raised any demand. He also admitted that,during their first visit to the hotel for taking tea also, there was nodemand. He further admitted that they were not instructed to followaccused no.1. He answered that after taking tea in the hotel, accusedno.1 started proceeding alone and that in the cloth shop, he and PW1Tukaram went on their own accord and they were not called byaccused, even when he went to tea stall for the second time. He fairlyadmitted that he does not know what talks took place between PW1Tukaram and accused no.1. ANALYSIS10.Therefore, on complete and careful scrutiny of evidenceof above evidence which is crucial, it does emerge that thesewitnesses are not consistent. It is conspicuously emerging from theanswers given in cross examination, more particularly that of PW2Bhimrao that there was no demand from accused no.1 either at theoffice or at the tea stall or shops. Secondly, answers given by PW2Bhimrao while under cross examination and clear admission that, he Cri.Appeal.835.2005-11-did not hear the conservation between accused no.1 and PW1Tukaram, casts a serious doubt about demand or acceptance. What isstated by PW1 Tukaram about demand of Rs.400/- being made andRs.200/- agreed to be paid on Monday and remaining after the workis over is not finding place in the testimony PW2 Bhimrao, who claimsto have heard the story from complainant during first visit to ACBoffice. From the answers given by PW2 Bhimrao coupled with hisadmission that they themselves on their own accord followed accusedand that they were not asked to join clearly shows that desperateattempt was made to make the trap successful. PW1 Tukaram seemsto have on his own accord offered bribe, even when there was nodemand saying that accused should accept Rs.200/- or else it wouldbe spent. For above reasons, the very aspect of demand has comeunder shadow of doubt. Admittedly, accused no.1 has not acceptedthe cash. 11.Though case of prosecution is that on behalf of accusedno.1, accused no.2 accepted, there is no foundation to show thataccused no.2 acted at the instance of accused no.1, being fully awarethat the amount accepted by him was illegal gratification. On thecontrary, PW1 Tukaram himself has admitted in paragraph 13 thatthere were previous relations between him and accused no.2 andthey both were raising money from each other whenever required. Cri.Appeal.835.2005-12-He has stated that accused no.2 had borrowed Rs.500/- to Rs.1000/-,but PW1 Tukaram informing his inability to meet such demand andrather he could pay Rs.200/-, which he was equipped with. With suchquality of evidence, even if there is acceptance of cash by accusedno.2, it has not been proved beyond reasonable doubt, accused no.2was fully aware that the amount accepted by him was nothing butbribe. Although the owner of the cloth shop and the owner of thefootwear shop were crucial witnesses, they were not examined.12.On complete re-appreciation of the evidence, this court ismore than convinced that, evidence on behalf of prosecution in trialcourt against accused persons is patently weak and fragile. It isunreasonable to expect conviction with such quality of evidence. Theview taken by learned trial Judge is the only view that could emergefrom such evidence. As no case for interference is made out, I passfollowing order.ORDERThe criminal appeal is dismissed. (ABHAY S. WAGHWASE, J.) Tandale