High Court
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{1} CRI APPEAL 774 OF 2006IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 774 OF 2006Bhaginath Mahadev AvhadAge: 42 years, Occu.: Service,R/o. Vithal, Anand Niwas, Tawale Nagar,Near Aurangabad Road, Ahmednagar,Tq. & Dist.Ahmednagar.….Appellant(Ori. Accused) VersusThe State of Maharashtra…..Respondent …..Advocate for Appellant : Mr.Joydeep Chatterji APP for Respondent : Mr.N.D.Batule ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 06 MARCH, 2024 PRONOUNCED ON : 20 MARCH, 2024 JUDGMENT :- 1.Judgment and order passed in Special Case (A/C) No.5 of2001 by learned Judge, Special Court, Ahmednagar on 08-11-2006convicting appellant for offence under Section 7, 13(2) read with13(1)(d) of the Prevention of Corruption Act, is challenged herein byfiling instant appeal.FACTS LEADING TO TRIAL2.PW1 Macchindra, Driver of Minidor Rickshaw was proceeding
Legal Reasoning
{2} CRI APPEAL 774 OF 2006towards MIDC alongwith his family on 22-07-2000. His vehicle wasintercepted by accused, a Policeman and amount of Rs.250/- wasdemanded by way of hafta. His vehicle title documents were alsoseized. As complainant did not want to pay bribe, he approachedAnti Corruption Bureau (ACB), Nashik, lodged complaint exh.10.ACB authorities planned and laid trap. Complainant was made toaccompany shadow pancha and on 27-07-2000, demand was madein presence of shadow pacha and after its acceptance predeterminedsignal was given and accused was caught, arrested and afterinvestigation chargesheeted and tried by learned Judge, SpecialCourt, Ahmednagar, who on appreciation of oral and documentaryevidence, held case of prosecution as proved and convicted appellantfor the offence stated above. Said judgment and order of conviction is now taken exceptionto by filing instant appeal. SUBMISSIONSOn behalf of appellant :3. Learned Counsel for the appellant would point out that thereis false implication. That evidence of complainant shows that thereare several cases against him for traffic violation. That his cross- {3} CRI APPEAL 774 OF 2006examination shows that title documents of his vehicle were notseized by the appellant but by another Officer namely Chavan. Thattestimony of PW1 Macchindra, complainant and PW2 Yuvraj, shadowpancha is not consistent. That there was no demand as bribe.Learned Counsel pointed out that demand was allegedly made on22-07-2000, however, complaint was lodged after five days that tooat Nashik but not at Ahmednagar where there is ACB Officeavailable, therefore, there is apparently deliberate implication. Thatthere was no demand and acceptance, moreover, amount wasthrusted. Learned Counsel further pointed out that case was notproved beyond reasonable doubt. Even there was no propersanction, and there was mechanical sanction granted on the basis ofdraft i.e. without application of mind. Therefore, with such weakevidence, learned trial Court ought not to have recorded the guilt.However, learned trial Judge has erred both in appreciating theevidence as well as law and therefore, judgment being erroneous andnot sustainable in the eyes of law, he prays to allow the appeal bysetting aside the judgment under challenge.On behalf of State :4. Per contra, learned APP submitted that evidence of {4} CRI APPEAL 774 OF 2006complainant and shadow pancha is consistent. They are both lendingsupport to each other. That after lodging complaint, verification wasdone, pre-trap panchanama was drawn in presence of PW2 Yuvraj,independent witness. That there was demand and acceptance.Therefore, offence was complete. That sanction is also valid and bycompetent authority and therefore, it is his submission that no faultcan be found in the guilt recorded by the trial Judge and he prays todismiss the appeal. 5 .This Court, being first appellate Court and last fact findingCourt is expected to re-appreciate, re-analyze and re-examine theentire oral and documentary evidence adduced by prosecution. EVIDENCE ON RECORD6.PW1 Macchindra Narayan Padole is the complainant. Sum andsubstance of his evidence is that he own a Minidor Rickshaw bearingregistration no.MH16 B-6104. According to him, on 22-07-2000,while he was proceeding with his family, the appellant asked him topay hafta of Rs.250/-. Every month he used to pay him hafta. As hedid not comply the demand that day, his wife and children weremade to get down from Rickshaw and his RC Book and licence were {5} CRI APPEAL 774 OF 2006seized by accused and was further threatened that if hafta is not paid,case would be filed against him. Therefore, he went to Nashik andapproached ACB authorities at Nashik. He identified complaintexh.10 lodged by him. He deposed about arriving of panchas,procedure being explained and he and shadow pancha going in thevicinity of Ahmednagar S.T. Stand. According to him, accused calledhim and asked him whether he had brought amount, upon whichcomplainant sought his papers. Again accused threatened to payhafta, complainant finally agreed to pay Rs.250/- and he took outsaid amount from his pocket and gave to accused, who accepted theamount and kept in his pocket. He gave predetermined signal,raiding party arrived and caught accused. 7.PW2 Yuvraj Narayan Bhoye, who was working as a Clerk inCircle Office at Nashik, deposed about being called at ACB office,introduced to complainant, he and complainant both explainedprocedure and given instructions. He deposed about accompanyingcomplainant i.e. near State Excise Office. He deposed that at around06:15 p.m. one person approached in plain dress and questionedcomplainant if he has brought Rs.250/-. Thereafter, complainantremoved amount from pocket and hold in front of accused, who {6} CRI APPEAL 774 OF 2006accepted amount in his hand, counted it and thereafter, immediatelycomplainant gave signal and raiding party apprehended accused.Accused was questioned and he admitted about committing wrong.At the instance of PW2 Yuvraj, shadow pancha, amount was takenfrom his pocket, counted and it tallied as per pre-trap panchanama. 8.PW3 Dhanraj Kesharmal Dayma is the Investigating Officer.9.PW4 Ramrao Narayanrao Wagh is the Police Commissioner,who accorded sanction and he deposed about receiving investigatingpapers, going through the same and granting sanction exh.21. GROUNDS10.Following fundamental grounds are raised in the appeal by theappellant :Firstly, there was no demand of any bribe. Secondly, amount was thrusted in his pocket. Thirdly, variance in testimony of PW1 Macchindra and PW2 Yuvraj astestimony of PW1 Macchindra is silent about amount being counted,which is finding place in the testimony of PW2 Yuvraj. {7} CRI APPEAL 774 OF 2006ANALYSIS11.Sum and substance of PW1 Macchindra / complainant’sevidence is that he plies a Minidor Rickshaw. According to him, on22-7-2000, his vehicle was intercepted by accused at Imperial HotelChowk and he was asked to pay hafta. According to him, everymonth, he used to pay hafta. His RC book and licence were takenaway on that day and he was threatened that if hafta is not paid,cases will be filed against him and his vehicle would be taken incustody. He had been to Nashik and he lodged complaint to ACB.While he and pancha witness were in the vicinity of S.T.Stand,accused called him and asked him whether he brought amount ofRs.250/-. He handed over amount and it was accepted by accused.On taking survey of the cross-examination faced by PW1Macchindra, he is found to be admitting that there were many casesfiled against him under the provisions of Motor Vehicles Act. Headmitted that on 22-06-2000, PSI Chavan had filed case against himfor not having number plate. He also admitted that as he has notpaid fine amount, his driving licence was seized. He admitted thathis licence was with traffic branch from 22-06-2000 to 22-07-2000.He admitted that on 26-07-2000, date, time of payment and placewas not decided. He admitted that on 22-06-2000, he was required {8} CRI APPEAL 774 OF 2006to take another Rickshaw and he was allowed to go and at that timeas his son was running fever, he decided to file complaint againstaccused. He further admitted that had that incident not taken place,he would not have filed complaint against accused. He admitted thathe was waiting for arrival of accused. He also admitted that accusedgiven back his Rickshaw on 22-07-2000.12.PW2 Yuvraj corroborated PW1 Macchindra by stating thatwhen they were in S.T.Stand vicinity, accused said to complainantthat he will have to suspend licence of the Minidor Rickshaw andfurther questioned whether he has brought Rs.250/- as hafta.Complainant held amount before accused and he accepted it,counted it and kept it in his pant pocket and raiding party caughtaccused. In his cross-examination, PW2 Yuvraj has admitted thatcomplaint was not written in his presence. He also admitted that heand complainant were waiting for accused at S.T. Stand. Rest are allirrelevant questions. 13.Pointing out to the above cross-examination, learned Counselfor the appellant submitted that answers given by complainant and {9} CRI APPEAL 774 OF 2006shadow pancha witness categorically show that they were eagerlywaiting for arrival of accused. That complainant has bad trackrecord. He submitted that even complainant admits that “had he notmade to leave the Rickshaw while he was going with the family,while his son was running fever, he would not have lodgedcomplaint”. According to him, complainant’s evidence is silent aboutaccused counting currency but pancha witness specifically states thataccused counted it, therefore, they are at variance. 14. There is no force in above submission. On carefullyappreciating the evidence, mere decision of complainant to approachACB, Nashik instead of Ahmednagar is no a good ground to hold thatthere is attempt of false implication. Similarly, several cases filedagainst complainant for traffic violation also itself cannot be aground to hold that he was falsely implicated. Likewise mere makingcomplainant get down from Rickshaw while he was taking his son,who was running fever and complainant admitting that had thatincident not taken place, he would not have lodged complaint, woulditself not come to rescue of accused as these aspects are distinct thanactual demand by way of hafta. According to complainant, accusedused to regularly demand hafta. There is no challenge to this {10} CRI APPEAL 774 OF 2006version. Thus, there is clear demand of “hafta”. Complainant is verycategorical that it has become usual practice of paying hafta. On thatday, as he did not pay hafta, his vehicle papers were seized andhence, he has approached ACB. PW2 Yuvraj, independent pancha witness is also categoricalthat he and complainant were together and in presence ofindependent pancha witness, accused has again put up a demand andeven accepted the amount and kept in his pocket and thereafter,immediately he was apprehended. He had no plausible explanationto offer for possession of tainted currency. Because of mere omissionor variance in testimony of PW1 Macchindra and PW2 Yuvraj on thepoint of counting currency, no benefit can be derived. 15.Similarly, the interpretation of the word “to wit” finding placein evidence of PW4 Wagh carrying some different dictionary meaningalso will not wash away aspect of demand of hafta and itsacceptance. The sine qua non for bringing home charge is demandof illegal gratification and its acceptance. There is evidence to suchextent here, which has remained unshaken inspite of extensive cross-examination of complainant and shadow pancha. Similarly, sanctioncannot be said to be invalid for mere admission about receipt of draft {11} CRI APPEAL 774 OF 2006sanction unless it is further shown or demonstrated that there was noproper application of mind and mere sanction order received fromACB was shown to be reproduced in verbatim. Consequently, nofault also can be found in the validity of sanction. SUMMATION16.To sum up, here there is both demand and acceptance of illegalgratification. Testimony of PW1 Macchindra and PW2 Yuvraj isinspiring confidence and sanction is valid. There is no explanationfor possession of tainted currency. Consequently, no fault can befound in the conclusion reached at by the learned trial Judge. Nocase being made out on merit, appeal deserves to be dismissed.Accordingly, I proceed to pass following order : ORDERCriminal Appeal No. 774 of 2006 is dismissed. ( ABHAY S. WAGHWASE ) JUDGE 17.On pronouncement of this Judgment, learned Counsel for theappellant prays for six weeks time to surrender so as to enable him toapproach the Hon’ble Apex Court. {12} CRI APPEAL 774 OF 200618.Learned APP strongly opposes the same.19.Considering the above request made by learned Counsel for theappellant, six weeks time is granted for the appellant to surrender. ( ABHAY S. WAGHWASE ) JUDGE SPT