High Court
Legal Reasoning
{1} CRI APPEAL 817 OF 2006IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 817 OF 2006 The State of MaharashtraThroughMr. M.S.Joshi, PI, ACB,Ahmednagar.….Appellant VersusBhausaheb Keshav PundAge: 44 years, Occu.: Police HeadConstable, B.No.1069, R/o. NearKarandikar Hospital, Ahmednagar.....Respondent (Ori. Accused) …APP for Appellant : Mr.S.M.GanachariAdvocate for Respondent : Mr.Satej S. Jadhav … CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 13 FEBRUARY, 2024 PRONOUNCED ON : 21 FEBRUARY, 2024 JUDGMENT :- 1.State is aggrieved by judgment and order passed bythe Special Court, Ahmednagar in Special Case no.6 of 2000 on05-09-2006 i.e. acquitting present respondent from offence underSections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.2.Present respondent was chargesheeted on the allegations thatwhile he was working as Police Constable, he demanded hafta from {2} CRI APPEAL 817 OF 2006complainant, a hotelier, to not to prosecute for sale of liquor withoutpermit / licence.3.Complainant approached ACB authorities as he was not readyto pay hafta of Rs.1000/-, upon which trap was planned and laidand accused was apprehended on accepting demand of bribe in theform of hafta.4.On being chargesheeted for above offence, he was tried beforeJudge, Special Court, Ahmednagar, who on appreciating theevidence, held that prosecution has failed to establish the caseand gave accused benefit of doubt vide judgment and order dated05-09-2006, which is now questioned here. SUBMISSIONSOn behalf of State :5.Learned APP questioning legality and maintainability of theimpugned judgment submitted that here accused was a PoliceConstable, his job was not to verify availability of liquor permit,rather it was job of Excise Department, however, accused interceptedcomplainant while he was in possession of liquor bottles and toprevent action, he demanded hafta of Rs.1,000/-. That complainant
Legal Reasoning
{3} CRI APPEAL 817 OF 2006promptly reported demand to Anti Corruption Bureau (ACB), wholaid trap by arranging Pancha. That pancha, who accompanied complainant as planned, isparty to the episode of demand of hafta. Accused has accepted thetainted currency and was thus apprehended for accepting bribeamount. However, inspite of complainant and pancha beingconsistent in their evidence, their testimony has not been properlyappreciated. According to learned APP, accused himself has admittedabout receiving the amount but false defence is taken that dues fromone Sanjay Kale was accepted by him through complainant and assuch there was no demand of any hafta. According to learned APP,such weak, false and afterthought defence has been accepted by thelearned trial Judge and therefore, he prays to set aside the saidjudgment by allowing the appeal.On behalf of respondent :6.Per contra, learned Counsel for respondent - accused wouldsubmit that prosecution has miserably failed to establish the charges.According to him, though demand is shown, but it was not towardsbribe or illegal gratification. According to him, there was transactionof purchase of sand from DW1 Sanjay Kale and such person was to {4} CRI APPEAL 817 OF 2006repay Rs.1,000/-. That it was conveyed that amount would be paidthrough complainant regarding which there is admission in the cross-examination by very complainant. That the due amount wasaccepted and not any hafta as alleged by complainant or prosecution.He invited attention of the Court to the evidence of the complainantas well as pancha witness. According to him, accused is merelyexpected to probabilize his defence. He has done so here not merelyby taking any plea but has also adduced evidence of said witness.Such testimony has remained intact. That accused succeeded inprobabilizing defence and so according to him, benefit of doubt soextended by learned trial Court cannot be faulted at. Hence, forabove reasons, he prays to dismiss the appeal.ANALYSIS7.On evaluation of evidence, it is emerging that PW1 SuryabhanShankar Gavkhare, who is complainant, at exh.16, deposed that heruns hotel namely Simla Dhaba after obtaining licence from ExciseDept. According to him, in the year 2000, he was caught by accusedwhile he was carrying beer bottles and liquor bottles at Swastikchowk. He was asked licence and was taken to Kotwali Police Stationand even case was filed against him. Further according to him, four {5} CRI APPEAL 817 OF 2006days thereafter, accused visited the hotel, conducted search but as noliquor was found, accused allegedly told him that if he wants to runthe hotel, he should pay Rs.1,000/- to him, therefore, complainantapproached ACB on 13-03-2000 and lodged complaint exh.17. On14-03-2000, he was introduced to panchas, who signed hiscomplaint. He handed over Rs.1,000/- to ACB, who applied powderto it and further handed it back to him to be paid on demand to theaccused. When he and pancha no.1 reached Kotwali Police Station,accused asked him whether he brought amount and accused afteraffirming, suggested to go to sugarcane juice stall. Again demandwas made and so he handed over the amount, which was accepted bythe accused and was apprehended by ACB authorities. 8.In cross-examination he admitted that he had no permission tosell liquor. He answered that he has no criminal case against him. Healso denied that he was found in possession of 12 bottles and denieddrawing any panchanama to that extent. He admitted that his hotelcomes under jurisdiction of Nagar Taluka Police Station and headmitted that accused worked in Kotwali Police Station and his hoteldoes not come in the jurisdiction of Kotwali Police Station. He alsoadmitted that without hearing him, accused filed criminal case {6} CRI APPEAL 817 OF 2006against him and he was chargesheeted and so he was angry. 9.In paragraph 11, complainant has admitted that SanjayRabhaji Kale (DW1) is his relative and he is in business of supply ofsand and further admitted that accused gave him message to tell saidSanjay to pay Rs.1,000/- about their transaction and he gave saidmessage and further admitted that Sanjay had given amount to pay itto accused. Rest is all denial.10.PW2 Suhas Haribhau Gobare, shadow pancha, deposed that hewas called to ACB Office, he introduced to PW1 Suryabhan, he readcomplaint exh.17, regarding application of anthracene powder tocurrency, thereafter it being handed over to accused with instructionsto pay on demand and this witness asked to watch the proceedings,pre-tra panchanama exh.19 being drawn. He further deposed that heand complainant reached Kotwali Police Station and they went tosugarcane juice stall, accused ordered juice and asked complainantwhether he brought the amount and complainant immediatelyhanded over the amount, which was accepted by accused and onsignal, raiding party arrived and apprehended accused and furtherprocedural formalities being completed like post trap panchanama,statement of accused etc. {7} CRI APPEAL 817 OF 200611.Relevant cross-examination is in paragraph 8 wherein abovewitness has answered that complainant was instructed to open topicof hotel but complainant never discussed about it. He admitted thatno discussion took place in his presence between complainant andaccused for what purpose amount was paid and for what purpose itwas accepted. He also admitted that accused told Police that he hadnot demanded bribe amount. He admitted that accused, when wastaken to Police Station, was confused. 12.PW3 Ajit Vasantrao Patil is sanctioning authority.PW4 Manohar Shankar Joshi, is Investigating Officer, whonarrated all steps since receipt of complaint till filing of chargesheet. 13.Here record shows that accused has also adduced evidence ofdefence witness DW1 Sanjay Rabhaji Kale at exh.42. DW1 Sanjaydeposed about conducting business of sand supply, knowingcomplainant Suryabhan, who is his relative as well as knowingaccused. He deposed that accused placed order for supply of sandfor construction of his house and about amount of Rs.1,000/- duetowards him after settling the accounts. He stated that accused toldhim to pay the amount through complainant. In March 2000,complainant told him that accused is demanding Rs.1,000/- for his {8} CRI APPEAL 817 OF 2006transaction and so he paid Rs.1,000/- to complainant to be furtherpaid to accused. While under cross-examination, he answered that there is noevidence about he running sand business nor he maintained accountsof supply of sand to accused. Rest is all denial about Rs.1,000/-dues, amount not sent through complainant and that there was notransaction.14.On analyzing above evidence, here complainant is a hotelieri.e. running a Dhaba. His evidence shows that he admitted that hedid not have licence to sell liquor. He has admitted that he wasbooked and criminal cases were filed and as such he was upset. Incross-examination, he has candidly admitted that accused gave himmessage to tell DW1 Sanjay to pay 1,000/- toward transaction and hepassed said message and he also admitted that DW1 Sanjay hadgiven amount to be paid to the accused. Even PW2 Suhas, shadowpancha, while under cross-examination admitted that there was nospecific discussion between complainant and accused at sugarcanejuice center for what purpose amount was demanded and paid. 15.It is also pertinent to note that accused is from PoliceDepartment and was at that time posted at Kotwali Police Station {9} CRI APPEAL 817 OF 2006whereas alleged hotel run by complainant is not in jurisdiction ofKotwali Police Station, therefore, case set up about demanding haftais rendered doubtful. 16.Neither complainant nor shadow pancha are found to bedeposing about accused making demand for not taking action.Complainant has admitted that he has already been booked andchargesheeted and therefore, question of demanding bribe for nottaking action or by way of hafta also becomes doubtful. 17.Here defence has not only set up case of due amount fromdefence witness to be paid to him via complainant, complainant hashimself admitted about receiving message from DW1 Sanjay aboutdemand towards due transaction at the hands of DW1 Sanjay and hetaking said amount from DW1 Sanjay to be paid to accused.Therefore, defence not only probablized but has also substantiatedhis defence by examining DW1 Sanjay.CONCLUSION18. Resultantly, here on taking close scrutiny of prosecutionevidence, answers given by complainant and his cross-examination,case of prosecution cannot be said to be proved beyond reasonable {10} CRI APPEAL 817 OF 2006doubt that illegal gratification / bribe / hafta was demanded andeven accepted. Hence, with such evidence, view taken by learnedtrial Judge is the most possible view that could emerge even on re-appreciation of evidence. No case being made out on merits to upsetor interfere in the findings of the learned trial Court, appeal deservesto be dismissed. Accordingly, I proceed to pass following order : ORDERCriminal Appeal No.817 of 2006 is dismissed ( ABHAY S. WAGHWASE ) JUDGE SPT