High Court · 2024

Legal Reasoning

-1- ALS-218-2019IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPLICATION FOR LEAVE TO APPEAL BY STATE NO.218 OF 2019The State of Maharashtra, ThroughShri S. R. Kauthale, Police Inspector, Anti Corruption Bureau, Aurangabad… ApplicantVersusRaosaheb s/o. Shankarrao Bomble, Age : 54 years, Occu. Police Head Constable, B. No. 524, Police Station Bidkin, Dist. Aurangabad.… Respondent(Orig. Accused)…Mr. S. M. Ganachari, APP for Applicant – StateMr. Kishor Gadve Patil, Advocate for Respondent - Sole... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 07 FEBRUARY 2024PRONOUNCED ON : 15 FEBRUARY 2024ORDER : 1.Dissatisfied by the judgment and order of acquittaldated 20.10.2018 passed by learned Special Judge (under P.C.Act), Aurangabad acquitting respondent from offence undersection 7, 13(1)(d) read with section 13(2) of Prevention ofCorruption Act, 1988, (P.C. Act), as State intends to prefer appealinstant leave application is pressed into service. 2.Learned APP would submit that, one Shaikh AkbarShaikh Mehboob was booked for offence under sections 379 and -2- ALS-218-2019353 of Indian Penal Code (IPC) and section 27(1), (2), (3), (4) and(5) of Mines and Minerals Act, on complaint lodged by TalathiDeepak Patki. That, as a result of such crime, De facto complainanthad sought anticipatory bail and had been to Bidkin police station,approached present respondent accused and handed him the copyof bail order. It is pointed out that, accused said to him that thoughhe has succeeding in getting anticipatory bail order, he wouldinitiate prohibition proceedings against de facto complainant andagain produce him before same Tahsildar and would sent himbehind the bars. 3.Further accused suggested that, he could help him ininvestigation and other thing, but on payment of Rs.15,000/- as abribe. Finally after settlement, it is pointed out that, accusedagreed to obtain Rs.10,000/-, but as de facto complainant was notwilling to pay the bribe amount, he approached Anti CorruptionBureau and lodged complaint against accused and Anti CorruptionBureau (ACB) authorities planned and laid trap by arranging twopanchas. 4.It is pointed out that, all necessary proceduralformalities like verifying demand in presence of panchas, drawingpre-trap panchanama, handing over tainted currency notes toaccused with direction to complainant and panch to go together -3- ALS-218-2019and to pay amount on demand and then give signal were explainedand scrupulously followed. He pointed out that, directions werealso issued to use tape recorded to record the conversation. That,bribe amount was demanded on said day at the spot suggested byaccused and after tainted currency was accepted by way of bribe, itis pointed out that, accused was apprehended. His hands onexamination under u/v light reflected anthracene. Therefore,offence was complete. Both demand and acceptance being proved,and independent witnesses examined, learned APP submitted thatprosecution had succeeded in bringing home the charge, butlearned trial Judge unfortunately acquitted the accused ontechnical ground, like failure to prove demand and want of validsanction. Thus it is submitted that, State has a good case on meritsand hence he seeks leave.5.On the other hand, learned counsel for respondentaccused would point out that, offence under PC Act is required to beproved beyond reasonable doubt and that is the settled legalposition. According to him, first and foremost prosecution has toestablish that demand of illegal gratification and bribe wasnecessarily to be proved. That, it was expected of prosecution todemonstrate that some favour was sought in doing or not doingillegal act. Here, prosecution failed to establish very demand. He -4- ALS-218-2019pointed out that, both complainant and panch witness candidlyadmitted that, demand of bribe was never sought and even taperecorded conversation was silent on such crucial aspect. Hefurther submitted that, even sanction to prosecute was accordedby authority, which was not authorized to accord sanction and assuch the sanction not vitiated. Thus, according to him, there werefatal lacunas and therefore trial Judge committed no error andhence he prays to refuse the leave. 6.After considering the above submissions and on goingthrough the papers as well as impugned Judgment dated20.10.2018 in Special Case (ACB) No. 7 of 2012, it is emergingthat, one Shaikh Akbar Shaikh Mehboob R/o Chitegaon was bookedfor offence punishable under sections 379 and 353 of IPC and forviolating provisions of Mines and Minerals Act. Case set up byprosecution in trial court was that, when said person approachedBidkin Police Station getting equipped with anticipatory bail order,it is alleged that accused threatened to implicate him and initiateprohibitory proceedings and further offered to help in theinvestigation of the crime in which he was booked and thereforedemand of Rs.15,000/- was made. It is further case of prosecutionthat, on negotiation the figure was brought down. -5- ALS-218-20197.It is further case of prosecution that, de factocomplainant Shaikh Akbar Shaikh Mehboob was not willing to givethe bribe amount and therefore he lodged complaint with AntiCorruption Bureau, which was entertained, panchas were arrangedand both complainant and panchas were apprised about theprocedure. They were directed to carry tainted currency notes andthe tape recorded to record conversation between complainant andaccused and after demand and acceptance to give predeterminedsignal. 8.On going through the record and judgment of trialcourt, it transpires that, after lodgment of complaint dated15.12.2011 and after completion of formalities, complainant andshadow panch left the ACB office to meet accused on 16.12.2011 ataround 9:35 a.m. and they all sent at S.S. Transport Office. Raidingparty was waiting in lay. Complainant paid Rs.10,000/- andaccused kept it in his back paint pocket and thereafter signal wasgiven and accused was to be apprehended. 9.In support of the case, evidence of de factocomplainant, panch, Investigating Officer and sanctioningauthority has been adduced by the prosecution. Complainant andpanch reiterated about complaint being verified, verification of -6- ALS-218-2019demand being done, very trap panchanama being drawn,procedure of application of anthracene powder being explained anddemanded amount carried by complainant with instructions to payon demand and accused demanded and accepted the amount andtherefore was apprehended. 10.However, it has been brought to the notice of this courtby learned counsel for respondent accused that here very crucialaspect of demand which is sine qua non has not been proved. Heinvited attention of this court to the cross examination ofcomplainant as well as panch witness.11.In the light of such submissions and on going throughthe cross of complainant, more particularly in para 20 of thejudgment, it is emerging that, he has admitted that afterapproaching police station with anticipatory bail order and whilefurnishing bail, there was no demand of money by accused. Evenduring telephonic call accused had not spoken about the money.Likewise, PW2 though reiterated in chief about acting as a panch,verifying complaint getting acquainted with procedure,accompanying accused to pay on demand, he also while undercross in para 26 of the judgment has admitted that, on 15.12.2011i.e. on the day of verification, during the talks accused has not -7- ALS-218-2019opened the subject of money. Further, Investigating Officer in crossis also to be found admitting and there were talks betweencomplainant and accused on phone, there was no demand fromcomplainant. Therefore, above discussed material clearly showsthat the crucial aspect of demand has not been cogently provedbeyond reasonable doubt. Though attempt to record conversationwas made, there is no conversation regarding demand.12.Even in this case accused was said to be working asPolice Head Constable, sanction to prosecute him seems to be byAdditional Superintendent of Police while he was merely holdingadditional charge. This was also fatal to the prosecution. 13.Learned trial court seems to have elaborately dealt anddiscussed evidence of prosecution, substantive evidence has beenscrupulously dealt and thereafter judgment of acquittal has beenrendered. Judgment apparently said to be reasoned one andtherefore in the considered opinion of this court when demand isnot proved and there is no proper sanction, the view adopted bylearned trial Judge cannot be faulted. In the considered opinion ofthis court, no fruitful purpose would be served by granting leavewith such quality of evidence on record. Hence, I proceed to passthe following order :- -8- ALS-218-2019ORDERThe application stands rejected. (ABHAY S. WAGHWASE, J.) Tandale