Arjun Bajirao Kale vs The State Of Maharashtra
2008 Latest Caselaw 52 Bom

                                    1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                       
               CRIMINAL APPELLATE JURISDICTION




                                               
                   CRIMINAL APPEAL NO.62 OF 2007


     Arjun Bajirao Kale                 )
     age 58 years, Occ: service         )




                                              
     R/o. 142 Asra Colony,              )
     Solapur, Dist: Solapur.            ) ..... Appellant.
                                        (Original Accused)
             V/s




                                  
     The State of Maharashtra
                     ig                 )...... Respondent
                                        (Original Complainant)
     ----
     Mr. B.R. Patil for the appellant.
                   
     Mr. D.P. Adsule, APP for the State.
     ----

                           CORAM: V.M. KANADE, J.

DATE : 12th November, 2008

ORAL JUDGMENT:

1. Heard the learned Counsel appearing on behalf of the

appellant and the learned APP appearing on behalf of the State.

2. Appellant has filed this appeal, challenging the

judgment and order passed by the Special Judge, Solapur dated

07/12/2006 whereby the learned Judge was pleased to convict

the appellant for the offence punishable under section 7 of the

Prevention of Corruption Act, 1988 and sentenced him to suffer

rigorous imprisonment for two years and to pay fine of

Rs 20,000/- and, in default of payment of fine, to suffer further

rigorous imprisonment for one year and the learned Judge also

convicted him for the offence punishable under section 13(1)(d)

and 13(2) of the Prevention of Corruption Act and sentenced him

to suffer rigorous imprisonment for three years and to pay fine of

Rs. 30,000/- and, in default of payment of fine, to suffer further

rigorous imprisonment for one and half years.

3. Prosecution case, in brief, is that the appellant was

serving as a Senior Police Inspector in Vijapur Naka Police

Station at Solapur. Prosecution case is that he demanded an

amount of Rs 50,000/- from the complainant by threatening to

arrest him and his servant in counterfeit currency case.

Prosecution case is that, initially, some amount was paid by the

complainant and the accused demanded balance amount of

Rs. 25,000/-. Complainant - Bharat Pandurang Jadhav filed a

complaint with the Anti Corruption Bureau. The currency

notes of Rs 25,000/- were covered with anthracene powder and

the pre-trap panchanama was prepared. The Investigating

Officer took raiding party to the Police Station and the

complainant and the panch witness Madan Kulkarni entered the

cabin of the accused. Prosecution case is that the accused

demanded money from the complainant and, thereafter, the

complainant handed over the said tainted money to the accused

in the presence of panch witness and, thereafter, gave pre-

arranged signal. The accused put the said amount in his pocket

and, as a result, impressions of anthracene powder were found

on his hand. The accused was, thereafter, arrested. Sanction to

prosecute the accused was granted by the Additional Director

General of Police.

4. Prosecution examined in all 11 witnesses. P.W. 4 -

Bharat Pandurang Jadhav who was the complainant, in cross-

examination did not support the prosecution case and he was

declared hostile with the leave of the Court. P.W. 8 - Shriniwas

Madam also turned hostile. The panch witness P.W. 5 - Madan

Kulkarni, however, supported the prosecution case and stated

that the money was demanded in his presence and it was

accepted in his presence by the accused.

5. Trial Court relied on the testimony of P.W. 5 -

Madan Kulkarni who was the panch witness, though P.W. 4,

who was the complainant, turned hostile and on the basis of the

said evidence held that the demand had been established by the

prosecution and that the acceptance also was proved beyond

reasonable doubt. On the basis of this evidence, Trial Court

convicted the accused.

6. Shri Patil, the learned Counsel appearing on behalf of

the appellant submitted that the demand was the foundation of

the case under the Prevention of Corruption Act and unless

demand is conclusively established by the prosecution, mere

acceptance of money was not sufficient to convict the accused.

In support of the said submission, Counsel for the appellant

relied upon two judgments; one of the Supreme Court in Sat

Paul v. Delhi Administration reported in AIR 1976 SC 294

and the another of this Court in Pandharinath Shelke v. State of

Maharashtra reported in 2005(2) Bom. C.R. (Cri) 940. He

submitted that the complainant P.W. 4 had turned hostile and,

therefore, no reliance could be placed on his testimony. He

further submitted that P.W. 9 - Rajkumar Shriman, initially, was

named as an accused by the prosecution. However, no charge-

sheet was filed against him and, subsequently, the prosecution

has examined him as prosecution witness. He submitted that,

therefore, no reliance could be placed on his testimony since he

was an interested witness and the police obviously had favoured

him by not making him an accused in the case. He submitted

that, therefore, on the sole uncorroborated testimony of panch

witness P.W. 5, it could not be held that the demand had been

proved by the prosecution.

7. Shri Adsule, the learned APP appearing on behalf of

the State, on the other hand, submitted that the Trial Court had

rightly observed in para 39 of its judgment that though P.W. 4 -

Bharat Pandurang Jadhav has turned hostile, his testimony was

corroborated by P.W. 5 - Madan Kulkarni and by the

Investigating Officer and, therefore, the said testimony clearly

established the demand made by the appellant. He invited my

attention to the deposition of P.W. 5 - Madan Kulkarni and

submitted that his testimony was not shaken in cross-

examination by the defence. He submitted that this is a case of

Police Officer accepting bribe for the purpose of not prosecuting

the criminal and, as such, it is a grave case of misconduct as per

the provisions of Prevention of Corruption Act, 1988. He,

therefore, submitted that no leniency should be shown to such

appellant who had demanded bribe from the offender for the

purpose of rescuing him from the prosecution.

8. It is a well settled position in law that demand of

bribe is a foundation in a case under the Prevention of

Corruption Act. Mere acceptance of money, by itself, would not

be sufficient for the purpose of convicting the accused who is

charged with an offence punishable under section 7 and section

13(1)(d) and 13(2) of the Prevention of Corruption Act. In the

present case, the accused has admitted having accepted the said

amount of Rs 25,000/-. In his cross-examination, P.W. 4 -

Bharat Pandurang Jadhav has admitted that he had entered the

cabin of the appellant alone and had inquired abut whether P.W.

9 - Rajkumar Shriman had come to the Police Station. The

accused replied in the negative and, thereafter, P.W. 4 has stated

that he went out and again entered the cabin after some time and,

thereafter, informed the appellant that he was to pay some

amount to P.W. 9 - Rajkumar Shriman. However, he was not

found in the premises. He, therefore, requested the

appellant/accused to deliver the amount of Rs 25,000/- to him

and the accused, therefore, accepted the said amount. Though

P.W. 4 in his examination-in-chief has stated that the accused

had demanded the amount towards bribe, in the cross-

examination he has admitted the defence of the accused. Under

these circumstances, therefore, it has to be seen whether theory

of demand has been established by the prosecution.

9.

The learned Counsel appearing on behalf of the

appellant has relied upon the judgment of the Supreme Court in

the case of Sat Paul (supra). The ratio of the said judgment is

squarely applicable to the facts of the present case. In the said

case, it was held by the Apex Court that it was necessary to see

whether there was corroboration to the evidence of the

complainant regarding bribe, by other witnesses. In the present

case, the complainant has resiled from his earlier testimony.

P.W. 8 - Shriniwas Madam also has turned hostile. P.W. 9 -

Rajkumar Shriman, admittedly, was initially named as an

accused but, subsequently, when charge-sheet was filed, his

name was dropped from the array of the accused and he was

examined as witness. This witness does not state as to what

transpired in the cabin of the accused but has stated about the

demand made by the accused before the pre-trap panchanama.

No reliance, therefore, could be placed on the testimony of this

witness, firstly because he is an interested witness and, secondly,

because the Police have obliged him by dropping his name from

the list of the accused in the case. The only other witness who

has deposed about the demand of bribe is P.W. 5 - Madan

Kulkarni. Madan Kulkarni has, in his evidence, stated that he,

alongwith the complainant, had gone inside the cabin of the

accused and, at that time, the accused demanded bribe and the

complainant had paid the said amount in his presence. Apart

from this evidence, there is no evidence of any other witness on

the question of demand of illegal gratification. Thus, there are to

contrary versions which are given by two witnesses. The

complainant P.W. 4 - Bharat Pandurang Jadhav has, in his

evidence, categorically stated that he alone went inside the cabin.

This admission has been given by him in his cross-examination.

Trial Court, in my view, erred in accepting the version given by

this witness in his examination-in-chief which was totally

demolished by the defence by getting an admission from him in

the cross-examination. In my view, therefore, it was not open

for the Trial Court to have relied on that part of the examination-

in-chief which has been demolished in cross-examination.

Finding recording by the Trial Court in para 39 of its judgment,

therefore, is clearly illegal and is not supported by any authority

or provision of law.

10. Another aspect which has to be taken into

consideration is that ig the prosecution witnesses viz P.W. 4

and P.W. 9 are history-sheeters and had a good reason for

implicating the appellant who was the Senior Police Inspector.

P.W. 4 in his cross-examination has admitted that, initially, he

was carrying on business of manufacturing and selling illicit

liquor. He and his three brothers all were involved in number of

cases of extortion, murder and other serious offences. He also

admitted that some of the cases against him were pending in the

Court. P.W. 9 also was sailing in the same boat. P.W. 5 -

Madan Kulkarni, on the other hand, who is a panch witness, has

stated in his evidence that he, alongwith the complainant, had

gone inside the cabin of the accused and, at that time, the

accused demanded bribe and the complainant had paid the said

amount in his presence. The question is whether on the sole

testimony of panch witness, it could be held that the demand has

been proved? In my view, benefit of doubt will have to be given

to the appellant/accused. Therefore, in my view, on the sole

uncorroborated testimony of P.W. 5 - Madan Kulkarni, it cannot

be held that the demand has been established by the prosecution.

The apex court in the case of Sat Paul (supra) has observed that

if, in a given case, the whole of the testimony of the witness is

impugned, and in the process, the witness stands squarely and

totally discredited, the judge should, as a matter of prudence,

discard his evidence in toto. It will be fruitful to refer to the

observations made by the Apex Court in para 20 and 21 of its

judgment in the case of Sat Paul (supra), which read as under:-

"20. The courts below have believed the word of these pimps and women of easy

virtue, that the appellant did all this to extort a bribe. The trial court with reference to certain observations of Dua J in Ram Sarup's case (1967 Cri LJ 744 Delhi) ibid, treated the "shady and

questionable characteristics" of these witnesses as a point in favour of the prosecution. It argued that persons with such antecedents can be easily exploited by corrupt police officers for extorting bribes. Thus, in a way, what was a stigma was considered a badge of honour. We are, with respect, unable to appreciate this reasoning. The observations in Ram

Sarup's case, were not intended to lay down a rule of universal application.

Indeed, for weighing evidence there can be no specific canon. No generalisation

is possible in such matters. Each case has its own features and each witness his own peculiarities. Here was a police officer with an unblemished record rather an outstanding record of 19 years' service.

Such an officer would be least disposed to countenance pimping within his territorial jurisdiction. He must therefore have been an eye-sore to them. It could

not therefore be said that these witnesses had no motive whatever to falsely

implicate the appellant."

"21. Thus the conduct of the appellant

in restraining Ramesh for interrogation, could be the innocent act of an honest and duty-conscious Police Officer."

In the present case also, on the one hand, there is an appellant

who is a Police Officer having long unblemished service and on

the other hand there are P.W. 4 and P.W. 8 who are history-

sheeters and who definitely had an axe to grind against the

present appellant. Complainant P.W. 4 - Bharat Pandurang

Jadhav in his cross-examination resiled from his statement and

did not support the prosecution case. P.W. 8 also turned hostile.

P.W. 9 was obliged by the prosecution by deleting his name

from the array of the accused. The observations made by the

Apex Court in the case of Sat Paul (supra) will squarely apply to

the facts of the present case. The explanation given by the

accused that the money was handed over to him for the purpose

of giving it to another person, therefore, appears to be the

probable defence. Under these circumstances, the judgment and

order of the Trial Court will have to be set aside.

11. Accordingly, the following order is passed:-

ig ORDER

In the result, appeal is allowed. The judgment and order of the Trial Court is set aside. Appellant is acquitted of the offence punishable under section 7 and under section 13(1)(d)

read with section 13(2) of the Prevention of Corruption Act, 1988. The amount of fine which is paid by the appellant may be

returned to him. His bail bonds stand cancelled.

Appeal is disposed of in the aforesaid terms.

(V.M. KANADE, J.)