Bombay High Court
Jawan Singh Ramsingh Gaud & Anr vs The State Of Maharashtra on 8 March, 2016
Bench: A.M. Thipsay
Tilak 1/31 (901)APEAL-349-03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.349 OF 2003
1) Jawansingh Ramsingh Gaud
2) Umesh Manohar Ambre .. Appellants
Versus
The State of Maharashtra .. Respondent
---
Mr. Satyavrat Joshi, Advocate for the appellants.
Mr.V.B. Konde Deshmukh, APP for the Respondent State.
---
CORAM : ABHAY M. THIPSAY, J.
DATED : 8th MARCH, 2016
---
JUDGMENT :
1 The appellants were prosecuted on the allegation of
having committed offences punishable under Prevention of
Corruption Act, 1988 (for short 'the P.C. Act') The appellant no.1,
at the material time, was a Sub-Inspector of Police. The appellant
no.2 was not a public servant. The learned Special Judge for
Greater Mumbai (appointed under section 3 of the P.C. Act) after
holding a trial, convicted the appellant no.1 of offences punishable
Tilak 2/31 (901)APEAL-349-03
under section 7 and section 13(2) r/w section 13(1)(d) of the
Prevention of Corruption Act and sentenced him to suffer Rigorous
Imprisonment for 1(one) year, and to pay a fine of Rs.2,000/- on
each of the said two counts. The learned Special Judge convicted
the appellant no.2 of an offence punishable under section 12 of
the P.C. Act read with section 7 thereof, and sentenced him to
suffer RI for 1(one) year and to pay a fine of Rs.2,000/-. Being
aggrieved by their conviction and the sentences imposed upon
them by the learned Special Judge, the appellants have
approached this Court by filing the present Appeal.
2 The prosecution case, as put forth before the trial
Court, in brief be stated thus :-
(a) One George Williams was doing the business of
Overseas Recruitment and Exports in Leather and Garments. He
had his office at Chembur. He had a licence for running his
aforesaid business. Reports had been lodged against the said
Williams with the police alleging commission of offences
punishable under Section 420 of the IPC and 506 II of the IPC read
with section 114 thereof. Two criminal cases in that regard were
registered against the said Williams. In the course of investigation
of one of these cases, i.e. C.R.No. 792/95 which was in respect of
Tilak 3/31 (901)APEAL-349-03
an offence punishable under Section 420 IPC, 138 passports were
seized by the appellant no.1 from the said Williams. These
passports, apparently, were belonging to different persons who
had approached the said Williams for getting Overseas
Recruitment. Williams had filed an application for return of the
said passports to him which was pending before the Addl. Chief
Metropolitan Magistrate, 11th Court at Kurla. Notice of this
application was given to the appellant no.1. That, on 18 th January
1996, the appellant no.1 called the said Williams to Ghatla village
Police Chowky of Chembur Police Station, and told him that unless
an amount of Rs.20,000/- was paid to him, he would not give 'No
Objection' for return of the passports seized by him. After
bargaining, the appellant no.1 reduced the amount to
Rs.10,000/-. Williams requested the appellant no.1 for some time
to make arrangements for the payment of the said amount. The
appellant no.1, however, made it clear that if payment would not
be made, he would not submit his report to the Court on 22 nd
January 1996 which was the date for the hearing of the
application for return of the passports. The appellant no.1 did not
submit his report to the Magistrate on 22 nd January 1996, and the
matter was then adjourned to 25th January 1996.
Tilak 4/31 (901)APEAL-349-03
(b) That on 21st January 1996, at about 8.25 a.m, the
appellant no.1 contacted Williams on his pager, and demanded an
amount of Rs.10,000/- to be delivered at Hotel Malhar, Chembur
at 10.00 p.m. Williams (hereinafter referred to as 'the
complainant') did not want to pay that amount and lodged a
report with the Anti Corruption Bureau (ACB) at about 4.30 p.m
on the same day i.e. 23rd January 1996. The said report (Exhibit-
41) was recorded by PI Anil Ghuge (PW 3), and a crime was
registered against the appellant no.1.
(c) PI Ghuge then issued a requisition letter to Director,
BDD Chawl, Worli, for sending two members of his staff to act as
panchas. In response, Navnath Pelnekar (PW 1) and one Shri
Mahadik were sent to the ACB office to act as panchas. After
following usual procedure, and by using Anthracin powder, a trap
was laid. Panch Pelnekar (PW 1) was to accompany the
complainant to Hotel Malhar, remain with the complainant
throughout and was to listen to the conversation and observe the
developments. Pre-trap panchnama (Exhibit-15) was prepared.
(d) The police party and panchas then came to Chembur
by police vehicles. The vehicles were stopped at a place
Tilak 5/31 (901)APEAL-349-03
apparently near Hotel Malhar, and from there, the complainant
and panch Pelnekar went to Hotel Malhar by walking. The other
members of the raiding party followed them by maintaining some
distance. The complainant and Pelnekar went to the Restaurant
and Bar situate in the basement of Hotel Malhar and occupied
seats on two different, but adjacent tables. PI Ghuge (PW 3), ACP
Patil and a Police Naik also went to the basement and occupied
seats at the table which had been occupied by Pelnekar. That, at
about 10.45 pm, the appellant no.1 and appellant no.2 both came
to the Hotel and joined the complainant at the table where the
complainant had been sitting. The appellant no.1 occupied a chair
on the left of the complainant and the appellant no.2 occupied a
chair opposite the complainant. Then, there was discussion
between the complainant and the appellant no.1 regarding the
criminal case and the matter of giving 'No objection' certificate for
return of passport was also discussed. The complainant took out
the tainted currency notes from his left chest pocket and gave
them to the appellant no.1, who accepted the same in a napkin
which was on the table. He then gave the tainted currency notes
wrapped in the napkin, to the appellant no.2. The appellant no.2
counted the notes and kept them in the pocket of his pants. The
complainant then gave the pre-determined signal, whereupon ACP
Tilak 6/31 (901)APEAL-349-03
Patil who was leading the raiding party, apprehended the appellant
no.1, and other members of the raiding party apprehended the
appellant no.2. The appellant no.1 was in uniform and was
having his service revolver, which was taken charge of by ACP
Patil. Traces of Anthracin powder were found on the shirt and
hand of the appellant no.1. The currency notes were recovered
from the pant pocket of the appellant no.2 and traces of Anthracin
powder were found on his left pant pocket as also on his hand.
Post-trap panchnama was drawn. Some further investigation was
carried out and both the appellants were placed under arrest.
After completion of investigation, a charge-sheet alleging
commission of the aforesaid offences was filed against the
appellants, who as aforesaid, were tried, convicted and sentenced.
3 The prosecution examined three witnesses during the
trial. Panch Pelnekar is the first witness while Yadavrao Pawar
working as Additional Commissioner of Police, at the material
time, is the second witness for the prosecution. He is the one who
has granted sanction, as contemplated under section 19 of the P.C
Act for the prosecution of the appellant no.1. The third witness is
PI Ghuge who was a member of the raiding party.
Tilak 7/31 (901)APEAL-349-03
4 The complainant himself was not examined during
the trial. It was reported that he was not available for giving
evidence.
5 I have heard Mr.Satyavrat Joshi, learned counsel for
the appellants. I have heard Mr.V.B. Konde Deshmukh, learned
APP for the State. With their assistance, I have gone through the
entire evidence - oral and documentary - adduced during the
trial. I have carefully gone through the impugned judgment.
6 Mr.Satyavrat Joshi, the learned counsel for the
appellants contended that since the complainant was not
examined, the prosecution case with respect to the initial demand
could not have been proved. He submitted that the non-
examination of the complainant is a fatal weakness in the
prosecution case, and that, the appellants were entitled to be
acquitted only because of the said reason without the requirment
to consider other evidence. He submitted that apart from this, the
trap had been laid on the basis of the version of a complainant
who, admittedly, had a criminal record and who obviously had a
grudge against the appellant no.1. He also submitted that the trap
Tilak 8/31 (901)APEAL-349-03
had been laid without making any verification of the alleged
demand for bribe which was contrary to the judicial requirements.
He also submitted that there were inherent weaknesses in the
prosecution case and the prosecution version was not credible. He
submitted that the appellant no.1 had taken a defence that
complainant had invited him to Hotel Malhar by telling him that
he (complainant) would be able to give some information
regarding the criminals involved in a case which was being
investigated by the appellant no.1. That, the appellant no.1 was
lured into coming to Hotel Malhar by the complainant by saying
that one criminal who was wanted in a case that was being
investigated by the appellant no.1, was likely to come to Hotel
Malhar at the material time. The learned counsel for the
appellants also contended that the version as to what happened
after the FIR was registered and the trap was laid, as given by
panch Pelnekar and PI Ghuge, is not uniform, and that there are
several variations in their version which include variations about
the places occupied by the complainant, the appellants, the panch
and the other members of raiding party. According to him, the
order of conviction being improper and not in accordance with
law, needs to be set aside.
Tilak 9/31 (901)APEAL-349-03
7 Mr.V.B. Konde Deshmukh, learned APP, on the other
hand, contended that the impugned judgment is proper and legal.
It is submitted that though the complainant was not examined as a
witness - as he could not be traced - the evidence of panch
Pelnekar and PI Ghuge was sufficient to prove a demand of illegal
gratification and the acceptance thereof by the appellant no.1. It
is submitted that the appellant no.2 had abeted the commission of
the offences by the appellant no.1 and that, he therefore, had also
been rightly convicted.
8 It cannot be doubted that want of evidence of the
complainant has rendered the prosecution case rather weak.
Undoubtedly, it is said that the complainant was not examined as
he had absconded and that, that was the reason for not examining
him, but even this aspect of the matter is challenged by the
learned counsel for the appellants who contended that there was
no satisfactory material showing that all possible efforts were
made by the prosecution to secure the presence of the
complainant. It was submitted that in the absence of such
material, it would be proper to draw an adverse inference against
the prosecution from the non-examination of the complainant as a
Tilak 10/31 (901)APEAL-349-03
witness. Without going into the question as to whether the non-
examination of the complainant was deliberate, or whether
sufficient and proper efforts were not made to procure the
presence of the complainant, and without going to the extent of
drawing an adverse inference against the prosecution because of
the non-examination of the complainant, what needs to be
observed is that the complainant would be the most material
witness in such cases and his non-availability - even if for genuine
and bonafide reasons - is bound to affect the prosecution case
seriously. In trap cases under the P.C Act, the complainant would
be the most material witness with respect to the evidence of initial
demand and it is too obvious to emphasize that non-examination
of the complainant would render the prosecution case,
considerably weak. Though one may not go to the extent of saying
that the non-examination of the complainant must invariably result
in the acquittal of the accused persons in such cases, one cannot
ignore that it would be difficult to achieve the requisite satisfaction
about the guilt of the accused persons in the absence of the evidence
of the complainant.
9 The learned counsel for the appellants advanced some
contentions to the effect that the appellant no.1 could not have
Tilak 11/31 (901)APEAL-349-03
had any motive to demand any gratification for giving 'No
objection" to the return of the passports that had been seized by
appellant no.1 from the custody of the complainant. It was
contended that the say objecting to the return of the passports,
had already been signed by the appellant no.1 on 22 nd January
1996 itself, and that, there was no question of the appellant no.1
demanding any gratification for giving 'No Objection' for the
return of the passports in question to the complainant. I am,
however, not impressed by the contentions to this effect. What
needs to be observed is that on 22nd January 1996, no say had
actually been filed by the Investigating Officer in the matter of the
application for return of the passports, and that though the say
taking objection for the return of the passports, appears to have
been signed by the appellant no.1 on 22 nd January 1996, the same
was filed in the Court of the learned Magistrate only on 25 th
January 1996. It was open for the appellant no.1 to change the
say and instead give a 'No objection', and such change could have
been effected by him till the say would be actually filed in the
Court of the Magistrate. As such, the contention that 'since the
appellant no.1 had already signified his objection for return of the
passports to the complainant, he could not have demanded illegal
gratification to signify his No Objection for the return of the
Tilak 12/31 (901)APEAL-349-03
passports', cannot be accepted. The appellant no.1 was indeed in
a position to show favour to the complainant by signifying his 'No
objection' for return of the said passports.
10 However, merely because the appellant no.1 was in such
a position, it does not automatically follow that he must have
demanded such illegal gratification. When the police are dealing
with persons who are accused to have committed offences, a
possibility of their being in a position to show favour to such
persons always exists, and therefore, in such cases, it is always
possible for an accused to claim that illegal gratification was
demanded by a police officer for showing a favour, or forebearing
to show a disfavour to him. Therefore, one cannot go just on the
basis of such a possibility, and every case needs to be decided on
the facts thereof, and on the basis of the evidence that would be
available in support of such a claim.
11 The question would be whether the evidence of panch
Pelnekar and that of PI Ghuge is sufficient to prove the case of the
prosecution with respect to the alleged demand of bribe and the
acceptance thereof by the appellant no.1.
Tilak 13/31 (901)APEAL-349-03
12 It would be interesting to refer to the conclusions
arrived at by the learned Special Judge while holding the
appellants guilty. The learned Special Judge framed totally 7
points for determination, the first being 'whether the appellant
no.1 was a public servant at the material time' and the seventh
being 'what order?' The other points for determination as framed
by the learned Special Judge together with the findings thereon
recorded by him, reveal his reasoning in holding the appellants
guilty, and as such it would be appropriate to reproduce the same
here.
2) Whether the prosecution proves that on
18/1/1996 in Ghatla Village Police Chowky of
Chembur Police Station accused No.1 PSI
Gaud made an attempt to obtain Rs.20,000/-
and later on Rs.10,000/- from complainant
George Williams for showing favour to him by
submitting No objection report of A.C.M.M,
11th Court Kurla for return of 138 passports
and thereby committed offence punishable
u/s.7 of Prevention of Corruption Act 1988? .. No.
3) Whether the prosecution proves that on
23/1/96 between 8.25 a.m to 9.00 a.m accused
no.1 PSI Gaud made an attempt to obtain
Tilak 14/31 (901)APEAL-349-03
Rs.10,000/- from complainant by way of bribe
for submitting no objection report for return
of 138 passports to 11th Court Kurla and
thereby showing favour to complainant
committed offences punishable u/s.7 of
Prevention of Corruption Act 1988? ... No.
4) Whether the prosecution proves that on
23/1/96 at Malhar hotel at about 10.45 p.m
accused no.1 PSI Gaud obtained Rs.10,000/-
by way of illegal gratification as first
instalment for showing favour to complainant
for submitting no objection report to 11th
Court Kurla for return of 138 passports and
thereby committed offence punishable u/s 7 of
Prevention of Corruption Act 1988? ... Yes.
5) Whether the prosecution proves that on
23/1/96 at about 10.45 p.m at Malhar hotel
accused no.1 obtained pecuniary advantage of
Rs.10,000/- from complainant by corrupt or
illegal means or by abusing his position as a
public servant and thereby committed an
offence punishable u/s 13(1)(d) r/w 13(2) of
Prevention of Corruption Act 1988? ... Yes.
Tilak 15/31 (901)APEAL-349-03
6) Whether the prosecution proves that on
23/1/96 at about 10.45 p.m at Malhar hotel
accused no.2 Ambre aided and abetted
accused no.1 PSI Gaud by keeping cash of
Rs.10,000/- given to him by accused no.1 PSI
Gaud and thereby committed an offence
punishable u/s.7 r/w 12 of the Prevention of
Corruption Act 1988? ... Yes.
It can be at once seen that the learned Special
Judge has not accepted the theory of the initial demand of
bribe allegedly made by the appellant no.1 on 18 th January
1996. He has also not accepted the theory of the appellant
no.1 having made a demand of bribe on 23rd January 1996 at
about 8.25 a.m on telephone. He has categorically recorded
negative findings against the points nos.2 and 3 reproduced
above. It is easy to see that it is because of the fact that the
complainant was not examined as a witness, and that without his
evidence, it was not possible to gather proof of the previous
demands allegedly made by the appellant no.1. The learned
Special Judge rightly observed as follows :
Tilak 16/31 (901)APEAL-349-03
"I have no hesitation to come to a conclusion
that the prosecution has not established
earlier demands of illegal gratification by
Accused no.1 PSI Gaud from complainant
referred to in the FIR. I, therefore, answer
point nos.2 and 3 in negative.
(para-18 of the impugned judgment)
14 The learned Judge then proceeded to observe as
follows :-
"We are, therefore, left with the evidence in
respect of demand and acceptance of illegal
gratification by accused no.1 during the
course of the trap at the Basement,
Restaurant and Bar at Malhar Hotel, Chembur
(para-19) (Emphasis supplied)
15 The learned Special Judge then went on to discuss the
evidence of panch Pelnekar (PW 1) and PI Ghuge (PW 3) and
came to the conclusion that their evidence established the
ingredients of the offences punishable under section 7 and section
13(2) r/w section 13(1)(d) of the P.C. Act.
16 While no proposition that 'the case of the prosecution
must invariably fail in all trap cases, should the evidence of
Tilak 17/31 (901)APEAL-349-03
complainant be not available', may be laid down, the fact remains
that where the complainant's evidence is not available to prove the
initial demand, there has to be some highly convincing and
unimpeachable evidence to hold the prosecution case as 'proved'.
In this case, the learned Special Judge has held the initial demand
as 'not proved'. He has held that the first demand which was said
to be on 18th January 1996 had not been proved and even the
demand allegedly made on 8.25 a.m on 23 rd January 1996 had not
been proved. Obviously, this is because the complainant could be
the only witness in respect of such demands and that the
complainant was not examined as a witness.
17 What the learned Judge has held as 'proved' is on the
basis of the events that took place after the complainant went to
the ACB and reported the matter. Thus, it is from the evidence of
panch Pelnekar and IO PI Ghuge that the Special Judge held that
the obtaining of illegal gratification - i.e. the demand and
acceptance thereof - by the appellant no.1 was proved.
18 I have, therefore, examined the evidence of panch
Pelnekar and PI Ghuge carefully. I am unable to hold that the
same is of such a quality as would inspire confidence about the
Tilak 18/31 (901)APEAL-349-03
truth of the prosecution case in spite of the non-availability of the
evidence of the complainant.
19 Panch Pelnekar was called in the office of the ACB at
about 1.00 p.m and that, after going there, PI Ghuge explained the
brief facts of the case to him and the other panch - one Mahadik.
Pelnekar and Mahadik were also introduced to the complainant
who was present there. Pelnekar was explained the facts of the
case and the procedure for laying down the trap, the qualities of
Anthracin powder etc, and then, it was explained to him that he
was to accompany the complainant as a witness. He was
specifically given to understand that he was to observe the
developments and listen to the conversation. However, according
to him, after entering Malhar Hotel, the complainant occupied a
chair, and he occupied a chair on the adjacent table. (There is
some discrepancy in his evidence about whether anybody else,
apart from the complainant, was with him when he entered the
said Malhar Hotel, but that aspect may be discussed later). In the
cross-examination, Pelnekar was asked about his not occupying
the same table which the complainant had occupied, and initially
he replied that it was because such instructions had been given to
him, but immediately changed his version and said that no such
Tilak 19/31 (901)APEAL-349-03
instructions i.e. not to occupy the same table, were given. He then
said that he did not occupy the same table as that of the
complainant 'because he thought that Shri Gaud i.e. the appellant
no.1 would become suspicious if he would occupy the same table
with complainant'. He, while admitting - as a result of cross-
examination - that instructions given to him were that he should
occupy chair by the side of the complainant, shrewdly and in order
to be able to claim that those instructions were not violated went
on to clarify that 'he was not told to occupy a chair on the same
table'. In the cross-examination, when asked whether the
complainant had been given instructions by the Investigating
officer that 'he should introduce panch Pelnekar properly to the
appellants no.1 so as to not to arouse his suspicion', Pelnekar
initially said he did not remember about it, but when the relevant
portion in the pre-trap panchnama was brought to his notice, he
admitted that 'the complainant was instructed to introduce
Pelnekar to the appellant no.1'. It is thus, clear that his occupying
a chair at the adjacent table and not at the table that was occupied
by the complainant, was not as per the plan, and was contrary to
the instructions given by the Investigating Officer PI Ghuge. It is
also clear that Pelnekar's explanation for occupying a chair at a
different table though he was expected to occupy a chair at the
Tilak 20/31 (901)APEAL-349-03
same table that would be occupied by the complainant, is not
satisfactory. What is more important is Pelnekar tried to suppress
certain facts and admitted them only after an effective cross-
examination.
20 Interestingly, Pelnekar has, at one place, said that
'after the complainant had entered the Hotel and had occupied a
chair, he and ACP Patil took seats at the adjacent table'. This
would mean that ACP Patil was also sitting with Pelnekar on a
chair at a table adjacent to the table where the complainant was
sitting. Interestingly, he does not speak of the presence of IO PI
Ghuge and therefore, one may presume that PI Ghuge had not
entered with panch Pelnekar and ACP Patil and that, at that time,
he was waiting outside the Hotel. The ambiguity or vagueness in
that regard, even if kept aside, what is significant is that ACP Patil,
if he had been sitting by the side of panch Pelnekar, was expected
to see all the happenings, and in that case, he ought to have been
examined as a witness. He being the Senior most Officer
associated with the trap, his non-examination as a witness, is
rather strange and a rather suspicious feature of the matter, but
that apart, Pelnekar is not consistent as to who came and when.
He has, at another place indicated that when he occupied a chair
Tilak 21/31 (901)APEAL-349-03
at the adjacent table, he was alone at that table. He then
volunteered to add that subsequently IO Ghuge, ACP Patil and one
constable also occupied this table. Thus, as per this version, IO
Ghuge, ACP Patil and one constable came to the table where he
was sitting, later, and occupied the same, which, it can be easily
seen, is inconsistent with his version that he and ACP Patil had
gone earlier and had occupied chair at the table adjacent to the
table where the complainant had been sitting.
21 Pelnekar was unable to identify the appellant no.2
though, according to him, he had seen him with the appellant
no.1. While one may ignore these discrepancies as 'not fatal', what
cannot be ignored is that panch Pelnekar is unable to give the
details of the conversation that took place between the complainant
and the appellant no.1 with the necessary minimum details. What
he says is that after the appellant no.1 who was in uniform, had
occupied a chair across the table where the complainant had been
sitting, there was some discussion between the complainant and
the appellant no.1 regarding some previous case of the complainant,
which was in respect of some 'NOC'. According to him, this
conversation was in Hindi and that the NOC related to 'a passport',
but he did not remember the nature of the NOC. In the
Tilak 22/31 (901)APEAL-349-03
examination-in-chief itself, he says that he did not remember all
the details about the conversation.
22 It may be recalled at this stage, that the learned
Special Judge has held that the first demand allegedly made by the
appellant no.1 on 18th January 1996 and even the second demand
allegedly made on 23rd January 1996 at about 8.25 a.m was not
satisfactorily proved. What he has held as proved, is the alleged
demand made by the appellant no.1 at Hotel Malhar after 10.45 p.m
on 23rd January 1996 i.e. after the trap had been laid and during the
trap. It is well settled that demand of bribe is implicit, and is an
integral part of the offences punishable under Sections 7 and
section 13(2) of the P.C Act. It is also well settled, as a corollary to
this, that where the evidence regarding the initial demand is not
satisfactory, the evidence of acceptance of bribe obtained by
laying a trap would be rendered rather weak, and would need
extremely careful scrutiny before it is accepted as reliable. In fact,
the learned Special Judge was clearly aware of this legal position,
and as such, has held as proved, not the demands allegedly made
on 18th January 1996 and 23rd January 1996 at 8.25 a.m, but the
demand made at about 10.45 p.m on 23 rd January 1996 at Hotel
Malhar (paragraph 27 of the impugned judgment). When the
Tilak 23/31 (901)APEAL-349-03
panch Pelnekar had clearly admitted that he would not be able to
give the details of the conversation that took place between the
complainant and the appellant no.1, it was extremely hazardous to
come to a conclusion that the alleged demand made by the
appellant no.1 at Hotel Malhar was satisfactorily proved. Though
the learned Special Judge had held that such a conclusion i.e. of
'the appellant no.1 having demanded a bribe can be reached even
without the aid of the presumption contained in section 20 of the
P.C. Act', it is not possible to agree with him when the panch is
unable to give the details of the conversation and has only a vague
re-collection thereof.
23 This is particularly so because the evidence of the
panch Pelnekar does not seem to be of such a quality so as to at
once convince the Court about he being a reliable and truthful
witness. There, indeed, are a number of shortcomings in his
evidence, some of which are already discussed earlier. The
evidence of panch Pelnekar even with respect to the acceptance of
the tainted amount, is not satisfactory. Pelnekar said that the
complainant handed over Rs.10,000/- to the appellant no.1 'which
the appellant no.1 accepted in paper napkin'. According to
Pelnekar, the paper napkin was on the table, and it was used by
Tilak 24/31 (901)APEAL-349-03
the appellant no.1 for collecting the tainted amount, and the
currency notes which were wrapped in the paper napkin were then
given by him to the appellant no.2. That, the appellant no.2
thereafter counted the currency notes and kept them in the pocket
of his pants wherafter the complainant gave 'the agreed signal'.
That Pelnekar chooses to describe the happening by saying that
the complainant gave 'the agreed signal' instead of stating what
was the signal or what was the act that was done by the
complainant, as and by way of giving signal, may be ignored, but
the statement that the appellant no.1 used a paper napkin does not
appear to be correct. When in the later part of his examination-in-
chief, a cloth napkin was shown to Pelnekar, he identified the same
as the one in which the currency notes were accepted by the
appellant no.1. In the cross-examination, he did admit that the
reference to paper napkin made by him was wrong and actually, it
was a cloth napkin (Article-F), and that the cloth napkin was
shown to him during his examination-in-chief. Thus, that the
napkin in which the tainted currency notes were allegedly
collected by the appellant no.1 was a cloth napkin was realised by
Pelnekar only after a cloth napkin (Article-F) was shown to him in
the later part of his examination-in-chief, and till then, he was
thinking that the money had been accepted in a paper napkin.
Tilak 25/31 (901)APEAL-349-03
24 Apart from this variation about the napkin in which
the tainted currency notes were allegedly accepted by the
appellant no.1, there is another aspect of the matter which is
curious. According to the prosecution case, the traces of Anthracin
powder were noticed on the fingers of the appellant no.1. The
evidence of panch Pelnekar does not suggest that the appellant
no.1 handled the currency notes and it gives an impression that
the notes were collected by him in a napkin without handling the
same. If that was so, there ought not do have been any traces of
Anthracin powder on the fingers of the appellant no.1.
25 The evidence if Investigating Officer PI Anil Ghuge
(PW 3) is undoubtedly consistent with the prosecution case, but it
is not that the same is fully free from infirmities. Thus, as per the
prosecution case, PI Ghuge had told panch Pelnekar to be with the
complainant and hear the conversation that would take place
between the complainant and appellant no.1. It has already been
seen that Pelnekar actually chose to disregard the instruction and
instead of occupying a chair on the same table where the
complainant had been sitting, occupied a chair at the adjacent
table. Now, when Ghuge entered inside the Bar and Restaurant at
Hotel Malhar and saw panch sitting separately from the
Tilak 26/31 (901)APEAL-349-03
complainant, it was expected that he would question him about it
and ask him to go and sit near the complainant which was thought
necessary for observing the things and hearing the conversation
properly. He has not done this.
26 When the complainant's evidence was not available
and the evidence of the panch was not of such a quality so as to
place complete trust in it, and moreover, when that did not clearly
establish all the facts constituting the ingredients of the alleged
offences, it was not prudent to hold the prosecution case as
satisfactorily proved only on the basis of the evidence of the trap
laying Officer/Investigating officer PI Ghuge. That his evidence is
consistent with the prosecution case cannot be given much
importance when he is the one who had laid the trap and when
the evidence of the panch fails to corroborate his evidence with
respect to some primary and material aspects of the matter.
27 The evidence of Ghuge shows that one ACP
Deshmukh was accompanying the raiding party, but it is not clear
what ACP Deshmukh was doing during the raid and the trap. It
appears that ACP Deshmukh also went to Chembur near Hotel
Malhar, but what he did thereafter, is not clear.
Tilak 27/31 (901)APEAL-349-03
28 There are a number of weaknesses in the prosecution
case apart from the glaring and serious weakness of non-
availability of the evidence of the complainant. One of these
weaknesses was the failure to examine ACP Patil who was the
Senior Most Officer present at the place where the demand of
bribe was allegedly made and bribe was accepted. There is no
explanation for his non-examination. Similarly, what happened to
ACP Deshmukh is also mysterious. Also, the trap was laid without
verification of the alleged demand, which is contrary to the
guidelines provided in the MANUAL OF INSTRUCTIONS 1968
issued by the Maharashtra State Anti-Corruption and
Prohibition Intelligence Bureau in the matter of laying of traps.
This lack of verification of the alleged demand becomes more
significant in this case because of the non-availability of the
evidence of the complainant.
29 The tainted amount was actually recovered from the
appellant no.2. What was the relationship between the appellant
no.1 and appellant no.2 is not clear, and there is no evidence in
that regard. If the appellant no.2 had been taken by the appellant
no.1 with him so as to facilitate acceptance of the illegal
Tilak 28/31 (901)APEAL-349-03
gratification without he himself being involved in the actual
acceptance, then, logically, the appellant no.1 would have directed
the complainant to hand over the amount to the appellant no.2
himself, instead of first taking it from the complainant and then
handing it over to the appellant no.2.
30 Though the learned Special Judge has held the
appellants guilty on the basis that 'though the earlier demands were
not proved, the demand allegedly made by the appellant no.1 at
about 10.45 p.m at Hotel Malhar was duly proved', such a
conclusion is not logical because the meeting at Hotel Malhar was
itself fixed, allegedly, on the basis of the previous demands. It is
not the conclusion of the learned Special Judge that the previous
demands allegedly made by the complainant were proved on the
basis of what happened between the complainant and the
appellant no.1 at about 10.45 p.m at Hotel Malhar, but his
conclusion is that there came a new demand at about 10.45 p.m
from the appellant no.1 which established the charges against the
appellants.
31 The learned Judge has held the appellant no.2 guilty
of abetment. Apart from the fact that the prosecution case cannot
Tilak 29/31 (901)APEAL-349-03
be held as satisfactorily proved, it is difficult to hold that the
evidence of the prosecution, even if believed, would establish that
the appellant no.2 had aided and abetted the appellant no.1 in
commission of the alleged offences. This abetment is said to be 'by
consenting to retain the currency notes with him'. (para 30 of the
impugned judgment) If the prosecution case is believed, it was the
appellant no.1 who had already demanded and accepted illegal
gratification, and therefore, 'whether the subsequent handing over
the tainted amount by him to the appellant no.2, without anything
more, would amount to abetment of the alleged offences by the
appellant no.2;' was not at all considered by the learned Special
Judge.
32 This was a case where the complainant had a motive
to falsely implicate the appellant no.1, although the appellant no.1
was also in a position to favour the complainant, and therefore,
expect illegal gratification from him. In the absence of the
evidence of the complainant, however, it was not possible to come
to a conclusion about the truth of the prosecution case. What had
transpired between the appellant no.1 and the complainant, and
what for, exactly, the appellant no.1 had agreed to meet the
complainant at Hotel Malhar, why was he in uniform and with his
Tilak 30/31 (901)APEAL-349-03
service revolver, is not free from doubt, even if the version of
appellant no.1 that he had gone there in anticipation of possible
apprehension of a wanted criminal pursuant to the information to
that effect given by the complainant, is not believed. The evidence
of panch Pelnekar is not of such quality so as to afford sufficient
and satisfactory corroboration to the evidence of Investigating
Officer Ghuge (PW 3). It would be hazardous to place an implicit
reliance on the testimony of Investigating Officer Ghuge when the
evidence of panch was not satisfactory and when a Senior member
of the raiding party was not examined as a witness.
33 This was a case where there certainly was a doubt
about the truth of the matter. The appellants should have been
given the benefit of such doubt and should have been acquitted.
34 Appeal is allowed.
35 The impugned judgment and order is set aside.
36 The appellants are acquitted. Their bail bonds are
discharged.
Tilak 31/31 (901)APEAL-349-03
37 Fine, if paid, be refunded to them respectively.
38 Appeal is disposed of in the aforesaid terms.
(ABHAY M.THIPSAY, J)
