Bombay High Court
Haridas S/O Bhagwan Jamunah vs The State Of Mah.Thr.Anti ... on 14 December, 2017
Bench: P.N. Deshmukh
1 apeal385.01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.385 OF 2001
Haridas s/o Bhagwan Jamunah,
aged about 52 years, occupation :
service, r/o Nimwadi Police Line,
Akola, District Akola. ... Appellant
- Versus -
The State of Maharashtra, through
Anti Corruption Bureau, Akola,
District Akola. ... Respondent
-----------------
Shri P.R. Agrawal, Advocate for appellant.
Smt. S.V. Kolhe, Additional Public Prosecutor for respondent.
----------------
CORAM : P.N. DESHMUKH, J.
DATED : DECEMBER 14, 2017
ORAL JUDGMENT :
This appeal takes exception to judgment dated 4/12/2001
passed by the Special Court, Washim in Special Case No.1/1996 by which
appellant/accused came to be convicted for the offences punishable under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 and sentenced to suffer rigorous imprisonment for
two years and to pay fine of Rs.1000/- on both counts and in default of
2 apeal385.01
payment of fine, to suffer simple imprisonment for three months.
2) The case of prosecution, in brief, can be stated as under :
Accused was working as Police Head Constable and was
attached to Medshi Outpost within the jurisdiction of Police Station,
Malegaon, District Washim. On 27/4/1995 accident took place involving
vehicle bearing Registration No. MH 30 9605 owned by Shailaja, wife of
P.W.1 Bhaskar Deshmukh and driven by P.W.2 Sanjay Chakre, which
vehicle was initially registered in the name of Rajkumar Sachwani. In
view of involvement of said vehicle in accident, it was detained by Police
and was kept at Medshi Outpost.
3) It is the case of prosecution that on 13/5/1995 P.W.2 Sanjay
Chakre, Driver of the vehicle along with Rajkumar Sachwani met accused
at Medshi Outpost for release of vehicle, upon which they were informed
by accused that vehicle would not be released as the same was required
for the purpose of investigation and that Police Station Officer, Malegaon
had asked him to obtain Rs.1000/- for return of matador. Said demand
was made to Rajkumar Sachwani, who informed accused that he was not
having said amount on that day and would send the same through P.W.2
Sanjay Chakre on the following day and requested for release of vehicle.
4) It is the further case of prosecution that thereafter on
3 apeal385.01
16/5/1995 P.W.2 Sanjay Chakre, Driver met with P.W.4 Suresh
Deshpande, Police Station Officer, Malegaon and told him that accused
informed that amount of Rs.1000/- was directed by him to be paid for
release of matador. P.S.O. Deshpande informed that no such amount was
directed by him to be paid. In the meantime, accused arrived in
Malegaon Police Station and P.S.O. Deshpande directed him to return the
matador on supratnama after verification of papers. Accused, therefore,
directed P.W.2 Sanjay Chakre to bring stamp paper and Rs.1000/- and to
pay the same on 18/5/1995 at Police Station, Malegaon or Outpost
Medshi and he would return the vehicle. As the Driver of vehicle was not
interested in making payment of Rs.1,000/-, he came and informed this
fact to P.W.1 Bhaskar Deshmukh, who in turn provided Rs.1000/- to him
and directed him to lodge report with Anti Corruption Bureau, Akola.
Accordingly, P.W.2 Sanjay Chakre on 18/5/1995 visited Anti Corruption
Bureau, Akola and lodged his report, which was received by P.W.6
Keshao Idole, Investigating Officer, who then arranged for two
independent panch witnesses and introduced them to complainant, who
also got the complaint (Exh. 36) verified and agreed to act as panch
witnesses. Both the panchas and complainant were then given
demonstration of effect of phenolphthalein powder with sodium
carbonate solution and after applying phenolphthalein powder on
currency notes produced by P.W. Sanjay Chakre, kept them in his right
4 apeal385.01
side pant pocket and necessary instructions were given to complainant
and P.W.3 Sachin Kokil, who was to act as first panch, to accompany
complainant and to observe conversation and transaction whatsoever may
take place between complainant and accused. It was also instructed to
complainant to pay the amount demanded as bribe only on demand and
on making payment, to give signal by scratching his head by left hand.
Pre-trap panchanama of above stated facts came to be drawn vide Exh. 39.
5) It is the further case of prosecution that thereafter trap came
to be laid at 3.30 p.m. on 18/5/1995 at Oupost Medshi. However,
accused was not present there. Complainant along with P.W.3 Sachin
Kokil, panch then waited for accused near S.T. stand after informing
about his absence at Outpost Medshi to P.W.6 Keshao Idole. Accused
arrived in Police vehicle at 5.30 p.m. at Medshi, to whom complainant
gave call. Accused directed complainant Sanjay Chakre to sit in the Jeep.
Accordingly complainant as well as P.W.3 Sachin Kokil sat in the Jeep and
went with accused to Malegaon Police Station. Raiding party members
followed them. At about 7.30 p.m. P.W.6 Keshao Idole, Investigating
Officer received proposed signal and immediately rushed to the spot and
apprehended accused. Amount of Rs.1000/- came to be recovered from
right side pant pocket of accused. His hands were checked under sodium
carbonate solution, which turned purple. Investigating Officer thereafter
5 apeal385.01
lodged his report with Police Station, Malegaon as per Exh. 57. On the
basis of same, offences came to be registered vide Crime No. 180/1995.
After completion of investigation, all the investigation papers were
forwarded to P.W.5 Suryapratap Gupta, Sanctioning Authority. On receipt
of sanction order (Exh. 52), charge-sheet came to be filed against accused
before Special Court, Washim.
6) Charge was framed against accused vide Exh. 12, to which he
denied and claimed to be tried. The defence of accused was of total
denial. According to him, Driver Sanjay Chakre had obtained from him
Rs.1000/- as hand loan for carrying out repairs of matador No. MH 30
9605 and on the day of incident, returned said amount as discharge of
loan, which he accepted. However, complainant Sanjay Chakre on the say
of his master P.W.1 Bhaskar Deshmukh, falsely involved him in this case
by lodging a false complaint due to strained relations between them and
also on the ground that relations between P.W.1 Bhaskar Deshmukh and
P.W.4 Suresh Deshpande, P.S.O. were strained as P.W.1 Bhaskar
Deshmukh was annoyed on P.W.4 Suresh Deshpande, P.S.O. as he had
asked accused to report against P.W.1 Bhaskar Deshmukh to
Superintendent of Police, Akola about his interference in the investigation
of accident involving matador owned by his wife.
7) To establish charge levelled against accused, prosecution has
6 apeal385.01
in all examined P.W.1 Bhaskar Deshmukh, who on the day of incident was
working as Police Constable and attached to Outpost Kamargaon, husband
of Shailaja Deshmukh, owner of matador MH-30 9605, P.W.2 Sanjay
Chakre, Driver of said matador and complainant, who has proved his
report (Exh. 36), P.W.3 Sanjay Kokil, first panch, who has proved
pre-trap panchanama (Exh. 39) and post trap panchanama (Exh. 48),
P.W.4 Suresh Deshpande, P.S.I., Malegaon, P.W.5 Suryapratap
Gupta, Sanctioning Authority and concluded evidence on examining P.W.6
Keshao Idole, Investigating Officer.
8) Accused did not examine any defence witness in support of his
defence. On considering evidence of above witnesses, learned Special
Judge convicted accused as aforesaid. Hence, this appeal.
9) Heard Shri Agrawal, learned Counsel for appellant and Smt.
Prabhu, learned Additional Public Prosecutor for respondent.
10) Shri Agrawal, learned Counsel for appellant/accused, by
referring to the charge, has pointed out that though according to case of
prosecution, amount of Rs.1000/- was initially demanded by accused on
13/5/1995 to Rajkumar Sachwani for release of matador No. MH-30
9605, there is no evidence so far as this part of charge is concerned nor
Rajkumar Sachwani is examined and, therefore, further charge of alleged
7 apeal385.01
demand of Rs.1000/- on 16/5/1995 and subsequent demand and
acceptance of same on 18/5/1995 by accused only needs consideration.
For that purpose, learned Counsel for appellant has pointed out evidence
of P.W.2 Sanjay Chakre, Driver of the vehicle and complainant in the case,
who had admittedly not supported the case of prosecution and was
allowed to be declared hostile. It is thus submitted that in the absence of
evidence of complainant, evidence of P.W.3 Sachin Kokil, the panch is not
sufficient to establish the charge against the appellant. By referring to
complainant's evidence, in fact it is pointed out as to how he falsifies the
case of prosecution and on the contrary, probabilizes the case of accused
of his accepting amount of Rs.1000/- paid to him by Sanjay Chakre on
18/5/1995 against return of loan amount. It is further contended that
admittedly on the day of incident, the matador involved in the accident
was not registered in the name of wife of P.W.1 Bhaskar Deshmukh and
thus, there was no reason to offer any bribe by his Driver to accused and
as such, the very foundation of the prosecution case is doubtful as against
the probable case of accused as aforesaid.
11) By referring to agreement on record at Exh. 45, Shri Agrawal,
learned Counsel has further demonstrated as to how the vehicle was not
owned by Shailaja, wife of P.W.1 Bhaskar Deshmukh, as by that
document, the transaction had not taken place. From the evidence of
8 apeal385.01
P.W.1 Bhaskar Deshmukh and P.W.4 Suresh Deshpande, P.S.I. Malegaon,
it is pointed out that relations between accused and P.W.1 Bhaskar
Deshmukh as well as between P.W.1 Bhaskar Deshmukh and P.W.4
Suresh Deshpande were strained, which has resulted into lodging of false
complaint by P.W.2 Sanjay Chakre on the say of P.W.1 Bhaskar
Deshmukh. In support of his submissions, learned Counsel for accused
has relied upon judgments of Hon'ble Apex Court in the case of B. Jayaraj
vs. State of Andhra Pradesh {(2014) 13 SCC 55) M.R. Purushotham vs.
State of Krnataka {(2015) 3 SCC 247}, N. Sunkanna vs. State of
Andhra Pradesh {(2016) 1 SCC 713), P. Satyanarayana Murthy vs.
District Inspector of Police, State of Andhra Pradesh and another
{(2015) 10 SCC 152) and Mukhtiar Singh (since deceased) through his
legal representative vs. State of Punjab {(2017) 8 SCC 136}.
12) On the other hand, Smt. Kolhe, learned Additional Public
Prosecutor for respondent, has supported the impugned judgment and
contended that from the evidence on record, it cannot be said that accused
is falsely implicated nor can it be said that there is evidence establishing
innocence of accused. It is, therefore, submitted that appeal be dismissed.
13) In the background of submissions advanced as aforesaid, at
the outset it is necessary to state that with regard to first part of charge
framed against accused of demand of Rs.1000/- for and on behalf of
9 apeal385.01
P.W.4 Suresh Deshpande, P.S.O., Malegaon alleged to have been made on
13/5/1995, there is absolutely no evidence led by prosecution on record.
Though according to case of prosecution, said demand dated 13/5/1995
was made to Rajkumar Sachwani, he is not examined. In that view of the
matter, there is absolutely no evidence so far as said demand is concerned.
14) With regards to further charge of accused demanding
Rs.1000/- for himself on 16/5/1995 and demanding and accepting the
same on 18/5/1995, evidence of complainant when perused reveals that
while he was working for P.W.1 Bhaskar Deshmukh as Driver on matador,
said vehicle met with accident on 27/4/1995 and for the purpose of
investigation was detained at Medshi Outpost where accused was working
as Police Head Constable. Complainant deposed that after the accident,
on the instructions of P.W.1 Bhaskar Deshmukh, who at the material time
was serving as Police Constable, he had obtained Rs.1000/- as hand loan
from accused for carrying out repairs of said vehicle and got the vehicle
repaired after arranging a Mechanic at Ridhora Phata and parked at
Outpost. He has further stated that on 13/5/1995 he along with
Rajkumar Sachwani, original owner of matador, went to Medshi Outpost
for obtaining vehicle on supratnama and on contacting accused,
Rajkumar Sachwani informed him that he is registered owner of the
vehicle though same is sold to Shailaja, wife of P.W.1 Bhaskar Deshmukh,
10 apeal385.01
when accused asked complainant to pay Rs.1000/- due and payable to
him and, therefore, on the same day he went to P.W.1 Bhaskar Deshmukh
to bring Rs.1000/- informing him that accused is demanding back amount
given by him as hand loan when as per complainant, P.W.1 Bhaskar
Deshmukh scolded him saying he would pay the said amount to accused
afterwards and directed P.W.1 Sanjay Chakre to lodge complaint against
accused alleging that accused is demanding Rs.1000/- for releasing the
matador. It has further come in the evidence of complainant that
accordingly he visited Office of Anti Corruption Bureau, Akola on
18/5/1995 and as per instructions of P.W.1 Bhaskar Deshmukh, lodged
report (Exh. 36), which was recorded by P.W.6 Keshao Idole, Investigating
Officer.
15) Considering the tenor of evidence of complainant, as he is
found to have not supported the case of prosecution, he was subjected to
cross-examination by learned Additional Public Prosecutor. During the
course of cross-examination, he is suggested with entire case of
prosecution, to which he denied. In fact it has come in the cross-
examination that he was compelled to follow instructions given to him by
his master to lodge false complaint against accused in order to protect his
job of Driver. He has also denied that P.W.1 Bhaskar Deshmukh never
instructed him to obtain Rs.1000/- as hand loan from accused. In view of
11 apeal385.01
above evidence of complainant, though in further cross-examination he
has admitted to have produced notes of Rs.1000/- in the Office of Anti
Corruption Bureau on 18/5/1995 and about Investigating Agency giving
demonstration of effect of phenolphthalein powder with sodium carbonate
solution and instructions to him as per pre-trap panchanama (Exh. 39),
such evidence cannot be given much weight as according to complainant
he had visited the Office of Anti Corruption Bureau on the say of P.W.1
Bhaskar Deshmukh to lodge false complaint against accused and was to
refund Rs.1000/- to accused on 18/5/1995 obtained from him by way of
loan. In that view of the matter, all the events, which complainant has
admitted in his further cross-examination, are natural consequences,
which have thus followed, which, however, cannot be considered to be
sufficient to establish involvement of accused in this case.
16) In view of evidence of complainant as aforesaid, it is material
to note that there is absolutely no evidence on the point of demand of
bribe of Rs.1000/- by accused. In the background of aforesaid evidence,
it is noted that learned Additional Public Prosecutor appears to have
sought permission from learned trial Court to declare complainant as
hostile witness even without putting him further questions as from his
evidence, it is seen that immediately after he deposed of his lodging
complaint (Exh. 36) on the instructions of his master P.W.1 Bhaskar
12 apeal385.01
Deshmukh, he was prayed to be declared hostile. In that view of the
matter, there is no material evidence in respect of incidents whatsoever
had happened after complainant lodged report.
17) In the background of above evidence, when further cross-
examination of complainant on the point of incident dated 18/5/1995 is
considered, he has stated that thereafter he along with members of raiding
party reached Medshi Outpost, however, accused was not present and,
therefore, he along with P.W.3 Sachin Kokil, panch witness waited at S.T.
Bus Stand till 5.30 p.m. when accused arrived in a Police vehicle and,
therefore, he along with panch Sachin Kokil met accused at Medshi
Outpost when accused enquired whether complainant had brought loan
amount of Rs.1000/- payable to him, to which complainant replied in
affirmative saying that he has brought the amount to discharge his loan
and thereafter accompanied accused in his Police vehicle with panch and
went to Malegaon. Complainant has specifically denied that accused had
asked Rs.1000/- as bribe, if brought by him.
18) In the background of above evidence on the point of demand,
when further evidence of complainant on the point of acceptance of bribe
is considered, complainant in the cross-examination admits that at
Malegaon accused accepted amount of R.1000/- from him which he
handed over along with documents for executing supratnama for release
13 apeal385.01
of matador. He has specifically denied that accused had demanded
Rs.1000/- as bribe for releasing matador. From above stated evidence,
therefore, it cannot be said that accused demanded bribe either on
13/5/1995 to Rajkumar Sachwani for Police Station Officer, Malegaon
since there is no evidence laid down on this aspect nor on 16/5/1995
from complainant Sanjay Chakre for himself nor had repeated his demand
on 18/5/1995 and accepted the same. In fact, it is necessary to state that
in the cross-examination, complainant has admitted that it is P.W.1
Bhaskar Deshmukh, who had asked him to get money from accused
whatsoever required for carrying out repairs of matador and such
instructions were given in the presence of accused. In that view of the
matter, the case put forth on behalf of accused as aforesaid appears to be
more reasonable having considered the fact that P.W.1 Bhaskar Deshmukh
as well as accused on the day of incident were working as Police Head
Constables in the same jurisdiction of Police Station Officer, Malegaon and
as such, possibility of P.W.1 Bhaskar Deshmukh directing his Driver to
collect money necessary for effecting repairs from accused cannot be ruled
out, more particularly when accident had taken place within the
jurisdiction of Medshi Outpost where accused was posted as Police Head
Constable.
19) In the background of above evidence and reasons, now
14 apeal385.01
question which is required to be answered is as to whether case of accused
as set out of his false implication on the say of P.W.1 Bhaskar Deshmukh
or by P.W.4 Suresh Deshpande, who, on the day of incident was posted as
P.S.I. Malegaon, has been made out ?
20) For that purpose, evidence of P.W.1 Bhaskar Deshmukh
reveals that on 5/5/1995 he had visited Malegaon Police Station with
reference to release of matador, which, according to his evidence, was
owned by his wife Shailaja though stood registered in the name of
Rajkumar Sachwani on record and on that day, requested P.W.4 Suresh
Deshpande, P.S.O. for its release when Police Station Officer instructed
accused, who was working as Police Head Constable, to take action
against P.W.1 Bhaskar Deshmukh for causing interference in investigation
and also to report said fact to Superintendent of Police with further
direction to detain matador at Medshi Outpost. The above piece of
evidence, therefore, establishes strained relations between P.W.1 Bhaskar
Deshmukh on one part and accused and P.W.4 Suresh Deshpande on
another part, which evidence is found corroborated from the evidence of
complainant when in the cross-examination he has admitted that P.W.1
Bhaskar Deshmukh was very much annoyed due to conduct of P.S.O.
Deshpande at Malegaon. Above evidence, therefore, reasonably
establishes strained relations as aforesaid and, therefore, case of accused
15 apeal385.01
of his false implication by complainant on the say of P.W.1 Bhaskar
Deshmukh is found to be convincing which, even according to evidence of
complainant is further found substantiated, who in clear terms has
deposed that in order to save his job, he had no other alternative but to
act upon instructions of his master by lodging false report.
21) After considering evidence of above witnesses, though from
the evidence of P.W.3 Sachin Kokil, it has come on record that on the
instructions of officials of Anti Corruption Bureau, he had visited their
Office and was introduced to complainant, who had narrated his report
(Exh. 36), contents of which were got verified by him and co-panch
Wadekar and thereafter on their agreeing to act as panch witnesses, were
given demonstration of effect of phenolphthalein powder and sodium
carbonate solution and in his presence, instructions were given by P.W.6
Keshao Idole, Investigating Officer to complainant to pay the bribe only on
demand and to give proposed signal, etc., said evidence admittedly is
having no corroboration from the evidence of complainant on the point of
demand and acceptance though as already stated above, complainant in
the peculiar circumstances of his lodging report on the say of his master
has admitted all the events whatsoever taken place in the Office of Anti
Corruption Bureau as per pre-trap panchanama (Exh. 39). In the
background of above evidence, when further evidence of P.W.3 Sachin
16 apeal385.01
Kokil on the point of demand and acceptance is perused, it is revealed
that on 18/5/1995 accused was not present at Medshi Outpost and he
arrived at about 5.30 p.m., to whom complainant met along with him and
when accused asked whether his work was done, complainant replied in
affirmative. He further states that accused asked whether he had brought
money and stamp paper to which complainant replied in affirmative, upon
which complainant took out money and papers and handed over to him
and gave proposed signal. Even if aforesaid evidence of panch is accepted
as it is, it does not establish the case of prosecution at all of accused
demanding bribe or accepting the same in view of specific evidence of
complainant of his returning Rs.1000/- to accused on 18/5/1995.
22) In the case of B. Jayaraj (supra), facts were similar as in that
case, complainant did not support the prosecution case insofar as demand
by accused is concerned. Prosecution had not examined any other witness
on that point when money was allegedly handed over to accused by
complainant to prove that the same was pursuant to any demand made by
accused. In the circumstances, the Hon'ble Apex Court observed that
when complainant himself had disowned what he had stated in his initial
complaint and when there is no other evidence to prove that accused had
made any demand, evidence of complainant and contents of his report
cannot be relied upon to come to conclusion that the material furnishes
17 apeal385.01
proof of the demand allegedly made by the accused and as such, noted
that trial Court as well as High Court were not correct in holding demand
alleged to be made by accused as proved.
23) In the cases of M.R. Purushotham and N. Sunkanna (cited
supra), pronouncement in the case of B. Jayaraj (cited supra) has been
followed as in both these cases, facts involved were similar as in the case
of M.R. Purushotham, complainant did not support the case of
prosecution and even disowned making of any complaint and had deposed
that accused had not demanded anything from him nor he was aware of
contents of report. However, P.W.3 Kumaraswamy, panch witness had
testified that after being summoned by Police Inspector, he was explained
the contents of report in the presence of complainant and thereafter he
accompanied complainant to the house of accused where he gave Rs.500/-
as illegal gratification and on the basis of above evidence, liability of
accused for commission of offence was held to be proved. The Hon'ble
Apex Court relying on the case of B. Jayaraj and considering the fact that
complainant did not support the case of prosecution and as there was no
other evidence led by prosecution to prove the demand allowed the appeal
of accused.
Facts involved in the appeal in hand are similar as
complainant has not supported the case of prosecution and there is thus,
18 apeal385.01
no evidence to prove demand by accused.
24) Another aspect, which is required to be dealt with is with
regards to explanation put forth by accused with reference to amount of
Rs.1000/- recovered from his possession. On this aspect, evidence of
Investigating Officer establishes that when post trap panchanama came to
be drawn, accused was directed to give his explanation with regards to
recovery of Rs.1000/- from him and same was given by him that
somebody had thrusted said tainted currency notes in his right side pant
pocket when he was going for urination. Investigating Officer has
deposed that said fact is mentioned in the case diary. Similar is the
evidence of panch witnesses as well as contents of post trap panchanama
(Exh. 48) wherein it is specifically stated that after recovery of Rs.1000/-
accused wrote his explanation in his own handwriting, upon which both
panchas as well as P.W.6 Investigating Officer signed and said statement
is included in the documents.
25) In view of above evidence, it is established that after accused
came to be trapped and amount of Rs.1000/- was recovered from his
person, he had given explanation about recovery of said amount from his
person in writing. In spite of that, no such written document is forming
part of the record.
19 apeal385.01
26) In the background of above evidence, learned Counsel for
appellant has relied upon the case of Bismillakha s/o Salarkha Pathan
vs. State of Maharashtra (2004 ALL MR (Cri) 1341) wherein facts were
similar to the effect that immediately after the trap, both the accused were
asked by the Investigating Officer to give their version regarding
acceptance of money, which explanation, according to prosecution, was
reduced into writing and was signed by panchas as well as Investigating
Officer. The contents of what was mentioned in such writing was also
found mentioned in the panchanama, however, for the reasons best
known to prosecution, such document was not brought before the Court
during trial, which fact was considered by this Court to be a material
circumstance of prosecution suppressing the first version given by accused
to Investigating Officer, which in fact is a very important circumstance
and as such, gives rise to doubt about veracity of prosecution case and
thus, observing that under such circumstances, such writings, which were
in the hands of Investigating Agency and which could have been produced
in the evidence in the Court, but were not produced, adverse inference
needs to be drawn by virtue of Section 114 of the Indian Evidence Act that
those documents were deliberately suppressed as were not favourable to
prosecution. In the appeal in hand, facts are similar as aforesaid. The
appeal is, therefore, liable to be allowed on this count also.
20 apeal385.01
27) On evaluating further evidence, there are material
contradictions noted as according to the evidence of complainant, accused
after accepting the bribe amount, kept the money in right side pant
pocket while as per contents of post trap panchanama left hand fingers of
accused came to be tested in the solution of sodium carbonate when even
it is no case of prosecution that after accepting the bribe, he counted notes
with both hands.
28) Similarly, evidence of P.W.1 Bhaskar Deshmukh of his paying
Rs.50,000/- to Rajkumar Sachwani, original owner of matador, out of
total consideration of Rs.85,000/- also does not appear to be truthful in
view of contents of agreement entered into between them on record (Exh.
45) as according to this agreement to sell, out of total consideration of
Rs.85,000/-, amount of Rs.10,000/- was received by Yunus Beg Bashir
Beg, who is shown as executant of the said document. Even otherwise,
Shailaja, wife of P.W.1 Bhaskar Deshmukh, is not registered owner of
matador and, therefore, very foundation of case of prosecution of return
of matador to Driver of P.W.1 Bhaskar Deshmukh, who is husband of
Shailaja, does not sustain in the eye of law as vehicle involved in criminal
case can be given on supratnama to his registered owner only and that
too, by the concerned criminal Courts. The case of prosecution, therefore,
fails on this count also.
21 apeal385.01
29) Even otherwise, as per settled law, mere recovery of amount
from the person of accused is not sufficient to prove guilt under the
Prevention of Corruption Act as what is required by the prosecution is to
prove beyond reasonable doubt that accused voluntarily accepted amount
after demanding it and knowing it to be bribe. In the absence of demand
for illegal gratification or use of corrupt or illegal means or abuse of
position as a public servant for obtaining any valuable thing or for gaining
pecuniary advantage, the offence under the said Act cannot be said to be
established. In the circumstances, mere possession and recovery of
currency notes are not sufficient to constitute the offence as found in the
instant case.
30) In the result, the criminal appeal is allowed. The impugned
judgment and order dated 4/12/2001 passed by Judge, Special Court,
Washim in Special Case No.1/1996 is quashed and set aside. The
appellant/accused is acquitted of the offences charged against him.
The bail bonds of appellant/accused stand cancelled. The
amount of fine, if any paid by appellant, be refunded to him.
JUDGE
khj
