Mulchand Barku Patil vs The State Of Maharashtra
2017 Latest Caselaw 5107 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 480 OF 2000


Mulchand s/o Barku Patil,
Age : 52 years, Occu. Police
Head Constable, B.No. 729,
Police Station, Shivoor,
Tq. Vaijapur, Dist. Aurangabad                             APPELLANT

       VERSUS

The State of Maharashtra                                   RESPONDENT


                          ----
Mr.N.S. Ghanekar, Advocate for Appellant
Smt.R.P. Gaur, A.P.P. for respondent/State
                          ----

                                    CORAM :   SANGITRAO S. PATIL, J.

                           Reserved on  :     14th JULY, 2017
                           Pronounced on:     27th JULY, 2017


JUDGMENT : 

Heard the learned counsel for the appellant and

the learned A.P.P.

2. Being aggrieved by the judgment and order dated

8th December, 2000, passed in Special Case No. 1 of 1995

by the learned Special Judge (A.C.), Aurangabad,

convicting the appellant for the offences punishable

under Sections 7 and 13 (2) read with Section 13 (1) (d)

of the Prevention of Corruption Act, 1988 ("the Act",

2 criapl480-2000

for short), the present appeal has been filed.

3. In short, it is the case of the prosecution

that the complainant namely Bhausaheb Kisanrao Thombre,

originally resident of Mandki, Taluka Vaijapur, District

Aurangabad, presently residing at Padegaon, Taluka and

District Aurangabad in connection with service in Bajaj

Auto Ltd., Waluj, Aurangabad, received an information

from his nephew namely Devidas Gorakh Thombre about the

quarrel between his father Gorakh and uncle Daulat (i.e.

the brother and cousin respectively of the complainant),

on one hand and his another uncle Raibhan Trimbak

Thombre and his four sons on the other on account of

flowing of accumulated rain water through the

agricultural land of Raibhan Thombre on 5th September,

1994. He was further informed that the appellant, who

was working as a Police Head Constable in Police

Station, Shivoor, Taluka Vaijapur, District Aurangabad,

had been to village Mandki for conducting enquiry in

respect of that incident. Therefore, the complainant

visited village Mandki on 9th September, 1994. After

knowing the facts of the incident, he started to proceed

to Police Station, Shivoor. On the way, the appellant

met him at the bus stand of village Garaj. At that time,

3 criapl480-2000

the appellant informed him that a report was lodged

against the brother Gorakh and cousin Daulat of the

complainant by Raibhan for causing damage to his crops

and Gorakh and Daulat would be required to be arrested.

The appellant further asked him to bring Gorakh and

Daulat alongwith two sureties to Police Station, Shivoor

on 12th September, 1994 so that they could be released on

bail. The appellant told him that the amount of

Rs.3000/- would be required for releasing them on bail.

When the complainant expressed inability to pay that

much amount to the appellant, the appellant reduced that

amount to Rs.2500/-, but when the complainant showed

inability to pay that amount also and further requested

the appellant to reduce that amount, the appellant asked

him to pay minimum Rs.2000/-. Left with no alternative,

the appellant showed willingness to pay that amount to

the appellant. The appellant asked him to pay that

amount immediately. However, the complainant sought

time of 2 to 3 days to collect that amount, whereon the

appellant asked him to pay that amount in any case by

noon on 12th September, 1994. He further asked the

complainant to produce Gorakh and Daulat along with two

sureties in the Police Station by noon on that day.

4 criapl480-2000

4. Since the complainant was not ready to pay

bribe amount to the appellant, he approached the office

of A.C.B. on 12th September, 1994 and lodged complaint

against him. After receiving that complaint, PI Nalawade

(PW6), who was working in the office of ACB at

Aurangabad, decided to lay trap. Accordingly, two

panchas were called. All the necessary arrangements for

laying the trap were made. The raiding party, after

getting instructions from PI Nalawade (PW6), proceeded

to Police Station, Shivoor. However, when they reached

near Deogaon Phata, the brothers of the complainant met

them and informed that the appellant was not available

in the Police Station. Therefore, the raiding party

came back. It was decided to lay trap on the next day.

5. Accordingly, on 13th September, 1994, the

raiding party, after completing necessary formalities

and making necessary arrangements to lay trap, went to

Police Station, Shivoor along with the complainant, his

brother Gorakh and cousin Daulat, two sureties and

panchas. The complainant entered into the office of the

appellant along with his brother, cousin, sureties and

one of the panchas. The appellant wrote something on a

paper, called a Home-guard and asked him to take the

5 criapl480-2000

brothers of the complainant and sureties to the office

of the Tahsildar. The appellant asked the complainant

to be seated in his room. The Home-guard took the

brother and cousin of the complainant along with their

sureties out of the room of the appellant. The appellant

asked the complainant to pay the money. Thereon, the

complainant removed the tainted currency notes from the

pocket of his shirt and held them in front of the

appellant. The appellant asked him to place those

currency notes on a paper which was on the table.

Accordingly, the complainant kept those currency notes

on the paper. The appellant then collected those

currency notes along with that paper and kept them in

the left side pocket of his pant. At that time, the trap

panch Meshram (PW4) (Exh-22) was at the distance of

about 5 to 10 feet from the complainant.

6. Thereafter, the appellant and the complainant

went out of that room. The complainant gave the

predetermined signal to the raiding party, the members

of the raiding party caught hold of the appellant. Prior

to that, the appellant dropped the tainted currency

notes on the ground. The hands, left side pocket of the

pant of the appellant and the paper with which the

6 criapl480-2000

tainted currency notes were lifted by the appellant,

were examined under the ultraviolet lamp whereon blue

shining of anthracene powder was noticed thereon. The

trap panchanama was prepared. The appellant was

arrested.

7. FIR was lodged by PI Nalawade (PW6) against the

appellant in Police Station, Shivoor for the above

mentioned offences. On the basis of that FIR, Crime No.

9/1994 came to be registered. The investigation

followed. The statements of the witnesses were recorded.

After completion of the investigation, the papers of

investigation were sent to the Sanctioning Authority,

seeking sanction for prosecution of the appellant.

After receiving the sanction order, the appellant came

to be prosecuted for the above mentioned offences.

8. The learned Trial Judge framed charges against

the appellant for the above mentioned offences vide

Exh-4 and explained the contents thereof to him in

vernacular. The appellant pleaded not guilty and claimed

to be tried. His defence is that of total denial and

false implication. According to the appellant, he

neither demanded nor accepted the bribe amount as

7 criapl480-2000

alleged. The complainant thrusted the tainted currency

notes in the left side pocket of his pant and falsely

involved him in the present case.

9. The prosecution examined six witnesses,

including the complainant, trap witness Meshram (PW4)

and the Investigating Officer PI Nalawade (PW6). Smt.

Shridevi Goel (PW5) is the sanctioning Authority, who

proved sanction order (Exh-3). The appellant examined

Tukaram Pawar (DW1) (Exh-41), the Home-guard in his

defence, who was on duty with the appellant on the day

of the trap. After evaluating the evidence on record,

the learned Special Judge found that the prosecution

established beyond doubt the guilt of the appellant for

the above mentioned offences. He, therefore, convicted

the appellant for the said offences and sentenced him to

suffer rigorous imprisonment for two years and to pay a

fine of Rs. 300/-, in default to suffer rigorous

imprisonment for six months in respect of the offence

under Section 13 (2) read with Section 13 (1) (d) of the

Act and to suffer rigorous imprisonment for one year and

to pay a fine of Rs. 200/-, in default to suffer

rigorous imprisonment for two months in respect of the

offence under Section 7 of the Act. The learned Special

8 criapl480-2000

Judge directed that the substantive sentences of

imprisonment shall run concurrently. The appellant

deposited the fine amount of Rs. 500/- in the Special

Court.

10. The learned counsel for the appellant submits

that the evidence of the complainant and that of trap

panch Meshram (PW4) is not consistent on material

points. It creates great doubt about the case of the

prosecution. He submits that the evidence of the

complainant about the demand and acceptance of bribe by

the appellant is not worth believing. When the

appellant was not going to arrest the brother and cousin

of the complainant, there was no question of paying

bribe to the appellant for not arresting them. He

submits that the sequence of the events stated by

Meshram (PW4) is not consistent with that of the

complainant. There is no independent corroboration to

the version of the complainant in respect of the demand

and acceptance of bribe by the appellant. He submits

that the evidence of Pawar (DW1) clearly shows that

after the appellant and the complainant came out of the

room of the appellant, the complainant thrusted the

tainted currency notes in the left side pocket of the

9 criapl480-2000

pant of the appellant. The appellant immediately threw

the said currency notes on the ground. Thereafter, he

was caught hold of by the raiding party. According to

him, the defence of the appellant is quite probable. It

is supported by the evidence of Pawar (DW1), who is an

independent witness. He further submits that one of the

relatives of the complainant was serving in the office

of ACB as Head Constable. The appellant has been

falsely involved in this case at the instance of the

said relative of the complainant. He submits that the

learned Trial Judge did not appreciate the evidence of

the witnesses properly and wrongly held the appellant

guilty of the above mentioned offences.

11. As against this, the learned A.P.P. submits

that the evidence of the complainant is quite natural,

probable and acceptable. The demand for bribe was made

by the appellant on 12th September, 1994 which has been

proved through the evidence of the complainant, who

alone was there when that demand was made. She then

submits that the traces of anthracene powder were

noticed on the paper that was on the table inside the

room of the appellant. The anthracene powder was

noticed on the table also. If the tainted currency

10 criapl480-2000

notes would have been thrusted by the complainant in the

left side pocket of the pant of the appellant after

coming out of the room of the appellant, the traces of

the anthracene powder would not have been found on the

table and the paper that was on that table. This fact

itself indicates that the tainted currency notes were

placed by the complainant on the paper that was on the

table and after the appellant kept those tainted

currency notes on the left side pocket of his pant, the

appellant and the complainant went out of the room. She

submits that after realizing that he was being trapped,

the appellant threw the tainted currency notes out from

the pocket of his pant. She submits that the defence is

not at all probable and acceptable. The evidence of the

Home-guard Pawar (DW1) cannot be accepted since he was

working with the appellant and as such, is an interested

witness. She submits that the learned Special Judge has

rightly appreciated the evidence and has rightly

convicted and sentenced the appellant.

12. It is stated by the complainant Bhausaheb (PW3)

that a report was lodged against his brother Gorakh and

cousin Daulat by his uncle Raibhan in the Police Station

and the appellant had visited village Mandki to make

11 criapl480-2000

enquiry in respect of that report after about 2 to 3

days of lodging that report. From this evidence, it is

clear that the appellant being a Police Head Constable

was making enquiry in respect of the report that was

lodged against the brother and cousin of the

complainant. PI Nalawade (PW6) has produced copies of

the papers of enquiry (Exh-36/1 to 36/13) on the basis

of which Chapter Case No. 100 of 1994 was instituted

against Gorakh and Daulat before the Executive

Magistrate, Vaijapur. The appellant has recorded

statements of the witnesses and filed this Chapter Case

against Gorakh and Daulat. It is, thus, clear that the

appellant was holding enquiry against Gorakh and Daulat,

who were brother and cousin respectively of the

complainant.

13. The complainant specifically states that on

receiving the information from his brother and nephew

that the appellant had called Daulat and Gorakh to

Police Station, he went to village Mandki and enquired

with his brother on 9th September, 1994. The report

against Gorkah and Daulat (Exh-36/3) seems to have been

lodged on 5th September, 1994. There is a report dated 9 th

September, 1994 (Exh-36/6) by the Police Patil of

12 criapl480-2000

village Mandki to PSI, Police Station, Shivoor, wherein

it is mentioned that the appellant (PHC Patil) had given

the names of seven persons and called them but those

persons had refused to attend. This report (Exh-36/6)

supports the version of the complainant that Gorakh and

Daulat were called to the Police Station on 9 th

September, 1994. He states that after making enquiry

with his brother, he left for Shivoor, but on the way,

the appellant met him on Garaj bus stand. At that time,

the appellant told him that there was complaint against

his brother and asked him to bring sureties with 7/12

extracts. The appellant further told him that the

amount of Rs.3000/- would be required for bail. The

complainant told the appellant that he was not having

the amount of Rs.3000/- but agreed to pay Rs.2000/- to

the appellant. This was the first demand of bribe made

by the appellant. It has come in the cross-examination

of the complainant that when he met the appellant at

Garaj, he was alone. If that be so, no independent

corroboration to the evidence of the complainant in

respect of the first demand for bribe was possible. It

has come in paragraph No. 12 of cross-examination of the

complainant that he was prepared to give money to the

appellant for not arresting his brothers and for not

13 criapl480-2000

taking them to Tahsil office. The complainant then

filed complaint (Exh-14) against the appellant in the

office of ACB on 12th September, 1994. The contents of

the complaint (Exh-14) corroborates the evidence of the

complainant in respect of the first demand for bribe

made by the appellant.

14. As seen from the evidence of the complainant,

the trap panch Meshram (PW4) and PI Nalawade (PW6), the

trap was arranged by completing the necessary

formalities as per the pre-trap panchanama (Exh-23) on

12th September, 1994, but it could not be materialized

because when they proceeded to Shivoor from Aurangabad,

the brother of the complainant met them on Deogaon phata

and informed them that the appellant was not available

in Shivoor Police Station since he had gone out of the

Police Station in connection with some other work and

that the appellant had asked them to come to the Police

Station on the next day. Thus, the trap could not laid

on 12th September, 1994.

15. It has come in the evidence of these three

witnesses that the trap was arranged on 13 th September,

1994. They have stated about the formalities that were

14 criapl480-2000

completed in the office of ACB as mentioned in the

panchanama (Exh-25) that was prepared between 6.45 a.m.

And 7.15 a.m.

16. The complainant deposes that after preparing

the panchanama in the office of ACB at Aurangabad on 13 th

September, 1994, the raiding party and himself along

with panch Meshram (PW4) went to Police Station,

Shivoor. The appellant was present in the Police

Station. The complainant sat on a bench that was inside

the room of the appellant. The appellant asked the

complainant as to why he did not come on the previous

day, whereon the complainant told that because of some

work, he could not come on the previous day. Then, the

appellant called one Home-guard, wrote something on a

paper and directed the Home-guard to take Gorakh and

Daulat along with the sureties to Tahsil office. The

complainant asked him as to why he was sending Gorakh

and Daulat to Tahsil office when he had brought money as

demanded by the appellant. The appellant thereon asked

the complainant to pay that money. The complainant

removed the tainted currency notes of Rs.2000/- from the

pocket of his shirt and held them in front of the

appellant. The appellant asked him to keep those

15 criapl480-2000

currency notes on the paper on the table and

accordingly, the complainant kept those currency notes

on the table. Then, the appellant collected those

currency notes and kept them in the pocket of his pant.

The complainant states that at that time, the panch

Meshram (PW4) was in the varandah at a distance of 5 to

10 feet from him. Thereafter, the appellant and the

complainant went out of the room of the Police Station.

The complainant gave a predetermined signal by moving

his hand on his head. When the members of the raiding

party rushed towards the appellant, the appellant

dropped the tainted currency notes on the ground

before he was caught by the raiding party.

17. Meshram (PW4) corroborates the version of the

complainant on all material points in respect of the

demand of the appellant for bribe amount and compliance

of that demand by the complainant. There are some

inconsistencies in the evidence of the complainant and

Meshram (PW4), but those are minor in nature and cannot

be attached with any importance. Meshram (PW4)

specifically states that on being demanded by the

appellant, the complainant took out the tainted currency

notes and held them in front of the appellant. The

16 criapl480-2000

appellant asked the complainant to place those currency

notes on a paper. Accordingly, the complainant placed

those currency notes on that paper. Thereafter, the

appellant collected those currency notes and kept them

in the pocket of his pant. At that time, he was at the

distance of about 4 to 5 feet from the appellant. With

this evidence of the complainant and Meshram (PW4), the

prosecution has established positively that at the time

of the trap, the appellant demanded the bribe amount of

Rs.2000/- and in response to that demand, the

complainant placed the tainted currency notes of

Rs.2000/- on the paper that was on the table and the

said amount was then collected by the appellant and kept

in the pocket of his pant.

18. The defence of the appellant is that when the

appellant himself went out of the room from the Police

Station, the complainant thrusted the tainted currency

notes in the pocket of his pant and the appellant

immediately threw those notes on the ground. In support

of this defence, the appellant has examined Home-guard

Pawar (DW1) (Exh-41), who states about thrusting of

currency notes by the complainant in the pocket of the

pant of the appellant and throwing of those notes by the

17 criapl480-2000

appellant on the ground. Pawar (DW1) further states

that at that time, there had been a scuffle between the

appellant and the complainant. There is absolutely no

evidence to indicate that there had been scuffle between

the appellant and the complainant in the premises of the

Police Station. The theory of scuffle is ex facie

improbable. The complainant would not have dared to

indulge into a scuffle with the appellant, a Police Head

Constable, in the premises of the Police Station itself.

19. After catching hold of the appellant, his hands

and left side pocket of his pant were examined under the

light of ultraviolet lamp, whereon blue shining of

anthracene powder was noticed thereon, as seen from the

evidence of panch Meshram (PW4) and PI Nalawade (PW6).

It has come in the evidence of panch Meshram (PW4) and

PI Nalawade (PW6) that a paper which was found with the

tainted currency notes also was examined under the light

of ultraviolet lamp, whereon blue shining was noticed

thereon. Panch Meshram (PW4) identified the said piece

of paper as Article 3 that was produced before the Trial

Court. Panch Meshram (PW4) specifically states that the

appellant had collected the currency notes along with

that paper and had kept it in the pocket of his pant.

18 criapl480-2000

Panch Meshram (PW4) states that blue shining was noticed

on the table of the appellant also. Had the tainted

currency notes been thrusted by the complainant in the

pocket of the pant of the appellant after coming out of

the room of the appellant, the traces of anthracene

powder would not have been on the paper that was on the

table on which the complainant was asked to place the

currency notes. The traces of the anthracene powder

would not have been present on the table in the room of

the appellant. The presence of anthracene powder on the

table as well as on the paper that was on that table

clearly shows that the bribe amount was actually paid by

the complainant to the appellant inside his room and not

thrusted by him after the appellant and himself left

that room.

20. It is clear that when the appellant noticed

that he was being trapped by the members of the raiding

party, he threw the tainted currency notes on the ground

from the left side pocket of his pant. The defence set

up by the appellant about thrusting of the currency

notes in the pocket of his pant is not at all natural

and probable. It cannot be accepted. Thus, there is

positive evidence on record to show that on being

19 criapl480-2000

demanded by the appellant, the complainant paid him the

bribe amount of Rs.2000/- inside the office room of the

appellant and the appellant consciously accepted that

amount as bribe for not arresting the brother and cousin

of the complainant.

21. The learned counsel for the appellant submits

that when it was a Chapter case, there was no question

of arresting the brother and cousin of the complainant

and therefore, there was no reason for the appellant to

demand bribe amount for not arresting them. This

submission cannot be accepted. Though it was a Chapter

case, the appellant being the Investigating Officer was

in a position to extend a potential threat of arresting

the brother and cousin of the complainant. Therefore,

the reason given by the complainant behind the demand of

bribe made by the appellant cannot be said to be not

acceptable.

22. Admittedly, one of the relatives of the

complainant was serving as a Head Constable in the

office of A.C.B. However, he was not a member of the

raiding party. There is nothing on record to show that

the said relative of the complainant had any axe to

20 criapl480-2000

grind against the appellant. There is nothing on record

to show that the said relative had any occasion or

opportunity to influence P.I. Nalawade (PW6) or any

other official connected with the present case. In the

circumstances, the contention of the learned Counsel for

the appellant that the appellant has been falsely

involved in this case at the instance of the said

relative of the complainant, cannot be accepted.

23. The prosecution has established beyond doubt

that the appellant demanded and accepted illegal

gratification from the complainant as a reward for not

arresting the brother and cousin of the complainant. The

prosecution further established that the appellant

committed criminal misconduct by obtaining bribe amount

of Rs.2000/- from the complainant to his pecuniary

advantage and thereby committed offence punishable under

sub-section (2) of Section 13 read with Section 13 (1)

(d) of the Act.

24. The learned Trial Judge has rightly appreciated

the evidence and has rightly held the appellant guilty

for the above mentioned offences. The impugned judgment

convicting the appellant for the above mentioned

21 criapl480-2000

offences needs no interference.

25. The incident took place in the year 1994. The

period of about 23 years has been elapsed after the date

of the incident. The appellant has been convicted by

the Trial Court before about 17 years. He was under the

mental pressure of the said sentence for these long

years. In the circumstances, I think fit to show some

leniency to the appellant by reducing the sentence of

imprisonment imposed against him from two years to one

year, but at the same time, enhancing the sentence of

payment of fine from Rs.300/- to Rs.3000/-, in default

to suffer rigorous imprisonment of six months in respect

of the offence under Section 13 (2) read with section 13

(1) (d) of the Act. Likewise, I think fit to reduce the

sentence of rigorous imprisonment from one year to six

months in respect of the offence under Section 7 of the

Act and enhance the fine amount from Rs.200/- to

Rs.2000/-, in default to suffer rigorous imprisonment

for two months. The substantive sentences will have to

be directed to run concurrently. The fine amount of Rs.

500/- already deposited by the appellant will have to be

ordered to be appropriated towards the fine amount that

has been directed to be paid by the appellant by this

22 criapl480-2000

order. The appeal is liable to be partly allowed. In

the result, I pass the following order:-

O R D E R

(i) The appeal is partly allowed.

(ii) The conviction of the appellant for the

offences punishable under Section 7 and 13 (2)

read with Section 13 (1) (d) of the Prevention

of Corruption Act, 1988 are confirmed.

(iii) The order passed by the Trial Court sentencing

the appellant for the offence under Section 7

of the Prevention of Corruption Act, 1988 is

modified and he is sentenced to suffer rigorous

imprisonment for six months and to pay a fine

of Rs. 2000/-, in default to suffer rigorous

imprisonment for two months.

(iv) The order passed by the Trial Court sentencing

the appellant for the offence punishable under

Section 13 (2) read with Section 13 (1) (d) of

the Prevention of Corruption Act, 1988 is

modified and he is sentenced to suffer rigorous

23 criapl480-2000

imprisonment for one year and to pay a fine of

Rs. 3000/-, in default to suffer rigorous

imprisonment for six months.

(v) The substantive sentences of imprisonment shall

run concurrently.

(vi) The fine amount of Rs. 500/- (which has already

been deposited by the appellant), shall be

appropriated towards the amount of fine that

has been directed to be paid by the appellant

by this order.

(vii) The appellant shall surrender to his bail bonds

before the Trial Court on or before 3rd August,

2017 for suffering the sentence of

imprisonment.

(viii) In case the appellant fails to surrender as

stated above, the Trial Court shall issue

coercive process to secure his presence.

(ix) The Criminal Appeal is disposed of accordingly.

Sd/-

[SANGITRAO S. PATIL] JUDGE npj/criapl480-2000