State Of Mah.Thr.P.I.Anti ... vs Vinod T.Patil,Sub ...
2017 Latest Caselaw 2396 Bom

 CRI. APPEAL NO.270.01 (VJ).odt               1
   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.270 OF 2001


 The State of Maharashtra,
 through the Police Inspector,
 Anti Corruption Bureau,
 Bhandara.                                         ..               APPELLANT


                               .. VERSUS ..


 Vinod s/o Tulshiram Patil,
 Sub-Inspector, State Excise,
 Bhandara, Distt. Bhandara.                        ..           RESPONDENT



                    ..........
 Shri N.B. Jawade, APP for Appellant-State,
 None for respondent.
                    ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : MAY 08, 2017.

ORAL JUDGMENT

This appeal is directed against the judgment and

order dated 26.6.2001 passed by the learned Special Judge,

Bhandara in Special Criminal Case No.2/1993 thereby

acquitting the accused of the offences punishable under

sections 7, 13 (1) (d) (i) read with section 13 (2) of the

Prevention of Corruption Act, 1988.

2] In brief, prosecution case is as under :

(a) Complainant Tilakchand Mitaram

Katakwar was running a country liquor shop at

Gandhi Chowk, Bhandara. Sunil Gambhirji Shahare

was working as servant in the said shop. Excise

Department used to undertake periodical

inspection of the said shop.

(b) In June-1990, accused no.1 Vinod was

working as a Sub-Inspector and accused no.2

Shekhar was a constable in the Excise Department,

Bhandara. In July-1990, accused no.1 visited the

shop of complainant and made entry in the visit

book. He informed the complainant and his

employee that he entered good remarks in the visit

book and would not launch prosecution against the

complainant. At the same time, accused no.1 told

them that next time whenever he would be visiting

the shop, he would write good remarks and would

not lodge prosecution only if complainant pays him

Rs.200/- per month. In response, complainant

asked accused no.1 that he was not getting the

profit from the shop and he would think whether

Rs.200/- per month should be paid to him.

Thereafter, complainant did not meet accused no.1

till 2.4.1991.

(c) On 2.4.1991, complainant received a

message from one Ghanshyam Lekhraj Dawra that

he was called by accused no.1 with an amount of

Rs.2000/-. On receiving intimation, complainant

went to the office of accused no.1 and accused

no.1 told him to pay Rs.1800/- for him and Rs.200/-

for his peon, accused no.2, in all Rs.2000/- else he

would enter bad remarks in the visit book and

would launch prosecution. Complainant told him to

reduce the amount to which accused no.1 did not

agree. He was given time till next day to come

with Rs.2000/- in the office of accused no.1.

(d) On the next day, complainant

approached Anti-Corruption Bureau, Bhandara and

lodged report.A trap was arranged. Demonstration

of solution of sodium carbonate and

phenolphthalein powder test was given. Raiding

party reached the office of accused no.1 along with

panch witness and complainant. However, it was

revealed that accused no.1 was out of headquarter

and would came back on the next day. So the raid

could not be effected on that day.

(e) On 4.4.1991, raiding party accompanied

by complainant and panch witness again went to

the office of accused no.1. Accused no.1 was in his

chamber, he called upon the complainant,

demanded the amount of Rs.2000/- from him and

after the complainant handed over the tainted

currency notes of Rs.2000/- to accused no.1,

raiding party members were given signal and

accused no.1 was caught red-handed with tainted

currency notes of Rs.1800/-. Accused no.2 was

also caught red-handed with Rs.200/- tainted

currency notes. Pre-trap and post-trap

panchanamas were drawn. Report was lodged and

during investigation, statements of witnesses were

recorded. Necessary sanction to prosecute the

accused persons was obtained from the competent

authority. After completing investigation, charge-

sheet was presented to the Special Court,

Bhandara.

3] Charge of the alleged offence was explained to the

accused vide Exh.11. They pleaded not guilty and claimed

to be tried. Accused no.1 raised a specific defence that he

demanded and accepted amount of Rs.2000/- from the

complainant for the purpose of investment in National

Saving Scheme, as there was a government drive to make

collection towards the said scheme and a target was fixed

for the same. He specifically denied that he demanded and

accepted the amount towards bribe. Accused no.1

examined Ghanshyam Lekhraj Dawra as a defence witness.

Ghanshyam was cited as a prosecution witness, but

prosecution did not examine him before the court. The

defence of accused no.2 was of total denial and false

implication.

4] To substantiate the guilt of the accused,

prosecution examined in all ten witnesses. Considering the

evidence of prosecution witnesses and submissions made on

behalf of the parties, trial court came to the conclusion that

guilt of the accused has not been proved and in the result

acquitted the accused of the charge. Being dissatisfied with

the judgment and order of acquittal, State has filed the

present appeal.

5] Heard Shri Jawade, learned Additional Public

Prosecutor for the Appellant-State. With the assistance of

the learned APP, this court has meticulously evaluated the

evidence of prosecution and defence witnesses.

Considering the evidence on record, submissions made on

behalf of the parties and reasonings recorded by the trial

court, this court, for the below mentioned reasons, finds that

the view taken by the trial court is a reasonable and possible

view and no interference is warranted in this appeal.

6] PW-1 Tilakchand is complainant and PW-2

Rajkumar Lekharam Choudhari is one of the panch

witnesses. Both are the star witnesses for the prosecution.

It is not in serious dispute that at the relevant time accused

nos.1 and 2 were serving in the Excise Department and

they were the public servants. On demand and acceptance

of alleged gratification, it is stated by complainant that in

June-1990, accused no.1 visited his shop and made an

endorsement in the visit book. He deposed that accused

no.1 told him that he had written good remarks in the visit

book and called upon him to pay as per monthly account.

He has not given particulars of monthly account or any

cause for which monthly account was required to be

maintained. He stated that on 3.4.1991 Gahnsham Dawara

told him that accused no.1 called him along with amount of

Rs.2000/-. He went to the office along with Rs.2000/- and

lodged report vide Exh.21. He did not state about the

demand and acceptance of Rs.2000/- as illegal gratification

by accused no.1 in his examination-in-chief. It was only

after he was declared hostile and learned APP sought

permission to cross-examine the complainant, he supported

the prosecution.

7] So far as panch witness PW-2 is concerned, he

sticks up to his evidence and supports the story of

prosecution on pre and post traps. In view of the bold

defence taken by accused no.1, the moot question in the

present case is, whether amount of Rs.2000/- demanded

and accepted by accused no.1 was towards illegal

gratification or for investment in the National Saving

Scheme, as stated by accused no.1.

8] So far as procedural part is concerned, pre and

post trap panchanamas, evidence of panch witness and

complainant on demand and acceptance of Rs.2000/- by

accused no.1, it becomes insignificant as demand and

acceptance has been admitted by accused no.1. Accused

no.1 has examined DW-1 Ghanshyam Dawara, as a defence

witness. He was, in fact, cited as a prosecution witness, but

prosecution chose not to examine him. According to

witness Ghanshyam Dawara, when he had been to the office

of accused no.1 for renewal of his licence, accused no.1

called upon and asked him to give a message to

complainant to purchase National Saving Certificate for the

amount of Rs.2,000/- or Rs.4000/-. He conveyed the

message to complainant and later-on visited the office of

accused no.1. Nothing substantial could be elicited in the

cross-examination to disbelieve his evidence. He has no

reason to depose a lie against the complainant or side the

accused no.1. The only similarity between the complainant

and witness Ghanshyam Dawara is that they are running

liquor shops. Through the evidence of DW-1 Ghanshyam

Dawara, accused no.1 has succeeded in establishing on the

basis of preponderance of probabilities that he demanded

and accepted amount of Rs.2000/- for investment in the

National Saving Scheme. Complainant admitted in

unequivocal terms in cross-examination that excise officials

used to ask to purchase National Saving Certificates and

then to renew the licence. He also admits that on previous

occasions at the time of renewal of licence of his shop, he

purchased National Saving Certificates and this practice is

being followed since 1984 onwards by him. It has also come

on record that the work of renewal of licence of liquor shop

commences every year in the month of April. PW-9

Pratapsingh Rathod also admits that as specific target was

given to the office of accused no.1 to collect the amount as

contribution towards National Saving Certificate.

9] In the above background, trial court found that the

defence raised by accused no.1 is more probable, reliable

and trustworthy, whereas prosecution evidence and

changing version of complainant makes the prosecution

case doubtful.

10] It is pertinent to note that the first instance of

entering good remarks in the visit book took place in June-

July-1990. According to complainant, at that time, accused

no.1 had given him an understanding to pay Rs.200/- per

month else in future bad remarks would be entered and

prosecution would be launched. It is surprising that till April,

1991 accused no.1 did not contact the complainant and did

not insist him to pay Rs.200/- per month. This is a strong

clinching circumstance which falsifies the entire story built

up by the complainant that accused no.1 made a demand of

Rs.200/- per month in July-1990.

11] In the above premise, this court finds that the view

taken by the trial court is a reasonable and possible view.

No perversity is noticed in the reasonings and findings

recorded by the trial court. Appeal is thus unsustainable in

law. Hence, the following order :

ORDER

Criminal Appeal No.270 of 2001 stands dismissed.

No costs.

(Kum. Indira Jain, J.) Gulande, PA