Bombay High Court

State Of Maha vs Mohan Madhusudan Daskhedkar on 9 May, 2017

Bench: S.S. Shinde

                                                 Cri.Appeal.360.2004
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 360 OF 2004


 The State of Maharashtra
                                 ...APPELLANT. 
        VERSUS             

 Mohan Madhusudan Daskhedkar
 Age : 43 years, Occu. Service,
 R/o. Selu, Tq. Selu, Dist. Parbhani.          
                                 ...RESPONDENT
                      ...
 Mr. S.D. Ghayal, A.P.P. for appellant.       
                      ...

               CORAM:   S.S. SHINDE, J.
               DATE :   9th MAY, 2017 

 JUDGMENT :

Heard.

2. This Appeal is directed against the

judgment and order dated 27th February, 2004,

passed by the Special Judge, Jalna in Special Case

PCA No. 11 of 2001, thereby acquitting Respondent

- Mohan Madhusudan Daskhedkar, from the offence

punishable under Sections 7 and 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act.

Cri.Appeal.360.2004

3. Brief facts leading to filing of the

present Appeal, as per the prosecution case, are

as under:-

. The complainant Pandit Madhavrao Kapale

(PW-2) lodged the complaint in the office of Anti

Corruption Bureau, Jalna on 19th July, 2001,

alleging demand of illegal gratification on the

part of the accused for measurement of land and

preparation of report of measurement in favour of

the complainant. It is the case of the prosecution

that, 2 acres 10 gunthas land from Gat No.108 of

village Gosavi Pangri owned by Tanabai Nagorao

Kapale was entered in the name of Chandrabhan Nama

Sawant of the same village. The son of the

complainant submitted the application in the

office of the Deputy Director of Land Records,

Office at Aurangabad. One Dhondiba Ratan Raimule

informed the complainant on 18th July, 2001 that,

the file has been referred to Taluka Inspector of

Cri.Appeal.360.2004

Land Records, Mantha. The complainant and Raimule

had visited the office of the Respondent on 18 th

July, 2001 at Mantha and met respondent. They made

enquiry with the accused in connection with

pending file of measurement of land. The accused

told that, land has been measured and the report

has to be submitted to the office of Deputy

Director of Land Record at Aurangabad. The accused

told that, the complainant should pay Rs.2500/- to

the accused so as to give the favourable report.

After discussion, the accused assured to do work

after receiving an amount of Rs.1000/-. The

complainant paid Rs.500/- as part of bribe amount

and it was agreed that, the remaining amount of

Rs.500/- will be paid within short period to the

accused i.e. respondent. The accused gave

assurance to the complainant that, the work would

be done after paying remaining amount of Rs.500/-.

The complainant assured the accused that, balance

amount of Rs.500/- would be paid on Friday. The

accused asked the complainant to pay remaining

Cri.Appeal.360.2004

amount at his office.

. It is the case of the prosecution that,

the complainant did not want to pay the bribe

amount, he approached to the office of Anti

Corruption Bureau at Jalna. After filing such

complaint, as usual procedure was followed and

preparations were made to lay the trap. All the

panch witnesses and also the complainant were

properly briefed and the entire exercise towards

pre-preparation of trap was done. Accordingly, on

20th July, 2001, the complainant, two panchas and

raiding party members have started from Jalna to

Mantha at 9.45 a.m. and reached at Mantha at 11

a.m. Thereafter, the complainant met the accused,

the accused demanded Rs.500/- and the said amount

was given by the complainant to the accused. The

accused counted currency notes, and put the said

notes in the pocket of jacket wore by him. The

complainant gave signal to the raiding party

members, and the raiding party members arrived at

Cri.Appeal.360.2004

the spot and caught hold the hands of the accused.

Thereafter necessary formalities were completed.

According to the prosecution case, the amount and

also pocket of jacket of the accused was examined

under ultra violet lamp and said examination

revealed bluish shade on the currency notes and

also the pocket of jacket. Thereafter, the said

amount was kept and sealed in the pocket and the

necessary panchanama was drawn to that effect.

Thereafter, the investigation proceeded, the

charge-sheet was filed and after full-fledged

trial, the Special Court acquitted the Respondent

- accused. Hence this Appeal.

4. Learned A.P.P. appearing for the

appellant/State invites my attention to the

evidence of the complainant and the panch

witnesses, and submits that though the complainant

turned hostile and did not support the prosecution

case, nevertheless, his part of evidence from the

examination in chief, which is favorable to the

Cri.Appeal.360.2004

prosecution, can be taken into consideration. He

submits that, the complainant did admit that, the

complaint was given and signature on the said

complaint belong to him. He invites my attention

to the evidence of other prosecution witnesses and

submits that, the trap was successful and the

prosecution did prove beyond doubt the involvement

of the accused, and therefore, the Appeal deserves

to be allowed.

5. Upon careful perusal of the evidence

brought on record, and in particular, the evidence

of the complainant, it is amply clear that, the

complainant did not support the prosecution case.

In his deposition before the Court, he stated

that, he filed the complaint in the office of the

Anti Corruption Bureau. He also identified the

signature, however, he specifically stated that,

he never visited the office of the Anti Corruption

Bureau, on 18th July, 2001, and his son visited the

office. He stated that, it was decided between him

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and the accused that, he has to pay Rs.1000/- to

get the work done and the accused was paid

Rs.500/- and the remaining amount of Rs.500/- was

to be paid after two days. However, he

specifically stated that, he was never called at

Anti Corruption Bureau office at Jalna on 20th

July, 2001. It did not happen on the said date

that, he was called at Anti Corruption Office and

he was introduced with two panch witnesses. At

this stage, the learned A.P.P. made prayer to

declare PW-2 hostile and he conducted his cross-

examination. In his cross examination by the

A.P.P., PW-2 - Pandit Madhavrao Kapale stated

thus:-

"Police has not recorded my statement. It is denied I put forth Rs.570 and Rumal on the table at the instance of Police. It is denied Police kept 5 currency notes having the denomination of Rs.100/- and returned Rs.70/- and towel to me. It is denied the characteristic of the anthracene powder was

Cri.Appeal.360.2004

disclosed to me. It is denied those currency notes were applied anthracene powder and ultra violet lamp was put on it and seen the brightness on it and those currency notes were put in my pocket. It is denied PSI gave instructions to me and panch. It is denied pre-trap panchnama was carried at the office. It is denied I myself, panchas and staff members started to Mantha in jeep. It is denied I first panch Patil was get down from the jeep and directed to proceed to the office of the accused. It is denied I and panch Patil stayed at the hotel and we called the accused while he was proceeding infront of the hotel. Then accused entered at the hotel and then we 3 persons have taken the Tea. It is denied then I make the enquiry to the accused in connection of the work and accused enquired me whether I have brought the amount. It is denied I make the enquiry to the accused whether I have to pay Rs.400/- to Rs.500/- and accused demanded Rs.500/- and I paid Rs.500/- to the accused and the accused kept that amount in his pocket. It is denied then I gave the signal after coming outside the hotel by rubbing the towel on my face and the raiding party

Cri.Appeal.360.2004

members have reached at the spot and caught hold hands of the accused. It is denied there was made a dark at the corner of the hotel and ultra violet lamp was put on my hand and pocket and seen the brightness (shining). It is denied my personal search was taken and Rs.70/- and towel was recovered from my possession. The portion mark `A' from my statement is not true and correct one. It is denied I have compromised the case out of Court. It is denied I am giving false evidence to save the accused. I am not claiming attached Rs.500/-."

In his further cross-examination, he

stated that, the Police has obtained his signature

on blank papers and he is not able to tell what is

written on it. He never went to Jalna and never

filed the complaint.

6. The trial Court upon appreciation of the

evidence of other prosecution witnesses and also

the panch witnesses reached to the conclusion

that, the first demand by the complainant was not

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proved. So far, the demand at the time of trap is

concerned, the complainant has refused the entire

prosecution case, therefore, the trial Court has

extended the benefit of doubt in favour of the

accused. Upon independent scrutiny of the evidence

on record and in the light of above recorded

cross-examination of the complainant by the