The State Of Maharashtra Through ... vs Dilip S/O Keshorao Mankar And ...
2017 Latest Caselaw 2578 Bom

                                                     1                                      jg.apeal427.13.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.

                              Criminal Appeal No. 427 of 2013

The State of Maharashtra 
Through Superintendent of Police, 
Anti-Corruption Bureau, 
Amravati, Tq. and Dist. Amravati.                                                              ..... Appellant

           // Versus // 

(1) Dilip s/o Keshorao Mankar, 
      Aged 44 years, Occ :- Service, 
      R/o. Saraswati Nagar, 
      Tq. and Dist. Amravati. 

(2) Kishor Manikial Raul, 
      Aged 62 years, Occ :- Labour, 
      R/o. Near Asnare Mangal Karyalaya, 
      Budhwara, Tq. and Dist. Amravati.                                  .... Respondents
------------------------------------------------------------------------------------------------
Ms. N. P. Mehta, A.P.P. for the State/appellant 
Shri P. R. Agrawal, Advocate for the respondents
-----------------------------------------------------------------------------------------------------------------------

                                                                CORAM :  S. B. SHUKRE, J.

                                                             DATE    :   19/05/2017.
ORAL JUDGMENT

This is an appeal preferred against the judgment and

order dated 31-10-2012 delivered in Special Case (ACB) No. 5/2011

by Special Judge and Assistant Sessions Judge, Amravati thereby

acquitting respondent no. 1 of the offences punishable under Sections

7 and 13(2) read with Section 13(1)(d) of the Prevention of

2 jg.apeal427.13.odt

Corruption Act, 1988 and respondent no. 2 for the offence punishable

under Section 12 of the Prevention of Corruption Act, 1988.

2. The respondents were prosecuted and tried for the afore

stated offences by the Special Court on the allegations that respondent

no. 1 demanded amount of Rs. 300/- from the complainant, one,

Pradip Shankarrao Punse, on three dates, such as, 18-2-2011,

24-2-2011 and 25-2-2011 for doing an official act of returning the

driving licence of the complainant which was seized by the

respondent no. 1 and respondent no. 2 at the behest of the respondent

no. 1, accepted from the complainant the bribe amount of Rs. 300/-

on 25-2-2011 thereby abetting the commission of offence of bribery

by respondent no. 1. The prosecution examined in all five witnesses,

out of which, P.W. 1 Pradip Punse and P.W. 2 Prakash Ghatol

respectively, the complainant and panch witness, were the material

witnesses. On merits of the case, considering the evidence of material

prosecution witnesses, learned Special Judge found that prosecution

failed in its effort to bring home guilt of the said offences to the

respondent nos. 1 and 2 and, therefore, learned Special Judge

acquitted both the respondents of these offences by his judgment and

order dated 31-10-2012. Not being satisfied with the same, the

3 jg.apeal427.13.odt

prosecution is before this Court in the present appeal.

3. I have heard Ms. Mehta, learned Additional Public

Prosecutor for the State and Shri Agrawal, learned counsel for the

respondents. I have carefully gone through the record of the case

including the impugned judgment and order. It is the contention of

learned Additional Public Prosecutor that the impugned judgment and

order are perverse as the evidence of the prosecution has not been

properly appreciated. Learned counsel for the respondents, however,

disputes the proposition. He submits that the judgment is legal and

correct and requires no interference from this Court.

4. Upon considering the record of the case, in particular, the

evidence of key prosecution witnesses, namely, P.W. 1 Pradip and

P.W. 2 Prakash, I find that there is no scope for making any

interference with the findings recorded by the learned Special Judge,

as such, I find no substance in the argument of learned Additional

Public Prosecutor for the State.

5. It is seen from the evidence of P.W. 1 Pradip, the

complainant, that in his examination-in-chief itself he had given an

indication, quite clearly, that he was not going to support the

4 jg.apeal427.13.odt

prosecution case in any manner. The first salvo was fired by him by

making a statement that the respondent no. 1 demanded from him the

original driving licence but he gave him its xerox or Photostat copy.

The second indication came when P.W. 1 - complainant failed to give

the specific dates on which the bribe amount was demanded from him

by the respondent no. 1. Further indication was given by P.W. 1 by

failing to mention anything about presence of respondent no. 2 and

categorically saying that the currency notes making up the amount of

Rs. 300/- were handed over not to respondent no. 2 but to one

canteenwala on the say of the respondent no. 1. These admissions

were all against the prosecution case. The prosecution case was that

original driving licence was seized by respondent no. 1 and on behalf

of respondent no. 1, respondent no. 2 had accepted the tainted

currency notes from P.W. 1, the complainant and that they were also

recovered from the personal possession of respondent no. 2. But, this

witness was not sought to be declared hostile by the prosecution and

he was allowed to be cross-examined by the then learned counsel for

the respondents. In his cross-examination, the complainant gave

admissions fatal to the prosecution story. He stated that he was

apprehended by another Constable Raju Kale and that he was beaten

5 jg.apeal427.13.odt

by Raju Kale and, therefore, he had lodged a report against him. He

further stated that he did not know respondent no. 1 and saw him for

the first time when he was apprehended by the personnel of Anti

Corruption Bureau, Amravati. He further stated that he was told by

the officers of the Anti Corruption Bureau that the tainted currency

notes be given either to Mankar or Rajmane or anybody who may be

present or otherwise trap would not be successful. It was only after

such damaging admissions that the prosecution realized the need for

cross-examining the complainant after seeking necessary permission

from the Court and therefore, an application in that regard was

moved. It was granted and then the complainant was subjected to

cross-examination by the prosecution.

6. Unfortunately, by the time, the prosecution started its

exercise of cross-examining the complainant, much water had flown

from under the bridge. The damage had become irreversible. This

can be seen from the answers given by P.W. 1 complainant in his

cross-examination by the learned A.P.P. before the Special Court. He

maintained that he had never stated to police that on 18-2-2011,

respondent no. 1 had demanded from him any money. Similarly, he

refused to admit that on 24-2-2011, a similar demand was made by

6 jg.apeal427.13.odt

respondent no. 1. He disowned the contents of his complaint vide

Exhibit 13 though he admitted his signature appearing below it. In

his further cross-examination by the then learned counsel for the

respondents, he again admitted that respondent no. 1 never

demanded any money from him and he did not lodge any complaint

against respondent no. 1. He has stated that he had not given any

complaint against respondent no. 1 but he had given a handwritten

complaint against Rajmane and Kale. Incidently, complaint vide

Exhibit 13 is a typewritten complaint.

7. P.W. 2 has also not supported the prosecution, even

though he was a shadow witness. In his examination-in-chief itself, he

stated that the tainted currency notes were given to tea stall owner,

one Parma and they were recovered from the personal possession of

this tea vendor. He has also stated that these currency notes were

handed over to the tea stall owner towards payment of charges of tea

on the directions of respondent no. 1. He has also stated in his

examination-in-chief that while he himself, respondent no. 1 and

complainant were having tea, respondent no. 1 handed over licence to

the complainant. This witness nowhere refers to presence of

respondent no. 2 at the spot where trap was held. He was not sought

7 jg.apeal427.13.odt

to be declared hostile by the prosecution and thus was not subjected

to any cross-examination by the prosecution. This may be for the

reason that by that time the prosecution may have lost interest in

prosecuting the respondents, given the non-cooperation from the

complainant.

8. A final blow to the prosecution case was dealt when even

more fatal admissions were given by P.W. 2 Prakash during the course

of his cross-examination by the then learned counsel for the

respondents. He admitted that Exhibit 13 was not a complaint which

was shown to him by the officers of the Anti-Corruption Bureau on

24-2-2011. This strengthened the defence of the respondents that

P.W. 1, the complainant had actually given a handwritten complaint

and that was against Rajmane and Kale and not against the

respondents. P.W. 2 Prakash has further admitted in his cross-

examination by the respondents that the panchanama vide Exhibit 22

was not the same panchanama which was prepared at the spot on

which his signature was taken. This admission further strengthened

the defence of the respondents that the tainted currency notes were

recovered not from respondent no. 2 but from the tea owner and that

those currency notes were handed over to the tea vendor as payment

8 jg.apeal427.13.odt

of tea charges and that too on the directions given in that regard by

respondent no. 1.

9. Having discussed the evidence of key prosecution

witnesses, I find that the prosecution case as against both the

respondents has gone completely haywire resulting in failure of

prosecution to prove the offences punishable under Section 7 and

13(2) of the Prevention of Corruption Act and the offence punishable

under Section 12 of the Prevention of Corruption Act for which the

respondent no. 1 and respondent no. 2 were respectively tried.

Learned Special Judge had no alternative in these circumstances to

take any different view. There is no scope for making any

interference with the judgment and order as rightly submitted by

learned counsel for the respondents. The appeal deserves to be

dismissed.

The appeal stands dismissed.

JUDGE

wasnik