Bombay High Court
State Of Mah.Thr.Acb Amravati vs Panjabrao Chindhuji Bavanthade on 23 May, 2017
Bench: V.A. Naik
2305CRI.APL 140.06-Judgment 1/15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 140 OF 2006
APPELLANT :- State of Maharashtra, Through
Superintendent of Police, Anti Corruption
Bureau, Amravati.
...VERSUS...
RESPONDENT/ :- Panjabrao Chindhuji Bavanthade, Police
ACCUSED Head Constable B.No.1154, Police Station
Mangrul Dastagir, Distt. Amravati.
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Mr. K. R. Lule, Addl. Public Prosecutor for the appellant.
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CORAM : SMT. VASANTI A NAIK, J.
DATED : 23.05.2017
O R A L J U D G M E N T
By this criminal appeal, the prosecution challenges the
judgment of the Additional Sessions Judge, Amravati dated
30/06/2005, acquitting the respondent-accused of the offences
punishable under section 7 and 13 (1) (d) read with section 13 (2) of
the Prevention of Corruption Act, 1988.
2. As per the prosecution case, the respondent-accused was
working as a police head constable in Police Station Mangrul Dastagir
2305CRI.APL 140.06-Judgment 2/15
from 14/08/1990 to 17/08/1990. Complainant Sanjabrao, an
agriculturist was the resident of Kawli (Vasad) in Amravati District. The
complainant possessed extensive agricultural lands and also possessed
about 20 cattle. The complainant had engaged Kishor as a cow-herd.
One Bhimrao Ingle, who was also an agriculturist and a teacher lodged
a complaint against Kishor that he had committed the theft of the bells
worn by a bullock. Bhimrao Ingle had reported the matter against
Kishor to the Police Station. The accused-police head constable,
Panjabrao visited the village of the complainant and enquired into the
matter as per the complaint lodged by Bhimrao on 13/08/1990. The
accused asked complainant Sanjabrao, Kishor and Mukinda to attend
the police station on 14/08/1990. On 14/08/1990, the complainant-
Sanjabrao, Kishor and Mukinda met the accused at about 1.00 p.m
when the accused threatened the complainant that he would arrest him
during the Ganpati Festival period and would keep him in jail for about
8 to 10 days. The accused told the complainant that he would withdraw
the complaint against him if an amount of Rs.2,000/- was paid. When
the complainant showed his inability to pay the amount, the accused
reduced the demand to Rs.1,000/- and stated that a sum of Rs.500/-
should be paid for the withdrawal of the case against Kishor and
Mukinda. The accused asked the complainant to bring the aforesaid
amount on 15/08/1990 and permitted the complainant to take back
2305CRI.APL 140.06-Judgment 3/15
Kishor and Mukinda to the village. The complainant could not arrange
the amount and therefore he again visited the house of the accused on
16/08/1990 along with Gajanan Ingle and informed him that he could
not withdraw the amount from the bank due to heavy rains. The
accused then asked the complainant to bring the amount on
17/08/1990. Since the complainant was not ready to pay the amount,
he lodged a complaint with the Anti Corruption Bureau at Amravati.
The Anti Corruption Bureau reduced the complaint into writing on
17/08/1990 and explained the procedure to the complainant as also the
importance of the phenolphthalein test. The complainant handed over
ten currency notes in the denomination of Rs.100/- for the purpose of
trap. On 17/08/1990, the complainant, the panchas and the police
staff proceeded for Mangrul Dastagir at 11.30 a.m. and reached
Mangrul Dastagir at about 1.30 p.m. where the raiding party enquired
about the accused at the bus stand and went to the house of the
accused. The accused called them inside the house and stated that the
case would be withdrawn as the complainant had brought the money.
The accused asked the complainant to go to the cooperative bank at
Mangrul Dastagir and give the reference of his name to Shri Bhaise, the
agent of the bank. The accused asked the complainant to inform
Mr.Bhaise to call Mr. Ingle, who was also working in the bank at
Dhamangaon (Railway). As Mr. Bhaise was not able to contact Mr.
2305CRI.APL 140.06-Judgment 4/15
Ingle, the complainant went back to the house of the accused and then
the accused, the complainant and the panch went to the bank. In the
bank, the accused asked Mr. Bhaise to accept the sum of Rs.1,000/-
from the complainant and as soon as the said amount was accepted by
Mr. Bhaise, the complainant came out and made a signal to the raiding
party to inform that the tainted money was handed over to Mr.Bhaise
on the say of the accused. The original case papers were sent to the
competent authority to obtain sanction to prosecute the accused and
after the sanction was accorded, the charge-sheet was filed against the
accused after the completion of the investigation. The accused pleaded
not guilty and claimed false implication in the case. According to the
accused, the M.L.A. of Dhamangaon (Railway) was annoyed against
him as he had not done his work and therefore a false case was sought
to be made out against him through the complainant.
3. The prosecution examined complainant Sanjabrao as
P.W.No.1, panch No.1 Awdhut as P.W.No.2, panch No.2 Rangrao as
P.W.No.3, Gajanan Ingle as P.W.No.4, Surendra Bhaise, the employee of
District Central Cooperative Bank, Branch at Mangrul Dastagir as
P.W.No.5, the sanctioning authority as P.W.No.6 and the investigating
officer as P.W.No.7. On an appreciation of the evidence on record, the
trial court held that the prosecution had failed to prove that the accused
2305CRI.APL 140.06-Judgment 5/15
had demanded gratification other than the legal remuneration from the
complainant as a motive or reward for doing an official act. The trial
Court held that the prosecution had failed to prove that on 17/08/1990
the accused had accepted Rs.1,000/- from the complainant as illegal
gratification. On answering the said issues against the prosecution, the
trial court acquitted the accused of the offences punishable under
sections 7 and 13(1)(d) read with section 13(2) of the Act, after
holding that the prosecution had failed to prove the ingredients of
sections 7, 13(1)(d) and 13 (2) of the Act. The judgment of the trial
court, dated 30/06/2005 is challenged by the State Government in this
appeal.
4. Shri Lule, the learned Additional Public Prosecutor
appearing for the State Government, submitted that the trial court has
misappreciated the evidence of the prosecution witnesses to observe
that the prosecution has failed to prove the ingredients of the offences
punishable under the Act against the accused. It is submitted that the
evidence of the prosecution witnesses clearly proves the illegal demand
by the accused for dropping the prosecution against the complainant
and his servant Kishor. It is submitted that there is ample evidence on
record to show that the accused had asked the complainant to visit the
branch of the bank and deposit the amount of Rs.1,000/- in his account.
2305CRI.APL 140.06-Judgment 6/15
It is stated that the trial court has given undue weightage to the
statement of Shri Bhaise, the branch manager of the concerned bank
while discarding the evidence of Shri Bhaise P.W.No.5 that he had
accepted the amount at the instance of the accused. It is stated that the
trial court has wrongfully discarded the evidence of the prosecution
witnesses on the basis of some minor omissions and contradictions,
which were bound to exist when the witnesses deposed after a long
time. It is stated that on an overall reading of the evidence of the
prosecution witnesses and on a consideration of the circumstances of
the case, the trial court should have convicted the accused for the
offences punishable under sections 7 and 13 of the Act.
5. On hearing the learned Additional Public Prosecutor and
on a perusal of the record and proceedings as also the judgment of the
trial court, it appears that the following points arise for determination
in this appeal:-
(I) Whether the trial court was justified in acquitting the
accused of the offences punishable under sections 7 and
13(1)(d) read with section 13(2) of the Prevention of
Corruption Act?
(II) What order?
2305CRI.APL 140.06-Judgment 7/15
6. On an appreciation of the evidence on record, it appears
that the view expressed by the trial court that the prosecution had failed
to prove the charges against the accused is a possible view, which
cannot be lightly interfered with in an appeal against acquittal.
According to the prosecution, the accused had made a demand of bribe
from the complainant on two or three occasions. According to the
prosecution case, the accused had visited the village on 13/08/1990 for
making an enquiry on the report lodged by Bhimrao Ingle. On that day,
the accused directed the complainant to visit the police station at
Mangrul Dastagir on 14/08/1990 with Kishor and Mukinda. On
14/08/1990, as per the version of the complainant, three of them went
to the police station at about 11.00 a.m. and the accused threatened the
complainant that he would arrest him during the Ganpati Festival and
keep him behind the bars for a period of 8 to 10 days. It is the version
of the complainant that the accused asked him to pay Rs.2,000/- so that
the case could be withdrawn and since the complainant was unable to
pay the said amount, the demand was reduced to Rs.1,000/- for
withdrawing the complaint against him and Rs.500/- for withdrawing
the case against Kishor and Mukinda. On 14/08/1990, the complainant
was permitted to take back Kishor and Mukinda to the village. On
16/08/1990, when the complainant went to the house of the accused
2305CRI.APL 140.06-Judgment 8/15
along with Gajanan Ingle, the accused reiterated the demand and asked
the complainant to bring the amount on 17/08/1990. The trial court
found that there were material contradictions in the complaint filed by
the complainant before the Anti Corruption Bureau and the evidence
tendered by him. According to the evidence of the complainant, the
accused had directed him to meet him at his house and hence, the
complainant, Moreshwar and Ramrao had gone to the house of the
accused. Though the complainant had deposed that the complainant
was accompanied by Moreshwar and Ramrao and he had further
deposed in his cross-examination that Kishor had also accompanied him
to the house of the accused, the prosecution did not examine either
Moreshwar, Ramrao or Kishor. The prosecution failed to examine both
Kishor and Mukinda against whom the complaint was lodged by
Bhimrao Ingle. Though it was the case of the complainant that on
14/08/1990, he was accompanied by Moreshwar Ramrao and Kishor
and Mukinda were also in the police station, the prosecution had failed
to examine them to prove the demand. The trial court rightly held that
it was imperative on the part of the prosecution to examine these
witnesses in whose presence the demand was allegedly made and the
non-examination of the material witnesses, would result in drawing an
adverse inference against the prosecution, at least so far as the cases
filed by Kishor and Bhimrao Ingle against each other, are concerned.
2305CRI.APL 140.06-Judgment 9/15
Though the complainant had deposed that on 15/08/1990 he again
went to the police station and the accused asked him whether he had
brought the amount with him in the presence of Bhimrao Patil a
resident of Warud Bagaji, the presence of Bhimrao Patil was not
mentioned in his complaint filed before the Anti Corruption Bureau and
Bhimrao Patil was also not examined by the prosecution to substantiate
the version of the complainant that on 15/08/1990 the accused had
made a demand of Rs.1,000/-. The trial court has observed that when
the complainant went to the house of the accused on 16/08/1990 along
with Gajanan, the accused did not enquire about the identity of Gajanan
from the complainant. It is not possible to believe that the accused
could have asked the complainant to bring the bribe amount in the
presence of Gajanan, a person not known to him. While considering the
evidence of the prosecution, the trial court tested the evidence of the
complainant and Gajanan, as Gajanan had stated in his evidence that on
15/08/1990 he along with Moreshwar and Ramrao Choudhari had
gone to Mangrul Dastagir to meet the accused when the accused made
the demand of the bribe amount of Rs.1,000/- from the complainant.
The trial court rightly considered that there was a material discrepancy
in the evidence of the complainant and P.W.No.4 Gajanan, as it was not
the case of the complainant that Gajanan had also accompanied him to
the Police Station on 15/08/1990. Since it was the case of the
2305CRI.APL 140.06-Judgment 10/15
complainant that on 15/08/1990 the demand was made by the accused
in the presence of Bhimrao Patil, the resident of Warud Bagaji, the trial
court held that there was a discrepancy in the version of the
complainant and P.W.No.4 Gajanan pertaining to the demand made by
the accused on 15/08/1990. Also, the trial court found that though
P.W.No.4 Gajanan had deposed that on 16/08/1990 only he and the
complainant had visited the house of the accused and the accused had
demanded the amount, he admitted in his cross-examination that he
was informed by the complainant that the accused had demanded
Rs.1,000/- from him and for that purpose the trap was to be laid and
the raid was to be conducted. The trial court held that the aforesaid
admission of P.W.No.4 in his cross-examination would be sufficient for
discarding his evidence in his examination-in-chief, more so when he
had admitted that the complainant was his uncle. The trial court held
that had P.W.No.4 Gajanan accompanied the complainant, he would
not have been in a position to depose about the exact amount of bribe
demanded by the accused. The trial court held that the version of
Gajanan did not inspire confidence and the evidence of Gajanan was
liable to be discarded, more so when the version of the complainant was
not corroborated by any other evidence on record, specially oral
evidence of any independent witness or circumstantial evidence. The
trial court held on an appreciation of the evidence of Gajanan and the
2305CRI.APL 140.06-Judgment 11/15
complainant that the prosecution had failed to prove the story of
demand prior to the raid on 17/08/1990 and also at the time of the raid
on 17/08/1990. The trial court rightly held that the demand was not
proved.
7. P.W.No.2 Awdhut, the decoy witness, who was allegedly
present at the time of the raid, turned hostile and did not support the
prosecution case. Nothing was brought out from the cross-examination
of P.W.No.2 Awdhut to bring home the guilt of the accused or about the
demand of the amount at the time of the raid. After holding that the
prior demand and the demand at the time of the raid was not proved,
the trial court held that the second panch witness Rangrao, who was
allegedly signalled by the complainant after the tainted money was paid
to Mr.Bhaise for and on behalf of the accused, he deposed in his
evidence that inside the bank, the complainant pointed out the accused
to Mr.Pande. In his cross-examination, P.W.No.3 Rangrao stated that
Mr.Mehare had given him a signal after the tainted money was accepted
by Mr.Bhaise but as per his deposition in his examination-in-chief as per
the prosecution case, the complainant had given the signal to P.W.No.3
Rangrao. On a reading of the entire evidence of P.W.No.3 Rangrao, the
trial court held that both panchas, i.e. panch No.1-P.W.No.2 and the
panch No.2-P.W.No.3 did not support the prosecution case. The trial
2305CRI.APL 140.06-Judgment 12/15
court held that the evidence of P.W.No.3 was not trustworthy and
reliable and therefore his testimony was liable to be discarded. Though
the prosecution examined Shri Surendra Bhaise, the agent of the bank,
who had allegedly accepted the amount of Rs.1,000/- for the accused,
he did not support the prosecution story. The learned Additional Public
Prosecutor had cross-examined P.W.No.5 Surendra Bhaise at length so
as to prove the case of the prosecution but no incriminating
circumstances were brought on record from the cross-examination of
P.W.No.5 Bhaise to bring home the guilt of the accused. P.W.No.5 had
admitted in his cross-examination that he was also sought to be made
an accused but the bank did not permit his prosecution, as he had acted
in discharge of his official duties. Though it was the case of the
prosecution that the accused had accepted the bribe amount through
P.W.No.5 Mr. Bhaise, the trial court rightly held that the said case
should fail as P.W.No.5 Mr.Bhaise had not supported the prosecution
case. The trial court held that the version of the complainant was full of
material omissions and contradictions and his version was not
corroborated by the evidence tendered by the other prosecution
witnesses. No independent witness was examined to prove the demand
by the accused. There was inconsistency in the evidence of the
complainant and the panch witnesses, in material particulars. The
panch witness No.1-P.W.No.2 had turned hostile and P.W.No.3 panch
2305CRI.APL 140.06-Judgment 13/15
No.2, who was not actually present at the time of the alleged
acceptance of the bribe had not supported the case of the complainant.
The trial court found that Bhimrao Ingle, who had allegedly lodged the
complaint against Kishor was not examined by the prosecution. Though
it was the case of the prosecution that the accused had threatened the
complainant on the basis of the complaint made by Shri Bhimrao
against the complainant, Bhimrao was not examined, though he could
have been a material witness. Apart from not examining Bhimrao, the
prosecution also did not examine Kishor and Mukinda to prove that the
accused had made a demand of Rs.500/- from the complainant
pertaining to the complaint filed by Bhimrao Ingle against Kishor and
Mukinda. The trial court held that the complainant was not concerned
with Kishor and Mukinda and it was impossible that the accused would
make a demand of the bribe of Rs.500/- from the complainant to
release Kishor and Mukinda from the case that was pending against
them. Also, the prosecution failed to prove that any complaint was ever
registered by Shri Bhimrao Ingle against the complainant. If the said
fact was not proved, there was no occasion for the accused to seek an
amount of Rs.1,000/- from the complainant for his release from the
case that was sought to be made out against him by Shri Bhimrao Ingle.
Neither was Shri Bhimrao Ingle examined nor any material was placed
before the trial court to show that any complaint was ever lodged by
2305CRI.APL 140.06-Judgment 14/15
Shri Bhimrao Ingle against the complainant. After having held so, the
trial court held that the prosecution had failed to prove the demand and
acceptance of illegal gratification by the accused and hence the accused
was entitled to be acquitted of the offences punishable under sections 7
and 13(1) (d) read with section 13(2) of the Act. The trial court held
that in view of the discrepancies in the version of the complainant and
the other prosecution witnesses on material particulars, the prosecution
could not prove the demand of bribe by the accused, prior to the trap
and at the time of the trap on 17/08/1990 as well as the acceptance
thereof. The trial court rightly held that in the circumstances of the
case, benefit of doubt should be given to the accused. The view
expressed by the trial court is a possible view and it is not permissible
for a court hearing an appeal against acquittal to reverse the findings of
facts, recorded by the trial court merely because another view is
possible. The appellate court should be extremely slow in reversing the
findings of the trial court, as it is well settled that the findings of facts
recorded by the trial court could only be reversed on very substantial or
compelling reasons. There is a presumption of innocence in favour of
the accused and the presumption is further strengthened by the
acquittal of the accused by the trial court. The view expressed by the
trial court is not an erroneous view of law and the findings recorded by
the trial court cannot be said to be erroneous. Hence, it would be
2305CRI.APL 140.06-Judgment 15/15
necessary to dismiss the appeal filed by the State Government by
following the principles that are liable to be considered while deciding
an appeal against acquittal, as laid down by the Hon'ble Supreme Court
in the judgments reported in AIR 1952 SC 52 (Surajpal Singh v. The
State), AIR 1954 SC 1 (Tulsiram v. State), AIR 1954 SC 637 (Madan
Mohan v. State of Uttar Pradesh) as also the other judgments that are
rendered by the Hon'ble Supreme Court from time to time, reiterating
the principles laid down in the said judgments.
In the result, the criminal appeal is dismissed with no
order as to costs.
JUDGE
KHUNTE
