State Of Mah. Thru. Dy. Suptd. Of ... vs Bharat S/O Dadaji Padhal & Anor
2017 Latest Caselaw 2639 Bom

 2605CRI.APL 563.08-Judgment                                                                  1/11


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

                     CRIMINAL APPEAL  NO. 563   OF    2008


 APPELLANT :-                         The   State   of   Maharashtra,   Through   Dy.
                                      Superintendent   of   Police,   Anti   Corruption
                                      Bureau, Chandrapur.

                                         ...VERSUS... 

 RESPONDENT :-                   1. Bharat s/o Dadaji  Pandhal, Aged  about 38
                                    years,   Occ.   Service,   P.S.   Gadchandur,   R/o
                                    Near   Chavan   Kawelu   Factory   &   Near   of
                                    Adv.Wasekar   House,   Jatapura   Gate,
                                    Chandrapur.

                                 2. Bhaiya   s/o   Deorao   Kale,   aged   about   32
                                    years,   Occ.   Service,   P.S.   Gadchandur,   R/o
                                    Chandman Chowk, Tukum, Chandrapur. 

 ---------------------------------------------------------------------------------------------------
            Mr. M. V. Ekre, Addl. Public Prosecutor for the appellant.
                     Mr. R. P. Joshi, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        CORAM : SMT. VASANTI    A    NAIK, J.

DATED : 26.05.2017

O R A L J U D G M E N T

By this criminal appeal, the appellant-State of Maharashtra

challenges the judgment of the Special Judge, Chandrapur, dated

12/05/2008, acquitting the respondents-accused of the offences

punishable under sections 7 and 13(1)(d) read with section 13(2) of

the Prevention of Corruption Act, 1988.

2605CRI.APL 563.08-Judgment 2/11

2. The facts giving rise to the appeal are stated thus:-

Complainant Manohar Chincholkar was plying an auto

trolly goods carrier in the year 2003 when his trolly was halted by

traffic constable Mr. Bharat Padhal-accused No.1 on 29/07/2003. The

accused No.1 issued a challan to the complainant and directed him to

pay the fine of Rs.3,000/- in the court at Rajura. The complainant

stated that Rs.3,000/- was an excessive amount and a challan be issued

for a lesser sum. The accused No.1 told the complainant that if he was

not willing to pay a fine of Rs.3,000/-, he should pay Rs.1,000/- to the

accused No.1 and in turn he would not issue the challan. On the say of

the accused No.1, the complainant paid Rs.500/- to the accused No.1

and requested that the challan be cancelled. The accused No.1 however

asked the complainant to pay the remaining amount of Rs.500/- at 12

o'clock noon on the next day near the bus stand chowk or at his

residence in Irrigation Colony. The accused No.1 told the complainant

that he would return the original documents after the amount was paid.

The complainant reported the matter to the Anti Corruption Bureau,

Chandrapur and the complaint was reduced into writing. The trap

procedure was explained to the accused. Thereafter the raiding party

along with the complainant proceeded in an official vehicle to

Gadchandur on 30/07/2003. In the way, the complainant and the

decoy witness were accommodated in the auto trolly of the complainant

2605CRI.APL 563.08-Judgment 3/11

and the other raiding party members and the panch witness followed

the auto trolly in the office vehicle. The accused No.1 was not

available at the bus stop and hence the vehicle started proceeding

towards the residence of the accused No.1. On the way, the accused

No.1 while riding on his motorbike along with the pillion rider Mr. Kale,

the accused No.2, who was also in the Police Department, halted the

auto trolly and called the complainant near him. When the complainant

requested the accused No.1 to return the documents, the accused No.1

asked the complainant whether he had brought the amount. The

complainant replied in the affirmative and handed over the currency

notes to the accused No.2 on the say of the accused No.1, who in turn

put the notes in his chest pocket on the left side. Immediately, the

complainant gave the signal and the trap procedure was completed.

After the offence was registered and the investigation was completed,

the trial court framed the charges. The accused No.1 pleaded that he

was falsely implicated in the case though he had never demanded or

accepted any bribe from the complainant. The defence of the accused

No.2 was that while coincidentally proceeding with the accused No.1 on

his motorbike for being dropped at the bus stand, the bike was halted

near a shop and when the accused No.1 had been to the shop, the

complainant approached him and handed over the amount to be paid to

the accused No.1. According to the accused No.2, he was not aware

2605CRI.APL 563.08-Judgment 4/11

about the transaction between the accused No.1 and the complainant

and he had accepted the amount unknowingly. In support of the case,

the prosecution examined three witnesses, Mr. Manohar Chincholkar,

the complainant-P.W.No.1, Shri Shankar Pendam, P.W.No.2-decoy

witness and P.W.No.3 Purushottam Chaudhary, the raiding party

member. Besides the oral evidence, the prosecution also relied on some

documentary evidence, i.e. chemical analyser's report, sanction order,

etc. and the correspondence with the office of Superintendent of Police.

On an appreciation of the evidence on record, the trial court held that

the prosecution had failed to establish its case by producing,

convincing and reliable evidence. After holding that the benefit of

doubt should go to the accused, 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. Being aggrieved by the judgment of the trial court, the

State Government has filed this appeal.

3. Shri Ekre, the learned Additional Public Prosecutor

appearing for the State Government, submitted that the evidence of the

complainant and the panch witness would clearly prove that the

accused No.1 had demanded and the accused No.2 had accepted a sum

of Rs.500/- for and on behalf of the accused No.1 on 30/07/2003

during the trap. It is submitted that the evidence of the prosecution

2605CRI.APL 563.08-Judgment 5/11

witnesses was convincing and reliable and the same could not have

been easily brushed aside. It is submitted that the accused No.1 had

tried to flee from the spot and this clearly showed that the accused

No.1 was involved in the crime or else he would not have tried

to run away from the spot. It is submitted that some minor

discrepancies in the evidence of the witnesses were considered by the

trial court to hold that the evidence of the witnesses was not reliable

and convincing. It is submitted that the trial court unnecessarily gave

undue weightage to the change in the names of the panch witnesses to

hold that the fact about the arranging of the trap was itself not free

from doubt.

4. 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 Nos.1 and 2 of the offences punishable under

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

Prevention of Corruption Act, 1988?

(II) What order?

2605CRI.APL 563.08-Judgment 6/11

5. On an appreciation of the evidence on record, it appears

that there is no scope for interference with the findings of facts recorded

by the trial court in favour of the accused. It appears that on a proper

appreciation of the material on record, the trial court has held that the

prosecution has failed to prove that the accused No.1 had demanded

and accepted a sum of Rs.500/- from the complainant as gratification

other than legal remuneration, as motive or reward for showing favour

in respect of his official function. There is no dispute that a challan was

issued in the name of the complainant on 29/07/2003 and the

complainant was required to pay the fine. On the basis of the evidence,

it was brought on record that the certified copy of the challan exhibit-

34/A and exhibit-34/B showed that a case was filed in the court of

Judicial Magistrate First Class, Rajura and the complainant remained

absent in the court on 30/07/2003. According to the prosecution case,

the accused No.1 had demanded the amount and at the time of the trap

on 30/07/2003, the accused No.1 had asked the complainant to pay the

said amount to the accused No.2. It was however found that there was

discrepancy in the evidence of the witnesses examined on behalf of the

prosecution in regard to the material particulars. Though the

complainant had deposed that his complaint was recorded by the Anti

Corruption Bureau, Chandrapur on 29/07/2003, the investigating

officer testified that the complainant had been to him for filing the

2605CRI.APL 563.08-Judgment 7/11

complaint only on 30/07/2003 and thereafter it was reduced into

writing. The trial court found that it was testified by P.W.No.3 in his

examination-in-chief that Mr.Pendam, the decoy witness and his

colleague Mr. Pathak were deputed on 30/07/2003 to the office of Anti

Corruption Bureau to act as panch witnesses. P.W.No.3 stated in his

examination-in-chief that since Mr. Pendam and Mr. Pathak were

already summoned by the Public Works Department in connection with

another trap, the services of these two employees were utilized in the

present case. It appeared from exhibit-D/1 that on 28/07/2003 the

Public Works Department had deputed Mr. Pathak and Mr. Chahare to

the office of Anti Corruption Bureau, Chandrapur. The document

further showed that initially the name of one Mr. Khode, a junior clerk

was mentioned as a witness, but his name was struck off and in his

place Mr.Pathak was deputed. The endorsement however did not show

that Mr. Pendam was deputed at any time in place of Mr. Chahare.

Though the court put a query in this regard to the P.W.No.3, the

witness was not able to explain about employing Mr. Pendam and

Mr. Pathak as panch witnesses. The trial court therefore rightly held

that the fact about the arranging of the trap was itself not free from

doubt.

6. Though P.W.No.3 had testified that the complainant was

2605CRI.APL 563.08-Judgment 8/11

travelling to the bus stand on 30/07/2003 in an auto trolly and the

curtains of the auto trolly were put down, the complainant and the

decoy witness stated in their evidence that when they were proceeding

from the bus stop chowk in the trolly, the accused No.1 called the

complainant and halted the motorbike which he was riding and the

trolly in which the complainant was seated. The court found that there

was material discrepancy in the evidence of the three witnesses

examined on behalf of the prosecution to prove the trap. The court

found that the complainant had testified that in the way he had noticed

accused No.1 sitting on his motorbike near the steel-shop and thereafter

the complainant and the decoy witness got down from their vehicle and

went to the accused No.1 when the accused No.1 instructed him to

handover the amount to the accused No.2, who was the pillion rider.

About the same incident, the court noticed that the decoy witness had

deposed that when they were proceeding from the bus stop chowk, the

complainant gave a call to the accused, who were proceeding on a

motorbike and the motorbike was stopped by the accused No.1. The

decoy witness further deposed that the complainant then alighted from

the vehicle and proceeded towards the accused No.1 and he (decoy

witness) was at a distance of 10 ft. to 15 ft. away from the complainant

when the complainant handed over the amount to the pillion rider. The

depositions of the complainant and the decoy witness suffer from

2605CRI.APL 563.08-Judgment 9/11

serious discrepancy in regard to material particulars. About the same

incident, the testimony of P.W.No.3 Mr. Chaudhary did not in any way

match with the testimony of either the complainant or the panch

witness. P.W.No.3 deposed that both the accused were proceeding on

the motorbike when the accused No.1 halted the auto trolly of the

complainant, called the complainant near him and within five minutes,

the complainant gave the signal. The trial court rightly held that the

testimony of the three witnesses did not match with each other, at all.

The trial court held that the claim of P.W.No.3 that the accused No.1

halted the trolly appeared to be exaggerated because P.W.No.3 had

testified that when the complainant and the decoy witness sat in the

auto trolly, the curtains were put down. If that was so, there was no

possibility that the accused No.1 would see the complainant in the auto

trolly and stop the auto trolly. The trial court rightly held that it was

probable that the complainant must have noticed the accused No.1 near

or inside the shop and the accused No.2 outside the shop near the

motorbike when the amount was given by the complainant to the

accused No.2. The accused No.2 had claimed that he was unaware

about any transaction. The case of the prosecution that the accused

No.1 tried to flee from his spot did not inspire confidence, more so

when there was no explanation why none of the raiding party members

went in search of the accused No.1. The court held and rightly so that

2605CRI.APL 563.08-Judgment 10/11

there was reason to believe that the complainant wanted to implicate

the accused No.1 because he had filed a case against the complainant in

the court. When the complainant was confronted in his cross-

examination about his attendance in the court on 30/07/2003 the

complainant had stated that he had appeared in the court of Judicial

Magistrate First Class, Rajura on the said date. The certified copy of the

case was produced on record by the defence at exhibit-34/A which

clearly showed that the complainant was not present in the court on the

said date and his absence was marked. After noticing the aforesaid

false statement made by the complainant, the trial court held that the

complainant was not a witness worthy of credit and his testimony could

not have been relied upon without corroboration. Since each of the

prosecution witnesses had different story to tell about the incident, in

respect of material particulars and since the challan was already issued

against the complainant and the case was fixed in the court of the

Judicial Magistrate First Class, Rajura on 30/07/2003, the court held

that there was no reason for the accused No.1 to demand and the

complainant to pay any amount to the accused for not issuing the

challan or cancelling it. The court held on a proper appreciation of the

material on record that the prosecution had failed to prove the demand

and acceptance of illegal gratification by the accused beyond reasonable

doubt and the accused were therefore liable to be acquitted of the

2605CRI.APL 563.08-Judgment 11/11

offences punishable under sections 7 and 13(1)(d) read with section

13(2) of the Act. The view expressed by the trial court is a possible

view which does not call for any interference in an appeal against

acquittal. It is well settled that the findings of facts recorded by the trial

court cannot be interfered with by the appellate court in an appeal

against acquittal merely because another view is possible. There is no

perversity in the findings recorded by the trial court and the findings of

the trial court cannot be said to be based on a wrongful consideration of

any provision of law.

In the result, the criminal appeal fails and is dismissed

with no order as to costs.

JUDGE KHUNTE