State Of Maharashtra, Through ... vs Anant Pitambar Choudhari And ...
2017 Latest Caselaw 8751 Bom

                                      1                                       apeal266.14




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.266 OF 2014


 State of Maharashtra, 
 through Police Station Officer, 
 Buldhana.                                                    ....       APPELLANT

           
                     VERSUS


 1) Anant Pitambar Choudhari,
     Aged about 40 years, 
     Occupation - Service, 
     Police Head Constable, B.No.475,
     Police Station Chikhali, Tq. Chikhali,
     District Buldhana. 

 2) Sagar Ramesh Sonalkar,
     Aged about 34 years, 
     Occupation - Legal Practitioner, 
     R/o Rautwadi, Chikhali, Tq. 
     Chikhali, District Buldhana.                             ....       RESPONDENTS

 ______________________________________________________________

            Shri P.S. Tembhare, Addl.P.P. for the appellant, 
             Shri R.P. Joshi, Advocate for respondent No.1,
                       None for respondent No.2.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 16 NOVEMBER, 2017.

th

ORAL JUDGMENT :

The State is in appeal being aggrieved by the judgment

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and order dated 14-8-2013 in Special A.C.B. Case 2/2009 passed by

learned Special Judge, Buldhana, by and under which the respondents

(hereinafter referred to as the "accused") are acquitted of offences

punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) of

the Prevention of Corruption Act, 1988 (hereinafter referred to as the

"Act").

2. Heard Shri P.S. Tembhare, learned Additional Public

Prosecutor for the appellant and Shri R.P. Joshi, learned Advocate for

respondent 1.

3. The case of the prosecution, as is unfolded during the trial,

is thus :

Complainant Baban Bhimrao Chavan, an auto-rickshaw driver by

occupation, is a resident of Bhalgaon, Tahsil - Chikhali, District-

Buldhana. The complainant, his parents and brother Prakash faced

prosecution under Section 498-A of the Indian Penal Code initiated on

the complaint of the wife of the complainant. The complainant and his

parents were arrested and released on bail. Prakash, a student of

engineering, applied for anticipatory bail. The date of hearing was

15-1-2008. Accused 1 Anant Choudhary was investigating the crime.

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The say of accused 1 was called in the anticipatory bail proceedings.

Accused 1 met complainant Baban on 14-1-2008 and offered to submit

a favourable say in order to ensure that Prakash is granted anticipatory

bail and assured that he will further not institute proceedings under

Section 107 of the Criminal Procedure Code against Prakash. In

consideration, accused 1 demanded Rs.2,000/-, the complainant

expressed inability to pay the said amount, negotiations ensued and the

bribe amount was scaled down to Rs.1,000/-. The complainant Baban

who was not willing to pay the bribe amount, approached the office of

the Anti Corruption Bureau (ACB) on 15-1-2008 and lodged complaint

Exhibit 20.

The investigating officer Suresh Ingle summoned panch

witnesses, the standard protocol was explained to the panch witnesses

and the complainant, usual demonstrations were given and on

17-1-2008 the complainant Baban and the shadow panch went to the

police station. Accused 1 was present at the police station alongwith

accused 2, a practicing advocate. Accused 2 enquired with the

complainant as to whether he had brought the money, the complainant

answered in the affirmative. Accused 1 suggested to Baban to pay the

amount, Baban was intending to pay the amount to accused 1,

however, the amount was accepted by accused 2 who kept the same in

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his pocket and handed over different currency notes to accused 1.

Accused 1 left the police station. The complainant gave the

predetermined signal, the raiding squad rushed and apprehended

accused 2. Investigations ensued, first information report Exhibit 69

was registered and both the accused were charge-sheeted.

4. The charge under Sections 7, 13 of the Act against accused

1 and charge under Section 12 of the Act against accused 2 vide Exhibit

13 were framed by the learned Special Judge. Both the accused

abjured guilt and claimed to be tried and the defence is of total denial.

5. The prosecution examined the complainant Baban Chavan

as P.W.1, the shadow panch Vijay Hiwale as P.W.2, the investigating

officer Suresh Ingle as P.W.3 and the sanctioning authority Himmatrao

Deshbhratar as P.W.4.

6. The recovery of the tainted currency notes from accused 2

advocate Sonalkar is not disputed. The defence, as is discernible from

the cross-examination, is that accused 2 did not have knowledge as

regards the trap. Accused 2 advocate Sonalkar was engaged by the

complainant to represent the complainant and his family members.

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The amount was accepted by accused 2 advocate Sonalkar assuming

that he was paid the professional fees.

7. The learned Special Judge has noted that P.W.1

complainant admits that he, his parents and brother are prosecuted

under Section 107 of the Criminal Procedure Code. The inference

drawn by the learned Special Judge is that accused 1 did not extend

any favour to the complainant.

8. P.W.1 complainant admits that he had filed a complaint

before the Inspector General of Police Exhibit 23, the contents of the

said complaint Exhibit 23 are appreciated by the learned Special Judge

thus :

"24. P.W.1 Baban admitted that he had filed a complaint application before the Director of General Inspector of Police. The copy of which is marked Exhibit 23. I have carefully perused it, wherein it has been contended that, "on 3-1-2008, his wife filed case under section 498-A of the Indian Penal Code against him, at that time, he had paid illegal gratification/bribe amount of Rs.5,000/- to Thanedar namely Borse: He himself and his parents were released on bail: On 4-1-2008, his brother applied for anticipatory bail: He handed over notice of bail application on 15-1-2008: At that time, accused No.1 Anant Choudhari was on duty: He suggested to bring his brother on 17-1-2008 at morning 9-00 a.m.: He himself and his brother went at Police Station on 17-1-2008 alongwith anticipatory bail order: Accused

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No.1 arrested his brother Prakash on instructions of Thanedar, Borse: At that time, accused No.1 demanded Rs.2,000/- to release his brother: He had shown his inability to pay the amount: At that time, Thanedar, Borse used force against him and drove him out of Police Station: Thus, injustice is caused to him: Therefore, he approached A.C.B. Office, wherein Dy.S.P., Mr. Himmatrao Jadhao accepted his complaint and arranged for trap at 2 p.m.: At that time, A.C.B. Officer arrested Advocate Sonalkar, Accused No.1 Choudhari ran away: A.C.B. Officer did not take any action against Thanedar Borse therefore, he filed his complaint application. The copy of complaint tendered before witness while cross-examination. It is admitted by him. It is marked at Exhibit 23. The facts contended in complaint application Exhibit 23, make it clear that Thanedar, Borse demanded amount to P.W.1 Baban on 17-1-2008. Then after, he approached A.C.B. Office and filed complaint. The facts contended in complaint Exhibit 23, indicate that on 15-1-2008, P.W.1 Baban did not approach A.C.B. Office and not filed complaint on that day."

9. The learned Special Judge has recorded a finding that the

prosecution has not proved that accused 1 demanded illegal

gratification as on the day of the trap. This finding is unexceptionable.

It is admitted by P.W.1 complainant that it was accused 2 advocate

Sonalkar who enquired as to how much amount had the complainant

brought. The learned Special Judge has recorded a finding that at the

relevant time accused 1 was not present in the police station. The

discussion in the judgment impugned is in paragraphs 28, 29 and 30

which, read thus :

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"28. I have carefully perused the evidence of P.W.2 Vijay Hiwale. He deposed that, 'Advocate Sonalkar inquired with complainant how much amount he had brought. Thereupon complainant replied that he had brought Rs.1,000/- to pay to the accused No.1. Accused No.1 suggested to pay amount immediately. Complainant Baban was intending to pay amount. At that time, accused No.2 accepted that amount. Now material question arises before me as to whether accused No.1 was present at police station at the relevant time.

29. I have carefully perused the extract of Station Diary Exhibit 63 and duty chart dated 16-1-2008 Exhibit 64 and duty chart of dated 17-1-2008 Exhibit 65. It is proved that accused No.1 was in-charge of Police Station diary on 17-1-2008 since 8 a.m. till 2 p.m. It is proved that at 2 p.m., P.S.I., Mr. Karochi accepted the charge of Station Diary and relieved accused No.1. This fact makes it clear accused No.1 left charge of Station diary at 2 p.m. According to the accused, he had left the Police Station immediately and such a fact rightly corroborated with documentary evidence on record.

30. It is proved that accused No.1 is not arrested by Investigating Officer immediately after the per-determined signal. It is proved that accused No.1 was not present within the campus of Police Station at the relevant time. It has come in the evidence of P.W.3 Suresh Ingle that he entered Police Station at 2.35 p.m. after receiving signal. It has come in the evidence that the Investigating Officer and other police officers had taken search of accused No.1, but they did not find out him. All these facts and circumstances go to indicate that the defence made out by accused No.1 is probable one."

10. The finding of the learned Special Judge is that accused 2

advocate did not demand illegal gratification and that the defence that

8 apeal266.14

the amount demanded was towards payment of professional fees is

probablised by accused 2 advocate Sonalkar. This finding is also

consistent with the evidence on record. It is admitted by Vijay Hiwale,

the shadow panch that P.W.1 complainant was insisting that accused 2

returned the tainted notes. The shadow panch admits that the

complainant made efforts for ten minutes to persuade accused 2 to

return the tainted notes and only thereafter gave the predetermined

signal. The relevant discussion is found in paragraphs 33 and 34 of the

judgment impugned, which read thus :

"33. Afore said admitted facts make it clear that complainant paid tainted notes to the accused No.2. Complainant was requesting the accused No.2 for return of that notes. If accused No.1 had taken help of accused No.2 to accept the amount of bribe and if the complainant was having knowledge about it, then there was no question for asking for returning of notes. But, it happened in the present case that complainant paid tainted notes to the accused No.2 and he was requesting the accused No.2 persistently to return the notes. The conduct of complainant in the present case does not appear to be reliable and trustworthy. On the contrary, the afore said admissions make it clear that the accused No.2, Advocate Sonalkar was not having knowledge about the action taken by complainant and A.C.B. Officers against the accused No.1. All above facts make it clear that complainant and A.C.B. Officers have arranged for trap to nab the accused No.1 while accepting amount of bribe, but the said trap remained unsuccessful. The accused No.1 was not found at Police Station.

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34. It is an admitted fact that P.W.1 Baban engaged Advocate Sonalkar to represent him, his parents and brother Prakash. It has come in the evidence that on 17-1-2008, accused No.1 being the Investigating Officer, has filed Chapter Case against Baban, his parents and brother Prakash. Definitely, Baban, his parents and brother Prakash have been produced before the Tahsildar in a chapter case. It is just natural that Baban would have called accused No.2 Advocate Sonalkar to represent him for his family members. The facts and circumstances prove that Baban had engaged Advocate Sonalkar to represent himself and his family members in a case filed against them. Definitely, Baban is bound to pay an advocate fees."

11. I do not find any infirmity in the judgment and order

impugned, on facts or in law. The judgment of acquittal is certainly

not perverse. There is no compelling reason for this Court to interfere

with the judgment of acquittal which has taken a possible view. The

appeal is sans merit and is rejected. The bail bonds of the accused shall

stand discharged.

JUDGE adgokar