Sunil Khushalarao Walke vs State Of Mah. Thru. A.C.B. Nagpur
2017 Latest Caselaw 8923 Bom

 apeal196.08.J.odt                         1




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


                     CRIMINAL APPEAL NO.196 OF 2008

          Sunil son of Khushalarao Walke,
          Aged about 39 years,
          Occupation: Service, Police Constable,
          Resident of Krushi Nagar,
          Old Jaripatka, Nagpur,
          Tahsil and District Nagpur.          ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through Anti Corruption Bureau,
          Nagpur, Police Station officer,
          Police Station Panchpaoli,
          Nagpur.                                            ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Amol Mardikar, Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:             22  nd  NOVEMBER, 2017.


 ORAL JUDGMENT



 1]               Exception is taken to the judgment and order dated

05.04.2008 passed by the Additional Sessions Judge-2, Nagpur in

Special Criminal Case 06/2006, by and under which, the appellant

(hereinafter referred to as "the accused") is convicted for offence

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

of the Prevention of Corruption Act, 1988 and is sentenced to

suffer rigorous imprisonment for one year and to payment of fine

of Rs.500/-.

2] Heard Shri Amol Mardikar, the learned counsel for

the appellant and Shri A.V. Palshikar, the learned Additional

Public Prosecutor for the respondent/State.

3] Shri Amol Mardikar, the learned counsel for the

accused submits that the prosecution has failed to establish the

very sine quo non for constituting the offence punishable under

the provisions of the Prevention of Corruption Act ("Act" for short)

in as much as it is not proved, much less beyond reasonable doubt

that the accused demanded illegal gratification. The submission is,

that even de hors the defence of the accused that the tainted

currency notes which were recovered were thrust in his pocket,

which defence is probablized on the touchstone of preponderance

of probabilities, even if arguendo the recovery of tainted currency

notes is accepted, the case of the prosecution is not taken any

further. Shri Amol Mardikar would rely on the enunciation of the

law of the Apex Court in (i) Mukhtiar Singh (Since Deceased)

through his L.R. vs. State of Punjab, 2017(7) Scale 702

(ii) P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4

SCC 39 (iii) B. Jayaraj vs. State of A.P. 2014 All SCR 1619,

(iv) A. Subair vs. State of Kerala (2009) SCC Vol.6 587 and

(v) N. Sunkanna vs. State of Andhra Pradesh 2015 ALL MR (Cri)

4551 (S.C.).

4] The learned counsel for the accused would further

submit that after the introduction of section 165-A on the statute

book (IPC) the bribe giver is equally guilty. The evidence of the

bribe giver is no better than that of an accomplice and must be

tested with caution, is the submission. Reliance is placed, amongst

others, on the judgment of the Apex Court in Pannalal Damodar

Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121.

The further submission is that both the complainant and the

panch witnesses are interested witnesses who are vitally interested

in ensuring that the trap succeeds. The evidence of the

complainant and the shadow panch must be subjected to close

scrutiny, and should there be any doubt, the benefit thereof must

necessarily go to the accused, is the submission.

5] The learned counsel submits that the initial demand,

which according to the complainant was made on 16.09.2005 is

not proved. Au contraire, the evidence of the Investigating Officer

P.W.4 would reveal that the accused was not present in Police

Station Panchpaoli on the day, and at any rate at the time, on

which/at which, the demand is allegedly made. My attention is

invited to the following portion in the cross-examination of the

Investigating Officer P.W.4:

19. Accused is a police constable. Police constable has no power to register the offence. On 5/10/05 I recorded statement of witness Shri Dattatrya Vishnu Thhakur PSI at ACB office. On 16/09/05 as per entry No. 24 Dattatrya Thakur took over the charge of Shri Suryawanshi as Day officer, at 11.45 hours, as Suryawanshi was intended to attend High Court. I found in investigation that till 1.45 hours of 16/09/05 no any complainant had been to police station. So also I found that till 14.15 hours Shri Dattatrya Thakur was present in police station. At 2.15 p.m. one Sushila Bhandari had been to P.S. to lodge her report of theft of her truck.

During investigation I found that Dattatrya Thakur

along with present accused were to be proceeded for investigation of the theft of said truck. At that time complainant in present matter came to police station. On verification of the motorcycle of complainant Dattatrya Thakur found the broken Head-light of the motorcycle. Complainant was asked to wait in police station as they were intended to go to inquire the report of Sushila Bhandari. Accordingly Shri Thakur alongwith present accused returned back at 16.10 hours to police station. I also found that at 16.10 hours complainant was not present in police station. From departure from police station till their arrival at police station no any order was given to accused by Shri Dattatrya Thakur. At 16.45 hours PSI Suryawanshi returned back and took his charge from Shri Thakur.

6] The learned counsel for the accused would further

submit that the evidence of P.W.1 complainant and P.W.2 shadow

panch is at variance, and the variance touches not peripheral

aspects but the core. The evidence of both P.W.1 and P.W.2 must

be discarded on this short ground, is the submission. Per contra,

the learned A.P.P. Shri A.V. Palshikar would support the judgment

and order impugned. The learned Special Judge did not commit

any error in recording a finding that both demand and acceptance

of illegal gratification stand proved, is the submission.

The learned A.P.P. Shri Palshikar would further submit that since

both the demand and the acceptance of the amount is proved, the

statutory presumption under section 20 of the Act is activated and

the consequential burden on the accused to rebut the statutory

presumption is not discharged.

7] I have given my anxious consideration to the evidence

on record and having done so, I am inclined to accept the

submission of the learned counsel for the accused that the

demand, which is the prerequisite and the essential ingredient to

constitute an offence under the provisions of the Act, is not

established by the prosecution beyond reasonable doubt. In so far

as the essential demand is concerned, the version of the

complainant that the demand for Rs.500/- for registering the First

Information Report of the accident, was made by the accused in

the Panchpaoli Police Station on 16.09.2005, is rendered

extremely suspect and doubtful in view of the evidence of the

Investigating Officer referred to supra. It is a settled position of

law, that if the initial demand is either not proved or disproved,

the version of the complainant qua the demand of acceptance of

the illegal gratification at the time of trap, will have to be

subjected to close, careful and cautious scrutiny. Shri Amol

Mardikar invites my attention to the judgment of the learned

Single Judge of this Court in Avinash Sitaram Garware Vs. State of

Maharashtra reported in 2008 ALL MR (Cri) 15 and in particular

to the following observations in paragraph 22:

22. Once the prior demand is not proved, the rest of the prosecution case regarding money allegedly demanded by the accused on 3/7/1991 is concerned, it will have to be read with great caution and circumspection. Evidence of PW-1 Prakash Patil indicates that he was instructed to accompany PI Khaire and PW-2 Waghchoure to the house of the accused. He has said that PI Khaire and PW-2 Waghchoure went inside the house of the accused and he introduced PI Khaire and PW-2 Waghchoure to the accused as intending purchasers of his land. The accused demanded money. He has stated that PI Khaire sat on his side in the house of the accused. According to him when he asked for 7/12 extracts, the accused demanded money for it. Thus demand for money was made by the accused in front of PI Khaire.

8] In so far as the demand allegedly made by the

accused on the date of the trap, i.e. on 17.09.2005, the versions of

the complainant P.W.1 and P.W.2 shadow panch are difficult to be

reconciled. The complainant has deposed that on 17.09.2005, he

along with the shadow panch went to the Panchpaoli Police

Station, the accused met the complainant and the shadow panch

at the Police Station, the complainant requested the accused to do

his work and the response of the accused was to inquire from the

complainant as to whether his (accused) work was done.

The complainant replied in the affirmative "paise anale".

The complainant then deposes that the accused inquired about the

shadow panch Bagade, who in the complainant introduced as

brother. The shadow panch was asked by the accused to wait

outside, accordingly the shadow panch went outside and the

complainant and the accused went to the spot on the vehicle of

the complainant. Some documents were prepared and then both

the complainant and the accused returned to the Police Station.

The accused called the complainant near the Police van which was

parked near the gate of the Panchpaoli Police Station and the

shadow panch was at a distance of 12 feet from the complainant

and the accused. The complainant states that the accused

demanded the bribe amount which was paid and the

predetermined signal given. If the evidence of the shadow panch

is considered in juxtaposition to that of the complainant's, it is

revealed that the shadow panch is absolutely silent on he

accompanying the complainant to the Police Station, the

conversation which allegedly took place between the complainant

and the accused in the Police Station, the fact that the accused

inquired about the identity of the shadow panch and then upon

being told by the complainant that he was his brother, the accused

having asked the shadow panch to go out of the Police Station.

The version of the complainant that he and the shadow panch

both met the accused at the Police Station, an amount was

demanded even in the Police Station, is totally missing in the

evidence of the shadow panch. Indeed, the story of the shadow

panch begins from that point when the complainant and the

accused leave the Police Station on the vehicle of the complainant

to visit the spot. The shadow panch has not uttered a single word

about the prior interaction with the accused.

The version of the complainant and the version of the

shadow panch on the demand is again discrepant and

inconsistent. The complainant has deposed thus:

Thereafter I was called by Walke near police van, which was standing near the gate of Panchpaoli police station. So, I went to him. Panch No. 1 Bagade was standing about 12 fee from us. Walke has demanded bribe amount.

On the contrary, the version of the shadow panch is

thus:

Near the gate of P.S. there was police Jeep. Complainant along with Shri Walke stood near the stairing of the said Jeep. I was also standing near them. Accused Walke inquired with the complainant about his work. Complainant replied in affirmative. Complainant asked "deu ka". Give me - said accused.

9] Having analyzed the evidence on record minutely,

and having recorded a finding that the initial demand is not

proved, I would find it extremely hazardous to hold that the

demand on the date of the trap is proved beyond reasonable

doubt. In view of the failure of the prosecution to prove the earlier

demand, the evidence of what transpired later on must be tested

on the anvil of caution, and having done so, the inter se

discrepancies and inconsistencies in the evidence of the

complainant P.W.1 and the shadow panch P.W.2 do not permit

me to let the conviction rest on such evidence.

10] The judgment and order impugned is set aside.

The accused is acquitted of offence punishable under section 7, 13

(1)(d) read with section 13(2) of the Prevention of Corruption

Act, 1988.

11] The bail bond of the accused shall stand discharged.

12] Fine paid by the accused, if any, be refunded.

  13]              The appeal is allowed.



                                                  JUDGE



NSN