State Of Mah.Thr.Anti Corruption ... vs Baliram Govindraoji Kaware 7 Anr
2017 Latest Caselaw 7811 Bom

                                      1                      Apeal673-03.odt        



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



                    Criminal Appeal No.673 of 2003


                                              ...



State of Maharashtra through
Dy. Superintendent of Police,
Anti Corruption of Bureau,
Wardha.                                           ..             APPELLANT



                               .. Versus ..


1. Baliram s/o Govindraoji Kaware,
   Aged 53 years,
   Occ: Suspension, R/o Arvi,
   Distt. Wardha.

2. Shriram s/o Vitthalrao Landge,
   Aged about 36 years,
   Occ: Labour,R/o Janta Nagar,
   Tq. Arvi, Distt. Wardha.                       ..          RESPONDENT



Shri Shyam Bissa, APP for Appellant-State
Shri R.B. Gaikwad, Advocate for Respondent.
                   ....


              CORAM : Kum. Indira Jain, J.

DATED : October 05, 2017.

                                      2                     Apeal673-03.odt        


ORAL JUDGMENT

1. This appeal takes an exception to the judgment and

order dated 03.04.2003 passed by the learned Additional

Sessions Judge, Wardha in Special Case No.1/1993 thereby

acquitting accused no.1 of the offences punishable under

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

Corruption Act, 1988.

2. Prosecution case, in brief, is as under:

(a) Accused No.1 Baliram was working as Avval

Karkun in Sub Divisional Office Arvi, district Wardha.

Accused No.2 Shriram was a labour and known to

accused no.1. Complainant Vitthal @ Vithoba s/o

Kanthuji Wankhede was residing at Pimpalkhuta,

tahsil Arvi. He was a milkman. Before four months of

the incident, quarrel took place between complainant

and his neighbours Bhimrao Damne and Meerabai

Kalbande. Matter was reported to Police Station.

Complainant lodged report and neighbourers also

lodged report. Chapter proceedings were initiated

against the complainant. According to complainant,

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he attended the case before SDO on 10 to 12 dates.

Every time he was required to pay Rs.10/- to accused

no.1 who was a dealing clerk to get the next date in

the proceedings. The chapter proceedings came to

be terminated later on.

(b) After about two months, complainant

received a notice under Section 59 of the Bombay

Police Act. His statement was recorded by

Superintendent of Police in May,1992. After about 15

days, he received summons calling upon him to

attend the office of Sub Divisional Officer Arvi.

Accordingly on 06.07.1992 complainant had been to

the office of SDO Arvi. That time accused no.1

Baliram, Avval Karkun, met him and asked whether

he had engaged a lawyer. When complainant told

him that he had not engaged any lawyer, Baliram

advised the complainant not to engage any counsel

and if he would pay him Rs.1,000/-, he would get the

externment proceedings terminated by giving

Rs.500/- to the superior officer. Complainant

expressed his inability to pay Rs.1000/- and asked

the accused to accept Rs.200/-. Baliram refused for

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the same. After negotiations, accused agreed for

Rs.700/- and gave him next date 20.07.1992. That

time Baliram asked the complainant to come with

Rs.500/- on 20.07.1992.

(c) On 20.07.1992, complainant went to the

office of Anti Corruption Bureau and lodged report.

Trap was arranged. It is the case of prosecution that

accused no.1 asked the complainant to give Rs.500/-

on his behalf to accused no.2. The raid was

successful as accused no.2 accepted amount of

Rs.500/- from the complainant. Post trap

panchanama was accordingly drawn. Before trap,

panch witnesses were called in the office of ACB and

demonstration was arranged for them regarding use

of phenolphthalein powder and sodium carbonate

solution for the purpose of trap. Pre-trap

panchanama was accordingly drawn. On completing

investigation, papers were sent to the sanctioning

authority. On receiving sanction order, prosecution

was launched against the accused.

3. Trial Court framed charge and accused pleaded not

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guilty to the offences. Their defence was of total denial and

false implication. According to accused no.1, complainant used

to ask for long adjournments in the externment proceedings.

As per the instructions of the Officer, short adjournments were

given in the matter and complainant was aggrieved by the

same. Accused No.2 submitted that he was a member of band

party and at the relevant time as there was wedding ceremony

of nephew of complainant, he wanted to engage band party

run by accused no.2. Accused no.2 had charged Rs.2,500/- but

complainant wanted to settle at Rs.1800/-. Complainant asked

accused no.2 to accept Rs.1800/- and when he refused,

complainant planted Rs.500/- in the left pocket of Pyjama of

accused no.2. That time accused no.2 took out money planted

by complainant in his pocket and asked the complainant to

settle the matter for Rs.2000/-. Complainant instead of settling

the matter for Rs.2000/- implicated him in a false trap.

4. To substantiate the guilt of accused, prosecution

examined in all six witnesses. Considering the evidence of

prosecution witnesses, sanctioning authority and submissions

made on behalf of the parties, trial Court came to the

conclusion that demand and acceptance of illegal gratification

is not proved and in consequence thereof, accused came to be

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acquitted. Being aggrieved with the order of acquittal, State

has come up in this appeal.

5. With the assistance of the learned Additional Public

Prosecutor, this Court has gone through the evidence of

complainant and panch witness. It can be seen from the

evidence of complainant PW6 Vithoba Wankhede that on

receiving summons, he had been to the office of Dy. S.P. Arvi.

From there, he was sent to the office of SDO. He stated that

accused No.1 Kaware Babu asked him whether he would

engage advocate in the matter which has riped for final

decision. Accused No.1 also told the complainant that advocate

would charge Rs.2000/- and instead of paying Rs.2000/- to an

advocate, if he pays Rs.1000/- to him, he would get the

externment proceedings quashed. It is stated by the

complainant that he expressed inability to pay Rs.1000/- and

told the complainant that he would pay Rs.200/-. Then

accused asked him to pay Rs.700/-. Complainant did not

respond. Thereafter accused no.1 asked the complainant to

come with Rs.500/- on 20.07.1992. As told by accused No.1,

complainant was not willing to pay bribe. He had been to the

office of ACB and lodged report (Exh.70).

7 Apeal673-03.odt

Regarding trap, it is stated by complainant that after

the report was lodged panch witnesses were called and

demonstration was arranged. Deputy Superintendent of Police

Mr. Johari, arranged the trap. Complainant, panch witnesses

and Dy.S.P. Johari went to Arvi in a Police jeep. The vehicle

was parked near the statute of Mahatma Gandhi. Thereafter

complainant and panch Chavan (PW1) went to the office of

SDO on foot. Accused No.1 Kaware was sitting in the office and

accused No.2 Landge was also sitting in front of accused no.1

Kaware. It is stated by complainant that Kaware Babu asked

him whether he had brought money. He replied that he had

brought money. When complainant asked about his matter,

accused No.1 told him that he would terminate the

proceedings. At the same time accused no.1 also asked the

complainant to go outside the office with Landge and hand

over Rs.500/- to him. Accordingly complainant came out of the

office with Landge and went to a nearby canteen. After some

conversation they came in Verandah. As asked by accused

No.1, he handed over Rs.500/- to Landge. Complainant gave

signal to the raiding party. The members of raiding party

rushed to the spot and caught Landge red-handed. An amount

of Rs.500/- was recovered from the pocket of Pyjama of

accused No.2 Landge. After following the procedure, post trap

8 Apeal673-03.odt

panchanama came to be recorded. The same is at Exh.46.

6. From the facts elicited in cross-examination of

complainant, it can be seen that his past antecedents are not

clear and many criminal cases have been registered against

him. True, past antecedents of complainant alone would not be

enough to discard his testimony but his evidence is to be

appreciated with care and caution. In such a case it would be

essential to search for independent corroboration to the

testimony of complainant.

7. PW1 Kashinath Chavan is the star witness who acted

as a panch at the time of raid. It is stated by PW1 Kashinath

Chavan that on 20.07.1992 at about 11.30 a.m. he along with

panch no.2 Pundlik Somnath had been to the office of Anti

Corruption Bureau. They were apprised of the complaint

lodged by Vitthal Wankhede. They agreed to act as panch

witnesses. His evidence further shows that they were apprised

of use of phenolphthalein powder and solution of sodium

carbonate at the time of trap. The demonstration was given

and accordingly its panchanama was drawn.

8. It is stated by this witness that at about 3.15 p.m. on

9 Apeal673-03.odt

the same day they reached Arvi by a jeep. The vehicle was

stopped at Gandhi Chowk. Thereafter along with complainant

he walked down to Sub Divisional office. He stated that

accused Baliram who was present in the office told the

complainant that he was waiting for him and as he is late and

Sub Divisional officer is not present, his case cannot be

dismissed. That time accused Shriram was sitting near

accused No.1. It is stated by Kashinath that Baliram made

inquiry from complainant whether he had brought Rs.500/-

and if he had brought, he should hand over the same to

Landge. He stated that Landge took them towards tea

canteen. They had tea and that time Landge demanded

Rs.500/-. Complainant told Landge that he was intending to

have a talk with Kaware and he should wait for some time. On

that Landge told them that Kaware Babu would get annoyed

and they should hand over money to him. Thereafter

complainant took out money from his pocket and gave the

same to accused Landge who counted the currency notes and

kept in the pocket of Pyjama. Soon thereafter, complainant

gave signal and immediately members of raiding party rushed

to the spot. Kashinath then states that after completing the

formalities and recovery of amount from the pocket of accused

No.2, post trap panchanama came to be drawn. It also appears

10 Apeal673-03.odt

from his evidence that after Dy.S.P. reached the spot, he

inquired about accused No.1. It was found that accused no.1

was not present in the office. In cross-examination he admits

that some panchanamas were prepared in the chamber of

SDO, some in Tahsil Office and some after coming to ACB

office. He clarifies that panchanamas relating to seizure of

bottle, clothes, register and case of externment were prepared

in the office of SDO and remaining were prepared in Tahsil

Office.

9. After meticulous evaluation of the evidence of

complainant and panch Kashinath, it can be seen that genesis

of the story of prosecution case given by these two witnesses is

inconsistent. So far as demand is concerned, it is apparent

from the record that no verification panchanama of demand

was recorded. Though panch witness states about the

conversation between accused No.1 and complainant, PW6

complainant did not say anything regarding conversation

between him and accused No.1, particularly regarding late

arrival, absence of SDO and inability to terminate the

proceeding. In the absence of verification of demand, evidence

of complainant regarding the incident which allegedly took

place on 06.07.1992 cannot be said to be proved. So far as

11 Apeal673-03.odt

trap is concerned, post trap panchanama (Exh.46) would

indicate that complainant and panch Chavan had been to the

office of SDO, after some time they came out of the office,

went towards canteen, after some time came in Verandah and

complainant gave a signal as per the instructions. It is the

case of prosecution that accused No.2 accepted the tainted

notes on behalf of accused No.1. So far as evidence of

complainant and panch witness is concerned, as it is not

consistent it would be unsafe to rely upon the same. In fact

accused No.2 Landge was the best person to state that he

accepted the amount on behalf of and as per the instructions of

accused No.1. It appears that during investigation statement

of co-accused was not recorded. Thus in the absence of

positive and clinching evidence to indicate that tainted notes

were accepted on behalf of and for accused No.1, conviction

cannot be based on the inconsistent testimonies of PW1

Kashinath and PW6 Vitthal.

10. There is one more factor which comes in the way of

prosecution and that is absence of evidence of investigating

officer. It has come on record that Dy.S.P. Johari who played a

key role in arranging the trap and who investigated the crime

was no more and could not be examined. Though prosecution

12 Apeal673-03.odt

examined PW2 Head Constable Punjab Daigawahane to prove

FIR, it is evident from copy of complaint that it was lodged by

Dy.S.P. Johari on 20.07.1992. The contents of FIR could not be

proved as Dy.S.P. Johari was not available for evidence. The

absence of legal proof of FIR would also affect the substratum

of prosecution case.

11. In the above premise and considering the evidence

adduced by the prosecution, this Court does not find any

perversity in the judgment and order of the trial court. On the

contrary, view taken by the trial Court is a reasonable and

possible view. Hence there is no scope for interference in the

appeal.

12. Criminal Appeal No. 673 of 2003 stands dismissed. No

costs.

(Kum. Indira Jain, J. ) ...

halwai/p.s.