Bombay High Court
Syed Murtaza Syed Murad Ali vs State Of Mah on 14 September, 2017
Bench: Sangitrao S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 127 OF 2008
Syed Murtuza Syed Murad Ali,
Age : 61 years, occu. Pensioner,
R/o Vidya nagar (E),
Behind Sahyadri hotel, Beed, APPELLANT
Taluka and District Beed (ORIG. ACCUSED)
VERSUS
The State of Maharashtra RESPONDENT
(Prosecution)
----
Mr. Joydeep Chatterji, Advocate for the appellant
Mr. G.O. Wattamwar, A.P.P. for the respondent/State
----
CORAM : SANGITRAO S. PATIL, J.
JUDGMENT RESERVED ON : 1st SEPTEMBER, 2017
JUDGMENT PRONOUNCED ON : 14th SEPTEMBER, 2017
JUDGMENT :
Heard the learned counsel for the appellant
and the learned A.P.P., representing the State/
Prosecution.
2. The appellant has challenged the legality and
correctness of the judgment dated 27 th March, 2008,
delivered in Special Case No. 56 of 2004 by the
2 criapl127-2008
learned Special Judge, Beed, whereby he has been
convicted for the offences punishable under Sections 7
and 13 (2) read with Section 13 (1)(d) of the Prevention
of Corruption Act, 1988 ("Act", for short).
3. The appellant was serving as an Awal Karkun in
Village Panchayat Election Division of the Collectorate,
Beed in the year 2004. The complainant namely
Parmeshwar Rangnath Gite, resident of Pangri, Taluka
Parali, District Beed was a member of Village Panchayat,
Pangri. One Meera Bhagat Pachange was the Sarpanch.
The complainant filed a petition before the Additional
Collector, Beed on 14th July, 2004, seeking
disqualification of the said Meera Pachange on the
ground that she did not hold monthly meetings and gram
sabha. He went to the Village Panchayat Division of the
Collectorate, Beed on 21st July, 2004 to enquire whether
notice was issued to the respondent - Meera Pachange in
respect of that petition. He met the appellant and
asked him about issuance of notice in respect of that
petition. The appellant told him that notice was not
issued and further informed that for issuing notice, he
would have to spend some amount. The complainant asked
the appellant as to what would be the quantum of that
3 criapl127-2008
expenditure, whereon the appellant told him that he
would require Rs.1000/-. He assured that on receiving
Rs.1000/-, he would issue notices to the Sarpanch and
others. The complainant requested him to reduce that
amount, whereon the appellant asked the complainant to
pay Rs.400/- for issuing notices. The complainant asked
for some time for payment of that amount on the say that
he was not having that much amount with him, whereon the
appellant asked him to pay that amount by 5.00 p.m. on
that day. The complainant was not inclined to pay bribe
to the appellant. Therefore, he went to the office of
Anti-Corruption Bureau (A.C.B.) at Beed and lodged
complaint against the appellant.
4. After receiving the complaint, Deputy
Superintendent of Police (Dy.S.P.) A.C.B. - Deshmukh
decided to lay trap. He called two panchas. The
demonstration in respect of the characteristics and use
of anthracene powder was done before the complainant and
the panchas. Necessary instructions were given to the
complainant and panchas as to how the bribe amount
should be paid to the appellant on being demanded by him
and how the complainant should give signal after payment
of that amount to the appellant. Four currency notes of
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Rs.100/- each were smeared with anthracene powder and
kept in the left side chest pocket of the shirt of the
complainant. The Pre-trap panchanama was prepared.
5. The complainant, both the panchas and the other
members of the raiding party went to the office of the
appellant at about 4.30 p.m. The complainant met the
appellant in that office in the presence of panch No. 1
namely Sheshgir Kulkarni and on being demanded by the
appellant, handed over the tainted currency notes of
Rs.400/- to him. The complainant gave the predetermined
signal. The other members of the raiding party entered
into the office of the appellant. The tainted currency
notes were recovered from the appellant. The tainted
currency notes as well as the right hand and left side
chest pocket of the shirt of the appellant were examined
under the light of ultraviolet lamp. Blue shining was
noticed on the said currency notes, on the right hand
fingertips and inside the left side chest pocket of the
shirt of the appellant. The statement of the appellant
was recorded wherein he denied of having demanded and
received any amount from the complainant. The post-trap
panchanama was prepared.
5 criapl127-2008
6. Dy.S.P. - Deshmukh lodged FIR against the
appellant in City Police Station, Beed on the basis of
which Crime No. 261 of 2004 came to be registered
against the appellant for the above mentioned offences.
The investigation followed. The statements of the
witnesses came to be recorded. After completion of the
investigation, Dy.S.P. Deshmukh obtained sanction for
prosecution of the appellant and then filed chargesheet
against him for the above mentioned offences.
7. The learned Special Judge framed charges
against the appellant for the above mentioned offences
vide Exh-13 and explained the contents thereof to him in
vernacular. The appellant pleaded guilty and claimed to
be tried. His defence is that of total denial. He
denied that he ever demanded any bribe amount from the
complainant and received the same as claimed by the
complainant. He states that on being asked by the
complainant about his petition, he informed the
complainant that the file in respect of that petition
has been submitted by him to the Additional Collector.
Thereafter, the complainant, without uttering any word,
thrusted the tainted currency notes in the left side
chest pocket of his shirt. He took out those currency
6 criapl127-2008
notes by his right hand for being handed over back to
the complainant. At that time, he was caught hold of by
the members of the raiding party.
8. The prosecution examined the complainant at
Exh-20, the panch namely Sheshgir Kulkarni (PW4) at
Exh-40 and Dy.S.P. - Deshmukh (PW5) at Exh-43, who had
arranged for the trap. The prosecution further examined
R.D.C. Kendre (PW2) at Exh-26, under whom the appellant
was working and the then Collector Jantre (PW3) at Exh-
38, who issued sanction order (Exh-39) for prosecution
of the appellant.
9. The learned counsel for the appellant submits
that the evidence on record shows that the complainant
was in the habit of bringing the Government servants in
trouble by arranging traps through A.C.B. by joining
hands with other persons. He was a law student. He was
connected with the Corruption Eradication Movement of
Shri Anna Hazare. He belongs to Communist party and was
the member of Village Panchayat. Considering this
background of the complainant, it was necessary to have
an independent corroboration to his version in respect
of the demand made by the appellant for bribe. He
7 criapl127-2008
submits that the evidence of the complainant in respect
of the time when the alleged demand of bribe was made by
the appellant is not consistent. This fact itself
creates doubt about his version that the appellant
demanded bribe amount from him. There has been no
verification of the said demand of bribe. He then
submits that the evidence on Panch No.1 is not
believable since he seems to have stealthily refreshed
his memory by reading pre-trap panchanama and post-trap
panchanama for two to four times, which were made
available to him well in advance. He submits that his
evidence about taking out the tainted currency notes
from the appellant is not consistent with that of
Dy.S.P. Deshmukh (PW5). He then submits that the file
of the complainant was already submitted by the
appellant to his superior officer much prior to the time
when the trap was laid. The appellant had not withheld
the file of the complainant. This fact itself shows
that there was no reason for the appellant to ask for
the bribe amount from the complainant. He further
submits that the defence of the appellant that the
complainant thrusted the tainted currency notes into his
shirt pocket without his knowledge and he took out those
currency notes by his right hand for being given back to
8 criapl127-2008
the complainant, when he was caught hold of by the
members of the raiding party, is quite natural and
probable. Consequently, in the absence of positive and
dependable evidence about the demand of bribe by the
appellant, mere finding traces of anthracene powder in
the shirt pocket and right hand fingertips of the
appellant would not establish guilt of the appellant for
the above mentioned offences.
10. On the other hand, the learned A.P.P. submits
that there is sufficient, cogent and consistent evidence
on record to prove demand of bribe made by the appellant
and acceptance thereof in response to that demand. He
submits that there are some minor variances in the
evidence of the complainant and that of panch No.1,
which do not go to the root of the matter. There was no
reason for the complainant to falsely involve the
appellant in this case. He submits that the learned
Trial Judge has rightly considered the facts of the case
as well as the evidence on record and has rightly
convicted the appellant.
11. The complainant deposes that he filed a
petition before the Additional Collector, Beed, seeking
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disqualification of the Sarpanch - Meera Pachange on 14 th
July, 2004. He met the appellant on 21 st July, 2004 for
the purpose of making enquiry as to whether notice was
issued to the respondent - Meera Pachange in connection
with that petition. At that time, the appellant
demanded Rs.1000/- from him as bribe for issuing notice
and on his request, reduced that amount to Rs.400/-.
Since he was not inclined to pay bribe to the appellant,
he lodged complaint (Exh-21) in the office of A.C.B.
before Dy.S.P. Deshmukh (PW5) on the same day.
12. Before scrutinizing the evidence of the
complainant, it will be necessary to refer to the fact
that the appellant was elected as a member of the
Village Panchayat in by-election of 2003. He was
belonging to Communist party. He was a law student in
the year 2004. He admits that he is known as Comrade
Gite Advocate in his village. He states that he was
connected with the Corruption Eradication Movement of
Shri Anna Hazare. He admits that there was R.C.C. No.
16 of 2007 filed against Advocate Tidke, himself and
others for the offence punishable under Section 353 of
the Indian Penal Code ("IPC", for short). He shows
ignorance about pendency of Criminal Case No. 244 of
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2004, R.C.C. No. 142 of 2004 (under Sections 448 and 451
of the IPC), S.C.C. No. 2214 of 2004 (under Section 500
of the IPC), R.C.C. No. 301 of 2005 (under Sections 147,
148, etc. of the IPC) and R.C.C. No. 71 of 2007 (under
Section 420 of the IPC) in which he is a party either as
a complainant or an accused. The certified copies of
the complaints/chargesheets in respect of these cases
have been produced by the appellant with his statement
under Section 313 of the Code of Criminal Procedure.
The present complainant is one of the accused in Cri.
M.A. No. 244 of 2004, registered for the offences
punishable under Sections 323, 504, 506 read with
Section 34 of the IPC, Crime No. 16 of 2007 is
registered against him for the offence punishable under
Section 353 read with Section 34 of the IPC. R.C.C. No.
301 of 2005 has been filed against one Shrinivas
Dhondiram Mundhe and others, on the report lodged by the
present complainant. R.C.C. No. 71 of 2007 has been
filed by the present complainant against one Milind
Chavan and three others. S.C.C. No. 2214 of 2005 has
been filed by the present complainant against Shrinivas
Mundhe and another, while S.C.C. No. 142 of 2004 has
been filed by him against one Ashok Mundhe and five
others. He admits that on 29th July, 2005, some persons
11 criapl127-2008
assaulted him in the campus of Parali Court on the
allegations that by joining hands with other persons, he
(the present complainant) arranges for traps through
A.C.B. against the Government officers. The above
mentioned facts make it clear that the complainant was a
law student at the time of above mentioned trap. He was
an educated person. He was indulged in the activities
of laying traps against the Government officials. With
this background of the complainant, his evidence would
be required to be scrutinized with great care and
caution.
13. In paragraph No.2 of his evidence, the
complainant states that he had gone to the appellant at
about 10.00 a.m. or 10.30 a.m. on 21 st July, 2004 and
lodged complaint against him at about 11.00 a.m. In the
first part of paragraph No.14 of his cross-examination,
the complainant states that on 21st July, 2004, he went
to the Court at about 10.30 a.m. and then went to the
office of the Collector between 11.00 a.m. and 11.15
a.m. Again, in the latter part of paragraph No. 14, he
states that he visited the office of the Collector at
about 11.30 a.m. Thus, his evidence about the time of
his visit to the office of the Collector for making
12 criapl127-2008
inquiry with the appellant is not consistent. It is
understandable, if there is some variance in the
evidence of the witness in respect of the time of the
first demand on the background that he deposed before
the Court after lapse of 3-4 years. However, in this
case, the complainant is quite an educated and
intelligent person. There is variance in his evidence
about the time of the first demand in paragraph 2,
paragraph 14 (first part) and paragraph 14 (later part).
This variance in respect of the time of meeting the
appellant in his office during the course of recording
his evidence certainly would create a strong doubt about
the said meeting and the alleged demand of bribe made by
the appellant.
14. In this background, independent evidence was
immensely necessary to corroborate the version of the
complainant about the first demand of bribe made by the
appellant. Such independent corroboration could have
been obtained by conducting verification of that demand
either by sending some witness with the appellant for
the purpose of confirmation of that demand or through
telephonic conversation between the complainant and the
appellant and recording of that conversation. Nothing
13 criapl127-2008
of that sort has been done by the Dy.S.P. - Deshmukh
(PW5). There is absolutely no corroboration to the
evidence of the complainant about the alleged demand of
bribe of Rs.400/- by the appellant in his office prior
to the trap on 21st July, 2004.
15. R.D.C. Kendre (PW2) states that the appellant
being Awal Karkun working in the Village Panchayat
Section of the Collectorate, was assigned the duty of
issuing notices in the proceedings filed in that
Section. He states that the file of the complainant was
received in the Village Panchayat Section and it was
sent to the Additional Collector on 21 st July, 2004 by
the appellant for necessary orders. The note prepared
by the appellant is at Exh-29. This witness states that
he signed the note (Exh-29) produced by the appellant
before him on 21st July, 2004 and submitted it to the
Additional Collector on the same day under his
signature. He states that the Additional Collector was
the competent Authority to pass an order as to whether
notices should be issued or not. He then states that
unless there is order of the Additional Collector, no
clerk had any authority to issue notices. He admits
that there is no order of the Additional Collector in
14 criapl127-2008
the matter of the complainant for issuance of notices.
If that be so, there was no scope for the appellant to
demand any bribe from the complainant for issuance of
notices. In fact, from the submission note (Exh-29)
prepared by the appellant himself on 21 st July, 2004, it
is clear that he had done his part of the duty by
preparing that submission note and submitting the file
to the Additional Collector for further orders. This
submission note and the file were referred to the
Additional Collector much prior to the time of the trap
on 21st July, 2004. From the contents of submission note
(Exh-29) and the evidence of R.D.C. Kendre (PW2), it is
clear that the appellant had not withheld the
proceedings of the complainant with him with any
ulterior motive. Nothing had been left for being done
by the appellant in that matter on the day of the trap.
In the absence of the order of the Additional Collector,
the appellant was not authorised to issue notices.
Thus, the very reason behind the alleged demand of bribe
assigned by the complainant is not at all natural,
probable and believable. There was no reason for the
appellant to demand bribe as claimed by the complainant.
16. The complainant deposes that after the
15 criapl127-2008
necessary arrangement for laying trap was made and pre-
trap panchnama (Exh.25) was prepared, he went to the
office of the appellant along with both the panchas and
other members of the raiding party. He reached the
office of the appellant at about 4.30 p.m. Panch no.1
Sheshgir Kulkarni (PW4) and himself entered into the
election section. The appellant was sitting in his
chair. There was exchange of Namaskars between the
appellant and himself. Then he asked the appellant,
whether the notice was issued against the respondent in
his petition. The appellant, in response, asked him,
whether he had brought the amount of Rs.400/-. He
replied in the affirmative. Then the appellant asked
him to pay that amount. He then took out the tainted
currency notes of Rs.400/- by his right hand from the
left side pocket of his shirt. The appellant accepted
that amount by his right hand. He counted the said
amount by his fingers and kept it in the left
side pocket of his Safari shirt. Then, he gave a
predetermined signal by moving his left hand from his
hairs thrice.
17. To corroborate the demand and acceptance of
bribe by the appellant at the time of the trap Sheshgir
16 criapl127-2008
Kulkarni (PW 4)(Exh.40) has been examined by the
prosecution. He states that he went to Village Panchayat
Section along with the complainant. The appellant was
sitting in his chair. There was exchange of Namaskars
between the complainant and the appellant. There was a
table in front of the appellant and beyond that table,
there were chairs. The complainant sat in one of the
chair facing towards the appellant (West). He himself
sat in another chair to the left side of the appellant
near one cup-board. The complainant asked the appellant,
whether he served the notice to his opposite party. The
appellant then asked the complainant, whether he had
brought the amount as was asked by him. The complainant
answered in the affirmative. The appellant then asked to
give that amount. The complainant took out the tainted
notes by his right hand from the left side chest pocket
of his shirt and the appellant accepted that amount by
his right hand. The appellant verified by his right
hand fingers the quantum of those notes and kept the
same in the left side chest pocket of his Safari shirts.
The appellant then asked the complainant to go from his
office. Then the complainant went out out of that
office room and gave a predetermined signal.
17 criapl127-2008
18. It has come in the cross-examination of
Sheshgir Kulkarni (PW 4) that there had been talks
between the complainant and the appellant for about ten
minutes at the time of the trap. He states that they
uttered only 2-3 sentences. This evidence does not
appear to be natural and probable. It is difficult for
one to accept that within a period of ten minutes,
the complainant and the appellant would utter 2-3
sentences only. It has further come in the cross-
examination of this witness that as soon as the
complainant asked the appellant about notice, the
appellant replied that the file was with his office.
It was specifically suggested to the complainant that
when he met the appellant at the time of the trap, the
appellant told him that his file was already sent by him
to the Collector. But, this suggestion has been denied
by the complainant. However, from the evidence of
Sheshgir Kulkarni (PW 4), it is clear that the appellant
had told the complainant that the file was with his
Officer. The evidence of Kendre (PW2) also makes it
clear that the file was already sent by the appellant to
the Additional Collector on 21.04.2001 itself prior to
the trap. It is, thus, clear that the complainant tried
to suppress the factual position that was made clear by
18 criapl127-2008
the appellant to him in respect of his file prior to the
trap.
19. Though the complainant states that he asked the
appellant whether he issued notice to the respondent in
his petition, Sheshgir Kulkarni (PW 4) states that the
complainant asked the appellant, whether he served the
notice to his opposite party. There is lot of
difference between the meaning of "issuing notice" and
"serving notice on the opposite party". Thus, the
evidence of this witness in respect of what the
complainant asked the appellant is not consistent.
20. The complainant states that the appellant
specifically asked him, whether he had brought the bribe
amount of Rs.400/-. However, Sheshgir Kulkarni (PW 4)
does not state about any particular figure of bribe
amount allegedly demanded by the appellant.
21. The evidence of the complainant and Sheshgir
Kulkarni (PW 4) that the appellant counted the tainted
currency notes by his right hand only also does not
appear to be natural and probable. Firstly, in the
ordinary course, both the hands would have been used by
19 criapl127-2008
the appellant for counting the notes, if he really
wanted to count them. In that event, the traces of
anthracene powder would have been noticed even on the
left hand finger tips of the appellant. Moreover, when
the amount was being received as bribe and not in
respect of repayment of any hand-loan or towards payment
of any official charges, the appellant would not have
even thought of counting those notes to get verified the
value thereof and would have directly kept them in the
pocket of his shirt at the earliest, so as to make it
difficult for others to see that the said amount was
actually accepted by him from the complainant. The
evidence of these witnesses about openly counting the
notes to get it confirmed that they were in the sum of
Rs. 400/- only and that too, by the single hand, thus,
is difficult to be believed.
22. The complainant states that after the members
of the raiding party entered into the office of the
appellant, Dy. S.P. Deshmukh (PW5) asked panch No.1
Sheshgir Kulkarni (PW4) as to who demanded the bribe
amount and with whom that amount was. Sheshgir Kulkarni
(PW4) then informed that the appellant had demanded and
accepted the bribe amount and that it was in the left
20 criapl127-2008
side pocket of shirt of the appellant. The complainant
further states that Dy. S.P. Deshmukh (PW5) asked
Sheshgir Kulkarni (PW4) to take out that bribe amount
from the shirt pocket of the appellant and accordingly,
Sheshgir Kulkarni (PW4) took out that amount.
23. Sheshgir Kulkarni (PW4) states that on being
asked by Dy. S.P. Deshmukh (PW5) as to who had demanded
the bribe amount, he pointed out to the appellant and
replied in the affirmative that the appellant had
demanded and accepted the bribe amount. He then states
that the appellant himself took out the tainted
currency notes and handed over them to the Dy. S.P.
Deshmukh (PW5). He again states that panch No.2 (Waman
Darewar) took out those currency notes. In his cross-
examination, this witness states that after the tainted
currency notes were examined under the light of ultra-
violate lamp, they were handed over to panch No.2.
24. The evidence of the complainant and Sheshgir
Kulkarni (PW 4) in respect of taking out the tainted
currency notes from the possession of the appellants, as
stated above, is not at all consistent. It creates a
great doubt about the fact that they were actually taken
21 criapl127-2008
out from the shirt pocket of the appellant either by
Sheshgir Kulkarni (PW 4) or panch no.1.
25. It has come in the cross-examination of
Sheshgiri Kulkarni (PW4) that the copy of panchanama
No.2 i.e. the post-trap panchanama (Exh-41) was made
available to him by the learned A.P.P. prior to 2 to 3
days of the previous day of hearing of the case. He read
it 2 to 4 times. He states that he could remember the
contents of that panchanama after reading for the first
time. In view of this version of Sheshgir Kulkarni
(PW4), the learned counsel for the appellant submits
that the evidence of this witness cannot be believed,
because it is obvious that he was made to state before
the Court as per the contents of the post-trap
panchanama (Exh-41).
26. Here, a reference may be made to the judgment
in the case of Shri Sharad s/o Namdeorao Shirbhate Vs.
State of Maharashtra 2007 ALL MR (Cri) 352, wherein in
the similar circumstances, the evidence of the witness,
who refreshed his memory in the same manner in which
Sheshgir Kulkarni (PW4) refreshed it in the present
case, was disbelieved. It was the contention of the
22 criapl127-2008
learned A.P.P. in that case that since the incident had
happened prior to nine years, there was nothing wrong in
the witness refreshing his memory by reading his
statement before deposing about the incident giving
minute details. This Court repelled that contention
with the following observations in paragraph No.10 of
the judgment:
"There would indeed be nothing wrong in the
witness refreshing his memory, but that ought
to be done before the Court and not outside the
Court. In order to test the veracity of a
witness, he would be required to recollect the
incident out of his own memory and should he
falter on some material aspect, he could be
allowed to refresh his memory with reference to
the contemporaneous records of the incident
created by the police. It would not be
permissible for such a witness to stealthily
referesh his memory before entering the Court
and deposing abut the entire evidence giving
minute details as if he was reeling them out
from his memory. Therefore, the objection to
the reliability of evidence of P.W.2 Prabhakar
taken by the learned counsel for the appellant
is valid."
27. The above mentioned reasoning for discarding
the evidence of the witness has been affirmed by the
Division Bench of this Court in the case of Suresh s/o
Purushottam Ashtankar Vs. State of Maharashtra and
another 2015 ALL MR (CRI) 4243.
23 criapl127-2008
28. In the present case, the trap was laid on 21 st
July, 2004 and Sheshgir Kulkarni (PW4) was examined
before the Court on 5th July, 2007 i.e. within a period
of three years. As stated above, he was provided with a
copy of the post-trap panchanama (Exh-41) much prior to
the date of his examination before the Court. He states
that he read the said panchanama for 2 to 4 times. It
is, thus, clear that this witness refreshed his memory
not with the permission of the Court but stealthily.
Therefore, it will have adverse effect on the
reliability on the evidence of this witness. It cannot
be believed in the absence of independent evidence. His
evidence cannot be considered for seeking corroboration
to the evidence of the complainant.
29. As discussed above, the evidence of the
complainant in respect of the demand of bribe by the
appellant being not consistent, cannot be believed. The
work of issuance of notices was not withheld by the
appellant. Therefore, there was no reason for the
appellant to demand bribe from the complainant for
issuing notices. The complainant seems to be interested
in arranging traps of A.C.B. against the Government
24 criapl127-2008
officials by joining hands with others. The evidence of
Sheshgir Kulkarni (PW4) also is not consistent with the
complainant on material points. The evidence of this
witness itself is not believable since he deposed before
the Court after stealthily refreshing his memory by
reading post-trap panchanama (Exh-41) for two to four
times. In the circumstances, it was necessary to have
independent corroboration to the evidence of the
complainant on the point of demand of bribe by the
appellant and acceptance thereof by him in connection
with the discharge of his official duty. No such
independent evidence has been produced by the
prosecution on record.
30. The appellant has come with a specific case
that without there being any demand from his side for
bribe, the complainant thrusted the tainted currency
notes into the pocket of his shirt and when he took out
those currency notes by his right hand for being handed
over back to the complainant, he was caught hold of by
the A.C.B. officials. The Dy.S.P. - Deshmukh (PW5)
admits that at the time of the trap, the appellant had
told him that the amount was thrusted by the complainant
into his pocket. Had the appellant consciously received
25 criapl127-2008
the tainted currency notes and counted them as alleged
by the complainant, the fingertips of both of his hands
would have got smeared with anthracene powder. The
finding of traces of anthracene powder on his right hand
fingertips only supports his defence that he touched the
tainted currency notes, while taking them out of his
shirt pocket for being handed over to the complainant.
The defence of the appellant is quite probable. In the
circumstances, only because traces of anthracene powder
were noticed on the fingertips of right hand and inside
the left side chest pocket of the shirt of the
appellant, it cannot be said that he consciously
accepted the money in response to his demand for bribe.
31. The learned Trial Judge did not consider the
facts of the case as well as the evidence on record
correctly and properly and wrongly accepted the evidence
of the complainant and that of Sheshgir Kulkarni (PW4).
In view of the discussion made above, the findings
recorded by the learned Trial Judge holding the
appellant guilty for the above mentioned offences cannot
be said to be legally sustainable. The impugned
judgment and order are liable to be quashed and set
aside. In the result, I pass the following order:-
26 criapl127-2008
O R D E R
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment and order dated 27 th
March, 2008, passed in Special Case No. 56 of 2004 by
the learned Special Judge, Beed, are quashed and set
aside.
(iii) The appellant is acquitted of the offences
punishable under Sections 7 and 13 (2) read with Section
13 (1)(d) of the Prevention of Corruption Act, 1988.
(iv) The bail bonds of the appellant are cancelled.
He is set at liberty.
(v) The fine amount of Rs.30,000/-, deposited by
the appellant, be refunded to him.
[SANGITRAO S. PATIL]
JUDGE
npj/criapl127-2008
