Santosh Arjun Nagvekar vs The State Of Maharashtra
2021 Latest Caselaw 2589 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CRIMINAL APPELLATE JURISDICTION

                           CRIMINAL APPEAL NO. 121 OF 2017

Pradeep Yashwant Shirke                       ]
Age : 56 years, Occu. : Service               ]
Residing at G. T. Hospital Servant            ]
Quarters, Room No. 3, L.T. Marg,              ]
Mumbai - 400 001.                             ]               ... Appellant

          Versus

State of Maharashtra                          ]
Anti-Corruption Bureau, B.M.U.                ]               ... Respondent.

                                       WITH
                           CRIMINAL APPEAL NO. 128 OF 2017
Santosh Arjun Nagvekar                        ]
Age : 43 Years, Occu.: Service                ]
Residing at 3/451, Government                 ]
Colony, Kherwadi Police Station,              ]
Bandra (E), Mumbai - 400 051.                 ]               ... Appellant

          Versus

State of Maharashtra                      ]
Through Anti-Corruption Bureau,           ]
B.M.U. in connection C.R. No. 45 of 2012. ]                   ... Respondent.


Mr. Meghashyam Kocharekar for Appellant in Cri.Appeal No. 121 of 2017 &
Mr. Ramesh Majgaonkar for Appellant in Cri.Appeal No. 128 of 2017.
Mr. Amit Palkar, A.P.P. for Respondent-State in both Appeals.


                                    CORAM : A. S. GADKARI, J.
                                RESERVED ON : 6th JANUARY 2021.
                             PRONOUNCED ON : 9th FEBRUARY, 2021.



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JUDGMENT :

Appellant Santosh Nagvekar, in Appeal No.128 of 2017 is original

accused No.1 and appellant Pradeep Shirke, in Appeal No.121 of 2017, is

original accused No.2 in A.C.B. Special Case No.1 of 2014. For the sake of

brevity, the appellants hereinafter will be referred to as per their original

nomenclature before the Trial Court. i.e. 'Accused No.1' and 'Accused No.2'.

2. The appellants have questioned correctness of Judgment and

Order dated 31st January 2017 passed by the learned Special Judge (Under

the P.C. Act) , Greater Mumbai in A.C.B. Special Case No.1 of 2014. The

Accused No.1 Santosh A. Nagvekar has been convicted for the offence

punishable under Section 7 of the Prevention of Corruption Act, 1988 (for

short, "P.C. Act") and sentenced to suffer simple imprisonment for 6 (six)

months and to pay fine of Rs.8,000/-, in default of payment of fine to further

suffer simple imprisonment for 30 (thirty) days. Accused No.2 Pradeep Y.

Shirke is convicted for the offence punishable under Section 12 read with 7 of

the P.C. Act and sentenced to suffer simple imprisonment for 6 (six) months

and to pay fine of Rs.8,000/-, in default of payment of fine to further suffer

simple imprisonment for 30 (thirty) days. The Trial Court has also convicted

both the accused for the offences punishable under Sections 13(1)(d) read

with 13(2) of the P.C. Act and sentenced them to suffer simple imprisonment

for 6 (six) months and to pay fine of Rs.8,000/- each, in default of payment of

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fine to further suffer simple imprisonment for 30 (thirty) days each. The Trial

Court has directed that, substantive sentences shall run concurrently.

3. Heard Mr. Kocharekar, learned counsel for the appellant in

Criminal Appeal No.121 of 2017, Mr. Majgaonkar, learned counsel for the

appellant in Criminal Appeal No.128 of 2017 and Mr.Palkar, learned A.P.P.

for Respondent-State. Perused entire record.

4. The prosecution case in brief is as under :-

i] The complaint for demand of bribe, basically by Santosh

Nagvekar (Accused No.1), was lodged by Mr.Ganesh S. Phadke (PW-1) on

23rd November 2012 with the Anti-Corruption Bureau (for short, " A.C.B.")

Mumbai. The complainant (PW-1) was working as a reporter in Mumbai Life

News Channel. That, on 26th September 2012, he was suffering from throat

infection and therefore, he went to G. T. Hospital, Mumbai for treatment on

27th September 2012. He obtained case papers and went to Ward No. 27 for

treatment. Medicines were prescribed to him. After taking medicines, he

required and was in need of medical certificate for joining the duties. He

therefore went to G.T. Hospital in the month of November 2012 for obtaining

medical certificate. There he met one person by name Nana @ Santosh

Nagvekar (A-1) and made enquiry for getting medical certificate from the said

hospital and told him that, he was in need of medical certificate. Santosh

Nagvekar (A-1) told him that, he would have to pay an amount of Rs.2,500/-

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and Rs.500/- extra i.e. in all Rs.3,000/- for getting medical certificate. The

complainant (PW-1) told Santosh Nagvekar (A-1) that, he was not in a

position to give such an amount. Thereafter, mobile phone numbers were

exchanged between the complainant and Santosh Nagvekar (A-1). Santosh

Nagvekar(A-1) subsequently told the complainant that, he would have to pay

Rs.2000/- for getting medical certificate and if the complainant did not pay

the said amount, he would not get it.

ii] As the complainant (PW-1) did not intend to pay the said amount

to Santosh Nagvekar (A-1), he therefore went to the office of the A.C.B. in the

last week of November and met Police Inspector Mr. Hanumanth A. Vetal

(PW-7) and told his grievance to him orally. P.I. Vetal (PW-7) asked to him to

give his complaint in writing and accordingly a complaint was lodged. The

complainant himself wrote the said complaint dated 23 rd November 2012

(Exh.17), and along with it he also submitted his case-papers issued by G.T.

Hospital, Mumbai.

iii] On 23rd November 2012, P.I. Vetal (PW-7) called two panch

witnesses, namely, Mr. Pramod K. Govalkar (PW-2) and Mr. Chandrakant N.

Parkhad (both were working in Rationing Office) and introduced them with

the complainant (PW-1). The said complaint was read over to the witnesses,

who after reading, signed it. P.I. Vetal (PW-7) thereafter, decided to conduct

the verification regarding the demand of alleged bribe amount on 26 th

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November 2012. A voice call recorder was arranged and after formatting a

micro SD card was inserted in it, in presence of panch witnesses. The said

Digital voice recorder (D.V.R.) and SD card were found blank at the relevant

time.

iv] The complainant (PW-1) along with panch witness PW-2 and

other Police Officers then proceeded towards the G.T. Hospital. They entered

in the premises of G.T. Hospital and made enquiry about Santosh Nagvekar

(A-1) on that day. It was informed to them that, on that day Santosh

Nagvekar was on leave. P.I. Vetal (PW-7) thereafter directed the complainant

(PW-1) to make call to Santosh Nagvekar (A-1) and directed the complainant

to switch on the speaker of his mobile. The complainant from his mobile No.

9594745480 gave a call to Santosh Nagvekar (A-1) on his mobile phone

bearing No.9892887949. Santosh Nagvekar informed him that, he is on leave

due to illness. The complainant made enquiry with Santosh Nagvekar about

his medical certificate, when Santosh Nagvekar (A-1) allegedly demanded

Rs.2,000/- for issuing it and directed complainant to come on the next day.

Thereafter, the conversation between complainant (PW-1) and Santosh

Nagvekar(A-1) was stopped. The complainant along with panch witness (PW-

2) and other Police Officers came back to the A.C.B. Office. The Officers of

the A.C.B. took the said voice recorder from the complainant (PW-1). P.I.

Vetal (PW-7) thereafter registered F.I.R. as per the say of the complainant

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(PW-1) in vernacular. The complainant put his signature on the F.I.R.

(Exh.25). P.I. Vetal (PW-7) thereafter directed the complainant (PW-1) to

bring an amount of Rs.2,000/- on next day.

v] On the next day, i.e. on 27th November 2012, the complainant

went to A.C.B. Office. The said two panch witnesses, A.C.P. Ratnaparkhi,

A.C.P. Katkar, P.I. Vetal and other staff of A.C.B. were present in the said

office. The formal procedure of pre-trap panchanama was completed in the

said office. P.I. Vetal (PW-7) told panch witnesses Shri Govalkar (PW-2) to be

nearby with the complainant and to observe the things. Another panch

witness was to remain present along with the A.C.B. staff. It was decided

that, after the A-1 Santosh Nagvekar accepts the said amount, the

complainant to give signal to the A.C.B. staff by putting his left hand over his

head.

vi] The complainant (PW-1), panch witness Mr. Govalkar (PW-2);

panch witness Parkhad, P.I. Vetal (PW-7); A.C.P. Katkar, A.C.P. Ratnaparkhi

along with other staff of A.C.B. proceeded towards G.T. Hospital by walk after

parking their vehicles near Metro Theater. A voice recorder was provided to

the complainant by the A.C.B. Officers in the vehicle at Metro Theater. After

reaching to G.T. Hospital, the complainant (PW-1) met Santosh Nagvekar

(A-1) in the OPD itself. Santosh Nagvekar (A-1) directed him to bring his case

papers and the complainant (PW-1) brought it by paying charges of Rs.10/-

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and sat on a bench outside the OPD. The complainant asked Santosh

Nagvekar(A-1) about his medical certificate whereupon Santosh Nagvekar

told him to wait for a while. Santosh Nagvekar (A-1) went away from that

place and again came back with two unknown persons and introduced them

with the complainant as Pradeep Shirke (A-2) and Dr. Chandanshive.

Pradeep Shirke (A-2) asked complainant (PW-1), as to why he required

medical certificate to which the complainant answered that, it is necessary for

his office purpose. The RMO Dr. Chandanshive told complainant that,

considering the span of the leave it should have been mentioned that, he was

suffering from jaundice and all the three went away from the said place by

directing the complainant to wait for some time.

vii] After sometime, Santosh Nagvekar(A-1) came back to the

complainant and demanded Rs.2,000/- from him. The complainant therefore

put his right hand in right hand side trouser pocket and gave the alleged bribe

amount of Rs.2,000/- to Santosh Nagvekar(A-1), who accepted it with his

right hand and put it in his right hand side pocket of trouser.

viii] Santosh Nagvekar (A-1) thereafter went away from the said place

by asking complainant (PW-1) to stay there. The complainant (PW-1) asked

A.C.B. staff to wait for some time by giving signal. At that time, P.I. Vetal

(PW-7) also wanted to see whether any other persons were involved in the

said offence or not and thereafter he was keeping watch on the other

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employees and Santosh Nagvekar (A-1).

ix] After completing duties A-1 Santosh Nagvekar again came to the

complainant and at that time he was wearing other clothes than which were

on his person at the time of accepting bribe. The complainant (PW-1) and

Santosh Nagvekar (A-1) thereafter went on the first floor canteen. Santosh

Nagvekar took lunch and the complainant took tea in the said canteen. Panch

witness Mr. Govalkar (PW-2) was also there. Santosh Nagvekar (A-1) told

complainant that, the medical certificate would be handed over on next day.

The complainant and Accused No.1 thereafter came down on the ground floor

and thereafter the complainant gave predetermined signal to the A.C.B. staff.

The A.C.B. staff immediately caught hold both the hands of Santosh

Nagvekar(A-1). P.I. Vetal (PW-7) made enquiry with Santosh Nagvekar (A-1)

about the amount of Rs.2,000/-. Santosh Nagvekar (A-1) told P.I. Vetal

(PW-7) that, out of the amount of Rs.2,000/- he had given Rs.1,500/- to

Pradeep Shirke(A-2). P.I. Vetal (PW-7) asked Santosh Nagvekar(A-1) about

the whereabouts of Pradeep Shirke(A-2). At that time, Pradeep Shirke (A-2)

was seen coming towards raiding party and Santosh Nagvekar by pointing out

of his finger told the said fact to P.I. Vetal (PW-7). The A.C.B. staff thereafter

apprehended Pradeep Shirke (A-2) and made enquiry about the amount of

Rs.1,500/-. Pradeep Shirke (A-2) told the A.C.B. staff that, he has kept the

said amount of Rs.1,500/- in his house which was behind the said hospital.

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x] Thereafter, the complainant, two panch witnesses and A.C.B. staff

along with Santosh Nagvekar (A-1) went to the house of Pradeep Shirke(A-2).

The wife of Pradeep Shirke was inside the house. The raiding party along

with panch witnesses entered the house of Accused No.2 and after being

pointing out by Pradeep Shirke (A-2) they recovered Rs.1,500/- from beneath

the bedding of the cot. The carpet under which the said amount was kept and

was also seized by the police. Police thereafter asked Santosh Nagvekar (A-1)

about the remaining amount of Rs.500/-. Santosh Nagvekar (A-1) told them

that, the said amount was in his handbag and handed over the said amount to

the A.C.B. Officers from the said bag. The raiding party along with

complainant, accused persons, and other A.C.B staff then came back to G.T.

Hospital and informed the said fact to the RMO. The RMO allowed the

raiding party to use his cabin for conducting further procedure. The currency

notes were checked in ultra-violate light. At that time, the complainant

(PW-1) was not present inside the cabin as he was asked to go outside by P.I.

Vetal (PW-7).

xi] Thereafter all the said persons went to L.T. Marg Police Station

Mumbai. The voice recorder was taken from the complainant and its

transcription was prepared in the police station. Police seized the said voice

recorder and said SD card therein. After completing necessary legal

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formalities of post pre-trap panchnama; receipt of report of voice sample of

conversation recorded in the said micro SD card from the Forensic Science

Laboratory (FSL), the papers of the said case were forwarded to the

Competent Authority for obtaining necessary sanction. The Dean of Sir

J.J. Group of Hospitals, Mumbai accorded sanction to prosecute appellants.

A.C.B. thereafter filed charge-sheet against the appellants before the trial

Court.

5. The Trial Court framed charge against appellants below Exhibit-6

on 15th June 2015 for the offence punishable under Section 7 read with 12

and 13(1)(d) read with 13(2) of the P.C. Act. The contents of the charge

were read over and explained to the accused persons, to which they pleaded

not guilty and claimed to be tried. The defence of the accused persons was of

total denial.

Santosh Nagvekar (A-1) in his defence filed written explanation

(Exh.56-A). Apart from specific denial of all the charges Santosh Nagvekar

also stated that, he had neither concern in respect of issuance of the medical

certificate nor with its process in any manner. That, he never demanded bribe

amount from the complainant at any point of time for any reason nor received

any amount from him. He has stated that, the complainant was well

acquainted with him much prior to the said incident. He had stood as a

witness in respect of an agreement of giving room of the complainant and his

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brother on leave and licence basis. That the mother of complainant wanted to

purchase a room and she had informed her said wish to him (A-1). Mother of

the complainant had paid a sum of Rs. 1,90,000/- as advance through cheque

for purchase of the said room to Smt. Sugandha Nimbalkar. After some days

the complainant (PW-1) approached him (A-1) and informed that, his mother

does not want to purchase the said room and the amount which was paid by

his mother to the said lady be returned to him. He (A-1) flatly refused to do

the same as he had not accepted any amount from his mother and had no

concern with the said transaction. The complainant (PW-1) had therefore

threatened him (A-1) of serious consequences thereof and it is for that reason

the complainant has implicated him (A-1) in the present crime. That, on the

date of alleged incident, the complainant again approached him and asked for

the said amount to which he (A-1) again refused. He thereafter had his lunch

and came out of the canteen and apprehended by the Officers of A.C.B. That,

no amount of bribe was recovered from his (A-1) possession. He never

handed over any amount to Pradeep Shirke (A-2). No traces of anthracene

powder were found on his hands or cloths.

6. Pradeep Shirke (A-2) also denied all the charges and has stated

that, he had no concern in respect of issuance of medical certificate. He had

not received any amount of bribe either from the complainant (PW-1) or from

Santosh Nagvekar (A-1). That, no traces of anthracene powder were found

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either on his hands or cloths.

7. The prosecution, in order to bring home guilt against the

appellants, examined in all eight witnesses, namely, Shri Ganesh S. Phadke

(PW-1), complainant/informant; Shri Pramod K. Govalkar (PW-2), panch

witness for verification of demand and trap; Shri Vijay E. Shinde (PW-3),

Nodal Officer of Ideal Cellular Company, who has issued certificate regarding

C.D.R. of complainants mobile phone No.9594745480; Smt. Suvarna V. Tari

(PW-4), Police Constable, for recording voice samples of both the accused and

complainant on 30th November 2012; Shri Ashish D. Rathod (PW-5), a

Scientific Officer attached to F.S.L.; Shri Yogesh S. Rajapurkar (PW-6), Nodal

Officer from Bharti Airtel Limited Company, who has identified the certificate

and C.D.R. in respect of mobile No.9892887949 of the accused No.1; Shri

Hanumant A. Vetal (PW-7), Investigating Officer; and Shri Sudesh B. Ukarde

(PW-8) a Police Constable and Technician who has transcribed verification of

pre-trap panchanama dated 26th November 2012 and verification on 27th

November 2012 by following necessary procedure.

The Trial Court after recording evidence of the said witnesses and

hearing the learned Advocates for the respective parties was pleased to

convict appellants by its impugned Judgment and Order dated 31 st January

2017.

8. Mr. Kocharekar, learned counsel appearing for appellants

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submitted that, the micro SD card on which the alleged conversation between

Santosh Nagvekar (A-1) and complainant (PW-1) from their respective mobile

phones dated 26th November 2012 was recorded, was found to be blank at the

time of recording of substantive evidence in Court and therefore the demand

by Santosh Nagvekar(A-1) itself is not proved. He submitted that, Pradeep

Shirke (A-2) has not made demand from the complainant (PW-1). He

submitted that, Pradeep Shirke (A-2) admittedly never demanded any

amount from the complainant and only because some amount is recovered at

his instance, he has been convicted by the trial Court. He submitted that,

Santosh Nagvekar (A-1) has proved by producing documents on record that

the complainant was well acquainted with him much prior to the date of

alleged incident. The complainant was having grudge in his mind against

Santosh Nagvekar (A-1) and therefore he with the help of the Officers of the

A.C.B. has falsely implicated him in the present crime. He submitted that,

there are material contradictions in the testimonies of the relevant witnesses

which leads to the inference that, the offence against appellants has not been

proved by the prosecution. He therefore prayed that, the present Appeals may

be allowed.

9. Per contra, Mr. Palkar, learned A.P.P. vehemently opposed the

Appeals and submitted that, there is sufficient material available on record to

show the complicity of the appellants in the crime. Learned A.P.P. however

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fairly conceded to the fact that, the complainant (PW-1) in his evidence itself

has admitted that, the said micro SD card on which the alleged conversation

between complainant and Santosh Nagvekar (A-1) dated 26 th November 2012

was recorded, was found to be blank in the Court at the time of recording of

substantive evidence. Learned A.P.P. therefore prayed that, the present

Appeals may be dismissed.

10. The facts pertaining to demand and acceptance of alleged bribe

amount by the Santosh Nagvekar (A-1) as has been deposed by Mr. Ganesh

Phadke (PW-1), have been narrated in the forgoing paragraph Nos.4(i) to

4(x) and repetition of the same is avoided for the sake of brevity. PW-1 in his

testimony has deposed that, the bribe amount was accepted by Santosh

Nagvekar (A-1) with his right hand and kept it in his right hand side trouser

pocket. Santosh Nagvekar (A-1) thereafter went away from the said place by

asking PW-1 to stay there.

It is important to note here that, at this juncture, instead of giving

pre-determined signal to the raiding party PW-1 asked the A.C.B. staff to wait

for some time by giving signal.

After completing duties A-1 Santosh Nagvekar again came to

PW-1 and at that time he was wearing the other clothes on his person. They

thereafter, went on the first floor canteen where A-1 Santosh Nagvekar took

lunch and PW-1 took tea and they came down on ground floor and at that

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time the raid was conducted. Upon enquiry by P.I. Vetal (PW-7) with

Santosh Nagvekar (A-1) about the amount of Rs.2,000/-, he told P.I. Vetal

(PW-7) that, an amount of Rs.1,500/-, out of the amount Rs.2,000/- has been

given to Pradeep Shirke (A-2). P.I. Vetal (PW-7) asked Santosh Nagvekar

(A-1) about the whereabouts of Pradeep Shirke (A-2). At that time, Pradeep

Shirke (A-2) was coming towards them and Santosh Nagvekar (A-1) by giving

signal by his finger told to P.I. Vetal (PW-7) about Pradeep Shirke. The A.C.B.

staff thereafter apprehended Pradeep Shirke (A-2) and made enquiry about

the amount of Rs.1,500/-. Upon being informed by A-2 Pradeep Shirke,

A.C.B. staff went to his house and recovered the said amount of Rs.1,500/-

from beneath the bedding of the cot. After seizure of the said amount of

Rs.1,500/-, the police asked Santosh Nagvekar (A-1) about the remaining

amount. Santosh Nagvekar (A-1) told them that, the said amount was kept in

his handbag and gave recovery of the said amount of Rs.500/- to the police

from the said bag.

In his examination-in-chief itself Mr.Ganesh Phadke (PW-1) has

admitted that, the micro SD card (Article-1) was totally blank when played in

the Court. It is also recorded in the evidence of Mr.Ganesh Phadke (PW-1), by

the Court that, the concern Technician was unable to locate files installed in

the said SD card and according to him the said SD card was totally blank. The

said SD card was containing conversation between Mr.Ganesh Phadke (PW-1)

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and Santosh Nagvekar (A-1) which was transcribed and produced before the

Trial Court. The evidence of PW-1 indicates that, the said micro SD card was

again played in the Court for the second time in presence of all the concern by

use of another Laptop, however it was found totally blank.

In his cross examination, Mr.Ganesh Phadke (PW-1) has admitted

that, he did not obtain any medical certificate from G.T. Hospital prior to the

said incident. That, he was knowing Santosh Nagvekar (A-1) one month prior

to the said incident. He was in need of medical certificate of two months to

give to his employer. He didn't know Mr. Deepak D. Sonar and Mr. Mukund

V. Wadekar. He didn't remember whether in the year 2005 he entered into a

leave and license agreement with Mukund Wadekar in respect of premises

bearing room no.53 in Mulji House, Prabhadevi Road, Mumbai. On being

confronted with the signature of leave and license agreement dated 1 st May

2005 and the signature on the F.I.R., PW-1 admitted that, his signature on the

F.I.R. is similar to the signature on the leave and license agreement (Art.-A).

He did not receive any cheque dated 16th January 2013 for Rs.5,000/- drawn

on Corporation Bank issued by Santosh Nagvekar (A-1) in his favour. He has

denied that, mother of Deepak Sonar was his aunt.

An omission that, while lodging the complaint, he had mentioned

that, he made call to Santosh Nagvekar (A-1) from his mobile phone bearing

No. 9594745480 has been brought on record. PW-1 has admitted that, after

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the said incident (27th November 2012) he never visited the said hospital for

getting medical certificate. Till then he had not received any medical

certificate from the said hospital. That, after giving the amount within 2 to 3

minutes he gave predetermined signal to the raiding squad. He has admitted

that, in his statement, he never stated that Pradeep Shirde (A-2) asked him as

to why he required medical certificate and he told him that, the said

certificate was required for his office purpose and thereafter, RMO Mr.

Chandanshive told him that considering the span of leave it should have been

mentioned that he was suffering from jaundice. A specific omission that, the

complainant did not state in his statement that, thereafter Santosh Nagvekar

(A-1) came to him and demanded Rs.2,000/- from him has been brought on

record. A further omission that, the complainant had not stated in his

statement that Santosh Nagvekar (A-1) told the Officer that he had kept

amount of Rs.500/- in his bag and P.I. Vetal (PW-7) seized the said bag has

also been proved.

11. Mr. Pramod Govalkar (PW-2) a panch witness to the demand and

trap laid by the A.C.B., in his deposition has no where stated that, Santosh

Nagvekar (A-1) demanded any amount from Mr.Ganesh Phadke (PW-1). He

has deposed that, after reaching to OPD department of G.T. Hospital,

complainant met one person i.e. Santosh Nagvekar (A-1). He saw it from a

distance. Then both sat on the bench outside the office of the Santosh

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Nagvekar (A-1). Thereafter, complainant (PW-1) went towards OPD. After

sometime both the complainant and Santosh Nagvekar (A-1) again sat on the

bench. Thereafter, the complainant (PW-1) took out currency notes from his

pocket and handed over to the accused Santosh Nagvekar (A-1) who kept it in

his right side pocket of his trouser. The complainant thereafter gave

predetermined signal. That, P.I. Vetal (PW-7) asked him to wait for a while as

he wanted to see how many persons are involved in the said incident. He

followed complainant and Accused No.1 to the canteen on the first floor of the

said building. He found that, Santosh Nagvekar (A-1) was taking lunch and

the complainant was taking tea. PW-2, P.I. Vetal (PW-7) and other staff were

sitting in the canteen. The complainant and Santosh Nagvekar (A-1)

thereafter came down from the first floor and thereafter the complainant

again gave predetermined signal. Two constables came forward and caught

Santosh Nagvekar (A-1). On enquiry, Santosh Nagvekar (A-1) told P.I. Vetal

(PW-7) that, he had handed over the said amount to his colleague Pradeep

Shirke (A-2). On enquiry with Pradeep Shirke (A-2), he told the officers that

he had kept the said amount beneath the bedding of the cot in his room.

That, an amount of Rs.1,500/- was recovered at the instance of Pradeep

Shirke (A-2) from his house. P.I. Vetal (PW-7) then asked Pradeep Shirke

(A-2) about the remaining amount of Rs.500/- to which he (A-2) answered

that, the said amount was with Santosh Nagvekar (A-1). That, Santosh

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Nagvekar (A-1) thereafter took out amount of Rs.500/- from his right hand

side pant pocket.

12. P.I. Vetal (PW-7), Investigating Officers in his examination in

chief has admitted that, Santosh Nagvekar (A-1) had changed his shirt when

he saw him in the canteen. That Santosh Nagvekar (A-1) was taking lunch

and complainant (PW-1) was taking tea. After sometime both of them came

down from the first floor and and at that time he along with other officers of

A.C.B. apprehended Santosh Nagvekar (A-1). That, he directed the panch

witness No.2 Mr. C. N. Parkhad to take search the person of Santosh Nagvekar

(A-1). Thereafter, he took out the said currency notes of Rs.500/- from the

right hand side pant pocket of Santosh Nagvekar (A-1). That, panch witness

Mr. Govalkar (PW-2) found an amount of Rs.2000/- which was kept inside

the newspaper from beneath the bedding of the cot of Pradeep Shirke (A-2).

13. The evidence of PW-3, PW-4, PW-5, PW-6 and PW-8 is on the

periphery and has no direct bearing for the decision of the present Appeals, as

the conversation recorded on micro SD card between complainant (PW-1) and

Santosh Nagvekar (A-1) was found totally blank on two consecutive occasions

while recording of substantive evidence in the Court. As far as conversation

recorded at the time of actual trap i.e. on 27 th November 2012, by affixing a

micro tape recorder on the person of the complainant is concerned, the most

important evidence i.e. of PW-2 is totally silent about the demand of any

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amount by Santosh Nagvekar (A-1) on the date of actual trap and as noted

earlier, it is the complainant, who handed over tainted amount to Santosh

Nagvekar (A-1) in the hospital when they were sitting on the bench outside

OPD. Therefore the alleged recording of conversation between complainant

and Santosh Nagvekar (A-1) on 27th November 2012, is inconsequential for

the prosecution.

The trial Court in para No.26 of the impugned Judgment and

Order has relied on transcription of conversation between the complainant

(PW-1) and Accused No.1 which took place on 26th November 2012.

As noted earlier, the micro SD card from which the said

transcription was effected itself was found totally blank in the Court while

recording substantive evidence and therefore the transctiption which was

effected in the office of A.C.B prior to recording of evidence of the material

witnesses looses his importance, as the original document (micro SD card)

(Article-1) was found to be blank by the complainant (PW-1) himself.

14. The aforestated evidence and record of the present case clearly

indicates that, Pradeep Shirke (A-2) never demanded any bribe amount from

Mr.Ganesh Phadke (PW-1). The evidence on record is silent about the actual

trail of money from the hands of Santosh Nagvekar (A-1) to Pradeep Shirke

(A-2). The material available on record is further silent about the fact that

Pradeep Shirke A-2 was having knowledge that, the amount given by Santosh

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Nagvekar (A-1) to him was proceeds of a crime. There is every possibility of

having an interse monetary transaction between Santosh Nagvekar (A-1) and

Pradeep Shirke (A-2).

It is important to note here that, the Investigating Agency first

recovered the alleged tainted amount of Rs.1,500/- from the house of

Pradeep Shirke (A-2) and thereafter an amount of Rs.500/- from the handbag

of Santosh Nagvekar(A-1) which was kept at a place accessible to others. The

Investigating Agency did not swiftly swung into motion immediately after

bribe amount alleged to have been accepted by Santosh Nagvekar (A-1) and

at the instance of Mr.Ganesh Phadke (PW-1) they waited for substantial

period to be lapsed.

As noted earlier, Santosh Nagvekar (A-1) after completion of his

duty changed his clothes and met Mr.Ganesh Phadke (PW-1). They had lunch

and tea respectively at the canteen and thereafter raid was conducted. In such

circumstances, there was no possibility at all to have traces of anthracine

powder on the hands of Santosh Nagvekar (A-1).

15. It is to be further noted here that, there are material

contradictions, with respect to the actual place of recovery of the said amount

of Rs.500/- from Santosh Nagvekar (A-1), in the testimonies of Mr. Ganesh

Phadke (PW-1); Pramod Govalkar (PW-2), a panch witness and P.I. Vetal

(PW-7). Mr. Ganesh Phadke (PW-1) has stated that Santosh Nagvekar (A-1)

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took out of Rs.500/- from his bag whereas Pramod Govalkar (PW-2) has

stated that Santosh Nagvekar (A-1) took out of Rs.500/- from his pant pocket.

P.I. Vetal (PW-7) has deposed that panch witness No.2 Mr. Parkhad took

personal search of Santosh Nagvekar and recovered Rs.500/- from his right

side pant pocket. The said panch witness No.2 Mr Parkhad has not been

examined by the prosecution for the reasons best known to it.

Mr. Ganesh Phadke (PW-1) and Mr. Pramod Govalkar (PW-2),

panch witness have deposed that, an amount of Rs.1500/- was found beneath

the bedding of the cot of Pradeep Shirke (A-2) in his room. However, PW-7

has deposed that, an amount of Rs.2000/- was found under the bed.

Panch witness Mr. Pramod Govalkar (PW-2) has not deposed

about any demand of bribe amount by Santosh Nagvekar (A-1) and he has

stated that it is the complainant Ganesh Phadke (PW-1) who handed over the

said amount to Santosh Nagvekar while they were sitting on the bench outside

the OPD department.

16. It is a well-settled position of law that demand of illegal

gratification is a sine qua non for the offences under Sections 7 and 13(1)(d).

Conversely, in the absence of proof of demand of illegal gratification, the

offences under Sections 7 and 13(1)(d) cannot be made out.

The Hon'ble Supreme Court in the case of B. Jayaraj Vs. State of

Andhra Pradesh, reported in (2014) 13 SCC 55, in para No.7 has held as

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under :-

"Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. [(2010 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu Vs. C.B.I. [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1]."

The said view is reiterated by the Hon'ble Supreme Court in the

cases of (i) T.K. Ramesh Kumar Vs. State Through Police Inspector, Banglore,

reported in (2015) 15 SCC 629, (ii) Khaleel Ahmed Vs. State of Karnataka,

reported in (2015) 16 SCC 350 and (iii) N. Sunkanna Vs. State of Andhra

Pradesh, reported in (2016) 1 SCC 713.

It is thus clear that, demand is sine-qua non in the case of bribary,

i.e. acceptance of illegal gratification. Unless there is proof of demand of

illegal gratification, proof of acceptance or mere finding of tainted amount of

bribe with the accused will not follow.

17. The evidence available on record further indicates that, at the

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time of recording of statement of Santosh Nagvekar (A-1) under Section 313

of Code of Criminal Procedure, he has produced on record a Leave and

Licence Agreement dated 1st January 2006 executed between Mr. Deepak

Devidas Sonar as 'Licensor/ Owner' and Smt. Magdeline David Fernandes as

'Licensee'. He has also produced on record a copy of cheque issued by him in

favour of complainant Ganesh Phadke (PW-1) dated 16 th January 2013 for an

amount of Rs.5,000/-. It therefore appears that, the complainant was well

acquainted with Santosh Nagvekar (A-1) much prior to the date of alleged

incident and as their relations got soared due to some financial transaction

interse, the complainant lodged the said complaint. This Court finds substance

in the defence adopted by Santosh Nagvekar (A-1).

As noted earlier, Pradeep Shirke (A-2) never demanded any

amount from the complainant (PW-1). The record is also silent about the fact

that, Pradeep Shirke (A-2) was having knowledge about the fact that the

amount allegedly handed over by Santosh Nagvekar (A-1) to him was

proceeds of a crime.

18. In view of the above discussion and after taking into

consideration, the entire material available on record, this Court is of the

considered opinion that, the prosecution has failed to prove the basic

ingredient in a bribery trap case i.e. demand of bribe, by Accused No.1

Santosh Nagvekar.

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The present Appeals therefore succeed.

19. Hence the following Order:-

(i) The Judgment and Order dated 31st January 2017 passed by the learned Special Judge (Under the P.C. Act), Greater Mumbai in A.C.B. Special Case No.1 of 2014 is quashed and set aside.

(ii) Appeals are accordingly allowed.

(A.S. GADKARI, J.)