Sanjay Bapurao Kale vs The State Of Maharashtra
2021 Latest Caselaw 2931 Bom

Rane                            1/7                      Appeal-583-2004 (sr.7)
                                                                     15.2.2021


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

              CRIMINAL APPELLATE JURISDICTION



              CRIMINAL APPEAL NO. 583 / 2004



Sanjay Bapurao Kale

Adult, Occupation-Nil

R/o-Sector 21, Scheme No.10,

Bldg No.42/1, Yamunanagar

Nigdi, Pune                                 .....Appellant

                                            (Orig. Accused)

       V/s.

The State of Maharashtra                    ....Respondent

                                            (Orig. Complainant)


                             * * * *

Mr. Ganesh K. Gole a/w. Mr. Ateet Shirodkar and Mr.

       Ritesh Ratnam, Advocate for the appellant.

Mr. S.R. Agarkar, APP for the State.


                        CORAM : SANDEEP K. SHINDE, J.



                                 Monday, 15
                                               th
                                                    February, 2021.



JUDGMENT :

1. The Special Judge, (Prevention of Corruption th Act), Pune by judgment dated 7 April, 2004 passed in Rane 2/7 Appeal-583-2004 (sr.7) 15.2.2021

Special Case No.16 of 1999, convicted the appellant, a

Deputy Accountant with the Pimpri-Chinchwad Municipal

Corporation under Sections 7, 13(1)(d) read with Section

13(2) of the Prevention of Corruption Act, 1988 ("the

Act" for short) and sentenced him to suffer rigorous

imprisonment for one year for each offence and pay fine

of Rs.2,000/- with default stipulation. Aggrieved by the

conviction and sentence, this Appeal is preferred under

Section 374(2) of the Criminal Procedure Code.

2. Heard Mr. Gole, the learned Counsel for the

appellant and learned APP, Mr. Agarkar for the State

3. The question, that falls for my consideration

is, "Whether the prosecution has proved the twin

requirement of "demand" and "acceptance" of bribe

money by the accused, in as much as, proving of one

alone but not the other, is not sufficient to uphold the

conviction ?"

4. Briefly stated, prosecution case is that,

complainant after executing the work contract, claimed refund of Earnest Money Deposit (EMD), from the office

of Pune-Chinchwad Municipal Corporation. His Rane 3/7 Appeal-583-2004 (sr.7) 15.2.2021

grievance was, the accused agreed to refund the EMD,

but for illegal gratification/reward. He thus approached

the Executive Engineer, Chief Accountant and

Accountant-Nigade of the Corporation. However, these

officers told him that, he should pay Rs.100/- to the

accused to seek release of EMD. Complainant

thereupon approached the Anti-Corruption Bureau, Pune;

however, the Deputy Commissioner was also reluctant to

register the complaint. On his insistence, a complaint

was accepted by P.I. Shinde, (Officer attached to ACB),

which is at Exhibit-19. After drawing the pre-trap

panchanama and on completing related formalities, two

tainted currency notes amounting to Rs.100/- after

applying the, anthracin powder, were kept in his pant

pockets. The raiding party, thereafter, proceeded to the nd Corporation office on 2 August, 1997 at 3:15 p.m.

5. It is complainant's evidence that, he was

accompanied by a panch witness in whose presence the

accused demanded bribe. The learned trial Judge, to

great extent relied on the evidence of the complainant

and held that 'demand' of bribe has been proved. However, in my view, the evidence of the complainant,

is not trustworthy, reliable and dependable. Infact, the Rane 4/7 Appeal-583-2004 (sr.7) 15.2.2021

complainant would assert and testify that, when he

approached the accused and enquired about refund of

EMD, complainant voluntarily informed/told accused and

other staff members, that, he had brought Rs.100/- as

agreed and handed over Rs.100/- to him and it was

accepted by the accused. Thus, there is no demand by

the accused. Infact, the alleged demand of bribe was

also not verified by the Investigating Officer before

laying a trap. On the contrary, the evidence of the

complainant suggest that, he paid Rs.100/- to the

accused as advised by the Executive Engineer, Chief

Accountant working in the same establishment. It is

therefore to be held that, the evidence of the

complainant is falling short of "demand" envisaged in

Section 7 of the Prevention of Corruption Act. So far

as the evidence of P.W.3- panch witness, is concerned,

he deposed that the moment the complainant approached

the accused, complainant handed over EMD receipts to

the complainant and no sooner, the complainant received

the receipt, he asked the accused, whether he should

pay the money as agreed.

6. Thus, the evidence of the complainant and of

the panch witness, has not proved the factum of Rane 5/7 Appeal-583-2004 (sr.7) 15.2.2021

'demand' by the accused a illegal gratification or reward,

for releasing the EMD receipts, though tainted currency

notes were recovered from him.

7. Infact, for more than one circumstance, renders

complainant's evidence not worthy. He deposed that,

after laying the trap, a post-trap panchanama drawn by

P.I. Shinde, was crumpled and torn by him. This

assertion has not been, clarified by the prosecution, as

to which panchanama was drawn and how it was

crumpled and torn by the complainant. This

circumstance/assertion renders the evidence of the

complainant deceitful and also renders the prosecution's

case debatable. Another circumstance is that, though nd the trap was laid on 2 August, 1997 at about 16:00 rd hrs, complaint was lodged on 3 August, 1997. It is

complainant's evidence that, post-trap panchanama was

torn by him, however, there is a panchanama on record,

which was drawn during 16.15 to 22.45 hrs. It may

further be noted that, the complainant deposed that, he

stayed in the office of the Corporation for whole night rd and on the second day i.e. 3 August, 1997, the FIR was lodged. Thus, the events narrated by the

complainant being not probable, it creates doubts and Rane 6/7 Appeal-583-2004 (sr.7) 15.2.2021

renders his evidence uncertain. As such whole exercise

undertaken by the respondent, post trap, cast shadow of

doubt. Be that as it may, there are material variances

in the evidence of the complainant and panch witness

on several aspects which equally renders their evidence

uncertain. To say, the complainant deposed, on personal

search of the accused, Rs.35,000/- were recovered;

however, panch witness would say Rs.6,682/- were

recovered.

8. Thus, taking into consideration the evidence on

record, and in order to attract the rigors of Section 17,

13(1)(2) of the Prevention of Corruption Act, though

prosecution was under legal obligation of proving twin

requirements of "demand" and "acceptance" of the money

by the accused, but herein the prosecution could not

prove that Rs.100/- were demanded by accused as bribe

for releasing the Earnest Money Deposit Receipts to the

complainant. Prosecution therefore fails.

9. In consideration of the evidence on record,

the Appeal is allowed.

                       Rane                            7/7                Appeal-583-2004 (sr.7)
                                                                                     15.2.2021

10. The conviction recorded in the Special Case

No.16/1999 and the sentence imposed on the appellant

by the learned Special Judge by judgment and order th dated 7 April, 2004 is quashed and set aside. Appeal

is allowed in the aforesaid terms and disposed off.

11. The Bonds executed by the appellant is

cancelled and the sureties are discharged. The fine

amount, if paid, be refunded to the appellant.

12. All applications in the appeal are disposed off

accordingly.

         Digitally

Neeta
         signed by
         Neeta S.                                             (Sandeep K. Shinde, J.)
         Sawant
S.       Date:
Sawant   2021.02.18
         14:51:51
         +0530