Bombay High Court

Central Bureau Of Investigation ... vs Hemant S/O Bhojraj Suryawanshi on 7 January, 2021

Bench: V. G. Joshi

Order                                                                                       0701appa368.20
                                                      1


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


                      CRIMINAL APPLICATION [APPA] NO. 368/2020.
                                        Central Bureau of Investigation.
                                                  -VERSUS-
                                         Hemant Bhojraj Suryawanshi

Office notes, Office Memoranda of
Coram, appearances, Court's orders                            Court's or Judge's Orders
or directions and Registrar's orders.



                                          Ms. M. Chandurkar, Advocate for the Applicant/Appellant.
                                          Shri R.B. Upadhye, Advocate for the Respondent.




                               CORAM : VINAY JOSHI, J.

                               DATE             : JANUARY 07, 2021.


                               Heard.

2. The appellant - Central Bureau of Investigation (CBI) is

seeking leave to prefer appeal in terms of Section 378[3] of the Code

of Criminal Procedure for challenging the order of acquittal passed by

the Special Judge in Special CBI Case No. 1/2015. The respondent /

accused was charged for the offence punishable under Sections 7,

13[2] read with 13[1][d] of the Prevention of Corruption Act, 1988.

After full fledged trial, the Special Court held that the prosecution has

failed to establish the charged offences which resulted into acquittal.

Order 0701appa368.20

3. Learned Counsel appearing for the applicant / appellant

vehemently criticized the judgment of acquittal by making elaborate

submissions. She took me through certain portion of the evidence as

well as copy of the transcription of the recorded conversation to

impress that there was clear evidence of demand of bribe amount. It

is pointed out that the tainted currency notes were seized from the

accused in presence of panch witnesses and trap party. She would

submit that the evidence of complainant was well corroborated by the

complaint and other evidence. The demand was verified through

recorded conversation and therefore, the trial Court utterly failed in

appreciating the evidence.

4. Per contra the learned Counsel appearing for the

respondent accused has supported the judgment of acquittal. He also

took me through certain observations from the impugned judgment

to impress that the trial Court was well justified in acquitting the

accused. He would submit that the tape recorded conversation no

where suggest the clear demand of bribe amount. The complainant

had not applied for issuance of Weaver Identity Card, however, the

transcription was relating to design and about craft mela. It is his

submission that the trial Court has properly analyzed the evidence

and the view expressed by the trial Court cannot be said to be

Order 0701appa368.20

perverse.

5. It is the prosecution case that the accused was serving as a

Deputy Director, Weaver Service Centre, Nagpur meaning thereby a

public servant within Section 2[d] of the Prevention of Corruption

Act. The accused has demanded bribe of Rs.8000/- to the

complainant for issuance of Weavers Identity Card. On the basis of

said demand, the complainant approached to the office of CBI on

22.07.2014 and filed report. The demand was got verified through

tape recorded evidence. The officer has led trap in which the

accused was found accepting bribe namely tainted currency notes of

Rs.4000/-. The record indicates that the prosecution has examined in

all 12 witnesses to establish the guilt.

6. With the assistance of the learned counsel appearing for

the parties, I have gone through the evidence to the limited extent of

grant of leave. The complainant [PW-1] was a weaver by profession.

It is his evidence that on 27.06.2014, he met the accused for issuance

of weavers identity card, for which the later demanded sum of

Rs.8000/-. It is his evidence that on 22.07.2014, he has lodged the

report and then at the instance of CBI Officer it was decided to verify

the demand. Accordingly he met the accused on which there was a

Order 0701appa368.20

demand of bribe. The conversation was recorded in voice recorder.

He has also stated about actual trap. It is his evidence that he had

handed over tainted currency notes of Rs.4000/- to the accused, who

counted the same by right hand and accepted the same. Evidence of

P.W.2 shadow panch witness was led to corroborate the version of

the informant. The prosecution has examined P.W.3 for the purpose

of identifying the voice of the accused. Evidence of P.W.8 expert has

been led on the point of voice examination. I have gone through the

evidence of trap leading officer P.W.4 - Gupta, who had stated in

detail about the demand, acceptance of bribe and procedural aspect.

Besides said evidence, I have gone through the transcript and

telephonic/recorded conversation. It cannot be said that there was

no element to indict the demand of bribe amount.

7. The learned counsel for the accused would submit that

unless there is perversity, it is not permissible for the appellate Court

to reverse the finding of acquittal. He would submit that since the

evidence of prosecution was not trustworthy, leave should not be

granted. In support of said contention he relied on paragraph no.20

and 21 from the judgment of Hon'ble Supreme Court in case of State

of Maharashtra .vrs. Sujay Mangesh Poyarekar - (2008) 9 SCC 475,

which was referred in paragraph no.4 of the judgment of Supreme

Order 0701appa368.20

Court in case of State of Maharashtra .vrs. Shankar Ganpati Rahatol

and others - 2019 All MR (Cri) 1697 (SC). The relevant portion is

reproduced hereinbelow.

"20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.

21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial Court must be allowed by the appellate Court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the Court would not enter into minute details of the prosecution observing that evidence the and judgment refuse of leave acquittal recorded by the trial Court could not be said to be 'perverse' and, hence, no leave should be granted."

8. No doubt at the time of grant or refusal of leave to appeal,

the application of mind is necessary. The Court has to consider

whether prima facie case has been made out or not. Pertinent to note

that the Supreme Court has also cautioned that at this stage the Court

Order 0701appa368.20

shall not enter into minute details of the prosecution evidence and

refuse leave by holding that the judgment of trial Court is perverse.

9. Infact the provisions of sub-clause [3] of Section 378 of

the Code is meant to weed out the un-meritirous litigation at the

threshold. At this stage it is expected that the Court should have an

over all view of the matter on prima facie basis. It is not permissible

to scan the entire evidence like deciding the appeal finally. In that