Anil Krishnarao Apashingkar vs The State Of Maharashtra
2021 Latest Caselaw 7602 Bom

                                                                 cr.appeal-793 of 2013.doc




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO.793 OF 2013

 Anil Krishnarao Apashingkar
 Age : 43 Yrs. Occ : Service.
 R/o. Vidhyanagar, Karad, Taluka Karad,
 Dist. Satara.                                            ... Appellant

           Versus
 The State of Maharashtra                                 ... Respondent
                                   .....
 Mr. Satyavrat P. Joshi, Advocate for the Appellant.
 Mrs. A. A. Takalkar, APP for Respondent - State.
                                   .....

                           CORAM                 : PRAKASH D. NAIK, J.

                           RESERVED ON           : 8th JANUARY, 2021.
                           PRONOUNCED ON         : 9th JUNE, 2021.

 JUDGMENT :-

1. This appeal is preferred under Section 374 of Cr.P.C.,

challenging the Judgment and order dated 20 th June, 2013 passed by

the learned Special Judge and Additional Sessions Judge, Vaduj in

Special Sessions Case No. 15 of 2010. The appellant is convicted for

offence punishable under Section 7 of Prevention of Corruption Act,

1988, (hereinafter referred to as "PC Act") and sentenced to suffer

simple imprisonment for two years and to pay fine of Rs.3,000/-. In

default of payment of fine he was sentenced to undergo simple

imprisonment for two months. The appellant is also convicted for

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offence under Section 13(1)(d) of PC Act punishable under Section

13(2) of PC Act and sentenced to suffer simple imprisonment for

three years and to pay fine of Rs.5,000/-. In default of payment of

fine he was directed to undergo simple imprisonment for 6 months.

2. The prosecution case can be briefly narrated as under:-

a) Complainant Jagannath Rajaram Mane is the resident of

Rajache-Kurle, Taluka Khatav, Dist. Satara. He owns and possesses

agricultural land bearing Gat No. 874 with a well situated therein. In

2001 he applied for electric connection to his well for operating

electric motor. The application was submitted to M.S.E.D.C.L. at

Pusesavali.

b) The complainant was working in Police department. He

retired in November, 2009. He started cultivating his agricultural

land.

c) On 3rd April, 2010, the complainant visited office of

M.S.E.D.C.L. for inquiry about his application for electric connection.

Accused was working as Sub-Engineer in the said office. The accused

gave challan and informed the complainant to deposit Rs.2,900/- in

the office of M.S.E.D.C.L. at Aundh.

d) Complainant deposited Rs. 2,885/- in the office of

M.S.E.D.C.L. at Aundh on 12th April, 2010. Thereafter, he contacted

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accused in his office and showed him the receipt of deposit. The

complainant requested the accused for granting electric connection

immediately. Accused demanded Rs.15,000/- as bribe. The accused

informed complainant to shift the electric poles kept in the vicinity of

Vadgaon High school and install them in his field for getting electric

connection. The complainant shifted electric poles to his field and

informed about it to the accused. The electric poles were erected at

the instance of the accused in the field of complainant on 14 th May,

2010.

e) On 16th May, 2010, the complainant informed the

accused that the poles were erected in his field. The accused

informed the complainant to visit his office with amount of

Rs.15,000/- on 20th May, 2010. The complainant was reluctant to pay

the said amount. He approached Anti-Corruption Bureau, (for short

"ACB") Satara. Complaint was lodged with ACB. It was decided to

lay trap.

f) On 20th May, 2010, panch witnesses were summoned by

Dy.S.P. Shri. Borate. The complainant was introduced to panch

witnesses. It was decided to verify the demand made by the accused

with complainant. The raiding party went to Aundh rest house.

Dy.S.P. Shri. Borate carried with him tape recorder and other articles.

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Instructions were given to the complainant. They reached the guest

house at about 13.00 hours. Complainant was instructed to record

conversation between him and accused in the tape recorder and

panch No.1-Dr. Hendre was instructed to hear the conversation.

g) Complainant and panch No.1 proceeded towards

M.S.E.D.C.L. office At Pusesavali. Accused was not present in the

office. He arrived in the office at about 2.30 p.m. The complainant

and panch met the accused in his office. Accused reiterated his

demand of Rs.15,000/- with complainant. The amount was

negotiated to the sum of Rs. 14,000/-. Complainant told the accused

that he would come in the office after some time for making

payment. The aforesaid conversation was made in the presence of

panch No.1 Dr. Hendre. Complainant and Dr. Hendre came to S.T.

stand where the vehicle was parked. Complainant handed over the

tape recorder to Investigating Officer Shri. Borate. They returned to

Aundh rest house. Demand verification panchanama was prepared.

Script of the conversation was prepared.

h) Complainant produced currency notes of Rs.14,000/-.

Anthracene powder was applied to the currency notes. Tape recorder

was handed over to the complainant. He was instructed to hand over

the bribe amount to accused on specific demand to that effect. The

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raiding party proceeded towards the office of the accused.

Complainant and panch No.1 went to the office of the accused.

Accused was present in the office. Two to three other persons were

also present in the office. The accused inquired whether the

complainant has brought the amount. Complainant took out currency

notes and tendered the same to the accused. It was accepted by the

accused. The raiding party rushed to the office of the accused. The

accused was apprehended. He took out the currency notes from his

pocket and placed them on the table. The amount was seized. All the

required procedure was completed. First Information Report (herein

after referred to as for short "FIR") was registered. Pre-trap

Panchanama and post-trap Panchanama were recorded. Statement of

witnesses were recorded. On completing investigation, charge-sheet

was filed.

3. Charge was framed against the appellant vide order

dated 17th December, 2011 for offences punishable under Section 7

r/w Section 13(2) of PC Act and Section 13(1)(d) r/w Section 13(2)

of PC Act.

4. The prosecution examined 5 witnesses. PW-1, Jagannath

Rajaram Mane is the original complainant. PW-2, Dr. Umesh

Purushottam Hendre is the panch witness No.1. PW-3, Pradip

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Manikrao Mate is the sanctioning authority. PW-4, Dipak Pandurang

Mohite is the eye witness was present in the office of accused. PW-5,

Laxman Mahadeo Borate is the Investigating Officer. The defence

witness has examined Rahul Sharad Kadam as defence witness No.1.

Statement of the accused was recorded under Section 313 of Cr.P.C.

The accused submitted his written explanation under Section 313 of

Cr.P.C.

5. The submissions urged on behalf of the appellant can be

briefly summarized as under :-

i) The appellant has been falsely implicated in this case.

The prosecution has failed to establish the charges beyond all

reasonable doubt.

ii) The case of the prosecution is that, pursuant to the

alleged demand of bribe, the complainant visited office of ACB,

Satara on 20th May, 2010 and lodged the complaint. The complainant

(PW-1) has admitted in the cross examination that he did not go to

Satara on 20th May, 2010. Thus, there is reason to believe that the

complaint is antedated. Its' contents are not proved beyond doubt.

The documents are creation of prosecution. PW-1 has admitted that

he did not execute any document at Satara on 20 th May, 2010. He did

not make signature on any document on 20th May, 2010. His version

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in the examination-in-chief that he had visited Satara on 20 th May,

2010 is incorrect. He also deposed that he gave evidence before the

Court as per documents prepared by him to prove the charge under

Sections 7 & 13 of the PC Act. The demand of bribe has to be

proved. PW-3 has admitted that no work was pending in the office of

accused. The evidence on record indicate that the accused had no

power or authority to issue 3-phase connection. The question of

demand of bribe by the appellant does not arise.

iii) The prosecution had allegedly conducted demand

verification. Conversation of demand was allegedly recorded in audio

cassette. The audio cassette was not played and proved in the

proceeding. It was not produced in the Court. There is no FSL report

to prove the audio recording. PW-1 has admitted that script of tape

recording was prepared in his absence. Accused was not present

when his voice sample was taken. He was not present when the voice

sample of the accused was taken. Thus, the tape-recorded evidence

and its script cannot be relied upon.

iv) The defence of the accused reflected in the statement

recorded under Section 313 of Cr.P.C. is that the complainant could

not have been present at Satara on 20 th May, 2010. He has relied

upon the documents such as charge-sheet in C.R. No. 4 of 2010.

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Panchnama dated 20th May, 2010 in C.R. No. 4 of 2010 and

statement of complainant in C.R. No. 4 of 2010 registered with

Aundh Police Station.

v) The Investigating Officer has admitted that there was no

document in connection with giving electricity connection to the

complainant found in the office of accused and all the papers were

lying at Aundh. The prosecution has not proved the demand beyond

doubt. The evidence of PW-2 would show that the accused never

demanded any money with complainant and it was the complainant

who was trying to voluntarily offering money without their being any

demand.

vi) The accused has explained vide written statement under

Section 313 of Cr.P.C. that he had never accepted currency notes. The

complainant entered into the office and threw currency notes on his

table. ACB officials entered into the office and forced him to pick

those notes from the table. Since the appellant refused to do so, they

assaulted him. The appellant sustained injury to his eye. The post

trap panchanama (Exh.28) records that there was scuffle and

spectacle of the appellant fell down and broken. The appellant had

sustained injury to his eye. Thus, the defence of the accused is

probable.

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           vii)     PW-1 has admitted that the accused did not demand any

amount at the time of verification. He also admits that there was no

demand at the time of trap.

viii) PW-4 is eye witness to the incident. He did not support

the case of the prosecution. He deposed that the currency notes were

thrown on the table. One person entered into the office and dropped

the cash amount on the table. There was no conversation between

the accused and said person. He also admitted that some persons

caught hold of accused and they were forcing him to collect the

amount dropped on the table.

ix) The appellant has examined defence witness. DW-1

admitted that PW-1 entered into the office and dropped currency

notes on the table. There was no conversation between the accused

and PW-1. He also stated that officials of ACB came inside the office

of the accused. They caught hold of the accused and forced him to

collect the currency notes. They assaulted the accused. The cross

examination conducted by the prosecution failed to demolish the

evidence of DW-1. It is the case of the prosecution that DW-1 was

present at the office of the accused. His statement was recorded

during investigation. He was listed as witness in the charge-sheet. He

was not examined by the prosecution.

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           x)       The appellant has rebutted the presumption under

Section 20 of PC Act. He has tendered explanation. The prosecution

has to establish the foundational facts for invoking presumption

under Section 20 of the PC Act.

xi) The sanction is invalid. PW-3 is examined as sanctioning

authority. His evidence would disclose that he was not empowered to

grant sanction to prosecute the accused. He was not the appointing

authority. He was not the removing authority. There is selection

committee for appointing sub-engineers. Accused was appointed as

per the second schedule and Service Regulation 2005. PW-3 has

admitted that he was one of the members of selection committee and

officers at Sr. Nos.1 to 4 were superior to him. Unless a candidate is

recommended by selection committee, he cannot appoint the

candidate. He admitted that removing authority cannot be inferior to

appointing authority. The selection committee had appointed the

accused and the selection committee could have accorded sanction

for prosecution.

xii) Proper procedure to record the tape-recorded

conversation and adducing evidence of tape-recorded conversation is

not followed by the prosecution.

xiii) The evidence of witnesses examined by the prosecution

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is doubtful and does not establish beyond reasonable doubt that the

appellant had demanded the bribe amount and accepted the bribe

amount.

xiv) PW-1 is retired Policemen. Prithviraj Ghorpade is

member of raiding team. There was conversation between Ghorpade

and PW No.1.

xv) Audio Cassette not played/produced and proved in

evidence. FSL report not produced conversation not proved.

6. Learned APP submitted that there is no infirmity in the

sanction order. The sanctioning authority was empowered to accord

sanction. PW-3 is appointing authority. Sanction is valid. The

cassettes regarding tape recorded conversation were deposited in the

trial Court. Report of FSL was received on 13 th January, 2013. PW-2

is independent witness. He has supported prosecution case. There is

no reason to discard his evidence. The evidence of PW-1 has to be

read with the evidence of PW-2. The prosecution has proved the

complaint, pre-trap panchanama, post-trap panchanama, script of

conversation. The prosecution has established that the appellant was

working as an assistant engineer in the office of M.S.E.D.C.L. had

demanded an amount of Rs.15,000/-. The amount was reduced to

Rs.14,000/-. The script of conversation supports the demand by the

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accused. The currency notes were found in the possession of the

accused. Anthracene powder was applied to the currency notes.

Anthracene powder was found on the clothes and hands of the

accused. The acceptance of the bribe amount has been established by

the prosecution. Thus, both the facts which constitutes the offences

under Sections 7 & 13 of the PC Act were established by the

prosecution. Some contradictions and minor discrepancies cannot

affect the prosecution case. The presumption under Section 20 of the

PC Act has not been rebutted by the defence. The trial Court has

assigned reasons for convicting the appellant. The evidence of PW-1,

PW-2, PW-3 and PW-5 is sufficient to convict the appellant. Hence,

appeal may be dismissed and the conviction may be confirmed.

7. I have scrutinized the evidence of the witnesses. PW-1 is

the complainant. He was working in Police department. He has

deposed that he owns property and had applied for electrical

connection. On his retirement he persuaded his application for

electricity connection. According to him, he visited office of

electricity department on 3rd April, 2010. He met accused. He

deposited the amount towards electricity connection in the

concerned department at Aundh on 12 th April, 2010. The accused

demanded the amount. He lodged the complaint on 20 th May, 2010.

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Trap was arranged. On instructions of ACB demand was verified. The

conversation was tape recorded. Amount of Rs. 14,000/- was handed

over by the complainant. Raiding party went to office of accused.

PW-1 and PW-2 went inside the office of accused. Two to three

persons were present in the office of the accused. Complainant

handed over the amount which was accepted by the accused. Raiding

party rushed to the office. Accused was apprehended. The tape

recorder given to him by PW-5 at the time of trap was checked and it

was found that conversation was not recorded, since he could not

operate the tape recorder at the time of trap. Original application

made by PW-1 for getting electricity connection in the year 2001 was

not traced in the office of accused. In 2006 he made another

application for electricity connection. In the cross examination he

stated that Exh.19 (Application for supply of electricity) does not

bear the date on which the application was made. There is

endorsement on the application that it was received by the office on

20th April, 2006. On the date of complaint, he had gone to his field.

Some persons were found committing theft of copper. The accused

had appreciated the effort of complainant to apprehend thieves. The

distance between his village Rajache-Kurle and Pusesavali is 5 km.

The field where the incident had taken place was at the distance of

about 3 km. from his house. Accused were taken to Police Station

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and panchanama was prepared. Statement of complainant was

recorded in the theft case. Thereafter, he went home. Ramchandra

Mane and Sahebrao Mane had acted as panchas in theft case. He

admitted that he did not go to Satara on 20 th May, 2010. He did not

sign any document on 20th May, 2010. His conversation in the

examination-in-chief that he had been to Satara on 20 th May, 2010 is

incorrect. He gave evidence before the Court as per documents

prepared by the prosecution. Script of tape was prepared in his

absence. His voice sample was taken on 20 th May, 2010. Accused was

not present when sample of voice was taken. He was not present

when the voice sample of accused was taken. When he entered into

the office on 20th May, 2010, two to three persons were sitting in the

office of the accused. He told the accused that he has brought the

money as per demand and kept the currency notes on his table. He

gave signal. Accused made no signal at the time of demand

verification. Accused had not demanded bribe on 20 th May, 2010 at

the time trap and he himself put the amount on the table. Hands of

the accused were not examined in his presence by ACB. He was

annoyed since despite making application 10 years ago electricity

connection was not given to him. Accused did not send letter for

taking electricity poles from Vadgaon to Rajache-Kurle.

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8. Thus, the conversation of the complainant (PW-1)

reflected in examination-in-chief as well as in cross examination does

not inspire confidence to believe the case of the prosecution. The

case of the prosecution is that complainant was lodged on 20 th May,

2010. The complainant has categorically denied that he has visited

Satara on the day of lodging complaint. He has also stated that he

has not signed the complaint or any other document on 20 th May,

2010. He has also stated that accused did not make any demand at

the time of trap. The conversation was not recorded, on account of

failure in operating the tape recorder. The most serious discrepancy

in the evidence is that PW-1 has admitted that accused did not

demand the amount and he himself kept the amount on the table.

9. PW-2 is the panch witness. He has stated that he was

accompanying PW-1. He has referred to verification panchanama and

the script of conversation. His evidence is contradictory to PW-1.

According to him he was summoned to act as panch witness. The

second panch witness has not been examined. He deposed that,

PW-5 had decided to verify the grievance of complainant. PW-1 and

PW-2 went to Pusesavali. Instructions were given to him. Tape

recorder was given to PW-1. They walked to the office of

M.S.E.D.C.L. Accused was not present in the office. They waited. The

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accused came to office. The complainant inquired with the accused

about electricity supply. The complainant asked the accused to state

exact figure of amount which he was supposed to give him. The

accused told him to reduce the amount to Rs.14,000/-. The

complainant promised that he would comply the demand. Thereafter,

PW-1 & PW-2 returned to the rest house. Tape recorder was handed

over to PW-5. Conversation was heard by PW-5. It was reduced to

writing. Panchanama was prepared. Script was prepared. The

amount was accepted by the accused and he kept it in his pocket.

Tape recorder was given to the complainant. When they went to the

office of the accused, they found that two other persons were sitting

in the office. The accused inquired whether the complainant had

brought the amount. The accused took the amount and kept it in his

pocket. Signal was given to raiding party. Accused was apprehended.

The accused took out currency notes from his pocket and kept the

same on the table. He was apprehended. The notes were recovered.

Post-trap panchanama was recorded. Shri. Mohite and Shri. Kadam

were present at the office of the accused. In the cross examination he

deposed that he was serving as medical officer in Civil Hospital at

Satara. He is not facing any cases or departmental inquiry. He

conducts post-mortem examination. News was published in the

newspaper on 21st September, 2012 regarding post-mortem of Nilesh

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Dhale. CBI inquiry was sought in that regard for giving report of

cause of death of deceased Nilesh Dhale. PW-2 had conducted the

post-mortem. The dead body was again examined by committee and

they had given different opinion. He deposed that Shri. Mohite and

Kadam were present at the office of the accused. After making entry

in the office by the raiding party, the currency notes were taken out

by the accused and kept on the table. Till then he was not detained.

Shri. Kadam and Mohite were present in the office at the time of the

above events. From the evidence of this witnesses it can be seen that

he has referred to the presence of Kadam and Mohite. Dipak Mohite

has been examined by the prosecution as PW-4. Rahul Kadam was

not examined by the prosecution. He has been examined as defence

witness by the accused. According to him the amount was kept on

the table by the accused after raiding party had entered in the office.

Thus, Dipak Mohite, Rahul Kadam are the alleged eye witnesses to

the incident of demand and acceptance of the bribe. PW-2 has

admitted that the entire incident had occurred in their presence.

Their statements were recorded during investigation. PW-4 has not

supported prosecution. Rahul Kadam has supported the defence. The

question is whether the version of PW-2 can be accepted as gospel

truth. The entire case of the prosecution lacks confidence. It is

doubtful.

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10. PW-4 Dipak Mohite was working as clerk in M.S.E.D.C.L.

Undisputedly, he was present in the office of the accused at the time

of incident. Thus, PW-4 is prosecution witness. He deposed that on

20th May, 2010 accused and Rahul Kadam were present in the office.

Accused was sitting on the chair. He was sitting towards left side of

the chair. One person entered into the office. He dropped the cash

amount on the table of the accused and soon thereafter he left the

office. It did not happen that there was conversation between that

person and the accused. The theory of the amount being kept on the

table is emanating from the evidence of PW-2, PW-4, PW-5 and DW-

1. According to PW-2 the amount was removed from the pocket by

the accused and kept it on the table. According to PW-4, the

complainant kept the amount on the table. PW-5 stated that accused

was frightened and he took out tainted currency notes from pocket

and put the same on table. DW-1 deposed that complainant dropped

the amount on the table. PW-4 was declared hostile and cross

examined by the prosecution. In the cross examination he stated that

the Rahul Kadam was sitting in the office. He denied all the

suggestions of the prosecution and his evidence was consistent with

his examination-in-chief. In the cross examination by the defence, he

has stated that the accused was assaulted by raiding party. They were

insisting he accused should collect the amount dropped on the table.

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While assaulting his spectacle fell on the ground and he sustained

injury to his eye. The accused collected the cash amount and handed

over the same to the raiding party.

11. PW-3, Pradip Mate, was Chief General Manager. He had

accorded sanction for the prosecution of the appellant. He admitted

that there are various departments in the company i.e. Technical,

General, Commercial, Distribution Section, Disciplinary Action Cell,

Store section and Vigilance Section. Each department is headed by a

separate officer. There is selection committee for appointing Sub-

Engineers. Accused was appointed as per the second schedule,

column No.(c) of M.S.E.D.C.L., Service Regulation, 2005. The

members of selection committee are directors concerned who also

act as chairman of committee. Executive director (H.R.) executive

director (C.S.C.), Chief Engineer, C.G.M. personnel and C.G.M.

Technical are the other members of selection committee. He was one

of the member of the selection committee at Sr. No.7. Officers at Sr.

Nos. 1 to 4 are superior officers than him. He cannot appoint a

selected candidate unless he is recommended by selection

committee. Removing authority cannot be inferior to appointing

authority. Accused was selected in M.S.E.B. as Sub-Engineer. He is

not aware of the Rules under which the accused was selected. He did

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not feel it necessary to obtain the approval of selection committee

before according sanction to prosecute accused. No work of

complainant was pending in the office of accused till accused

receives release order from Sub Division Office. Although he stated

that there is document to the effect that; two poles were erected as

per order issued by accused, he did not produce such document.

12. PW-5, Laxman Borate is the Investigating Officer. He has

reiterated the version of the complainant and other witnesses. He

stated that there were two persons inside the office and those were

Kadam and Mohite. PW-2 narrated the event of acceptance of bribe.

Accused removed money and kept in on table. Statements of Mohite

and Kadam were recorded. Natural voice of the accused was taken.

Natural voice of the complainant was recorded on 24 th May, 2010.

According to him, accused was trying to escape and in that attempt

his spectacles fell down and eh suffered injury below his left eye.

Kadam and Mohite were asked to leave the office. Accused disclosed

that all relevant documents were sent by him to Aundh office. He

sought sanction for prosecution of the accused. After obtaining

sanction order, he filed charge-sheet. In the cross examination he

stated that generally call details are collected from the same

company in respect of conversation between accused and

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complainant. In the charge sheet there is no letter sent by them

seeking call details from the cell company. There was conversation

between accused and complainant prior to the incident. He did not

collect the call details about the said conversation. Demand

verification panchanama was made on 20 th May, 2010. It was typed

on computer. The date is mentioned in the panchanama (Exh.25)

with pen and handwriting. The demand verification panchanama

was typed on computer. The date was wrongly mentioned earlier in

Exh.25 and the whitener was applied on the date and thereafter, the

date was corrected by pen. No initial of public servant is made at the

place of correction. There is over writing in the FIR (Exh.15)

regarding the date. The distance between ACB office Satara and

Aundh is 30 km. The distance between Aundh to Pusesavali is 10

Km. The distance between Pusesavali to Rajache-Kurle is 3 km.

Accused was medically examined. Certificate was issued by medical

officer. Not a single paper regarding electrical connection of the

accused was found in the office of accused and all those papers were

lying at Aundh office. He collected those papers from Assistant

Engineer from Aundh Office. It was not confirmed by him whether

the complainant had any work in the office of the accused. It was not

confirmed by him whether accused was empowered to give three-

phase connection He was not aware whether accused was

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empowered to give three phase connection. He made no such

inquiry in the office of M.S.E.D.C.L. regarding procedure of giving 3-

phase connection. Pruthviraj Ghorpade is serving in ACB as

constable. He was member of raiding party. There was no trace of

anthracene powder on the other articles of the accused. Table was

not examined through ultra violet rays. Nothing was transpired from

the examination of mobile handset of the accused.

13. The defence has examined DW-1 Rahul Kadam as

defense witness. It is not disputed that he was present in the office of

the accused at the time of raid. He is eye witness to the incident. His

statement was recorded as witness by the Investigating Officer. He

was not examined by the prosecution. He stated that he was present

in the office of the accused. Mohite came in the office of the accused.

The complainant came in the office of the accused. He dropped

currency notes on the table of the accused. He was knowing PW-1.

He came alone in the office of the accused. After dropping currency

notes he left the office. There was no conversation between accused

and complainant. Thereafter, 5 to 6 officials came inside the office of

the accused. They caught the accused. They asked the accused to

collect currency notes from the table. He refused to do so. He was

assaulted. The spectacle of the accused was broken. He suffered

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injury near eye. Accused was assaulted by fist blows. Accused

collected the money from the table. He was cross examined by the

prosecution. However, the cross examination could not demolish his

version.

14. On scrutiny of the evidence as it can be seen that there

are several discrepancies in the evidence of the prosecution. In the

light of the nature of evidence it will have to be concluded that the

prosecution has failed to prove this case beyond all reasonable doubt.

The statement of the accused was recorded under Section 313 of

Cr.P.C. He has also submitted written submission in support to his

version under Section 313 of Cr.P.C. His defence is supported by the

evidence on record. The complainant himself has stated that he did

not visit Satara on 20th May, 2010. The complaint was lodged on 20th

May,2010. The complainant also stated that conversation could not

be recorded in the tape recorder. It is also pertinent to note that

audio cassette was not produced in the Court. The FSL report was

not proved in evidence. There is discrepancy in collecting the voice

sample of the accused and the complainant. It is difficult to rely upon

the script of conversation. The law relating to the requirement of

proving the demand of bribe is will settled. In the case of State of

Maharashtra V/s. Dnyneshwar Laxman Rao Wankhede 2010 (2) SCC

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(Cri) 385, it is held that demand of illegal gratification is sine qua

non to constitute offence under the PC Act. For arriving at conclusion

as to whether all ingredients of illegal gratification, viz. demand,

acceptance and recovery have been satisfied or not, facts and

circumstances brought on record must be considered in their entirety.

Presumptive evidence as laid down under Section 20 must also be

considered, but in respect thereof, it is trite law that, standard of

burden of proof on accused vis-a-vis standard of burden of proof on

prosecution would differ. Even in case where burden is on accused,

prosecution must prove foundational facts. Before calling an accused

to explain as to how amount in question was found in his possession,

foundational facts must be established. While invoking provisions of

Section 20, explanation offered by accused, if any, is required to be

considered only on touchstone of preponderance of probability, and

not on proof beyond all reasonable doubt. This view has been

reiterated in several decisions. It is not necessary to refer all the

other decisions relied upon by the learned counsel for the appellant.

15. The discrepancies in the evidence which creates doubt

about the authenticity of the prosecution case can be summarized as

under :-

a) The case of the prosecution is that, complaint of PW-1

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was recorded by ACB on 20 th May, 2010. However, PW-1 admitted

that he had did not go to Satara on 20 th May, 2010. The complaint

was recorded at the office of ACB Satara. Apparently, complaint is

antedated. It creates doubt about genuineness. PW-1 has admitted

that not a single document was executed by him in Satara on 20 th

May, 2010. He did not make signature on any documents on 20 th

May, 2010. In the cross examination he stated that his conversation

reflected in examination-in-chief that he had been to Satara on 20 th

May, 2010 is incorrect.

b) PW-3 states that there was no work pending in the office

of the accused. His evidence gives an impression that accused did not

possesses power or authority to issue three-phase connection. PW-1

has admitted that on the date of trap there was no work pending

with the accused.

c) Prithviraj Ghorpade was the member of raiding party.

There was conversation between PW-1 and Mr. Ghorpade. PW-1 has

admitted that he spote to Mr. Ghorpade on 20th May, 2010. PW-1

furnished mobile number of Mr. Ghorpade. C.D.R. of PW-1 and Mr.

Ghorpade was not collected. PW-1 was acquainted with Mr.

Ghorpade and there is every possibility that he had influenced with

ACB.

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           d)       According to prosecution, it was decided to verify the

demand made by the accused. The conversation of demand was

recorded in audio cassette. The audio cassette was not played. It was

not produced. It was not proved in evidence. FSL report is not on

record. PW-1 admitted that script of the tape was prepared in his

absence. He was not aware of the date on which the voice sample of

the accused was taken. The accused was not present when the voice

sample of PW-1 was taken and similar PW-1 was not present when

the voice sample of the accused was taken.

e) Learned counsel for the appellant relied upon the

decision of Supreme Court in the case of Ram Sing and Others V/s.

COL. Ram Sing 1985 (Supp) SCC 611. In the said decision the

Supreme Court has observed as follows :-

"32. Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows :-

(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

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         (2)        The accuracy of the tape-recorded statement has to

be proved by the maker of the record by satisfactory evidence - direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."

f) Reliance is also placed on the decision of this Court in

the case Devidas V/s. State of Maharashtra 2020 SCC Online, BOM

1041 in Paragraph -25 of the said decision it was observed as

follows :-

"25. Here in this case, though the CD's were produced, voice sample of the accused was also taken and the certificate of the expert was also taken, yet, as aforesaid it cannot be said as complete evidence in the form of electronic record, as voice sample complainant and panch No.1 was not taken and was not got compared/verified from the expert. Further, the said conversation was not played in Court room at the relevant time during the proceedings. Mere production of the extract of the recorded version

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or even such verification of voice of the accused only is not sufficient. Each time when the conversation has been reproduced, it is stated that it has been got verified from the recorded conversation, then even before the trial Court it ought to have been produced and proved by admissible mode."

g) In Ziyauddin Burhanuddin Bukhari V/s. Brijmohan

Ramdas Mehta (1976) 2 SCC 17 : AIR 1975 SC 1788 it was observed

that the tape-records of speeches were 'documents', as defined by

Section 3 of the Evidence Act and they were admissible in evidence

on satisfying the ground that the voice of the person alleged to be

speaking must be duly identified by the maker of the record or by

other who know it. Accuracy of what was actually recorded has to

be proved by the maker of the record and satisfactory evidence,

direct or circumstantial, had to be there so as to rule out possibilities

of tampering with the record. The subject matter relevancy recorded

had to be shown to be relevant according to rules of relevancy found

in the Evidence Act.

h) The Court overlooked Rules for production, use and

recording of the Tape-Recorded Evidence in Court incorporated in

Criminal Manual issued by the High Court of Bombay which reads as

follows :-

"24. The Honourable the Chief Justice and Judges, with the previous approval of the Governor under Article 227 of

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the Constitution of India, are pleased to make the following rules regarding recording of the tape-recorded evidence in Court :

(1) These Rules may be called the Rules for the production, Use and Recording of the Tape-Record Evidence in Courts.

(2) These Rules came into force with effect from 1 st August, 1978.

(3) The party producing the tape recorded evidence shall also produce the transcript of the tape record along with the tape.

(4) The Court or its authorised officer who is to accept the tape should accept only such tapes as are under the seal of the party producing them.

(5) Court or such officer shall hear the tape record in order to verify whether the transcript produced alongwith the tape is correct or not and endorse such verification on the transcript record under his signature with date.

(6) The tape shall be kept in safe custody in a cover under the seal of the Court. In case the tape is replayed or the seal is broken for any reason, the tape shall be re- sealed.

(7) The Notice of production of the tape together with the transcript shall be served on the other side through the Court.

(8) Any party to the proceeding may apply to the Court to hear the tape record.

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           (9)      The tape-record would be played within the hearing

and sight of an officer appointed by the Court for that purpose and as far as possible in the presence of the other side or its Advocate. The Court on receipt of application may grant the necessary permission. However, the tape shall ordinarily not be played on 3rd or 4th occasion, unless the Court specifically permits hearing of the same. The Court while granting such permission should bear in mind that repeated use and play of the tape may affect the tape and its audibility. The Court may also permit any party to record the voice on the tape, produced in Court, on another tape.

(10) Every Court shall maintain a record showing as to how, when and why the seal of the tape-record was opened and when the tape-record has been resealed. Such record shall be kept in the proceedings alongwith the tape record and its transcript.

(11) The tape in a sealed cover together with its transcript shall be given a separate exhibit.

(12) In Criminal cases where appeal lies to the High Court and when the tape record is not in English, either, wholly or in part, the transcript must be accompanied by an agreed or official English translation of the said transcript or part thereof, as the case may be.

(13) In case of discrepancy or doubt, the Court may direct the tape to be replayed and the transcript record shall be corrected if the Court so directs.

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(14) While preparing the paper book for appeal to the High Court the Lower Court shall include therein the transcript in English under Rule 12, and a copy of record referred to in Rule 10 above.

(15) The rules as to the production, preservation and destruction of the Court record should mutatis mutandis apply to the tapes.

(16) The above rules (Rules Nos.1 to 15) are framed for guidance of the Courts and they should be followed as far as possible and subject to the provisions of the Evidence Act and Code of Civil Procedure."

i) Considering the fact that neither tape-recorder nor

cassettes, FSL Report was proved in the trial which indicate that the

prosecution has suppressed genesis of the prosecution case and the

evidence.

j) PW-5 has admitted that it had transpired during

investigation that there was conversation between the accused and

the complainant prior to the incident, however, he did not feel it

necessary to collect call details of the conversation.

k) The Investigating Officer admit that not a single paper in

connection with the granting electrical connection to complainant

was found in the office of the accused and all the papers were lying

at Aundh. It was not confirmed by him that the accused was

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empowered to give three-phase connection.

l) The prosecution has not been able to prove the demand

of bribe by the accused beyond all reasonable doubt. The evidence of

witnesses would disclose that accused have not made any demand of

money and the complainant was trying to offer money without their

being demand. Learned counsel for the appellant has relied upon the

Judgment of this Court in the case of Ramesh Ramdas Vaidya V/s.

State of Maharashtra - 2004 ALL MR (Cri.) 611.

m) Reliance is also placed on the Judgment of the Supreme

Court in the case of Ramjanam Singh V/s. The State of Bihar - AIR

1956 SC 643 and another decision of this Court in the case of Yuvraj

S/o. Chintaman Selokar V/s. State of Maharashtra - 2012 ALL MR

(Cri.) 2921. These decisions deals with the requirement of demand

made by the accused to convict him for offences under the PC Act.

n) PW-1 in his cross examination admits that signatures of

the panchas were taken on the panchanama on 22 nd May, 2010. This

has to be along with the evidence of PW-5, investigating officer, in his

cross examination, admits that the date on demand verification

panchanama was wrongly mentioned and hence, whitener was

applied and thereafter, date was mentioned. He further admits that

there was no initial of any public servant made at the time of

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correction of the date. Thus, it is clear that demand verification

panchanama seems to be a tampered document and possibility of the

same being anti-dated document cannot be ruled out. Thus,

verification panchanama was a very important document and the

fact that it was tampered, as also the fact that the complainant

admits that all panchanamas were signed on 22 nd May, 2010 goes to

the root of the matter. The prosecution has not been able to prove

the case beyond reasonable doubt and hence, the appellant deserves

to be acquitted.

o) That on the point of acceptance, the accused in his

written statement recorded under Section 313 of the Criminal

Procedure Code, has given a specific explanation and he has stated

that he has never accepted notes and he categorically stated that the

complainant entered into the office and threw currency notes on his

table. ACB officials entered into the office and forced him to pick up

those notes from the table. Since the Appellant refused to do so, they

beat him as a result of which the Appellant sustained an injury to his

eye. At this juncture, a useful reference can be made to the post trap

panchanama, Exhibit, 28, the panchanama records that there was a

scuffle in which spectacle of the Appellant fell down and broke as

also the fact that he sustained an injury to his eye.

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           p)       Thus, the defence of the accused seems to be

probablized from the document which is relied upon by the

prosecution and it was adduced in evidence by the prosecution. The

complainant, PW-1 has admitted that the accused did not demand

any amount at the time of verification and he also admits that there

was no demand at the time of trap, but he himself put the notes on

the table. PW-4 is an eye witness to the incident and he did not

support the case of the prosecution. In fact, in his examination-in-

chief, he stated that the notes were thrown on the table. He also

states in his examination-in-chief that one person entered into the

office and the said person dropped cash amount on the table of the

accused and he left the office. He has stated in his examination-in-

chief that it did not happen that there was conversation between the

accused and that person. PW-4 was cross examined by the deference

and in paragraph - 7 of his cross examination he has admitted that

some persons caught hold of the accused and 3 to 4 persons asked

the accused to collect the amount dropped on the table and to hand

over the same.

q) The appellant has further stated that ACB officials forced

him to collect the notes which were lying on table and upon his

refusal, he sustained injury to his eye and his spectacle was broken.

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The defence then examined Rahul Kadam as DW-1 and he, in his

examination-in-chief has admitted that PW-1 entered into the office

of the accused and dropped currency notes of denomination of

Rs.500 on the table of the accused. He has further stated that there

was no conversation between the accused and PW-1. He has also

stated that 5 to 6 officials came inside the office of the accused,

whom he later on came to know that those were persons of ACB. He

categorically states that 2-3 officials caught hold of the accused and

he was asked to collect the currency notes from the table and hand

over the same. When the accused denied to collect those currency

notes, they started beating the accused, as a result of the assault the

spectacle of the accused was broken and he suffered an injury near

his eye. The evidence of this witness, DW-1 remained unshattered in

cross examination by the learned Additional Public Prosecutor and

the evidence as regards the acceptance of money has gone

unchallenged.

r) In the case of Dudhnath Pandey V/s. State of U.P. (1981)

2 SCC 166 the Apex Court has held that,

"Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies but so do

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the prosecution witnesses."

s) That while invoking the provision of Section 20 of the

PC Act, Court is required to consider the explanation offered by the

accused on the touch-stone of preponderance of probability.

However, before the accused is called upon to explain, foundational

facts are required to be established by the prosecution. Herein, the

present case, the prosecution has not be able to prove the demand

beyond reasonable doubt. Moreover, the defence has raised not only

probable defence through cross-examination of the witnesses and the

documents relied upon by the prosecution; but also while leading

positive evidence of (DW-1) to establish the fact that indeed, there

was no acceptance of money.

t) That the bare perusal of Exh. 50 also records that there

was a scuffle and the accused had sustained an injury and his

spectacle fell down and was broken. Thus, there were two

prosecution documents which record that there was scuffle as also

the fact that the appellant sustained an injury and breaking of his

spectacles.

16. In the light of the aforesaid facts, it cannot be said that

the prosecution has proved its case beyond all reasonable doubt and

hence, the conviction of the appellant is required to be set aside.

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Validity of sanction is debatable issue. I am not adjudicating on it.

The applicant is otherwise entitled to be acquitted on merits of case.

17. Hence, I pass the following order :-

ORDER

i) Criminal Appeal No. 793 of 2013 is allowed.

ii) Impugned order dated 20th June, 2013 passed by the learned Special Judge and Additional Sessions Judge Vaduj, in Special Sessions Case No. 15 of 2010 convicting the appellant for the offence under Section 7 of PC Act and sentenced him to suffer imprisonment and fine as well as convicting him for offence under Section 13(1)(d) of PC Act punishable under Section 13(2) of the PC Act and sentencing him to imprisonment and fine is set aside and the appellant is acquitted for the said offences.

iii) The appeal stands disposed of accordingly.

                                               (PRAKASH D. NAIK, J.)




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