The State Of Maharashtra vs Arun Mahadeo Hadke
2021 Latest Caselaw 7785 Bom

                                           1/5                           13. apeal-31-07.doc




                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.31 OF 2007


The State of Maharashtra                    )         ..Appellant

         V/s.

Arun Mahadeo Hadke                          )
Age-34 years, Occu:- Service,               )
R/o - Nasrapur, Tehsil- Bhor,               )
District - Pune                             )         ..Respondent
                                                      (Orig. Accused)

Ms Anamika Malhotra, APP for State
None for Respondent

                                       CORAM : K.R.SHRIRAM, J.

DATED : 11th JUNE 2021

ORAL JUDGMENT.:-

1 This is an appeal impugning an order and judgment dated 21 st April

2005, passed by Special Judge, Pune, acquitting respondent of the offence

punishable under Section 7 and 13(1)(d) read with Section 13(1)(2) of

Prevention of Corruption Act, 1988.

2 Though learned APP tried to convince the court on the merits of the

appeal, had to agree when the court pointed out that there was nothing to

assail the order of the Trial Court.

The allegation was complainant (P.W.-1) when he wanted an entry in

the revenue record in respect of the well that he had made in his land the

accused demanded bribe. But the complainant himself has admitted that

there was no application in writing for making such entry, in the complaint

Meera Jadhav

2/5 13. apeal-31-07.doc

to ACB. Complainant says he made such application but no such application

has been produced. In the cross-examination, complainant has admitted

that he had not filed any written application for making entry in the 7/12

extract. Complainant has also admitted that before making entry, the

Tahsildar and Gramsevak visit the spot and prepare panchnama but in this

case no such visit for preparing the panchnama was even made. Therefore,

the motive alleged for the demand and acceptance of bribe itself has to fail.

3 Another glaring error is that the demand was made on 16 th July 2001

and the amount was to be paid on 21 st July 2001 and complaint was filed on

21st July 2001, i.e., on the date of trap. But the pre-trap panchnama Exhibit

14 mentions that panch witness has visited the office of ACB on 19 th July

2001 and they were asked to come to ACB office on 21st July 2001. If

complaint itself has been filed only on 21st July 2001, I wonder how the

panch witnesses were called on 19th July 2001, even before the receipt of

the complaint.

4 Panch witness (P.W.-2), who had accompanied complainant, admits in

his cross-examination that accused did not make any demand or reiterate

the demand of bribe before issuing any 7/12 extract. In his cross-

examination, panch witness (P.W.-2) admits that till issuance of 7/12 extract

and additional copy thereof, there was no demand of bribe. Apart from

complainant and panch witness, the only other witness examined was the

sanctioning authority (P.W.-3).

5 Interestingly and which is a main dent in the case of prosecution is

Meera Jadhav

3/5 13. apeal-31-07.doc

that the Investigating Officer was never examined. Illustration (g) of

Section 114 of the Indian Evidence Act, 1872 provides the Court may

presume that evidence which could be and is not produced would, if

produced be, unfavourable to the person who withholds it. The fact that the

Investigating Officer also has not been examined would show that if

examined, his evidence would have been unfavourable to complainant. Non

examining the Investigating Officer as a witness in the circumstances of the

case would have caused grave prejudice to the accused. The Apex Court in

Habeeb Mohammad V/s. The State of Hyderabad 1 observed that it was the

bounden duty of the prosecution to examine the Investigating Officer, who is

a material witness in the case particularly when no allegation was made that

if produced, he would not speak the truth and in any case, the Court would

have been well advised to exercise its discretionary powers to examine the

witness.

6 Therefore, adverse inference arises against the prosecution's case from

its non production of the Investigating Officer as a witness in view of

illustration (g) to Section 114 of the Indian Evidence Act. The Investigating

Officer is the principal architect and executor of the entire investigation. He

is a crucial witness for purposes of establishing that there are omissions and

contradictions but more importantly, it is always open to the defence to

question the honesty and caliber of the entire process of investigation. It is

well settled law that where an investigation is defective, insufficient or

AIR 1954 SC 51

Meera Jadhav

4/5 13. apeal-31-07.doc

dishonest, those factors prove fatal to the prosecution. In the given instance,

the accused was totally precluded from an opportunity of being able to

establish the further infirmities in the prosecution's case and on this ground

alone, the order of acquittal will have to be confirmed.

7 I have perused the impugned judgment, considered the evidence and

also heard Ms Malhotra. I do not find anything palpably wrong, manifestly

erroneous or demonstrably unsustainable in the impugned judgment. From

the evidence available on record, there is nothing to substantiate the charge

leveled against accused.

8 There is an acquittal and therefore, there is double presumption in

favour of accused. Firstly, the presumption of innocence available to

accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless they are proved guilty

by a competent court of law. Secondly, accused having secured his acquittal,

the presumption of his innocence is further reinforced, reaffirmed and

strengthened by the Trial Court. For acquitting accused, the Trial Court

rightly observed that the prosecution had failed to prove its case.

9 In the circumstances, in my view, the opinion of the Trial Court cannot

be held to be illegal or improper or contrary to law. The order of acquittal,

in my view, need not be interfered with.

10       Appeal dismissed.

11       The Government/Appropriate Authority shall pay over to respondents,

within a period of 30 days from the date of receiving a copy of this order, all

Meera Jadhav

5/5 13. apeal-31-07.doc

pensionary or other benefits/dues stalled, in view of pendency of this

appeal. If during the service, in view of this matter, the promotions or

increments of the accused have been affected, the concerned Authority/

Department will pay, proceed and calculate on the basis that there was no

such matter ever on record against the accused and will factor in all

promotions and increments that accused would have been entitled to and all

the amounts shall be accordingly paid within 30 days.

After 30 days interest at 12% p.a. will have to be paid by

Government/Appropriate Authority to respondent.

No authority shall demand certified copy for reimbursing the benefits/

dues as directed above. All to act on authenticated copy of this order.

Certified copy expedited.

(K.R. SHRIRAM, J.)

Meera Jadhav