Vijay Kumar Sharma vs Central Bureau Of Investigation ...
2021 Latest Caselaw 5072 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                  CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO. 1147 OF 2012

Vijay Kumar Sharma
Aged about 36 years, Occ. Service,
Residing at Flat No.10,
Delhi Government Officer's Flats
GK-1, New Delhi                                 ... Appellant

            Vs.

1     Central Bureau of Investigation
      Tanna House, House Road,
      Colaba, Mumbai - 5

2     The State of Maharashtra                  ... Respondents

Mr.Girish Kulkarni i/b. Mr.Mandar Goswami for Appellant.
Ms.Ameeta Kuttikrishnan i/b. Mr.S.R. Shinde for Respondent No.1.
Mr.Amit Palkar, A.P.P. for Respondent No.2-State.


                                 CORAM          : A. S. GADKARI, J.

                            RESERVED ON         : 11th DECEMBER, 2020
                        PRONOUNCED ON           : 22nd MARCH, 2021.


JUDGMENT:-

Appellant has questioned correctness of Judgment and Order

dated 27th September 2012, passed in Special Case No.1 of 2006, by the

learned Special Judge, Dadra and Nagar Haveli, Silvassa, thereby convicted

him and sentenced to suffer rigorous imprisonment for three years and to

pay a fine of Rs.10,000/- in default of payment of fine, to further suffer

rigorous imprisonment for three months for the offence punishable under

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Section 7 of the Prevention of Corruption Act, 1988 (for short, "the P.C.

Act") and also sentenced to suffer rigorous imprisonment for three years

and to pay fine of Rs.15,000/-, in default of payment of fine to further

suffer rigorous imprisonment for 6 months for the offence punishable under

Section 13(2) read with 13(1)(d) of the P.C. Act. The Trial Court has

directed that, both the sentences shall run concurrently.

2 Heard Mr. Kulkarni, learned counsel for the Appellant, Ms.

Kuttikrishnan, learned counsel for the Respondent No.1-CBI and Mr. Palkar,

learned APP for the Respondent No.2-State. Perused entire record.

3 The prosecution case in brief is as under :-

(i) The Complainant (PW-1), Altaf Gulamali Khutliwala was

conducting construction business at Silvassa, 10 to 12 years prior to date of

lodgment of the present crime. Complainant knew Mrs. Khatija Masani, a

resident of Mumbai, who owned land bearing Survey No.24/2/1

admeasuring about 1 hectare situated at village Khanvel. In the year 2004,

the Complainant was intending to purchase the said land of Mrs. Khatija

Masani in the name of his mother Smt. Gulshan Gulamali Khutliwala. An

Agreement of Sale was executed by Mrs. Khatija Masani in favour of his

mother Smt. Gulshan Khutliwala. Complainant thereafter, filed an

Application in the name of his mother for conversion of use of the said land

for non-agricultural (N.A.) purpose and for permission to purchase the

land, in the office of Mamlatdar, Silvassa. His Application was processed in

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the concerned office and thereafter, it was forwarded to Resident Deputy

Collector (for short, "RDC") for his comments. The Appellant was then

serving as RDC at Silvassa and was also holding additional charge of post of

Assistant Commissioner, Sales Tax, Silvassa. On 30 th March 2005,

Complainant met Appellant in his office at Silvassa and made inquiry about

his file. At that time, the Appellant asked him to pay an amount of

Rs.1,75,000/- as bribe for granting N.A. permission. Appellant told

complainant that, his application would not be allowed in case he fails to

pay the amount of Rs.1,75,000/- to him. Appellant also told the

Complainant that, he had to provide money to his higher officers i.e.

Collector, Administrator and Finance Secretary. Complainant then asked

Appellant to give him two days time for thinking over his proposal.

(ii) As the Complainant was not intending to pay bribe amount to

the Appellant, he approached CBI, ACB, office at Tanna House, Mumbai.

He approached Shri. Jadhav, then Superintendent of Police, ACB, Mumbai

and narrated his grievance to him. Appellant also filed his written

Complaint (Exh-38) dated 31st March 2005, before Shri. Jadhav in his own

hand writing. Shri. Jadhav, then called Shri. Kulkarni, P.I., ACB, CBI (PW-4)

in his chamber and informed him about the grievance of Appellant and

directed him to take appropriate steps on his Complaint. Appellant then

narrated his grievance to Shri. Kulkarni orally. Shri. Kulkarni then told him

that, he would meet Complainant at Silvassa on the next day. Shri. Kulkarni

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informed Complainant that, he would make phone call to him on his arrival

at Silvassa. Complainant thereafter returned back to Silvassa.

(iii) On the next day i.e. on 1st April 2005, in the morning, the

Complainant received phone call from Shri. Kulkarni, P.I., ACB. He

informed Complainant that, he had arrived at Silvassa and called him in

Hotel Green Wood at Silvassa. Complainant went to Hotel Green Wood and

met Shri. Kulkarni. Members of the raiding party and two panch witnesses

were accompanying with Shri. Kulkarni. Complainant was introduced to

them as Shri. M.K. Karanje (PW-2) and Shri. Ramesh Sumra, the panch

witnesses. Complainant narrated his grievance to the panchas. The panch

witnesses verified his grievance with the contents and written Complaint

(Exh-38) and thereafter, they put their signatures on it. Complainant orally

narrated the panchas that, the Appellant had demanded bribe of

Rs.1,75,000/- from him for processing his file for granting permission to

use the land for N.A. purpose and for permission to purchase the said land.

That, the Complainant had no monetary business transaction with the

Appellant. Thereafter, Shri. Kulkarni, P.I., ACB, decided to verify the

correctness of the Complaint. Shri. Kulkarni, then asked the Complainant to

approach Appellant in his office on that day along with one of the panchas.

Shri. Kulkarni, then showed demonstration of operation of tape-recorder, its

working and to record conversation in it. Shri. Kulkarni inserted a blank

new cassette in the tape-recorder. He, thereafter prepared panchnama of

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all the said facts in presence of panchas and the Complainant in Hotel

Green Wood.

(iv) At about 11.00 am, the Complainant along with panch witness

Shri. Karanje (PW-2) went towards the office of Appellant from his car and

thereafter, they entered the chamber of Appellant. Complainant introduced

panch witness Shri. Karanje (PW-2) as Shri. Masani, the bother of Mrs.

Khatija Masani. Complainant discussed with Appellant about his file and at

that time, Appellant asked the Complainant to pay Rs.1,75,000/- for

sanctioning his file. Complainant thereafter, negotiated with the Appellant

regarding the amount to be paid and after negotiations, the Appellant

reduced the amount to Rs.1,50,000/-. Complainant asked Appellant, as to

where he had to pay the amount. At that time, the Appellant told him that,

the Complainant should pay the amount at his residence on the next day at

9.30 a.m. Complainant and panch witness Shri. Karanje (PW-2) left the

chamber of Appellant and visited Hotel Green Wood. The tape recorder

was stopped as soon as the Complainant came out of the chamber of the

Appellant. At Hotel Green Wood, P.I. Shri. Kulkarni (PW-4) heard the

conversation between Complainant and accused, which was recorded on

the said cassette and decided to arrange a trap. P.I. Shri. Kulkarni (PW-4)

directed the Complainant to visit Hotel Green Wood on the next day

morning at 7.00 a.m. and to bring an amount of Rs.1,50,000/- with him.

      (v)    On 2nd April 2005, at about 7.00 a.m., Complainant went to


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Hotel Green Wood along with the amount of Rs.1,50,000/- and met P.I.

Shri. Kulkarni (PW-4) and handed it over to him. It was decided that, after

the bribe amount was handed over to the Appellant, the Complainant to

give a pre-determined signal on mobile phone. A pre-trap panchanama

(Exh-39) was accordingly drawn. At about 9.00 a.m., the Complainant

along with Shri. Karanje (PW-2) left Hotel Green Wood and went to the

house of Appellant, which was situated behind the Court building at

Silvassa, from the car of the Complainant. Appellant was residing in

Quarter No.4, situated on the first floor of the building of Government

Quarters. When the Complainant reached in front of the quarter of the

Appellant, he started the tape recorder. He rang the door bell of the house

of Appellant. Appellant opened the door and thereafter, Complainant and

panch witness Shri. Karanje (PW-2) entered in the house of the Appellant.

Complainant opened topic with the Appellant regarding his file and told

him that, he has brought an amount of Rs.1,50,000/- as per the earlier talks

between them. Complainant requested Appellant to sanction his file.

Appellant told him that, he would sanction his Application within a week.

Thereafter, on the demand of Appellant, Complainant removed amount

kept in his right side pocket of trouser by his right hand and paid it to the

Appellant. Appellant accepted the said amount. Complainant and panch

witness thereafter, came out of the house of the Appellant. Complainant

gave a phone call to P.I. Shri. Kulkarni (PW-4) and gave pre-determined

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signal to him. The raiding party immediately reached at the spot. P.I. Shri.

Kulkarni (PW-4) rang the door bell of the house of Appellant. Appellant

opened the door and thereafter, the raiding party entered in the house of

the Appellant. P.I. Shri. Kulkarni (PW-4) introduced himself to the accused.

Two members of the raiding party accosted Appellant and caught hold his

hands. Two persons other than Appellant were also present in the house at

that time. Thereafter, Shri. Karanje (PW-2) informed P.I. Shri. Kulkarni

(PW-4) that, the Appellant has accepted bribe amount. Upon inquiry,

Appellant told Shri. Kulkarni that, he has accepted bribe amount and had

kept it in his cupboard. Appellant took the raiding party to a bedroom in

his house and showed the cupboard. P.I. Shri. Kulkarni (PW-4) directed

panch witness to open the cupboard and collect the bribe amount.

Accordingly, the panch witness opened cupboard and removed bribe

amount kept in between two shirts. The numbers of the currency notes

were verified and tallied with the numbers mentioned in the pre-trap

panchanama. The hands of Appellant were washed with a chemical

solution. The colour of the chemical changed and turned into pink. The

hand wash of the Appellant was collected in two bottles and the said bottles

were sealed in presence of panch witnesses.

(vi) Appellant was wearing a pant and T-shirt at the time of raid.

The pant of Appellant was seized by providing him another pant. After

applying chemical on the inner side of the pocket of pant under the

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instructions of P.I. Shri. Kulkarni (PW-4), the colour turned into pink. The

police thereafter, also applied chemical on the T-shirts from which the

tainted notes were seized. The colour of T-shirts was also turned into pink.

Complainant handed over to P.I. Shri. Kulkarni (PW-4), tape-recorder and

cassette after putting it off. P.I. Shri. Kulkarni heard the conversation which

took place between the Complainant and Appellant as recorded in the

cassette. He, thereafter removed the cassette from the tape recorder and

seized it in presence of panchas. A post-trap panchanama (Exh-40) was

drawn.

(vii) On 23rd June 2005, the CBI called Complainant at their office

at Mumbai. A transcript of conversation from the cassette was prepared by

effecting a panchanama in the presence of the Complainant and panch

witnesses. The CBI Authority sealed the cassette again and prepared a

panchanama. After completion of investigation and receipt of sanction

from the Competent Authority to prosecute Appellant, Shri. Maruti S. Patil

(PW-5), the then Inspector of Police, CBI, ACB, Mumbai, the Investigating

Officer of the present crime, submitted charge-sheet against the Appellant

before the Special Court on 26th December 2005.

(viii) Charge below Exh-27 under Sections 7 and 13(1)(d)

punishable under Section 13(2) of the P.C. Act was framed on 10 th March

2011, by the learned Special Judge. Appellant denied the charge and

claimed to be tried. The defence of Appellant was of total denial. The

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statement of Appellant under Section 313 of the Code of Criminal

Procedure (for short, "the Cr.P.C.") (Exh-28) was recorded. At the end of

recording of his statement under Section 313 of the Cr.P.C., the Appellant

submitted his written statement (Exh-67). Appellant has not adduced any

evidence in his defence.

It is the defence of the Appellant that, he had no Authority to

grant permission to sell and/or convert the said land into non agricultural

use and it was the authority of Collector to grant permission. That, on 30 th

March 2005, he wrote his comments on the file and forwarded it to the

Office of the Collector and on the date of trap, no work or file of the

Complainant was pending with him. That, on the date of incident, the

Complainant Altaf alone went to his house and at that time, he was wearing

vest and shorts and therefore, he asked him to wait in the drawing room

and went inside the bedroom to wear clothes. That, when he returned to

the hall, Complainant Altaf was near the table, where the ironed clothes

were kept. Complainant inquired with him about his file and he narrated

about his file. At that time, Complainant asked him to clear his file with

back date, to which Appellant refused. Complainant Altaf thereafter went

outside the room and after some time the members of the raiding party

came in. It is the defence of Appellant that, Complainant Altaf might have

planted the notes in between the ironed clothes kept on the table behind his

back. That, Appellant shook hands with the Complainant and at that time,

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phenolphthalein powder might have appeared on his hand from the hands

of the Complainant. That, the Complainant has falsely implicated him in

the case for self glorification. That, the Complainant was in habit of

blackmailing Government Officials with his contacts with the CBI Officials

and by taking advantage of the said fact, the Complainant has falsely

implicated him in the present case.

(ix) To bring home guilt against the Appellant, prosecution

examined in all five witnesses, namely, Shri. Altaf G. Khutliwala (PW-1), the

Complainant; Shri. Mahadev K. Karanje (PW-2), Panch Witness to the

Verification Panchanama, Pre-Trap Panchanama, Trap Panchanama and

Panchanama of transcription of conversation; Shri. Rajneesh N. Saxena

Tingal (PW-3), Under Secretary, Ministry of Home Affairs, Government of

India, who authenticated Sanction Order (Exh-51) on the approval of

proposal to prosecute Appellant granted by Competent Authority; Shri.

Sanjay K. Kulkarni (PW-4), the then Police Inspector, CBI, ACB and Trap-

laying Officer and Shri. Maruti S. Patil (PW-5), the then Inspector of Police,

CBI, ACB, Mumbai and the Investigating Officer of the present crime.

(x) After recording evidence and hearing the learned Advocate for

the respective parties, the Trial Court convicted and sentenced Appellant by

its impugned Judgment and Order dated 27th September 2012.

4 Mr. Kulkarni, learned counsel for the Appellant submitted that,

as per the prosecution case, the initial demand was of 30 th March 2005,

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lodgment of FIR was on 31st March 2005 and verification by the

Investigating Agency was carried out on 1 st April 2005. That, the Trial

Court did not frame charge for demand of 30 th March 2005. He submitted

that, for an offence punishable under Section 7 read with Section 13(1)(d)

of P.C. Act, it is the first demand of 30 th March 2005, which is relevant. He

submitted that, therefore, the charge framed by the Trial Court is not only

defective but illegal too. He submitted that, the Trial Court has framed

charge for acceptance of amount on 2 nd April 2005 and not for the initial

demand of 30th March 2005. He submitted that, Section 7 of the P.C. Act

postulates demand and then acceptance and therefore, for want of specific

charge with regard to the demand of bribe, the trial of the Appellant is

vitiated.

He submitted that, the original micro cassette was not

produced by the Respondents before the Trial Court and in the absence

thereof, the Transcript Panchanama (Exh-47) of demand dated 1 st April

2005 and 2nd April 2005 cannot be relied upon. He submitted that, the

Trial Court has committed an error in relying on the said transcript

panchanama (Exh-47) without production of original micro cassette before

the Court. He submitted that, neither the micro cassette nor a certificate

under Section 65(B) of the Evidence Act was produced and proved by the

prosecution before the Trial Court and therefore, the transcript panchanama

(Exh-47) cannot be said to be a substantive piece of evidence. He

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submitted that, on the date of trap i.e. on 2nd April 2005, the Appellant did

not make oral demand with the Complainant and in the absence of it, mere

finding of tainted amount in the possession of Appellant is of no

consequence. He submitted that, there are contradictions pertaining to

persons present in the house of Appellant in the evidence of panch witness

(PW-2). He submitted that, on the Seizure Memo (Exh-54) of the file of the

Complainant pertaining to the land in-question from the office of the

Appellant, there are no signatures of panch witnesses and therefore, the

said panchanama cannot be considered in evidence.

He submitted that, the alleged CD/ cassette produced by the

prosecution has been marked as Article Nos.9, 10 and 11, however are not

exhibited by the Trial Court. He further submitted that, the micro cassette

was not played in the Court at the time of trial to corroborate its transcript

(Exh-47), which is a secondary evidence. He submitted that, the Trial Court

ought not have accepted the said transcript in the absence of primary

evidence of micro cassette.

Mr. Kulkarni further submitted that, it was the Joint Secretary,

Government of India, who was the appointing and removing authority of

the Appellant. That, sanction accorded by Shri. Rajneesh N. Saxena Tingal

(PW-3), an Under Secretary, is not only defective but invalid, as he had no

authority to accord sanction under Section 19 of the P.C. Act. He submitted

that, the Trial Court has not framed a point for consideration pertaining to

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the valid or defective sanction and therefore, the trial of the Appellant gets

vitiated. That, the Trial Court has erroneously recorded finding in favour of

the prosecution pertaining to the sanction.

He submitted that, Shri. Sanjay Kulkarni (PW-4), P.I., ACB, CBI,

Trap-laying Officer in his evidence in para No.16 has stated that, N.A.

permission of the Complainant was cleared on 31 st March 2005 itself and

therefore, there was no occasion for the Appellant to demand any money on

1st April 2005.

5 Per contra, Ms. Kuttikrishnan, learned Special P.P. vehemently

opposed the Appeal and submitted that, there are no merits in the present

Appeal. She submitted that, the demand by Appellant has been proved by

the ocular evidence of Shri. Karanje (PW-2), an independent panch witness

to the demand and trap of the Appellant. She submitted that, the conduct

of the Appellant has also to be taken into consideration. That, the

Appellant has accepted bribe amount at his house and the said amount was

immediately thereafter found in the cupboard of the bedroom of the

Appellant.

She submitted that, in view of Section 19(3)(a) of the P.C. Act,

no finding, sentence of Order passed by a Special Judge shall be reversed or

altered by a Court in Appeal, confirmation or revision on the ground of

absence of or any error, omission or irregularity in the sanction required

under sub-Section (1), unless in the opinion of that Court, a failure of

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justice has in fact been occasioned. She submitted that, in the present case,

after the proposal for sanction was scrutinized and approved by the Joint

Secretary of the Government of India, who was the appointing and

removing authority of Appellant, Shri Rajneesh Tingal (PW-3), has

authenticated and signed the same and therefore, it cannot be said that, the

sanction is bad in law. She submitted that, unless the Appellant makes out

a case of failure of justice has been occasioned on account of such error or

irregularity in according sanction, the Appellate Court cannot consider the

said aspect. She submitted that, failure of justice is what the Appellate or

Revisional Court would in each such cases look for and after recording a

finding to that effect, only can reverse the Judgment of conviction. In

support of her contention, she relied on decisions, namely, (i) Mahesh

Prasad Vs. State of Uttar Pradesh, reported in AIR 1955 SC 70, (ii) Central

Bureau of Investigation Vs. V.K. Sehgal & Anr., reported in (1999) 8 SCC

501, (iii) Nanjappa Vs. State of Karnataka, reported in (2015) 14 SCC 186,

(iv) Vivek Batra Vs. Union of India & Ors., reported in (2017) 1 SCC 69 and

(v) State of Orissa Vs. Mrutunjaya Panda, reported in (1998) 2 SCC 414.

She submitted that, the objection as contemplated under

Article 311 of the Constitution of India by the Appellant was not raised

before the Trial Court at the first instance and in view of the ratio laid down

by the Hon'ble Supreme court in the case of Mahesh Prasad (supra), the

same now cannot be raised. She further submitted that, unless a finding is

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recorded that, there is failure of justice, the trial cannot be held to be as

non est.

She further submitted that, an omission or defect in framing of

charge cannot be a ground for acquittal and the accused may still be

convicted for an offence actually committed and proved on the basis of

evidence on record, so long as accused has not been mislead by any error or

omission in framing the charge and no failure of justice has been

occasioned. She placed reliance on the decision of the Hon'ble Supreme

Court in the case of K. Prema S. Rao & Another Vs. Yadla Srinivasa Rao &

Ors., reported in (2003) 1 SCC 217 . She submitted that, in the present

case, a specific charge for acceptance of bribe by the Appellant on 2 nd April

2005, was framed by the Trial Court and therefore, there is no substance in

the contention of the learned counsel for the Appellant in that behalf.

She submitted that, it was the precise prosecution case that,

the Appellant initially made demand on 30 th March 2005, FIR came to be

registered on 31st March 2005 and verification was done by the

Investigating Agency on 1st April 2005. That, actual demand and

acceptance of bribe has been witnessed by an independent witness (PW-2)

and therefore, it cannot be said that, the charge for 2 nd April 2005, is

defective. She submitted that, there is no failure of justice at all caused in

the present case. She submitted that, PW-2 is an independent witness for

demand and acceptance of bribe by the Appellant and his evidence is not at

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all shaken in the cross-examination by the Appellant. She therefore

submitted that, there are no merits in the Appeal and it may be dismissed.

6 In rejoinder to the arguments advanced by the learned Special

P.P., Shri Kulkarni submitted that, Section 465 of Cr.P.C. will not be attracted

to the present case, as the impugned Judgment and Order does not suffer

from error, but it suffers from vitiation of the trial for non compliance of

mandatory provisions. He submitted that, the Judgments cited and relied

upon by the learned Special P.P. are not applicable to the case in hand. He

submitted that, in view of the glaring defects pointed out by him, in the

earlier paragraphs, the entire proceedings gets vitiated. He therefore prayed

that, the present appeal may be allowed in its entirety.

7 The facts pertaining to the first demand by the Appellant, its

verification and accosting of the Appellant on the date of trap i.e. on 2 nd

April, 2005, have been briefly narrated in Paragraph No.3 (i) to (vi), are

culled out from the testimony of the Complainant (PW-1) and its

reproduction is hereby avoided for the sake of brevity.

PW-1, in his cross-examination has admitted that, when he

entered into house of Appellant, two other persons were present. He has

denied the suggestion that, Mr. Rajesh Goel, Asstt. Commissioner of Excise

and Mr. Anurag Saran, may be those persons, but he did not know their

names. PW-1 denied the suggestion by answering that, he did not

remember whether the Appellant shook his hand by both his hands when

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he left his house on that day. He has admitted that, he had filed an

Application with CBI Authorities, making grievance against Mr. Mathur, the

then Administrator (U.T.) of Dadra and Nagar Haveli and Shri. Dharmendra

Kumar, the then Collector of Silvassa. Apart from these admissions, nothing

beneficial to the Appellant has been extracted from the detailed and

elaborate cross-examination of PW-1.

8 Shri. Mahadav K. Karanje (PW-2) was the panch/shadow

witness to the demand by the Appellant on 1 st April, 2005, 2nd April, 2005

and acceptance of tainted amount on 2 nd April, 2005 and is a star witness of

the prosecution. PW-2 has deposed that, in the month of March, 2005, he

was serving as a clerk in the Dock Department of Mumbai Port Trust.

Under the directions of his Superior Authority, he visited CBI office, Tanna

House, Mumbai on 31st March, 2005 at about 5.30 p.m. and approached

Shri. Kulkarni, P.I., ACB. (PW-4). Shri. Kulkarni introduced him with Mr.

Ramesh Sumra, who was serving in the office of D.G.F.T. as a clerk. Mr.

Kulkarni then asked both of them to act as panch in the confidential

operation to be held at Silvassa on 1st April, 2005. On 1st April, 2005 at

about 5.30 a.m. PW-2 along with Shri. Sumra visited CBI office at Mumbai

and met Shri. Kulkarni (PW-4). 5-6 police personnel were also present in

the CBI Office. They left Tanna House at about 6.00 a.m. and proceeded to

Silvassa by Government Police Jeep. They reached at about 10.00 a.m. to

Silvassa and went to Hotel Green Wood. Shri. Kulkarni introduced him

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with the members of raiding party. Mr. Kulkarni also introduced him with

Mr. Altaf Khutliwala (PW-1) and informed about the Complaint filed by PW-

1 with their office on 31st March, 2005 against the Appellant. He then

informed PW-2 that, he was intending to verify correctness of the

allegations made in the written complaint (Exh-38) and therefore,

requested PW-2 and other panch witness Mr. Sumra to act as panch for

verification of Complaint. Both of them consented for it.

Mr. Kulkarni requested PW-2 to accompany Complainant (PW-

1) and go to the office of the Appellant along with micro cassette and its

recorder. Functions of micro cassette recorder were explained to PW-2 by

Shri. Mahesh Patil, Police Constable of CBI. A new blank cassette was

inserted in the micro cassette recorder. A mike was attached to the said

recorder. Shri. Kulkarni instructed PW-2 to introduce himself as brother of

Smt. Khatija Masani, who was the owner of the land, to the Appellant on

inquiry made by him. At about 11.20 a.m. PW-2 along with others left

Hotel Green Wood and proceeded towards the office of the Appellant.

After reaching to the office of the Appellant, the Appellant

called PW Nos.1 and 2 in his cabin. The Appellant asked them to sit in

chairs. The Appellant was talking with somebody else on mobile and after

completion of his conversion, he asked PW-1 by saying "Hi Altaf Boliye",

Mr. Altaf Khutliwala (PW-1) introduced PW-2 as Mr. Masanji to the

Appellant. Thereafter, there was a dialogue between the Appellant and PW-

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1 about pending file of PW-1. During the said conversation, the Appellant

was saying about Rs.1,75,000/-. PW-2 interrupted in the said dialogue and

asked the Appellant to reduce the amount. Mr. Altaf Khutliwala, PW-1 also

requested the Appellant to reduce the amount by Rs.25,000/-. The

Appellant agreed to reduce the amount and asked PW-1 to pay

Rs.1,50,000/- to him in lumpsum on 2nd April, 2005 in the morning at 9.30

a.m. at his residence. At about 12.00 noon, PW-1 and PW-2, left the office

of the Appellant. They came at Hotel Green Wood where, Shri. Kulkarni

(PW-4) heard the conversation recorded in the cassette, removed the

cassette and after keeping it in envelop, sealed it. PW-2 has identified

micro cassette (Exh-A) in the Court. Shri. Kulkarni (PW-4) thereafter,

prepared a detailed Panchanama (Exh-39) of the said events.

On 2nd April, 2005, in the morning, the Complainant (PW-1)

came at Hotel Green Wood along with Rs.1,50,000/- and produced it before

Shri. Kulkarni. Necessary formalities were complied with. A micro cassette

recorder was affixed on the person of the Complainant (PW-1) and

thereafter, a pre-trap panchanama was drawn. Complainant and PW-2 left

Hotel Green Wood and proceeded towards Government Quarters situated

behind District Court Building, Silvassa by car of the Complainant. They

went to quarter No.1 on the first floor of the Government Quarters. After

reaching there, the Complainant rang door bell by pushing the button. One

person opened the door. The Complainant greeted that person by saying,

ssm 20 apeal1147.12.doc

"Hallo Sir". Complainant and PW-2 entered the house of Appellant, the

Appellant asked them to sit in chairs kept in the hall. Complainant then

made inquiry with Appellant about his pending file and told him that, he

has brought Rs.1,50,000/- as per the discussion on the previous day.

Appellant informed the Complainant that, he has already completed his

work and the entire work will be completed within a week. Appellant then

held his hand in front of the Complainant and demanded amount from the

Complainant. Complainant removed the bundle of notes kept in his right

side pocket of his trouser with his right hand and held it before the

Appellant. Appellant then, accepted the said bundle of notes by his right

hand and held it in his left hand. Appellant kept bundle of notes in his left

side pocket of his track-suit. Thereafter, a discussion took place between

the Appellant and the Complainant about the file of the Complainant.

Appellant told the Complainant that, his file will be cleared on coming

Tuesday. They thereafter, left and came out of the house of the Appellant at

about 9.30 a.m.. There were only three persons present in the hall of the

Appellant i.e. PW-2, the Complainant and the Appellant, when the said

event of handing over of amount took place. The Appellant closed the door

of his house. Complainant gave per-determind signal to Shri. Kulkarni.

Thereafter, P.I. Shri. Kulkarni along with raiding party reached the spot

within 2-3 minutes. Shri. Kulkarni rang door bell of the Appellant and

Appellant opened the door. P.I. Shri. Kulkanri introduced himself, panchas

ssm 21 apeal1147.12.doc

and members of the raiding party to the Appellant. Two constables caught

hold both the hands of the Appellant. Appellant tendered his apology to

Shri. Kulkarni saying that, it was his first posting. Appellant told Shri.

Kulkarni that, he has kept the amount accepted by him in between two

shirts kept in the wardrobe in bedroom No.2. Traces of anthracene powder

were found on the hands of the Appellant on examination with field testing

kit. The Appellant showed wardrobe, where he kept the said amount to

Shri. Kulkarni. The tainted amount was found therein. Serial numbers of

the said notes were verified which were tallied with the description of the

pre-trap panchanama. During the search of Appellant, his wife, mother,

niece and two friends were noticed in the house. A post panchanama (Exh-

40) was accordingly recorded.

In his detailed cross-examination, except very few minor

discrepancies and omissions, nothing beneficial to the Appellant has been

brought on record. It clearly appears that, the testimony of PW-2 in his

examination-in-chief, has been unshaken.

9 Shri. Rajneesh Narendra Saxsena Tingal, (PW-3), has

authenticated and signed the Sanction Order (Exh-51). PW-3 has deposed

that, in the year 2005 he was serving as Under Secretary in U.T.S. Section,

Ministry of Home Affairs, Government of India, New Delhi and was dealing

with the Management of Cadre of Civil Services of Union Territories. He

was dealing in the matters pertaining to promotions, transfers, posting and

ssm 22 apeal1147.12.doc

vigilance matters of the concerned officers. He has deposed that, the

recruitment of RDCs was made through UPSC. The Joint Secretary,

Ministry of Home Affairs, Government of India, New Delhi used to appoint

and remove them. His Department had received a file of the Appellant

from the CBI, Mumbai regarding a trap conducted on 2 nd April, 2005. At

the time of trap, the Appellant was serving as RDC, Dadra and Nagar Haveli

and he was entry grade-B officer. On going through the documents and

examining the papers submitted by CBI, he prima facie found that, there

was sufficient material to show that, the Appellant demanded and accepted

bribe from the Complainant for discharging his official duty. He accordingly

prepared a note and submitted it to Joint Secretary, Ministry of Home

Affairs through the Deputy Secretary for approval. Joint Secretary

approved the proposal and the said file was returned to him. On the basis

of approval given by the Joint Secretary, he prepared a draft Sanction Order

and forwarded it to the Joint Secretary for its approval. The Joint

Secretary, Ministry of Home Affairs approved the draft Sanction Order and

returned the said file to him. On receipt of file, he issued the Sanction

Order (Exh-51).

In his cross-examination, he has admitted that, the Joint

Secretary, Ministry of Home Affairs is the appointing and disciplinary

authority for the entry grade-B class officers. That, the Joint Secretary was

the only competent authority for removing said officers and accord sanction

ssm 23 apeal1147.12.doc

to prosecute Appellant. To a question put by the Court, he has answered

that, as per the Authentication Rules-2002, officers of the level of Under

Secretary and above can convey the decision of the Government of India.

10 Shri. Sanjay K. Kulkarni, P.I. CBI (PW-4) was the trap-laying

officer. In his testimony, he has corroborated the version of PW-1 and PW-2,

on all counts. He has deposed all the events from lodgment of the

Complaint by the Complainant till completion of trap and seizure of file of

Complainant under a seizure memo (Exh-54). In his cross-examination, he

has denied all the suggestions given by the Appellant. His testimony in the

examination-in-chief has also not been shaken by the defence.

Shri. Maruti S. Patil. PI, ACB, CBI (PW-5) is the Investigating

Officer of the present crime. He took over investigation of the present

crime from Shri. Kulkarni on 6th June, 2005. He collected report from

CFSL, New Delhi (Exh-59). On 23rd June, 2005, he called PW-2 and the

Complainant in his office at Mumbai for transcription of the conversation

recorded during trap. By following necessary procedure, he prepared

panchanama of transcription of conversation (Exh-47). On completion of

investigation, he sent proposal through proper channel for grant of sanction

to prosecute the Appellant. On 23 rd December, 2005, he received a letter

from the Disciplinary Authority of the Appellant along with Sanction Order

(Exh-51). Nothing beneficial to the Appellant has been brought on record

in his cross-examination.

      ssm                                24                   apeal1147.12.doc

11             This leads me to consider the contentions raised by the learned

counsel for the Appellant.

It is true that, while framing the charge (Exh-27), the Trial

Court has mentioned about the incident of demand and acceptance by the

Appellant on 2nd April, 2005. PW-2 in his deposition, has categorically

stated that, on 1st April, 2005, when he along with the Complainant (PW-1)

went to the office of the Appellant, he initially demanded Rs.1,75,000/- and

subsequently reduced the said demand by Rs.25,000/- and asked the

Complainant to pay Rs.1,50,000/- to him in lumpsum on 2 nd April, 2005 at

9.30 a.m. at his residence. PW-2 has also witnessed that, on 2 nd April, 2005

at his residence, the Appellant demanded and accepted an amount of

Rs.1,50,000/-. It is thus clear that, the trap on 2nd April 2005, was a

corollary to the prelude of demand by Appellant on 30 th April 2005,

lodgment of crime by the Complainant on 31 st April 2005 and initial

verification on 1st May 2005. Even otherwise, no prejudice at all has been

caused to the Appellant by framing the aforestated charge. The prosecution

case, since inception is consistent and there was no ambiguity at all in it.

The Appellant was called upon by the prosecution to answer a particular

and specific charge which he has done. Therefore, the contention of the

learned counsel for the Appellant that, there is a defect in framing of charge

cannot be accepted.

12             It is to be noted here that, the said CD, on which the


      ssm                              25                   apeal1147.12.doc

conversation between the Appellant and the Complainant was recorded was

not played in the Court. No witness speaks that, the transcript of

conversation (Exh-47) is the true translation of the said cassette. The said

cassette was not played in the Court to tally the transcript panchanma (Exh-

47). It is further to be noted here that, the transcript panchamana (Exh-47)

was effected in the absence of Appellant. That, the Complainant himself

has identified the voice of the Appellant. No independent witness or even

PW-2 has identified the voice of the Appellant. In view thereof, the

transcript panchamana (Exh-47) is kept aside from consideration, while

deciding the present Appeal.

13 Shri. Mahadev K. Karanje (PW-2), is an independent panch

witness. In his testimony, he has categorically stated that, on 1 st April,

2005, the Appellant in his office demanded Rs.1,50,000/- from the

Complainant and asked him to pay it in lumpsum at his residence on 2 nd

April, 2005, in the morning at 9.30 a.m.. He has also witnessed, the

demand and acceptance of the tainted amount by the Appellant at his

residence on 2nd April, 2005. The said amount was immediately found in

the cupboard of the Appellant by the raiding party. PW-2 has fully

corroborated the version of the Complainant.

It is to be further noted here that, PW-2 in his testimony has

nowhere stated that, in the living room of the Appellant, iron clothes were

kept on a table and after accepting the tainted amount, the Appellant kept

ssm 26 apeal1147.12.doc

it in between two shirts. In fact, PW-2 has deposed that after accepting the

amount, Appellant kept bundle of notes in left side pocket of his track-suit.

The defence adopted by the Appellant in that context, is accordingly belied

by the version of PW-2. The evidence of PW-2 is fully reliable and

trustworthy. The evidence of PW-1 and PW-2 is not at all shaken in their

cross-examination. The prosecution has thus, proved demand and

acceptance by the Appellant beyond reasonable doubt.

14 The CFSL Delhi Report (Exh-59) pertaining to the examination

of hand-wash of Appellant, T-shirts and track-suit discloses that, it gave

positive test for presence of phenolphthalein powder and Sodium

Carbonate. There is no reason at all for not accepting the opinion given by

CFSL. It is to be further noted here that, the bed room of the Appellant was

not accessible to outsider. When the raiding party immediately reached to

the house of Appellant within 2-3 minutes after receipt of pre-deterimined

signal, the Appellant showed a wardrobe in his bedroom wherein, he had

kept the said amount. The possibility of planting amount in the house of

the Appellant by the Complainant within such a short span, in the presence

of PW-2, an independent panch witness, is therefore, ruled out. The

Appellant has not established by leading cogent evidence that, when

Complainant and PW-2 had been to his house and were sitting in chairs in

the living room, there were ironed clothes kept on a table. The Appellant

has thus, failed to rebut presumption under Section 20 of the P.C. Act.

      ssm                               27                   apeal1147.12.doc

15           Shri. Rajneesh Narendra Saxsena Tingal (PW-3), in his

deposition has categorically stated that, it was the Joint Secretary, Ministry

of Home Affairs, who has in fact granted approval to prosecute the

Appellant and after receipt of the said approval, he prepared draft Sanction

Order. That, the Joint Secretary has approved the said draft Sanction Order

and thereafter, he passed the Sanction Order (Exh-51). It is thus, apparent

that, PW-3 has only authenticated and/or signed the Sanction Order (Exh-

51) after its proper and lawful approval by the Joint Secretary, Ministry of

Home Affairs, who was the appointing and removing authority of the

Appellant. Therefore, I do not find any substance in the submissions

advanced by the learned counsel for the Appellant in that behalf.

16 Taking into consideration evidence available on record and the

aforestated discussion, it is abundantly clear that, the prosecution has

proved beyond reasonable doubt that, the Appellant on 2 nd April, 2005

demanded and accepted bribe amount of Rs.1,50.000/- from the

Complainant (PW-1) in presence of an independent panch witness (PW-2).

The Appellant has failed to give any plausible explanation regarding the

recovery of tainted amount from the wardrobe of his bed room and

presence of phenolphthalein powder on his left side pant pocket. Appellant

has not rebutted presumption under Section 20 of P.C. Act. The prosecution

has successfully proved all the necessary ingredients of the charge framed

against the Appellant.

                    ssm                                 28                   apeal1147.12.doc

              17               In view of the above, the Appeal being dehors of merits, is

              accordingly dismissed.

The Appellant is directed to surrender before the Trial Court

within a period of 8 weeks from today for undergoing sentence.

(A.S. GADKARI, J.) Digitally signed by Sanjiv S.

Sanjiv S. Mashalkar Mashalkar Date: 2021.03.22 19:16:25 +0530