Bombay High Court
The State Of Maharashtra vs Abdul Ghulam Ambiya Khot And Ors on 7 April, 2022
Bench: Prakash Deu Naik
204-apeal-1175-2006.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1175 OF 2006
The State of Maharashtra Appellant
Versus
1. Abdul Ghulam Ambiya Khot,
Age 57 Years,
Deputy Tax Inspector,
Thane Municipal Corporation,
Resident of Own House,
Kharbazar, 12/15 Kalyan, District, Thane.
2. Ragho Dhulaji Kokare,
Age 52 Years,
Clerk in Thane Municipal Corporation,
Resident of Om Kalavati Apartment,
3rd Floor, Room No.303,
Kulgaon, Badlapur (E),
District : Thane.
3. Mohammad Ayub Ataullah Pathan,
Age 38 Years,
Resident of Arafat Mahal,
B-wing, 2nd Floor, Room No.203,
Kausa Mumbra. Respondents
Mr. R. M. Pethe - APP, for the Appellant State.
None for the Respondents.
CORAM : PRAKASH D. NAIK, J.
JUDGMENT RESERVED ON : 26th AUGUST, 2021.
JUDGMENT PRONOUNCED ON : 7th APRIL, 2022.
JUDGMENT :
1. The State of Maharashtra has preferred this appeal under
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
JAMADAR
Sajakali Jamadar 1 of 28
LIYAKAT Date:
JAMADAR 2022.04.07
14:08:31
+0530
204-apeal-1175-2006.doc
Section 378(3) of the Code of Criminal Procedure (for short Cr.P.C.)
challenging the judgment and order dated 3 rd February, 2006 passed
by learned Special Judge, Thane in Special Case No. 20 of 2001. The
respondent Nos. 1 & 2 were acquitted for the offences punishable
under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of
Corruption Act, 1988 (for short PC Act), whereas respondent No.3
was acquitted for the offence under Section 12 of the PC Act.
2. The prosecution case is as under :-
(a) The complainant (PW-1) purchased flat consisting three
rooms bearing Nos. 401, 402 & 403 on 4 th Floor of building
known as Arafat Mahal, B-Wing, in the year 1994. He was
occupying the said premises. He did not pay municipal tax
from 1998 onwards.
(b) PW-1 was at his native place in Uttar Pradesh for a
period of about one and half year from 1998. During his
absence, the flat was sealed by Municipal Corporation for
default in payment of tax. When he returned to the premises in
the year 2000 he came to know about sealing of premises.
(c) In view of resolution of standing committee of Municipal
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Corporation passed in June, 2000 it was decided to deliver
possession of flats to defaulters on payment of arrears.
(d) The complainant (PW-1) met Accused No.1 in his office
showing his willingness to pay the tax with a request to remove
the seal.
(e) The Accused No.1 told him to bring Accused No.3,
secretary of Arafat Apartment. On 29 th June, 2000, the
complainant met Accused No.1 along with Accused No.3. The
tax was calculated and the Accused told him to pay Rs.8,200/-
towards tax and additional sum of Rs.3,000/- to him for
performing work. The complainant returned without parting
money.
(f) The complainant met Accused on 4th July, 2000 at his
office along with Accused No.3 and requested to reduce the
amount. On negotiation, the Accused agreed to accept
Rs.2,000/- for removing the seal of flat and the Accused was
told to give the amount to Accused No.3 on 5th July, 2000.
(g) Since the complainant was not willing to give bribe, he
lodged the complaint against Accused No.1 with Anti-Corruption
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Bureau, Thane. Complaint was recorded by Inspector Devade.
Trap was arranged. Panch witnesses were called. The
complainant produced amount of Rs.2,000/- for trap. Procedure
for trap was completed.
(h) As per plan, the complainant met Accused No.1 at his
office. He was supposed to handover the tainted notes, if
demand is made and thereafter, give signal to the raiding party.
One of the panch was to accompany complainant and watch the
events.
(i) The complainant and panch went to the Municipal Office
at Kausa Mumbra. Raiding party waited outside. They met
Accused No.3 at Wasim Hotel. He told the complainant to give
money to him as the Accused No.1 will not accept money from
him. The complainant gave trap notes to Accused No.3. The
amount was kept in pocket. They went to the Municipal Office.
Accused No.1 was not present in the office. Accused No.2 was
present in the office. He informed that the Accused No.1 has
proceeded to Sagar Apartment. Hence, they went to Sagar
Apartment. Accused was not found. They returned to
Municipal Office and waited for Accused No.1.
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(j) Accused No.1 reached the office at about 4.45 p.m. The
complainant informed him that he paid Rs.2,000/- to Accused
No.3 and requested to accept the said amount and remove the
seal.
(k) The Accused ascertained this fact by questioning Accused
No.3. Accused No.1 instructed Accused No.3 to handover
Rs.5,00/- to Accused No.2 and obtain key of the flat from him.
Accused No.2 was instructed to receive the tax amount and
handover the key of the flat.
(l) The complainant handed over the tax money to Accused
No.2. With the help of clerk receipt of Rs.7,100/- was prepared.
Receipt of Rs.1,000/- was also prepared and was given to
complainant. Accused No.3 gave note of Rs.500 out of trap
note to Accused No.2. The complainant was told by Accused
No.2 that peon was not present and on his arrival the key will be
handed over. The complainant gave predetermined signal. The
raiding party reached the spot. Accused Nos. 2 & 3 were caught.
Trap notes of Rs.500/- were seized from Accused No.2.
Anthracene powder was seen on the finger of Accused No.2.
Trap panchanama was prepared. Complaint was registered with
Mumbra Police Station vide Crime No.120 of 200. Sanction for
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prosecution was obtained. Charge-sheet was filed against the
Accused.
3. Charge was framed by order dated 23 rd July, 2004 against
Accused. Subsequently, the charge was altered by order dated 1 st
March, 2005.
4. The prosecution examined four witnesses. PW-1 Aziz Siddiqui
is the complainant. PW-2 Prasad Patkar is panch. PW-3
Kalyaneshwar Prasad Bakshi is sanctioning authority. PW 4 - Kedu
Ragho Devade is the Investigating Officer.
5. The statement of the Accused was recorded under Section 313
of Cr.P.C. The defence of the Accused was denial. Accused No.1 filed
written statement under Section 313 of Cr.P.C.(Exhibit 72).
Accused No.2 filed written statement under Section 313 of Cr.P.C.
(Exhibit 44). Accused No.3 filed written statement (Exhibit 73).
Accused No.1 filed application on 4th October, 2004 for exhibiting
certain documents. The Court passed an order on 4th October, 2004
that the documents admitted by defence be exhibited to be read in
evidence.
6. The Accused were acquitted by the trial Court vide judgment
and order dated 3rd February, 2006 concluding that the story of
demand on 29th June, 2000 and 5th July, 2000 is not established. The
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allegations that the tainted notes were given to Accused No.3 as per
instructions of Accused No.1 is unbelievable. Explanation of Accused
No.3 regarding acceptance of money is acceptable. In absence of
evidence regarding demand and motive, the charges against Accused
No.2 shall fail. Accused No.1 did not receive money. Except evidence
relating to talk of Accused No.1 with Accused No.3 in the office, there
is no other evidence to prove the charges against him. There are
various discrepancies in the evidence of the complainant and panch
witnesses. Their evidence does not inspire confidence. Prosecution
failed to prove the guilt of the Accused beyond reasonable doubt.
7. Learned APP submitted that the judgment of acquittal is
contrary to evidence on record. The conversation between the
Accused and the complainant establishes that there was demand and
acceptance of bribe amount. Tainted currency notes were recovered
from Accused. Demand was proved. Bribe amount was demanded
for de-sealing the premises. Panch witness supported the case of the
prosecution. Presumption under Section 20 of the PC Act was not
rebutted by the Accused. There was no reason to discard the
evidence of witnesses. The charges were proved beyond doubt. The
trial Court has committed error in arriving at conclusion that demand
of bribe amount is not proved. The trial Court has erred in
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concluding that the prosecution has failed to prove that during the
course of same transaction, on 5th July, 2000 at 5.00 p.m. at
Municipal Office Accused No.2 has accepted the bribe amount. The
Accused No.3 has aided and abetted other Accused in commission of
the offences. There is no reason to disbelieve the evidence of the
complainant and the panch witnesses which is corroborative in
nature. The trial Court has overlooked the evidence on record and
arrived at erroneous conclusion that the charge is not proved beyond
doubt.
8. In the light of the grounds urged by the appellant in this appeal
and submissions of learned APP, I have scrutinized the evidence on
record.
9. PW-1 has deposed that he owns the flat consisting of three
rooms at Arafat Mahal at Kausa. He paid municipal tax up to 1998.
Accused No.3 is secretary of the building. The Corporation sealed the
flat for non payment of taxes in 2000. He was at his native place.
On enquiry he came to know about arrears of taxes. Accused No.1 is
officer in Tax Department at Kausa office. Accused No.2 works in
that office as typist. Accused No.1 told complainant to meet Accused
No.3. PW-1 was informed that the flat was sealed for non payment of
taxes. On 29th June, 2000, he visited Municipal Office with Accused
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No.3. He was introduced to Accused No.1 and requested to calculate
the tax and accept it and remove the seal. On Calculation, accused
No.1 told him that he has to pay Rs.8,200/- towards taxes. Accused
No.1 demanded Rs.3,000/- as bribe. The accused No.1 told him that
if the amount was not given the seals would not be removed. On 4 th
July, 2000, the complainant again went to the office of Accused No.1
along with Accused No.3 and indicated that he would pay the
amount of Rs.8,200/- towards tax on the next day. He tried to
negotiate the amount of Rs.3,000/- and it was reduced to Rs.2,000/-.
The amount was to be given on 5 th July, 2000 at 3.00 p.m. at his
office. He agreed. He was instructed by Accused No.1 to give the
amount of Rs.2,000/- to Accused No.3. On 5 th July, 2000
complainant went to Anti-Corruption Bureau, Thane office and
lodged Complaint. Panchas were called. Procedure for trap was
completed. Instructions were given to complainant and panch
witnesses and members of raiding party. All of them proceeded
towards the office of Accused. They reached near Petrol Pump. As
per instructions, he along with panch PW-2 went to Wasim Hotel,
where he was supposed to meet Accused No.3. PW-1 and PW-2 went
to Wasim Hotel and met Accused No.3 outside the hotel. Accused
No.3 told him that he was waiting for him and told him that they
would go to pay the tax and the seal would be removed. He further
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told him to give Rs.2,000/- which was to be given to Accused No.1 as
he would not accept money himself from him. The notes were
handed over to Accused No.3. He accepted them. Than, they went to
municipal office with him. Accused No.1 was not present in the
office. Accused No.2 was present. He informed that Accused No.1
has gone to Sagar Apartment. Thereafter the complainant, panch
witness and Accused No.3 went to Sagar Apartment. Accused No.1
was not found. They returned to Municipal Office at 4.00 p.m. and
informed accused No.2 that accused No.1 was not present. Accused
No.2 asked PW-1 about nature of work. He told him about it.
Accused No.2 told him that the Accused will reach by 5.00 p.m. At
4.45 p.m. accused No.1 reached there. Complainant requested him
to accept the tax amount and remove the seal of flat. Accused No.1
asked PW-1 whether he gave Rs.2,000/- to Accused No.3. Accused
No.3 told him that work was done and he received Rs.2000/-. He
also told accused No.2to accept Rs.8,200/- from complainant to
remove the seals. Accused No.1 told Accused No.3 to go out as he
wanted to discuss something. He went out. Complainant went out
with PW-2. Accused No.3 again told that he had received amount for
accused No.1 and accused No.1 may take the money. Accused No.1
directed accused No.3 to give Rs.500/- to accused No.2. Except this,
he (PW-2) could not listen other conversation between them. Again
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they went inside the office. Accused No.1 directed accused No.2 to
accept the tax amount and to issue receipt. He directed Accused
No.3 to give Rs.500/- to accused No.2. He also told that he was
going out for some work. Thereafter PW-1 gave Rs.8,00/- to accused
No.2. He took money and issued two receipts. One for Rs.7,100/-
and the other for Rs.1,000/-. Accused No.3 handed and kept it in
pocket. over amount of Rs.500/- to Accused No.2. He accepted the
amount. He demanded receipts. Accused No.3 asked Accused No.2
to go to the flat and remove the seal. Accused No.2 told that office
peon was not available and on his arrival seal would be removed.
Accused No.3 went out. Complainant gave signal to raiding party.
The raiding party caught Accused No.2. Accused No.3 was also
caught. Further procedure was completed. In the cross examination
he stated that there was only one secretary for all the wings of Arafat
Mahal. Tax from all the flat owners was collected by the society and
paid in Municipal office. On 29 th he was at the office of Accused for
15-20 minutes. Conversation took place in the office. Except himself
Accused No.1 and Accused No.3 nobody was present in hearing
distance at the time of conversation. He do not remember whether
he stated while complaint was lodged that Accused No.3 introduced
him to Accused No.1 and told him to calculate the tax and accept the
money. This fact is not stated in the complaint. He did not state
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before the Police. He had stated this fact when his supplementary
statement was recorded. He cannot say why it is not mentioned in it.
He felt that after paying taxes he had right to get back the possession.
He had no money on 29th to pay the taxes and he was not knowing
how much amount was due and therefore, he did not pay taxes on
29th. He borrowed Rs.10,000/- from his friend which was used for
trap. In view of demand he felt that it was necessary to give bribe.
He did not like the demand. He did not state to police that Accused
No.1 told him that if the amount was not given, the seals would not
be removed. He has stated that this fact during his supplementary
statement. He cannot say why it is not recorded in his supplementary
statement. He was not willing to pay the bribe. He questioned the
Accused about it. He stated that he will not do the work unless the
bribe was paid. He agreed to pay bribe on 29 th. He did not approach
Assistant Commissioner Raje or Commissioner as he wanted to
approach the Anti-Corruption Bureau to trap the Accused. He felt
that on approaching Commissioner, he would not be required to pay
bribe. On 29th he did notapproach ACB as he had no money on that
day and also for the reason that he had told the accused that he
would approach him again on 4th. He had not told the Accused that
he would approach him on 4th. On 4th he went to the office of the
Accused at 3.00 p.m. Accused Nos.1 & 3 were present. He did not
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inform accused No.3 that he was to trap accusedNo.1. He did not
inform accused No.3 that he lodged complaint. Accused No.3 was
secretary and hence he took him with on 29 th. As per instructions he
was to approach Accused No.1 at his office with panch and pay the
tax and obtain the receipt and then to make a request to open the flat
and if there was demand he was to give trap money to him. He was
instructed to give signal on acceptance of bribe. There were no
instructions to meet Accused No.3 and to give him the trap notes. He
was not asked by Mr. Devade, where Accused No.3 was and where he
would meet. He did not tell him about it. He did not mention his
name in ACB office. He did not tell Devde that accused No.1
instructed him to give money to accused No.3. The panch was not
knowing accused No.3 Shri. Devade did not instruct him to search
for accused No.3. He was not knowing that he would meet Accused
No.3 near Wasim Hotel. He told the panch that Accused No.3 was
secretary of the building. The panch was with him when the trap
notes were given. The panch questioned him when he gave trap
notes to Accused No.3. According to him from the talk with Accused
No.3, the panch got knowledge as to why the amount was given to
Accused No.3. Raiding party members were watching them. He do
not know whether raiding party members witnessed the incident of
giving trap notes. Before giving trap notes to Accused No.3 he did
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not contact Shri. Devde for further instructions. He did not consult
panch at that time. Except panch nobody witnessed the incident of
giving trap notes. Shri. Devde did not sent anybody at the hotel to
see why they were there. The talk with Accused No.3 was in normal
tone. Money was given openly. The panch was silently watching the
events till they reached Municipal Office. He did not signal at Wasim
Hotel as the trap notes did not reach the target. He did not contact
Shri. Devde after knowing that Accused No.1 was not in the office.
He did not ask Accused No.2 to receive the money of tax. Without
order from Accused No.1, tax would not have been accepted in the
office. He cannot tell why he did not give the tax money to Accused
No.3. He was not knowing why Accused No.1 had gone to Sagar
apartment. Shri. Devde did not send anybody to contact them. The
raiding party followed them to Sagar Apartment. They were not
contacted by raiding party till they returned to Municipal Office.
The panch did not tell him that the events were not happening as per
instructions. He did not tell Accused No.3 to give money to Accused
No.1. He did not feel that the money did not reach the target. He
felt that accused No.1 would accept the money from Accused No.3.
When Accused No.1 and Accused No.3 went out of office for
discussion, he followed them to listen conversation. Accused No.1
asked whether his work was done and Accused No.3 said, yes.
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Except this, that other conversation took place between them could
not be heard. He had stated to Police in supplementary statement
that instruction to give Rs.500/- to Accused No.2 was given inside the
office. It is not mentioned in supplementary statement. The money
has reached the hand of Accused No.2. He do not know whether
Accused No.1 had received the money or not. He tried to contact Mr.
Devde. It was not possible for him to stop Accused No.1. Panch did
not ask him to stop Accused No.1 from going out. He got the
possession of flat in the night of trap. The name of Accused No.2 is
not mentioned in the complaint. He had stated to Police that
Accused No.3 introduced him to Accused No.1 and appraised him of
the fact and requested to calculate the tax and to accept the amount
to remove the seal. However, this fact is not mentioned in the
complaint. He felt that Accused No.1 and Accused No.3 may accept
bribe outside the office and therefore went out with panch. Accused
No.2 asked about nature of work. There were no instructions to meet
Accused No.3 at Wasim Hotel. It was not decided that he should
meet Accused No.3 at Wasim Hotel. In the supplementary statement
he had stated that Accused No.3 told him that he was waiting for him
and that they were go to pay the tax and seal would be removed.
This fact was not mentioned in the supplementary statement. He do
not know whether accused No.1 received money or not nameof
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accused No.2 is not mentioned in complaint. He had stated to Police
that accused No.3 had introduced him to accused No.1 and appraised
him of the facts and requested to calculate the tax and to accept the
amount and to remove the seal. He felt that accused No.1 & 3 may
accept money outside the office and therefore he went out with
panch after them. Accused No.2 was not present when accused No.3
to give Rs.500/- to Accused No.2. There were no instructions to meet
accused No.3 at Wasim Hotel. It was not decided that he should
meet him at Wasim Hotel. It is not mentioned in his statement that
accused No.3 told him that he was waiting for him and that they
would go to pay the tax and that seals would be removed.
10. Thus, the evidence of PW-1 suffers from serious doubt. There
are various omissions in his statement. It is difficult to accept his
evidence about demand and acceptance of bribe. PW-1 and PW-2
had acted contrary to the instructions given by the raiding party. The
amount was not given to Accused No.1. His evidence does not
inspire confidence. There was no conversation with accused No.2 to
about demand and acceptance of bribe amount.
11. PW-2 Prasad Patkar is panch witness. He stated that he
attended Anti-Corruption Bureau Office on 5 th July, 2000 along with
Deepak Phulkar. Complainant was present. His complaint was that
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one Khot employee of T.M.C. demanded bribe from him to open seal
of his flat. He was told to act as panch witness. Complainant
produced cash of Rs.2,000/-. Anthracene Powder was applied. Notes
were shown under ultra violet light. He kept the notes in his pocket.
Panchanama was drawn. He was instructed to accompany the
complainant as his relative. Phulkar was instructed to accompany
raiding party. They left ACB office. They reached the office of T.M.C.
Accused was not present. Accused No.2 was present. He told that
Accused No.1 had proceeded towards building. They proceeded
towards that building which was in front of office. Raiding party
followed them. Accused No.1 was not present. They returned to
office. They met Accused No.3. He was secretary of the society of
the complainant. He took them to Wasim Hotel. Accused No.3
inquired with complainant whether he did the job of Accused No.1.
He replied in affirmative. Accused No.3 told him that Accused No.1
will not accept money from him and that the money should be given
to him. On this complainant gave amount to him. He accepted the
same. Accused No.3 told him to pay the tax in the office. They went
to office. Accused No.1 was not present. Accused No.2 was present.
They waited for Accused No.1. After sometime Accused No.1
reached there. Accused No.3 was present. Accused No.1 called
Accused No.3 outside and asked him whether his work was done.
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Accused No.3 said 'yes'. Accused No.1 instructed Accused No.3 to
give Rs.500/- to Accused No.2. He further told that Accused No.3
should keep the remaining amount with him and he would collect
later on. Thereafter they went inside the office. Accused No.1
instructed Accused No.2 to receive the tax amount and he left the
place. He instructed Accused No.2 to handover the key of the flat.
The complainant paid the tax amount. Receipt was issued. Receipts
were given to Accused No.1. On giving signal, raiding party reached
the spot. Accused No.2 was apprehended. Currency notes of
Rs.500/- were recovered from Accused No.2. Rs.1,500/- were found
with Accused No.3. In the cross examination he stated that as per
instructions, the complainant was to contact Accused No.1 and talk to
him and handover the trap notes in the event there is demand of
bribe from him. The raiding party members were outside. On
finding that Accused No.1 was not in the office, they did not contact
the Investigating Officer. There were no instructions to search for
Accused No.1, if he was not present in the office. They crossed
distance of about 10 minutes for his search. They did not inform
about it to Shri. Devde. He did not feel that it is necessary to inform
about the said fact to Shri. Devde. They did not feel that trap was
over as Accused No.1 was not present at the office. Shri. Devde had
instructed him to accompany the complainant till further instructions.
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He was aware that the notes were to be given to Accused No.1.
Complainant told him that Accused No.3 was secretary of the society.
He felt that the trap notes were not given as per instructions. It did
not occur to him that it was not proper. He did not disclose to Shri.
Devde that the notes were given to wrong person. He did not know
how Accused No.3 reached the spot. Accused No.1 had reached the
office at about 4.00 to 4.15 p.m. He was there for about 10 to 15
minutes. The trap notes were with Accused No.3. It did not occur to
him to prevent to Accused No.3 from going out. From conversation
between Accused No.2 and Accused No.1 he came to know that he
was the officer. Shri. Devde did not ask him why signal was not
given on arrival of Accused No.1. He did not tell PW-1 to inform
Shri. Devde that the Accused No.1 is leaving office. He was not
knowing Accused No.2. His name was disclosed accidentally. There
were no instructions whether trap amount was to be paid. The trap
amount was given to Accused No.2 by the same hand by which trap
notes were given by complainant. They were at Wasim hotel for 10
minutes.
12. PW-3 Kalyaneshwar Bakshi is the sanctioning authority.
According to him he was Muncipal Commissioner, Thane. He was
competent to appoint Assistant Tax Inspector and clerks in the
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corporation. He received investigation papers from ACB with request
to accord sanction for prosecution. He went through the papers and
came to the conclusion that it was fit case for filing charge-sheet.
The general body resolved to accord sanction for prosecution of the
Accused. On the basis of that resolution he accorded sanction by
order dated 26th June, 2001. The sanction order was issued on 27th
June, 2001. In the cross examination he stated that the copy of
resolution was sent along with sanction order. He produced
forwarding letter received from ACB. He admitted that draft sanction
was sent to him in sealed envelope. He did not remember whether
documents about the sanction of the flat of complainant were seen by
him. Flat and shops of defaulters were purchased by the corporation
for normal price. The complainant was defaulter. There was no
demand by Accused No.2. He did not accept bribe from him. The
Police papers revealed that the complainant did not follow the
instructions of ACB officers in giving trap notes, even though, he did
not find any suspicion. He relied on the report of ACB and
investigation papers. The sanction order was drafted by personnel
officer. He approved it. It is identical to draft sanction.
13. PW-4 Kedu Ragho Devde is the Investigating Officer. According
to him complainant lodged the complaint against Accused No.1 about
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demand of bribe. He arranged the trap. Panch witnesses were
summoned. Amount was arranged by complainant. Instructions
were given to complainant and the panch witnesses. The
complainant was instructed to visit office of Accused No.1 with panch
witness. The trap notes were to be handed over to the Accused in the
event of demand by him. On receipt of the bribe amount by Accused,
the complainant was instructed to give signal to the raiding party.
They left the office for trap. The raiding party along with him was
waiting outside the office of Accused. He met Accused No.3. Three
of them entered the hotel. They came out of the hotel and went
towards the municipal office. Accused No.1 came to his office. After
sometime Accused No.1 left the office. Accused No.2 was working as
clerk in the office. Complainant gave signal to the raiding party.
Thereafter, they approached into the office of Accused No.1 and
caught the hands of Accused No.2. The complainant was asked to
wait outside. Tainted money were recovered. Traces of anthracene
powder were noted on the currency notes. Panchanama was
recorded. Statements of witnesses were recorded. Accused were
arrested and subsequently granted bail. Papers were forwarded for
obtaining sanction. Sanction was accorded. Charge-sheet was filed
against the Accused. In the cross examination he deposed that, he
was convinced about the story reflected in the last paragraph of the
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complaint. He arranged trap against Accused No.1. Instructions
were given to the raiding party, complainant and panch witnesses.
Wasim Hotel is adjacent to Municipal Office. Going towards the hotel
by complainant and panch witnesses was contrary to instructions
given to them. He did not feel it necessary to know why they acted
so. He had no discussion with the second panch and members of
raiding party about it. He has no personal knowledge about the
events occurred inside the Wasim Hotel and Municipal office. He did
not feel it necessary to know why they came out of the office after
first visit and went towards Sagar Apartment. He did not know
where they were going. He did not feel it necessary to know why
they again returned to Municipal Office. Till the signal was received,
he was not aware whether the complainant and panch witness had
met Accused No.1. On receiving signal, he felt that Accused No.1
had accepted the trap amount. The complainant pointed out fingers
towards Accused No.2 and Accused No.3 and told that money was
received them. He did not inquire about Accused No.1. He came to
know from Accused No.2 and Accused No.3 that the Accused No.1
was not there. He did not find it necessary to mention one person
had entered the office and subsequently his name was revealed as
Khot (Accused No.1). The events which were not personally seen by
him are narrated in the complaint as told by complainant. There
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were no instructions in respect to Accused No.2 & Accused No.3. The
trap was against Accused No.1. The Deputy Superintendent of Police
did not make any endorsement on the complaint. There is no record
that he read the complaint. Statement was not recorded during
investigation. He do not know why he was examined by the
prosecution. It was revealed that three flats from Arafat Mahal were
seized by Corporation due to arrears of tax. The flats were auctioned
and the same were purchased by corporation. As per the auction, the
Corporation became owner of the flat. The complainant was given
possession of the flats. The complainant moved an application to the
Commissioner for possession of flats. Accused No.3 was arrested on
the same day. He did not record the statement of Municipal
Corporation. Supplementary statement of the complainant was
recorded. He did not state before him that Accused No.1 had
instructed to give Rs.500/- to Accused No.2. When he caught
Accused he did not know where and when the trap notes were given.
He did not feel it necessary to inspect tax amount under ultra violet
light.
14. In addition to explanation given by the Accused qua questions
put to them while recording statement under Section 313 of Cr.P.C.,
Written statements were filed by them. The written statement filed
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by Accused No.1 mentions that incriminating circumstances
appearing on record were put to him in the form of questions &
answers. He denied the incident alleged against him. The
complainant filed false complaint as he told him that it was not
possible to remove the seals even if he pays the tax in respect to three
flats. Seals were put up by corporation which had purchased the flat
in auction and reserved for rehabilitation. The complainant did not
visit his office. He had gone to Mumbra for routine work. He has
instructed Accused No.2 to receive the tax amount. He did not
instruct the Accused No.3 to pay Rs.500/- to Accused No.2. Accused
No.2 has also filed similar statement and contended that he has been
falsely implicated in the case. On the day of trap, he was in the office
and the Accused No.1 had gone to Mumbra office. The complainant
paid the tax. Accused No.1 was not in the office at all. Bribe was not
demanded by the Accused. Accused No.3 has also filed written
statement and contended that PW-1 was in arrears of maintenance
charges. The complainant gave writing that he would pay the arrears
of maintenance. The arrears was to be paid by Accused No.3. The
flats were sealed by the Corporation in 1998. On 5 th July, 2000 he
was at his residence. In the afternoon, he was conveyed the request
of complainant. He was told to accompany him for collecting the
receipt of tax. He went to T.M.C. office. He has no acquaintance
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with Accused No.1 and Accused No.2. He had not met Accused No.1.
False complaint is filed by PW-1. He was not concerned with the
trap.
15. From the evidence of all these witnesses it is apparent that the
prosecution case suffers from serious doubt. The trial Court gave
findings of acquittal. The impugned judgment was based on the
reasoning of trial Court. The version of PW-1 is doubtful. The
evidence of PW-2 contradicts PW-1. Motive has been attributed to
PW-1 for falsely implicating the Accused. The demand of bribe by
Accused No.1 has not been established beyond doubt. The case of
the prosecution is that bribe was demanded by Accused No.1. The
Accused No.3 was the abettor. He accepted the money from PW-1.
Amount of Rs.500/- was handover to Accused No.2. There was no
demand of bribe by Accused No.2. Accused No.1 and Accused No.2
are public servants. The entire case of the prosecution speaks
volumes of doubts. The complainant and the panch witnesses have
acted contrary to instructions given to them. Accused No.2 was not
in picture at all. Accused No.3 was also not concerned with the
work. The complainant had approached Accused No.1. Accused
No.1 was not present in the office when PW-1 & PW-2 had visited the
office. It has not been explained that PW-1 & PW-2 has proceeded
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towards the building. They were acting contrary to the instructions
by the officers of ACB. The alleged conversation of PW-1 and
Accused No.1 does not refer to involvement of either Accused No.3 or
Accused No.2. Accused No.3 has been inducted by the complainant
himself. It is not the case of the prosecution that Accused No.1 had
requested PW-1 to handover bribe amount to Accused No.3 or
Accused No.2. Money was not accepted by Accused No.1. Accused
No.3 is not a public servant. The defence of Accused No.3 would
indicate that he was Secretary of the society where the flats of
complainant were situated. Accused No.3 was collecting arrears of
maintenance. Flats were sealed on account of non-payment of
charges. The complainant was interested in releasing the flats. The
Accused No.1 had instructed the complainant to pay the tax. The
question of demanding bribe does not arise.
16. The trial Court has taken into consideration the infirmities in
evidence and rightly acquitted the Accused. The conduct of
complainant is suspecious. As per evidence of PW-4 it is apparent
that flats were sealed for non-payment of tax. The property was
auctioned. The Corporation purchased the property. The flats were
earmarked for transit accommodation. The Accused No.1 was
Deputy Assistant Tax Inspector in Kausa Office of Corporation.
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According to complainant he met Accused No.1 along with Accused
No.3. Accused No.1 demanded Rs. 3,000/- as bribe for removing
seal. According to him Accused No.3 introduced him to Accused
No.1 and appraised him of facts and requested to calculate the tax
and remove the seals. This part of evidence is an omission. In the
meeting on 29th, Accused No.1 allegedly told him that the seals would
not be removed if the bribe amount was not given. This is an
omission. It appears that after purchase of flats by Corporation in
public auction and earmarked for certain purpose, it would not be
within power of the Assistant Tax Inspector to remove the seals.
17. The statement of complainant is contrary to prosecution case.
There were no instructions to contact Accused No.3 at Wasim Hotel.
The instructions were to contact Accused No.1 and give trap notes to
him on demand. The Panchanama is silent about instructions when
the complaint was given and preparations were made and
instructions were given, the Accused No.3 was not in picture. If
Accused No.1 had asked PW-1 to give money to Accused No.3, this
fact would have been mentioned in the complaint. Trap would have
arranged by taking into consideration of this fact. In normal course
PW-1 and PW-2 would not have gone in search of Accused No.1.
They could have waited in the office for his arrival. However, they
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went towards Sagar Apartment contrary to instructions. PW-1 did
not contact the raiding party when Accused No.1 was not found in
the office. They could not have searched Accused No.1 at Sagar
Apartment. They did not contact raiding party. According to panch
he took them to Wasim Hotel. Accused No.3 inquired whether he has
done the job of Khot (Accused No.1). Trap amount was given to him.
If amount was given to Accused No.3 at Hotel Wasim either before
making search for him or thereafter, the trap was over and there was
no reason to again contact Accused No.1. The plan as per pre-trap,
panch was to trap Accused No.1. However, the action was contrary.
All these aspects create doubt about the prosecution case. The Trial
Court has assigned cogent reasons for acquittal. I do not find any
infirmity in the decision of the trial Court. The appeal must fail.
18. Hence, I pass the following order:-
ORDER
Criminal Appeal No.1175 of 2006 is dismissed and
stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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