Bombay High Court
The State Of Maharashtra vs Dhanpal Dadu Kamble on 18 January, 2022
Bench: Prakash Deu Naik
rpa 1/19 1 apeal 1107 2013 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1107 OF 2013
State of Maharashtra ]
(Through the Police Inspector, ]
Anti Corruption Bureau, ]
Kolhapur) ] .. Appellant
Versus
Dhanpal Dadu Kamble ]
Age - 63 years, ]
Occupation - Pensioner, ]
R/at. Jaysingpur, Taluka - Shiro, ]
District - Kolhapur. ] .. Respondent
......
Mr.S.H. Yadav, APP for the Appellant - State.
Mr.Anand S. Patil, Advocate for the Respondent.
......
CORAM : PRAKASH D. NAIK, J.
DATED : JANUARY 18, 2022.
ORAL JUDGMENT :
This is an appeal preferred by the State of
Maharashtra challenging the judgment and order dated 30th April,
2013, passed by Special Judge, Ichalkaranji, District-Kolhapur, in
Special Case No.2 of 2006. The respondent was acquitted of the
offence under Sections 7 and 13(1)(d) read with Section 13(2) of
Prevention of Corruption Act, 1988 ("PC Act", for short).
Digitally
signed by
RAJESHRI
RAJESHRI PRAKASH
PRAKASH AHER
AHER Date:
2022.01.28
17:37:18
+0530
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2 The case of the prosecution is as follows:
(a) The complainant was conducting business of selling
Tobacco and Gutkha in village Mankapur, Taluka Chikodi,
District-Belgaum. On 13th May, 2005, one Amit Jawahar
Shah, resident of Ichalkaranji purchased Gutkha worth
Rs.9,000/- from the complainant in Mankapur and was
carrying the same to Sangli for sale. He was caught while in
possession of Gutkha by Sangli Octroi Naka. Thereafter
Amit Shah called the complainant disclosing the said fact
and asked him to come at Octroi Naka, Sangli to settle the
matter. The complainant told him that there is ban in State
of Maharashtra on Gutka, and, he has purchased it at
Mankapur, Karnataka State. He is not responsible for action
against him.
(b) On 14th May, 2005, Shah gave call to the complainant and
threatened him that he would send Gundas. On 14 th May,
2005 the complainant received a call from Assistant Sub
Inspector, Gaonbhag Police Station, Mr.Dhanpal Kamble
(accused), who told him to compensate Shah and
threatened him of consequences if he fail to do so.
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(c) The complainant visited Gaonbhag police station on 14 th
May, 2005 at 10:00 p.m. to lodge complaint against
Mr.Shah. The accused was available at police station. The
complainant disclosed the threats received by him. The
accused told him not to lodge complaint as he knows
Mr.Shah and he would convince him. The complainant
returned home.
(d) On 15th May, 2005, the accused again telephoned
complainant on his cell phone and told him that he has
settled the matter and demanded an amount of Rs.10,000/-,
from complainant. He avoided to make payment by giving
excuse that he is going out of station for two days and after
returning, he would meet him.
(e) On 18th May, 2005 at about 07:00 p.m., the accused gave
call to complainant and again demanded the amount of
Rs.10,000/-. The complainant disconnected the call. On 20 th
May, 2005, at about 08:30 to 09:00 a.m., the accused met
complainant and told him that inspite of work being done by
him, the complainant has not paid the demanded amount.
After negotiation the amount was reduced to Rs.2,000/-. The
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complainant decided to pay the said amount on the next
day. The complainant was not interested in making such
payment by way of bribe to the accused and, hence, he
approached the office of Anti Corruption Bureau, Kolhapur.
(e) The complainant narrated his grievance to the ACB Officer,
which was reduced into writing, as per his say.
(f) The ACB officer then summoned persons to act as panch
witnesses. The panch witnesses than visited ACB Office.
They were introduced to complainant. The facts were
narrated by complainant to them. Complaint was shown to
the panch witness. Thereafter, the characteristics and
features of anthracene powder and ultraviolet lamp were
explained to the complainant and the pancha witnesses. The
currency notes were produced by the complainant in the
denomination of Rs.500/- and Rs.100/-. The amount of
Rs.2,000/-, was arranged by the complainant for the
purpose of trap. The numbers of currency notes were
recorded in the panchanama. Anthracene powder was
applied to the currency notes.
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(g) Necessary instructions were given to the complainant,
pancha no.1 Balkrushna Kundale and panch no.2 Shailesh
Wagh as well as the staff of ACB. Complainant was
instructed to stay in the house with panch no.1, and, on
arrival of the accused, make conversation with him on the
subject, and, hand over the currency notes by removing it
from his pocket. In the event, the accused accepts the
money, he should give signal to the raiding party. P.W.1
panch witness Balkrikshna was instructed to stay with the
complainant and keep watch on the movements of
complainant and accused. Panchas were examined in the
light of ultraviolet light. The complainant, PI Sanjay Nikam,
panch witnesses and the ACB staff decided to proceed
towards the house of the complainant at Ichalkaranji. Pre-
trap panchanama was recorded.
(h) The raiding party than proceeded to the house of
complainant. As per instructions, complainant and panch
no.1 went to the house of complainant and panch no.2
waited with the ACB Staff near the vicinity of house of the
complainant.
(i) The complainant and panch no.1 came out of the house of
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the complainant. The complainant informed that he had a
conversation with the accused on his cell phone and he has
been told to meet near Narayan talkies. The complainant,
pancha and the raiding staff proceeded towards Narayan
talkies, Ichalkaranji.
(j) As per the instructions, complainant and panch no.1
proceeded towards Narayan talkies. The other members of
raiding party stood nearby. Within short time, the accused
came at the spot in uniform. Pancha no.1 and the
complainant approached him. They had a conversation with
him. Complainant took out currency notes by his right hand
and handed over to the accused. The complainant than
gsve signal to the raiding party, and, thereafter all of them
rushed to the spot and apprehended accused. The accused
had thrown the currency notes on the road. The raiding
staff caught the hands of the accused. The currency notes
were recovered from the spot. The traces of anthracene
powder were noted on the currency notes as well as the
hands of the complainant and accused. Panchanama was
prepared. Accused was arrested. Charge - sheet was fled.
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3 Charge was framed for the offences under Sections 7,
13(1)(d), 13(2) of the Prevention of Corruption Act, vide order
dated 25th August, 2011.
4 The prosecution has examined fve witnesses. P.W.1
Raju Pachpure is the complainant, P.W.2 Balkrishna Kundale is
the panch witness, P.W.3 Sukhawinder Singh Arjansingh is the
sanctioning authority, P.W.4 Sanjay Nikam is the investigating
officer and P.W.5 is Ravindra Dinkar Joshi. The evidence of the
witnesses were recorded. Documents were executed in evidence.
Statement of the accused was recorded under Section 313 of
Cr.P.C. After hearing both the sides, trial Court had come to the
conclusion that prosecution has failed to prove the charges
against the accused. The accused was acquitted of both the
charges.
5 On perusal of the impugned judgment of acquittal, it
can be seen that the trial Court has appreciated the evidence.
The trial Court has assigned reasons while acquitting the
accused.
6 Learned APP has submitted that the judgment of the
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trial Court is contrary to evidence on record. The prosecution has
established the demand as well as acceptance of bribe amount.
The evidence of complainant and the panch witnesses
corroborates each other. There was no reason to disbelieve the
prosecution witnesses. The presumption under Section 20 of the
PC Act was not rebutted by the accused. The fndings of the trial
Court are contrary to evidence on record. The judgment is
perverse. The prosecution has establish its case beyond
reasonable doubt. The judgment of the trial Court is against the
settled principles of law. The trial Court has failed to appreciate
that the evidence on record was sufficient to hold the accused
guilty of both the charges. The accused had demanded bribe of
Rs.10,000/-. It was reduced to Rs.2,000/-. The amount was
accepted by the accused. It was recovered from the spot of
incident. Anthracene powder was found on the currency notes
and the hands of the accused and complainant. Thus, the
reasoning of the trial Court is contrary to record. The pre trap
panchanama, trap panchanama, complaint and the documents on
record had supported the case of the prosecution. The currency
notes seized from the place of incident was the same which was
referred to in the panchanama. Thus, the order of acquittal has
resulted in miscarriage of justice.
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7 Learned counsel for the respondent submitted that
the appellant has not made out case for interfering in the
judgment of acquittal. There is no reason to set aside the
impugned judgment. The trial Court has assigned cogent reasons
for giving fnding of acquittal. The basic requirement to
constitute the alleged offences were not established. The demand
is sine qua non to prove the offence. The demand has not been
proved. The complainant was habitually fling complaints. The
call details which were produced during the trial were not
reliable to convict the accused. The trial Court has observed that
the complainant's version is doubtful. He has not produced any
evidence to establish that Amit Shah had purchased Gutkha from
him, he was apprehended by the Octroi inspector, Complaint was
fled against him and that he had threatened the complainant.
The basic cause for approaching the police and for which the
alleged demand of bribe was made by the accused has not been
established. The trial Court has analysed the evidence of
witnesses in detail and has come to the conclusion that the
prosecution has not been able to prove the charges against the
accused. Considering the reasons assigned by the trial Court for
passing order of acquittal, the case for interfering in the said
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judgment is not made out. The judgment of acquittal can be
interfered only in exceptional circumstances, as laid down in
several decisions of Apex Court and this Court. The respondent is
a senior citizen aged about 74 years. The judgment of the trial
Court does not warrant any interference.
8 I have perused the fndings of the trial Court. It is
apparent that the trial Court has scanned the evidence and
assigned cogent reasons for disbelieving the prosecution case
and acquitting the accused. I do not fnd any reason to deviate
from the view taken by the trial Court while passing the
impugned judgment.
9 From the evidence of the complainant, it appears that
he was conducting business of sale of Tobacco and Gutka in
village Mankapur, District Belgaon. On 13 th May, 2005, one Shah
had purchased Gutkha worth Rs.9,000/- from him. On 14 th May,
2005, Shah was caught by Octroi officer at Sangli. He was found
in possession of Gutkha. Hence, Shah called him on his cell phone
and told him to visit Sangli to help him. The complainant told him
that Gutkha was sold by him in State of Karnataka. There is ban
on sale of Gutkha in State of Maharashtra. Hence, he is not
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concerned with the said case. It was further stated by the
complainant that Mr.Shah had threatened him of dire
consequences. The complainant then received a call from the
accused on 15th May, 2005, and, he was told that he has settled
the matter and demanded Rs.10,000/-, from the complainant. The
amount was subsequently negotiated and it was agreed that the
complainant shall pay an amount of Rs.2,000/-. Complaint was
lodged by him. P.W.2 is the panch witness. P.W.4 is the
investigating officer. On analysing the evidence of these
witnesses, the trial Court in paragraph 29 of the impugned
judgment has observed that the prosecution has not examined
any police officer to establish the fact that the accused was
present at 10:00 p.m. on 14th May, 2005, and, at that time the
complainant visited Gaonbhag police station to lodge complainant
against Mr.Shah, and, that he had advised him to not to lodge
complaint. It was further observed that the complainant has
admitted in the cross-examination that he is residing within the
jurisdiction of Shivajinagar police station, Ichalkaranji. Even it is
presumed that complainant received phone of the accused about
threats, the complainant ought to have lodge the complaint with
Shivajinagar police station, Ichalkarnaji. P.w.1 has admitted in the
cross-examination that he did not make any complaint to the
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superior officer against the accused in respect of demand of
bribe. He did not disclosed the demand of bribe made by the
accused to anybody. According to P.W.1, he sold Gutkha worth
Rs.9,000/-, to Mr.Shah who was caught with Gutkha by Octroi
naka at Sangli. He was threatened by Mr.Shah for not helping
him. However, the investigating officer had not applied his mind
to the version of the complainant. No investigation was done by
the Investigating officer with regards to the fact that Mr.Shah
was fond in possession of Gutkha after it was purchased from the
complainant. The IO could have collected the document about
seizure of Gutkha from the custody of Mr.Shah at Jakat Naka. The
prosecution did not examine Mr.Shah to prove the fact for
purchase of Gutkha from complainant or any other officer of
Octroi Naka, Sangli for seizure of Gutka from custody of Mr.Shah.
The trial Court therefore observed that it is difficult to accept the
testimony of P.W.1 that he sold Gutka of Rs.9,000/- to Mr.Shah on
13th May, 2005, and, that Mr.Shah was caught with Gutkha which
gave rise to issuing threats to the complainant by Mr.Shah and
the accused.
10 The prosecution had relied upon the call detail report
in respect to the mobile phone of the complainant for the period
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14th May, 2005 to 20th May, 2005. The call detail report is the
computer print out issued by the service provider Airtel,
Kolhapur. The trial Court had observed that the provisions of
Section 65(b) of the Evidence Act about admissibility of electronic
record were applicable. As per Section 65(4), the certifcate
about identifying the electronic record produced by the computer
etc., purported to be singed by a person occupying responsible
official position in relation to the operation of the relevant devise
or the management must be given. It was further observed the
the CDR Exhibit-73 was not issued by Nodal Officer of Airtel
company.
11 The prosecution examined P.W.5. he is Sub Divisional
Engineer of BSNL Ichalkaranji Division. He stated that at
Gaonbhag Police Station, Ichalkarnaji, there is land line phone
from 1995 provided by BSNL Company. Adjacent to the police
station there is private coin box phone. Due to change of
software, call details of the said phones were not available with
BSNL company. He did not obtain the CDR landline of Gaonbhag
police station and the coin box. He did not obtain the phone
register of Gaonbhag police station to establish that from 14 th
May, 2005 to 25 May, 2005, phone calls were made from landline
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phone of Gaonbhag police station on the cell phone of
complainant. The trial Court has observed that it is difficult to
understand as to why the investigating officer has not collected
the aforesaid material documents to establish the link between
the cellphone of Raju and the landline phone of Gaonbhag police
station. The trial Court, therefore, held that the CDR Exhibit-73,
is of no use to the prosecution. In paragraph 43 of the impugned
judgment, it is observed that evidence of P.W.1, P.W.2 and P.W.4
indicate that on 20th May, 2005, at about 04:15 p.m., they came to
the house of complainant and led trap. At 07:00 p.m., the
complainant received phone on his cell phone from Gaonbhag
police station. Accused told him to come with money near
Narayan talkies. The raiding party visited the spot. From their
evidence, it appears that the accused came in police uniform near
Narayan talkies. He had a talk with the complainant and
demanded money, which was given by the complainant to the
accused. The accused accepted the amount and on realizing that
the raiding party had apprehended him, the currency notes were
thrown on the ground. From the evidence of P.W.1, P.W.2 and
P.W.4, it appears that P.I. Sanjay Nikam told P.W.2 to collect the
currency notes thrown on the ground which he did so and the
accused was taken in custody. The hands of the accused were
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examined. The currency notes were examined. In the complaint it
is not mentioned that accused had agreed to go to the house of
complainant for accepting bribe amount. P.W.2 and P.W.4 deposed
that the complainant had not stated that accused was coming to
his house and the same is not refected in the complaint. If such
fact was not disclosed by the complainant, than the question
arises as to why the complainant and PI Sanjay Nikam decided to
led trap at the house of the complainant.
12 P.W.1 and P.W.2 stated that at about 7:00 p.m., they
were going towards the jeep and at that time, the complainant
received phone call from the accused on his cell phone and
accused told him to come near Narayan talkies. The evidence of
P.W.2 is contrary to P.W.2. P.W.2 stated that complainant received
phone of accused when they were in the house of complainant.
The testimony of P.W.1 and P.W.2 about receipt of phone of
accused for proceeding to Narayan talkies is contrary to each
other. P.W.2 stated that after taking currency notes from
complainant, the accused walked at the distance of 50 feet. After
getting signal from the complainant, the raiding party came there
and caught hold of accused. At that time, the accused threw notes
on the road. P.W.1, P.W.2 and P.W.4 admitted that the road in front
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of Narayan talkies is busy traffic road. There are tea stalls, pan
shops near Narayan talkies. Prosecution has not examined any
person from the shops. It is difficult to accept that after getting
currency notes, the accused walked at the distance of 50 feet
with currency notes in his hand. P.W.2 has admitted that he read
the panchanama and accordingly deposed before the Court to
refresh his memory. If the accused had accepted money, he would
have tried to hide the notes in the pocket immediately, and, in
that case anthracene powder could have appeared on his clothes.
13 The distribution sheet Exhibit-72 indicate that on 20 th
May, 2005, the accused was on duty as police station officer. This
fact is admitted by P.W.4. It is difficult to accept that the officer
who is in uniform will come on the road and accept bribe amount
openly in the presence of public, which appears improbable. He
would have sent another person for accepting bribe from
complainant. The defence of the accused is complainant and ACB
staff came in the premises of the police station and complainant
forcibly thrusted the currency notes in his hand. This probability
cannot be ruled out since the currency notes were thrown away
by the accused.
14 In paragraph 52 of the impugned judgment, it is
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observed that P.W.3 has admitted that he did not give any hearing
to the accused before according sanction. Draft sanction was sent
to him. P.W.4 stated that draft of sanction was sent along with
charge-sheet and the investigation papers for grant of sanction to
Superintendent of police Kolhapur. However, the said draft is not
fled in this case. The proforma draft and sanction would have
been produced in the case, it would have to help the Court to
consider whether the sanctioning authority has granted sanction
by applying the mind or whether the same proforma has been
accepted by sanctioning authority. The copy of sanction letter
Exhibit 60 dated 6th February, 2006, indicate that P.W.3 has put
his signature on the said letter on 10th February, 2006. If sanction
was accorded by P.W.3 by applying the mind independently than
the question arises as to why there is difference of date on the
sanction letter. The prosecution has not produced the proforma or
draft of sanction sent to the sanctioning authority. This shows non
application of mind by P.W.3 while according sanction.
15 P.W.1 did not receive any threat from Shaha or his
Gunda from 15th May, 2005 to 25th May, 2005. If Mr.Shah wanted
to recover compensation from P.W.1, he would have demanded
the amount from him by meeting personally, through agent or by
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issuing threats. The prosecution has not proved the fact that
accused sold Gutka worth Rs.9000/- to Shah and that he was
caught at Octroi naka Sangli while carrying Gutka to Sangli,
which is the main cause of demand of bribe by the accused. P.W.1
admitted that he was conducting business of tobacco and Gutka
illegally, without licence of the Excise department at
Ichalkarangi. The Excise department had effected raid at his
house for doing illegal business of Tobacco and Gutka. He fled
private complaint against police constable attached to Gaonbhag
police station, Ichalkaranji under Sections 7 and 13 of P.C. Act
and Section 392 and 506 read with 34 of IPC. Presumption under
Section 20 of P.C. Act is rebutteble. To invoke presumption, the
fundamental aspects of demand and acceptance has to be
established. The prosecution case is full of doubts. Trial Court has
appreciated the evidence in proper perspectives. I have
scrutinized the evidence of the witnesses. The evidence suffers
from doubt.
15 In the light of the factual aspects of the matter, there
is no reason to set aside the judgment of acquittal. Hence, this
Appeal must fail.
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16 Hence, I pass the following order:
:: O R D E R ::
Criminal Appeal No.1107 of 2013, is
dismissed and disposed of accordingly.
(PRAKASH D. NAIK, J.)
