Amrut vs The State Of Maharashtra
2022 Latest Caselaw 5543 Bom

                                                  Criminal Appeal No.228/2005
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.228 OF 2005


 Amrut s/o Gajmal Chavan
 age 55 years, Occu. Police-Sub-
 Inspector, At present residing at :
 Ramnagar Police Colony,
 BlockNo.243, Old Lane, Jalna,
 District Jalna,
 Deceased, through L.R.
 Kashibai Amrut Chavan,
 Age 67 years, Occu. Household,
 R/o Ram Nagar, Police Colony,
 Jalna, Tal. & Dist. Jalna                           ... APPELLANT

          VERSUS

 The State of Maharashtra
 (Copy to be served on the
 Public Prosecutor, High Court
 of Bombay, Bench at Aurangabad)                     ... RESPONDENT

                                .......
 Shri K.C. Sant, Advocate for appellant
 Shri R.B. Bagul, A.P.P. for respondent - State
                                .......

                                  CORAM :       R. G. AVACHAT, J.

                  Date of reserving judgment : 26th April, 2022
                  Date of pronouncing judgment : 17th June, 2022

 JUDGMENT:

The challenge in this appeal is to the order of

conviction and resultant sentence dated 28/3/2005, passed by

Criminal Appeal No.228/2005 :: 2 ::

Special Judge, Aurangabad in Sessions Case No.22/2001.

Vide impugned judgment and order, the original appellant was

convicted for the offences punishable under Sections 7, 13(1)

(d) read with 13(2) of the Prevention of Corruption Act, 1988

and, therefore, sentenced to suffer rigorous imprisonment for

six months and one year respectively with direction to pay

fine of Rs.250/- on each count. In default of payment of fine,

he was directed to undergo simple imprisonment for one

month.

The original appellant/ passed away pending the

appeal. His widow has, therefore, come on record to pursue

the appeal.

2. Facts giving rise to the present appeal are as

follows :-

                  P.W.1        Inayatkhan      (complainant)          was        in

 construction business.           One Dr. Abdul Hameed, residing at

 Samta Nagar, Aurangabad had engaged him                            for some

 construction          work.       The   complainant       completed           the

construction work during 27/11/2000 to 6/12/2001. A sum of

Rs.13,880/- was said to have been due from Dr. Hameed to

the complainant. In spite of repeated demands, the amount

Criminal Appeal No.228/2005 :: 3 ::

was not paid. Dr. Hameed had come to the house of the

complainant on 4/4/2001. The complainant was not home.

His wife Kalimabi was there. Dr. Hameed abused and

threatened her with dire consequences. Kalimabi had,

therefore, lodged a report with Mahanubhav Ashram Police

Chowki on 5/5/2001. It is also the case of the complainant

that, again on 6/5/2001 Dr. Hameed came his home along

with 4 - 5 persons. The complainant was not home. All of

them abused and gave threats to the life of Kalimabi. The

complainant and Kalimabai again went to the Kranti Chowk

Police Station, Aurangabad. Kalimabi lodged the report.

Since no action was taken on the report, the complainant had

to meet the Commissioner of Police.

3. It is also the case of the prosecution that the

complainant again went to Mahanubhav Ashram Police Chowki

on 29/5/2001. The original appellant (since deceased) was

present there. He recorded the statements of two persons

named in the complaint as witnesses. He made a demand of

Rs.1000/- to act upon the police report and arrest Dr.

Hameed. The complainant's friend Raju Khotkar and

Nasiroddin were in his company. Again on 30/5/2001, the

complainant went to the Police Chowki. The original appellant

Criminal Appeal No.228/2005 :: 4 ::

again made a demand. The complainant told him that he

could pay only Rs.500/-. He, therefore, asked the

complainant to come with money. Since the complainant did

not want to pay bribe, he approached Anti-Corruption Bureau.

The officer there recorded the complaint (Exh.17). It was

decided to lay a trap. Presence of two Government officials

was secured to act as panch witnesses. Pre-trap panchanama

(Exh.22) was drawn. The complainant and the witnesses

were duly instructed.

4. The complainant and shadow witness Rahimkhan

(P.W.2) went to the Police Chowki. The original appellant

questioned the complainant as to whether the amount was

brought. The complainant, in turn, paid the original appellant

5 currency notes of Rs.100 denomination, smeared with

anthracine powder. The original appellant received the

amount and kept in left pocket of his trouser. The

complainant then came out and gave a pre-determined

signal. The trap party arrived. The amount received by the

original appellant was taken charge of. A panchanama to that

effect was drawn. The statements of persons acquainted with

the facts and circumstances of the case were recorded. Post-

trap panchanama (Exh.23) was also drawn. All the papers of

Criminal Appeal No.228/2005 :: 5 ::

investigation were submitted to the Special Inspector General

of Police, Aurangabad for obtaining sanction for prosecution of

the original appellant. P.W.3 Sudhakar (Spl. I.G.), in turn,

granted the sanction for prosecution vide Exh.28. The

original appellant thus came to be proceeded against by filing

a charge sheet.

5. The Special Court framed the charge (Exh.8). The

original appellant pleaded not guilty. His defence was of false

implication. It was his case that, for police welfare

programme of known singer Udit Narayan was scheduled.

Officers of the original appellant had asked him to sell tickets.

The complainant was given 5 tickets worth Rs.500/-. The

complainant paid him that much amount with a false

complaint of the same being paid as a bribe. It is also the

case of the original appellant that mastermind of the trap was

one Raju Khotkar, against whose brother he had filed a

chapter case.

6. The prosecution examined 4 witnesses and

produced in evidence certain documents. On appreciation of

the evidence, the Special Court convicted the appellant and

consequently sentenced him to imprisonment as stated

above.

Criminal Appeal No.228/2005 :: 6 ::

7. Heard. Learned counsel for the appellant would

submit that, there was no verification of the demand. The

complainant owed the original appellant a sum of Rs.500/-

towards the tickets of the programme of singer Udit Narayan.

One Raju Khotkar, against whose brother chapter proceedings

were initiated by the original appellant was the mastermind.

At his behest a false complaint was lodged. According to

learned counsel, the original appellant had examined his

officer as defence witness. There was overwhelming evidence

to indicate the complainant was issued 5 tickets and a sum of

Rs.500/- was due from him. According to him, the appellant's

defence evidence makes out his case even on preponderance

of probabilities. Although the defence was led at belated

stage, the same could not be branded as an afterthought

since the same is supported with documentary evidence. The

learned counsel ultimately urged for allowing the appeal.

8. The learned A.P.P. would, on the other hand,

support the impugned judgment and order. According to him,

the defence raised by the appellant was afterthought. Soon

after the trap was successful, the original appellant gave an

altogether unconvincing explanation. Had he really sold the

tickets to the complainant and the amount was due from the

Criminal Appeal No.228/2005 :: 7 ::

complainant, the same would have been reflected in the

explanation offered by the original appellant soon after the

trap. In view of the learned A.P.P., there is no reason for

interference with the impugned judgment and order.

9. Considered the submissions advanced. Perused

the evidence in the case and the documents relied on. Let us

appreciate the evidence.

The original appellant at the relevant time was a

Police-Sub-Inspector. The Spl. I.G. was his appointing

authority. P.W.3 Sudhakar (Spl. I.G.) testified to have

granted sanction for prosecution of the original appellant after

going through all the papers of investigation. The sanction

for prosecution is at Exh.28. Nothing could be elicited from

his cross-examination so as to suggest that the sanction was

granted mechanically. P.W.3 Sudhakar (Spl. I.G.), however,

admitted that, some functions were arranged by Police

Commissioner's office to raise funds for police welfare

scheme. The police officials were instructed to exert to raise

the funds.

10. The complainant Inayatkhan (P.W.1) gave his

evidence consistent with the complaint (Exh.17). It is in his

Criminal Appeal No.228/2005 :: 8 ::

evidence that he was in construction business. One Dr. Abdul

Hameed, residing at Samta Nagar, Aurangabad had engaged

him for some construction work. The complainant completed

the construction work during 27/11/2000 to 6/12/2001. A

sum of Rs.13,880/- was said to have been due from Dr.

Hameed to the complainant. In spite of repeated demands,

the amount was not paid. Dr. Hameed had come to the house

of the complainant on 4/4/2001. The complainant was not

home. His wife Kalimabi was there. Dr. Hameed abused and

threatened her with dire consequences. Kalimabi had,

therefore, lodged a report with Mahanubhav Ashram Police

Chowki on 5/5/2001. It is also the case of the complainant

that, again on 6/5/2001 Dr. Hameed came his home along

with 4 - 5 persons. The complainant was not home. All of

them abused and gave threats to the life of Kalimabi. The

complainant and Kalimabi again went to the Kranti Chowk

Police Station, Aurangabad. Kalimabi lodged the report.

Since no action was taken on the report, the complainant had

to meet the Commissioner of Police.

11. It is also in the the evidence of complainant that

the he again went to Mahanubhav Ashram Police Chowki on

29/5/2001. The original appellant (since deceased) was

Criminal Appeal No.228/2005 :: 9 ::

present there. He recorded the statements of two persons

named in the complaint as witnesses. He made a demand of

Rs.1000/- to act upon the police report and arrest Dr.

Hameed. The complainant's friend Raju Khotkar and

Nasiroddin were in his company. Again on 30/5/2001, the

complainant went to the Police Chowki. The original appellant

again made a demand. The complainant told him that he

could pay only Rs.500/-. He, therefore, asked the complainant

to come with money. Since the complainant did not want to

pay bribe, he approached Anti-Corruption Bureau. The officer

there recorded the complaint (Exh.17). It was decided to lay

a trap. Presence of two Government officials was secured to

act as panch witnesses. Pre-trap panchanama (Exh.22) was

drawn. The complainant and the witnesses were duly

instructed.

12. The complainant and shadow witness Rahimkhan

(P.W.2) went to the Police Chowki. The original appellant

questioned the complainant as to whether the amount was

brought. The complainant, in turn, paid the original appellant

5 currency notes of Rs.100 denomination, smeared with

anthracine powder. The original appellant received the

amount and kept in left pocket of his trouser.

Criminal Appeal No.228/2005 :: 10 ::

13. The complainant was subjected to a searching

cross-examination. It is in his evidence that, he had never

intended to ensure arrest of Dr. Abdul Hameed. One Raju

Khotkar had accompanied him to the office of Anti-Corruption

Bureau. To the rest of questions, suggesting the appellant's

defence, the complainant did not give-in. P.W.2 Rahimkhan

was a shadow witness. It is in his evidence that, his officer

had asked him to attend the A.C.B. Office on 30/5/2001. He

accordingly went to the A.C.B. Office. The complainant and

another panch witness were present there. The complaint

lodged by the complainant was read over to them. A pre-trap

panchanama was drawn. The A.C.B. Officer had instructed

them and then he accompanied the complainant to the Police

Chowki.

It is further in his evidence that the original

appellant was present at the Police Chowki. He enquired with

the complainant as to whether the amount was brought. He

also informed the complainant that his file was ready and

assured to do the needful. The complainant then held the

bribe money. The original appellant in turn received the same

and kept it in left pocket of his trouser. The complainant then

went out of the Chowki and gave pre-determined signal.

Criminal Appeal No.228/2005 :: 11 ::

P.W.4 Bhanudas (Police Inspector) and others in the raiding

party immediately entered the Police Chowki. The bribe

money came to be seized from the original appellant. A

panchanama of the happenings there was drawn. Post-trap

panchanama was also thereafter drawn.

14. I have carefully gone through the cross-

examination of P.W.2 Rahimkhan. It has come in his evidence

that, he had no previous acquaintance with the original

appellant. He had accompanied the complainant to the Police

Chowki by 2.00 p.m. on the same day i.e. some time before

the raid. They took tea in the company of the original

appellant and then again went to the A.C.B. Office. Whatever

talk was there between the complainant and the original

appellant that time was narrated by him to the A.C.B. Officer.

To rest of the questions put to him during cross-examination,

the shadow witness did not give-in.

15. On the same lines is the evidence of P.W.4

Bhanudas Sonawane. It is in his evidence that the

complainant had approached the A.C.B. They recorded the

complaint lodged by the complainant. It was, therefore,

decided to lay a trap. He gave the relevant instructions to

both the complainant and the panchas. Accordingly, the

Criminal Appeal No.228/2005 :: 12 ::

complainant and the shadow witness first went to the Police

Chowki and after a pre-determined signal was received by

him, he entered the Police Chowki and seized bribe money

from the original appellant. It is further in his evidence that

pre-trap panchanama (Exh.22) and post-trap panchanama

(Exh.23) were drawn by him. Then he submitted all the

papers of investigation to Spl. I.G. for obtaining his sanction

for prosecution. He admitted to have not resorted to the

process of verification of demand. The evidence of this

witness appears to be inconsistent with the case of P.W.2

Rahimkhan that he had accompanied the complainant to the

Police Chowki some time before the pre-trap panchanama

was drawn. In the statements recorded of Sanjay Wagh and

Maruti Nade, it was transpired that both of them had been in

the company of the original appellant for a while and they had

a tea with the original appellant.

It is also in his evidence that, one Raju Khotkar

and Chandrakant Bansode were social workers. Both of them

had advised the complainant to make a representation. Close

scrutiny of the evidence of all the prosecution witnesses

undoubtedly indicate that the complainant was engaged by

the original appellant for some construction work. Some

Criminal Appeal No.228/2005 :: 13 ::

amount was due from Dr. Abdul Hameed to the complainant.

As the amount was not paid, there was some quarrel between

the two.

16. There is on record a complaint (Exh.18) dated

9/4/2001 lodged by the complainant against Dr. Abdul

Hameed. The contents thereof reinforce the case of the

complainant that Dr. Abdul Hameed had been to the

complainant's house and abused and extended threats to his

wife. It is not that the complainant had concealed his

acquaintance with Raju Khotkar. In examination-in-chief itself

the complainant testified that Raju Khotkar and one Sk.

Nasiroddin had accompanied him to the Police Chowki. P.W.2

Rahimkhan was an independent witness.

The evidence of both the complainant and the

shadow witness undoubtedly indicate the original appellant to

have had made a demand of bribe. The complainant, in turn,

paid him a sum of Rs.500/- as bribe money. The original

appellant kept the money in left pocket of his trouser. The

very amount came to be recovered from the possession of

original appellant. It is immaterial whether he has received

the amount by his right hand or left hand. There is no denial

of having not been found in possession of the currency notes

Criminal Appeal No.228/2005 :: 14 ::

smeared with anthracine powder.

17. Section 20 of the Prevention of Corruption Act,

1988 reads :-

"20. Presumption where public servant accepts any undue advantage :- Where, in any trial of an offence punishable under Section 7 or under Section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11."

18. It is, therefore, for the original appellant to rebut

the possession. Admittedly, there was nothing to indicate the

original appellant to have had any grudge against the

complainant to falsely implicate him. The complainant

himself had come clear in his examination-in-chief as well and

the complaint (Exh.17) itself that his friend Raju Khotkar had

accompanied him to request the original appellant to do the

needful in respect of the complaint lodged against Dr. Abdul

Criminal Appeal No.228/2005 :: 15 ::

Hameed. There is, therefore, nothing to indicate that Raju

Khotkar was a mastermind behind lodging of the report

against the original appellant.

19. Admittedly, the original appellant had an

opportunity to offer an explanation that the complainant owed

him Rs.500/- towards price of 5 tickets of Singer Udit

Narayan's programme. It is true that for welfare of police

personnel such functions are held to raise funds. In those

relevant days, singer Udit Narayan's Sangeet Programme was

scheduled for police welfare. Had really the original appellant

issued 5 tickets to the complainant with an understanding

that the amount was to be paid later on, he would have

stated accordingly in his explanatory statement. Admittedly,

the original appellant had availed the opportunity to offer his

explanation. His statement-cum-explanation (Exh.G) is to the

effect that the complaint lodged by the complainant against

Dr. Abdul Hameed was entrusted with him for enquiry. By

4.00 p.m. on 30/5/2001, the original appellant did enquire

into the matter. Both the complainant accompanied by one

person came to the original appellant's office and requested

him to take action against Dr. Abdul Hameed. It is the case

of the original appellant that the complainant forcibly thrusted

Criminal Appeal No.228/2005 :: 16 ::

the bribe money in his pocket. He was unaware of quantum

of money. Immediately thereafter A.C.B. Officer entered and

searched his person etc.

20. The trial Court has rightly observed that, had

really the said amount was due from the complainant towards

price of 5 tickets, the original appellant could have said so in

his explanation (Exh.G). The record indicates that, the

defence of the original appellant was very much afterthought.

True, he has examined Police Inspector Shri Chate as his

defence witness. From his evidence, the defence of the

original appellant has come on record. The said witness

testified to have had issued various ticket books to various

Police-Sub-Inspectors. Particular number of tickets had also

been issued to original appellant. The concerned Police-Sub-

Inspector had deposited with him the amounts collected on

sale of such tickets.

It is also in his evidence that Raju Khotkar had

met him for transfer of the original appellant as he had

initiated a chapter proceedings against Raju Khotkar's

brother. During cross-examination, the defence witness

admitted that Raju Khotkar had not made any written

complaint against the original appellant. After trap, he had

Criminal Appeal No.228/2005 :: 17 ::

paid visit to the spot as he was called by P.W.4 Bhanudas

Sonawane. He was shown Exh.18 and Exh.19 i.e. the

complaint lodged by the complainant against Dr. Abdul

Hameed. The documents Exhibits 34, 36 and 37 indicating

that the particular ticket booklets were issued to concerned

Police Inspectors do not bear official Outward Numbers. The

trial Court has, therefore, rightly observed that the defence

made by the original appellant and the documents relied on

were afterthought and prepared to suit the original appellant's

case. It is not that no singer Udit Narayan's programme was

scheduled. It is also not that it was not for welfare of police

personnel. It is also true that the police staff were asked to

sell tickets and collect funds for police welfare schemes. Had

really the original appellant issued tickets to the complainant

and amount thereof was due from him, he could have stated

the same before the investigating officer in his explanation

(Exh.G), which was given by him on the day he was trapped.

21. Learned counsel for the appellant relied on the

following citations :

(1) Uttam Ramji Shere V. State of Maharashtra [ 2018 (4) Mh.L.J. (Cri.) 40 ]

Criminal Appeal No.228/2005 :: 18 ::

 (2)      Vinod s/o Savalaram Kanadkhedkar V. State of Maharashtra
          [ 2016(4) Mh.L.J. (Ci.) 570 ]

 (3)      C.B.I. Vs. Ashok Kumar Aggarwal [ 2014 AIR SCW 472 ]

 (4)      State of T.N. V. M.M. Rajendran
          [ (1997) MAD LJ (Cri.) 543

 (5)      Panalal Damodar Rathi V. State of Maharashtra
          [ AIR 1979 SC 1191 ]

 (6)      K. Shanthamma V. State of Telangana
          [ AIR Online 2022 SC 182 ]


                   I have carefully perused the above citations.                In

my view, all of them are distinguishable on facts.

22. In the case of Uttam Shere (supra), there was no

evidence of demand of bribe. In case of Vinod Kanadkhedkar

(supra), the evidence as regards demand of bribe was found

to be doubtful. The judgment in Ashok Aggarwal's case

(supra) and M.M. Rajendran (supra) pertained to grant of

sanction for prosecution. In the case in hand, the sanction

for prosecution has not been seriously taken exception to

before the trial Court and this Court as well. The sanctioning

authority has specifically deposed to have had gone through

all the papers of investigation before sanction for prosecution

was accorded. P.W.4 Bhanudas Sonawane (investigating

officer) was categorical to state that all the papers of

Criminal Appeal No.228/2005 :: 19 ::

investigation were forwarded to the concerned authority for

obtaining sanction. Nothing was suggested to him in his

cross-examination disputing to have sent all the police papers

for obtaining sanction. The sanction order (Exh.28) itself

indicates the sanctioning authority to have had perused all

the papers of investigation and then accorded sanction.

23. In short, admittedly, the complainant had lodged

a police report against Dr. Abdul Hameed. Enquiry/

investigation thereof was entrusted with the original appellant

herein. The complainant had, therefore, been to the original

appellant to request him to do the needful. The original

appellant had made demand of Rs.1000/- first as illegal

gratification. He then scaled down the demand to Rs.500/-.

The factum of demand of bribe and acceptance thereof has

been proved by the evidence of the complainant and the

evidence of an independent witness, P.W.2 Rahimkhan.

Tainted bribe money came to be recovered from the original

appellant. In view of Section 20 of the Prevention of

Corruption Act, it was for the original appellant to at least

offer a reasonable explanation or to lead evidence in rebuttal

of presumption. The explanation offered by the original

appellant in writing soon after the trap was successful is

Criminal Appeal No.228/2005 :: 20 ::

grossly inconsistent with his defence. It was his explanation

that the complainant forcibly thrusted some currency notes

into his pocket. Had really the original appellant owed him

Rs.500/- towards price of 5 tickets of Udit Narayan Sangeet

Rajani, the original appellant could have given the same in his

explanation (Exh.G). The meeting between the complainant

and the shadow witness with the original appellant some time

before the trap was laid is of no consequence in the face of

overwhelming evidence on record. No question on that point

had been put to the complainant in his cross-examination. As

such, he did not have an opportunity to respond thereto. The

trial Court has passed a well-reasoned order, convicting and

sentencing the original appellant. On re-appreciation of the

entire evidence in the case, this Court finds no reason to

interfere with the impugned order of conviction and resultant

sentence.

24. The Criminal Appeal thus fails. The same is

dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-