Damu Ramu Avhad vs The State Of Maharashtra
2022 Latest Caselaw 6072 Bom

                                              Apeal-728-1998.odt

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO. 728 OF 1998

Damu Ramu Avhad,
Age 43 years, Police Sub-Inspector,
Yeola Taluka Police Station,
Taluka - Yeola, Dist - Nashik.                ...      Appellant

         Versus
The State of Maharashtra
(Dy. S.P., A.C. B., Nashik).                  ...      Respondent

                           ......
Mr. Ganesh Gole a/w Viraj Shelatkar, for the Appellant.
Smt.S.V. Sonavane, APP, for the State-Respondent.
                        ......
                           CORAM            : V. G. BISHT, J.

                           RESERVED ON : 29 th April, 2022.
                         PRONOUNCED ON : 30th June, 2022


JUDGMENT:

1. This is an appeal under Section 374(2) of the Code of

Criminal Procedure, 1973 against the conviction recorded

under Section 5(2) read with Sections 5(i)(d) of the

Prevention of Corruption Act, 1947 (' PC Act of 1947' for

short) and sentencing the appellant to undergo

imprisonment for one year and to pay fne of Rs.500/-, in

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default, to undergo further simple imprisonment for one

month and under Section 161 of Indian Penal Code ('IPC'

for short) and sentencing imprisonment for six months

and pay fne of Rs.200/- and in default, to undergo simple

imprisonment for 15 days in Special Case No. 01 of 1989

by learned Special Judge, Nashik vide Judgment and Order

dated 29th August, 1998.

2. In short, the case of the prosecution is that, the

complainant, namely, Karbhari Madhav Aher and his

younger brother Bhausaheb Madhav Aher are the resident

of village Erandgaon-Budruk, Tahasil- Yeola, District-

Nashik. According to complainant, on 07/03/1988 his said

younger brother had gone to Kopargaon to attend

marriage ceremony. On the same day, at about 6:00 to

6:30 p.m., PSI Avhad (appellant) and other police staf

carried out prohibition raid in the village. They also visited

the complainant's house and asked whereabouts of the

complainant's younger brother. They also told that his

brother had fed away after throwing the liquor and further

asked to bring him to the police station on the next day.

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3.       According    to   complainant,   on     09/03/1988,         his

younger brother met him when he narrated the incident of

prohibition raid dated 07/03/1988. The complainant's

younger brother told him that he had been to Kopargaon.

In the afternoon, the complainant visited Police Station,

Yeola and met PSI Avhad. PSI Avhad again asked the

complainant to bring his brother and also Rs.500/- for bail

along with surety on the next day. The complainant

pleaded that the amount of Rs.500/- was exorbitant and

therefore, said PSI Avhad reduced the said amount to

Rs.350/- and accordingly asked him to come along with his

brother on 11/03/1988 and get his brother released on

bail.

4. The complainant on 10/03/1988 approached the

office of the Anti Corruption Bureau and complained about

the demand made by PSI Avhad. He also informed that

neither he had fnancial transaction with PSI Avhad nor

any personal enmity.

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5. On the basis of said complaint, Dy.S.P. Anti Corruption

Bureau, Nashik summoned two panch witnesses and after

briefng them as to the anti corruption raid to be carried

out visited the office of PSI Avhad on 11/03/1988. A pre-

trap panchanama was also prepared in the office of Anti

Corruption Bureau.

6. Later on, the complainant, his brother and one

shadow panch witness, namely, Sahebrao Giridhar Patil

were asked to proceed police station, Yeola. Dy.S.P., Anti

Corruption Bureau, Nashik along with other staf members

also proceeded towards the police station on a vehicle. At

about 11:15 a.m. the complainant gave a predetermined

signal and therefore, Dy. S.P. and other staf members of

the raid party along with another panch witness entered

into the room of Police Station Officer. The complainant

informed that Police Havildar Pawar had accepted the

monies. An amount of Rs.350/- was recovered from his

possession. The traces of anthracin powder were also

found in his right hand and on the right pocket of his

payjama. Meantime, PSI Avhad also came there. A

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detailed panchanama was prepared on the spot.

7. This led to initiation of the prosecution of the

appellant and co-accused Police Havildar Pawar under

Section 5(2) read with Sections 5(i)(d) of the PC Act, 1947

and Sections 161 and 165-A of the IPC. The prosecution

examined their witnesses to prove the charges framed

again both the accused.

8. By judgment dated 29th August, 1998 the learned

Special Judge found appellant to be guilty of the charges

under section 5(2) read with section 5(i)(b) of the PC Act

of 1947 and section 161 of the IPC. It is against this

conviction and sentence, the present appeal is preferred

by the appellant.

9. Mr. Gole, learned Counsel for the appellant, while

assailing the legality and correctness of the impugned

judgment and order mainly argued two points. In the frst

place, the learned Counsel submits that although,

according to the complainant, there was demand of

monies from him so as to facilitate release of his brother Rekha Patil /Trupti 5/23 Apeal-728-1998.odt

on bail but the said alleged demand was never verifed by

the officials of the Anti Corruption Bureau. In the second

place, learned Counsel submits that there was no clear

and specifc demand of a bribe from the appellant. Even

at the time of alleged trap, except the complainant,

nobody else was present inasmuch as, according to PW-1 -

panch witness, he was asked to go out of the room and

whatever he claims that he heard appellant saying that

monies be given to Hawaldar Pawar (acquitted accused

No.2.), was without any corroboration. Learned Counsel

also invited my attention to the evidence of this witness

and pointed out that witness is not reliable.

10. Besides, learned Counsel also took me through the

cross-examination of the complainant and pointed out

material portion wherein the complainant admitted that

there was no specifc demand of bribe. Learned Counsel

also invited my attention to the statement of acquitted

accused Gambhir Hari Pawar wherein answer to question

No.9 shows that he did receive the amount of Rs. 350/-

from the complainant but it was the amount of surety.         This

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being so, there is improper appreciation of evidence and

the fndings of guilt recorded erroneously, the same is

liable to be set aside, argued learned Counsel.

11. Learned Counsel has also placed reliance on the

decisions in Dashrath Singh Chauhan Vs. Central

Bureau of Investigation1, Mangat Ram Vs. State of

Punjab2 and Rajendra Nivruti Gaikwad & Anr. V/s.

State of Maharashtra3.

12. In the case of Dashrath Singh Chauhan (supra),

learned Counsel for the appellant has placed reliance on

the following paragraphs :

"25. In our considered opinion, when the charge against both the Accused in relation to conspiracy was not held proved and both the Accused were acquitted from the said charge which, in turn, resulted in clean acquittal of Rajinder Kumar from all the charges under the PC Act, a fortiori, the Appellant too was entitled for his clean acquittal from the charges under the PC Act.

26. It is not the case of the prosecution that the Appellant had conspired with another person and even though the identity of the other person was not 1 (2019) 17 SCC 509 2 Criminal Appeal No. 222-SB of 1991 dated 3rd March, 2004 of High Court of Punjab and Haryana 3 Criminal Appeal No. 929 of 2010 dated 23rd February, 2021 of Bombay High Court

Rekha Patil /Trupti 7/23 Apeal-728-1998.odt

established, yet the Appellant held guilty for the ofence Under Section 120-B Indian Penal Code. On the contrary, we fnd that the case of the prosecution was that the Appellant conspired with one Rajinder Kumar to accept the sum of Rs. 4000/- as illegal gratifcation from Arun Kumar- the complainant.

27. Once Rajinder Kumar so also the Appellant stood acquitted in respect of the charge of conspiracy and further Rajinder Kumar- co-accused was also acquitted from the charges under the PC Act, the charges against the Appellant must also necessarily fall on the ground. (See Para 15 Bhagat Ram V. State of Rajasthan MANU/SC/0090/1972 : (1972) 2 SCC 466).

28. Even assuming that despite the Appellant being acquitted of the charge relating to conspiracy and notwithstanding the clean acquittal of Rajinder Kumar from all the charges, the prosecution failed to prove the charge against the Appellant Under Sections 7, 13 (2) read with Section 13 (1) (d) of the PC Act.

29. It is for the reason that in order to prove a case against the Appellant, it was necessary for the prosecution to prove the twin requirement of "demand and the acceptance of the bribe amount by the Appellant". As mentioned above, it was the case of the prosecution in the charge that the Appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rajinder Kumar- co-accused (A-1)".

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13. Similarly, in the case of Rajendra Nivruti Gaikwad

(supra), the learned Counsel has placed reliance on the

following paragraph :

"11. It is not prosecution case that, while accused no.1 demanded Rs. 50/-, accused no. 2 was present. It is also not prosecution case that, accused no.1 at the time of demanding Rs. 50/- told the complainant that, he would hand over the license to accused no.2, which he may collect from him after paying Rs 50/-. In the circumstances and in absence of any evidence on record of such understanding and arrangement made known to the complainant, the recovery of tainted money from accused no.2, would not, ipso-facto, establish that it was accepted by accused no.1 through accused no.2 as illegal gratifcation. Thus, prosecution has not proved, that accused no.1 attempted to obtain undue advantage through accused no.2. In the case of Sadashiv V/s. State of Maharashtra, SCC 299, tainted money was recovered from the co-accused on the allegation that, it was accepted by him on behalf of the co-accused. The conviction impugned in the cited judgment was set aside by the Hon'ble Supreme Court, after noting that, at the time of demanding the alleged bribe of Rs. 100/-, the accused from whom the money was recovered was not present. On this premise, it was held, accused no.2 was not a party to demand and therefore he could not have been convicted".

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14. Smt. Sonavane, learned APP, on the other hand,

vehemently opposes the submissions and supported the

reasons and conclusion arrived at by learned Special

Judge. Learned APP submits that there is no evidence to

show that the amount was taken towards bail. Even the

conduct of appellant is questionable when he asked panch

witness to go out of his office. Thus, no case for

interference in the impugned judgment is made out and

hence, the appeal be dismissed.

15. Having heard the learned Counsel for the parties and

on perusal of the record of the case, I fnd force and merit

in the submissions of the learned Counsel for the

appellant.

16. It is well settled that demand of illegal gratifcation is

sine-qua-non for constituting the ofence under the PC Act

of 1947. Mere recovery of tainted money is not sufficient

to convict the accused. Mere receipt of amount by the

accused is not sufficient to fasten the guilt in absence of

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any evidence with regard to 'demand' and 'acceptance' of

the amount as illegal gratifcation, as held by the Hon'ble

Apex Court in the case of State of Punjab V/s. Madan

Mohanlal Verma4.

17. Keeping the above enunciation and proposition in the

requirement for considering the ofence under the PC Act

of 1947, it is desirable to go through the evidence of

prosecution witnesses.

18. I would like to go through the evidence of PW-2

Complainant, namely, Karbhari Mahadev Aher (Exhibit 29),

on whose instance the Anti Corruption Bureau machinery

was set into motion.

19. To summarize his evidence, it may be noted from the

record that since the appellant was looking for younger

brother of the complainant and, according to him, he was

involved in illicit liquor business, he had asked the

complainant to bring his brother to the police station

alongwith surety amount of Rs. 500/- so as to release his

4 2013 (14) SCC 153

Rekha Patil /Trupti 11/23 Apeal-728-1998.odt

younger brother on bail. The amount of Rs. 500/- on

negotiation was reduced to Rs. 350/-. It is his further

evidence that on 10th March, 1988, he approached the

office of the Anti Corruption Bureau and met PW-5,

namely, Pratapsinha Devla Chavan and complained about

the demand made by the appellant. His complaint is at

Exhibit 30.

20. It is his further evidence that PW-5, informant-cum-

investigating officer asked the complainant to come on

11th March, 1988 alongwith cash amount of Rs. 350/-. In

the presence of panchas, he gave demonstration after

applying anthracin powder on the currency notes and how

the said amount is to be given to the appellant on

demand. Thereafter, the complainant alongwith his

brother and PW-1 visited the office of appellant. The

appellant asked complainant as to who was a third person

i.e. PW-1 with them. The complainant replied that he is

his relative. The appellant then asked PW-1 to go out. The

appellant then called Havaldar Pawar and asked him to

get money from the complainant and release Bhausaheb

Rekha Patil /Trupti 12/23 Apeal-728-1998.odt

i.e. brother of complainant on bail.

21. The evidence of complainant further shows that the

said Havaldar Pawar accepted the amount. The

complainant then gave a predetermined signal and PW-5

investigating officer alongwith others rushed, examined

person of Havaldar Pawar and as also complainant.

22. From the examination-in-chief of complainant, it is

clear that the complainant, PW-1 panch witness and the

brother of complainant had been to the office of appellant.

The appellant had asked PW-1 panch witness to go out of

the office thereby leaving complainant, his brother and the

appellant in the office only. It is also clear from the

version of complainant that the appellant then called

Havaldar Pawar i.e. acquitted accused and asked him to

take money from the complainant and release his brother

on bail. Thus, except the complainant's version, as of

now, there is no independent corroboration.

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23. As far as PW-1 panch witness is concerned, I would

like to take up his evidence immediately hereinafter but

the fact remains that the complainant being a bribe giver,

he should be treated as an accomplice. There are other

reasons to question the case of complainant and the

reason being is his cross-examination.

24. In the cross-examination, PW-2 complainant admits

that on 9th March, 1988, PSI i.e. appellant had not said that

he wanted the bribe money and admits that on 10 th March,

1988 as the PSI was asking money for releasing his

brother on bail, he felt that the appellant was asking that

money as a bribe and therefore, he lodged his complaint

with the Anti Corruption Bureau. He further admits that

none of the accused ever asked him money as a bribe

money. This candid admission make it abundantly clear

that since he was asked to give money in order to release

his brother on bail, he drew inferences that the appellant

was seeking illegal gratifcation in order to facilitate

release of his younger brother on bail.

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25. I presume that the said demand of money was

towards gratifcation, then it becomes necessary, as

already noted by me, to know whether there is any

independent corroboration to the trap carried out by PW-5

investigating officer. Since it is the case of prosecution

that as the trap was carried out with the help of PW-1

Sahebrao Girdhar Patil (Exhibit 19), panch witness, it

becomes more necessary for me to go through his

evidence.

26. PW-1 panch witness stated in his evidence that after

reaching the office of appellant, the complainant told

appellant that as per his direction, he has brought his

brother. The appellant then enquired about him with the

complainant and the complainant replied that he is his

relative. The appellant then asked this witness to wait

outside.

27. It is his further evidence that he went to the door of

the office and waited there. According to him, PSI Avhad

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i.e., appellant then pressed the button of bell and called

saying 'Havaldar Pawar'. Then one black person wearing

white trouser came there. The appellant asked

complainant whether he had brought money, to which

complainant replied in the affirmative. The complainant

then told that he should give money to Havaldar Pawar

and get his brother released on bail. The complainant, his

brother and Havaldar Pawar then came out. He saw

Havaldar Pawar accepting Rs. 350/- from the complainant.

28. From the above piece of evidence, it is quite clear

that not only this witness was asked to wait outside but he

went outside and waited there.

29. What is pertinent to note from his evidence is that he

deposed very minutely as if he was looking inside the

office of the appellant from the outside though was not so

deposed specifcally. It is also clear from his evidence that

there was no specifc demand of monies in the specifc

amount from the appellant.

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30. Now, if the cross-examination of this witness is to be

read carefully and, more particularly paragraph 22, then it

would be seen that he was standing near left side of the

door. A question was therefore posed to him whether it

would be correct to say that, that time the inner side of

the office was not visible, to which he answered in the

affirmative and admitted so.

31. It is also not clear from the case of the prosecution

that the distance between the door of the office of

appellant and the place where the appellant alongwith

complainant's brother were standing was in the audible

range of panch witness. Equally important aspect of his

evidence is that the appellant had neither demanded the

bribe amount nor had accepted the same in the very

presence of this witness. This is a very serious infrmity

which afects the prosecution case.

32. Another striking feature of the cross-examination of

this witness is that, after the raid was carried out, the

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hands of Karbhari i.e. complainant were inspected from

both sides and anthracin powder was not found on the

wrist and dorsal of Karbhari's right hand. He does not

clearly states that some stains of anthracin powder were

seen on the hands of the complainant, whereas, the

evidence of complainant shows that when his hands were

examined in the battery light, his right hand emitted glow,

that is to say the anthracin powder was detected on his

hands. The evidence of this witness is not in conformity

with the evidence of PW-2 complainant. Therefore, for

the aforesaid reasons, I am not satisfed with the evidence

of panch witness as to the alleged demand and

acceptance of money by the appellant.

33. PW-5 Pratapsinha Devla Chavan is an informant-cum-

investigating officer. His evidence (Exhibit 43) broadly

corroborates the version of PW-1 panch witness and that

of PW-2 as far as their visit to the office of the appellant

and acquitted accused having been found in possession of

alleged bribe amount of Rs. 350/- are concerned.

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Although this witness also says that after the raid, the

hands of the complainant were examined in ultra violet

light and his right hand fngers emitted whitish bluish glow

but I have already noted from the evidence of PW-1 panch

witness that no stains of anthracin powder were found on

the hands of complainant.

34. It is also clear from the evidence of PW-5

investigating officer that the appellant came on the scene

only after the raid was carried out which signifcantly

signifes that at the time of raid and acceptance of amount

by acquitted accused, the appellant was nowhere in the

picture.

35. As far as the frst point, during the course of

argument, raised by learned Counsel for the appellant is

that no verifcation of alleged demand of monies was done

by the office of the Anti Corruption Bureau before carrying

out the raid is concerned, this witness admitted in his

cross-examination that he, on 10th March, 1988, did not

make an inquiry regarding truth in the complaint given by

complainant Karbhari.

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36. In normal course and, more particularly, in such kind

of cases, the prosecution always confrms and verifes

whether indeed a demand of gratifcation has been made

by the accused or not. No such thing was done by the

office of the Anti Corruption Bureau.

37. Be that as it may, having regard to the material on

record, I hold that there is no evidence to prove that the

appellant had made any specifc demand of gratifcation

and directly accepted the money from the complainant.

38. Now, if the fnding of learned Special Judge is seen

from the impugned judgment and order, then it would be

seen that point no. 6 is answered in the affirmative while

point no. 8 is answered in the negative. Point no. 6 is to

the efect that whether the prosecution has proved that on

11th March, 1988, accused No.2 had accepted Rs. 350/-

from the complainant Karbhari for and on behalf of

accused No.1. Point no. 8, on the other hand, is to the

efect that whether the prosecution has proved that

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accused No.2 has abetted the commission of ofence

punishable under Section 5 (2) of the PC Act of 1947

committed by accused No.1 or expected to be committed

by accused No.1.

39. Point no. 8 having been answered in negative implies

that the acquitted accused was not aware of the

commission of ofence punishable under Section 5 (2) of

the PC Act of 1947 or that the said ofence was expected

to be committed by accused No.1. If the answer was in

negative, then point no. 6 could not have been answered

in affirmative.

40. In such circumstances and in view of the fnding

given in point no. 8, the appellant could not have been

held responsible for demand and acceptance of the bribe

money inasmuch as that could not have amounted to a

conspiracy between the appellant and acquitted accused.

41. For the same reasons, it cannot be held that the

amount of Rs. 350/- recovered from the possession of

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acquitted accused was as a fact the bribe money meant

for the appellant for holding him guilty for the ofences

punishable under Sections 5(2) read with 5(i)(d) of the PC

Act of 1947. It is more so when the beneft of acquittal

was given to co-accused but was not given to the

appellant.

42. In my view, the prosecution therefore has failed to

prove the factum of acceptance of bribe money of

Rs. 350/- by the appellant from the complainant on 11 th

March, 1988 as per the charges framed against him.

43. It was necessary for the prosecution to prove the

twin requirements of 'demand' and 'acceptance' of the

bribe amount by the appellant. I have already found from

the evidence that the appellant was not present when the

amount of Rs. 350/- came to be recovered from the

possession of acquitted accused. On this count also, the

appellant could not have been convicted by the learned

Special Judge.

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44. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

judgment and order is set aside. The conviction and the

sentence awarded to the appellant under Sections 5(2)

read with 5(i)(d) of the PC Act of 1947 by the Court below

are set aside and the appellant is set free from the said

charges. The fne amount, if any, paid be returned to the

appellant. The appeal is disposed of.

(V. G. BISHT, J.) Digitally signed by TRUPTI TRUPTI SADANAND SADANAND BAMNE BAMNE Date:

2022.06.30 19:03:16 +0530

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