Mohd Rafiq Shaikh Mohamed vs State Of Mah
2022 Latest Caselaw 2832 Bom

                                                                           APEAL-167-05.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 167 OF 2005

Mohd. Rafiq Shaikh Mohamed                                 ..APPELLANT
      VERSUS
State of Maharashtra                                       ..RESPONDENT

                                      ....
Mr. H.F. Pawar, Advocate h/f Mr. A.H. Kapadia and Mr. V.N. Damle,
Advocates for appellant
Mr. R.B. Bagul, A.P.P. for respondent - State
                                      ....

                                             CORAM : R.G. AVACHAT, J.

DATED : 23rd MARCH, 2022

PER COURT :

1. This is an appeal against conviction. The appellant was convicted

for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of

the Prevention of Corruption Act, 1986 ('P.C. Act'), and therefore, sentenced

to suffer rigorous imprisonment for six months and one year respectively with

a fine of Rs.150/- each, in default of payment of fine amount, he was directed

to undergo simple imprisonment for fifteen days.

2. At the relevant time, the appellant was serving as Clerk with the

Municipal Corporation, Aurangabad. The complainant, P.W.1 - Subhash was

a Press Reporter working with weekly Sambhajinagar Police and Kala Pahad

News Papers. One Sanjay Joshi, President of Bhartiya Saptahic Sampadak

Editors has taken on lease a plot at Samarth Nagar from municipal

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corporation. He had received a property tax demand notice in relation to the

said plot on 11th November, 1999. The amount of tax was Rs.2,447/-. The

complainant had, therefore, been to the municipal corporation office. For

want of funds, it was proposed that only half of the amount of property tax to

be offered. The balance amount for a period of half of the year was to be

paid later on. The appellant herein met him and promised to do the needful,

provided he was paid Rs.500/- (lateron scaled down to Rs.300/-). Since the

complainant did not want to pay any extra amount (bribe), he approached

the Anti Corruption Bureau, Aurangabad ('A.C.B.') and lodged the report

(Exhibit 12). Mr. Krishna Bankar - P.W.3 was a police inspector attached to

the A.C.B. He, therefore, decided to lay a trap. He secured presence of two

persons to act as panch witnesses. Pre-trap panchanama was drawn. As

planned, the complainant accompanied by a shadow witness - Sunil - P.W.2,

went to the office of the Municipal Corporation on 17 th November, 1999. The

complainant paid the appellant a sum of Rs.1,550/- and give a determined

signal. The raiding party in no time came there and seized the amount under

the panchanama.

3. On completion of investigation, the papers were submitted to the

appointing authority of the appellant for obtaining sanction for his

prosecution. On receipt of the same, the appellant came to be proceeded

against by filing the charge-sheet.

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4. Learned Special Judge framed the charge. The appellant pleaded

not guilty. His defence is of false implication. To bring home the charge,

prosecution examined in all three witnesses and let in certain documents. It

is in fact a case of no evidence. The complainant - P.W.1 testified nothing

incriminating against the appellant. It is in his evidence that the property tax

demand notice was received on 11th November, 1999. It was for Rs.2,447/-.

The notice pertains to a plot taken on lease by Mr. Sanjay Joshi, President of

Bhartiya Saptahic Sampadak Editors. He had, therefore, been to the

municipal office. Since he was short of funds, it was proposed that only half

of the tax amount i.e. for the period of six months to be paid and the balance

later on. It is in his evidence that he met one officer there. He promised to

do the needful, provided a sum of Rs.300/- is paid him. It is further in his

evidence that he paid the appellant a sum of Rs.1,550/- towards property tax

and requested him to issue him receipt there for. It is in his evidence that the

amount was given to him for being paid to the officer/cashier and then he

(complainant) was to visit the office later on to collect the receipt.

5. In short, it is in the evidence of complainant - P.W.1 that he paid a

sum of Rs.1,550/- to the appellant for being paid to the cashier towards

property tax. Learned A.P.P. conducting the case was, therefore, permitted to

cross-examine the complainant. The questions suggesting prosecution case

were put to the complainant in his cross-examination. He denied each and

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every suggestions. Although he admitted to have had lodged the

report/complaint (Exhibit 12) and the contents therein to be true, the same

cannot part take character of a substantive piece of evidence.

6. Sunil - P.W.2, the shadow witness, testified to have had

accompanied the complainant to the municipal corporation office. After

having paid the appellant a sum of Rs.1,250/- towards property tax, the

appellant enquired with the complainant as to whether he had brought a sum

of Rs.300/- for him. Even if we accept the evidence as it is, this simply

suggests that the appellant had asked the complainant to bring Rs.300/- for

him. We cannot jump to the conclusion that the said amount of Rs.300/- was

demanded by him as illegal gratification. More so, when the complaint did

not utter anything against the appellant.

7. In view of above, the appeal is allowed. The impugned judgment

and order is hereby quashed and set aside. Appellant is acquitted of the

offence punishable under Sections 7 and 13(1)(d) read with 13(2) of the

Prevention of Corruption Act, 1986. Fine amount, if paid, be returned to the

appellant.

( R.G. AVACHAT, J. ) SSD

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