Suresh S/O. Babanrao Sanve vs The State Of Maharashtra
2022 Latest Caselaw 4647 Bom

                                                   Cri. Appeal No.580 of 2017.odt


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO.580 OF 2017

Suresh s/o. Babanrao Sanve,
Age : 54 years,
Occ. Service as Police Naik,
B.No.708, Working at Bidkin Police Station,
r/o. Bhawani Nagar, Paithan,
Dist. Aurangabad                                          ..Appellant

      Vs.

The State of Maharashtra,
Through the Police Sub Inspector,
Anti Corruption Bureau, Aurangabad                        ..Respondent

                                 ----
Mr.S.S.Tope, Advocate for appellant
Mr.S.P.Sonpavale, APP for respondent
                                 ----

                                  CORAM : R.G. AVACHAT, J.

RESERVED ON : JANUARY 21, 2022 PRONOUNCED ON : MAY 02, 2022

JUDGMENT :-

The challenge in this appeal is to the judgment and order

dated 27.11.2017 passed by learned Special Judge (P.C. Act),

Aurangabad, in Special Case (PC) No.4 of 2009. Vide impugned

judgment and order, the appellant herein has been convicted for the

offences punishable under Section 7, Section 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988 ("the Act", for

short) and therefore, sentenced to suffer rigorous imprisonment for

two years and to pay a fine of Rs.1,000/-. In default of payment of

fine, he has been directed to suffer rigorous imprisonment for six

months.

2. The facts, giving rise to the present appeal, are as

follows:-

PW 2 - Waman (complainant) is resident of village

Bidkin, Tq. Paithan, Dist. Aurangabad. He had purchased two plots

(house sites) at Ganesh Nagar, Bidkin, in the early 2006. As he was

in need of money, he took a hand-loan of Rs.54,000/- from one

Kalyan Aware on interest at the rate of 5% per month. As a security

for repayment of the loan amount, the complainant executed sale

deeds of both the plots in favour of said Aware. It was an

understanding between the two that on repayment of the loan

amount with interest, Aware would re-convey the plots to the

complainant. When the funds were available with the complainant,

he approached Aware in January, 2008 and asked him to re-convey

the plots in his name by accepting the loan amount with interest

thereon. Aware refused to do so. The complainant, therefore,

lodged a report with Bidkin Police Station on 09.02.2008 for taking

action against Aware of cheating him and also for having indulged in

unauthorised money lending. The complainant had, therefore, been

visiting Bidkin Police Station. He met the appellant, a Police

Constable attached to Bidkin Police Station, on 25.02.2008 and

requested him to take action on his complainant. The appellant, in

turn, told him that his higher-up had asked him to get Rs.5,000/-

from the complainant for doing needful in the matter, lest, nothing

would be done. The complainant, in turn, told the appellant to have

had met the appellant's higher-up many a time. However, the

higher-up did not ask him to spare some money for the work. On

negotiations between the complainant and the appellant, a sum of

Rs.3,000/- was agreed to be paid by the complainant to the

appellant as bribe. The appellant asked the complainant to pay the

part amount of Rs.1,000/- on 27.02.2008 to him at Police Station

and the balance amount after the work was over. Since the

complainant did not wish to pay the appellant the bribe, he

approached Anti Corruption Bureau, Aurangabad.

3. PW 4 - Kishor Kamble, Deputy Superintendent of Police,

Aurangabad, recorded statement/complaint (Exh.22). He decided to

lay a trap. He, therefore, asked the complainant to come to the

office of Anti Corruption Bureau (A.C.B.) the following day. He

secured presence of two Government officials to act as panchas.

PW 4 - Kishor Kamble gave all requisite instructions to them. He

asked the complainant to pay the bribe only on demand to be made

by the appellant. A pre-trap panchnama was drawn (Exh.71).

4. The complainant along with PW 3 - Jaiswal, shadow

witness, first went to Bidkin Police Station and met the appellant.

Since it was a weekly market day and rush on the road, the

appellant asked them to come at Nilajgaon Phata. The appellant

assured them to come there. The complainant and PW 3 - Jaiswal,

shadow witness came back to PW 4 - Kamble and briefed him. The

raiding party, thereafter, went to Nilajgaon Phata. Both the

complainant and PW 3 - Jaiswal remained at a roadside tea

stall waiting for the appellant. The appellant came after a

while. He told the complainant to have recorded statement of

Aware and assured him (complainant) to register crime against

Aware. The appellant inquired the complainant as to whether

he had brought money. The complainant asked him not to be

worried about money. The appellant, in turn, told him that

unless he is paid Rs.1,000/-, he would not do his job. When

the complainant told him to have come with the money, the

appellant asked him to give the money. The complainant gave

Rs.1,000/- to the appellant in the presence of PW 2 - Jaiswal

and then he gave the predetermined signal. The raiding party

arrived. Since it was a public place, all of them went to Bidkin

Police Station. Paper work namely, trap panchnama was drawn

there. Then post-trap panchnama (Exh.73) was also drawn.

PW 4 - Kamble, Dy. S.P. lodged FIR (Exh.83). On completion

of the investigation, the police papers were submitted to the

Superintendent of Police, Aurangabad, who, in turn, accorded

sanction (Exh.14) for prosecution of the appellant. The charge

sheet, thereafter, came to be filed.

5. The trial Court framed Charge (Exh.21). The

appellant pleaded not guilty. His defence was of false

implication. It is his case that with a view to pressurise the

appellant to take action against said Aware, a false complaint

was lodged against him.

6. The prosecution examined four witnesses and

produced in evidence a number of documents. The trial Court,

on appreciation of the evidence in the case, convicted and

sentenced the appellant, as stated above.

7. Learned counsel for the appellant would submit that

the transaction between the complainant and said Aware was

out and out sale. The complainant did not file any civil suit

against Aware nor has he approached the Assistant Registrar

(Co-operative Societies) who has authority to take action

against the unlicensed money lenders. The complainant has

criminal antecedents. The demand had not been verified. The

shadow witness did not understand Marathi. Soon before he

entered the Court hall to give evidence, panchnama in the case

was read over to him only with a view to lead him to give

evidence consistent therewith. As such, the evidence of PW 3 -

Jaiswal is unreliable one. Based on the sole testimony of the

complainant, conviction for an offence of receiving bribe may

not sustain. Learned counsel, therefore, urged for allowing the

appeal.

8. Learned APP would, on the other hand, submit that

in the examination under Section 313 of the Code of Criminal

Procedure, the appellant did not offer any explanation about

the tainted money to have been recovered from him. He also

did not give any immediate explanation soon after he was

trapped. According to learned counsel, there is consistency

inter se the evidence of the complainant, PW3 - Jaiswal,

shadow witness, PW 4 - Kamble and the Investigating Officer

as well. Since the tainted money was recovered from the

appellant, it was for him to rebut the presumption under

Section 20 of the Prevention of Corruption Act. Since he did

not offer a plausible explanation, a well-reasoned judgment

passed by the trial Court may not be interfered with.

9. Heard learned counsel appearing for the parties.

10. The appellant was a Police Constable at the material

time. The superintendent of Police, Aurangabad, was the

appointing and removal authority of a Police Constable. The

sanction (Exh.14) to prosecute the appellant was, therefore,

accorded by the then Superintendent of Police, Aurangabad.

The sanction (Exh.14) has not been taken exception to on any

of the grounds.

11. The complainant gave his evidence consistent with

his complaint (Exh.22). It is in his evidence that in early 2006,

he had purchased two plots (house sites) at Ganesh Nagar,

Bidkin. When he was in need of money, he had approached

Aware, a money lender. He (Aware) advanced Rs.54,000/- to

the complainant at the interest of 5% per month. As a security

therefor, he ostensibly transferred both the plots in favour of

Aware, who had agreed to re-convey the plots on repayment

of the hand loan money with interest thereon. When the funds

were available with the complainant, he approached Aware and

offered to pay him the amount of hand loan with interest

thereon. Aware refused to receive the amount and claimed to

have purchased the plots. The complainant, therefore, lodged

a complaint with Bidkin Police Station against Aware for taking

action for cheating and unauthorised money lending. A copy of

the complaint lodged by the complainant was marked as

Article `A'. It was dated 09.02.2008. It is further in the

evidence of the complainant that he had been to Police Station,

Bidkin, many a time, to see that action is taken against Aware

on his complaint. On 25.02.2008, he met the appellant at

Bidkin Police Station and requested him to do the needful.

The appellant, in turn, told him that his higher-up had asked him to

get Rs.5,000/- from the complainant for doing needful in the matter,

lest, nothing would be done. The complainant, in turn, told the

appellant to have had met the appellant's higher-up many a time.

However, the higher-up did not ask him to spare some money for

the work. On negotiations between the complainant and the

appellant, a sum of Rs.3,000/- was agreed to be paid by the

complainant to the appellant as bribe. The appellant asked the

complainant to pay the part amount of Rs.1,000/- on 27.02.2008 to

him at Police Station and the balance amount after the work was

over. Since the complainant did not wish to pay the appellant the

bribe, he approached Anti Corruption Bureau, Aurangabad.

12. It is further in his evidence that PW 4 - Kamble

recorded his complaint (Exh.22) and decided to lay a trap on

the following day. He, accordingly, went to the office of A.C.B.,

at Aurangabad. Two persons were already present to act as a

panch witness. PW 4 - Kamble gave requisite instructions to

all of them. Pre-trap panchnama (Exh.71) was drawn.

Accordingly, the complainant along with PW 3 - Jaiswal,

shadow witness, went to Bidkin Police Station. They met the

appellant there. The appellant asked them to come to

Nilajgaon Phata and assured that he would come there.

Accordingly, both the complainant and PW 3 - Jaiswal came

back to PW 4-Kamble and briefed him. The raiding party then

went to Nilajgaon Phata. Both the complainant and PW 3 -

Jaiswal remained at a roadside tea-stall waiting for the

appellant. The appellant arrived after a while. Some interaction

took place between the appellant and the complainant. The

appellant told the complainant to have recorded statement of

Aware. He also asked the complainant as to whether he has

brought money (bribe) to pay him. The appellant told him that

unless, he was paid the money he would do nothing in the

matter. The complainant, therefore, paid him the bribe money

and gave the predetermined signal. PW 4-Kamble along with

other members of the team came there. The tainted currency

notes came to be recovered from the appellant. Post-trap

panchnama (Exh.73) was drawn at Bidkin Police Station.

13. The complainant was subjected to searching cross-

examination. It has come in his evidence that PW 4 - Kamble

(Investigating Officer) had asked him to use a tape-recorder,

while he was going to interact and pay the bribe money to the

appellant. The complainant, however, expressed his inability to

operate tape-recorder. It is, therefore, decided not to use

tape-recorder. Anthracene powder was, therefore, applied to

the currency notes to be offered as bribe money. It is in his

evidence that he was a businessman and doing social work as

well. He was Member of Grampanchayat also. He knew that

the Asst. Registrar, Co-operative Societies, is authorised to deal

with a complaint against the money lender. He admitted to

have had not lodged any complaint with the Asst. Registrar, Co-

operative Societies. He admitted that the appellant being a

Police Constable, was not empowered to make enquiry or

investigate the matter. The sale deed executed with said

Aware did not contain any clause of re-conveyance of the plots.

No independent document was executed to indicate it to be a

hand-loan transaction. Even when the complaint was recorded

with the police station, he did not lodge any complaint against

Aware under the Money Lenders' Act. Until 2014, Aware had

not executed re-conveyance in favour of the complainant. The

complainant, however, denied the suggestion that he

attempted to thrust the tainted money into the hands of the

appellant only with a view to compel the appellant to take

action against Aware and then, to have the plots re-conveyed

in his name.

14. PW 3 - Jaiswal gave his evidence in the

examination-in-chief consistent with what has been deposed to

by the complainant. During the cross-examination, however,

he made somersault. It is in his evidence that he was unable

to read Marathi. He could understand Marathi little. When he

came to the Court to give his evidence, the A.C.B. Officer

showed him the panchnamas. He was read over the complaint.

It is further in his evidence that the A.C.B. Officer told him to

depose in terms of the complaint and the panchnamas.

15. True, the complaint and the pre-trap and the post-

trap panchnamas are consistent with the evidence given by the

complainant, PW 3 - Jaiswal and PW 4 - Kamble as well.

Admittedly, PW 4 - Kamble was not around when the appellant

made the demand of bribe and even accepted the same.

Although PW 3 - Jaiswal, in his examination-in-chief, gave

evidence consistent with the prosecution case, in his cross-

examination, he testified to have given evidence after having

read over the contents of the panchnamas soon before he

entered the dock to depose. He went on to state that he was

instructed by A.C.B. Officials to give evidence consistent with

the panchnamas. As such, PW 3 - Jaiswal loses his character

as an independent witness.

16. Then, what remained before this Court is the sole

testimony of the complainant. It is true that the conviction can

be based on the sole testimony of the complainant, provided it

is found to have a ring of truth. Here, the complainant in his

complaint (Exh.22) stated his occupation as `Labour'. In the

evidence before the Court, he admitted to have been a

businessman. He claimed to have been doing social service.

He is in politics as well. He was a Member of Grampanchayat.

17. The appellant placed on record before the trial Court

a certified copy of the details in Summary Criminal Case

No.1477 of 2005, whereunder the complainant was convicted

for the offences punishable under Sections 323, 353 and 506

of Indian Penal Code and therefore, sentenced as well. If one

reads the judgment, whereunder the complainant was

convicted, it appears that he had misbehaved with the

Gramvikas Officer on 31.08.2005 in Grampanchayat office

Bidkin. Said incident took place over circulation of order of his

(complainant) disqualification to hold the office of Member of

Grampanchayat.

18. PW 4 - Kamble had asked the complainant to make

use of a tape-recorder while the complainant would be

interacting with the appellant to pay the bribe amount on the

appellant's demand. The suggestion to use the tape-recorder

was only with a view to have verification of the allegations

made by the complainant in his complaint (Exh.22). The

complainant had expressed his inability to operate the tape-

recorder. It is not known as to whether he was really unable to

operate the same or he consciously declined the same with an

oblique motive. In such a case, PW 4 - Kamble ought to have

first verified the demand and then should have decided to lay

the trap. So has not happened in this case.

19. For holding the conviction of the appellant, this

Court has only evidence before it, is that of the complainant.

For the reasons given herein before, this Court finds that the

evidence of the complainant has no ring of truth. It does not

inspire confidence to act upon his sole testimony. In the facts

and circumstances of the case, although the tainted money

(currency notes) was recovered from the appellant, the

prosecution could be said to have failed to bring home the

charge beyond reasonable doubt. This Court is, therefore, not

in agreement with the impugned judgment and order.

20. In the result, the appeal succeeds. Hence, the

following order:-

(i)                The appeal is allowed.

(ii)               The impugned judgment and order dated 27.11.2017

passed by learned Special Judge (P.C. Act), Aurangabad, in Special Case (PC) No.4 of 2009, is set aside.

(iii) The appellant is acquitted of the offences punishable under Section 7, Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

(iv)               His bail bonds stand cancelled.


(v)                Fine amount deposited by the appellant, if any, be
                   refunded to him.




                                                [R.G. AVACHAT, J.]

KBP