Bombay High Court
Baban S/O Bhausaheb Awasarmal vs The State Of Maharashtra on 21 November, 2022
Bench: R. G. Avachat
Cri. Appeal Nos.801 and 809 of 2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.801 OF 2015
Ravindra Gurbhej Singh Guruditta,
Age : 40 years, Occ. Business,
r/o. Row House No.A-28, Atharva Classic,
Beed by Pass Road, Aurangabad ..Appellant
Vs.
The State of Maharashtra ..Respondent
AND
CRIMINAL APPEAL NO.809 OF 2015
Baban s/o. Bhausaheb Awsarmal,
Age : 45 years, Occ. Service,
r/o. Plot No.216-B, Bhakti Nagar,
N-1, CIDCO, Aurangabad ..Appellant
Vs.
The State of Maharashtra ..Respondent
----
Mr.N.S.Ghanekar, Advocate i/b. Mr.Joydeep Chatterji, Advocate for
appellant in Cri. Appeal No.801 of 2015
Mr.R.N.Dhorde, Senior Advocate i/b. Mr.V.R.Dhorde, Advocate for
appellant in Cri. Appeal No.809 of 2015
Mr.A.G.Talhar, A.S.G. assisted by Mr.Madhur Golegaonkar, Advocate for
C.B.I.
Mr.S.P.Sonpawale, APP for respondent - State
----
CORAM : R.G.AVACHAT, J.
RESERVED ON : APRIL 19, 2022
PRONOUNCED ON : NOVEMBER 21, 2022
JUDGMENT :-
Both these appeals from conviction are being decided by
this common judgment since the challenge therein is to the order of
conviction and sentence dated 09.10.2015 passed by learned Special
Judge (C.B.I.), Aurangabad, in Special Case No.1 of 2010.
Vide the impugned judgment and order, the appellants have been
convicted and consequentially sentenced, as stated below:-
Criminal Name of appellant Section Sentence of
Appeal No. imprisonment
R.I. for two years and
Ravindra Gurbhej 8 of Prevention of to pay fine of
801 of 2015 Singh Guruditta Corruption Act, Rs.25,000/-, in
(Orig. accused no.2) 1988 default, S.I. for six
months
R.I. for two years and
7 of Prevention of to pay fine of
Corruption Act, Rs.25,000/-, in
1988 default, S.I. for six
Baban s/o. Bhausaheb months
809 of 2015 Awsarmal
(Orig. accused no.1) 13(2) read with R.I. for two years and
13(1)(d) of to pay fine of
Prevention of Rs.25,000/-, in
Corruption Act, default, S.I. for three
1988 months
2. For the sake of convenience, the parties to the appeals
are referred to as appellant no.1 and appellant no.2 (i.e. appellants
in Criminal Appeal Nos.801 of 2015 and 809 of 2015, respectively).
3. The facts giving rise to the present appeals are as
under:-
Appellant no.2 was serving as a Stenographer to the
Senior Regional Manager, Hindustan Petroleum Corporation Ltd.,
(H.P.C.L.), Chikalthana, Aurangabad. Wife of appellant no.1 was a
dealer of H.P.C.L.'s LPG Gas agency at Khultabad. H.P.C.L. and two
other petroleum corporations had issued a common advertisement
for grant of LPG distribution dealerships for various places in the
State of Maharashtra. PW 1 - Srichand Jagiasi (complainant) had
filed four applications for grant of LPG dealership for Aurangabad.
As per the procedure for grant of dealership, the complainant and
other applicants were interviewed. The result was declared on
H.P.C.L. website on 18.06.2009. The selection committee selected
three candidates. The complainant was at serial no.2. He had
secured 97 marks. One Smt.Devyani Patil was at serial no.1. She
had secured 98 marks. The complainant thought that something
amiss had happened in the selection process. On the day of
declaration of the result, he, therefore, made oral protest with the
office of Regional Manager, H.P.C.L. He had also filed an application
under the Right to Information Act for obtaining certain documents.
4. It is the case of the complainant that appellant no.1
contacted him on cell phone on 27.06.2009. He, therefore, met
appellant no.1 at Kranti Chowk, Aurangabad. He told the
complainant that declaration of the result was not final. Further
selection procedure was in the hands of the local Officers of H.P.C.L.
He asked the complainant that if he (complainant) could cough-up
Rs.Five Lakhs, LPG dealership would be granted to him.
5. Appellant no.1 told the complainant the procedure and
lacunae in the application of the first empanelled candidate,
Smt.Devyani Patil. Appellant no.1 further informed the complainant
that the amount is to be paid to appellant no.2 and he, in turn,
would manage everything. The complainant, since did not want to
pay illegal gratification, approached the Anti Corruption Bureau Wing
(A.C.B.) of the Central Bureau of Investigation (C.B.I.) on cell
phone. Ms.Vidya Kulkarni, Superintendent of Police, A.C.B., C.B.I.,
recorded the First Information Report (FIR - Exh.67) lodged by the
complainant on 02.07.2009. She, in turn, told the complainant that
her Officers would be visiting Aurangabad on the following day.
Accordingly, C.B.I. team came to Aurangabad. The complainant
lodged with them a written complaint (Exh.42).
6. PW 7 - Nagesh Parab, who was working as C.B.I.
Inspector, first decided to verify the demand and then to lay a trap.
Presence of two nationalised bank officials was secured to act as
panch witnesses. A phone call was made to appellant no.1 in their
presence. The conversation between the complainant and appellant
no.1 was recorded in micro SD card and transcript thereof was
prepared. From the talks, Shri Parab, C.B.I. Inspector, confirmed it
to be a case of demand of illegal gratification. During the talks itself,
appellant no.1 had told the complainant that he would visit his
residence next day. It was, therefore, decided to lay a trap. The
complainant withdrew a sum of Rs.5 Lakhs from his bank. A pre-
trap panchnama (Exh.76) and demand verification panchnama was
also drawn (Exh.75). All the concerned were given due instructions.
Accordingly, the C.B.I. team came to the residence of the
complainant on 04.07.2009. The C.B.I. Officers remained at the
upstairs premises.
7. PW 2 - Upendra was asked to act as a shadow witness.
He was instructed to remain with the complainant. Appellant no.1
came along with his friend at the residence of the complainant by
little past 1.30 p.m. Having seen PW 2 - shadow witness around,
he became uncomfortable. The complainant, therefore, asked PW 2
- shadow witness and the friend of appellant no.1 to go out of the
drawing room. They went out. PW 2 - shadow witness remained
near a window of the drawing room. From the window, he could
view and hear all the happenings in the room. After a brief
discussion, appellant no.1 made demand of Rs.5 Lakhs by gestures.
The complainant went inside his house and came out with
Rs.5 Lakhs (five bundles) smeared with anthracene powder. He paid
the money to appellant no.1. For assurance of the work, the
complainant asked appellant no.1 to make a phone call to appellant
no.2. Accordingly, phone call was made. Appellant no.2 assured to
do the needful. Thereafter, the complainant gave a call to his son
saying, "Niki Niki", as a pre-determined signal. The C.B.I. Officers
immediately came down. A sum of Rs.5 Lakhs received by appellant
no.1 came to be seized. A panchnama in that regard (Exh.77) was
drawn. As planned, all the happenings that took place between the
complainant, appellant no.1 and appellant no.2 came to be recorded
in micro SD card. The transcript thereof was prepared in the
presence of panch witness and Court official. Voice samples of both
the appellants were obtained. The recorded conversation along with
the voice samples were submitted to C.F.S.L. for analysis and report.
The expert's report is positive.
8. The statements of the persons acquainted with the facts
and circumstances were recorded. The Calls Data Record (CDR) and
other details regarding the cell phones used in the commission of the
offence came to be obtained from the concerned cellular companies.
On completion of the investigation, both the appellants were
proceeded against by filing charge sheet.
9. Learned Judge of the trial Court framed Charge (Exh.11).
The appellants pleaded not guilty. The defence version of the
appellants would be referred to lateron.
10. The prosecution examined eight witnesses and produced
in evidence certain documents. The appellants also examined two
witnesses in their defence. The trial Court, on appreciation of the
evidence in the case, convicted and sentenced the appellants, as
stated above.
11. Heard learned counsel for the parties.
12. Mr.N.S.Ghanekar, learned counsel i/b. Mr.Joydeep
Chatterji, learned counsel for appellant no.1 (i.e. appellant in
Criminal Appeal No.801 of 2015), would submit that the complainant
was a practicing Advocate. He could not do any kind of business
during practicing the profession of advocacy. The complainant
obtained experience certificate of doing same business for four years
during practicing advocacy. Same indicates that a false certificate
was obtained by him. There is evidence to indicate the complainant,
during the early days of declaration of the result as to allotment of
dealership, had made telephonic calls to C.B.I., at Mumbai office.
The evidence indicates that he thought something amiss had
happened in the selection process. He felt to have been ditched by
H.P.C.L. Officers. He also felt that Smt.Devyani Patil was given extra
edge over his claim. H.P.C.L. Officers had favoured her out of the
way. Learned counsel also brought to the notice of this Court glaring
inconsistencies inter-se the examination-in-chief of the complainant
and the cross-examination. According to learned counsel, the
evidence of the complainant on material points, was proved to be
untrue. He would further submit that the C.D.Rs. could not be read
in evidence for want of certificate under Section 65-B of the
Evidence Act. He would further submit that the shadow witness was
not present when the alleged bribe money was paid. There was no
evidence to indicate that from the place whereat the shadow witness
was present, all the happenings in the drawing room of the
complainant's residence, were visible and audible as well.
He would further submit that appellant no.1 would
respect the complainant. He was complainant's client as well. Wives
of both of them were related to each other. Appellant no.1's wife
holds LPG distribution agency. The complainant wanted to set up his
son in the business. He, therefore, requested appellant no.1 to let
his son be a partner in his LPG agency. A sum of Rs.5,70,000/- was
outstanding, i.e. his wife owed that much amount to H.P.C.L. Unless
the dues were cleared, the H.P.C.L. was not going allow the
complainant's son to enter into the partnership. The amount that
was received by appellant no.1 was towards the share in the capital
of the partnership business. The amount was paid by the
complainant for being, in turn, deposited with H.P.C.L. The
complainant did everything with a view to teach H.P.C.L. authorities
a lesson, since his so called legitimate claim for grant of LPG
partnership, was defeated by the H.P.C.L. authorities.
13. Mr.R.N.Dhorde, learned senior counsel for appellant no.2
(i.e. appellant in Criminal Appeal No.809 of 2015), would, on the
other hand, submit that there were no direct talks between appellant
no.2 and the complainant, making alleged demand of illegal
gratification. Appellant no.2 was a Stenographer. He did not have
any authority either to grant or interfere with the procedure of
allotment of LPG dealership. The case propounded by the
prosecution was illogical. Appellant no.2's wife had made a joint
application with the empanelled candidate, Devyani Patil, for grant of
LPG dealership. Appellant no.2, therefore, even could not have
thought of defeating the claim of Devyani Patil. According to learned
senior counsel, whatever conversation allegedly took place between
both the appellants and the complainant on the phone, would, in no
way, suggest appellant no.2 to have had made a demand of illegal
gratification through appellant no.1 and even accepted the same.
According to learned senior counsel, at least, benefit of doubt must
go to appellant no.2. Relying on the Apex Court authorities, learned
senior counsel would submit that for conviction for the offence
under Section 7 of Prevention of Corruption Act, proof of demand of
illegal gratification is sine qua non. He would further submit that no
presumption could be drawn unless proof of acceptance of illegal
gratification pursuant to such demand, is proved. He relied on the
following citations:-
(i) N. Sunkanna Vs. State of Andhra Pradesh,
(2016)1 SCC 713;
(ii) T.K. Ramesh Kumar Vs. State Through Police
Inspector, Bangalore, (2015)15 SCC 629;
(iii) P. Satyanarayana Murthy Vs. Dist. Inspector of
Police and anr., AIR 2015 SCW 5263;
(iv) Prabhat Kumar Gupta Vs. State of Maharashtra
and anr., (2014)14 SCC 516;
(v) State of Kerala and anr. Vs. C.P. Rao, (2011)6
SCC 450;
(vi) B. Jayaraj Vs. State of Andhra Pradesh,
(2014)13 SCC 55;
(vii) C.M. Girish Babu Vs. CBI, Cochin, (2009)3 SCC
779;
(viii) Judgment of Bombay High Court (Aurangabad
Bench) in the case of Devidas s/o. Harichandra
Bhaskar, Jalgaon, Tq. and Dist.Jalgaon Vs. The
State of Maharashtra, through Police Inspector,
Anti Corruption Bureau, Jalgaon, Dist. Jalgaon,
(Criminal Appeal No.918 of 2015 dated
06.10.2020;
(ix) Anvar P.V. Vs. P.K.Basheer and ors., (2014)10
SCC 473;
(x) Mahesh Ramesh Jadhav Vs. State of
Maharashtra, 2019 All MR (Cri) 4056;
14. Learned counsel for the appellants in both the appeals,
ultimately, urged for allowing the appeals.
15. Mr.Talhar, learned A.S.G., would, on the other hand,
submit that on appreciation of the entire evidence in the case, the
trial Court has rightly convicted both the appellants. He has placed
on record his written submissions along with the authorities relied
on.
16. Considered the submissions advanced. Perused the
evidence relied on.
17. Let us appreciate the evidence in the case to find,
whether the trial court was justified to convict the appellants herein.
Although eight witnesses have been examined in proof of the
Charge, for deciding the present appeals, relevant evidence would
be that of the complainant, shadow witness and the Investigating
Officer. The sanction (Exh.92) accorded for prosecution of appellant
no.2 has not been taken exception to before this Court. The
evidence of the officials of the cellular companies (PW 3 and PW 4) is
also not adverted to, since the C.D.R. produced by them and
admitted in evidence, were not supported by the certificate under
Section 65-B of the Evidence Act.
18. The complainant had, admittedly, applied for H.P.C.L.'s
LPG gas agency for Aurangabad. As per the advertisement, he had
filed four applications for grant of one and the same dealership. The
complainant was, admittedly, a practicing Advocate of long standing.
For grant of LPG dealership, the complainant and other applicants
were interviewed by the selection committee. The result thereof was
declared on H.P.C.L.'s website on 18.06.2009. The complainant was
at serial no.2. He had secured 97 marks. One Smt.Devyani Patil was
at serial no.1 by securing 98 marks. Admittedly, the complainant
thought something wrong might have happened with the selection
procedure. He felt that his case was better than the claim of
Devyani Patil. The complainant, therefore, admittedly, registered
oral protest with the Regional Manager of H.P.C.L. on the next day
itself. He had even applied under R.T.I. Act for certain documents.
19. It is in the evidence of the complainant that on
27.06.2009, he received a phone call of appellant no.1. He,
therefore, met him at Kranti Chowk, Aurangabad. Appellant no.1
told him that though result is declared, still the distribution selection
procedure was in the hands of local Officers. He was also informed
that the result could still be tilted in his favour. The complainant was
informed by appellant no.1 that there were monetary dealing
between Devyani Patil and appellant no.2. Devyani Patil had
promised appellant no.2 to pay him certain amount as illegal
gratification. Half of the amount was even paid in advance. On
declaration of the result, Devyani Patil showed no inclination to pay
appellant no.2 the balance amount. He (appellant no.2), therefore,
wanted to teach her lesson. He was, therefore, ready to help the
complainant. The complainant was even informed that there were
defects in the application of Devyani Patil. The site proposed by her
for godown and showroom, was not in accordance with the
prescribed norms. The field committee of H.P.C.L., on visit of the
site, would certainly reject the same. It is further in the evidence of
the complainant that he asked appellant no.1 to make a phone call
to appellant no.2 in confirmation thereof. Accordingly, call was made.
The phone was kept on loudspeaker mode. The complainant heard
the talks and realised that appellant no.2 would do his work. The
complainant, therefore, became ready to pay a sum of Rs.5 Lakhs,
as demanded by appellant no.1. It was also informed to the
complainant that the amount was to be paid to appellant no.2, who
agreed to manage the officers of H.P.C.L. involved in the selection
for grant of LPG dealership.
20. It is further in the evidence of the complainant that he
had gone to Baroda for marriage of one of his relations. He was on
his way back from Baroda on 02.07.2009. He contacted
Superintendent of Police, C.B.I., A.C.B. Wing, Pune. Ms.Vidya
Kulkarni, S.P., received the call. He made her complaint (FIR -
Exh.67). Ms.Vidya Kulkarni, S.P., told him that she would be visiting
Aurangabad with with her staff on the following day. She asked the
complainant to keep ready the amount of Rs.5 Lakhs with him. The
C.B.I. Officers came to Aurangabad next day. The complainant met
them at M.S.E.B. Guest House, Aurangabad. Shri.Parab (PW 7) was
one of the members of C.B.I. team. He secured presence of two
bank officials to act as panch witnesses. The complainant again
made a written complainant (Exh.42) to Shri.Parab. The same was
shown to both the panchas. Shri.Parab then gave them
demonstration of digital recorder. He decided first to have demand
of illegal gratification verified. The complainant, therefore, made a
phone call to appellant no.1 by 11.15 a.m. The call was not
responded to. After a few seconds, appellant no.1 sent him SMS,
informing to have been in H.P.C.L. meeting. Until 3.00 p.m., no call
was received by appellant no.1. The complainant, therefore, again
made him a phone call. Again, there was no response. A message
was, however, sent by appellant no.1 asking to wait for 15 minutes.
A cellphone call was received after a while. It was made by
appellant no.1. The digital voice recorder was placed into service, as
planned. The cellphone was placed on loudspeaker mode. It was
about 4.00 p.m. The call made by appellant no.1 to the complainant
lasted for 4 minutes and 32 seconds. The conversation came to be
recorded in digital voice recorder. After the call was over, the
recorded conversation was again played. Shri.Parab was satisfied
that it was a case of demand of illegal gratification. He, therefore,
prepared the demand verification panchnama (Exh.75). During
conversation, appellant no.1 told the complainant that the work of
selection of the complainant for LPG dealership is in progress. He
further told that Shri. Sanjay Adsul, Senior Regional Manager,
H.P.C.L., was out of station and after his return to Aurangabad, the
date of meeting of the coordination committee will be held. The
complainant asked appellant no.1 the names of the members of the
co-ordination committee. He told that Sanjay Adsul will be one of
the members and he did not know the names of other two members.
He further told the complainant that appellant no.2 will manage all
the members of the co-ordination committee. The complainant
asked appellant no.1 as to whom the bribe of Rs.5,00,000/- will be
paid and whether it can be reduced. Appellant no.1 told that the
amount of demanded bribe cannot be reduced or increased.
Appellant no.1 told that the entire amount was to be paid to
appellant no.2. The complainant asked appellant no.1, as to
whether after payment of the amount, his work will be done or not.
Thereon, appellant no.1 assured the complainant that his work will
be done after payment of the demanded amount. The complainant
asked appellant no.1 for arranging his meeting with appellant no.2.
The appellant no.1 told that he will talk with appellant no.2 and will
again make phone call to the complainant after 06.00 p.m.
21. It is further in the evidence of the complainant that until
8.20 p.m. of 03.07.2009, no further call was received from appellant
no.1. He, therefore, made him a cellphone call. Appellant no.1 did
not receive the call. He however sent the complainant an SMS that
he would visit his residence by 11.30 a.m. on the following day.
Shri.Parab, therefore, decided to arrange for a trap at the
complainant's residence. A pre-trap panchnama was drawn.
Anthracene powder was applied to the currency notes. The
complainant and the shadow witness were duly instructed. As
planned, the C.B.I. team along with the panchas went to the
residence of the complainant the following morning. PW 2 (shadow
witness) remained in the company of the complainant. Appellant
no.1 did not come for long. The complainant had to make him a
phone call, but he did not respond. The complainant, however,
received his SMS - "coming within ten minutes". The micro SD card
was, therefore, inserted in the voice recorder. It was switched on.
Appellant no.1 and his friend came to the complainant's residence at
1.30 p.m. The complainant switched on the voice recorder. He
greeted appellant no.1. It is in the evidence of the complainant that
on having seen the shadow witness, appellant no.1 became
uncomfortable. The complainant, therefore, asked PW 2 - shadow
witness and the friend of appellant no.1 to sit outside. Both of them
obliged. The shadow witness remained at the window of the drawing
room, wherefrom the conversation and the happenings in the
drawing room were visible and audible as well. It is further in the
evidence of the complainant that appellant no.1 started talks in
relation to H.P.C.L. dealership. He asked the complainant to
continue with the objection, which he had raised with H.P.C.L.
authority, on declaration of the result. Appellant no.1 also told him
that the committee comprising Sanjay Adsul (Senior Regional
Manager of H.P.C.L.) will look into his claim and remove the first
empanelled candidate - Devyani Patil. Same will weigh for grant of
dealership in his favour. It is further in his evidence that appellant
no.1, thereafter, made demand of bribe money by giving gestures of
five fingers. The complainant then went inside of his bedroom and
came with an envelope of five bundles of currency notes amounting
to Rs.5 Lakhs. He paid the amount to appellant no.1. It is further in
his evidence that he told the appellant no.1 that since huge amount
was paid to him, he should make call to appellant no.2 as assurance
for the work. Appellant no.1, accordingly, made a phone call to
appellant no.2. The conversation between the two could be heard
by him. He recognised the voice of appellant no.2. He was told by
appellant no.1 to have received the sum of Rs.5 Lakhs. Appellant
no.2 confirmed the figure of Rs.5 Lakhs. He also asked appellant
no.1 to keep the amount with him and when he need the amount, he
will call him. The complainant then intervened the talks. He told
appellant no.2 that the amount is for seeking H.P.C.L. gas agency for
Aurangabad city. Appellant no.2 replied that his job would be done.
Thereafter, for two minutes, there was some other talk. The
complainant then gave the pre-determined determined signal with
loudly calling the name of his son as "Niki Niki". The C.B.I. team
immediately came downstairs. The sum of Rs.5 Lakhs came to be
seized from appellant no.1. Trap panchnama was drawn then and
there. The recorded conversation was played. It is in the evidence
of the complainant that on 17.11.2009, he visited the M.S.E.B.
Guest House. Transcript of the conversation recorded on both 3 rd
and 4th July was prepared there in the presence of the panchas in
that regard (Exh.57).
22. The recorded conversation in the S.D. card was also
played before the trial Court. The trial Court has observed that the
voice in the recorded conversation was clear and audible as well.
23. The complainant was subjected to searching cross-
examination. In response to the questions put to him during cross-
examination, it has come on record that appellant no.1 had a long
acquaintance with the complainant. He had complete confidence in
the complainant. Appellant no.1's wife held LPG dealership at
Khultabad. The complainant had, therefore, visited the same. It is
the complainant's explanation that his visit was with a view to have
know-how of the business since he had applied for LPG dealership.
On the day on which the result was declared, the complainant felt
that something wrong was done by H.P.C.L. officers. He also
thought that the officers of H.P.C.L. helped Devyani Patil out of the
way. He felt to have been ditched. He, however, denied to have
annoyed with the H.P.C.L. officers and therefore, decided to teach
them a lesson. Admittedly, he had registered oral protest on
19.06.2009 itself. He was in the know that Devyani Patil had
furnished false experience certificate. One Shri.Kakade of Venkatesh
Gas Agency, issued her the experience certificate. Shri.Kakade had
met the complainant and told him the same. It was known to him
before the results were declared. He, however, did not make any
complaint in that regard before declaration of the result. Devyani
Patil had political background. Her husband was a Member of
Legislative Assembly and her father-in-law was a Member of
Parliament. He had made a communication with I.E.M. (Independent
External Monitor, H.P.C.L.). The Hon'ble Chief Justice (Retd.) was
the head thereof. The complainant had even preferred Writ Petition,
seeking direction to H.P.C.L. officers to act on his complaint. His
evidence indicates that on account of his such steps, LPG dealership
had not been granted to Devyani Patil.
24. It is further in the evidence of the complainant that
though cellphone no.9822095082 was in the name of his wife, the
same was being used by him. It is further in his evidence that his
father and brother were in judiciary. One has resigned and the other
has taken voluntary retirement. It is further in his evidence that his
conversation with appellant no.1 dated 27.06.2009 has not been
recorded. No third person was present during his meeting with
appellant no.1 at Kranti Chowk on that day. Except his oral version,
there is no evidence in corroboration of his meeting and the
conversation during the same. He was candid enough to admit that
during the talks on cellphone dated 27.06.2009, appellant no.1 did
not speak about the bribe money. He, however, denied to have had
not met the appellant no.1 at Kranti Chowk on 27.06.2009. He also
denied to have had made any cellphone call to C.B.I. office at
Mumbai on 19.06.2009. In the FIR lodged by him on cellphone, he
did not name appellant no.2. He was candid enough to admit that
appellant no.2 did not directly make demand of Rs.5 Lakhs. He has
categorically denied the defence version that the amount was paid
by him for being paid to H.P.C.L. towards appellant no.1's dues,
since his proposal to enter into the partnership to run the existing
LPG agency in the name of appellant no.1's wife, could not have
been processed without such payment. All the suggestions in that
regard have been denied by him. He also denied that he was
determined to take revenge of H.P.C.L. officers through appellant
no.1, as he was a man of confidence. He was also confronted with
his written complaint Exh.67. The matter which has been deposed
to by him in the examination-in-chief namely, marks D1 to D11 were
not part of his written complaint. He has admitted that before
27.06.2009, there was no demand of bribe from any of the
appellants. He had no acquaintance with C.B.I. officers before
27.06.2009. It was only post 27.06.2009, he had reason to get
cellphone and telephone numbers of C.B.I. officers. He denied to
have had made call on the landline of C.B.I. office at Mumbai on
19.06.2009. The C.D.R., however, indicates that such call was
made by him. He had filed work experience certificate for the years
1984 to 1986, during which he was a practicing Advocate.
25. The complainant stated to the Superintendent of Police,
C.B.I. that appellant no.1 had told him that though the results were
declared, the dealership selection procedure was in the hands of the
local officers of H.P.C.L. and the result can be tilted in his favour. It
is the portion marked as `D-9' in his examination-in-chief. These
facts were not communicated by him to the S.P., C.B.I., Pune, when
he had filed the written compliant. When the complainant filed the
written complaint dated 02.07.2009, he had stated that appellant
no.1 met him at Kranti Chowk on 27.06.2009 at about 12.30 p.m.
and told that there were monetary dealing between appellant no.2
and the first empanelled candidate. He also stated that appellant
no.1 had told that the first empanelled candidate - Devyani had
paid 50% amount of the monetary dealing to appellant no.2 and the
remaining 50% amount was to be received by appellant no.2 after
declaration of result of her selection. Appellant no.1 also told the
complainant that after declaration of the result, Smt.Devyani had
refused to pay the remaining 50% amount to appellant no.2 and for
teaching a lesson to Smt.Devyani, appellant no.2 was ready to help
the complainant. He stated that all these facts were not mentioned
by him in his written complaint to S.P., C.B.I., Pune.
26. In the cross-examination, the complainant also stated
that he apprised the S.P., C.B.I., Pune, on telephone that he was not
satisfied on the information given by appellant no.1 and therefore,
he had told appellant no.1 to explain as to how appellant no.2 can
change result of the selection process. Thereafter, appellant no.1
told that appellant no.2 was related to Smt. Devyani Patil and he
knows the defects in her application and that the site proposed by
her for godown and showroom, was not according to the norms of
H.P.C.L. Her experience certificate was also false. The complainant
stated that all these facts were not mentioned in his written
complaint.
The complainant also communicated to S.P., C.B.I., Pune,
that appellant no.1 told that if the complainant would pay the
amount of Rs.5 Lakhs to appellant no.2, he would influence the
co-ordination committee members to get result of the selection
process in favour of the complainant. The complaint told appellant
no.1 that he is going to Baroda and will pay the amount to appellant
no.2 after returning back to Aurangabad. Appellant no.1 made
phone call to appellant no.2 and kept the same on loudspeaker
mode. Appellant no.1 informed appellant no.2 that the complainant
was ready to pay the amount of Rs.5 Lakhs and he should proceed
ahead with the work of the complainant's selection for the
dealership. Appellant no.2 gave assurance. The complainant
recognised the voice of appellant no.2 and convinced that the
demand for the amount was from him. All these facts were not
mentioned by the complainant in his written complaint. He also
stated to have not remembered as to whether he had mentioned in
his complaint that on 27.06.2009, appellant no.1 had kept his cell
phone on loudspeaker mode so as to enable him to listen the talks
between both the appellants.
27. PW 2 - Upendra Sondoule, shadow witness, testified that
on the directions of his Officer, he appeared before C.B.I. officers on
03.07.2004 at M.S.E.B. Guest House, Aurangabad. He was the Chief
Manager of Bank of Maharashtra, City Branch, Aurangabad. One
Prakash Tribhuwan, another bank official working with him had also
accompanied him to act as panch witness. It is further in his
evidence that the complainant was present there. The C.B.I. Officer
Shri Parab was very much there. The contents of the written
complaint (Exh.42) lodged by the complainant were verified. It was
decided to make verification of the demand of illegal gratification.
The complainant, therefore, made appellant no.1 phone call by
11.50 a.m. There was no response. However, appellant no.1 sent
SMS to the complainant that he was busy in meeting and will call
lateron. Till 3.00 p.m., there was no phone call from appellant no.1.
At 3.00 p.m., the complainant again made phone call to appellant
no.1 but it was not received by him. Appellant no.1, however, sent
another SMS - "15 minutes". It was decided to record the call on
voice recorded. Shri.Parab gave demonstration of recording. This
witness along with another panch witness signed the S.D. card and
kept the same in the voice recorder. It was decided to keep the
mobile phone of the complainant on loudspeaker mode whenever
there would be call from appellant no.1.
28. It is further in the evidence PW 2 - Upendra, shadow
witness, that by 04.00 p.m., the complainant received a phone call
of appellant no.1. The phone was kept on loudspeaker mode.
Arrangement for recording of call was in place. He heard the
conversation. It was as under:-
".................... It was like that your Gas Agency work
is in process. Regional Manager had gone out of
station. After he returns back, there will be a meeting
of co-ordination committee. Thereafter, Shri Jagiasi
asked him as to who will be the members in the said co-
ordination committee. Thereupon, Shri Guruditta said
that he is not aware about the same. Then, Shri Jagiasi
asked him, to whom money is to be paid. Thereupon,
he said that money is to be paid to Shri Babanrao
Awasarmal and rest of the things he will manage. Shri
Jagiasi told him that he had returned from Baroda only
yesterday and he will not be available in the next 15
days. Therefore, he told him that he was ready to pay
the money to him immediately. Shri Jagiasi told him
that he should inform about the place where they will
have to meet so that money can be paid to him. He
replied that after consulting, he will inform about the
same to him. Besides the above, there were many other
talks between the two and thereafter the call ended."
29. It is further in the evidence of PW 2 - Upendra that by
08.20 p.m., the complainant received S.M.S. of appellant no.1,
informing that he would be visiting his residence by 11.30 on the
following morning. This witness went on to depose that the
panchnama of the entire happenings was prepared. S.D. card
containing recorded conversation was sealed. He signed the
panchnama. The currency notes were applied anthracene powder.
Pre-trap panchnama (Exh.76) was prepared. It is further in his
evidence that on the following day, i.e. on 04.07.2009, he went to
M.S.E.B. Guest House. He accompanied the C.B.I. team to the
residence of the complainant. He remained in the company of the
complainant in the drawing room of his residence. The C.B.I. team
remained on up-stair premises. Appellant no.1 did not come. The
complainant, therefore, made him a phone call by 12.15 p.m. The
call was not received. Appellant no.1, however, sent S.M.S.
informing to have been coming within 10 minutes. It is further in his
evidence that appellant no.1 came along with his friend by 01.00
p.m. The complainant asked this witness and the companion of
appellant no.1 to go outside of the drawing room. He, therefore,
went out. He kept himself at the window of the drawing room. All
the happenings in the drawing room were audible and visible to him.
It is further in his evidence that there were talks between the
complainant and appellant no.1. Appellant no.1 then showed the
complainant five fingers of his hand. The complainant then went
inside the bed room and came back with bribe money. He handed
over the same to appellant no.1. Further deposition of this witness
as under :-
"6..........................Thereafter, Shri. Guruditta kept
the said bribe amount in the said plastic bag. Shri
Jagiasi told Shri Guruditta that now he had received the
amount, therefore, he should inform to Shri. Awasarmal
about receipt of the same. Then, Shri Guruditta made a
phone call from his mobile on the mobile of Shri.
Awasarmal and told him that he had received the bribe
amount, so the work should be done and at that time,
the mobile phone of Shri Guruditta was on speaker
mode, therefore, we could hear the conversation.
During the said phone call, Shri Jagiasi also had a talk
with Shri Awasarmal on the said mobile. He told Shri
Awasarmal that the work of LPG Gas Agency should be
done. Thereupon, Shri Awasarmal said that it will be
done...................."
30. PW 2 - Upendra, shadow witness, further deposed that
the complainant then gave the predetermined signal by calling in the
name of his son "Niki Niki". The C.B.I. officers immediately came
down. A sum of Rs.5 Lakhs received by appellant no.1 came to be
seized. A panchnama in that regard (Exh.77) was drawn. As
planned, all the talk that took place between the complainant,
appellant no.1 and appellant no.2 came to be recorded in micro SD
card. The transcript thereof was prepared in the presence of this
witness (PW 2 - Upendra) and another panch witness. Voice samples
of both the appellants were obtained. The recorded conversation
along with the voice samples were submitted to C.F.S.L. for analysis
and report.
31. A panchnama of seizure of the bribe money was drawn.
He signed the panchnama. The S.D. card containing conversation
was played. The same was also taken charge of under post trap
panchnama (Exh.77). It is further in his evidence that on
17.11.2009, he and another panch went to the M.S.E.B. Guest
House. The transcript of the conversation in the S.D. card was
prepared in their presence. The voice samples of the complainant
and both the appellants were obtained. The recorded conversation
was played. The voice therein was identified. The panchnama in
that regard was made vide Exh.79.
32. PW 2 - Upendra was subjected to searching cross-
examination. It has come in his evidence that it was for the first
time, he visited the house of the complainant. Shri.Parab had
instructed him to remain in the drawing room itself. Inspite of the
instructions of Shri.Parab, on asking by the complainant, he went
out of the drawing room. He was behaving as per the situation. He
did not remember as to whether the window at which he was
present, had open grills. No demonstration was made to see that
the happenings in the drawing room were audible and visible by a
person standing outside at the window of the drawing room. During
telephonic conversation between the complainant and appellant
no.1, there was no reference of appellant no.2. Even, in the talks,
there was no mention about LPG dealership. The complainant did
not introduce himself to appellant no.2 during the talks. After the
complainant said something to appellant no.2 on cellphone,
appellant no.1 did not have further talks with appellant no.2. This
witness admitted that before the complainant had talk with appellant
no.2 on cellphone, the talk between both the appellants was over.
He denied that all the panchnamas were prepared in one go at the
M.S.E.B. Guest House. It has also come in the evidence that one
Shri.Gupta, Deputy Superintendent of Police, C.B.I., was also one of
the members of the trap party.
33. As stated above, the evidence of PW 5 - C. Ramkrishnan
is not referred to, since the sanction (Exh.92) granted by him for
prosecution of appellant no.2, is not taken exception to before this
Court.
34. PW 6 - Sanjay Adsul was Regional Manager, H.P.C.L.,
Aurangabad. In his evidence, he has given procedure of the
selection for grant of LPG dealership. His evidence is also of little
consequence either for the prosecution or even defence. It is in his
evidence that he had not received any complaint against appellant
no.2 therebefore, as he was superior of appellant no.2.
35. PW 3 - Sachin and PW 4 - Chandrakant, Nodal Officers
of Idea and Reliance Cellular companies, respectively, tendered in
evidence the C.D.Rs. It is reiterated that for want of certificate
under Section 65-B of the Evidence Act, the C.D.Rs. are not being
looked into.
36. Then there is evidence of PW 7 - Shri.Parab,
Investigating Officer. It is in his evidence that on the direction of his
superior, he had come to Aurangabad on 02.07.2009. An FIR
(Exh.67) was registered on the cell phone call made by the
complainant. He was assigned investigation of the crime registered
pursuant to the FIR (Exh.67). He decided to lay a trap on the next
date at Aurangabad. He, therefore, secured presence of two bank
officials to act as panch witnesses. He first went for verification of
demand of illegal gratification. He, therefore, asked the complainant
to make cellphone call to the complainant on 03.09.2009. The
evidence of this witness as regards demand verification and pre-trap
panchnama is very much consistent with the evidence of the
complainant and the shadow witness. Only with a view to avoid
repetition, the same is not reiterated. Based on the evidence of this
witness, pre-trap panchnama (Exh.76), trap panchnama (Exh.77)
and transcript panchnama (Exh.78) were admitted in evidence. He
gave the details of procedure he undertook from the stage of
demand verification to filing of the charge sheet. His evidence
indicates that he obtained voice samples of the complainant and
both the appellants. Transcript thereof was also prepared by him in
the presence of the panchas and Court official as well, for which he
had obtained permission of the Special Court. The recorded
conversation along with the voice samples were submitted to
C.F.S.L. He received report in that regard. His evidence further
indicates that he made some extra investigation to find that the case
of the complainant for grant of LPG agency was better than Devyani
Patil. He paid visit to the proposed site offered by Devyani Patil for
godown and showroom. According to him, a high-tension line was
passing overhead the said land. Same was, therefore, not fit for LPG
dealership.
37. During the cross-examination of PW 7 - Shri.Parab,
C.B.I. Officer, it has come on record that there was no record to
indicate appellant no.1 to have made any phone call to the
complainant on 27.06.2009. He did not make any investigation as
regards the allegations made in the FIR (Exh.67) and the written
complaint (Exh.42) about the incident of demand in June, 2009. He
found no phone calls between both the appellants to have been
made on 27.06.2009. The time of the meeting of the complainant
and appellant no.1 was to be decided after appellant no.1 had talk
with appellant no.2. He did not come across any phone call between
both the appellants post demand verification panchnama was
prepared. The transcript panchnama (Exh.78) was referred to him to
elicit his response that during the conversation between appellant
no.2 and the complainant, they did neither talk about the dealership
nor there was reference of appellant no.2. He found appellant no.2
to have no power to do favour to the complainant in his work. He
denied that appellant no.2 did not have any concern with the work of
the complainant.
APPRECIATION OF EVIDENCE:-
38. Perused all the authorities relied on by learned Senior
Counsel. The demand and acceptance of illegal gratification is a
question of fact. The same has to be addressed to on the basis of
the evidence obtainable in the case.
39. Admittedly, the complainant had made an application for
grant of H.P.C.L. LPG dealership. In the list of the selected
candidates, he stood at serial no.2. Smt.Devyani Patil was at serial
no.1. The evidence on record indicates that the field committee of
H.P.C.L. pays visit to the site offered by the concerned candidates for
godown and showroom of the agency. If such site is found to be in
consonance with the norms prescribed and approved by the
committee, then and then only, even the candidate at serial no.1
would get the dealership. The Investigating Officer had paid visit to
the proposed site, to find that a high-tension wire was passing
overhead. It is true that the evidence indicates that the complainant
was very much interested to bag the dealership. He, being
practicing advocate, may not have been entitled to run the business
simultaneously with practicing advocacy. He also furnished the
experience certificate of four years. The appellants had, therefore,
every reason to contend that a false certificate was obtained and
furnished along with the application. There is also evidence to
indicate that the complainant, within days of declaration of the
result, had made a phone call to the A.C.B., C.B.I., Mumbai,
although he denied to have made such a call. The same indicates
that he wanted to make a complaint. He had admitted in no
uncertain terms that he felt to have been ditched by H.P.C.L.
officers. He also felt that Devyani Patil has been unduly favoured.
There is also no evidence, sans the complainant's words that
appellant no.1 had made him a phone call on 27.06.2009 and both
met at Kranti Chowk. The evidence of the Investigating Officer
indicates that the C.D.R. inspected by him did not reveal any call
between the two. It needs no mention that the principle falsus in
uno, falsus in omnibus has no application in India.
40. Admittedly, appellant no.2 had not made any phone call
to the complainant or met him to make demand of illegal
gratification. The case of the prosecution is that appellant no.2
made such demand through appellant no.1 and even accepted the
bribe money through him. As such, there is no direct evidence
indicating involvement of appellant no.2. In the FIR (Exh.67) lodged
by the complainant on telephone, appellant no.2 has not been
alleged to have had made any demand of illegal gratification.
Admittedly, on registration of the FIR, C.B.I. Officers came down to
Aurangabad. Presence of nationalised bank officials was secured to
act as panch witnesses. PW 2 - shadow witness was a high ranking
bank officer. There is no reason to doubt his evidence. Admittedly,
the exercise to get the demand verified was carried out. The
cellphone call made by the complainant to appellant no.1 came to be
recorded. A transcript thereof was prepared in the presence of
panchas and even the Court official. Whatever talk took place
between the complainant and appellant no.1, has been deposed to
by the complainant himself, the shadow witness and the
Investigating Officer - Shri.Parab, as well. The gist of the talks
between the two, was as under:-
During conversation, appellant no.1 told
the complainant that the work of selection
of the complainant for LPG dealership is in
progress. He further told that Shri.
Sanjay Adsul, Senior Regional Manager,
H.P.C.L., was out of station and after his
return to Aurangabad, the date of meeting
of the coordination committee will be held.
The complainant asked appellant no.1 the
names of the members of the co-
ordination committee. He told that Sanjay
Adsul will be one of the members and he
did not know the names of other two
members. He further told the complainant
that appellant no.2 will manage all the
members of the co-ordination committee.
The complainant asked appellant no.1 as
to whom the bribe of Rs.5,00,000/- will be
paid and whether it can be reduced.
Appellant no.1 told that the amount of
demanded bribe cannot be reduced or
increased. Appellant no.1 told that the
entire amount was to be paid to appellant
no.2. The complainant asked appellant
no.1, as to whether after payment of the
amount, his work will be done or not.
Thereon, appellant no.1 assured the
complainant that his work will be done
after payment of the demanded amount.
The complainant asked appellant no.1 for
arranging his meeting with appellant no.2.
The appellant no.1 told that he will talk
with appellant no.2 and will again make
phone call to the complainant after 06.00
p.m.
41. The demand verification panchnama is at Exh.75. It is
true that there is no evidence to indicate the phone call between
both the appellants for fixing time of the meeting between the
complainant and appellant no.1. The aforesaid conversation,
undoubtedly, indicates that it was in relation to the demand and
payment of illegal gratification but everything was between appellant
no.1 and the complainant. During verification of the demand, there
was no talk between the complainant and appellant no.2. The
transcript of the said conversation is at Exh.78.
42. The evidence in no uncertain terms suggests that
appellant no.1 had told the complainant that he would be visiting his
residence by 11:00 in the morning on the following day. A pre-trap
panchnama was, therefore, drawn. The C.B.I. officers remained at
the upstairs premises. The complainant accompanied by PW 2 -
shadow witness remained in the drawing room of the complainant's
residence. Since appellant no.1 did not come by the given time, the
complainant had to make him a phone call. Admittedly, appellant
no.1 came to the complainant's residence little past 1.00 p.m. He
was accompanied by his friend. As per the evidence of the
complainant, appellant no.1 having seen PW 2 - shadow witness,
became uncomfortable. The complainant, therefore, asked both
shadow witness and the companion of appellant no.1 to go outside.
They went. It is after initial talks, appellant no.1 made demand for
bribe money with gestures. The talks between the two came to be
recorded. Both the recorded conversations were played before the
trial Court. The trial Court found the voice therein clear and
audible. A transcript of the said conversation was also prepared in
the presence of panchas and the Court official. The transcript is at
Exh.78. The complainant paid appellant no.1 bribe money. Appellant
no.1 has admitted receipt of the amount of Rs.5 Lakhs. The very
amount came to be seized from him under panchnama. Appellant
no.2 also has admitted that by that time, he had received phone call
of appellant no.1. Said call was made at the insistence of the
complainant to get confirmed that the work would be done. It was
the complainant's case that since a huge amount came to be paid to
appellant no.1, he asked him to make a call to appellant no.2. The
transcript of the conversation indicates appellant no.1 to have
informed appellant no.2 to have received the amount. The
conversation further indicates that appellant no.2 asked appellant
no.1 to keep the money with him He assured that the work would
be done. The complainant intervened and spoke with appellant no.2
that it was the work related to the dealership. Appellant no.2
assured "काम हो जाएगा". Then the complainant gave a predetermined
signal and rest followed.
43. The voice samples of both the appellants were obtained
in the presence of the panchas. The conversation recorded in micro
S.D. card and the voice samples were submitted to C.F.S.L. The
report thereof is at Exh.109. The same is as under:-
Hence, the voice marked exhibits Q-1(I)(A) & Q-1(II)
(A) are the probable voice of the person (Shri.Ravindra
Gurditta @ Babal) whose specimen voice is marked
exhibit S-1(A).
Hence, the voice marked exhibit Q-1(II)(B) is the
probable voice of the person (Shr.Baban Awsarmal)
whose specimen voice is marked exhibit S-2(A).
44. The conversations between the three indicate that it was
the talk in relation to H.P.C.L. dealership and a sum of Rs.5 Lakhs
was received by appellant no.1. Appellant no.2 assured that the
work of the complainant would be done and he asked appellant no.1
to keep the money with him. Appellant no.2 had specifically asked
appellant no.1 in following words:-
मम.बबल (accused no 2) : हॅलो.
अवसरमल (accused no 1) : हं
मम.बबल : हं सर रवीं बा कर रहा हू |
अवसरमल : हं. बोलो.
मम.बबल : सर, ओ कॅश पेमेट आ गया है, मेरे पास वो कॅश
लेकर रख मदया है मैने |
अवसरमल : हा
मम.बबल : ओ कॅश लेके रख ललया मैने
अवसरमल : मक ने है
मम.बबल : पाच
अवसरमल : सा
मम.बबल : पाच ले ललया ना
अवसरमल : हं हं आपना पोसेस चालू है | काम हो जायेगा |
ऍड.जग्यासी (complainant) : काम होना, काम हो जाना
मम.बबल : काम हो जाना सर अपन ने भी commitment
ले ललया है | और कॅश मेरे पास ले रखी है |
अवसरमल : हा, ुम्हारे पास रख लो, आपून कैसे है, जो भी उनहोनेच
बोला है | जब क काम हो ा है ब क पैसे को हाथ नही
लगाना है और ुम्हारे पास रख लो, काम हो जायेगा |
He also assured the complainant saying, "काम हो जाएगा". It was in
response to the complainant informing him that it was the dealership
work. The aforesaid conversation undoubtedly indicates that
appellant no.1 must have had appellant no.2's nod to make the
demand of Rs.5 Lakhs. Same was received by appellant no.1 for the
work of grant of dealership to the complainant. Appellant no.2
agreed to receive the amount from appellant no.1 once the work is
done. Till then, he asked him to keep the amount with him. The
conversation also indicates appellant no.2 to have verified, whether
it was Rs.7 Lakhs or Rs.5 Lakhs that was received by appellant no.1.
45. Now, the question is, whether the amount received, was
not as illegal gratification, as is sought to be made out in the
defence. Both the appellants examined one witness each in their
defence. It is the case of appellant no.1 that his wife has, in her
name, H.P.C.L.'s LPG gas agency. The complainant wanted to set up
his son in the business. He, therefore, requested appellant no.1 to
take his son as a partner in the business of said LPG gas agency. It
is his case that a sum of Rs.5,73,000/- was due to H.P.C.L. Unless
that was cleared H.P.C.L. authorities would not have allowed the
complainant's son to enter into the partnership. Except the bare
versions of both the appellants, there is no shred of material in
support of the defence version.
46. The Court is conscious that the accused can make out
their defence on preponderance of probabilities. Here, both
complainant and appellant no.1 are from business community. If
such was the case, for entering into a partnership, there would have
been something in writing. When the amount was to be paid
towards part of share as contribution in the partnership, the
complainant would have paid such amount either by cheque,
demand draft or other mode, the evidence whereof would have been
retained. It is reiterated that although the defence sought to be
made out is intelligent one, there would not be any takers thereto,
at least, the Court.
47. In short, this Court found no reason to disbelieve the
version of the complainant in material particulars. Same has been
reinforced by the shadow witness and the Investigating Officer as
well. The demand verification undoubtedly indicates that appellant
no.1 had made demand of illegal gratification to be paid to appellant
no.2. Although appellant no.2 was not in picture, there is every
reason to believe that he was behind the curtain. His role in the
offence is surfaced during telephonic conversations between the trio,
i.e., the complainant and both the appellants. The same is
reproduced herein above. Appellant no.2, in his defence evidence,
admitted receipt of the phone call. The conversations were recorded.
Their transcripts were prepared in the presence of panchas and the
Court official as well. The recorded conversations were played
before the trial Court. The defence version is found to be
unacceptable.
48. In view of the above, this Court finds no reason to
interfere with the judgment impugned in these appeals. In the
result, the appeals fail. The same are dismissed.
[R.G. AVACHAT, J.]
49. After pronouncement of judgment, on oral prayer made
by learned counsel for the appellant in both the appeals, the
appellants are granted eight weeks' time for surrender.
[R.G. AVACHAT, J.]
KBP
