Bombay High Court

The State Of Mah vs Amin Babulal Shaikh And Ors on 9 August, 2024

2024:BHC-AUG:17613

912-APEAL-576-2004.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 576 OF 2004

Amin Babulal Shaikh
VERSUS
State Of Maharashtra
...
Mr. Joydeep Chatterji, Advocate for Appellant
Mr. S. K. Shirse, APP for Respondents

WITH
CRIMINAL APPEAL NO. 559 OF 2005

State Of Maharashtra
VERSUS
Amin Babulal Shaikh
...
Mr. S. K. Shirse, APP for Appellant
Mr. Joydeep Chatterji, Advocate for Respondents

WITH
CRIMINAL APPEAL NO. 558 OF 2005

The State Of Maharashtra
VERSUS
Amin Babulal Shaikh And Ors
...
Mr. S. K. Shirse, APP for Appellant
Mr. Joydeep Chatterji, Advocate for Respondent No.1
Mr. S. D. Nagode h/f Mr. S. S. Jadhav, Advocate for
Respondent No. 2
***

CORAM : KISHORE C. SANT, J
DATE : AUGUST 09, 2024

PER COURT :

1. Heard parties. Perused record and proceedings.

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2. All these Appeals arise out of same judgment

and order passed by the learned Special Judge,

Ahmednagar dated 17.08.2004 in Special Case No.

11/1999. By way of impugned judgment and order, Accused

No. 1 i.e., Appellant No. 1 in Criminal Appeal No. 576

OF 2004 is held guilty of the offence punishable under

Section 7 of the Prevention of Corruption Act, 1988

(for short 'PC Act') and sentenced to suffer rigorous

imprisonment for one year and to pay fine of Rs.

2,000/-, in default to suffer rigorous imprisonment for

three months. All the accused came to be acquitted of

offences under Indian Penal Code.

3. Appeal No. 576/2004 is filed by Accused No. 1

challenging his conviction and sentence for the offence

under Section 7 of the PC Act. Appeal Nos. 558/2005 is

filed by the State challenging the acquittal of the

accused persons. Appeal No. 559/2005 is for enhancement

in the sentence awarded by the learned Special Judge to

accused No. 1 for an offence under Section 7 of the PC

Act.

4. The story, in short, is that one Annasaheb

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Waghe, complainant, lodged a complaint with the Anti

Corruption Bureau, Nashik on 20.08.1998 stating that he

is having agricultural land. He is also having one

vehicle, namely, Mahindra Commander Jeep which is used

for his personal use. On 16.08.1998 he went to Shani

Shingnapur along with his relatives and family members.

When the said vehicle was passing in front of bus

stand, Rahuri, Accused No. 1 stopped him. He asked for

the documents in respect of the vehicle and driving

license etc. On showing those documents, the accused

took the documents and kept the same with him. He told

the complainant that he is carrying passengers

illegally in the vehicle and, therefore, he would lodge

a complaint against him. Complainant requested not to

take any action against him as he is going for darshan

at Shani Shingnapur. On that, the accused no. 1

demanded Rs. 300/- for returning the documents and the

driving license. On that, complainant told that he is

coming back to Rahuri on Thursday, a bazar day dated

20.08.1998 and at that time he would pay the amount.

The complainant on this went to ACB, Nashik and lodged

a complaint.

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5. On receiving a complaint, ACB arranged trap on

20.08.1998. After completing formalities, raiding party

proceeded towards Rahuri. Raiding party stopped near

bus stand square. Panch PW-2 Jadhav and PW -1

Complainant went near accused no. 1. After initial

talks with Accused No. 1, it is alleged that, accused

no. 2 came on motorcycle. Accused no. 1 made

complainant to sit on the motorcycle by giving two fist

blows and took him to the police station. There he was

confined for some time. Since the trap failed, there

was no question of any demand and acceptance of the

amount. The amount remained in the pocket of the

complainant, which was later on recovered from the

complainant. On this, prosecution was lodged for

offences under Sections 342, 323, 365, 465 read with

Section 34 of the Indian Penal Code. Section 7 of the

PC Act came to be added later on. Learned Court

acquitted all the accused persons under IPC sections.

However, convicted accused no. 1 under Section 7 of the

PC Act.

6. Mr. Chatterji, learned Advocate for Appellant,

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vehemently argued that this is a case where there is no

demand and acceptance of amount. Prosecution has

utterly failed to prove any of the offences. He submits

that though the charges were framed, there is no

evidence led by the prosecution in support of the

charges. He submits that the complaint was lodged

because of the grudge in the mind of the complainant as

several complaints were filed against him for carrying

passengers illegally. Complainant accepted this fact in

his cross-examination. He further points out from the

evidence that the alleged demand was on 16.08.1998

which is not corroborated. On 20.08.1998 there is no

demand and acceptance. Panch witness - Jadhav also only

stated that the complainant was made to sit on the

motorcycle. When he asked where the accused are taking

complainant, accused no. 1 pushed him. He thus submits

that there is no corroboration to the evidence of the

complainant that accused no. 1 gave fist blows to the

complainant. So far as demand, he submits that there is

no evidence at all. He points out from the record that

in fact the accused no. 1 had taken the complainant to

the police station and there is entry no. 231/1998 at

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Exh. 55(1) where it is clearly recorded that a jeep of

the complainant was apprehended. On asking the name and

particulars of the driver i.e., complainant, he refused

to give name and any of the documents. It is further

pointed out from the cross-examination of the

complainant that he had taken jeep on loan from one

credit cooperative society, namely, Dhanwantari

Patsanstha. The original documents of the vehicle were

with said Patsanstha. Thus, there was no question of

complainant giving documents to accused no. 1 on

16.08.1998. he submits that initially Section 7 of the

PC Act was not there. Said section came to be added

later on as per instructions of superior of the I.O. PW

4. So far as Section 365, 323, 342 and 465 read with

Section 34 of IPC, he submits that the accused had

power to use force against the complainant in view of

Section 46 of the Criminal Procedure Act. Ultimately,

he submits that this is a case where there is no

evidence to corroborate the version of the complainant.

He relies on the judgment in case of Panalal Damodar

Rathi vs. The State of Maharashtra, 1979 Cri.L.J. 936 .

In support of his submission about demand and

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acceptance, he relies upon judgments in case of

Mukhtiar Singh, since deceased through LR's vs. State

of Punjab, 2017 (8) SCC 136. So far as considerations

appeal in against acquittal, he relies upon the

judgment in case of State of Maharashtra vs.

Dnyaneshwar Laxmanrao Wankhede, 2009 (15) SCC 200.

7. Mr. Shirse, learned APP, vehemently argued

Appeal supporting the judgment to the extent of holding

accused no. 1 guilty of the offence under Section 7 of

the PC Act. He submits that the entire episode taking

as it is the prosecution has established a demand of

16.08.1998. So far as appeal against acquittal is

concerned, he submits that prosecution has clearly led

evidence to show that accused no. 1 gave fist blows to

the complainant. The panch witness has also stated in

his evidence that when he asked accused nos. 1 and 2

where they are taking complainant, he was pushed by

accused no. 1. There is evidence to show that accused

nos. 1 and 2 took the complainant on motorcycle and

detained him in police station. Thus, there is material

to prove offence under Sections 365, 323, 342 and 465

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read with Section 34 of the Indian Penal Code. He

submits that the gravity of the offence is more as all

accused persons happened to be pubic servants and from

police force, which is considered to be disciplined

force and they are the guards of law and order

situation. He thus submits that Appeal No. 576/2004 be

dismissed and Appeal Nos. 558 & 559/2005 needs to be

allowed by holding accused persons guilty of the

offences with which they were charged.

8. Mr. Nagode h/f Mr. S. S. Jadhav, learned

Advocate for Respondent Nos. 2 and 3 supports impugned

judgment and order. He submits that in this case

prosecution has miserably failed to prove the guilt of

the accused persons. There is no evidence against them.

The action is initiated at the instance of person who

himself has faced various cases for carrying passengers

illegally in vehicle. On the date of incident the

complainant was taken to police station as he refused

to give documents and he did not even disclosed his

name. After taking him to police station, report is

taken as per law. Entire action is taken as per law.

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He thus prays for rejection of the Appeal.

9. After hearing parties, this Court finds that

on the date of actual trap prosecution could not prove

the demand and acceptance. At the most about demand,

there is evidence of the complainant himself that on

16.08.1998 accused no. 1 demanded an amount. In the

case of Panalal Rathi (supra) the Hon'ble Supreme Court

has held that the status of the complainant in

corruption matter is not more than an accomplice and,

therefore, his evidence needs to be carefully

scrutinized. Evidence of complainant needs to be

corroborated by an independent evidence. In the present

case, this Court finds that about demand on 16.08.1998

there is no corroboration.

10. In the case of Mukhtiar Singh (supra) Hon'ble

Supreme Court has held that demand and acceptance are

required to be proved specifically. Mere allegation by

complainant regarding demand and acceptance of illegal

gratification by the accused, if remains

uncorroborated, cannot be used as sufficient evidence

to prove the charges beyond reasonable doubt. This

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Court thus finds that the Trial Court has erred in

holding the Appellant guilty of the offence punishable

under Section 7 of the PC Act in absence of sufficient

evidence. One more aspect that needs a consideration

that initially Section 7 was not alleged against

accused no. 1. However, subsequently same came to be

added as pr oral direction of superior office of the

I.O. This shows that even I.O. did not find material to

prosecute accused no. 1 under Section 7 of PC Act.

Accused is prosecuted under this section at the

instance of superior officer. The conviction is,

therefore, needs to be set aside by acquitting the

accused and the Appeal No. 576/2004 must succeed.

11. So far as the Appeals against acquittal are

concerned, this Court finds that when the prosecution

itself is proceeded on the basis of complaint of the

person whose evidence cannot be believed and remained

uncorroborated, this Court finds that the Trial Court

has not committed any error in passing impugned

judgment. So far as acquittal in the IPC sections are

concerned, in the case of Dnyaneshwar L. Wankhede

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(supra) the Hon'ble Supreme Court has considered that

it is well settled principle that where two views are

possible one in favour of prosecution and other in

favour of accused, the later should prevail.

12. Now the parameters are well settled so far as

considerations in the Appeals against acquittal. On

considering these parameters, this Court finds that the

findings of the acquittal need not require any

interference at the hands of this Court. Hence, Appeal

Nos. 558 & 559/2005 deserves to be dismissed. In the

result, following order:

O R D E R

(a) Criminal Appeal No. 576/2004 is allowed.

(b) Judgment and order passed by the learned Special Judge, Ahmednagar dated 17.08.2004 in Special Case No. 11/1999 is quashed and set aside to the extent of holding Appellant guilty of offence punishable under Section 7 of the PC Act. Appellant stands acquitted of the said charges.

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                                                   912-APEAL-576-2004.odt


   (d)   Criminal Appeal Nos.      558/2005   &    559/2005
         are hereby dismissed.



                                        (KISHORE C. SANT, J.)




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