Bombay High Court
Mukesh P. Meena vs Cbi, Acb, Mumbai And Anr on 17 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:2803
Diksha Rane 906. REVN 291-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.291/2022
MOHAMMED GOUSE KARIM ..APPLICANT
VS.
CBI, ACB, MUMBAI ..RESPONDENT
WITH
CRIMINAL REVISION APPLICATION NO.217/2022
SANDEEP GANESH YADAV ..APPLICANT
VS.
CBI, ACB, MUMBAI ..RESPONDENT
WITH
CRIMINAL APPLICATION NO.510/2022
WITH
CRIMINAL APPLICATION NO.945/2023
MUKESH P. MEENA ..APPLICANT
VS.
CBI, ACB, MUMBAI & ANR. ..RESPONDENTS
------------
Adv. Pankti Shah h/f. Adv. Devesh Tripathi for the applicant
in 291/2022.
Adv. Ganesh Gole i/b. Adv. Ashutosh Shukla for the applicant
in APL/510/22 and APL/945/2023.
Adv. Anish Desai a/w. Adv. Genevieve Lobo for the applicant
in Revn/217/2022.
Mr. S. H. Yadav, APP for the State.
Adv. Kuldeep S. Patil a/w. Adv. Ashish Kumar Srivastava for
the respondent - CBI in Criminal Application No.510/2022
and APL/945/2023.
Adv. Hiten Venegaonkar a/w. Adv. Priya Dubey, Adv. Yogini
Sarvankar for the respondent in Revn/291/22 & Revn/217/22
------------
1
Diksha Rane 906. REVN 291-22.doc
CORAM : M. S. KARNIK, J.
DATE : JANUARY 17, 2024.
ORAL JUDGMENT :
1. Heard learned counsel for the applicants and learned
counsel for the respondents.
2. These are the applications challenging the orders
passed by the trial Court rejecting the applications for
discharged filed by the accused who are charge-sheeted for
the offences punishable under Sections 120-B, 409 of the
Indian Penal Code (hereafter 'IPC' for short) read with
Sections 7, 8, 9, 10, 11, 12, 13(2) read with Sections 13(1)
(c) and 13(1)(d) of the Prevention of Corruption Act, 1988.
3. The Criminal Revision Application No.217/2022,
Criminal Application No.510/2022 and Criminal Application
No.945/2023 are filed by the Deputy Commissioners of
Customs, that is accused Mukesh P. Meena and Sandeep
Ganesh Yadav.
4. So far as the revision applicant (accused no.8) -
Mohammed Gause Karim in Criminal Revision Application
No.291/2022 is concerned, he is alleged to be the
Diksha Rane 906. REVN 291-22.doc
middleman who facilitated the offence of payment of bribe
amount to the accused Mukesh Meena and Sanjay Yadav.
5. Mr. Ganesh Gole, learned counsel for the applicant in
Criminal Application No.510/2022 and Criminal Application
No.945/2023, Mr. Anish Desai, learned counsel for the
applicant in Criminal Revision Application No.217/2022 and
Ms. Pankti Shah, learned counsel for the applicant in
Criminal Revision Application No.291/2022 took me through
the relevant materials on record which is in the form of the
paper-book comprising of the present criminal revision
applications, criminal applications as well as three volumes
of the charge-sheet and the statements of the witnesses. An
additional compilation was also filed on behalf of the
applicant - Mohammed Gause Karim.
6. The case of the respondents in brief is that the
complainants Amjad Mohmad Farooq Bakali and Irfan
Popatiya were to import two containers carrying goods.
There was misdeclaration on their part as regards the goods
to be imported. It is the allegation that the accused Mukesh
Meena and Sanjay Yadav demanded bribe amount of
Rs.25 lakhs which was later settled at Rs.21 lakhs after
Diksha Rane 906. REVN 291-22.doc
negotiation.
7. Mr. Gole, learned counsel appearing for the accused
Mukesh Meena submitted that having regard to the specific
nature of duties assigned to him, the applicant/accused
Mukesh Meena had no right to withhold or release the
containers in question. The role of the applicant was only to
supply information which comes to his knowledge of any
misdeclaration. It is submitted that the applicant was
targeted only because he was actively involved in supplying
information about such misdeclaration which was not to the
liking of various importers and other officers who had a
grudge against him. It is further submitted that on the date
when the containers actually landed, the applicant was not
on duty. The applicant was on leave from 7/4/2018 to
22/4/2018. The applicant joined the duty on 23/4/2018. It is
submitted that the entire case against the applicant Mukesh
Meena is based on hearsay evidence. It is the submission of
learned counsel that initial allegation is that the part
payment towards bribe amount is Rs.5 lakhs was received
for two containers, whereas later without any basis it is
alleged that the bribe demanded was for four containers.
Diksha Rane 906. REVN 291-22.doc
Mr. Gole submitted that no details are available with the
Customs Department regarding four containers and
therefore, on the basis of such vague and trumped up
allegations when the whereabouts of the containers could
not be ascertained, in such circumstances to entertain a
complaint regarding corruption charges is not only unfair to
the applicant but is an instance of gross miscarriage of
justice.
8. My attention is invited to page 161 of the Volume-I
which provides for the duties of the applicant. It is
submitted that there is no material to indicate the factum as
regards the demand and acceptance of the bribe amount.
Mr. Gole contended that a scrutiny of the assets of the
applicant will reveal that his assets are within the known
sources of his income. He further submitted that nothing
was found during the house search. It is submitted that the
applicant is not the recipient of the bribe amount nor is
there any recovery from him.
9. Insofar as Criminal Application No.945/2023 is
concerned, it is submitted by Mr. Gole that appropriate
action be taken against the respondents for perjury under
Diksha Rane 906. REVN 291-22.doc
Section 340 of the Code of Criminal Procedure as false
statements are made in the affidavit that has been filed in
this Court which narrates the facts contrary to the materials
on record before the trial Court.
10. Learned counsel for the applicant Sandeep Yadav
adopted the arguments of Mr. Gole and submitted that so
far as the applicant Sandeep Yadav is concerned, there is
absolutely no material to indicate the factum of demand
and acceptance of the bribe. It is further submitted that
factually the bribe amount was never found in the
possession of the applicant Sanjay Yadav.
11. Learned counsel for the applicant/accused Mohammed
Gouse Karim submitted that the applicant's name nowhere
figured in the complaint. It is submitted that there is no
material against him except some vague conversation in
which it is alleged that the applicant has passed on
information about the co-accused Mukesh Meena to the
complainants. It is submitted that the applicant has nothing
to do with the demand or acceptance and his presence is
nowhere noted either at the spot where the money was
actually delivered or his presence shown to be with any of
Diksha Rane 906. REVN 291-22.doc
the accused at any point of time. It is submitted that as
there is no demand and acceptance by the applicant of the
bribe amount, none of the ingredients of the alleged offence
can be said to be made out against him.
12. I have carefully perused the statements of the
complainants Amjad Mohmad Farooq Bakali and Irfan
Popatiya. At the stage of discharge this Court is required to
evaluate the material and documents on record with a view
to find out the existence of all the ingredients constituting
the alleged offence. I have to undertake the exercise for the
limited purpose of finding out whether or not a prima facie
case against the accused is made out in the facts of this
case. This Court is not excepted to conduct a mini trial.
13. The statement of complainant Amjad Mohmad Farooq
Bakali clearly reveals that prima facie, there was a demand
of the bribe amount by the accused Mukesh Meena and
Sanjay Yadav. The said statement reveals the name of the
middleman who acted on behalf of the applicants. The
statement of 'Chandrashekhar Rane' who was working as
dock clerk with various CHA companies at various Container
Freight Station at Nhava Sheva is significant. The statement
Diksha Rane 906. REVN 291-22.doc
in detail reveals about the trap panchanama and the
manner in which the part of the bribe amount was handed
over to the middleman. I may only refer to the relevant
portion from the statement of Chandrashekhar Rane which
reads thus:-
"We reached Cafe Coffee Day near the Customs Colony, Powai
by auto rickshaw Phen we walked towards the entry gate of
Customs Colony and stopped near its main gate and waited
on the pavement besides which Grey Innova car bearing
number MH 46 X 8942 was parked. I called Shri Nilesh from
my mobile and informed that we have reached the Customs
Colony. Shri Nilesh asked us to wait near his Innova vehicle.
After about one hour, I received a call on my mobile from Shri
Nilesh wherein Shri Nilesh informed that he would come
within 5-10 minutes. After sometime. Shri Nilesh asked both of
us to sit in his Innova car. He further pointed towards two
persons standing near the main gate of Customs Colony and
told that the said two DCs would do their work. He further told
that the said DCs who were later identified as Mukesh Meena
and Shri Sandeep Yadav would be coming to talk to us.
Accordingly we sat in the vehicle and closed the doors. Shri
Nilesh opened the front passenger side door of vehicle and
stood outside the vehicle and asked for the money. Shri Irfaan
Popatia then took out the blue bag containing tainted bribe
amount of Rs. 5 lakhs with his right hand and handed it over
to Shri Nilesh which he accepted with his right hand and kept
the same in the front passenger seat. Shri Nilesh then went
and opened the dickey and brought a laptop bag and kept it
on the floor of the car below the front passenger seat. Shri
Nilesh then opened and checked the said blue bag handed
over by Shri Irfaan Popatia and took out the tainted GC notes
and enquired as to how much is the amount. Irfan informed
that total five lakhs is there. Then Shri Nilesh took out a white
polythene bag from the said laptop bag and kept one bundle
of Rs. 2000/- denomination amounting to Rs 2 lakhs and kept
the blue bag containing the remaining bribe amount in the
laptop bag. Shri Nilesh then went to Shri Mukesh Meena and
Shri Sandeep Yadav, both Dy. Commissioner of Customs who
were standing near the gate of Customs Colony to hand over
the same. It was seen on the instructions of one of the Dcs
(who was later identified as Shri Mukesh Meena), Shri Nilesh
then went to the Security Guard cabin and handed over the
said white polythene bag containing Rs. 2 lakhs to one
Diksha Rane 906. REVN 291-22.doc
security guard who was later identified as Shri Mohammad
Rafi. Thereafter Shri Nilesh came back to Innova vehicle and
took the front passenger seat. Shri Nilesh then took out the
blue bag handed over by Shri Irfaan Popatia and put two
bundles of Rs. 500/- denomination in the said blue bag from
the laptop bag and again kept back the blue bag in the said
laptop bag. Shri Nilesh told that 'sahab' will come to talk to
us. Then Shri Nilesh instructed the driver of the vehicle to
move the vehicle forward. At this juncture, Shri Irfan Popatia
took out the handkerchief and wiped his face as a signal of
delivery of the bribe amount to Shri Nilesh.
Immediately Shri R. S. Gosain, Pt who was stationed near
the Income Tax Colony gate took his vehicle and blocked the
movement of the vehicle in which Shri Nilesh Singh was
sitting Simultaneously other CBI team members also blocked
the said Innova car. Immediately Shri Satish Bhogulkar, PC
took out the DVR from the person of Shri Irfan and stopped
the recording and switched it off and handed over the same to
same to Shri Nagargoje Panch No. 2 for safe custody. Shri R. S.
Gosain, PI knocked on the window of the passenger seat of
the car and asked Shri Nilesh Singh to unlock the door. On
doing so Shri R. S. Gosain, PI disclosed his identity to Shri
Nilesh Singh. On enquiry Shri Nilesh Singh revealed that he
has taken Rs. 5 lakhs on behalf of Shri Mukesh Meena, Deputy
Commissioner, Customs R. & I., Speedy CFS, Nhava Sheva
and out of Rs. 5 Lakhs he has handed over Rs. Two lakhs to
the security guard on the say of Shri Mukesh Meena, DC while
rest of the amount of Rs. 3 lakhs is kept in his Taptop bag. On
the instructions of Shri R. S. Gosain, PI Shri Balwinder Singh,
PSI rushed to the main gate of Customs Colony where Shri
Mukesh Meena and another person were standing and
conversing. On revelation of their identities they were brought
in one of the vehicles. The other person was identified as Shri
Sandeep Yadav, DC, Customs, JNCH."
14. Further from the statement of PW-8- Nivrati Tukaram
Shirsat, who was the security guard , it reveals thus:-
"On being asked I state that today le. 30.04.2018 at about
1700 hrs. on fair beard man having big scar on left side of his
face, who I later identified as Shri Nilesh Singh had come to
me and gave me one white polythene bag said to be
containing Rs. 2- lakhs and told me to give the said polythene
bag to Supervisor Shri Muhammad Rafique Azad Khan. At the
same time I saw Shri Muhammad Rafique @ Azad Khan
returning from the wash room. Shri Mukesh Meena and Shri
Diksha Rane 906. REVN 291-22.doc
Sandeep Yadav, both Custom Officers were standing near the
gate and I heard them telling Shri Muhammad Rafique to keep
the polythene bag containing Rs. 2 lakhs with him and they
will take it after sometime."
15. Apart from this there are materials in the form of
transcripts and voice identification panchanama, verification
panchanama which prima facie reveal the complicity of the
applicants Mukesh Meena and Sandeep Yadav. Reference to
the statement of PW-9 - Muhammad Rafique Abdul Gani will
also throw some light on the matter. The statement reads
thus:-
"As I was coming from wash room, Shri Mukesh Meena and
Shri Sandeep Yadav, both Custom Officers who were
standing near the gate told me to keep the said white
polythene bag containing Rs. 2 lakhs and also told that they
will take it after sometime and after that Shri Nivrati
Tukaram Shirsat gave me the said polythene bag containing
Rs. 2 lakhs and after taking it from Shri Nivrati Tukaram
Shirsat, I kept the said white Polythene bag containing Rs. 2
lakhs in my bag which was further to be given to Shri
Mukesh Meena and Shri Sandeep Yadav."
16. In my opinion, the materials on record prima facie
shows the existence of all the ingredients constituting the
alleged offence. Learned counsel for the applicants
nonetheless urged that the materials at the highest would
be in nature of hearsay evidence. In my view, when the
materials on record taken at its face value prima facie
reveal the complicity of the applicants, the submissions of
Diksha Rane 906. REVN 291-22.doc
learned counsel for the applicants are then in the realm of
appreciating the statements and the materials on merits to
hold the applicant as not guilty. Such exercise is not
permissible for me to undertake at the stage of considering
the application for discharge on the touchstone of the well
established principles guiding this Court by the Supreme
Court in the matter of discharge.
17. So far as the applicant Mohammed Gouse Karim is
concerned, the voice recordings which are placed on record
does show his complicity that he facilitated the commission
of the alleged offence. The applicant is a vital link in the
whole chain and hence having regard to his role as
indicated in the recorded conversation it would not be
appropriate to discharge him.
18. I have gone through the order of the trial Court. I see
no reason to interfere with the order of the trial Court.
19. So far as the Criminal Application No.945/2023 for
perjury is concerned, I am not inclined to entertain the
application as I have decided the application based on the
materials on record and not with reference to the affidavit
filed by the respondents. Mr.Kuldeep Patil submitted on
Diksha Rane 906. REVN 291-22.doc
instructions that in any case the respondents are
withdrawing the affidavit filed without prejudice to their
rights and contentions before the trial Court. Affidavit is
allowed to be withdrawn without prejudice. In this view of
the matter, I am not inclined to entertain the Criminal
Application No.945/2023. The application consequently
stands disposed of.
20. It is made clear that the observations made in this
order are limited for considering the application for
discharge on the principles laid down by the Hon'ble
Supreme Court guiding this Court. These observations
obviously will not influence the trial Court. The trial Court
shall proceed with the trial on its own merits and in
accordance with law without being influenced by any of the
observations.
21. The applications are rejected and disposed of
accordingly.
(M. S. KARNIK, J.)
Signed by: Diksha Rane
Designation: PS To Honourable Judge
Date: 20/01/2024 17:25:21
