Bombay High Court
Kuldip Dyaneshwar Sapkal vs The State Of Maharashtra on 31 January, 2024
2024:BHC-AUG:2033
CriAppeal-465-2015
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 465 OF 2015
Kuldip Dyaneshwar Sapkal,
Age : 28 years, Occupation: Service,
R/o: Building No.15, Room No.6,
Police Head Quarters, Dhule. ... Appellant
[Orig. Accused]
Versus
State of Maharashtra ... Respondents
.....
Mr. N. L. Choudhari, Advocate for the Appellant.
Mr. S. M. Ganachari, APP for the Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 24.01.2024
Pronounced on : 31.01.2024
JUDGMENT :
1. By way of instant appeal, convict for offence under Section 7 of
the Prevention of Corruption Act, 1988 [PC ACT] is assailing the
judgment and order passed by Special Judge, Dhule dated 22.05.2015
in Special Case No. 114 of 2013.
2. To briefly put, Shirpur Police Station launched prosecution
against present appellant alleging that he was working as a constable.
On 23.04.2013 he intercepted complainant, who was proceeding on a
motorcycle with his friends, for violation of traffic rules. As
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complainant was not equipped with documents of the vehicle and
driving license, it is case of prosecution that, he was directed to take
the vehicle to police station. However, while on way, accused
allegedly demanded Rs.500/- to spare the complainant. Complainant
agreed to pay at a later point of time. According to the prosecution,
accused himself telephoned and asked whether amount has been
arranged and thereafter, complainant approached Anti Corruption
Bureau [ACB] and lodged complaint. Accordingly, conversation
between complainant and accused was recorded in a tape recorder
and its panchanama was also drawn and finally investigation was
carried out which revealed that accused demanded Rs.500/- for not
prosecuting complainant under the Motor Vehicles Act, and therefore
he was chargesheeted for offence punishable under Section 7 of the
PC Act.
Trial was conducted by Special Judge who, on examining
evidence of in all four witnesses adduced by prosecution and after
appreciating oral and documentary evidence, held charges proved and
convicted appellant to suffer two years imprisonment and to pay fine.
Such judgment and order of conviction is questioned by way of
instant appeal on various grounds raised in the appeal memo.
CriAppeal-465-2015
3. Heard learned counsel for the appellant, according to whom, it
is apparently false implication. That, complainant's version itself
shows that there were two constables but complainant did not knew
name of the person who allegedly demanded money. He further
pointed out that there is no explanation from complainant as to from
where and how he learnt the name of the constable who allegedly put
up demand. According to him, implication is on the sole basis of
alleged tape-recorded conversation but said electronic evidence does
not meet the legal requirements of Section 65-B of the Indian
Evidence Act. He pointed out that material witnesses are not
examined. He further submitted that complaint is also lodged after
making several attempts which had apparently failed as there was no
demand. That, repeated attempts itself show that there was deliberate
attempt to implicate appellant. That, learned trial court has not
considered and appreciated all such aspects. According to him, there
were several lapses and lacuna in the investigation but still learned
trial court has held the case proved and erred in recording guilt.
Learned counsel for the appellant seeks reliance on the following
rulings and prays to allow the appeal:
1. K. Shanthamma v. State of Telangana 2022 DGLS (SC)
213 ; (2022) 4 SCC 574.
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2. State of Maharashtra v. Dnyaneshwar Laxman Rao
Wankhede 2009 DGLS (SC) 1109 ; (2009) 15 SCC 200.
3. Krishnan Chander v. State of Delhi 2016 DGLS (SC) 8 ;
(2016) 3 SCC 108.
4. Damu Rama Avhad v. State of Maharashtra 2022 DGLS
(Bom) 1637 ; 2022 (3) Bom.C.R. (Cri) 641.
5. Sunil Hirasingh Rathod v. State of Maharashtra 2021
DGLS (Bom) 2367 ; 2022 All MR (Cri) 647.
4. In answer to above, learned APP would submit that evidence of
complainant is supported by shadow pancha. There is evidence about
initially demand being made of Rs.500/- to subsequently accused
agreeing to accept Rs.400/- for not prosecuting complainant. There is
tape recorded conversation of such dialogues and same has been
proved. Resultantly, he submits that on the strength of four witnesses,
prosecution has established the charges and so he prays to dismiss the
appeal for want of merits.
5. Learned Special Judge has recorded conviction for offence u/s 7
of the PC Act. Therefore, it is desirable to reproduce the said
provision.
CriAppeal-465-2015
"7. Public servant taking gratification other than legal
remuneration in respect of an official act.--
Whoever, being, or expecting to be a public servant, accepts
or obtains or agrees to accept or attempts to obtain from
any person, for himself or for any other person, any
gratification whatever, other than legal remuneration, as a
motive or reward for doing or forbearing to do any official
act or for showing or forbearing to show, in the exercise of
his official functions, favour or disfavour to any person or
for rendering or attempting to render any service or
disservice to any person, with the Central Government or
any State Government or Parliament or the Legislature of
any State or with any local authority, corporation or
Government company referred to in clause (c) of section 2,
or with any public servant, whether named or otherwise,
shall be punishable with imprisonment which shall be not
less than three years but which may extend to seven years
and shall also be liable to fine.
Explanations.
(a) "Expecting to be a public servant" If a person not
expecting to be in office obtains a gratification by deceiving
others into a belief that he is about to be in office, and that
he will then serve them, he may be guilty of cheating, but
he is not guilty of the offence defined in this section.
(b)"Gratification". The word "gratification" is not restricted
to pecuniary gratifications or to gratifications estimable in
money.
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(c) "Legal remuneration" The words "legal remuneration"
are not restricted to remuneration which a public servant
can lawfully demand, but include all remuneration which
he is permitted by the Government or the organisation,
which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a
gratification as a motive or reward for doing what he does
not intend or is not in a position to do, or has not done,
comes within this expression.
(e) Where a public servant induces a person erroneously to
believe that his influence with the Government has
obtained a title for that person and thus induces that person
to give the public servant, money or any other gratification
as a reward for this service, the public servant has
committed an offence under this section."
The necessary ingredients for attracting Section 7 of the
Prevention of Corruption Act are as under:
(i) The accused at the time of offence, was or expected to
be, a public servant;
(ii) That he accepted, or obtained, or agreed to attempt or
attempted to obtain from some person a gratification;
(iii) That such gratification was not illegal remuneration due
to him; and
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(iv) That he accepted the gratification in question as a
motive or reward for
(a) doing or forbearing to do any official act;
(b) showing or forbearing to show favour or disfavour
to someone in the exercise of his official functions;
(c) rendering or attempting to render any service,
disservice to someone, with the Central
Government or any State Government or
Parliament or the Legislature of any State or with
any public servant.
6. Prosecution in support of its above case has adduced evidence
of in all four witnesses i.e. PW1 Chhatrapalsing Rajput [complainant],
PW2 Dyaneshwar Dahake [shadow pancha], PW3 SP Pradip
Deshpande [Sanctioning Authority] and PW4 PI Vijay Chaure
[Investigating Officer].
7. The primary criticism raised before this court by appellant is
that there there was no demand at all. According to him, deliberate
repeated attempts were made to bribe and trap appellant. On this
count, testimony of PW1 and PW2 is mostly relied and therefore, it
would be apt to visit their testimonies and re-appreciate the same.
CriAppeal-465-2015
8. On close and minute scrutiny, from the testimony of PW1
complainant at Exhibit 8, it is emerging that on 23.04.2013 he was
riding motorcycle on which his friends namely Nilesh Patil and
Chetan Suryawanshi were pillion riders. His testimony is regarding
they all three riding on a motorcycle and when they reached Karvand
Naka, they were allegedly intercepted by two constables and were
asked to produce documents of ownership of bike as well as driving
licence. Complaint himself speaks that he did not have papers as well
as licence and therefore, was asked to take the motorcycle to police
station. His further testimony is that after crossing some distance "one
of the constables gave him advice that they are college going students
and to avoid spoiling of career, matter should be settled by give and
take method". Said constable demanded Rs.500/- to let them go scot-
free. A request was made by complainant that he had to appear for
exams but was told that he would be released only on payment of
money. Complainant did not have money and then he contacted one
Swapnil Jadhav and said Jadhav had conversation with constable.
Said constable gave number of his cell phone and asked complainant
to make contact on that phone. Complainant reproduced the mobile
number to be 9764669494. Complainant also gave cell number of
Nilesh Patil to the constable. Thereafter the police officials allowed
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him to go only because he told them that after collection of money he
would pay in the morning.
According to him, in the morning said constable called on
Nilesh Patil's cell phone and made inquiries as to whether Rs.500/-
were arranged and was assured to be paid. Complainant claims that
after receipt of such call he got frightened and apprehended
prosecution and so he came to ACB, Dhule and lodged complaint
Exhibit 9.
It has further come in his evidence that in the night itself he
came to know the name of the constable demanding money to be
Kuldeep Sapkal i.e. present appellant. In chief itself he stated that he
learnt the name of another constable Rahul Sanap after filing
complaint and then panchas was called, who verified the complaint
and around 5.00 p.m. they went to Shirpur. Then he got his mobile
activated and gave call on the number which was provided. The call
was received by Rahul Sanap and introduction was given. Said
constable Sanap told that he was on leave and he gave this witness
mobile number of Kuldeep Sapkal (appellant) and further directed to
meet him and hand over money to him. In chief itself he stated that
he did not remember the number of Sapkal but only knew last three
digits to be 420. They went to police station. His friend Swapnil
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Jadhav and PW2 pancha accompanied him. He carried voice recorder.
They entered police station and on inquiry they were told that Sapkal
was outside the police station and so, after coming out of the police
station he made phone call to Sapkal who allegedly asked him to
come behind police station near a cottage beneath tamarind tree.
After introduction, Sapkal asked about pancha and as to who he was.
Conversation took place between Jadhav and Sapkal. Appellant
Sapkal allegedly told him that there are instances of stealing two
wheeler. Witness then stated that Jadhav negotiated with Sapkal to
reduce the amount to Rs.400/- from Rs.500/-. He stated that he also
requested Sapkal to reduce the demand. Then they went to the jeep
and reached ACB office and drew panchanama Exhibit 10. The voice
recorded was played and the script of conversation was noted therein.
He further deposed that thereafter he gave money to the ACB
officials i.e. currency notes of Rs.100/- denomination, to which
anthracene powder was applied and as per instructions, kept in the
pocket of complainant and pre trap panchanama was drawn vide
Exhibit 11.
Further witness deposed that he made contact with accused to
know his location who told him that he was in bazar. Complainant
speaks about two three attempts of giving phone bell but there was no
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response to his calls. On call being made by Swapnil Jadhav,
appellant allegedly informed that as he was with his senior officer, he
would be unable to come. In spite of waiting when he did not turn up,
panchanama Exhibit 12 was drawn.
It has further come in his evidence that after two days he was
called at ACB office Dhule and he himself requested to suspend the
matter. His statement to that effect Exhibit 13 was recorded. On
07.05.2013, he again came to ACB office and gave statement with a
request to take action against Sapkal for demanding Rs.400/- as
bribe. He also handed over memory card of the voice recorder which
was sealed for dispatching it to analyzer. He identified voice sample
to be of accused and that conversation in the script was as per the
talks between himself, Swapnil Jadhav and appellant.
9. Above witness is subjected to lengthy cross wherein he
admitted that he identified voice to be of accused because the
recording begins with the voice of Investigating Officer instructing it
to be voice recording of Mr. Sanap and to listen to it carefully. In
cross he admitted that Swapnil Jadhav had accompanied him to the
ACB office as well as court and further admitted that he filed
complaint on advice of Swapnil Jadhav. He further admitted that on
CriAppeal-465-2015
23.04.2013 constables stopped his motorcycle as four persons were
going on it. He admitted that after being stopped, they were told
about instances of theft of motorcycles and he was told to prove that
the bike belonged to him. He admitted that constables told him that if
he is prosecuted, being a student, his one academic year would get
spoiled and he candidly admitted that from that spot itself they were
allowed to go but he volunteered that prior to it, money was
demanded in the incident of talk with Swapnil Jadhav.
In further cross he admitted that after 23.04.2013, except at the
time of trap, he did not receive any phone call from phone bearing
no. 9764669494. He further admitted that his friend Nilesh and
Jadhav did not receive any phone call from said number. He further
admitted that on 24.04.2013 for the first time he came to know the
name of Rahul Sanap. He further admitted that during conversation
between accused and Jadhav, he came to know the name of
appellant. He further admitted that after two days of the incident he
had become sure that police would not demand money and hence he
gave statement to that effect on 26.04.2013. He is unable to state the
date on which he subsequently went to ACB office for seeking further
action. He also answered that accused might not have any concern
with the mobile no. 9764669494.
CriAppeal-465-2015
10. PW2 Dahake, who was working as a Stenographer in Civil
Hospital, seems to be used as shadow pancha and he narrated about
he being called at ACB office, introduced to complainant, complaint
being signed by him and complainant. Regarding occurrence, his
evidence is in para 3. According to him, after reaching Shirpur,
complainant made phone call on cell no. 9764669494 and the person
responding told that he was out of police station and to go to police
station and meet Sapkal (appellant). Therefore, this witness himself,
complainant and friend of complainant, namely, Sandip went to
police station. There complainant was told that appellant was out of
police station. The person who attended the call gave number of
Sapkal. Witness corrected himself and stated that complainant was
accompanied by Swapnil and not Sandip. Swapnil Jadhav telephoned
Sapkal who asked them to come under the tamarind tree and all three
went there. When Mr. Sapkal was coming from front side on
motorcycle, complainant gave him signal. Appellant Sapkal stopped
near them. Complainant introduced Swapnil Jadhav and told
appellant that he had been to Saptashrungi Gad and so he could not
pay amount demanded. There were negotiations between the two and
Sapkal told to give Rs.400/- instead of Rs.500/-, further informing
that Inspector has made the position strict. He deposed that
complainant informed that he would bring money after some time
CriAppeal-465-2015
and they came back to the jeep. Recorded conversation was heard and
transcribed. He also deposed about tainted currency notes given in
possession of complainant, pre trap panchanama Exhibit 11 to be
drawn and this witness signing it. This witness in further chief stated
that when appellant accused was contacted by complainant, at that
time appellant told that he was on patrolling duty and he wold not be
in position to meet complainant and so pre trap panchanama was
drawn. According to him, he heard the conversation between
complainant, Swapnil Jadhav and accused to the effect that "give
Rs.400/-, Inspector has made position strict" and it to be the voice
appellant. He then stated about scene of occurrence panchanama to
be drawn which is at Exhibit 16. He further deposed that on
04.07.2013, voice sample of appellant was taken in his presence.
After conversation recorded was played and heard by the witness, He
identified the voice to be of appellant and panchanama to that extent
to be drawn at Exhibit 17.
11. While under cross, shadow pancha PW2 was unable to give
details as to who gave mobile number 9764669494 to complainant.
He admitted that prior to 22.04.2013 he had not heard voice of
complainant, accused and Swapnil Jadhav. According to him, on
03.07.2013, Swapnil Jadhav was not called in police station. He
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admitted regarding reference in the complaint about Swapnil Jadhav
had been to Saptashrungi Gad on 23.04.2013. He answered that since
24.04.2013 to 04.07.2013 he was called to ACB office five to seven
times. He admitted that when they went to the tamarind tree,
complainant did not have tainted currency notes. He was unable to
give details of the currency notes and its numbers. He also admitted
that his signature was not obtained over the currency note.
12. Above two testimonies are of significance. Remaining two
witnesses are the sanctioning authority and the Investigating Officer.
ANALYSIS
13. On re-appreciation of evidence of PW1 and PW2, here, it is
emerging that complainant was intercepted by two constables on
23.04.2013. Complainant in examination-in-chief stated that three of
them were occupying motorcycle and therefore they were intercepted.
However, in cross he admitted that four of them were traveling on
motorcycle. Therefore, here it is clearly emerging that interception by
police constables was for violation of traffic rules. According to
complainant, one of the two constables suggested to settle the matter
by give and take method to avoid spoiling of career. Which of the two
said this is apparently not stated by the complainant. It is common
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knowledge that there is a name plate worn and affixed on the
uniform shirt of police. It has not come in his evidence that the
constables were on uniform. Complainant in chief itself stated that,
that night he learnt the name of appellant. From which source or
from whom he learnt has not been clarified by him. However, he
stated that one of them was appellant and other was Sanap. It has
come in the evidence that his friend Swapnil Jadhav was appraised
about the proposed action and there was dialogue between Swapnil
Jadhav and said constable.
14. Evidence of complainant also shows that it was agreed to pay
later on and therefore, complainant claims that he approached ACB
office and lodged complaint. He admits that at the time of lodgement
of complaint, he was not knowing name of other constable Sanap.
This further creates doubt about veracity of his evidence. After
complaint with ACB, complainant, shadow pancha PW2 and Swapnil
Jadhav seem to have approached appellant beneath tamarind tree but
testimony of complainant further shows that his friend Swapnil
Jadhav negotiated with appellant for reducing the amount. This
clearly shows that attempt to bribe is not by complainant but by
Swapnil Jadhav and he is not examined by the prosecution for the
best reasons known to it.
CriAppeal-465-2015
15. On careful analysis, it is further emerging that complainant
deposed that as appellant did not make demand for two days, he
himself went to ACB office on 26.04.2013 and gave statement that he
wanted to withdraw the complaint with a further request to suspend
the matter, but his evidence shows that again he approached ACB
office at later point of time to initiate action.
16. Cross of PW2 shadow pancha discussed above also shows that
he does not know who gave mobile number 9764669494 to
complainant, over which there was said to be conversation. Even the
police personnel who gave this number has not stepped in the witness
box. His chief para 3 itself shows that it is complainant who had
allegedly negotiated with appellant for reduction of amount, however
this is contrary to the version of complainant according to whom,
negotiations were done by Swapnil Jadhav. It has come in the
evidence of PW2 shadow pancha that there was conversation with
appellant who informed that he was on patrolling duty and as such
would not be in a position to meet. It further goes to show that there
were no talks about amount or demand. Therefore, for material
contradiction, testimonies of PW1 and PW2, who claim to be
together, renders prosecution version more doubtful.
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17. Learned counsel for appellant also pointed out that transcript of
alleged voice recorder ought not to have been taken on record and
ought not to have been relied by trial Judge as it was not
accompanied by certificate under Section 65B of the Evidence Act.
Such submissions have not been countered by learned APP while
opposing the appeal.
18. Keeping the above discussed evidence in juxtaposition with
necessary ingredients required to attract offence of Section 7 of the
PC Act, in the considered opinion of this court, offence cannot be said
to have been brought home. No doubt Section 20 of the PC Act
permits drawing of presumption and the same to be rebuttable,
however, here, the very foundational facts emerging from the
evidence of PW1 and PW2, are rendering their testimonies doubtful.
So called trap has apparently failed. There is no concrete evidence
suggesting demand being put up by appellant.
Resultantly, on re-appreciation and re-analysis, there is no
convincing, conclusive evidence as is required by law. It is a fit case
for grant of benefit of doubt for the reasons discussed in aforesaid
paras. Hence, appellant succeeds. Accordingly, I proceed to pass the
following order:
CriAppeal-465-2015
ORDER
I. The appeal is allowed.
II. The conviction awarded to the appellant Kuldip Dyaneshwar
Sapkal by learned Special Judge, Dhule in Special Case No. 114 of
2013 on 22.05.2015 under Section 7 of the Prevention of Corruption
Act stands quashed and set aside.
III. Appellant stands acquitted of the offence punishable under
Section 7 of the Prevention of Corruption Act.
IV. The bail bonds of the appellant stand cancelled.
V. Fine amount deposited, if any, be refunded to the appellant
after the statutory period.
VI. It is clarified that there is no change as regards the order
regarding disposal of muddemal.
[ABHAY S. WAGHWASE, J.]
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