Bombay High Court
The State Of Maharashtra vs Shaikh Anwar Abdul Kadar on 6 May, 2024
2024:BHC-AUG:9761
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 839 OF 2014
The State of Maharashtra,
Through
Shri Balasaheb Dinkarrao Kopner,
Police Inspector,
Anti Corruption Bureau, Ahmednagar ... Applicant
(Orig. Complainant)
Versus
Shaikh Anwar Abdul Kadar,
Age : 54 years, Occu. : Service,
Police Sub Inspector,
Nagar Taluka Police Station,
Ahmednagar. ... Respondent
(Orig. Accused)
...
Mr. D. J. Patil, APP for Appellant - State
Mr. Abhinay Khot h/f. Mr. Vinay A. Sarwade, Advocate for Respondent
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 26th APRIL, 2024
PRONOUNCED ON : 06th MAY, 2024
JUDGMENT :
1. By instant appeal State is questioning the judgment
and order dated 30.11.2013 passed by Special Judge, Ahmednagar
in Special Case (ACB) No.04 of 2009, thereby acquitting present
respondent from offence punishable under sections 7, 13(1)(d)
read with section 13(2) of Prevention of Corruption Act, 1988
(P.C. Act).
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PROSECUTION STORY IN TRIAL COURT IN NUTSHELL IS AS UNDER
2. PW2 Nanda, complainant was running a canteen.
Truck drivers on the highway, who took stop at her canteen,
whenever were short of cash, paid her in the form of petrol.
Accused, a police officer used to demand regular hafta for
possessing and selling petrol without permit. Prior to the
complaint, he demanded Rs.5,000/- hafta in advance for the entire
year. Complainant not being willing to comply, approached Anti
Corruption Bureau, lodged complaint. ACB Authorities planned and
arranged trap. Independent pancha PW3 Kantabai as well as
complainant were introduced, made aware of procedure of trap and
were instructed to go together to pay bribe on demand and relay
predetermined signal, after which it was decided to apprehend
accused.
3. Trap was laid on 26.09.2006. Accused, after being
approached by PW2 Nanda and PW3 Kantabai, put up a demand
and accepted the amount and kept it in the drawer. Signal was
given by complainant, raid was conducted and accused was
apprehend. PW4 P.I. Balasaheb Kopner filed complaint, carried out
investigation and on its completion, charge-sheeted accused and on
trial being conducted, learned Special Judge acquitted accused,
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holding that, prosecution failed to prove demand and acceptance.
Above judgment and order is questioned by State on
various grounds spelt out in the appeal memo.
SUBMISSIONS
On behalf of Appellant - State :-
4. According to learned APP, accused a police officer was
regularly demanding hafta from complainant. When he demanded
Rs.5,000/- for entire year, complainant approached ACB
Authorities and lodged complaint, resulting into arranging and
laying trap. That, shadow pancha was arranged and both,
complainant and shadow pancha were given proper instructions.
They both approached accused to pay demanded bribe. They
deposed to that extent. That, they both consistently deposed about
amount handed over by complainant and accused keeping it in the
drawer. Therefore, according to learned APP, raid and trap was
successful. Both these witnesses corroborated and lend support to
each other. That, their evidence has remained intact in
examination in cross. That, sanctioning authority after getting
satisfied, accorded sanction and thus according to learned APP, all
required ingredients for recording guilt were available in the
evidence, but learned trial Court failed to consider and appreciate
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the prosecution case. That, erroneous approach has been adopted
in appreciating the evidence. Law has not been correctly
appreciated and for all above reasons, learned APP submits that
impugned judgment is required to be set aside by allowing the
appeal.
On behalf of Respondent :
5. Per contra, learned counsel for accused respondent
pointed out that, prosecution miserably failed to establish the
charges beyond reasonable doubt. Sine qua non for attracting
charges i.e. demand as well as acceptance has not been cogently
proved. It is pointed out that, moreover, complainant had bad
antecedent and track record of indulging in illegal activities.
Complainant in examination-in-cross has admitted that, she was
booked, tried and arrested by present respondent for violating law.
Therefore, there is false and deliberate implication. That,
complainant had deliberately set up a case to implicate and take
revenge. He pointed out that, there is no demand or any evidence
about that. Shadow pancha admitted that, in her presence, there
was no demand. It is further pointed out that, amount was also not
accepted or recovered from accused. Resultantly, it is submitted
that there was neither demand or acceptance. Consequently,
learned trial court committed no error whatsoever in acquitting
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the accused and for want of merits, he prays to dismiss the appeal.
EVIDENCE ON RECORD
6. PW1 D.G.P. Anami Roy, sanctioning authority deposed
about receiving papers from ACB, then perusing the same, getting
satisfied about case being made out for sanction and accordingly
granted the same vide Exh.27.
PW2 Nanda, complainant deposed that, she ran a
canteen. Customers, who were drivers of vehicle and tanker
drivers, sometimes halt at her canteen and instead of cash, gave
her petrol or diesel. Accused police officer has lodged false
complaint for unauthorized possession or sale of petrol and
demanded Rs.500/- hafta per month. Prior to the complaint, he
demanded Rs.5,000/- for entire year and she lodged complaint in
the office of ACB at Exh.31. Presence of PW3 pancha, ACB
authorities explained procedure and gave instruction of trap. She
and pancha visited Police Station. Accused demanded the amount.
She handed over the same, but accused called one Dahatonde,
another police to receive the amount. Amount was kept on the
table and accused put it in the driver. Seeing raiding party arrive,
he threw the currency in the water tank, but was apprehended.
PW3 Kantabai, shadow panch also reiterated that she
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was called to act as a pancha, introduced to complainant, she
verified the contents of complaint and that she and complainant
being explained the procedure by ACB and sent with tainted
currency to police station to pay on demand and to relay
predetermined signal. At Police Station, accused asked
complainant whether she brought money and when it was
answered in affirmative, accused asked her to pay amount to
Dahatonde. Complainant removed cash from purse and kept it on
the table, upon which accused kept it in drawer and complainant
gave signal, followed by arrival of raiding party. Meanwhile,
accused went and threw currency in the water tank and was
thereafter arrested.
PW4 PI Balasaheb Kopner is the Investigating Officer
and he narrated all events from receipt of complaint, till charge-
sheeting accused.
ANALYSIS
7. On carefully re-examining and re-appreciating the
complainant's evidence, it is pertinent to note that, testimony of
complainant does not specify exactly when and where accused
approached her and demanded Rs.5,000/- for one year. She merely
speaks of his visit 8 days prior to complaint. In cross she admitted
that, there are several cases of illegal sale of kerosene and diesel
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against her. She admitted that, one month prior to incident, a case
was lodged against her. She admitted that, raid being conducted,
but she is unable to remember breaking open lock of her house. She
admits to be found in possession of 220 liters kerosene. She also
admitted that, she was kept in custody at Police Station by
accused.
8. She is unable to state when she decided to lodge
complaint. In cross, she candidly admitted that, she does know the
procedure to file complaint. She is unable to assign any reason as
to why portioned marked 'A' is appearing in his statement, i.e.
regarding "I told PSI Shaikh that Panch Smt. Jadhav had come
from Pune saying that she was my maternal sister."
She is unable to state in which hand of accused she
handed over tainted currency. She is also unable to remember
informing police about placing currency on the table and she
admits that she was confused. She again stated that she does not
remember about informing police regarding keeping the currency
on table. She is unable to state how many drawer to the table of
accused. She is also unable to state how portion marked "B" is
appearing in his statement i.e. regarding "I came to the open space
inside the main gate of the police station and I gave the signal
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about accepting the prescribed bribe, by removing the scarf tied on
my head with my left hand and holding it in my hand."
9. On analyzing cross of PW3 Kantabai, shadow panch,
she is found to be admitting in paragraph no. 5 that there were no
talks between accused and complainant relating to work in her
presence. In paragraph no. 6, she is unable to state how portion
marked 'A' is appearing in her statement, i.e. regarding "then in
that room, on the right side of the entrance, a uniformed officer
was sitting on a chair next to a table, and two officers with
informal/ordinary clothes were sitting on a chair next to him."
In paragraph no.7, she admitted that, after complainant
took out currency to handover the same to the accused, he did not
accept and further admitted that, complainant herself placed the
currency on the table and thereafter she and complainant left the
room. She admitted that, during inquiry, she had informed that she
is unable to remember conversation between complainant and
accused and that she merely saw complainant keeping the cash on
the table. She also admitted that, she gave statement that she had
not seen accused throwing the currency notes in the water tank
and that she is unable to state how currency notes fell in the water
tank.
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10. Therefore, the above answers given by complainant
and shadow panch, who are crucial witnesses, while facing cross,
renders case of prosecution weak about demand as well as
acceptance. As stated above, when exactly demand was made is
not proved. Panch witness is not supporting complainant on
account of demand at police station. Her evidence also shows that,
she did not hear conversation of demand between accused and
complainant. She merely speaks of complainant giving currency
and accused not accepting and complainant herself keeping
currency on the table. Complainant claims that, accused collected
the currency and put it in the drawer, and thereafter, he went and
threw in water tank, but her companion, whose answers in cross
are reproduced above goes to show that, PW3 Kantabai is not
supporting complainant on events that took place at police station.
Admittedly, there is no evidence about accused accepting the
currency. Therefore, there is weak or no evidence about demand
and no convincing evidence is available about acceptance also.
11. Resultantly, very essentials of offence being not
cogently proved, no fault can be found in the appreciation or
conclusion drawn by learned trial Judge. On re-appreciation of
evidence at the hands of this court, the view taken by learned trial
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Judge seems to be the possible view that could emerge on
analyzing the evidence of prosecution. No case being made out on
merits, hence the following order :-
ORDER
The Criminal Appeal stands dismissed.
(ABHAY S. WAGHWASE, J.)
Tandale
