Mohd Kasam Tadwi vs The State Of Mah
2024 Latest Caselaw 26378 Bom

Bombay High Court

Mohd Kasam Tadwi vs The State Of Mah on 15 October, 2024

2024:BHC-AUG:24915


                                                  {1}            CRI APPEAL 713 OF 2005


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO. 713 OF 2005

                 Mohd. Kasam Tadwi
                 Age: 42 years, Occu.: Service,
                 R/o. At Shirsad, Post.Sakali,
                 Tq.Yawal, Dist.Jalgaon,
                 At Present : Shri Ambhore's House,
                 Samta Nagar, Aurangabad.                         ..Appellant
                                                            (Original Accused)
                              Versus

                 The State of Maharashtra                         ..Respondent

                                                 .....
                 Advocate for Appellant : Mr. Angad L. Kanade
                 APP for Respondent : Mr.S.K.Shirse
                                                 .....

                                       CORAM : ABHAY S. WAGHWASE, J.

                                       RESERVED ON  : 03 OCTOBER, 2024
                                       PRONOUNCED ON : 15 OCTOBER, 2024


                 JUDGMENT :

-

1. Appellant, who stood convicted for offence under Sections 7

and 13(2) of the Prevention of Corruption Act, is taking exception to

the judgment and order dated 30-09-2005, passed by the learned II

Additional Sessions Judge, Aurangabad in Special Case No.16 of

2003.

                                  {2}           CRI APPEAL 713 OF 2005


                  PROSECUTION CASE IN BRIEF

2. Mother of complainant PW2 Prashant was in the business of

selling bed sheet. She had applied for loan through Mahatma Phule

Magasvargiya Vikas Mahamandal (hereinafter referred to as the

"Corporation"), Aurangabad. File of her loan was assigned to

Allahabad Bank. Complainant accompanied by her mother visited

said Bank and they were told that necessary enquiry and inspection

would be done before granting sanction. In August 2002 it was

learnt that loan was sanctioned and letter was issued on 27-08-2002.

However, for further process of loan, pay order of subsidy amount of

Rs.10,000/- was required from the Corporation. Therefore, PW2

complainant visited said Corporation. One Pawar and Kamble

working in the said Corporation directed him to appellant.

Complainant reportedly approached appellant and requested to do

his work. Appellant demanded Rs.100/- to procure signature of the

superior. As complainant was not willing to pay bribe, he lodged

report with Anti Corruption Bureau, who planned, arranged and

executed trap. Complaint was lodged. It was investigated and finally

appellant was tried by the learned II Additional Sessions Judge,

Aurangabad vide Special Case No.16 of 2003.

After appreciating evidence adduced by the prosecution, case {3} CRI APPEAL 713 OF 2005

of prosecution was accepted and guilt was recorded by judgment and

order dated 30-09-2005. Hence, instant appeal.

SUBMISSIONS

On behalf of appellant :

3. Learned Counsel for the appellant submitted that there is false

implication. That there was no demand as alleged. He submitted

that there is no corroboration to the testimony of complainant PW2

Prashant. That PW3 Sakharam, shadow pancha and PW2 Prashant,

complainant are at variance on material counts. That though PW1

Bansod, sanctioning authority has accorded sanction, it is in

mechanical manner. That there is incorrect appreciation of the

evidence by the learned trial Court and conclusion drawn is not

supported by sound reasons and hence, he prays to set aside the

impugned judgment by allowing the appeal.

On behalf of State :

4. In answer to above, learned APP, while supporting the

impugned judgment, submitted that there is demand of bribe. That

in presence of shadow pancha again there was demand as well

acceptance. That immediately after raid, appellant was {4} CRI APPEAL 713 OF 2005

apprehended. Therefore, all necessary ingredients for attracting the

charges are available and therefore, it is submitted that appreciation

is correct and in consonance with the evidence. Consequently,

according to learned APP, there is no merit in the appeal.

EVIDENCE BEFORE TRIAL COURT

In support of its case, prosecution has examined as many as

five witnesses. Sum and substance of their evidence is as under :

5. PW1 Ratnaraj Gangaram Bansod is the Sanctioning Authority.

He testified that, on receipt of file and papers from ACB, the same

were perused and he reached to a conclusion that it was a fit case to

grant sanction and accordingly, vide exh.10 sanction was issued.

In cross-examination, above witness answered that he did not

call any document from Corporation and he does not remember

whether or not any statement of Ramrao Pawar was recorded by

ACB. He is unable to state why portion marked 'A' is appearing in

statement of said Ramrao.

6. PW2 Prashant Rustumrao Mhaske, complainant testified that {5} CRI APPEAL 713 OF 2005

his mother had applied for loan of Rs.40,000/- from aforesaid

Corporation for running bed sheet selling business. That their file

was referred for sanction to Allhabad Bank. That Bank Manager paid

visit to their house for verification. That during subsequent visit,

complainant learnt that Corporation has not despatched pay order of

subsidy of Rs.10,000/-. That on 27-08-2002 and 28-08-2002

complainant approached Corporation. That he received sanction

letter from above Bank. That thereafter, he visited Corporation and

one Pawar and Kamble directed him to present appellant to whom he

approached twice thrice, but there was no response. That in

November again he approached appellant and requested for his work

upon which appellant allegedly told him that he often comes empty

handed and that he is busy and he cannot do the work. Then he

asked complainant to come on 20 th and to bring Rs.100/- for

obtaining signature of the Officer and stated that without Rs.100/-

work would not be done. Therefore, he lodged report with ACB, who

arranged, planned trap, explained and gave necessary instructions to

him and panchas.

7. When he and pancha approached appellant to the Office of

appellant, he was not there. Hence, they all reached near hotel {6} CRI APPEAL 713 OF 2005

Haveli. That he and shadow pancha again went to the Office of

Corporation. However, appellant was not in the Office. They both

waited there. After a while, at around 04:00 p.m. appellant was

spotted coming up from stairs and went to his room and again

started coming down from stairs. Then complainant approached

appellant. Complainant asked about his work, upon which, appellant

asked him to pay the amount, if it was brought as his file was to be

put before the Officer. While climbing stairs, tainted currency was

taken out by complainant from his right pocket of pant and it was

handed over to appellant, who accepted it in his right hand and kept

it in his left chest pocket. Signal was relayed and appellant was

caught.

In cross-examination, which commences from paragraph 12

onward, initially questioning is about educational qualification of

complainant, whether he is aware of procedure of loan, whether at

the time of lodging complaint, bank documents were annexed, how

many times, he met Pawar and Kamble in August, 2002. He is

unable to give month when first he met accused and he volunteered

that he did not remember as to how many days prior to catching hold

of accused, he had made the demand of bribe. But he again

volunteered that it was in the month of November. He is also unable {7} CRI APPEAL 713 OF 2005

to state after how many days after accused made demand, he was

caught.

Omission is brought regarding accused asking Rs.100/- on

account of obtaining signature of his higher Officer.

In paragraph 14 of cross examination, witness is unable to

state whether he had stated before ACB authority that accused had

asked him whether he had brought money i.e. when he had asked

about pay order. He is also unable to remember whether he has

informed Sk. Muzeeb that the accused said to him that he would put

up file before his Officer and such talk took place at the staircase. He

is also unable to state whether he had informed Sk.Muzib that he

took out the notes from his right side pant pocket by right hand. Rest

is all denial.

8. PW3 Sakharam Trimbakrao Kulkarni stated that he works in

Provident Fund Office. That he was called at the ACB Office. That

he met Prashant Mhaske, went through his complaint, ACB

authorities explained both of them procedure of application of

anthracene powder to the currency notes and they both were given

necessary instructions regarding trap and being instructed to pay on

demand and this witness asked to accompany the complainant and {8} CRI APPEAL 713 OF 2005

be watchful. That he signed over pre-trap panchanama exh.27. He

deposed that at around 01:30 p.m., he accompanied complainant to

the Office of Corporation. There, information was received that

appellant had gone out. That again during second visit at around

04:00 p.m., they went to the Office of Corporation and there

appellant was seen coming towards Office. That complainant

approached appellant and this witness also followed. According to

this witness, complainant and appellant were getting down through

staircase. But he could not hear as to what they were talking,

however, according to him, complainant gave information by gestures

that he had given the amount to appellant and that thereafter,

appellant was caught.

9. PW4 Baswantappa Virbhadrao Pirole is the Assistant Manager

of Allahabad Bank, Branch Aurangabad. His evidence is at exh.35.

10. PW5 Sk. Mujib Hamid is the Investigating Officer. His evidence

is at exh.39.

ANALYSIS

11. Here sum and substance of prosecution case is that mother of {9} CRI APPEAL 713 OF 2005

complainant PW2 Prashant had applied for loan of Rs.40,000/- from

the Corporation to conduct business of bed sheets. Her file was

referred to Allahabad Bank and for sanctioning of loan, pay order or

subsidy amount of Rs.10,000/- was required from Corporation and

therefore, he had approached appellant, who was working as Peon in

the said Corporation. Case of prosecution is that for obtaining

signature of superior Officer on the pay order, complainant was asked

to pay Rs.100/- and as he was not willing to pay bribe, he lodged

report with ACB. Here evidence of complainant PW2 Prashant and

shadow pancha PW3 Sakharam is crucial.

12. Fundamental grounds of challenge are that there is no

corroboration to the testimony of complainant on the point of

demand and there was thrusting of money for false implication. Said

episode of thrusting was while coming down by stairs.

On such lines, if evidence of prosecution, more particularly,

complainant PW2 Prashant and shadow pancha PW3 Sakharam is

minutely scrutinized, here it is noticed that complainant is unable to

give dates of events and surprisingly, he is also unaware on which

date demand was made. Law is fairly settled that there is heavy

burden on prosecution to prove demand, which is sine qua non.

{10} CRI APPEAL 713 OF 2005

Mere possession of tainted currency is not sufficient and prosecution

is expected to prove that there was demand of illegal gratification for

doing or abstaining from doing any work. Here on minute scrutiny

of evidence of PW3 Sakharam, shadow pancha, as pointed out by

learned counsel for appellant, this witness has not heard the

conversation regarding demand and he deposed to that extent.

Therefore, as pointed out, there is no corroboration to the actual

demand.

13. Specific defence is of thrusting. It seems that while accused

was using stairs to go down, amount was deliberately thrusted.

Therefore, obviously when PW3 Sakharam, shadow pancha does not

speak about demand and does not corroborate acceptance, and

merely deposes about gestures, he was not party to the acceptance

also. Consequently, even though learned APP submitted that there

are traces of anthracene powder, as stated above, case is of thrusting.

Defence of accused has not been disturbed on this aspect.

For all above reasons, case not being proved beyond reasonable

doubt on the points of both demand and acceptance, benefit of doubt

deserves to be extended. Accordingly, I proceed to pass following

order :

                                         {11}             CRI APPEAL 713 OF 2005


                                     ORDER

      I)     Criminal Appeal No.713 of 2005 is allowed.


      II)    The conviction awarded to appellant         - Mohd. Kasam

Tadwi for the offence punishable under Sections 7, 13(2) of the Prevention of Corruption Act, by the learned II Additional Sessions Judge, Aurangabad on 30-09-2005 in Special Case No.16 of 2003, stands quashed and set aside.

III) The appellant stands acquitted of the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act.

IV) The bail bonds of appellant stand cancelled.

V) The 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 in respect of disposal of muddemal.

( ABHAY S. WAGHWASE ) JUDGE

SPT