Bombay High Court
Kamlesh Govindrao Kamble vs State Of Mah on 24 September, 2024
2024:BHC-AUG:22426
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 845 OF 2004
Kamlesh S/o. Govindrao Kamble,
Age : 45 years, Occu. : Government Service
as Sub-Inspector in State
Excise Department, Bhoom,
Dist. Osmanabad (at present under suspension),
R/o. Plot No.2, Snehanagar, Ambejogai,
Taluka : Ambejogai, District : Beed. ... Appellant
(Orig. Accused No.1)
Versus
The State of Maharashtra,
Through Deputy Superintendent of Police,
Anti - Corruption Bureau, Osmanabad. ... Respondent
(Orig. Complainant)
WITH
CRIMINAL APPEAL NO.846 OF 2004
Dashrath s/o. Sambhaji Shinde,
Age : 27 years, Occu. : Agriculture,
R/o. Kasba Peth, Bhoom,
Taluka : Bhoom, Dist. Osmanabad. ... Appellant
(Orig. Accused No.2)
Versus
The State of Maharashtra,
Through Deputy Superintendent of Police,
Anti Corruption Bureau,
Osmanabad. ... Respondent
(Orig. Complainant)
...
Mr. N. L. Chaudhari, Advocate for Appellants.
Mrs. Ashlesha S. Deshmukh, APP for Respondent - State.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 19th SEPTEMBER, 2024
PRONOUNCED ON : 24th SEPTEMBER, 2024
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JUDGMENT :
1. Both convicts for offence punishable under sections 7 and
13(1)(d) read with section 13(2) and section 12 of the Prevention of
Corruption Act, 1988 (P.C. Act), have preferred instant distinct appeals
bearing Nos.845 and 846 of 2004, thereby challenging judgment and
order passed by learned Special Judge, Osmanabad dated 30.11.2004 in
Special Case (Anti Corruption) No.11 of 2001.
FACTUAL MATRIX
2. Prosecution was launched against appellants, who are
official of State Excise Department and agriculturist, on the premise that,
complainant PW1 Rajendra a liquor licence holder had approached
accused no.1 Sub Inspector, State Excise Department to send favourable
report to the Collector, upon conducting inquiry on alleged Gramsabha
resolution, demanding closure of liquor shop at Bhoom. For dispatching
favourable report, it is a case of prosecution that, appellant accused no.1
Kamlesh Kamble demanded Rs.50,000/-. Finally, he agreed to accept
Rs.25,000/-. Initially, he accepted Rs.15,000/- from complainant and
asked complainant to bring the remaining amount to his office.
3. As complainant was not willing to pay illegal gratification,
he approached ACB authorities and lodged complaint. ACB authorities
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took further steps of arranging panchas, introducing them to
complainant, apprising them about the grievance of complainant. Both,
pancha and complainant were explained the procedure of application of
anthracene powder and planned trap was explained. As instructed
complainant and pancha witness visited office of appellant Kamlesh and
on his demand and directions, amount was accepted on his behalf by
accused no.2. Pre-determined signal was relayed. Raiding party waiting
in lay, conducting raid, apprehended both accused and they were booked
for provisions of P.C. Act.
Both appellants were tried before Special Judge, Osmanabad
vide Special Case (Anti Corruption) No. 11 of 2001 and finally held guilty
for above sections. Hence, the instant appeals.
SUBMISSIONS
On behalf of Appellants : -
4. Criticizing the judgment, learned counsel for appellants
would submit that, there is false implication. That, there was no demand
as alleged. That, amount accepted was towards fine amount due towards
complainant. That, there is evidence to that extent. Learned counsel
pointed out that, there is no corroboration to the testimony of
complainant about demand of Rs.50,000/-, demand brought down to
Rs.25,000/- and part amount of Rs.15,000/- being accepted. He would
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emphasize that, here, very shadow pancha did not support prosecution.
He also emphasized that, here, there is no verification panchanama. He
would strenuously submit that, there was deliberate attempt to implicate
as repeated attempts had failed. He would emphatically submit that,
panchanama was not drawn at the spot, rather it was drawn at police
station. That, there are several lapses and infirmities in the investigation
and evidence, is not convincing. However, according to him, learned trial
court has still accepted the case of prosecution as proved. According to
learned counsel, there is improper appreciation of both, evidence as well
as law and hence, he prays to allow the appeal.
On behalf of Respondent - State :-
5. In answer to above, learned APP while supporting the
judgment pointed out that, both, demand and acceptance is proved. That,
demand of any gratification was raised to send favourable report to the
higher authorities. That, part payment was accepted. It is pointed out
that, after recept of complaint, pre-trap panchanama was drawn.
Shadow pancha, who accompanied complainant, partly supported
prosecution, and therefore, his entire evidence cannot kept out of
purview and consideration. It is pointed out that, amount was accepted at
residence by accused no.2 on behalf of and instructions of accused no.1.
She pointed out that, there is valid sanction on application of mind.
Resultantly, she submitted all requirements for prosecution and guilt
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being available, learned trial Judge rightly held both accused guilty.
EVIDENCE ON RECORD
6. PW1 Rajendra, complainant deposed about owning liquor
shop, about Government notification to close down liquor shop if
Gramsabha passes resolution by majority. If there is requirement of
report of Officer of Excise Department before taking action, so he
approached appellant Kamlesh and he demanded Rs.50,000/-, but agreed
to accept Rs.25,000/- and part payment of Rs.15,000/- being accepted
and before payment of remaining amount of Rs.10,000/- he lodged
complaint with ACB, who planned and arranged trap. That, in presence
of shadow pancha, accused demanded money at his residence. That,
accused no.2 accepted Rs.10,000/- i.e. tainted currency on behalf of and
on directions of accused no.1. He relayed signal and trap was executed.
PW2 shadow pancha Navnath, initially deposed about being
summoned to ACB office along with other pancha. Dy.S.P. introduced
him to complainant and they verified complaint Exh.32. That, Dy.S.P.
issued instructions and explained the procedure of trap, application of
anthracene to the currency and instructions being given to pay on
demand and relayed signal. That, during first visit, office of accused no.1
was closed, and therefore, trap was postponed and executed on next day
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at the residence of accused no.1 on 18.04.2001. That, accused asked
complainant, whether amount has been brought and answering in
affirmative and when cash was about to be handed over to private
servant of accused no.1, who accepted it and counted it and thereafter
complainant gave signal and raiding party carried out raid. That, pancha
no.2 carried search of accused no.2. Some other amount was found with
accused no.2 and he explained it amount to be paid towards challan and
therefore, said amount was returned. As some persons trying to enter,
Dy.S.P. took decision to proceed to Bhoom Police Station and
panchanama was drawn at police station and identified to be at Exh.41.
He deposed that, thereafter both panchas left home. At this point of time,
after seeking permission of the court, learned APP cross examined PW2
shadow pancha, in which there is complete denial.
PW3 Arunachalan, sanctioning authority, deposed that he
was Commissioner, State Excise Department. He received file from ACB
Office, Beed. He studied the entire file and accorded sanction Exh.44.
PW4 P.I. Suryawanshi - ACB Officer and PW5 Mehandra
Bhokare, Dy.S.P., narrated about receipt of complaint, calling panchas,
planning and explaining trap and executing it.
7. The fundamental objections raised in appeal could be
summarized as under :-
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Firstly - No corroboration to the testimony of complainant as
shadow pancha did not support on material count.
Secondly - no direct evidence about acceptance of amount
by appellant no.1;
Thirdly - No verification panchanama drawn before trap.
Fourthly - Amount demanded and accepted was towards fine
and not bribe.
Fifthly - No panchanama drawn at the spot.
In support of above contentions and submissions, he relied
on following rulings :
(i) Khaleel Ahmed v. State of Karnataka, 2015 DGLS (SC) 1403
(ii) B. Jayraj v. State of A.P., 2014 DGLS (SC) 298
(iii) Punjabrao v. State of Maharashtra, 2001 DGLS(SC) 254
(iv) State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede,
2009 DGLS (SC) 1109
8. Visited the entire evidence of PW1 Rajendra and PW2
Navnath and carefully analyzed the same. The substance of complainant's
testimony is that, he runs liquor shop. By virtue of Government
notification liquor shops against whom Gramsabha passes the resolution
for closure, action of closure was contemplated. Excise Officer was
expected to study the resolution and give suitable report. According to
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complainant, in such context, he had approached appellant no.1 Kamlesh
with a request to issue favourable report and for the same, there was
demand of Rs.50,000/-. When complainant informed him about his
inability to pay huge amount, appellant accused agreed to accept
Rs.25,000/- and even accepted Rs.15,000/- and directed complainant to
pay remaining Rs.10,000/- at his office. He deposed that, as he was not
willing, he approached ACB authorities and lodged report to plan the
trap and he testified all steps taken by ACB authorities, like summoning
panchas, introducing the complainant, they all being explaining the
procedure of trap and verification panchanama being drawn. He deposed
in paragraph nos.8, 9 and 10 that, during first visit to accused in the
company of PW2 shadow pancha, accused was not found in the office as
it was closed, and therefore, trap was postponed. During second visit also
accused was not in the office, and therefore, they visited his residence
and there he testified that accused demanded remaining amount. While
paying the amount, accused no.2 accepted it on behalf of accused no.1.
After which signal was given to the raiding party, who executed the trap.
Above witness is subjected to extensive cross commencing
from paragraph no. 11. Initial question is about permit room at Chausala
and Paranda, licence standing in the name of his father and himself.
There are questions about contesting Gram-panchayat election, about
accused visiting their country liquor shops and permit rooms, during
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visits there were preparations of challan in the office of accused and
depositing amount in banks, about resolution passed by Gramsabha
dated 30.11.2000. He denied knowing whether P.I. Koli had submitted
favourable report, but admitted that, Tahsildar had issued adverse report
and on that report Collector has issued show cause notice as to why
liquor shop could not be closed and it being challenged in the court of
learned Civil Judge Senior Division. Questions are put about visit to the
bar on 25.06.1999. He denied knowing whether the Collector had
imposed fine, but he admitted that recovery was ordered against him to
the tune of Rs.7,500/- by the Collector Office.
Cross on the point of trap commences from paragraph Nos.
18, 19, 20 and 21 onwards. Relevant cross of trap commences in
paragraph nos.22 and 23. But, it is noticed on careful analysis that,
testimony of complainant about initial demand of Rs.50,000/-, figure
brought down to Rs.25,000/-, Rs.15,000/- accepted and direction to
bring remaining amount of Rs.10,000/- to the office has remained intact.
9. Likewise, on analyzing evidence of PW2 Navnath, his
evidence in examination-in-chief, paragraph nos.1, 2, 3, 4, 5, 6, 7 and 8
shows that, he was engaged to act as a pancha and was instructed to
accompany complainant. He has deposed about pre-trap panchanama
-10- Cri.Appeal.845.2004
being drawn and accompanying complainant during two visits. In
paragraph no.3 he deposed that, on that day, they reached office of
appellant no.1 around 1:40 p.m., but office was closed and it was learnt
that the appellant was on tour. Dy.S.P. Bhokre instructed to conduct raid
on next day i.e. 18.04.2001 of which panchanama was drawn vide
Exh.38. On 18.04.2001, fresh panchanama Exh.39 was drawn and
thereafter raiding party proceeded towards Bhoom. They reached
residence of accused around 1:00 p.m. 2 to 4 persons were already
around accused. Accused asked complainant to wait for sometime. After
the persons, who came to meet accused left, he and complainant as well
as one person called as 'mama' entered the room, where accused was
sitting. One constable was sitting on the carpet. Complainant told
accused that he had brought the amount in connection with previous
matter, upon which accused no.1 asked complainant to deposit the
amount and thereafter this witness complainant came out of the room.
One Shri Shinde, private servant of accused met them in the passage.
Witness pointed out to accused no.2 before the court and deposed that
complainant removed the amount from right side pocket, who accepted
it. After which complainant gave signal and raiding party reached at the
spot. While accused no.2 was counting cash, he was caught. Accused
no.1 was unable to say anything. In search of room, amount was found in
suitcase. P.C. Nalawade, who took personal search of constable Bhoite
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found some cash. Panch No.2 Arsul took personal search of accused no.2
and he was found with some cash and accused no.2 told that amount was
to be deposited under challan and it was therefore, returned to accused
no.2. As people started gathering, Dy.S.P. proceeded to Police Station
Bhoom and there panchanama Exh.41 was drawn. Thereafter this witness
stated that, after signing panchanama, he and other pancha left.
At this stage, learned APP seems to have sought permission
to cross examined its own witness and on permission being granted in
paragraph no. 10, he admitted that, on 18.04.2001, enveloped sealed on
17.04.2001 was removed and tainted currency was taken out from the
pocket of pant and again anthracene powder was applied. The previous
envelop was burnt. Seals were affixed again and he admitted that, after
reaching Bhoom, they entered residential room of accused no.1, but he
flatly denied that complainant asked accused to submit favourable report,
"that accused agreed and asked complainant whether he brought
remaining Rs.10,000/-; complainant told that he brought the amount,
upon which accused asked him to pay; complainant removed the tainted
currency and tendered it before accused no.1; he denied that accused
no.1 asked complainant to pay that amount to accused no.2 to collect the
amount and retain it with him. He denied that, accused no.2 kept the
currency in his pocket and went out of the room. He denied that, he and
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complainant followed accused no.2. He admitted that, accused no.2 was
counting notes in passage and thereafter complainant gave signal. He
denied that he told Dy.S.P. by pointing finger towards accused no.2 for
accepting the amount on instructions of accused no.1.
In further cross at the hands of accused, witness admitted
that, they had met accused no.2 on 17.04.2001. He denied talks between
accused no.1 and complainant during first visit. He admitted that, search
of accused no.2 was taken in room and not in passage. He admitted that
the amount found tallied with the challan, which was of PC Bhoite.
ANALYSIS
10. Therefore, on re-appreciating the above evidence of PW1
Rajendra and PW2 Navnath, firstly, there is no independent evidence
lending support to the complainant's version that on 12.04.2001 accused
no.1 demanded Rs.25,000/- for issuing favourable report. He claims to
have approached accused no.1 on 12.04.2001 along with worker namely
Ramkisan Pandurang Nawasekar, but he is not examined to confirm visit
and talks between complainant and accused no.1. Though he stated on
that day, out of settled amount of Rs.25,000/-, he paid Rs.15,000/- i.e.
Rs.5,000/- which he was carrying and he raised Rs.10,000/- from his
relatives at Bhoom, such relative is also not examined. According to him,
accused called him with remaining amount to his office on 17.04.2001,
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but admittedly, on that day, accused no.1 was reported to be on tour. He
has not lodged complaint with ACB authorities at Bhoom, but has lodged
complaint at ACB Office, Osmanabad by assigning reason that there was
possibility of accused to be acquainted with ACB authorities at Bhoom.
11. He has admitted in paragraph no.14 that show cause notice
has been served upon him in July 2001 as to why his liquor shop could
not be closed and why he has knocked the doors of court. He admitted
that, on report of accused no.1, liquor shop run by his father, Collector
Osmanabad had already cancelled the licence and in appeal before
Commissioner fine was imposed to the tune of Rs.25,000/-. He is unable
to state whether said order was set aside in appeal. He also unable to
state that, whether Collector Osmanabad had imposed fine of
Rs.10,000/- and in paragraph no.16, he admitted that, recovery order of
Rs.7,500/- was passed against him and he is unable to answer whether
said order was served upon him by accused no.1. He admitted that, many
times, challans were drawn in the office of accused no.1 and amount was
deposited in the bank. In paragraph 22, he admitted that, when he paid
amount to accused no.2, he was in the passage and that from passage, he
gave signal to the raiding party. He stated that his statement was
recorded by Dy.S.P. Suryawanshi on 24.04.2001.
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12. Evidence of PW2 Navnath does not lend support to the
above version of complainant about accused no.1 in his house, during
visit on 18.04.2001, made a demand of Rs.10,000/- and directed accused
no.2 to accept it. Therefore, there is no corroboration to the version of
complainant. Complainant in above discussed cross candidly admit that,
he was on several times fined and he paid it by visiting office of accused
no.1 and even in a room at residence which was operated as a temporary
office. Resultantly, demand and acceptance by accused no.1 which are
sine quo non are not established for prosecution evidence. Therefore,
there is force in the objection that there is no evidence about demand and
acceptance.
13. As regards to objection about no demand verification
panchanama, learned counsel would strenuously submit that,
Investigation Officer was expected to get verification of demand got done
prior to trap as accused no.1 was a Officer. He seeks reliance on
judgment of the Hon'ble Apex court in case of Neeraj Dutta v. State
(Govt. of N.C.T. of Delhi), (2023) 4 SCC 731.
Here, on carefully examining entire evidence of complainant,
two Officers i.e. PW4 P.I. Suryawanshi and PW5 Dy.S.P. Bhokare, it is
noticed that, there is no verification panchanama drawn. Rather, after
entertaining complaint, mere pre-trap panchanama is drawn in the ACB
office and raids are planned and executed.
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The Hon'ble Apex Court in recent ruling of Mir Mustafa Ali
Hasmi v. The State of A.P., 2024 INSC 503, Criminal Appeal arising out
of (SLP(Crl.) No.(s) 9091 of 2022) reproduced the observations of the
Constitutional Bench Judgment in the case of Neeraj Dutta (Supra) and
further in paragraph no.31 observed as under :-
"31. It is the settled convention in such cases that the Trap
Lying Officer, makes efforts to verify the factum of demand
of bribe by public servant before initiating the trap
proceedings. The factum of demand of bribe can also be
verified by recording telephonic conversation between decoy
and suspect public servant................"
Here, in instant case, Investigating Officer does not seem to
have undertaken said exercise at all. Therefore, even for said reason
prosecution version comes under shadow of doubt.
14. Specific defence raised herein is that amount demanded was
towards fine and not bribe amount. Complainant's evidence discussed in
cross, more particularly in paragraph Nos. 14, 15 and 16 goes to suggest
that on several occasion fine was imposed upon complainant and there is
clear admission to that extent. Even pancha PW2 Navnath deposed that
accused no.2 before raiding party stated about amount in his possession
to be fine amount. Therefore, even said defence, which accused is merely
expected to be probabilized and not proved, has some substance.
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15. As regards to objection of no panchanama at the spot i.e.
post trap, also there is force. As admittedly on the reason of gathering of
several people, decision of going to police station and drawing
panchanama was admittedly taken by Investigating Officer. This clearly
suggest that, no panchanama was drawn at the spot itself, rather accused
persons are taken to a distance and then post trap panchanama is
allegedly drawn. Even this contributes to the credibility and veracity of
prosecution version regarding successful trap.
16. Accused no.2 is booked on the charge of commission of
offence under section 12 of P.C. Act. According to prosecution, he acted
and accepted bribe at the instance of accused no.1. He was said to be
private servant of accused no.1. But, there is no distinct evidence in that
regards. Unless it is shown that, he was aware that the amount which he
allegedly accepted was bribe and illegal gratification and still he accepted
it, knowledge about receiving bribe cannot be attributed to him. There is
nothing to show in the evidence of PW1 Rajendra that both accused acted
in concert upon conspiracy to accept bribe.
For above reasons, both appeals deserve to be allowed.
17. Perused the judgment under challenge. Learned trial Judge
has not taken into consideration the settled legal position of seeking
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corroboration to the complainant's version, who is looked upon as a
interested witness. Requirement of prior verification of demand has not
been ascertained by learned trial Judge. Therefore, interference is called
for. Hence, following order is passed :-
ORDER
I) Both criminal appeals are allowed.
II) The conviction awarded to appellants, namely - Kamlesh S/o.
Govindrao Kamble and (ii) Dashrath s/o. Sambhaji Shinde in
Special Case (Anti Corruption) No.11 of 2001 by learned
Special Judge, Osmanabad on 30.11.2004 for the offence
punishable under sections 7 and 13(1)(d) read with section
13(2) and section 12 of the Prevention of Corruption Act,
respectively, stand quashed and set aside.
III) The appellants stand acquitted of the offence punishable
under sections 7 and 13(1)(d) read with section 13(2) and
section 12 of the Prevention of Corruption Act.
IV) The bail bonds of the appellants stand cancelled.
V) The fine amount deposited, if any, be refunded to the
appellants after the statutory period.
(ABHAY S. WAGHWASE, J.)
Tandale
