[Cites 8, Cited by 0]
Bombay High Court
Shamkant Vasudeo Kulkarni vs State Of Mah on 17 December, 2025
2025:BHC-AUG:35630
262.05apeal
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.262 OF 2005
Shamkant Vasudeo Kulkarni,
Age: 49 years, Occu: Clerk
in MSRTC, Jalgaon, R/o 14,
Baliram Peth, Jalgaon
since died, through L.Rs.
1-A. Bhagyashri Shamkant Kulkarni,
Age: 69 years, Occu: Homemaker,
R/o: Plot No.3/B, Khat Karkhana Road,
Shivaji Nagar, R. Y. Park Makara,
Jalgaon
1-B. Yamini Shamkant Kulkarni,
Age: 33 years, Occu: Business,
R/o: Plot No.3/B, Khat Karkhana Road,
Shivaji Nagar, R. Y. Park Makara, ....APPELLANTS
Jalgaon
VERSUS
The State of Maharashtra
(Through Surendra Anantrao Kulkarni,
Pachora, in Cr.No.3014/2003
of Jilha Peth P.S., Jalgaon ....RESPONDENTS
.....
Mr Joydeep Chatterji, Advocate for Appellants
Ms Uma S. Bhosale, APP for Respondent/State
.....
CORAM : SUSHIL M. GHODESWAR, J.
RESERVED ON : 27 NOVEMBER 2025
PRONOUNCED ON : 17 DECEMBER 2025
262.05apeal
(2)
JUDGMENT :
-
1. By this appeal, the appellant/accused (deceased) prays for
quashing and setting aside the judgment and order of conviction and
sentence dated 28/03/2005, passed by the learned Special Judge,
Jalgaon, Dist. Jalgaon in Special Case No.06/2003, convicting him for
the offence punishable under Sections 7 and 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 (for shot 'the said
Act').
2. The prosecution case in brief is as under :-
Complainant Surendra Kulkarni was running a luxury bus
No. MH-20-F-9054 from Pachora-Jalgaon-Pachora and the
appellant/accused was one of the members of the squad of special
check of the S.T. Department. The complainant had employed two
drivers, namely, Pratap Patil and Subhash Patil and two cleaners,
namely, Vivek Kulkarni and Jagdish Patil on his luxury bus. The
R.T.O. authorities and the squad of S. T. Department sometimes used
to inspect the luxury buses and cases were filed against erring buses.
Complainant was suffering much due to such actions of the authorities.
Therefore, he approached appellant/accused and requested him to
overlook his luxury bus from such actions. Appellant/accused assured
262.05apeal
complainant that no case will be filed against his luxury bus, however
for that purpose he demanded Rs.1,000/- per month, which was to be
paid before 15th day of each month. Complainant agreed to pay the
amount to the accused, however, he could not pay the same within that
period. Therefore, on 17-6-2003, appellant/accused, along with Motor
Vehicle Inspector intercepted his luxury bus near Akashwani Centre,
Shirsoli and inquired with the driver of the said bus, namely, Pratap
Patil and demanded relevant documents in relation to bus from him,
who accordingly produced the same. Out of them, they picked up the
driver's licence and fitness certificate of the vehicle and returned rest
of the documents to the driver. Thereafter, they issued a false memo to
the driver Pratap Patil, alleging some deficiencies in the documents.
When the complainant received those information from his driver, he
approached appellant/accused on the same day evening at his residence
and expressed his grievances. The accused told complainant that if he
does not pay the amount in each month, such cases would be filed
against his luxury bus. He further told that, if the complainant paid the
amount on the next day, the documents which were seized would be
returned and no such case would be filed in future. Accordingly,
complainant promised appellant to pay the amount on the next day.
However, as the complainant was not willing to pay any bribe to the
262.05apeal
accused, he approached to the Anti Corruption Bureau (ACB) office,
Jalgaon and lodged the complaint against appellant/accused.
3. Police Inspector Mukunda Mahajan recorded complaint of
complainant and decided to arrange a trap against the
appellant/accused. He called two panchas from the office of Civil
Hospital, Jalgaon and asked them to remain present on the next day at
7 a.m. On the next day, complainant and panchas visited the office of
ACB, Jalgaon at 7 a.m. Complainant narrated his complaint before the
panchas and they also went through it. Complainant produced bribe
amount of Rs.1000/-. Police Head Constable Chavan applied
anthracene powder thereon and showed a demonstration under the
ultraviolet light. The serial numbers of the currency notes were
recorded and complainant and panchas were given necessary
instructions. A pre-trap panchnama was prepared in the office of ACB.
Thereafter, all the members of the raiding party proceeded in a jeep
towards to R.T.O. Office, Jalgaon. The complainant and panch no.1
went inside the office and inquired about the accused, but he was not
present there. Complainant contacted appellant/accused on phone and
he called him at his office. Thereafter, they all went to the S.T. office
and complainant again contacted accused on phone. After some time,
accused came and met complainant. Then they went to a nearby tea-
262.05apeal
stall for a cup of tea, where accused demanded bribe amount and
complainant gave that amount to the accused, which was accepted by
him. Complainant given signal to the members of the raiding party and
they raided the accused and caught hold his hands. Appellant/accused
was taken to a nearby Traffic Police office where necessary procedure
was followed and after-trap panchnama was prepared there.
4. Accordingly, P.I. Mukund Mahajan, lodged complaint in
the Zilla Peth, Police Station against accused which was registered
under crime bearing C.R. No.3014/2003. He arrested accused under a
panchanama. After obtaining sanction for prosecuting the accused
from the competent authority, P.I. Mahajan carried out investigation
and obtained sanction order and on completion of investigation, filed
charge-sheet against appellant/accused in the Court.
5. Charges came to be framed against appellant/accused at
Exh.8 for the offence punishable under sections 7, 13(1) (d) read with
section 13(2) of the said Act. Appellant pleaded not guilty and claimed
to be tried. Accordingly, his plea was recorded at Exh.9. The defence
of the accused is that of total denial to the case of prosecution. The
specific defence of the accused from his statement under section 313
of the Code of Criminal Procedure is that the complainant gave him
262.05apeal
Rs. 1,000/- for depositing fine amount in the Office of the R.T.O.
office on his behalf, as he was out of station for about 15 days and,
therefore, he accepted that amount.
6. In order to bring home guilt against accused, the
prosecution had examined in all four witnesses viz. complainant
Surendra Kulkarni (PW-1) was examined at Exh. 13; Panch
Bhangsing Ojna Padvi (PW-2) was examined at Exh.18; Sanctioning
Authority/Pramod Namdev Patil (PW-3) was examined at Exh.29 and
Investigating Officer, P.I. Mukund Mahajan (PW 4) was examined at
Exh.35. Besides this oral evidence, the prosecution had relied on the
documentary evidence viz. Complaint (Exh.14), Pre-trap panchanama
(Exh.19), after-trap panchanama (Exh.21), explanation of accused
(Exh.22), arrest panchanama of the accused (Exh.23) panchanama of
unsealing of anthracene bottle (Exh.24), letter of Divisional Controller
of M.S.R.T.C., Jalgaon, dated 21-6-2003 (Exh.30) and complaint of
P.I. Mahajan, (Exh. 38).
7. After recording the evidence and hearing the Advocates
for the parties at length, learned Special Judge, Jalgaon vide the
judgment and order dated 28/03/2005 in Special Case No.06/2003
convicted appellant/accused for the offence punishable under Section 7
of the said Act and sentenced to suffer rigorous imprisonment for two
262.05apeal
years and to pay fine of Rs.2,000/-, in default to pay fine, to suffer
rigorous imprisonment for six months. He was further convicted for
the offence punishable under Section 13(1)(d) read with Section 13(1)
(2) the said Act and sentenced to suffer rigorous imprisonment for two
years and to pay fine of Rs.2,000/-, in default to pay fine, to suffer
rigorous imprisonment for six months. Both the sentences of
imprisonment were directed to be run concurrently. Being aggrieved
by the said impugned judgment and order of conviction, the appellant
has approached this Court in the present appeal praying for quashing
and setting aside the same.
8. Heard learned Advocate Mr Chatterji for appellant and
learned APP Ms Bhosale for respondent/State.
9. Learned Advocate for appellant/accused submits that the
impugned judgment and order is contrary to law and based on non-
application of mind, which is liable to be quashed and the prosecution
has failed to prove its case beyond reasonable doubt. He then submits
that the learned Sessions Court has committed a grave mistake in
convicting the appellant without considering the material evidence
available on record. He then submits that the prosecution has failed to
prove the necessary ingredients of Sections 7 and 13(1)(d), 13(2) of
262.05apeal
the Prevention of Corruption Act. According to him, there is no
sufficient and corroborating evidence on record as regards demand,
motive and acceptance of bribe. He then submits that evidence of PW-
1/complainant is not consistent with complaint and as such, it cannot
be relied upon. According to him, complainant did not stated before
the Trial Court as regards demand of Rs.1,000/- p.m. for not taking
action against his luxury bus. He also submits that, 15 days prior to
incident, appellant had refused to take bribe from complainant. He
further submits that the prosecution case is itself not clear on account
of previous demand. He then submits that, according to the
complainant, the appellant had taken some documents pertaining to the
complainant's bus and asked the R.T.O. to take action against the
complainant. However, this fact was not proven as there was no
evidence to that effect, despite a memo being issued by the appellant
regarding the complainant's luxury bus on 17/06/2003, and the
appellant having retained some documents, because the bus driver was
not examined. Thus, according to him, demand of a bribe cannot be
established. He then submits that, according to complainant, he had
given documents to appellant and appellant assured him that he would
convince the R.T.O. authorities to reduce the penalty and asked
complainant to bring Rs.1000/- to R.T.O. office next day. However,
262.05apeal
complainant had stated in his cross-examination that he had paid
Rs.1000/- to appellant for penalty as per memo and appellant had not
demanded Rs.1,000/- as bribe, which ultimately vitiates the case of
prosecution. According to learned Advocate for appellant, no
prosecution witnesses stated that after paying Rs.1000/- as a bribe by
complainant to appellant, complainant demanded documents of his
luxury bus from appellant, which according to complainant were
retained by appellant. He then submits that, even if it is assumed that
the appellant accepted bribe, however, he could have received the
bribe amount at his home or his office, but not at the R.T.O. office.
10. Learned Advocate for the appellant then submits that the
sanctioning order for prosecution of appellant/accused is issued in a
mechanical manner and perusal of the same discloses that the same is
issued without application of mind. The sanctioning authority ignored
as to whether appellant had in his custody the documents of luxury bus
of complainant, or not? The said authority, after going through the
documents, only reiterated that the appellant, by misusing his position,
has received illegal gratification. As such, according to learned
Advocate for appellant, on the aspect of sanction order also, the
impugned order is incorrect and therefore, appellant deserves to be
acquitted. With all these submissions, learned Advocate for the
262.05apeal
appellant submits that the prosecution has failed to prove the guilt
against the appellant beyond reasonable doubt, and thus, prays for
allowing of the present appeal.
11. Per contra, learned APP Ms Bhosale appearing for the
respondent/State has strenuously supported the impugned judgment
and order passed by learned Special Judge. She submits that there was
motive for appellant to accept bribe from complainant and thus the
prosecution has established its case beyond all reasonable doubts and
appellant has failed to prove his defence. She also submits that the
testimonies of complainant and panch witnesses corroborate with each
other and the same cannot be disbelieved. According to her, learned
Special Judge, after analyzing evidence brought on record in proper
perspective, has rightly delivered the impugned judgment and order
and has rightly convicted the appellant. There is no scope of
interference in the impugned judgment. She, therefore, prays for
dismissal of the present appeal.
12. After hearing learned advocates for the parties and after
going through the details of the prosecution case as well as record and
proceedings minutely, most vital aspect which is required to be
considered is that, whether appellant/accused was really authorized
262.05apeal
with pubic duty as defined under the said Act. The case of the
prosecution based upon a theory that appellant was employee of
Maharashtra State Road Transport Corporation. He was in the flying
squad meant for taking action against the private luxury buses
alongwith R.T.O. The existence of such flying squad has never been
brought on record by the prosecution. Even otherwise, it is very
strange that department like MSRTC in order to secure or promote its
business will join hands with the R.T.O. office thereby forming a
flying squad to stop said private luxury buses, which are saddled with
more passengers and after taking action against them, extra passengers
driven to the buses of MSRTC. The composition of such flying squad
is unknown since MSRTC department itself is involved in public
transport activities being run through Corporation, in which State is
having share. The appellant was member of said flying squad, and
therefore, complainant who was running private luxury bus had
approached to the appellant for reducing challan amount which was
imposed upon him by such flying squad. It is also not clear as to
whether the appellant was in a position through the department
circulars to reduce such amount, which is being levied or imposed by
the R.T.O. The prosecution having failed to produce before the Trial
Court such necessary circulars as regards constituting flying squad,
262.05apeal
just to secure or promote its own business, and that too, infringing of
constitutional rights of luxury buses to run their business.
13. The sanction order for prosecution of appellant is in
typical form. There is no specific words as to which documents the
sanctioning authority had perused for sanction it. It states only that
after going through the documents, the sanctioning authority is
satisfied that the appellant, by misusing his position, has received
illegal gratification and sanction was accorded. In whole sanction
order, it is nowhere mentioned that the sanctioning authority had
received which documents for sanction and on the basis of which
documents it had accorded sanction. It is also clearly indicates that,
while according sanction, no mind came to be applied and the same is
issued in a very casual and mechanical manner. On this ground also,
the prosecution case gets vitiated.
14. Even otherwise the prosecution has failed to prove its case
beyond reasonable doubt as the witnesses have not corroborated with
each other and moreover, their testimonies suffer from material
omissions. When the evidence of the complainant is perused,
particularly his complaint at Exh. 14, it reveals inconsistencies with his
testimony and consequently, the complainant himself is an
262.05apeal
untrustworthy witness. Complainant in his evidence had stated that the
R.T.O. officers alongwith the S.T. officers used to inspect their
vehicles. The S.T. is to remove the excess passengers from luxury
buses and used to make their arrangement in the S.T. buses.
Complainant believed that the appellant being R.T.O. officer, would
help him for not taking action against his luxury bus. On 17/06/2003,
when his driver was driving luxury bus on a specific root, one R.T.O.
officer had stopped his bus and had issued a memo to the driver of
complainant. According to complainant, the said memo is given by
R.T.O. department and he contacted with appellant who was employed
in MSRTC and who assured him to have talk with the R.T.O.
personnel for convincing them about not to take action against his
luxury bus. At the same time, the appellant also asked to bring
Rs.1000/-. Since complainant was not willing to pay him bribe of
Rs.1000/-, he approached the ACB officer and accordingly trap was
laid. During trap, he gave the bribe amount to the appellant and
requested him to set right the problem. He himself had admitted in his
evidence that he had been to accused with a view that he would advise
the R.T.O authorities for not taking action against his private luxury
bus. However in this case, the prosecution has not brought the memo,
which was issued by the R.T.O. department to the driver of the
262.05apeal
complainant/PW-1. The prosecution has also not examined the said
driver to whom the said memo was issued. Moreover, there is
omission as regards complainant had stated to the police that the
accused had told him that he would talk with the R.T.O. authorities and
asked him to bring Rs.1000/-. Even more significantly, in his cross-
examination, complainant had also admitted that he had given amount
of Rs.1000/- to the appellant for depositing penalty as shown in the
memo. He further stated that "It is true that we the luxury bus owners
were having grievances against the S.T. Department. It is true that the
accused has not demanded Rs.1000 to me as a bribe." In that view of
the matter, the basic claim as regards demand and acceptance by the
appellant completely fails.
15. The basic requirement of demand is required to be proved
beyond all reasonable doubt. In order to prove the charges for the
offence punishable under Section 13(1)(d) r/w Section 13(2) of the PC
Act, the proof of demand of illegal gratification is absolutely necessary
as it is sine qua non of the offence. If the prosecution fails to prove
this demand of illegal gratification, the charge against the appellant
therefore, for the aforesaid offences would fail. It is clearly
established in several judgments delivered by the Hon'ble Supreme
Court including the judgment in Neeraj Dutta vs. State (Govt. of NCT
262.05apeal
of Delhi) reported in (2023) 18 SCC 251, that mere possession and
recovery of currency notes from the possession of the accused without
proof of demand would not establish the offence under under Section
13(1)(d) r/w Section 13(2) of the P.C. Act. In absence of proof of
demand and illegal gratification and use of corrupt or illegal means to
obtain any valuable or pecuniary advantage, it cannot be said that the
offence of taking bribe is proved. Thus, the proof of demand has been
held to be indispensable ingredient. Therefore, failure on the part of
prosecution to prove demand and illegal gratification, would be fatal
and mere recovery of the amount from the appellant/accused would
not entail his conviction for the said offences.
16. It is settled law that the statutory presumption under
Section 20 of the said Act can arise only after the prosecution proves
the foundational fact of 'demand'. In the present case, as the
testimonies of prosecution witnesses do not establish any demand of
illegal gratification by the accused, the presumption under Section 20
cannot be invoked. This legal position is laid down in B. Jayaraj v.
State of A.P. (2014) 13 SCC 55, P. Satyanarayana Murthy v. D.I.G.
of Police (2015) 10 SCC 152, N. Vijayakumar v. State of T.N. (2021)
3 SCC 687 and recently in Neeraj Dutta v. State (2023) 18 SCC 251.
262.05apeal
Therefore, mere recovery of tainted currency notes is insufficient to
sustain conviction.
17. In view of the foregoing discussion, I am of the view that
the prosecution has failed to establish the ingredients of offences
charged against appellant beyond reasonable doubt. Consequently,
this Criminal Appeal is allowed and the judgment and order of
conviction and sentence dated 28/03/2005, passed by the learned
Special Judge, Jalgaon, Dist. Jalgaon in Special Case No.06/2003, is
quashed and set aside. The appellant/accused is acquitted of the said
offence. The bail bond stands cancelled. Surety, if any, stands
discharged. Fine amount, if deposited, be refunded to appellants (legal
heirs of deceased appellant). The record and proceedings be sent back
to the concerned Court.
[SUSHIL M. GHODESWAR, J.]
sjk
