Bombay High Court
Nazim Mohammed Yusuf Shaikh And Anr vs State Of Maharashtra And Ors on 25 February, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S.M.Modak
2025:BHC-AS:9629-DB 23-WP-4853-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4853 OF 2024
1. Nazim Mohammed Yusuf Shaikh
Age : 46 Years, Occupation : Dargah Caretaker,
Residing at : 3, Ibrahim Building, Loonat
Manzil, 4th Floor, Room No.34, 3rd Bora Street,
Bhendi Bazaar, Mandvi, Mumbai : 400003.
2. Mohammed Farookh Abdul Shakoor Motorwala
Age : 56 Years, Occupation : Dargah Caretaker,
10, Patka Manzil, 3rd Floor, Room No.50,
S.V.P. Road, Near Shama Perfumes, Bhendi
Bazaar, Mumbai : 400003. ...Petitioners
Versus
1. The State of Maharashtra
Through the Office of the Public Prosecutor,
PWD Building, Bombay High Court,
Fort, Mumbai : 400 001.
2. Senior Police Inspector / Investigation Officer
Anti-Corruption Bureau, Mumbai
6th Floor, Sir Pockhanwala Road, Worli Police
Camp, Worli, Mumbai, Maharashtra : 400030.
3. Anil Vasant Sardal
32/New Naigaon Police Officers Quarters,
2/14, Opposite Police Hospital, G.D.Ambedkar
Road, Naigaon, Mumbai : 400 012. ...Respondents
*****
Mr.Mahesh Vaswani a/w Ms.Shreya Tiwari i/b. Ms.Dharini
Nagda - Advocates for Petitioners.
Smt.M.H.Mhatre - APP for Respondents - State.
Mr.Patankar (ACP) - ACB Mumbai.
Mr.Nivate (HC) - ACB Mumbai.
Digitally
SEEMA
signed by
SEEMA
KSHITIJ
*****
KSHITIJ YELKAR
Date:
YELKAR 2025.02.28 Satish Sangar 1 of 12
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23-WP-4853-2024.odt
CORAM : SARANG V. KOTWAL &
S.M.MODAK, JJ.
DATE : 25th FEBRUARY 2025
JUDGMENT (PER SARANG V. KOTWAL, J.)
1. This is a Petition for quashing of the F.I.R. dated 4 th
May 2012 registered vide C.R. No.11 of 2012 under Section 12
of the Prevention of Corruption Act, 1988 ("PC Act") at Anti-
Corruption Bureau, Mumbai by one Anil Sardal resulting in
A.C.B. Special Case No.60 of 2013 pending before the Special
Court for A.C.B., Sessions Court at Greater Bombay. The prayer
is for quashing of this particular case. The second prayer is, for
direction to the trial Court to appoint a competent officer to
conduct an enquiry into the missing currency notes amounting
to Rs.10,000/- (Rupees Ten Thousand) which was seized by the
prosecution and sealed in an envelope.
2. Heard learned counsel Mr.Mahesh Vaswani for the
Petitioners and learned APP Smt.M.H.Mhatre for the
Respondents-State.
3. At the very outset, it must be stated, that the trial
has progressed. PW No.1 - Complainant was examined but he
has passed away. At present, PW No.2 - Panch is in the witness-
box. His evidence is being recorded and he is being cross-
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examined. At this very late stage, the Petitioners have
approached this Court challenging the entire proceedings.
Learned counsel for the Petitioners insisted on deciding this
Petition inspite of the fact, that the trial has progressed
considerably. He made three basic submissions. His first
submission is, that since the Complainant has passed away, the
F.I.R. cannot be proved and the allegations made by him cannot
be proved. The second submission is, that the currency-notes
which were seized at the time of raid, were not found when the
envelope was opened in the Court when the Panch was under
examination. Therefore, he submitted, that the crucial property
involved in this case is not before the Court and therefore, the
offence cannot be proved. His third submission is, that the
offence under Section 12 of the PC Act does not stand on its
own unless the ingredients of Section 11 are proved by the
prosecution.
4. Learned APP, on the other hand, submitted that
there is ample other material in the entire charge-sheet
showing the complicity of the Petitioners in the entire offence.
The trial has progressed considerably and at this stage, it is not
permissible to quash the proceedings under Article 226 of the
Constitution of India. She submitted, that the currency-notes
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which were seized during the trap, were deposited with the
Reserve Bank of India during the demonetization period. She
produced a copy of the order passed below Exhibit-1 in A.C.B.
Special Case No.60 of 2013 before the Special Judge (under
the Prevention of Corruption Act), Greater Mumbai. That copy
is taken on record and marked "X" for identification. This order
reads thus:-
"In view of the Government Gazette No.2652
dated 08/11/2016 issued by the Government of India and
the circular issued by the Hon'ble Principal Judge, Gr.
Mumbai, dated 12/11/2016, the consent of parties
obtained to deposit the currency notes of Rs.500/- and
Rs.1,000/-, these currency notes ceased to be legal tender
on account of demonetization. The photocopies of the
currency notes seized during the enquiry/investigation be
forwarded to Registrar (S) along with the V.P.R. containing
currency notes of Rs.10,000/- of denomination of
Rs.500/- and Rs.1,000/-.
The photocopies of the currency notes which
are already filed in the present charge-sheet will operate
as a piece of evidence subject to proving the same as per
provision of law.
Sheristedar of the Court to comply with the
said order.
Notes of denomination No. of Notes Value
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Rs.1,000/- 1000X2 2000
Rs.500/- 500X16 8000
Rs.100/-
Rs.50/-
Total 10,000/-
Date : /12/2016. (A.D.Tankhiwale)
Special Judge (Under the P.C. Act)
Greater Mumbai."
The copy of the said order is given to the learned
counsel for the Petitioners in the Court today. She submitted,
that the ingredients of Section 12 are clearly made out and
there is no scope for even arguing that the proceedings can be
quashed.
5. In response to these submissions, learned counsel
submitted, that the said order which is produced before the
Court is undated and that he had never consented as a counsel
for the Petitioners at the trial for such course of action.
6. We have considered these submissions and we have
perused the entire charge-sheet. The F.I.R. was lodged by Anil
Sardal on 4th May 2012. He has stated that, at the time of
lodging of the F.I.R., he was working as Police Inspector at
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Shivadi Police Station since July-2010. There was a dargah
named Sayyad Ali, Mira Datar Dargah within his jurisdiction.
In August-2011, the Petitioner No.1 Nazim Yusuf Shaikh and
others had made a complaint in the Police Station that the
articles belonging to the dargah were stolen. The complaint
was against one of the trustees Hanif Nalkhande. The F.I.R.
mentions that Hanif on the other hand had made various
complaints against the Petitioner No.1 Nazim. The F.I.R. goes
on to mention that the Petitioner No.1 Nazim used to
frequently visit the Police Station and used to enquire with the
First-Informant as to whether the Police had registered any
offence. The Petitioner No.1 approached the Court of
Additional Chief Metropolitan Magistrate, 5th Court, Dadar for
the same allegations of theft for seeking investigation under
Section 156(3) of the Code of Criminal Procedure, 1973
("Cr.P.C."). The Court had passed those orders in March-2012.
An MECR was registered under Section 380 read with 34 of
Indian Penal Code, 1860 ("IPC") on 21st April 2012. At that
time, the Petitioner No.1 had attempted to give bribe of
Rs.10,000/- (Rupees Ten Thousand) to the First-Informant.
But, the informant did not accept it. The investigation was
carried out by the informant in respect of the said M.E.C.R. It
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was revealed that the articles were in possession of the trustees
and they had sent it to the scrap dealer. They had deposited the
amount in the bank account. This was the statement given by
the accused in that case one Nalkhande. At the conclusion of
the investigation, the informant reached the conclusion that
the offence was false. After registration of M.E.C.R. 1 of 2012,
the Petitioner No.1 came to the Police Station within four to
five days and met the informant. He told the informant that
since the informant had registered the M.E.C.R., he was willing
to pay Rs.10,000/- (Rupees Ten Thousand) to him. The
Petitioner No.1 kept Rs.10,000/- on the informant's table but
the informant did not accept it and therefore, the Petitioner
No.1 took it back and went away.
7. Even after that, the Petitioner No.1 frequently
contacted the informant and used to tell him that he wanted to
give something to the informant. The informant got fed up. He
did not want to accept the bribe. Therefore, on 3rd May 2012,
he approached the Office of Anti-Corruption Bureau and gave a
written complaint against the Petitioner No.1.
8. On 3rd May 2012, in the presence of the API -
Kulkarni, the Petitioner No.1 was contacted telephonically
when he told the informant that he would meet the informant
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on 4th May 2012. On that date i.e. on 4 th May 2012, two
panchas were arranged. The Petitioner telephonically told the
informant that he would meet the informant at 4.45 p.m., in
his Office. Accordingly, informant went to his own Office. The
Petitioner No.1 was already present there. He had brought
Rs.10,000/- (Rupees Ten Thousand) to pay as bribe. But, the
informant did not accept it. The Petitioner No.1 told the
informant that he would come on the next date i.e. on 5 th May
2012 at 10.00 a.m. This particular conversation was recorded
on a digital recorder. On this basis, the F.I.R. was lodged.
9. The Complainant's supplementary statement then
unfolds the further events. On 5 th May 2012, the Petitioner
No.1 as well as the Petitioner No.2 came to the informant's
Office. The Petitioner No.1 took out an envelope and gave it to
the Petitioner No.2 and asked the Petitioner No.2 to hand it
over to the informant. The informant did not accept it.
Therefore, the Petitioner No.2 kept that envelope on the
informant's table and then started discussing their case. The
informant contacted API - Kulkarni on his mobile phone and
gave a signal. The raiding party entered the informat's office
and apprehended both the Petitioners. The Petitioner No.2
started saying that he had committed a mistake and the matter
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should be settled then and there. The Petitioner No.1 also
repeated the same. Both of them were apprehended. The
currency-notes were seized. Their numbers were noted down.
There were two currency-notes of rupees thousand and there
were sixteen currency-notes of rupees five hundred. The trap-
panchnama was recorded and the investigation was carried
out.
10. The charge-sheet contains the transcript of the
conversation between the informant and the Petitioner No.1.
The transcript in respect of the conversation of 4 th May 2012
clearly mentions that the Petitioner No.1 had told the
informant that they would pay upto rupees twenty to the
informant. The Petitioner No.1 added that he was referring
Rs.20,000/- (Rupees Twenty Thousand). He said that they
were giving that amount on their own. Further conversation
mentions that he was paying money to the extent that the
informant would not be disappointed.
11. The trap-panchnama itself records as to how the
Petitioners had entered the informant's office and as to how,
the money was kept on the table to pay it as bribe. It also
records the numbers on the currency-notes as mentioned
earlier. The conversation during that trap between the
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informant and the Petitioner No.1 was also recorded in the
recorder. It is clearly mentioned by the Petitioner No.1 that it
was the amount of Rs.10,000/- (Rupees Ten Thousand). The
photocopies of the currency-notes also form part of the charge-
sheet. There was voice sample recording panchnama. There are
statements of the members of the raiding party who have
narrated the entire incident of trap. There are panchnamas. In
short, there is overwhelming evidence against the Petitioners
which the prosecution can prove during the trial. Just because
the Complainant is not available anymore, that does not mean
the prosecution does not have any other witnesses to prove
their case. There are raiding party members, there are panchas,
there is a transcript of the conversation showing offer to pay
bribe, there is a recovery of currency notes. All these
circumstances and the oral evidence can be proved through
different witnesses. Therefore, there is no force in the
submission that since the Complainant has passed away, the
offence cannot be proved.
12. As far as the submission that, the currency notes
were not available during the trial, is concerned; learned APP
has produced the order passed in the case as mentioned earlier.
We are satisfied that the currency-notes were deposited with
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the Reserve Bank of India as submitted by learned APP. The
photocopies of the currency-notes are already part of the
charge-sheet and therefore, it is not difficult to prove the
numbers on the currency-notes which can be found from the
photocopies.
13. Other submission of learned counsel was regarding
Section 12 of the PC Act. The Section 12 as it stood at the time
of the offence reads thus:-
"12. Punishment for abetment of offences defined in section 7
or 11 - Whoever abets any offence punishable under section 7
or section 11 whether or not that offence is committed in
consequence of that abetment, shall be punishable with
imprisonment for a term which shall not be less than three
years but which may extend to seven years and shall also be
liable to fine."
In this case, clearly the Petitioner No.1 had
attempted to give bribe to the informant. The Petitioner No.2
has actively participated during the trap in keeping the
envelope on the table. It would squarely fall within the
meaning of Section 12. The informant on his part did not want
to accept any bribe and therefore, as far as the Petitioners are
concerned, their act squarely falls within the meaning of
Section 12 of the PC Act. The public servant in this case i.e. the
First-Informant had refused to accept the bribe. In these
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circumstances, there is nothing wrong in prosecuting the
Petitioners under Section 12 of the PC Act. It does not depend
on ingredients of Section 11 of the Prevention of Corruption
Act; because Section 12 itself clarifies that offence under
Section 12 is complete whether the offence referred to in
Section 12 i.e. Section 7 or Section 11 is actually completed or
not.
14. The prosecution needs to be given full opportunity
to lead evidence in this case. The proceedings cannot be
quashed at this stage at all.
15. In view of this discussion, we do not find any merit
in the Petition and the Petition is accordingly dismissed.
(S.M.MODAK, J.) (SARANG V. KOTWAL, J.)
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