Bombay High Court
The State Of Maharashtra vs Dilip Karbhari Tejimkar And Another on 13 October, 2025
2025:BHC-AUG:28721
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 67 OF 2025
The State of Maharashtra,
Through Dy.S.P.,
Anti-Corruption Bureau, Aurangabad. ... Applicant
Versus
1. Dilip Karbhari Tejimkar,
Age : 42 years, Occu. Service as Police Naik,
B. No. 1276, Police Station, Daulatabad,
Aurangabad (City).
R/o. Plot No. 12, Raghuveer Apartment,
Suyog Colony, Padampura,
Aurangabad.
2. Shaikh Farooq Shaikh Yunus @ Babbu,
Age: 32 years, Occup. :Labour,
R/o. Near Deogiri Vidhyalaya,
Daulatabad, Aurangabad. ... Respondents
(Orig. Accused)
......
Mr. S. P. Joshi, APP for Applicant - State.
Mr. Nilesh S. Ghanekar, Advocate for Respondent Nos.1 and 2.
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 03 OCTOBER 2025
PRONOUNCED ON : 13 OCTOBER 2025
ORDER :
1. Dissatisfied by the judgment and order of acquittal dated
05.02.2025 in Special Case (ACB) No. 279 of 2021 by which, accused
respondents came to be acquitted from charge under sections 7 and 12 of
the Prevention of Corruption Act, State is hereby seeking leave to
question the said judgment.
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2. Learned APP pointed out that, accused no.1 was police
official and was a public servant. He pointed out that, complaint was
received by ACB authorities against above accused persons i.e.
demanding bribe for forbearing from registering crime against
complainant. Accused no.2 had abetted accused no.1 to accept illegal
gratification and therefore, both were tried for charge under section 7 as
well as section 12 of P.C. Act. Learned APP pointed out that, prosecution
had adduced evidence of complainant Abdul Rahim Abdul Kadar (PW2),
shadow panch (PW3), Investigating Officer (PW4) in support of above
charge. That, unanimously testified about accused approaching
complainant and threatening to register false crime of purchasing stolen
property and thereby demanded bribe of Rs.1,00,000/- and on
negotiations brought down to Rs.70,000/- and also suggesting to pay
Rs.10,000/- per month. That, accordingly ACB authorities summoned
independent shadow panch and trap was planned by undertaking
verification panchanama recording actual conversation of demand. That,
required ingredients for attracting both the charges were available, but
the same has not been correctly appreciated by learned trial court.
3. He further submitted that, prior to prosecuting, valid
sanction was obtained i.e. as regards to accused no.1 is concerned. On
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application of mind, sanction to prosecution was granted and even there
is positive finding to that extent by trial court. However, he further added
that learned trial court has refused to accept demand and acceptance as
proved and noting some minor variances and shortfalls, which were not
at all fatal, accused stood acquitted. Therefore, State has a good case on
merits and hence, learned APP urges for leave to file appeal.
4. Per contra, learned counsel for original accused, while
supporting the judgment of acquittal, pointed out that, prosecution has
miserably failed to bring home the charges. He would submit that, sine
qua non like demand is not cogently proved. He pointed out that, crucial
witness Mr. Kawade, who made demand are not made accused nor
examined. That, complainant himself has not supported prosecution.
That, testimony of shadow panch does not lend support to the
prosecution case in toto. That, conversation which is allegedly recorded,
is distinctly stated by witnesses and Investigating Officer. That, rather it
has come on record that the conversation regarding money was
pertaining to another transaction and was in different context. That,
according to him, learned trial court has meticulously and closely
appreciated evidence of witnesses and has arrived to just conclusion
about failure of prosecution to bring home the charges. Finally it is
submitted that accused being acquitted by trial court, there is strong
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presumption of his innocence and that during appeal against acquittal,
appellate court cannot substitute its own view by interfering in the view
taken by learned trial court and he urges to reject leave.
5. Heard. Perused the papers as well as evidence and even the
impugned judgment. PW1 Nitin Gupta seems to be the sanctioning
authority; PW2 Abdul Rahim Abdul Quadar seems to be the complainant;
whereas PW3 Madansingh seems to be the shadow panch and PW4
Nandkishor Kshirsagar is the Investigating Officer.
6. Sum and substance of evidence of PW2 Abdul Rahim Abdul
Quadar is that, on 13.09.2020, he was approached by two police officials
for inquiry of purchase of scrap and then he was summoned by accused
no.1 Tejimkar to the police station. He deposed that, at that time,
another official Mr. Kawade was accompanying him and also accused
no.1 shared his contact number. Accordingly, he had reached police
station at 5:00 to 5:30 p.m., but both above persons were not available in
the police station and was allegedly asked to come to Maliwada on next
day morning. Accordingly he made phone call to accused no.2 Shaikh
Babbu on the next date. On next day, witness claims that accused no.1
Tejimkar as well as official Kawade told him that in case an offence is not
to be registered, then he will have to pay amount of Rs.1,00,000/-. He
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further deposed that, at that point of time itself, accused no.2 said
accused no.1 suggesting that complainant's shop is very small and that he
would not possess so much amount and requested accused no.1 to reduce
certain amount and accordingly amount of Rs.70,000/- was settled. He
further deposed that accused no.1 and police official Kawade said to him
that, if he intends to run the shop, he would have to pay Rs.10,000/-
every month. He further deposed that, accused no.2 asked complainant
that if he has financial difficulty, he himself will arrange an amount of
Rs.20,000/- to Rs.30,000/- as he has credit to be given to accused no.1
and further asked complainant to adjust the amount to be paid to
accused no.1. Accused no.2 asked complainant to arrange remaining
amount and to come to Maliwada. He further deposed that, as he was not
willing to pay amount, he lodged complaint at Exh.17.
7. Complainant is extensively cross examined, wherein he
admitted that accused no.2 was having Rs.50,000/- with him and an
amount of Rs.30,000/- to be received by him from accused no.2 and
Rs.20,000/- was to be obtained by way of hand loan from accused no.2
and he admitted that he asked accused no.1 as well as accused no.2 that
he will arrange and amount of Rs.20,000/- in some time. Accused no.2
paid amount of Rs.50,000/- to accused no.1. In paragraph 10, this
witness admitted that, he had asked accused no.2 as to whom the
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amount is to be paid, to which, accused no.2 allegedly informed
complainant that accused nos.1 and police official Kawade have asked
him to pay the amount to accused no.2. In paragraph 11 and 12 he is
questioned on the point of alleged telephonic conversation at Maliwada
with accused no.2, wherein, it was agreed by complainant to pay amount
to accused no.2 and further admitted that he could not identify the voice
of the actual conversation on the telephone. Subsequently, it appears that
when complainant himself stated in examination-in-chief that, accused
no.2 did not make demand and when Tejimkar had told to handover
money to accused no.2 Babbu, learned APP seems to have sought
permission to cross examine complainant, who was the star witness as he
was not supported. While under cross by accused, complainant has
admitted that demand was made by Kawade.
8. Thus, here, complainant's evidence shows that actual
demand is by Kawade, but as pointed by learned counsel for respondent,
surprisingly he is neither made an accused nor witness. There is no
material suggesting demand by accused no.1, who is a public servant.
9. Another pertinent feature is that, complainant has attributed
demand in chorus to both accused nos.1 and 2, but in cross has admitted
about demand raised by accused Kawade i.e. at the time of verification.
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Resultantly, evidence as pointed out, at the time of demand, is weak and
ambiguous.
10. There is also nothing on record to show that accused no.2
was acting at the instance of accused no.1 or his agent so as to accept the
case of abetment. Learned counsel for respondent - original accused has
also pointed out that apart from witnesses being inconsistent, oral
testimony is not matching with report at Exh.20.
11. PW2 has testified that FIR was noted by PW4 and he could
only identified his signature, but he denied its contents. Therefore, this
also inflicts serious dent to the prosecution version. As stated above,
witnesses are speaking about demand made by Kawade. There is no
convincing evidence that accused no.1 demanded Rs.1,00,000/- and
further brought down the figure to Rs.70,000/- as prosecution witnesses
itself deposed that, accused no.2 himself suggested inability of
complainant to pay a bribe amount and requested accused no.1 to bring
down the same and accordingly it was agreed that accused no.2, who
owe credit to accused no.1 would also contribute to meet the demand of
Rs.70,000/-. Therefore, such evidence also inflicts serious doubts on the
prosecution version. Therefore, with such material on record, this court
does not find any patent illegality or perversity on the part of learned
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trial court for refusing to accept the case of prosecution. There are several
lapses, lacuna and inconsistencies in prosecution case apart from non
examination of Mr. Kawade. Resultantly, there is no merit so as to grant
leave. Hence, the following order is passed :
ORDER
(i) Leave is refused.
(ii) The application for leave to appeal by State is rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
