1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.304 OF 1996 Ramesh Appasaheb Lad .Appellant Age : Adult, Occu : Service R/at C/o. Wakdewadi, Bombay-Pune Road, Pune. V/s. The State of Maharashtra .Respondent Mr.Niteen Pradhan i/b. Mr.Vikas Kolekar, Advocate, for the Appellant Mrs.A.A.Mane, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 14TH SEPTEMBER, 2011 ORAL JUDGMENT . This Appeal is directed against appellant's conviction by the learned Special Judge, Pune for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of the Corruption Act, 1988 and sentence of rigorous imprisonment for 60 days with a fine of Rs.500/- or in default rigorous 2 imprisonment for 15 days imposed upon the appellant on each of the two counts. 2. Facts which are material for deciding this appeal are as under :- The appellant was serving as a shop inspector in the office of the Additional Commissioner of Labour at Pune. PW-2 Pratibha Bhojraj Ostwal was running a shop by name Sahyog Provision Stores since 1989. Her husband had deposited requisite fees for getting license under the Bombay Shop & Establishment Act, 1948. However, the Certificate was not received from the appellant's office. PW-4 Prakash Bansilal Salunkhe is the brother of said Pratibha, who was reading in the final year of Law. When Pratibha and her husband lamented about non- receipt of Shop Act license, Prakash Salunkhe, the Complainant was asked to look into the matter, since he was doing nothing at that time. He claims to have gone to the office of the 3 appellent in March, 1991 to make an enquiry about the license. The appellant told him that the previous application was lost and therefore, asked him to get a fresh application. The appellant, however, told the Complainant that there was no need to pay fees afresh, since challan for payment of Rs.15/- was already there. On 18th March, 1991 the Complainant Prakash submitted a fresh form filled by his sister, attaching a photocopy of the previous challan whereby fees of Rs.15/- had been paid. The appellant asked the Complainant Prakash to come after two days for collecting the license. On 22nd March, 1991 at about 11:30 a.m. Prakash claimed to have met the appellant and asked him about the license. The appellant told him that the license was ready but that Prakash would have to pay Rs.100/-. Prakash stated that he has only Rs.25/- with him. The appellant accepted that sum of Rs.25/- and asked Prakash to come back with Rs.75/-. 4 3. Prakash then claims to have been gone back to his sister and discussed the matter with his sister and brother-in-law. It was decided to lodge a complaint with the Anti Corruption Bureau. Therefore, in the noon Prakash went to the office of ACB and lodged a report. The officers called panchas and asked them to report again on 25th March, 1991, since balance amount of Rs.75/- was to be paid after two days, that is on 25th March, 1991. In the morning of 25th March, 1991 a trap was arranged. A pre-trap panchanama of all the activities preceding the trap was drawn up. Marked currency notes smeared with Anthracene powder were kept in the pocket of the Complainant. The Complainant, accompanied by PW-1 Sou. Usha Dattatraya Ranate, one of the panchas shadow witness, was asked to go to the office of the appellant and pay the amount. Accordingly, at about 10:30 a.m. the Complainant accompanied by PW-1 Sou. Usha Dattatraya Ranate went to the office of the 5 appellant and found him in sitting at a table. Complainant asked the appellant about the license. The appellant stated that the license was ready and asked whether Prakash had brought the fees. The appellant opened his brief case and handed over the license asking Prakash to take entries in the relevant register on a different table in the same office, but immediately called back the Complainant and asked for payment. Accordingly, the marked currency notes were taken out by the Complainant and paid to the appellant which the appellant accepted in his right hand and put them in the pocket of his shirt. One Sayyed Gani was standing near the table of the appellant throughout. On Complainant's giving predetermined signal, raiding party swooped. 4. One of the officers in the raiding party held the hands of the appellant, who was all the while protesting that the amount was 6 forcibly inserted in his pocket. The appellant stated that he had not accepted any amount. The other panch, who has not been examined took out the amount from the pocket of the shirt of the appellant. The numbers of notes recovered were found to tally with those mentioned in the pre trap panchanama. The notes as well as hands of the appellant and his shirt were examined in Ultraviolet lamp and were found to glow. An elaborate panchanama of the trap was drawn. Thereafter, the raiding party went back to the office of NCB and drew up the post trap panchanama. 5. PW-5 Maheboob Rasul Mulani, Circle Police Inspector, who was the raiding officer, filed a report and registered an offence againt the appellant. He completed the investigation and sent papers of investigation to PW-6 Shri Harnam Singh, who was the authority competent to sanction prosecution of the appellant. On 7 receipt of sanction, a charge sheet was sent to the Court of the Special Judge, Pune. 6. The learned Judge charged the appellant of the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of the Corruption Act, 1988 in respect of two events that is 22nd March, 1991 and 25th March, 1991. Since the appellant pleaded not guilty to the charge, he was put on trial at which the prosecution examined in all six witnesses in its attempt to bring home guilt of the appellant. They were : Sou. Usha Ranate, who was examined as PW-1, Complainant's sister, Pratibha Ostwal, who was examined as PW-2, another Shop Inspector, Shivram Motiram Gaikwad, who was examined as PW-3, the Complainant Prakash Salunkhe, who was examined as PW-4, raiding officer, Maheboob Mulani, who was examined as PW-5 and Shri Harnam Singh, who granted sanction for prosecution was examined as PW-6. After 8 considering the evidence of these witnesses in the light of defence of false implication, the learned Special Judge held the appellant guilty and convicted and sentenced him as aforementioned. Aggrieved thereby, he has preferred this appeal. 7. I have heard the learned Counsel for the appellant and the learned APP for the respondent  State. The facts deposed to by the prosecution witnesses have already been outlined while narrating the prosecution story, except PW-3 Shivram Gaikwad, who merely stated that in the office of Additional Commissioner of Labour at Pune, there was fixed seat alloted to every Shop Inspector and the person concerned could sit at a table which may be vacant. I have gone through the evidence of these witnesses with the help of both the learned Counsel. 9 8. The learned Counsel for the appellant first pointed out that there was serious discrepancy about the time at which the complaint was received by the ACB and the time at which the officers of the Bureau started preparing for raid. He pointed out that report given by PW-4 Prakash Salunkhe which was proved by him at Exhibit 27 mentions the time as 14:15 hours that is 02:15 p.m. on 22nd March, 1991. Even PW-5 Maheboob Mulani states that PW-4 had come to office at 02:00 p.m.. PW-4 Prakash Salunkhe, however, stated that on 22nd March, 1991 he had gone to the appellant's office at about 11:30 a.m. when he claims to have paid Rs. 25/-, assuring to come back with balance of Rs. 75/-. He stated that thereafter, he went to the house of his sister PW-2 and told her and her husband about the events at about 02:30 p.m.. Thereafter, all of them decided to lodge a report with the ACB and then he came to the office of ACB at about 4:00 to 5:00 p.m.. Thus, 10 his evidence would rule out his coming to the office of ACB or his giving any report at about 02:15 p.m.. As if this was not enough, PW-1 Sou. Usha Ranate stated that on 22nd March, 1991, her superior called her and the other panch Survase and told them to attend the office of ACB at 10:00 to 10:15 a.m.. The learned Counsel for the appellant wondered as to what could be the warrant for investigating officer Maheboob Mulani to requisition services of panchas at 10:00 a.m. when even according to the ACB, complaint was received at 02:15 p.m. and according to the Complainant, he had not gone to ACB office till 04:00 p.m.. The learned APP has not been able to throw any light on this aspect of the matter. 9. Apart from this, the learned Counsel for the appellant pointed out that in the report given by PW-4 Prakash Salunkhe he had mentioned that he did not know name of the Shop Inspector, 11 but the Shop Inspector was fair complexioned, short in stature and about 35-40 years old. PW-4 Prakash had stated in para 12 of his cross examination that on 18th March, 2011 he had handed over the form to the appellant and was in the appellant's office for only five minutes, but in the first visit itself the appellant had told that the appellant was the Shop Inspector of Bhosari area and his name was Shop Inspector Lad. Thus, according to the Complainant, he knew name of the Complainant in the first meeting itself. Therefore, his claim in the report at Exhibit 27 that he did not know name of the Shop Inspector is curious to say the least. 10. PW-1 Sou. Usha Ranate was asked about the appellant in her cross examination and she could not say that the appellant was fair complexioned person. Therefore, it seems that the description of the person, who demanded 12 bribe in the report at Exhibit 27 does not match with the appellant's description. The evidence of Sou. Usha Ranate as well as Prakash Salunkhe shows that on entering the office of appellant Prakash had not told Sou. Usha as to which was the person whom they were going to meet in the office. She stated that even at the entrance of the office, Prakash did not point out to her the appellant or tell her that the appellant was the person, who had demanded the amount. This discrepancy, about absence of name of the appellant in the report when Complainant already knew it and description of the appellant in the report not matching the appellant cannot be brushed aside as insignificant and could point to the possibility of a wrong person being trapped by the ACB which seems to have already summoned panchas even before receiving complaint. 13 11. This possibility is strengthened by the dialogue which followed. PW-1 Sou. Usha Ranate stated that when the Complainant enquired with the appellant as to whether registration certificate was ready, the appellant enquired with the Complainant about the name of the shop and then the Complainant informed him that the name of the shop was Sahyog Provision Stores, Bhosari. The Complainant himself stated that he enquired as to whether license of Sahyog Provision Stores was ready or not and the appellant informed him that and the license was ready and enquired as to whether the Complainant had brought the fees. The appellant is then supposed to have opened his brief case, inspected the documents and informed that the Certificate was ready. The appellant then asked the Complainant as to whether the Complainant had deposited fees. From this evidence, it would appear that there was possibly no occasion for the appellant to meet the Complainant before 14 the time of raid and therefore, there was a question mark on the face of the appellant when the Complainant approached him, leading to the further dialogue. 12. This possibility has also to be examined in the light of the claim of the Complainant, to have paid Rs.25/- to the appellant on 22nd March, 1991. If he had paid Rs.25/- to the appellant on that date, curiously, the evidence of his sister Pratibha, who was examined as PW-2, makes no reference to this payment. She does not state that her brother told her that he had already paid Rs. 25/- as a part of the bribe demanded. She stated that her brother informed her that the Shop Inspector was demanding Rs.100/- as bribe for issuance of license. Therefore, she and her husband asked the Complainant to lodge a report and paid him Rs.100/-. The learned Counsel for the appellant submitted that the evidence about 15 demand and payment of Rs.25/- on 22nd March, 1991 comes only from PW-4 and his evidence does not receive any corroboration from that of his sister, who was examined as PW-2. Therefore, according to him, the evidence about the first encounter would have to be discarded, since ordinarily, Prakash would have told his sister and his sister in turn would have deposed before the Court that a sum of Rs.25/- was already paid. 13. The learned Counsel for the appellant next submitted that prior to the raid, instructions given to the Complainant were deficient in as much as the Complainant was not told that the amount should not be paid unless there is a demand. The shadow witness PW-1 Sou. Usha Ranate stated that she was instructed to remain present with the Complainant and observe the events and the Complainant was instructed to go to the Shop Inspector and talk about the 16 work. The Complainant was instructed to pay bribe amount by taking out the same by his right hand. He was told not to shake hands with anyone etc. but the crucial instruction not to pay the amount without being demand is missing from the evidence given by Sou. Usha Ranate. 14. PW-4 Prakash Salunkhe himself stated that he was instructed that if the appellant informed about readiness of the license, he should inform the appellant that he had brought Rs.75/-. He was then instructed to pay the amount to the appellant only on appellant's demand. Now, the learned Counsel for the appellant is right in submitting that the expression of having brought Rs.75/- by the Complainant was thoroughly unwarranted and such a sentence would amount to a signal of offer rather than waiting for demand. The pre-trap panchanama at Exhibit 18, however, specifically mentions that unless the Shop Inspector demanded 17 the amount, the Complainant should not touch that amount. But the evidence of the two witnesses would indicate that either instructions were deficient or the Complainant had not acted according to the instructions. 15. It may be significant to recall that the appellant had informed the Complainant that the license was ready and enquired with him as to whether he had brought the fees. This has to be read in the context of the fact that the appellant, according to PW-1 Sou. Usha Ranate did not even recall having met the Complainant and therefore, was quizzical when the Complainant asked for the license. The learned Counsel for the appellant submitted that it is not that the appellant demanded balance of Rs. 75/-, reminding the Complainant that he had paid Rs.25/- out of the amount settled at Rs.100/-. It was the Complainant, who informed that he had brought Rs.75/- as per the instructions. The 18 appellant handed over the license to the Complainant and asked him to first note that license in a register on another table. Thus, it is not that the appellant first received the money and then handed over the license. He had already handed over the license to the Complainant and asked the Complainant to note license in the register. Then the appellant is alleged to have called him back and asked the Complainant to pay then, since there would be other officers at the other tables. Thereafter, the signal was given and the appellant was caught with the bribe money. The learned Counsel for the appellant submitted that this evidence would cast a doubt as to whether the appellant did in fact demand any amount as settled for delivery of the license. 16. The learned Counsel further submitted that one Sayyed Ganni has been stated to have been present throughout this operation at the 19 table of the appellant when the appellant is alleged to have received the money. In fact, hands of Sayyed Ganni were also examined under Ultraviolet light as stated by PW-5 Maheboob Mulani in para 9 of his deposition. The learned Counsel for the appellant submitted that if an independent witness was present through out the raid, there is no reason why that witness was not examined by the prosecution. The learned APP could not explain. 17. The learned Counsel submitted that unreliability of evidence about payment of Rs. 25/- on 22nd March, 1991; failure of the Complainant to state the name of the appellant in the report though he knew it; mis-description of the appellant in the report; the discrepancy about the time when the report was given and the panchas were called; deficiency in the instructions given to the Complainant and the panchas about payment of money to the appellant; 20 necessity for the Complainant to remind the appellant that he had come with money, indicating the possibility of the Complainant not having meeting the appellant in the past, would cumulative make it possible that the Complainant approached a wrong person and thrusted the notes in his pocket without their being any demand, simply because his sister had not received the license for a long time after having applied for the same. The learned APP, on the other hand, submitted first, that notes were found in the pocket of the appellant and his hands were also got tainted with anthracene powder. Secondly, she submitted that search of brief case of the appellant revealed that the documents pertaining to the shop of Complainant's sister were very much in the said brief case, indicating that the appellant was the person whom the Complainant must have met previously for the license. Therefore, she submitted these small discrepancies, to which 21 the learned Counsel for the appellant makes a reference, would amount to hair splitting and nothing more. Therefore, she wanted that the Court may uphold the Judgment of the Special Judge which takes holistic view of the matter. 18. Ordinarily, when the person is found with tainted notes and his hands were also tainted, it would be for such person to explain as to how the hands got tainted if not in receiving the bribe amount. However, in this case, unreliability of the evidence about the first demand on 22nd March, 1991, discrepancy about absence of name of the appellant in the complaint and the description of the appellant which does not match the appellant, the discrepancy about time of giving report and the time when the panchas were called, would all indicate that the evidence about raid is suspicious. This is further compounded by the fact that the instructions about payment of 22 money deposed by the witnesses as contrasted with those recorded in the panchanama are deficient and therefore, the defence that the money was inserted in the pocket of the appellant and his hands got tainted when he touched that pocket cannot be said to have been improbable. 19. In view of this, extending benefit of doubt to the appellant, the Appeal is allowed. Conviction of the appellant for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of the Corruption Act, 1988 and sentence imposed is set aside. Fine, if paid, be refunded to the appellant. (R.C.CHAVAN, J.)