1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 578/2006 Raju s/o Bhaurao Ghate, Age : 35 years, Occu. Service, R/o Jaibhim Nagar, Ghati Area, Aurangabad. ..Appellant. Versus The State of Maharashta through the Public Prosecutor, High Court, at Aurangabad. ..Respondent. Mr. R.S. Deshmukh, Advocate for appellant. Mr. S.N. Kendre, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J. Date : 14th September, 2010 ORAL JUDGMENT:- 1. This appeal is filed against the judgment and order passed by the learned Special Judge, Aurangabad dated 08/08/2006 in Special Case No. 7/2004. The present appellant was the accused No.1 in the lower Court. There was one more accused who was charged alongwith the appellant and so in order to simplify the discussion, I would refer these two persons in the judgment as accused Nos. 1 and 2. 2. The case of the prosecution was as under. Complainant Asif is a businessman. Accused No.1 is the Police Naik and at the relevant time, he was working at Local Crime Branch, at Aurangabad. On the pretext that one Mohamed Iqbal had made a criminal 2 complaint against complainant Asif Khan, the accused No.1 called him at his office. The superior officer of the accused No.1 dealt with the complaint between Asif and Iqbal and adviced them in presence of the accused No.1 that they should settle the dispute amicably. Despite this, accused No.1 once again brought the complainant to his office and made him to sit there throughout the day. The superior officer of the accused No.1 Shri Prajapati the prosecution witness No.4 ultimately released the complainant from the office and from the clutches of the accused No.1. Regarding the complaint filed by Iqbal the accused No.1 demanded Rs.10,000/- to Asif the complainant. Asif paid Rs.5,000/- in two installments earlier and he then decided to lodge his complaint with A.C.B. when the accused No.1 insisted on payment of Rs.5,000/- the remaining amount. On 13th October, 2004, the A.C.B. recorded the complaint and laid trap to apprehend the accused red handed. According to the trap, the complainant Asif put Rs. 5,000/- in Rs.500 notes smeared with anthracine powder in left hand side of his shirt pocket and with the shadow panch prosecution witness No.3 Hiralal went to meet the accused No.1. The accused no.1 asked the complainant Asif to come and meet near Roshan gate a well known area of Aurangabad City, at about 8.30 pm. Accordingly, the complainant and shadow panch went there and waited for the accused No.1 to come. After few minutes, the accused No.1 and accused No.2 came there riding a motor cycle. Accused No.1 asked the complainant whether he had brought the money to which the answer came in affirmative. Accused No.1 then asked the 3 complainant to hand over the amount to the accused No. 2 who was sitting on the pillion seat. Accordingly, the amount was handed over to him. The officers of A.C.B. Immediately rushed to the spot and apprehended both the accused. Both the accused were charged under Section 7 and 13(2) of the Prevention of Corruption Act. The learned judge of the lower Court, after framing of the charge, recorded depositions of five prosecution witnesses and deposition of one defence witness. The learned judge held that the prosecution succeeded in proving their case against the accused No.1 but failed to do so against the accused No.2. Thus, the accused No.1 was convicted under Section 7 and under Section 13(2) of the Prevention of Corruption Act. This judgment is being challenged here. 3 The following points arose for my consideration. i) Whether the prosecution proves beyond reasonable doubt that the accused No.1 demanded Rs. 5,000/- as bribe from the complainant before the trap was led ? ii) Whether he repeated such demand on 13th October, 2004 at about 8.30 p. m. near Roshan gate ? iii) Whether he accepted the amount of bribe ? Points No.1 and 2:- 4. The points No. 1 and 2 can be answered by common discussion on the prosecution evidence. The evidence of prosecution witnesses No. 2 and 4 goes to prove that the complainant was taken to the local crime branch office in connection with certain complaint that 4 was filed by one Iqbal. It is also proved beyond reasonable doubt that the accused No.1 was bent on pestering and harassing the complainant over the criminal complaint which his office had received. The prosecution witness No. 4 supported the prosecution case when he said that on certain date i.e. on 9th October, 2003 he found the complainant sitting in his office and when he asked him why he was sitting, the complainant informed him that the accused No.1 had compelled him to sit in the office from 8.00 a. m. in the morning till 8.00 p.m. in the evening. He said that he intervened and allowed the complainant to go home. In this back ground, when the complainant states before the Court that the accused No.1 demanded from him Rs. 10,000/- to settle the case, he cannot be disbelieved. When he said that he paid Rs.5,000/- in two installments to accused No.1, he can not be disbelieved and so when he went ultimately to A.C.B. office, lodged his complaint, the gist of his complaint can not be disbelieved. 5. I now come to the actual demand the accused No.1 made on the date of trap on 13th October, at 8.30 pm., the complainant and this shadow panch were waiting for the accused No.1 near Roshan gate. Both of them said that the accused No.1 came there riding his motor cycle along with the accused No.2 who was sitting on pillion. Both of them unequivocally stated that on reaching near them, the accused No. 1 asked the complainant as to whether he had brought the amount and the complainant answered in affirmative. In view of this corroborated evidence of both these witnesses, I 5 hold that the prosecution could prove the fact that the accused No. 1 demanded the amount once again, from the complainant in presence of the shadow panch. Point No.3:- 6 What happened thereafter is rather interesting. Both these key witnesses (the prosecution witnesses No.2 and 4) while recording their depositions in examination in chief, stated that after the complainant answered the question of the accused No.1 that he had brought the money with him, the accused No.1 directed the complainant to hand over the amount to the accused No.2. Both of them stated that the complainant walked towards the accused No.2 who by then had walked a few steps ahead of them and then handed over the amount to him. Both of them said in examination in chief that the accused No.2 mutely accepted the amount from the complainant. However, there are lots of admissions brought on record during the cross examinations of these two witnesses. Besides they described the incident differently. On one hand, the complainant Asif said that the accused Nos. 1 and 2 came towards them riding the motor cycle. The accused No.1 stopped the motor cycle in front of them and while both of them still sitting on the motor cycle, the accused No. 1 asked the complainant whether the amount was brought. He said while both these persons were still sitting on the motor cycle, the accused No.1 asked the complainant to hand over the amount to the accused No.2. This narration creates a impression that the accused No. 2 heard the 6 accused No.1 asking the complainant whether he had brought the amount with him and that he had then directed him to pay the amount to him. However, the shadow panch (the prosecution witness No. 4) has a slightly different version. He said that while he and the complainant was waiting at Roshan gate for the accused No.1 to come, he saw that the accused Nos. 1 and 2 came towards them riding a motor cycle. He said, after they reached near them, they both got down from the vehicle and the accused No. 1 put the motor cycle on the stand. He then said that after this, the accused No.1 came towards them walking but the accused No.2 walked away from them, on a different direction. Thereafter, he narrated as to how the accused No.1 asked about the money and the answered the complainant had given to him. In view of this version, it is clear that according to the prosecution witness No.4, the accused No.2 did not hear the talk that took place between the accused No.1 and the complainant in presence of shadow panch. He did not even hear that the accused No.1 had directed the complainant to hand over the amount to him. In view of this variation, the accused No.2 had no knowledge of the transaction that had occurred between the accused No.1 and the complainant as soon as they met there. In the cross examination, the complainant admitted that the talk that took place between him and the accused, happened only after accused No.1 got down from his vehicle. He further admitted that the accused No.2 had no concern with the talk and that while he was talking to the accused No.1, the accused No.2 had walked towards 7 Roshan gate and had no occasion to participate in the talk. He even admitted that the accused No.2 was not knowing as to what the talk was about. He further admitted that when the accused No.1 told him to hand over the amount to the accused No.2, the accused No.2’s back was towards him. These admissions indicate that the complainant even admitted that the accused No.2 was not party to the talk that took place about the amount etc.. In the cross examination, both these witnesses admitted that when the complainant approached the accused No.2 and asked him to receive the amount on behalf of the accused No.1, he initially refused to accept the amount. He asked them as to why the amount was offered to him. When he was told that the amount was meant for the accused No.2, he suggested to them that they should pay the amount to accused No.1 only and he would not accept the same. While this was going on between the complainant on one side and the accused No.2 on the other, two versions emerged from the two depositions. The prosecution witness No.2 in cross examination straightly admitted that while he was trying to convince the accused No.2 to accept the amount, an unknown person came on the spot and hearing the talk between these two persons, almost ordered the accused No.2 that he should accept the amount for the accused No.1. The complainant admitted further that saying so he snatched away the tainted notes from his hand and tried to give it to the accused No.2. Even then the accused No.2 refused to accept the amount. But the third person succeeded in thrusting the amount, in the right hand of the accused No.2. 8 Thereafter, the A.C.B. officers came. The second version that emerges from the deposition of the prosecution witness No.4, the shadow panch is as follows. He said, the complainant went towards the accused no.2 who had already walked up to 20 feet away from the complainant and the accused No. 1. He said, the complainant asked the accused No.2 to accept the amount. He said, the accused No.2 made enquiry as to for what purpose the amount was given. He then heard, accused No.2 said that the complainant should pay the amount to the accused No.2 if it was meant for him. He said, the accused No.2 was not ready to accept the amount. He then said that thereafter the complainant kept the amount in the hands of the accused No.2. 7 In this background, the evidence of the defence witness Moinuddin makes interesting reading. This witness professed that he was present when the incident took place which is narrated above. He said, he was present at the spot and that he was on friendly terms with the complainant. He said, the complainant made attempt to offer certain amount to the accused No. 1, who refused to accept the same. He said, thereafter, the complainant went to the accused No.2 and made an attempt to give the amount to him. He said, the accused No.2 also refused to accept the amount. He said, the complainant then handed over the amount to him and asked him to give the amount to the accused No.2. He said, when he attempted to hand over amount to accused No.2, accused No.2 refused to accept the amount. He 9 said, by using force ultimately, he kept the amount in the hand of the accused No.2. 8 The different versions taken together and even assuming that the defence witness is not reliable, it is clear that the accused No.2 was not ready and willing to accept the amount which was not meant for him and was meant for some one else. He refused to accept the amount repeatedly and ultimately the prosecution witnesses succeeded in planting the amount in his hand. Even going by to the case of the prosecution, it is clear further that the accused No.2 had no concern with the transaction that was to take place between the complainant and the accused No.1. There is nothing on record and it is not prosecution case that the accused No.2 agreed to accept the amount from the complainant for and on behalf of the accused No.1. No talk took place between accused Nos. 1 and 2 about delivery and acceptance of the amount. In a case like this, if the accused No.1 had demanded bribe from the complainant, he could have accepted the same readily right on the spot. If he deferred to accept the amount and asked the complainant to deliver the amount to a third party, he thereby reduced possibility of successful delivery of the amount to him. The person on whom he placed reliance for delivery of the amount, atleast in this case, had every reason not to accept the amount. There is nothing on record to show that when accused No.2 was hesitating and refusing to accept the amount, the accused No.1 instigated him or cajoled him to accept the amount on his behalf. Accused No.1 thereby reduced the possibility 10 of getting the bribe amount delivered to himself. Had the prosecution witnesses failed to deliver (or forcibly plant) the amount in the hand of the accused No.2, trap could have failed. In that case, the accused No.1 could not have been charged for the offence punishable under Section 7 and 13(2) of the Prevention of Corruption Act. 9 In this back ground, one has to appreciate the prosecution case. It is amply clear that the tainted currency notes were forcibly put in the hands of the Accused No.2. This forcibly thrusting the amount in the hand of a third party, would thus fail the trap laid for the accused No.1. The prosecution case thus would fail to bring home the guilt. The appeal should succeed. ORDER Th appeal is allowed. The accused No.1 / appellant is acquitted of the offences punishable under Section 7 and 13(2) of the Prevention of Corruption Act. The bail bond of the appellant stands discharged. [A.V. NIRGUDE, J.] ts k/criapl578.06/ok