1 Cri. Appeal No.446 of 1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.446 OF 1993 The State of Maharashtra ] Appellant Vs. Dilip A. Bansode, ] R/o : M.T. Section Compound, ] Respondent `A Block, Room No.98, ’ ] (Ori. accused) Shephard Road, Byculla, ] Mumbai - 400 008 ] Mrs. P.H. Kantharia, APP for State-appellant. Mr. Ranjit R. Bhosale, Advocate for respondent. Coram : Smt. R.P.SondurBaldota, J. Date : 9th September, 2010 JUDGMENT : 1. This is an appeal against acquittal filed by the State challenging the judgment and order dated 6th/7th April 1993 passed by the Sessions Court, Mumbai in Special Case No.19 of 1988, by which the respondent was acquitted of the offences punishable under Section 161 of Indian Penal Code and Section 5(2) and 5(1)(d) of Prevention of Corruption Act. 2. The brief case of the prosecution is as follows : The applicant and the complainant are Police Constables, who at the relevant time were working at the post called Radio Telephonic Police 2 Cri. Appeal No.446 of 1993 Constable (RTPC). There are wireless sets provided to all cars of the officers of and above the rank of Deputy Commissioner of Police. The mobile patrols of city Police are also connected with a wireless grid to facilitate the communication and issuance of timely directions. These wireless sets are handled by specially trained police constables i.e. RTPCs. There is a Police Sub Inspector, who is incharge of mobile section of Wireless Unit, who is also incharge of assignment of duties. He is assisted by one RTPC who is styled as Incharge RTPC. The duties of RTPC are ordinarily changed after every three months by PSI in charge of the Mobile Section of the Wireless Unit. However, the duties of RTPCs deployed either in the car of officers of Deputy Commissioner of Police and above or on crime mobile are not changed every three months. Their change occurs only if desired by the concerned officer. Crime Mobile is the technical word used by the department to represent the car of Additional Commissioner of Police (Crime). At the relevant time, the respondent was working as Incharge RTPC assisting the Police Sub Inspector, in charge of Mobile Section of Wireless Unit in assignment of duties and the complainant was working as crime mobile on the car of Additional Commissioner of Police (Crime). 3. It is the case of the prosecution that the complainant used to pay an amount of Rs.100/- per month by way of illegal gratification to the 3 Cri. Appeal No.446 of 1993 respondent till his transfer on Crime Mobile. Because the complainant stopped making the payment, the respondent used to threaten him that he would have him transferred from Crime Mobile to some other duty. This threat was allegedly given on 14th August 1987 when the complainant met him in connection with payment of bill of refreshment allowance. As the threat was repeated on 20th August 1987, the complainant agreed to pay an amount of Rs.200/- to the respondent at Irani Hotel, Nagpada at about 8.00 pm. and approached the office of Anti-Corruption Bureau, Greater Bombay Unit. Then a trap was laid on 20th August 1987 near Irani Hotel. However, the respondent did not turn up. A couple of days thereafter, when the complainant allegedly visited the respondent to enquire about the application of Casual Leave submitted by him, once again the respondent is alleged to have threatened the complainant and demanded a sum of Rs.500/-. The complainant then promised to give him money on 27th August 1987 at about 8.30 am., at his residence. The complainant then approached to Anti-Corruption Bureau, Greater Bombay Unit and a trap was made for the second time, at the residence of the respondent. On the date and time of trap, the applicant accompanied by panch witness, Nadkarni, entered the house of the respondent and gave him wad of currency notes of Rs.500/- over which anthracene powder was sprinkled. The respondent is alleged to have accepted the amount and kept the 4 Cri. Appeal No.446 of 1993 same between two pillows in his room. The officers who were part of the raiding party, found that there was anthracene powder on the person of the respondent and also the two pillows. They searched the room of the respondent and seized the amount of Rs.500/- found in white envelope by drawing seizure panchanama. Thereafter the complaint came to be filed against the respondent for the offence punishable under Section 161 Indian Penal Code and 5(2) r/w Section 5(1)(d) of the Prevention of Corruption Act. 4. The learned Sessions Judge, on appreciation of the evidence led before him, held that the prosecution has failed to prove that on 28th August 1987 at about 3.30 pm., the respondent demanded money and agreed to accept it on the same day, at Irani Hotel. It also failed to prove that on 26th August 1987 at about 4.00 pm., the respondent demanded an amount of Rs.500/- from the complainant. The prosecution further failed to prove that on 27th August 1987 at about 8.40 pm., the respondent demanded bribe from the complainant and accepted Rs.500/- from him at the residence. The prosecution also failed to prove that the respondent had by corrupt or illegal means or by otherwise abusing his position as a public servant, obtained for himself a pecuniary advantage of Rs.500/- and committed an offence of criminal misconduct on 27th August 1987. The defence of the respondent was that he has been falsely 5 Cri. Appeal No.446 of 1993 implicated into the trap case. It is his contention that at the time of the raid, two constables who were in the raiding party had caught his hands and tried to force his hands to the notes which were kept between the two pillows and in that scuffle, he came in contact with the notes between the pillows and traces of anthracene powder were found not only on his hands but on several parts of the body. 5. The learned Sessions Judge not only rejected the evidence led by the prosecution found the entire prosecution story unbelievable. He noted that once the complainant was posted as Crime Mobile on the vehicle of Commissioner of Police (Crime), there was no scope for any interference at the hands of the respondent, though he was an Incharge RTPC. It has been observed that both the respondent as well as complainant were well aware of the procedure in the Police Department. Both had been working as RTPCs over a long period of time and under no circumstances, the complainant could be ignorant of the procedure. In that circumstance, neither there could be any demand made by the respondent for illegal gratification for transfer of the complainant outside the wireless unit of Police nor could there be any question of the complainant agreeing to pay money for preventing his transfer outside. 6. The learned Sessions Judge has found the evidence of raid as not worthy of credence in view of contradictions in the evidence of the 6 Cri. Appeal No.446 of 1993 complainant and the panch witness, Nadkarni on material aspect of the raid. It was the evidence of the complainant that when the respondent accepted wad of notes totalling to Rs.500/-, he was sitting in his room. The witness, however, stated that the respondent at that time was lying down in the room. Another glaring contradiction is in the evidence of the complainant and the panchanama for seizure of currency. According to the complainant, he had handed over open marked currency notes to the respondent, which he had stuffed between the pillows kept on the floor. However, the panchanama of seizure during the trap states that the currency notes were found in a white envelope. The learned Sessions Judge also found that there is no proper explanation brought on record by the Police for traces of anthracene powder on the body of respondent. Perusal of the entire record shows that the evidence led by the prosecution is not credible. The decision of the Sessions Court is appropriate and legal. Hence, the appeal is dismissed. ( Smt. R.P. SondurBaldota, J)