- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.2815 OF 2006 APPLICATION NO.2815 OF 2006 APPLICATION NO.2815 OF 2006 Central Bureau of Investigation ...Applicant vs. 1.Krishnakumar Agarwal 2.Chhakodiprasad Mishra 3.State of Maharashtra ...Respondents Mr.J.R.Solanki for the applicant Mr.J.P.Yagnik A.P.P. for State Mr.Kale for the respondents CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 26,2009 : MARCH 26,2009 : MARCH 26,2009 P.C.: P.C.: P.C.: 1. I have heard the submissions of the learned counsel of the applicant in support of the application for grant of leave to prefer an appeal under sub section 3 of section 378 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code). 2. The first respondent (first accused) was prosecuted for the offence punishable under section 7 and section 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act,1988 (hereinafter referred to as the said Act). The second respondent (second accused) was prosecuted for offence under section 12 of the Act for abetting the accused no.1 in commission of offence. - 2 - 3. The case of the prosecution can be stated in brief as under : . The complainant is a licensed vendor at Mumbra railway station. The case of the complainant is that prior to November 1993, the accused was Station Master. Since two years prior to it, he along with other vendors including the complainant used to pay Rs.150/- p.m. to the Station Master as a bribe for allowing them to run the stalls. The first respondent was the Station Master since October 1993 was demanding bribe in the sum of Rs.300/- p.m. According to the complainant on 17th November 1993 the first respondent told the vendors to increase the rate else he would demolish the stalls. On the very same day with the help of railway police force the first respondent demolished the covers of the stall. According to the case of the complainant, the accused contacted the complainant and informed him that he can run the stall by paying bribe of Rs.200/- p.m. On the same day he called the complainant and another Vendor Mr.Gupta in the waiting room of Mumbra railway station at 1.30 p.m. According to the complainant the first accused was called upon to pay the amount on 20th November 1993 at 1.30 p.m. Thereafter, the complainant approached Central Bureau of Investigation. A trap was arranged following the after necessary procedure and the raiding party, the complainant and panch witness proceeded towards waiting room. According to the prosecution case, the - 3 - 1st accused was standing at the door of his office. On seeing the complainant he demanded money. The complainant requested him to allow panch witness Phadage to run the banana stall. The first respondent stated that he will allow the panch witness to run the business on payment of Rs.150/- p.m. On the request made by the complainant, the 1st accused stated that Phadage should pay Rs.100/- and start his business next day. The first respondent led them to a tea stall on platform no.2. Accused no.2 was present at the tea stall. At the tea stall the first respondent again demanded the bribe. The complainant took out the tainted notes from his chest pocket and held before the 1st accused/1st respondent. He accepted the notes and placed the same under a box of cigarettes. The complainant gave a predetermined signal to the raiding party by folding right sleeve of the shirt by left hand. The raiding party seized the tainted notes. 4. The learned counsel for the applicant has taken me through the notes of evidence and the findings recorded by the learned trial Judge. He submitted that in the evidence of the complainant, the demand and acceptance of the amount by the 1st respondent has been proved and established. He submitted that there is no explanation as to why the tainted notes turned into pink when lime solution was applied and the hand wash of the first respondent turned into pink when his hand - 4 - was dipped in lime solution. He submitted that from the evidence of the said witness it is clear that the demand of bribe was made and the amount was accepted by the first respondent who handed over the bribe amount to the second respondent. He submitted the defence of the first accused that he himself had written to the authorities for stopping the unauthorised business conducted in the stalls is totally irrelevant as the demand made by the first respondent and acceptance of bribe by the 1st respondent has been proved. He submitted that the sanction was legal and valid. 5. I have carefully considered the submissions. I have perused the notes of evidence and the impugned Judgment and Order. It will be necessary to refer to the evidence of the complainant. The relevant part of the deposition of the complainant reads thus : "....On the same day myself and said Gupta called with other stall vendor by accused no.1 in the waiting hall and said that Gupta should pay Rs.800/- and I should pay Rs.200/- to him per month. Myself and Gupta consulted with each other as to whether the amount should be paid to accused no.1. We decided that the amount is not to be paid as per the demand of the accused no.1 and we decided to approach to police." - 5 - As far as the demand is concerned, the complainant deposed as under : "....We reached in the cabin of Station Master about 12.35 noon. He was taking the lunch along with Gopichand Railway Clerk and another person. After their lunch was over we entered into the cabin, accused no.1 asked me as to whether I have brought the amount Gopichand had gone after the lunch. After the lunch is over accused no.1 came in the waiting hall and there he asked whether I have brought the amount. Phadghe was with me. I told him that arrangement of money will be done. I told accused no.1 about Phadghe that he is my friend and he has to run Banana stall. Accused no.1 said to Phadghe he will have also to pay Rs.150/-. I told him that we will come lateron." 6. As regards the trap, the complainant stated in his evidence as under : "....It took about five minutes to reach of the office of Station master. He started to go towards the office of Station Master the accused no.1 was standing in the door of his office. He asked me whether I have brought the money. I told him that the amount is less but he said that he wand full amount. In case of Banana stall of - 6 - Phadghe I requested to accused no.1 to reduce the amount but accused no.1 refused to reduce the amount. Again on my request accused no.1 said about Phadghe he should pay Rs.100/- and start his business on the next day. He asked Phadghe to go. However, Phadghe did not go. I said to accused no.1 he is my friend and he will be with me. Then myself, Phadghe and accused no.1 came to platform no.1 near tea stall of Solanki. Accused no.1 asked me as to whether I have brought the amount. I said the amount is less. Then I took the amount from the left chest pocket of my shirt by right hand and handed over to accused no.1. He took the amount, counted them. He handed over the amount to accused no.2. Accused no.2 asked the accused no.1 how much amount is. Accused no.1 said to him that he should keep that amount...." The witness stated that he along with panch witness met the accused no.1. He was standing in the door of the office. Surprisingly, according to the prosecution case, the first accused did not accept bribe amount at that place or inside the office. According to the prosecution, the accused no.1, the complainant and the panch witness all went towards a tea stall of Solanki and thereafter accused no.1 demanded the bribe amount which was allegedly paid by the complainant and accepted by the first accused. - 7 - 7. The learned trial Judge has placed reliance on the file containing correspondence which was seized at the office of the first accused. The learned Judge noted that the several documents were admitted by the defence which showed that from 1991 to 12th November 1993, the first accused had made repeated correspondence with the authorities for removal of illegal hawkers and the said correspondence showed that a request was made by the first accused for police force for taking action. The learned Trial Judge has specifically referred to the letter dated 12th November 1993 sent by the first accused at Exh.79 to the superior officer requesting for immediate transfer from Mumbra railway station as he was receiving threats. Considering the voluminous correspondence made by the first accused which was seized and produced by the prosecution, the learned Judge recorded a finding that the said conduct of the accused no.1 is not consistent with the prosecution case of the first accused demanding and accepting bribe. The learned Judge noted that it was nobody’s case that the record of the correspondence made by the 1st accused was manipulated. 8. Apart from this, the learned Judge has recorded a finding that the complainant deposed about the demand of Rs.200/- from the complainant and a sum of Rs.800/- from Mr.Gupta by the 1st accused in the waiting hall. The said demand is not found in the complaint. The learned Judge has minutely considered the - 8 - evidence of the prosecution witnesses. The learned Judge has considered the evidence of Gopichand who was a booking Clerk at Mumbra railway station. The said witness was declared hostile by the prosecution. The learned Judge noted that there was evidence on record to show that the first accused used to purchase cigarettes from the stall of the second accused. The prosecution witness admitted that the second accused used to demand money from the customers. The learned Judge has therefore considered possibility of any one keeping the amount below the cigarette box. The learned Judge also noted from the evidence of prosecution witnesses that the first accused was shy of accepting money from unknown person i.e. the Panch witness. The learned Judge held that it is very difficult to accept that he did not accept the money at the door of his office, but accepted it at the tea stall on the platform where there was presence of large number of commuters and other persons. The learned Judge observed that if the first accused really intended to accept bribe and had over the amount to the second accused, he would have instructed the complainant to pay the amount to the second accused. The learned Judge noted that the complainant admitted that the fact of purchasing cigaretts from the stall of the second accused and therefore possibility of the complainant giving trapped notes towards balance amount for cigarettes cannot be ruled out. It is in the context of the aforesaid material on record, the learned Judge has noted that - 9 - the marks of phenolphthalein on the hands of the accused would not suggest acceptance of bribe and that could not be sufficient to draw inference against the accused. 9. The learned Judge has recorded a finding that the voluminous correspondence made by the 1st accused with superiors regarding removal illegal hawkers and his request regarding providing police force was not placed before the sanctioning authority. 10. Considering the entire evidence on record, I find that the view taken by the learned trial Judge that the guilt is not established is a possible view which could have been taken on the basis of evidence on record. At highest what can be stated is that it is possible to take another view of the matter on the basis of the same evidence on record. It is no ground for interference. Presumption of innocence is further strengthened by the order of acquittal. If there are two views, the one is in favour of the accused has to be accepted. It is well settled that an inference can be made against the order of acquittal only for compelling reasons. 11. Therefore, no case is made out for grant of leave. Application is rejected. - 10 - JUDGE JUDGE JUDGE