1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.525 OF 2004 1 Eknath s/o Baliram Chavan, age: 31 years, Occ: P.C.B.No.1124, City Traffic Branch, Aurangabad. 2 Gangadhar Pandharinath Jouk, 28, Occ: Pan Stall Owner, R/o Ambedkar Chowk, CIDCO, Aurangabad. Appellants Versus State of Maharashtra Respondent Mr.R.S.Deshmukh, advocate for appellants. Mr.V.H.Dighe, A.P.P. for Respondent-State. CORAM: R.M.BORDE, J. DATE : 8 th July, 2009. JUDGMENT: 1 Appellants are convicted by the Special Judge, Aurangabad in Special Case No.21/2001, by judgment and order dated 06.08.2004. So far as appellant no.1- Eknath s/o Baliram Chavan is concerned, he is held guilty for commission of offence punishable under Section 7 of Prevention of Corruption Act, 1988 and is sentenced to suffer rigorous imprisonment for the period of six months and to pay fine of Rs. 250/-, in default, to suffer simple imprisonment for fifteen days. Appellant no.1 is further held guilty for offence punishable under Section 13(1)(d) 2 and 13(2) of the Prevention of Corruption Act, 1988 and is sentenced to suffer rigorous imprisonment for the period of one year and to pay fine of Rs.250/-, in default, to suffer simple imprisonment for fifteen days. Appellant no.2 Gangadhar s/o Pandharinath Jouk is held guilty for commission of offence punishable under Section 12 of the Prevention of Corruption Act, 1988 and is sentenced to suffer rigorous imprisonment for the period of six months and to pay fine of Rs.250/-, in default, to suffer simple imprisonment for fifteen days. The substantive sentence of imprisonment imposed against accused is directed to run concurrently. 2 Accused no.1 was serving as police constable in traffic branch, whereas accused no.2 used to run a pan stall at Dr.Ambedkar Square, Aurangabad. Complainant Naimkhan Pathan is resident of Devas, Madhya Pradesh. He lodged information with Anti Corruption Bureau, Aurangabad, on 10 th May 2001, contending therein that since last three years, he is operating the truck and used to carry goods to various destinations including Aurangabad. It is contended that at relevant time, he was carrying 12 buffaloes in the truck and he had proceeded from Devas on 09.05.2001 at about 4.00 p.m. and was heading towards Brook Bond Company, Chitegaon, Aurangabad. On 10.05.2001, at about 12 O’ clock, while his truck reached Jalgaon `T’ point in front of State Bank of Hyderabad Branch, one traffic constable followed his truck and asked him to stop the vehicle. The traffic constable was riding on Hero Honda motorcycle. The truck driver i.e. complainant was directed to alight from the truck. The traffic constable thereafter collected documents pertaining to the vehicle as well as driving license of the complainant. He was informed by the traffic constable that as he is carrying so many 3 buffaloes in the truck, he would be charged Rs.1000/-, or else, truck driver/complainant would be prosecuted. Complainant requested the traffic constable to accept Rs.500/- and further informed that he is not having Rs.1000/- with him. He was informed by the traffic constable that he (complainant) should pay him Rs.500/- and thereafter shall collect documents and license from him. It is further contended that the traffic constable prepared a receipt and obtained signature of the complainant thereon, however, he did not issue receipt to the complainant/driver. The traffic constable had put on name plate on his shirt wherein his name was written as `Chavan’ and his buckle number was written as `1124’. Traffic Constable Chavan informed the complainant that he would be on duty at Dr.Ambedkar square until 7 O’ clock in the evening and he i.e. complainant shall pay him Rs.500/- and thereafter shall collect the papers. Thereafter complainant proceeded towards Anti Corruption Bureau office and lodged complaint with the Anti Corruption Bureau. The complaint was recorded by Deputy Superintendent of Anti Corruption Bureau, Aurangabad on 10.05.2001. 3 After receipt of the complaint, Mr.Idhate, Deputy Superintendent of ACB requisitioned two public servants from the office of Municipal Corporation, Aurangabad, to function as panchas for the proposed trap. Their names are Kazi Salimoddin – P.W.3 and Yadav Dhanaji Pagare. Complainant Naimkhan Pathan produced an amount of Rs.550/-, a receipt and handkerchief. Mr.Idhate, Deputy Superintendent of ACB, retained five currency notes of Rs.100/- as trap amount and returned Rs.50/- and other articles i.e. receipt and handkerchief to the complainant. Assistant Sub Inspector Chinchole 4 demonstrated effect of anthracine powder to the pancha witnesses as well as complainant. Complainant and members of raiding party were informed about further course of action in respect of laying of the trap. The squad headed by Mr.Idhate proceeded by a jeep towards Dr.Ambedkar square. Complainant Naimkhan Pathan and pancha Kazi got down from the vehicle and proceeded towards square. On reaching Dr.Ambedkar square, they found traffic constable in uniform standing near ice cream handcart. All of them went to him. They had ice-cream with him. Complainant Pathan thereafter alleged to have demanded his documents pertaining to the truck to traffic constable Chavan, who asked Naimkhan as to whether he brought money. Naimkhan Pathan informed him that he has brought the amount. He was instructed by Chavan to give the amount to pan stall owner. Naimkhan Pathan and pancha Kazi went to pant stall. Thereafter amount was handed over to pan stall owner, who counted the notes and put same in his shirt pocket. Naimkhan Pathan then transmitted agreed signal and thereupon Mr.Idhate and other members of raiding party rushed to the spot. The pan stall owner was apprehended and tainted notes were collected from him. Thereafter members of raiding party went to traffic constable Chavan and he was also apprehended. It is further case of the prosecution that papers pertaining to truck and receipt book was collected from the dickey of Hero Honda motor cycle. The pan stall owner Gangadhar as well as traffic constable Chavan were brought to the office of Anti Corruption Bureau, whereupon palms of members of the raiding party and accused no.2 Gangadhar were examined under ultra violet rays. So far as raiding party members are concerned, anthracine powder was not found on their palms, whereas anthracine powder was found on the 5 palms of pan stall owner Gangadhar. ACB officials thereafter prepared post trap panchanama and accused were arrested. Mr.Idhate, then lodged report at Cidco Police Station, in pursuant to which, crime no. 3024/2001 came to be registered. He thereafter undertook investigation in the matter and after completing investigation, papers were transmitted to Mr.Ganorkar, Deputy Commissioner of Police (Head Quarters), Aurangabad. He studied the papers, applied his mind and accorded sanction on 03.09.2001 in respect of prosecution of the accused. On receiving sanction to prosecute, Mr.Idhate presented charge sheet before the Special Court on 19.10.2001. 4 Charge was framed against accused, to which, they pleaded not guilty and claimed to be tried. Defence of the accused is of denial. Accused no.1 contended that on 10.05.2001, at about 9 O’ clock in the morning, he reported on duty. At about 12.40 p.m., he found a truck passing through the road. The traffic constable i.e. accused no.1 asked the driver of the truck to stop, however, truck driver did not listen to the command and proceeded further. The traffic constable thereafter followed the truck on his Hero Honda bike and compelled the truck driver to stop. The truck driver was not possessing relevant papers. Therefore, he issued a receipt and truck driver was directed to deposit the fine amount at traffic branch. After completing his morning duty, in the afternoon, he had been to his residence. He reported on duty at about 5 O’ clock at Dr.Ambedkar square and before he reached there, the truck driver was already present. The truck driver requested him to settle the matter, however, he informed that it is not within his jurisdiction and he (truck driver) should deposit the fine at traffic branch. Thereafter the truck driver 6 proceeded towards pan stall and waited there. Accused no.1 does not know as to what had happened at Pan Stall and thereafter he was apprehended by the officials of ACB and he was taken to ACB office. Accused no.2 also denied the charge and contended that on relevant day, while he was at his pan stall, two unknown persons came there and asked for tobacco sachet. They tendered an amount of Rs.500/-. Accused no.2 was trying to inform them that the amount is much higher, however, they immediately went away and thereafter officials of ACB apprehended him. The officials of ACB took away amount of Rs.500/-, which was paid by two unknown persons. He (accused no.2) was neither directed to accept the money nor he has accepted the money for traffic constable Chavan. 5 In order to bring home guilt against accused, prosecution examined four witnesses. After recording evidence of prosecution witnesses and statements of accused, learned Judge of the Special Court, found accused guilty of commission of offence and directed imposition of sentence, as noted above. 6 I have heard arguments advanced by Shri R.S.Deshmukh, learned Counsel appearing for appellants and Shri V.H.Dighe, learned Assistant Public Prosecutor for Respondent-State. I have also scanned the evidence with the assistance of learned Counsel appearing for respective parties. 7 P.W.2 is informant Naimkhan Pathan, who has stated that on 09.05.2001, he proceeded from Devas, Madhya Pradesh and was carrying 7 12 buffaloes in the truck and was heading towards Brook Bond Company, Chitegaon, Aurangbad. On 10.05.2001 at about 12.00 noon, while he was passing from Jalgaon `T’ point, one traffic constable in uniform followed him and issued a signal for stopping the truck. The traffic constable was riding on a motorcycle. Accordingly, truck driver stopped the truck behind Dr.Ambedkar square. The traffic constable demanded relevant papers and driving license. Complainant accordingly took out the papers and driving license and handed over to the traffic constable. The traffic constable thereafter told him that he would prepare a challan of Rs.1100/- as he had ignored the signal. The traffic constable again demanded Rs.1100/-, however, complainant informed him that he does not possess that much amount. The truck driver insisted him to accept Rs. 500/- and to return back the license and documents. The traffic constable thereafter prepared a receipt and obtained signature of the truck driver. The traffic constable thereafter left with the documents without tendering receipt to him. The truck driver- P.W.2 could find the name “Chavan” imprinted on the name plate, which was put on by the traffic constable on his uniform. The informant was asked to come at Dr.Ambedkar square till 7.00 p.m. with an amount of Rs.500/- and secure documents and driving license back. The informant thereafter proceeded to Anti Corruption Bureau office and lodged information with Deputy Superintendent of ACB Mr.Idhate. Deputy Superintendent of ACB Mr.Idhate requisitioned two public servants. They were Mr.Kazi and Mr.Yadav Pagare. An amount of Rs.550/-, an acknowledgment and handkerchief were tendered by complainant P.W.2 to Mr.Idhate. Mr.Idhate retained an amount of Rs.500/- as trap amount and returned back Rs.50/-, receipt and handkerchief. Assistant Sub Inspector then 8 shown demonstration of use and effect of anthracine powder. The procedure in respect of laying trap was explained to the pancha witnesses and complainant. The raiding party thereafter proceeded towards Dr.Ambedkar square and reached there at about 5 O’ clock. It is further stated by P.W.2 complainant that the jeep, in which, they were proceeding, was stopped near the bank. Pancha Kazi and complainant went towards Dr.Ambedkar square. Mr.Idhate and other members of raiding squad followed them. Complainant P.W.2 saw traffic constable Chavan standing near Ice-cream handcart at Dr.Ambedkar square. He was wearing his uniform. P.W.2 thereafter demanded the documents and driving license, however, he was told by traffic constable that he had prepared challan of Rs.1100/-. He was also further asked as to whether he had brought the amount. The traffic constable insisted to pay Rs.600/-, however, he was informed that complainant is having only Rs.500/-. Thereafter he was told to pay Rs.500/- to pan stall owner, while pointing towards pan stall owner. The complainant thereafter went towards pan stall. Traffic constable Chavan issued signal to the pan stall owner to accept the money. Thereafter amount was handed over to accused no. 2, who collected the notes, counted same and put in his shirt pocket. P.W.2 went ahead, took out scarf and transmitted signal. Mr.Idhate and other members of raiding party came there. Mr.Idhate was standing by the side of pan stall owner. He caught hold of pan stall owner and other members of raiding party caught hold of traffic constable. Their hands were examined in blue torch light. The pan stall owner was having possession of tainted notes, which were taken out and attached. He was subjected to same test. Both the accused were thereafter brought to ACB office. Relevant papers of truck and driving license were found in 9 the dickey of motor cycle of accused no.1-Chavan. Mr.Idhate attached the papers, prepared xerox copies of said papers and returned the documents and driving license to P.W.2. 8 In cross examination, P.W.2 has stated that traffic constable Chavan had already prepared a receipt of Rs.1100/- and had told P.W.2 that he will have to pay fine of Rs.1100/-. P.W.2 was told to deposit the amount of fine at traffic head quarter. One rickshaw driver told him address of Anti Corruption Bureau and thereafter he proceeded to Anti Corruption Bureau office. He has admitted that he was annoyed by the act of traffic constable issuing him challan. It was suggested to the witness that traffic constable Chavan never demanded Rs.500/- nor told him to give amount to pan stall owner. The witness thereafter informed Mr.Idhate that accused Chavan is not accepting the amount. Thereafter Mr.Idhate told him to give tainted notes to pan stall owner. 9 On perusal of deposition of P.W.2 – complainant, it is to be appreciated that accused no.1, who was traffic constable, had already prepared receipt of Rs.1100/- and had directed P.W.2 to deposit fine amount with the traffic branch. Had there been any intention on the part of traffic constable (accused no.1) to hush up the matter, there was no reason for him to prepare receipt of Rs.1100/- and direct the complainant to deposit the fine amount. If the complainant was required to deposit the fine amount, there was no necessity for tendering bribe amount to the traffic constable or acceptance of amount by him. 10 The deposition of complainant needs to be scrutinised in the 10 light of deposition of P.W.3 Kazi, who acted as pancha witness and who was accompanying complainant P.W.2. P.W.3 has stated in his examination-in-chief that they proceeded along with members of raiding party in a jeep towards Dr.Ambedkar square on the relevant day. They had ice-cream with traffic constable who was in uniform and standing near the Ice-cream handcart. On the request made by driver Pathan for return of documents, it is stated by P.W.3, that traffic constable Chavan told him that he has prepared a receipt and he can do nothing in the matter. It was also informed by the traffic constable that it is within the powers of his superiors and the matter does not rest in his hands. Driver Pathan (P.W.2) thereafter requested him to settle down the matter there only and thereafter it is stated that the traffic constable told him to give Rs.600/-. Driver Pathan told him to take Rs.500/- only. The amount was paid to the pan stall owner. So far as tendering the amount to pan stall owner is concerned, it is stated by pancha witness P.W.3 that driver Pathan purchased one tobacco sachet and tendered an amount of Rs. 500/- to the pan stall owner, who counted the amount and kept in his pocket. He then transmitted signal, whereupon, Mr.Idhate and other members of raiding party came there. The witness has stated that during personal search of constable Chavan, a telephone diary, identity card, amount of Rs.620/- and a receipt book were found. Mr.Idhate retained the receipt book for evidence purpose. During cross examination, it is stated by this witness that the pan stall is about 200 feet away from Dr.Ambedkar square and traffic constable Chavan was about 200 feet away from the pan stall. There were few customers at the pan stall and owner was busy in attending them. Mr.Idhate and other members of raiding squad were standing around the pan stall. Driver Pathan first met 11 Mr.Idhate and then went to pan stall owner. Thereafter driver Pathan purchased one sachet and handed over Rs.500/- to pan stall owner. He then came to P.W.3 at once and thereafter issued signal. Driver Pathan requested the traffic constable to cancel the receipt. The traffic constable told that it is not within his powers. The witness has admitted that he is directed to depose as per panchanama. 11 On scrutinising the testimony of pancha witness, it shows that traffic constable Chvan (accused no.1) was reluctant to accept the amount. He had told driver (P.W.2) that he has already prepared the receipt and he can do nothing in the matter and has further told that it is within the powers of his superiors. Thus, it is clear that traffic constable had already prepared a receipt in respect of Rs.1100/- and asked the truck driver to deposit the amount with traffic branch. However, as the truck driver was agitated because of issuance of receipt, he decided to catch hold of the traffic constable. It is also to be taken note of that P.W.3 pancha witness has stated in his deposition that driver Pathan first met Mr.Idhate and then went to pan stall owner. It has been suggested to P.W.2 driver that on finding that traffic constable is reluctant to accept the amount, Mr.Idhate instructed P.W.2 driver Pathan to hand over the amount to the pan stall owner. It is to be noted that in order to verify this defence version, Deputy Superintendent of ACB Mr.Idhate could not be brought before the Court. It has been informed that Deputy Superintendent of ACB had died during the intervening period. The defence, as suggested by the accused, therefore, could not be tested, as Deputy Superintendent of ACB Mr.Idhate could not be examined during trial. It is also to be taken note of that P.W.3 was directed to depose in 12 consonance with the panchanama and he appears to have done so. 12 Apart from this aspect, if we peruse the testimony of P.W.2 as well as complaint lodged by him with ACB office, it makes a mention that after collecting papers in respect of truck and driving license from the complainant, accused no.1 is alleged to have prepared a receipt. It is stated by P.W.2 categorically that he was not issued the receipt by traffic constable Chavan. However, there is mention in respect of issuance of receipt in his deposition. P.W.2 has also stated that he had paid an amount of Rs.550/-, a receipt and handkerchief to Deputy Superintendent of ACB, Mr.Idhate. On perusal of receipt book, which is stated to have been attached from the dickey of motorcycle belonging to accused no. 1, it is found that copy of receipt, which is required to be handed over to complainant does not find place. One copy, which is required to be transmitted to head office and another copy, to be retained as a part of receipt book, are only found. Thus, the story put up by the complainant in respect of securing signature of complainant P.W.2 on the receipt book and refusal to hand over copy of receipt to him, appears to be false. In fact, P.W.2 complainant as well as P.W.3 pancha witness, in terms, admit that accused no.1 traffic constable Chavan informed complainant driver Pathan that he has prepared a receipt and he (complainant) has to deposit the amount with traffic branch and he can do nothing in the matter. In the background of these facts, version in respect of demand of amount and acceptance of amount by accused no.1 through accused no.2, does not appear to be probable. The whole story put up by the prosecution appears to be doubtful. It appears that defence raised by the accused that the complainant was agitated because of issuance of 13 receipt and attachment of papers from him and, therefore, he proceeded to lodge complaint against accused, appears to be probable. It is also to be taken note of that so far as tendering of amount to accused no.2 and acceptance of amount by him towards bribe money for accused no.1, also does not appear to be probable. It is admitted by P.W.3 in the cross examination that driver Pathan first met Mr.Idhate and then went to pan stall owner. He purchased one tobacco sachet and paid Rs.500/- to the pan stall owner and then came at once to the witness i.e. P.W.3 and gave a signal. In the light of this version put up by P.W.3, defence raised by accused no.2 needs consideration. Accused no.2 has stated in his defence statement that two unknown persons had visited his pan stall and purchased a sachet and paid an amount of Rs.500/- and before he could tell them that the amount is more, they went away at once. The defence put up by accused no.1 gets support from the version stated by P.W.3 in his deposition before the Court. It does appear that immediately after tendering amount to the pan stall owner, before he could say anything, he was apprehended and the members of raiding party proceeded to conduct further formalities. Thus, considering the prosecution story as well as defence version, it cannot be said with certainty that prosecution has established its case beyond doubt. 13 It is also to be noted that role of Deputy Superintendent of ACB in conducting the trap is of vital importance. In the absence of testimony of Deputy Superintendent of ACB Mr.Idhate, defence is handicapped in bringing before the Court certain material aspects. It is the defence of accused that the amount is tendered to the pan stall 14 owner on instructions of Idhate. It also does appear from the line of cross examination that Mr.Idhate had played a vital role in the trap. He was standing just near the pan stall. The traffic constable, who is accused no. 1, must be definitely knowing Deputy Superintendent of ACB Mr.Idhate. It is stated by P.W.2 that members of the raiding party came together up to Dr.Ambedkar square. Having witnessed police officials, including Mr.Idhate, one cannot digest that traffic constable Chavan, accused no. 1 herein, could either make demand or direct complainant P.W.2 to pay amount to pan stall owner. Apart from this, it has come in the evidence that Deputy Superintendent of ACB Mr.Idhate was standing just near the pan stall. The depositions of P.W.2 and P.W.3 that after handing over money to pan stall owner and after giving signal to raiding party, Mr.Idhate came there, also does not appear to be probable. If Mr.Idhate was standing just near the pan stall, as stated by P.W.3, he must have witnessed handing over of the money to accused no.2 pan stall owner. All these facts were required to be put to Deputy Superintendent of ACB Mr.Idhate and in his absence, defence is handicapped in establishing the defence version. The totality of the facts and circumstances render it unsafe to place reliance on the prosecution version and hold accused guilty. The failure in examination of Deputy Superintendent of ACB Mr.Idhate, may be for whatever cause, leads to leaving certain strings in the prosecution version loose. The benefit of such situation will surely extend to the accused. 14 It has also been urged by accused that the sanction accorded for prosecution by P.W.1 Sanjiv Ganorkar, Deputy Commissioner of Police, Aurangabad, is without application of mind and is vitiated on 15 account of failure of the prosecution to place all the papers before the sanctioning authority. Mr.Sanjiv Ganorkar, the sanctioning authority, is examined as P.W.1 in the matter. He has stated in his deposition that the papers of investigation were