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2022 DIGILAW 179 (BOM)

State Of Maharashtra v. Dhanpal Dadu Kamble

2022-01-18

PRAKASH D.NAIK

body2022
JUDGMENT P.D. Naik, J. - This is an appeal preferred by the State of Maharashtra challenging the judgment and order dated 30th April, 2013, passed by Special Judge, Ichalkaranji, District-Kolhapur, in Special Case No. 2 of 2006. The respondent was acquitted of the offence under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 ('PC Act', for short). 2. The case of the prosecution is as follows: (a) The complainant was conducting business of selling Tobacco and Gutkha in village Mankapur, Taluka Chikodi, District-Belgaum. On 13th May, 2005, one Amit Jawahar Shah, resident of Ichalkaranji purchased Gutkha worth Rs. 9,000/- from the complainant in Mankapur and was carrying the same to Sangli for sale. He was caught while in possession of Gutkha by Sangli Octroi Naka. Thereafter Amit Shah called the complainant disclosing the said fact and asked him to come at Octroi Naka, Sangli to settle the matter. The complainant told him that there is ban in State of Maharashtra on Gutka, and, he has purchased it at Mankapur, Karnataka State. He is not responsible for action against him. (b) On 14th May, 2005, Shah gave call to the complainant and threatened him that he would send Gundas. On 14th May, 2005 the complainant received a call from Assistant Sub Inspector, Gaonbhag Police Station, Mr. Dhanpal Kamble (accused), who told him to compensate Shah and threatened him of consequences if he fail to do so. (c) The complainant visited Gaonbhag police station on 14th May, 2005 at 10:00 p.m. to lodge complaint against Mr. Shah. The accused was available at police station. The complainant disclosed the threats received by him. The accused told him not to lodge complaint as he knows Mr. Shah and he would convince him. The complainant returned home. (d) On 15th May, 2005, the accused again telephoned complainant on his cell phone and told him that he has settled the matter and demanded an amount of Rs. 10,000/-, from complainant. He avoided to make payment by giving excuse that he is going out of station for two days and after returning, he would meet him. (e) On 18th May, 2005 at about 07:00 p.m., the accused gave call to complainant and again demanded the amount of Rs. 10,000/-. The complainant disconnected the call. 10,000/-, from complainant. He avoided to make payment by giving excuse that he is going out of station for two days and after returning, he would meet him. (e) On 18th May, 2005 at about 07:00 p.m., the accused gave call to complainant and again demanded the amount of Rs. 10,000/-. The complainant disconnected the call. On 20th May, 2005, at about 08:30 to 09:00 a.m., the accused met complainant and told him that inspite of work being done by him, the complainant has not paid the demanded amount. After negotiation the amount was reduced to Rs. 2,000/-. The complainant decided to pay the said amount on the next day. The complainant was not interested in making such payment by way of bribe to the accused and, hence, he approached the office of Anti Corruption Bureau, Kolhapur. (e) The complainant narrated his grievance to the ACB Officer, which was reduced into writing, as per his say. (f) The ACB officer then summoned persons to act as panch witnesses. The panch witnesses than visited ACB Office. They were introduced to complainant. The facts were narrated by complainant to them. Complaint was shown to the panch witness. Thereafter, the characteristics and features of anthracene powder and ultraviolet lamp were explained to the complainant and the pancha witnesses. The currency notes were produced by the complainant in the denomination of Rs. 500/- and Rs. 100/-. The amount of Rs. 2,000/-, was arranged by the complainant for the purpose of trap. The numbers of currency notes were recorded in the panchanama. Anthracene powder was applied to the currency notes. (g) Necessary instructions were given to the complainant, pancha no. 1 Balkrushna Kundale and panch no. 2 Shailesh Wagh as well as the staff of ACB. Complainant was instructed to stay in the house with panch no. 1, and, on arrival of the accused, make conversation with him on the subject, and, hand over the currency notes by removing it from his pocket. In the event, the accused accepts the money, he should give signal to the raiding party. P.W.1 panch witness Balkrikshna was instructed to stay with the complainant and keep watch on the movements of complainant and accused. Panchas were examined in the light of ultraviolet light. The complainant, PI Sanjay Nikam, panch witnesses and the ACB staff decided to proceed towards the house of the complainant at Ichalkaranji. Pre-trap panchanama was recorded. P.W.1 panch witness Balkrikshna was instructed to stay with the complainant and keep watch on the movements of complainant and accused. Panchas were examined in the light of ultraviolet light. The complainant, PI Sanjay Nikam, panch witnesses and the ACB staff decided to proceed towards the house of the complainant at Ichalkaranji. Pre-trap panchanama was recorded. (h) The raiding party than proceeded to the house of complainant. As per instructions, complainant and panch no. 1 went to the house of complainant and panch no. 2 waited with the ACB Staff near the vicinity of house of the complainant. (i) The complainant and panch no. 1 came out of the house of the complainant. The complainant informed that he had a conversation with the accused on his cell phone and he has been told to meet near Narayan talkies. The complainant, pancha and the raiding staff proceeded towards Narayan talkies, Ichalkaranji. (j) As per the instructions, complainant and panch no. 1 proceeded towards Narayan talkies. The other members of raiding party stood nearby. Within short time, the accused came at the spot in uniform. Pancha no. 1 and the complainant approached him. They had a conversation with him. Complainant took out currency notes by his right hand and handed over to the accused. The complainant than give signal to the raiding party, and, thereafter all of them rushed to the spot and apprehended accused. The accused had thrown the currency notes on the road. The raiding staff caught the hands of the accused. The currency notes were recovered from the spot. The traces of anthracene powder were noted on the currency notes as well as the hands of the complainant and accused. Panchanama was prepared. Accused was arrested. Charge - sheet was fled. 3. Charge was framed for the offences under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act, vide order dated 25th August, 2011. 4. The prosecution has examined five witnesses. P.W.1 Raju Pachpure is the complainant, P.W.2 Balkrishna Kundale is the panch witness, P.W.3 Sukhawinder Singh Arjansingh is the sanctioning authority, P.W.4 Sanjay Nikam is the investigating officer and P.W.5 is Ravindra Dinkar Joshi. The evidence of the witnesses were recorded. Documents were executed in evidence. 4. The prosecution has examined five witnesses. P.W.1 Raju Pachpure is the complainant, P.W.2 Balkrishna Kundale is the panch witness, P.W.3 Sukhawinder Singh Arjansingh is the sanctioning authority, P.W.4 Sanjay Nikam is the investigating officer and P.W.5 is Ravindra Dinkar Joshi. The evidence of the witnesses were recorded. Documents were executed in evidence. Statement of the accused was recorded under Section 313 of Cr.P.C. After hearing both the sides, trial Court had come to the conclusion that prosecution has failed to prove the charges against the accused. The accused was acquitted of both the charges. 5. On perusal of the impugned judgment of acquittal, it can be seen that the trial Court has appreciated the evidence. The trial Court has assigned reasons while acquitting the accused. 6. Learned APP has submitted that the judgment of the trial Court is contrary to evidence on record. The prosecution has established the demand as well as acceptance of bribe amount. The evidence of complainant and the panch witnesses corroborates each other. There was no reason to disbelieve the prosecution witnesses. The presumption under Section 20 of the PC Act was not rebutted by the accused. The findings of the trial Court are contrary to evidence on record. The judgment is perverse. The prosecution has establish its case beyond reasonable doubt. The judgment of the trial Court is against the settled principles of law. The trial Court has failed to appreciate that the evidence on record was sufficient to hold the accused guilty of both the charges. The accused had demanded bribe of Rs. 10,000/-. It was reduced to Rs. 2,000/-. The amount was accepted by the accused. It was recovered from the spot of incident. Anthracene powder was found on the currency notes and the hands of the accused and complainant. Thus, the reasoning of the trial Court is contrary to record. The pre trap panchanama, trap panchanama, complaint and the documents on record had supported the case of the prosecution. The currency notes seized from the place of incident was the same which was referred to in the panchanama. Thus, the order of acquittal has resulted in miscarriage of justice. 7. Learned counsel for the respondent submitted that the appellant has not made out case for interfering in the judgment of acquittal. There is no reason to set aside the impugned judgment. Thus, the order of acquittal has resulted in miscarriage of justice. 7. Learned counsel for the respondent submitted that the appellant has not made out case for interfering in the judgment of acquittal. There is no reason to set aside the impugned judgment. The trial Court has assigned cogent reasons for giving finding of acquittal. The basic requirement to constitute the alleged offences were not established. The demand is sine qua non to prove the offence. The demand has not been proved. The complainant was habitually filing complaints. The call details which were produced during the trial were not reliable to convict the accused. The trial Court has observed that the complainant's version is doubtful. He has not produced any evidence to establish that Amit Shah had purchased Gutkha from him, he was apprehended by the Octroi inspector, Complaint was filed against him and that he had threatened the complainant. The basic cause for approaching the police and for which the alleged demand of bribe was made by the accused has not been established. The trial Court has analysed the evidence of witnesses in detail and has come to the conclusion that the prosecution has not been able to prove the charges against the accused. Considering the reasons assigned by the trial Court for passing order of acquittal, the case for interfering in the said judgment is not made out. The judgment of acquittal can be interfered only in exceptional circumstances, as laid down in several decisions of Apex Court and this Court. The respondent is a senior citizen aged about 74 years. The judgment of the trial Court does not warrant any interference. 8. I have perused the findings of the trial Court. It is apparent that the trial Court has scanned the evidence and assigned cogent reasons for disbelieving the prosecution case and acquitting the accused. I do not find any reason to deviate from the view taken by the trial Court while passing the impugned judgment. 9. From the evidence of the complainant, it appears that he was conducting business of sale of Tobacco and Gutka in village Mankapur, District Belgaon. On 13th May, 2005, one Shah had purchased Gutkha worth Rs. 9,000/- from him. On 14th May, 2005, Shah was caught by Octroi officer at Sangli. He was found in possession of Gutkha. 9. From the evidence of the complainant, it appears that he was conducting business of sale of Tobacco and Gutka in village Mankapur, District Belgaon. On 13th May, 2005, one Shah had purchased Gutkha worth Rs. 9,000/- from him. On 14th May, 2005, Shah was caught by Octroi officer at Sangli. He was found in possession of Gutkha. Hence, Shah called him on his cell phone and told him to visit Sangli to help him. The complainant told him that Gutkha was sold by him in State of Karnataka. There is ban on sale of Gutkha in State of Maharashtra. Hence, he is not concerned with the said case. It was further stated by the complainant that Mr. Shah had threatened him of dire consequences. The complainant then received a call from the accused on 15th May, 2005, and, he was told that he has settled the matter and demanded Rs. 10,000/-, from the complainant. The amount was subsequently negotiated and it was agreed that the complainant shall pay an amount of Rs. 2,000/-. Complaint was lodged by him. P.W.2 is the panch witness. P.W.4 is the investigating officer. On analysing the evidence of these witnesses, the trial Court in paragraph 29 of the impugned judgment has observed that the prosecution has not examined any police officer to establish the fact that the accused was present at 10:00 p.m. on 14th May, 2005, and, at that time the complainant visited Gaonbhag police station to lodge complainant against Mr. Shah, and, that he had advised him to not to lodge complaint. It was further observed that the complainant has admitted in the cross-examination that he is residing within the jurisdiction of Shivajinagar police station, Ichalkaranji. Even it is presumed that complainant received phone of the accused about threats, the complainant ought to have lodge the complaint with Shivajinagar police station, Ichalkarnaji. P.w.1 has admitted in the cross-examination that he did not make any complaint to the superior officer against the accused in respect of demand of bribe. He did not disclosed the demand of bribe made by the accused to anybody. According to P.W.1, he sold Gutkha worth Rs. 9,000/-, to Mr. Shah who was caught with Gutkha by Octroi naka at Sangli. He was threatened by Mr. Shah for not helping him. However, the investigating officer had not applied his mind to the version of the complainant. According to P.W.1, he sold Gutkha worth Rs. 9,000/-, to Mr. Shah who was caught with Gutkha by Octroi naka at Sangli. He was threatened by Mr. Shah for not helping him. However, the investigating officer had not applied his mind to the version of the complainant. No investigation was done by the Investigating officer with regards to the fact that Mr. Shah was fond in possession of Gutkha after it was purchased from the complainant. The IO could have collected the document about seizure of Gutkha from the custody of Mr. Shah at Jakat Naka. The prosecution did not examine Mr. Shah to prove the fact for purchase of Gutkha from complainant or any other officer of Octroi Naka, Sangli for seizure of Gutka from custody of Mr. Shah. The trial Court therefore observed that it is difficult to accept the testimony of P.W.1 that he sold Gutka of Rs. 9,000/- to Mr. Shah on 13th May, 2005, and, that Mr. Shah was caught with Gutkha which gave rise to issuing threats to the complainant by Mr. Shah and the accused. 10. The prosecution had relied upon the call detail report in respect to the mobile phone of the complainant for the period 14th May, 2005 to 20th May, 2005. The call detail report is the computer print out issued by the service provider Airtel, Kolhapur. The trial Court had observed that the provisions of Section 65(b) of the Evidence Act about admissibility of electronic record were applicable. As per Section 65(4), the certificate about identifying the electronic record produced by the computer etc., purported to be signed by a person occupying responsible official position in relation to the operation of the relevant devise or the management must be given. It was further observed the CDR Exhibit-73 was not issued by Nodal Officer of Airtel company. 11. The prosecution examined P.W.5. he is Sub Divisional Engineer of BSNL Ichalkaranji Division. He stated that at Gaonbhag Police Station, Ichalkarnaji, there is land line phone from 1995 provided by BSNL Company. Adjacent to the police station there is private coin box phone. Due to change of software, call details of the said phones were not available with BSNL company. He did not obtain the CDR landline of Gaonbhag police station and the coin box. Adjacent to the police station there is private coin box phone. Due to change of software, call details of the said phones were not available with BSNL company. He did not obtain the CDR landline of Gaonbhag police station and the coin box. He did not obtain the phone register of Gaonbhag police station to establish that from 14th May, 2005 to 25 May, 2005, phone calls were made from landline phone of Gaonbhag police station on the cell phone of complainant. The trial Court has observed that it is difficult to understand as to why the investigating officer has not collected the aforesaid material documents to establish the link between the cellphone of Raju and the landline phone of Gaonbhag police station. The trial Court, therefore, held that the CDR Exhibit-73, is of no use to the prosecution. In paragraph 43 of the impugned judgment, it is observed that evidence of P.W.1, P.W.2 and P.W.4 indicate that on 20th May, 2005, at about 04:15 p.m., they came to the house of complainant and led trap. At 07:00 p.m., the complainant received phone on his cell phone from Gaonbhag police station. Accused told him to come with money near Narayan talkies. The raiding party visited the spot. From their evidence, it appears that the accused came in police uniform near Narayan talkies. He had a talk with the complainant and demanded money, which was given by the complainant to the accused. The accused accepted the amount and on realizing that the raiding party had apprehended him, the currency notes were thrown on the ground. From the evidence of P.W.1, P.W.2 and P.W.4, it appears that P.I. Sanjay Nikam told P.W.2 to collect the currency notes thrown on the ground which he did so and the accused was taken in custody. The hands of the accused were examined. The currency notes were examined. In the complaint it is not mentioned that accused had agreed to go to the house of complainant for accepting bribe amount. P.W.2 and P.W.4 deposed that the complainant had not stated that accused was coming to his house and the same is not reflected in the complaint. If such fact was not disclosed by the complainant, than the question arises as to why the complainant and PI Sanjay Nikam decided to led trap at the house of the complainant. 12. P.W.2 and P.W.4 deposed that the complainant had not stated that accused was coming to his house and the same is not reflected in the complaint. If such fact was not disclosed by the complainant, than the question arises as to why the complainant and PI Sanjay Nikam decided to led trap at the house of the complainant. 12. P.W.1 and P.W.2 stated that at about 7:00 p.m., they were going towards the jeep and at that time, the complainant received phone call from the accused on his cell phone and accused told him to come near Narayan talkies. The evidence of P.W.2 is contrary to P.W.2. P.W.2 stated that complainant received phone of accused when they were in the house of complainant. The testimony of P.W.1 and P.W.2 about receipt of phone of accused for proceeding to Narayan talkies is contrary to each other. P.W.2 stated that after taking currency notes from complainant, the accused walked at the distance of 50 feet. After getting signal from the complainant, the raiding party came there and caught hold of accused. At that time, the accused threw notes on the road. P.W.1, P.W.2 and P.W.4 admitted that the road in front of Narayan talkies is busy traffic road. There are tea stalls, pan shops near Narayan talkies. Prosecution has not examined any person from the shops. It is difficult to accept that after getting currency notes, the accused walked at the distance of 50 feet with currency notes in his hand. P.W.2 has admitted that he read the panchanama and accordingly deposed before the Court to refresh his memory. If the accused had accepted money, he would have tried to hide the notes in the pocket immediately, and, in that case anthracene powder could have appeared on his clothes. 13. The distribution sheet Exhibit-72 indicate that on 20th May, 2005, the accused was on duty as police station officer. This fact is admitted by P.W.4. It is difficult to accept that the officer who is in uniform will come on the road and accept bribe amount openly in the presence of public, which appears improbable. He would have sent another person for accepting bribe from complainant. The defence of the accused is complainant and ACB staff came in the premises of the police station and complainant forcibly thrusted the currency notes in his hand. He would have sent another person for accepting bribe from complainant. The defence of the accused is complainant and ACB staff came in the premises of the police station and complainant forcibly thrusted the currency notes in his hand. This probability cannot be ruled out since the currency notes were thrown away by the accused. 14. In paragraph 52 of the impugned judgment, it is observed that P.W.3 has admitted that he did not give any hearing to the accused before according sanction. Draft sanction was sent to him. P.W.4 stated that draft of sanction was sent along with charge-sheet and the investigation papers for grant of sanction to Superintendent of police Kolhapur. However, the said draft is not filed in this case. The proforma draft and sanction would have been produced in the case, it would have to help the Court to consider whether the sanctioning authority has granted sanction by applying the mind or whether the same proforma has been accepted by sanctioning authority. The copy of sanction letter Exhibit 60 dated 6th February, 2006, indicate that P.W.3 has put his signature on the said letter on 10th February, 2006. If sanction was accorded by P.W.3 by applying the mind independently than the question arises as to why there is difference of date on the sanction letter. The prosecution has not produced the proforma or draft of sanction sent to the sanctioning authority. This shows non application of mind by P.W.3 while according sanction. 15. P.W.1 did not receive any threat from Shaha or his Gunda from 15th May, 2005 to 25th May, 2005. If Mr. Shah wanted to recover compensation from P.W.1, he would have demanded the amount from him by meeting personally, through agent or by issuing threats. The prosecution has not proved the fact that accused sold Gutka worth Rs. 9000/- to Shah and that he was caught at Octroi naka Sangli while carrying Gutka to Sangli, which is the main cause of demand of bribe by the accused. P.W.1 admitted that he was conducting business of tobacco and Gutka illegally, without licence of the Excise department at Ichalkarangi. The Excise department had effected raid at his house for doing illegal business of Tobacco and Gutka. P.W.1 admitted that he was conducting business of tobacco and Gutka illegally, without licence of the Excise department at Ichalkarangi. The Excise department had effected raid at his house for doing illegal business of Tobacco and Gutka. He filed private complaint against police constable attached to Gaonbhag police station, Ichalkaranji under Sections 7 and 13 of P.C. Act and Section 392 and 506 read with 34 of IPC. Presumption under Section 20 of P.C. Act is rebuttable. To invoke presumption, the fundamental aspects of demand and acceptance has to be established. The prosecution case is full of doubts. Trial Court has appreciated the evidence in proper perspectives. I have scrutinized the evidence of the witnesses. The evidence suffers from doubt. 16. In the light of the factual aspects of the matter, there is no reason to set aside the judgment of acquittal. Hence, this Appeal must fail. 17. Hence, I pass the following order: Order Criminal Appeal No. 1107 of 2013, is dismissed and disposed of accordingly.