Bombay High Court
Kailas Ramdas Sangle vs The State Of Maharashtra on 7 February, 2025
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2025:BHC-AS:8790
Digitally
signed by 484-2018-Apeal-J.doc
UDAY
UDAY SHIVAJI
SHIVAJI JAGTAP
JAGTAP Date:
2025.02.13
Uday S. Jagtap
15:04:53
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 484 OF 2018
Kailas Ramdas Sangle
Age 42 years,
Residing at B/503,
Senchury Co.op. Hsg. Soc. 1,
Bldg. No.100, Tilaknagar,
Chembur, Mumbai - 400 089 .. Appellant
Vs.
The State of Maharashtra .. Respondent
....
Mr. Satyaram R. Gaud a/w Maniram R. Gaud and Ms. Shikhani
Shah for the appellant
Mr. P.P. Jadhav, APP for the respondent - State
....
ALONG WITH
CRIMINAL APPEAL NO. 1494 OF 2018
The State of Maharashtra .. Appellant
Vs.
Kailas Ramdas Sangle,
Age 42 years,
Residing at B/503,
Senchury Co.op. Hsg. Soc. 1,
Bldg. No.100, Tilaknagar,
Chembur, Mumbai - 400 089 .. Respondent
....
Mr. P.P. Jadhav, APP for the appellant - State
Mr. Satyaram R. Gaud a/w Maniram R. Gaud, Ms. Shikhani
Shah, Wilson K. Jaiswal, Usman Memon for the respondent
....
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CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 5 th FEBRUARY, 2025.
PRONOUNCED ON : 7th FEBRUARY, 2025.
JUDGMENT :
–
1. By this appeal the appellant – accused challenges the
impugned judgment and order of conviction and sentence
rendered by the Special Judge, Greater Mumbai on 31.03.2018
for the offences punishable under Sections 7 r/w 13(1)(d) and
13(2) of the Prevention of Corruption Act, 1988 (for short “P.C.
Act“).
2. The learned Judge, by the impugned judgment, sentenced
the appellant to undergo rigorous imprisonment for 2 years for
the offence punishable under Section 7 of the P.C. Act inter alia
directing him to pay fine of Rs.2,000/- in default to suffer simple
imprisonment for 3 months. He has also been sentenced to
undergo rigorous imprisonment for 2 years and fine of
Rs.2,000/- for the offences punishable under Sections 13(2) of
the P.C. Act, in default to suffer simple imprisonment for
3 months.
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3. The State Government has also preferred an appeal for
enhancement of sentence on the ground of its inadequacy in
view of Section 377(1) of the Cr.P.C. Obviously, the fate of an
appeal by the State would depend upon outcome of the appeal
preferred by the appellant against his conviction and sentence.
In case, the appeal of the appellant is dismissed then only this
Court would be required to consider whether the sentence
awarded by the trial Court was inadequate.
4. Turning to the facts of the present case, which can be
encapsulated as follows.
5. The appellant was working as an Assistant Police Inspector
(API) in the month of April, 2014 with Crime Branch, Mumbai.
Indisputably, he was a public servant within the meaning of
Section 2(c) of the P.C. Act. PW1 complainant – Rizwankhan
Isar Ahmed was in the custody of the appellant in connection
with C.R. No.31 of 2014. It is the case of the prosecution that
the appellant demanded and attempted to obtain Rs.2 lac as a
gratification other than legal remuneration for himself and after
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discussion agreed to accept Rs.1 lac being the first installment.
He accepted Rs.1 lac from one Abu Barkatali in the presence of
complainant as a gratification and also agreed to accept
remaining amount of Rs.1 lac through PW-8 Ranjitsingh after
release of the complainant. The bribe alleged to have been
accepted by the appellant to favour the complainant –
Rizwankhan by helping him in the said crime, including return
of his trucks, which were involved in transporting illicit Gutkha
(Tobacco) by evading the octroi duty.
6. It is alleged that on 22.04.2014, after the release of the
complainant – Rizwankhan on bail in the said crime, on
23.04.2014 to 25.04.2014 the appellant contacted the witness
PW-8 Ranjitsingh on phone as per the previous talk and
thereafter demanded and attempted to obtain balance amount of
gratification to the tune of Rs.1 lac.
7. On 26.04.2014, during the meeting with the complainant
– Rizwankhan and the witness PW-8 Ranjitsingh, the appellant
attempted to obtain from PW-8 Ranjitsingh an amount of Rs.1
lac in a Scorpio Jeep while proceeding to Konark Bunder,
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Mumbai. As such, the public servant had accepted the
gratification other than legal remuneration to favour the
complainant by corrupt or illegal means by abusing his position
as a public servant.
8. Since the complainant – Rizwankhan was not ready to give
bribe to the appellant, he lodged a complaint (Exh.17) on
25.04.2014 with Anti Corruption Bureau Office, Mumbai. The
Investigating Officer decided to verify the complaint in the
presence of panchas. Accordingly, two persons were summoned
at the ACB Office. Introductory speeches on DVR / SD cards
came to be recorded. The complainant – Rizwankhan,
thereafter, went to meet the appellant at his office. During
conversation between the complainant, appellant and PW-8
Ranjitsingh, it transpired that the appellant had, in fact, made a
demand of bribe to the complainant. A pre-trap panchanama
was laid and the complainant – Rizwankhan was directed to
bring currency notes of Rs.1 lac. The currency notes were
sprinkled with anthracene powder.
9. On 26.04.2014 the complainant – Rizwankhan, PW-2
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Sharayu Bansode and PW-8 Ranjitsingh and proceeded to meet
the appellant. The complainant – Rizwankhan paid Rs.1 lac in
the form of the currency notes to the appellant. The complainant
– Rizwankhan gave a predetermined signal to the Investigating
Officer and thereafter, the appellant was caught raid handed on
the spot.
10. The other formalities of checking and inspecting the hands
and pockets etc. were done by the Investigating Officer. When
the currency notes and other articles were inspected under
ultraviolet rays, they noticed green shades. The SD cards on
which conversations were recorded, were sent to the CFSL for
analysis. Even voice samples of the appellant, complainant –
Rizwankhan and PW-8 Ranjitsingh were obtained. The
Investigating Officer also obtained the Certificate under Section
65B of the Indian Evidence Act. After completing the formalities
of investigation, a chargesheet is lodged and charge was framed
against the appellant under Section 7 and 13(1)(d) and 13(2) of
the P.C. Act. The appellant pleaded not guilty and claimed a
trial.
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11. The defence of the appellant, during trial, was denial of
acceptance of any illegal gratification other than legal
remuneration and that false implication in this case. The
appellant has raised several grounds including validity of the
sanction order as well as non-examination of the Sanctioning
Authority and other material witnesses apart from other
grounds. The prosecution examined as many as 9 witnesses.
The learned Special Judge, after going through the evidence of
the prosecution witnesses and after hearing the respective
parties, by the judgment and order dated 31.03.2018 convicted
and sentenced the appellant as aforesaid.
12. At the outset, Mr. Gaud, learned Counsel appearing for
the appellant submitted that there are inherent defects in the
prosecution case, in the sense, there was no demand by the
appellant to the complainant – Rizwankhan but it was by PW-8
Ranjitsingh and, therefore, the prosecution has failed to prove
the demand of the bribe. Mr. Gaud questioned if the trucks and
the goods had already been released by the order of the Court
and even the complainant – Rizwankhan was released on bail,
there was no question of demanding any bribe by the appellant
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from complainant – Rizwankhan. Mr. Gaud had taken me
through the deposition of various witnesses and tried to
substantiate the fact that, in view of the material omissions on
record, it is doubtful whether the prosecution has proved its case
beyond all reasonable doubts.
13. Learned Counsel for the appellant has also invited my
attention to the discrepancies in the transcript and the recorded
conversions between the appellant, complainant – Rizwankhan
and PW-8 Ranjitsingh vis-a-vis the audio clip, which was heard
by me in the Court, in the presence of respective Counsel.
According to Mr. Gaud, even though the voices have not been
clearly identifiable, yet, there is material discrepancy wherein it
can be heard that the appellant alleged to have said the word in
Hindi “nks uk”… The transcript indicates ” ns” i.e. something
else, which is in Marathi. Learned Counsel would argue that
even there is a contradiction as regards the demand of exact
amount, apart from the fact that the sanction itself is defective,
in the sense, merely because it was admitted by the defence
during cross, would not ipso facto mean that sanction is valid,
particularly when the prosecution did not examine the
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Sanctioning Authority, which was not a competent authority to
accord the sanction. Mr. Gaud would also argue as regards hash
value of the voice of the complainant – Rizwankhan which was
recorded on electronic devices.
14. Per contra, learned APP strongly supported the impugned
judgment by contending that the prosecution has not only
proved the demand and acceptance of illegal gratification by the
appellant, but also has established from the transcript and the
voice recorder that there was conversation of demand between
the complainant – Rizwankhan and the appellant. Apart from
inviting my attention to pre-trap and post-trap panchanamas,
learned APP strongly urged to dismiss the appeal on the ground
that the appellant being an Officer in uniform, should not have
indulged in such act.
15. Before analyzing the evidence and the material on record,
I must say that the learned Special Judge under the P.C. Act,
Greater Mumbai has not correctly and properly appreciated the
evidence and the other material on record especially in a case, in
which the appellant has been tried for the offences punishable
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under Sections 7 r/w 13(1)(d) and 13(2) of the P.C. Act. The
judgment is cryptic. Even case laws cited in para 8 of the
judgment has not been discussed by the learned Judge. Be that
as it may.
16. In order to substantiate the guilt of the appellant,
prosecution examined as many as 9 witnesses. The written
complaint dated 25.04.2014 is proved at Exh.17. Verification
panchanama is proved at Exh.19. Pre-trap panchanama is
proved at Exh.21. Post-trap panchanama is proved at Exh.40.
FIR is proved at Exh.23. Voice sample panchanama is proved at
Exh.25. Sanction order is proved at Exh.53. The statements of
the accused – appellant under Section 313 of the Cr.P.C. are at
Exh.55 and 55A.
17. The written complaint Exh.17 dated 25.04.2014 reveals
that the complainant has a transport business. He transports
goods by hiring the trucks. The goods are transported from
Surat to Bombay. On 20.02.2014, four trucks of the
complainant were intercepted by the Yellow Gate Police for
evading octroi duty and also for transporting banned Guthka
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(Tobacco) from Surat to Bombay. The complainant was arrested
by the appellant on 16.04.2014. The complainant – Rizwankhan
contacted PW-8 Ranjitsingh who happened to be his father’s
friend and was in the same business. He requested PW-8
Ranjitsingh to help him. The appellant in the presence of PW-8
Ranjitsingh demanded a bribe of Rs.2 lac. Since the complainant
– Rizwankhan was unable to fulfill the demand, at that moment,
he agreed to pay Rs.1 lac at that time and balance of Rs.1 lac
after his release from the custody. Accordingly, a friend of the
complainant namely Abu Barkatali paid Rs.1 lac to the appellant.
Admittedly, the prosecution has not examined the said Abu
Barkatali and, therefore, this important evidence in the form of
payment of fist installment of bribe has not been properly
established. The evidence of complainant – Rizwankhan further
reveals that after his release on 22.04.2014, since PW-8
Ranjitsingh had promised to pay the balance amount of Rs.1 lac
to the appellant, the appellant called him on his phone on
23.04.2014 and also on 25.04.2014. It is interesting to note
that Abu Barkatali, who alleged to have paid Rs. 1 lac to the
appellant at the A.C.B. Office at the behest of the complainant –
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Rizwankhan and cited as a witness, is also the owner of the truck
bearing Registration No. MH-04-FP-723, which was seized by
the police for transporting banned Gutkha (Tobacco) along with
the complainant – Rizwankhan. This also creates a doubt about
the authenticity of the prosecution case as to whether the
amount was paid by Abu Barkatali to the appellant for his work
or at the behest of the appellant?
18. Since the complainant was not willing to part with money,
he lodged the present complaint. Before going through the
panchanama and other proceedings, it would be interesting to
note that the FIR (Exh.23) is also dated 25.04.2014, which is
something unusual and strange, creating a doubt about the
genuineness and authenticity of the FIR. In the normal course,
an FIR ought to have been lodged after the successful post-trap
panchanama (Exh.40), which was completed on 26.04.2014.
The prosecution has failed to explain as to how both the
complaint (Exh.17) and FIR (Exh.23) are of the same date?
Secondly, an FIR (Exh.23) depicts that it was lodged by the
complainant on 25.04.2014 at 17:45. This is as if the
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Investigating Agency had already concluded that there would be
a successful trap and commission of a cognizable offence and,
therefore, an FIR also came to be lodged on the very day, when
the complaint was registered with the office of the A.C.B. on
25.04.2014, which is at Exh.17. More astonishing is the
statement of the complainant – Rizwankhan, which was
recorded on 26.04.2014 by the Investigating Officer- ACP,
Chandrakant Thorat. It indicates that since the complainant –
Rizwankhan was not willing to offer bribe to the appellant, he
lodged a complaint against the appellant with the A.C.B. along
with PW-8 Ranjitsingh. Since the complainant – Rizwankhan
was unable to write, his complaint was typed on a computer in
Marathi by ACP, Chandrakant Thorat. When attention of the
witness was drawn during his cross-examination to that part of
the statement as well as his signature over the FIR, interestingly,
he testified that he did not remember as to whether his statement
was recorded by the A.C.B. during the period from 25.04.2014
to 27.04.2014. Surprisingly, he even admits in his cross-
examination that he cannot say whether the signature which was
on the FIR was, in fact, his signature and even whether the date
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which was put by him beneath the signature. The complainant –
Rizwankhan himself was in doubt about his signature and the
date which appears to be put in his handwriting. This is a big
blow to the prosecutions case when the complainant –
Rizwankhan himself refused to identify and vouch not only his
statement but also his signature and date, beneath the FIR.
However, subsequently though he admits that this could be his
signature, but that is only his endorsement that he received the
copy of the FIR. Here also, he raised a doubt that the date put
beneath his signature was in his handwriting. He, however,
admits his signature over Exh.17, but not the date. The fact that
he had stated before the police that PW-8 Ranjitsingh received a
phone call from the appellant and that during the trap, DVR was
given to him and the conversation was recorded in it, is proved
to be a material omission. The statement in the transcript
indicating conversation between the appellant and the
complainant that ‘fdlds fy, cqyk;k gS\’] ‘ykvks’] ‘fdruk gS\’] ‘,d
yk[k’, is also proved to be a material omission. The complainant
– Rizwankhan also categorically admits in cross-examination that
he did not state at the time of lodging a complaint that PW-8
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Ranjitsingh told him that the appellant is demanding Rs.1 lac.
This is also proved to be an omission. He further admits that he
did not state at the time of lodging a complaint that thereafter
the appellant demanded Rs.2 lac from him, which also proved to
be an omission. He states that he had stated at the time of filing
of the complaint that he had taken Rs.1 lac from Abu Barkatali
and gave it to the accused, is also an omission which has not
been proved by the prosecution.
19. Complainant – Rizwankhan admits in his cross-
examination that his trucks have been released as per the order
of the Court along with the goods. He was also released by an
order of the Court. Before filing the complaint with the A.C.B.
all the six trucks have already been released by the Court, then
the question arose as to what was the reason for the appellant to
demand illegal gratification from the complainant other than the
legal remuneration?
20. There are catena of decisions in that regard. Suffice it to
refer a latest decision of the Supreme Court in case of Neeraj
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Dutta Vs. State (Govt. of N.C.T. of Delhi)1. The ratio laid down
by the Supreme Court is that in view of Section 7 and 13(1)(d)
of the P.C. Act where there are allegations of the demand of
bribe, it is held that considering the issue of proof of demand
under Section 7, demand cannot be a simpliciter demand for
money but has to be demand of gratification other than legal
remuneration. It would be apposite to extract para 13 and 14 of
the judgment, which reads as under:-
“13. Section 7, as existed prior to 26th July 2018,
was different from the present Section 7. The unamended
Section 7 which is applicable in the present case,
specifically refers to “any gratification”. The substituted
Section 7 does not use the word “gratification”, but it uses
a wider term “undue advantage”. When the allegation is
of demand of gratification and acceptance thereof by the
accused, it must be as a motive or reward for doing or
forbearing to do any official act. The fact that the demand
and acceptance of gratification were for motive or reward
as provided in Section 7 can be proved by invoking the
presumption under Section 20 provided the basic
allegations of the demand and acceptance are proved. In
this case, we are also concerned with the offence
punishable under clauses (i) and (ii) Section 13(1)(d),
which is punishable under Section 13(2) of the PC Act.
Clause (d) of sub-section (1) of Section 13, which existed
on the statute book prior to the amendment of 26th July
2018, has been quoted earlier. On a plain reading of
clauses (i) and (ii) of Section 13(1)(d), it is apparent that
proof of acceptance of illegal gratification will be
necessary to prove the offences under clauses (i) and (ii) of
Section 13(1)(d). In view of what is laid down by the
Constitution Bench, in a given case, the demand and1 2023 All SCR (Cri.) 665
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acceptance of illegal gratification by a public servant can
be proved by circumstantial evidence in the absence of
direct oral or documentary evidence. While answering the
referred question, the Constitution Bench has observed that
it is permissible to draw an inferential deduction of
culpability and/or guilt of the public servant for the
offences punishable under Section 7 and 13(1)(d) read with
Section 13(2) of the PC Act. The conclusion is that in
absence of direct evidence, the demand and/or acceptance
can always be proved by other evidence such as
circumstantial evidence.
14. The allegation of demand of gratification and
acceptance made by a public servant has to be established
beyond a reasonable doubt. The decision of the
Constitution Bench does not dilute this elementary
requirement of proof beyond a reasonable doubt. The
Constitution Bench was dealing with the issue of the modes
by which the demand can be proved. The Constitution
Bench has laid down that the proof need not be only by
direct oral or documentary evidence, but it can be by way
of other evidence including circumstantial evidence. When
reliance is placed on circumstantial evidence to prove the
demand for gratification, the prosecution must establish
each and every circumstance from which the prosecution
wants the Court to draw a conclusion of guilt. The facts so
established must be consistent with only one hypothesis
that there was a demand made for gratification by the
accused. Therefore, in this case, we will have to examine
whether there is any direct evidence of demand. If we
come to a conclusion that there is no direct evidence of
demand, this Court will have to consider whether there is
any circumstantial evidence to prove the demand.”
21. The allegations of demand of gratification and acceptance
made by the public servant has to be established beyond a
reasonable doubt. The decision of the Constitution Bench
referred hereinabove does not dilute this elementary requirement
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of proof beyond a reasonable doubt. It has been laid down that
proof need not be only by direct, oral or documentary evidence,
but it can be by way of other evidence, including circumstantial
evidence. When reliance is placed on circumstantial evidence to
prove the demand of gratification, the prosecution must establish
each and every circumstance from which the prosecution wants
the Court to draw a conclusion of guilt.
22. From the evidence of this witness coupled with another
important witness namely PW-8 Ranjitsingh, it is difficult to
accept that the alleged demand was made by the appellant, in
fact, as a gratification other than legal remuneration. Similar is
the view echoed by another well known judgment of the
Supreme Court in case of B. Jayaraj Vs. State of A.P.2 . It is held
that in the cases under Sections 7, 13 and 20 of the P.C. Act,
mere possession and recovery of currency notes from the
accused without proof of demand, cannot constitute offence
under Section 7 of the P.C. Act. Further in absence of proof of
acceptance of illegal gratification, presumption under Section 20
cannot be drawn that such gratification was received for doing
2 (2014) ALL SCR 1619
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or forbearing to do any official act. The Supreme Court,
therefore, set aside the conviction of the accused under Section 7
as well as under Sections 13(1)(d)(i)(ii) r/w Section 13(2) of the
P.C. Act.
23. The learned Counsel for the appellant has not only placed
reliance upon these two decisions but also in case of State of
Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 3. Para
16 and 19 to 21 are extracted below:-.
“16. Indisputably, the demand of illegal gratification is a
sine qua non for constitution of an offence under the
provisions of the Act. For arriving at the conclusion as to
whether all the ingredients of an offence, viz., demand,
acceptance and recovery of the amount of illegal
gratification have been satisfied or not, the court must take
into consideration the facts and circumstances brought on
the record in their entirety. For the said purpose,
indisputably, the presumptive evidence, as is laid down in
Section 20 of the Act, must also be taken into consideration
but then in respect thereof, it is trite, the standard of
burden of proof on the accused vis-a-vis the standard of
burden of proof on the prosecution would differ. Before,
however, the accused is called upon to explain as to how
the amount in question was found in his possession, the
foundational facts must be established by the prosecution.
Even while invoking the provisions of Section 20 of the Act,
the court is required to consider the explanation offered by
the accused, if any, only on the touchstone of
preponderance of probability and not on the touchstone of
proof beyond all reasonable doubt.
3 (2009) ALL MR (Cri.) 3127
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19. It is, therefore, highly doubtful that the version of the
complainant was true. It is in the aforementioned backdrop
only the evidence of DW-1 is to be considered. Even
otherwise, in our opinion, the prosecution has failed to
prove its case. It is, therefore, not a case where the High
Court, as has been contended by Ms. Divan, has failed to
take into consideration the legal implication of the
provisions of Section 20 of the Act and/or placed too much
reliance on the minor inconsistencies in the statements of
the prosecution witnesses.
20. Even in a case where the burden is on the accused, it
is well-known, the prosecution must prove the foundational
facts. [See Noor Aga Vs. State of Punjab, 2008(9) SCALE
691 : [2008 ALL SCR 2161] and Jayendra Vishnu Thakur
v. State of Maharashtra and Anr. 2009 (7) SCALE 757:
(2009) ALL SCR 1996].
21. It is also a well-settled principle of law that where it
is possible to have both the views, one in favour of the
prosecution and the other in favour of the accused, the
latter should prevail. [See Dilip and Another Vs. State of
M.P., (2007)1 SCC 450: (2007 ALL MR (Cri) 823 (S.C.))
and Gagan Kanojia and Another Vs. State of Punjab,
(2006) 13 SCC 516].”
24. Turning back to the evidence of PW-8 Ranjitsingh, who is
another important witness of the prosecution indicates that the
complainant – Rizwankhan was released on bail on 22.04.2014
and thereafter, he used to receive call from the appellant from
23.04.2014 to 25.04.2014 for demand of Rs.1 lac. His other
evidence regarding the pre-trap panchanama, summoning the
panch witnesses namely; PW2 – Sharayu Bansode and PW7 –
Rajesh Chakkar by the A.C.B. and other factors need not be
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discussed. What is important to note is that, this witness when
met with the appellant for the first time at the A.C.B. office
along with the complainant – Rizwankhan, appears to have said
and as testified by him that at about 4:00 p.m. he came back to
the A.C.B. office along with the amount of Rs.1 lac consisting of
100 currency notes of Rs.1,000/- each. Surprisingly, he does not
refer Abu Barkatali, as according to the prosecution and
complainant – Rizwankhan, it was Abu Barkatali who came with
the first installment of Rs.1 lac to be paid to the appellant.
Adverse inference is required to be drawn for not examining Abu
Barkatali, who appears to be an important witness. This is a
material discrepancy as regards the demand as contemplated
under Section 7 of the P.C. Act and as discussed in the aforesaid
decisions.
25. This witness was driving a car at the time of incident after
the pre-trap panchanama when the actual raid was to be
conducted. PW-2 Sharayu Bansode, panch witness, was sitting
beside him in the front seat, whereas the appellant and the
complainant – Rizwankhan were occupying the rear seat of the
car. Admittedly, the DVR was affixed in the baniyan of the
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complainant to record the conversation. This witness was
instructed by the Investigating Officer that if the public servant
namely; the appellant accepts the bribe amount in the running
car, then, this witness should start the parking lights of the car as
a signal to the car following with the A.C.B. team. He was inter
alia directed that, in case the appellant accept the bribe in a
stationary car, then in that case, the complainant – Rizwankhan
would come out of the car and remove his cap from the head
and thereby give a signal to the Investigating Officer. As such,
the complainant – Rizwankhan along with this witness PW-8
Ranjitsingh, the panch were travelling in a Scorpio Car bearing
Registration No. MH-43-R-1083 who were followed by the
raiding party in two Sumo Jeeps and a Motorcycle. The
evidence of PW-8 Ranjitsingh further reveals that when he was
driving the car, the complainant asked the appellant as to why he
has been called upon, to which the appellant alleged to have said
‘yk;s gks yk;s gks fdruk gS’ and complainant – Rizwankhan replied
‘,d yk[k #i;s’. As already discussed hereinabove, the
complainant had a different story to tell, upon which the
complainant answered Rs.1 lac. The evidence further reveals
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that thereafter the appellant asked the complainant ‘ns’. The
transcript, however, describe something else. The transcript at
page 156 of the record indicates some different version. As
such, there are material discrepancies in the evidence of
complainant – Rizwankhan, PW8 – Ranjitsingh vis-a-vis the
transcript and what has been heard in the Court on the DVR
which was played by the prosecution. The relevant transcript
reveals thus :-
Ykksdlsod Jh- lkaxGs gk eS pyk tkrk gq——– D;qdh vki er gks
ijs’kku—–
rdzkjnkj Jh- [kku ugh dke rks FkksMk cgqr gS—- dke rks gS—–
Ykksdlsod Jh- lkaxGs EkS mrj tkrk gq—–
rdzkjnkj Jh- [kku ;s tks cksys oks rks ysds tkvks ——— bldsfy,
cqyk;k —– fidfud djus vk;s gS D;k lkgc
Ykksdlsod Jh- lkaxGs nks uk —–
rdzkjnkj Jh- [kku rqe Hkh ;kj dlels —- cqyk;k rks nks uk
budks —– cksyrs Hkh ugh ,dne [kkekslh es
viuk cSBs gks ——
lk{khnkj Jh- flax eS le>k rqeus ns fn;s—–
rdzkjnkj Jh- [kku vjs ok—– cgqr gksf’k;kj vkneh gks rqe ;kj—–
,Slk dSlk ns fn;s——
Ykksdlsod Jh- lkaxGs fdruk ,d gS—-
rdzkjnkj Jh- [kku ,d gS—– ckdh dj nsaxs lkgc—– VsU’ku er
yks—-
Ykksdlsod Jh- lkaxGs ugh ugh mldk VsU’ku ugh gS—–
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rdzkjnkj Jh- [kku VqV x;s ge yksx lkgc VqV x;s—-
Ykksdlsod Jh- lkaxGs ugh ugh vc mldk VsU’ku ugh—–
rdzkjnkj Jh- [kku ,dne VqV x;s—— lghes ——- pysxk gk
pyks—-
Ykksdlsod Jh- lkaxGs pyks vkm eS——-
lk{khnkj Jh- flax pyks—–
26. PW-8 Ranjitsingh thereafter testified that the complainant
by his right hand took out two currency note bundles from his
kurta pocket and gave it to the accused, who accepted the same
by his right hand and put the same in his right pant pocket.
Whether this was going on in the moving car or stationery car is
not clear as PW-8 Ranjitsingh has not said anything. He testified
that thereafter the complainant got down from the car and gave
a pre-determined signal by removing his cap. The raiding team,
thereafter, immediately caught the appellant on the spot.
Learned Counsel for the appellant is right in contending that
PW-8 Ranjitsingh is an interested witness since admittedly, he
was a friend of complainant’s father, having the same business
and was helping the complainant in this case. He would be
obviously interested in a successful trap. It appears that he tried
to safeguard the interest of the complainant – Rizwankhan by
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stating that he did not know whether the complainant had
committed offence under the Octroi Act.
27. As already stated, if all the trucks along with the goods
were alrady released by an order of the Court and since the
appellant was thoroughly investigating and going to the root of
the case as rightly argued by the learned Counsel for the
appellant, there is likelihood of he being falsely implicated in this
case by the complainant – Rizwankhan only to thwart his further
efforts to go in-depth of the offence, in which the complainant –
Rizwankhan and his friends were tried for transporting banned
Guthka (tobacco) from the State of Gujarat into the State of
Maharashtra.
28. The first verification panchanama dated 25.04.2014 which
is said to have been started at 04:30 p.m. and concluded at
08:45 p.m. has not been tendered. It appears that PW-7 Rajesh
Chakkar and PW-2 Sharayu Bansode were the witnesses of the
said panchanama. PW-3 Sagar Pednekar testified that he brought
one recorder, one Micro-SD Card of 4 GB of Sandisk make,
wherein voice samples of the complainant, PW-8 Ranjitsingh and
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PW7 Rajesh Chakkar were recorded. It is an admitted fact that
alleged conversation was not clear due to bad network. It was
interrupted at several places. In the absence of the said
panchanama, it is difficult to accept the prosecution case as a
true one.
29. As regards second verification panchanama dated
26.04.2024, it has come on record through the evidence of
witnesses that since the first panchanama was not successful, in
the sense, voice could not be recorded properly, after formatting
the said conversation recorded in the Micro-SD card, fresh
conversation was recorded by using the same card. This also
gives rise to a reasonable doubt about the authenticity of the
second verification panchanama and, therefore, it is difficult to
accept that the prosecution has proved the alleged demand of the
bribe by the appellant. It reveals from the record that there was
no panch witness accompanied with the complainant –
Rizwankhan and PW-8 Ranjitsingh at the time of actual demand
and, therefore, in light of the fact that PW-8 Ranjitsingh being an
interested witness, it is difficult to accept that in fact, there was a
demand by the appellant, especially when PW2 – Sharayu
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Bansode turned hostile.
30. It is the case of the prosecution that the pre-trap
panchanama started at 03:35 p.m. by applying anthracene
powder over the currency notes, which were brought by the
complainant – Rizwankhan and PW-8 Ranjitsingh from their
home, located at Mumbai Central. However, PW-8 Ranjitsingh
who had accompanied the complainant – Rizwankhan for
collecting the currency notes admits in his cross-examination
that he returned back to the A.C.B. office at 4:00 p.m. on the
same day. The question arises as to how come anthracene
powder was applied at 3:35 p.m. before commencing the pre-
trap panchanama, when the currency notes itself were made
available with A.C.B. office at 4:00 p.m.?
31. Interestingly and as already stated, PW-2 Sharayu Bansode
turned hostile. She candidly admits in her examination-in-chief
that she did not accompany the complainant – Rizwankhan and
PW-8 Ranjitsingh during second verification and that she did not
witness as to what had occurred at Maharashtra Hotel, Carnac
Bundar Road and as such, this is also a big blow to the
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prosecution story.
32. PW-3 Sagar Pednekar admits that if there is addition or
subtraction in the electronic record, the hash value gets changed.
It is true that if no hash value is drawn, there is possibility of
tampering of electronic record. He further admits that in the
present case, no hash value has been drawn which results in
drawing an inference that the voice recording on the same SD
card by formatting the first recording, itself raises a doubt about
the authenticity of the voices.
33. PW-5 Reshma Ahire is the voice analyzer and had
conducted the spectrographic test admits that she has not
mentioned anything about the common factor and disputed
factor in her report. She also admits that she had not mentioned
in the report the test she had carried out to conclude that the
voice sample was similar. She further admits that while making
the analysis she did not find that there were some gaps/distortion
in both admitted and disputed version. At some places, the
sound was not audible. She also admits that these defects could
be occurred due to non-working of the recording unit.
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34. In this case, the appellant has examined a defence witness
namely Shivaji Maruti Mane, ACP, Crime Branch. He was the
second Investigating Officer appointed in the earlier Gutkha case
by the Crime Branch, Mumbai after the present appellant. He
testified that charge-sheet has been filed in that case against 20
persons, who were paying less octroi and thereby causing loss of
crores of rupees to the exchequer i.e. the Corporation. The
Tax Inspector Mr. Vijay Naik was also arrested in which the
complainant – Rizwankhan was also the one of the main accused.
The complainant – Rizwankhan who is the accused had paid fine
of Rs.35 lac when the investigation was handed over to this
witness. It appears that the learned Special Judge has ignored
this material evidence adduced on behalf of the appellant as well
as the other major discrepancies noted hereinabove.
35. Learned Counsel has also invited my attention to one
crucial fact that at the time of alleged raid, it is an admitted fact
that in the trap panchanama itself, on 26.04.2014 one officer of
the police, namely Sanjay Shinde was present along with the
appellant while accepting the alleged gratification. Even, PW-1
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complainant – Rizwankhan accepted this fact in the cross that
the appellant was accompanied by one more Police Officer.
However, the prosecution has not examined that material
witness from which again an adverse inference can be drawn
against the prosecution.
36. It is the contention of the prosecution that since the
sanction is admitted by the defence and, therefore, the
prosecution did not examine the Sanctioning Authority.
37. It is pertinent to note that the appellant did not admit
validity of the sanction. Even, otherwise, this is a case where
the sanction has been accorded by the Commissioner of Police,
who is admittedly not a Competent Authority to accord saction.
The Competent Authority is the Director General of Police.
The Commissioner of Police is lower in rank to that of the
Competent Authority namely, Director General of Police and,
therefore, the entire trial is vitiated for want of valid and proper
sanction. The learned trial Court has erred in observing that the
defence has admitted the sanction and, therefore, the
prosecution did not prove the same. Learned Counsel for the
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appellant has, therefore, rightly placed reliance on a judgment of
his Court in the case of State of Maharashtra Vs. Ajay
Ratansingh Parmar4. It would be apposite to extract the
observations made by the learned Single Judge in para 14, 15
and 16, which read as under:-
“14. The conjoint reading of the evidence of the
complainant and shadow witness coupled with the FIR
shows that there are material inconsistencies. The
reasonable doubt is created about the initial demand
raised by the accused. The learned Counsel appearing
for the Respondent (Orgi. Accused) would submit that
mere recovery of currency notes is not sufficient to
establish the guilt. In this regard, he relied on the
decision in the case of i) Suraj Mal V/s. State (Delhi
Administration) {(1979) 4 SCC 725}: [2014 ALL SCR
(O.C.C.) 251], ii) Panalal Damodar Rathi V/s. State of
Maharashtra {(1979) 4 SCC 526} : [1979 ALL MR
Online 57 (S.C.)], iii) Laxman S/o. Nanabhau Bangar &
Anr. V/s. The State of Maharashtra {2019 ALL MR
(Cri) 2523}. Neither police have verified the demand
nor recorded conversation of demand. The
complainant’s interested words on the said point are not
reliable.
15. Having regard to the inconsistencies of the
evidence it becomes difficult to rely unless corroborated
by independent circumstances. Particularly the real
aggrieved person i.e. Ranjit was not examined nor it is
explained as to why the complainant took lead in the
issue that too in absence of Ranjit Tagge. The trial Court
after considering all these inconsistencies recorded a
finding of acquittal giving rise to the double
presumption leaning in favour of the accused.
4 2022 ALL MR (Cri.) 2140
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16. The view taken by the trial Court is probable
which cannot be said to be illegal or improper or
contrary to the provisions of law. The order of acquittal
needs no interference, hence, the appeal stands
dismissed. Appeal dismissed.”
38. It has been clearly observed that the accused was serving as
an Assistant Police Inspector. The sanction order in that case
was accorded by the Commissioner of Police, who was below the
rank of Director General of Police and was not a Competent
Authority. He was, therefore, not a Competent Authority to
accord sanction and, therefore, the sanction was invalid. The
ratio is squarely applicable to the present case and, therefore, on
this count also, the prosecution has failed.
39. Corollary of the aforesaid discussion is that the impugned
judgment of conviction warrants interference in appeal. As
such, the following order is expedient.
ORDER
(i) The Appeal is allowed.
(ii) The judgment and order dated 31.03.2018 passed by
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the Special Judge, Greater Mumbai in Special Case No.3
of 2015 is quashed and set aside.
(iii) The conviction of the appellant is set aside.
(iv) The appellant is acquitted of the offences punishable
under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act. His bail bond stands cancelled.
(v) Fine amount, if paid, be returned to the appellant.
40. The appeal stands disposed of in the aforesaid terms.
41. In view of the acquittal of the appellant, the appeal
preferred by the State for enhancement of the sentence has
become infructuous and hence, stands disposed of.
(PRITHVIRAJ K. CHAVAN, J.)
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