Kailas Ramdas Sangle vs The State Of Maharashtra on 7 February, 2025

Date:

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 and

1 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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