Allowed

Sampat Yellapa Gawli v. the State of Maharashtra

Bombay HC8 Aug 2007APEAL/37/1996

Case brief

AI extract

What is this about?

In an appeal against a conviction and sentence for abetment of taking a bribe and criminal misconduct, the High Court examined whether the prosecution proved beyond reasonable doubt that the appellant had knowledge and intention to abet the offence or acted merely as an innocent tool of the main accused.

What did the court decide?

The impugned judgment and order convicting and sentencing the appellant was quashed; the appellant was acquitted; bail was granted.

Sampat Yellapa Gawli Vs the State of Maharashtra — Corruption | Bombay HC (2007)

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MSS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE

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 CRIMINAL APPEAL NO. 37 OF 1996

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 SAMPAT YELLAPPA GAWLI )
 R/o Hut at Govandi )
 Vakola Pipe Line, )
 Santacruz, Hut No. 715,)
 MUMBAI 400 054 ) .. APPELLANT
 (Org.Accd.No.2)

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 Versus

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 THE STATE OF MAHARASHTRA

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 (ACB, GBU, CR. No.37/88) .. RESPONDENT

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 Ms. Shubhada Khot with A. Kuttikrishna,
 Yogesh Jaybhay Suraj Hulka, Maheen Pradhan for
 appellant

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 Mrs. M. M. Deshmukh, APP for State

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CORAM:SMT. RANJANA DESAI, J.

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DATE: AUGUST 8, 2007.

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 ORAL JUDGMENT:

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 . The appellant (original accused 2 - "A-2" for
 convenience) along with one Surendra Ramchandra
 Karnalkar (original accused 1 - "A-1" for
 convenience) was tried in Special Case No. 80 of
 1989 by the Special Judge at Greater Bombay for
 offences under Section 12 read with Section 7 of

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 the Prevention of Corruption Act, 1988 ("the said
 Act" for short) and Section 13(2) read with Section
 13(1)(d) of the said Act and Section 109 of the
 Indian Penal Code ("I.P.C." for short). By
 judgment and order dated 18/11/95 the learned
 Special Judge convicted A-1 inter alia for offence
 punishable under Section 7 of the said Act and
 sentenced him to suffer R.I. for one year and to
 pay a fine of Rs.1000/-. In default of payment of
 fine he was to undergo further R.I. for one month.
 A-1 was also convicted under Section 13(2) of the
 said Act and was sentenced to suffer R.I. for one
 year and to pay a fine of Rs.1000/-; in default of
 payment of fine he was to undergo further R.I. for
 one month. The substantive sentences were ordered
 to run concurrently.

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 2. The present appellant i.e. A-2 is convicted
 for offence under Section 12 of the said Act and is
 sentenced to suffer R.I. for one year and to pay a
 fine of Rs.1000/-; in default of payment of fine
 he has to undergo further R.I. for one year. A-2
 is also convicted for offence punishable under
 Section 13(2) of the said Act read with Section 109
 of the I.P.C. and is sentenced to suffer R.I. for
 one year and to pay a fine of Rs.1000/-; in

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 default he has to undergo R.I. for one month.

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 3. Admittedly A-1 is dead. His appeal has been
 adjourned on the statement made by his counsel that
 he wants to seek instructions as to whether the
 appeal should be disposed of as having abated or it
 should be prosecuted at the request of his
 relatives. This court, therefore, is to only deal
 with the present appeal which is filed by A-2. It
 would be advantageous to give the gist of the case.

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 4. Admittedly A-1 and A-2 were the employees of
 the Bombay Municipal Corporation ("BMC" for short).
 At the relevant time i.e. on 4/10/88 A-1 was
 serving as Head Inspector Special in the Markets
 Division of the BMC. He had placed a requisition
 for providing a vehicle and the vehicle bearing No.
 MMU 6804 driven by A-2 was allotted to him.

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 5. A-1 joined the Municipal Service in the year
 1958. He retired on 1/3/89 on superannuation.
 Till the end of July, 1986 he served as Head
 Inspector Special, Western Suburb area. On 1/8/86
 he took the charge of the Eastern Suburb area and
 he continued in that position till 11th July, 1987.
 Thereafter he was transferred and posted to S & T

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 Ward. He continued to serve there till 29/6/88 and
 on 30/6/88 he took charge of the post of Head
 Inspector Special, Eastern Suburb area.

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 6. PW 2 Moinuddin Qureshi sells meat and he has a
 shop at Chamda Bazar locality in Dharavi.
 According to the prosecution PW 2 is not having
 licence to conduct the business. Several persons
 used to sell meat without licence by paying hafta
 to the line duty staff.

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 7. According to the prosecution after A-1 took
 charge of the post of Head Inspector Special on
 30/6/88, the quantum of the hafta increased. PW 2
 Moinuddin Qureshi was called to the office of the
 line duty staff in the Customs House at Mahim
 Causeway for the first time in July, 1988. A-1
 then demanded Rs.1000/- per month as hafta from
 him. A-1 directed PW 2 Qureshi to see him with the
 said amount. Accordingly in the last week of July,
 1988 and in the last week of August, 1988 PW 2
 Qureshi went to the house of A-1 and paid him
 Rs.1000/- as bribe on each visit.

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 8. On 27/9/88, PW 2 Qureshi had gone to Deonar
 market for purchasing goats. A-1 met him there and

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 enquired with him about the hafta for the month of
 September, 1988. PW 2 pleaded for some time. A-1
 then told him to see him with the demanded amount
 of Rs.1000/- at Deonar market on Tuesday i.e. on
 4/10/88 after 6 p.m. when he would be visiting the
 said market as usual. According to the prosecution
 PW 2 Qureshi visited the ACB Office of Greater
 Bombay Unit on 4/10/88 at about 2 p.m. and lodged
 his complaint which is Exh.-28. ACP Gaikwad who
 was on duty recorded his complaint. On the basis
 of this complaint investigation was started.

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 9. ACP Gaikwad arranged for panchas. Pre trap

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 panchnama was drawn. It is at Exh.-31. Pre trap
 panchnama records the usual formalities which were
 complied with. It indicates that the Complainant
 was introduced to the panchas. Demonstration
 regarding use and effect of the anthracene powder,
 retaining of the 10 GC notes of Rs.100/-
 denomination each from the cash amount of Rs.1095/-
 produced by the Complainant, mentioning of their
 numbers in the panchnama etc. was done. The GC
 notes were treated with anthracene powder. The

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 police constable who had treated those notes was
 asked to go away after he folded the notes into a
 wad and placed it into the left side chest pocket

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 of the shirt worn by PW 2 Qureshi. The Complainant
 was instructed to take pancha witness PW 3 Gadekar
 along with him and to introduce him to A-1 suitably
 so that he would be in a position to witness the
 transaction and hear the conversation. The
 Complainant was instructed to give the signal to
 the raiding party after the acceptance of bribe.
 Members of the raiding party were to remain in the
 vicinity of the Deonar Abattoir where the
 transaction was likely to take place. The pre trap
 panchnama was concluded at 4-45 p.m.

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 10. After pre trap panchnama was concluded, ACP
 Gaikwad, the raiding party and the Complainant
 boarded the police van and proceeded to Deonar
 Abattoir. When the van reached Govandi bridge it
 stopped. By then it was 6 p.m. Complainant and
 the pancha witness PW 3 Gadekar got down from the
 van and proceeded ahead on foot towards Deonar
 Abattoir. ACP Gaikwad and other members of the
 raiding party followed them at a safe distance.
 Complainant Qureshi and PW 3 Gadekar reached the
 office of A-1. They stood near the canteen to the
 South of the Office of A-1. At about 6-30 p.m. or
 so the motor tempo MMU-6804 came there and halted

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 in the open space. A-2 was driving the said

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 vehicle. After the vehicle was parked, A-2 got
 down from the said vehicle and stood near the
 railing. A-1 was sitting in the said tempo on a
 seat at the rear of the tempo. The Complainant and
 the pancha witnesses went towards the tempo and had
 a talk with A-1. Conversation took place between
 the Complainant and A-1, when A-1 is said to have
 demanded money. After the conversation A-1 called
 A-2 by his name. A-2 approached A-1. A-1 then
 gave signal to A-2 by turning his neck meaning
 thereby that he should go with the Complainant.
 Complainant Qureshi, A-2 and Pancha witness PW 3
 Gadekar then went behind the motor tempo.
 Complainant then took out a wad of currency notes
 treated with anthracene powder by his right hand
 from his left side chest pocket of bush shirt worn
 by him and extended his right hand towards A-2 who
 accepted the said wad by his right hand.

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 11. According to the prosecution A-2 counted the

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 marked currency notes with his both hands and
 thereafter kept the wad in the left side chest
 pocket of his bush shirt. A-2 is said to have
 asked the Complainant as to what about his money
 and the Complainant is said to have told him that
 the demand is paid in its entirety. The

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 Complainant thereafter gave the signal as told by
 the investigating officer. Two constables then
 rushed towards A-2 and detained him. ACP Gaikwad
 then disclosed his identity to both the accused.
 The hands of A-2 were examined under the UV rays
 when the bluish glow was seen on the fingures and
 palm of his hands. Bluish glow was also seen on
 the mouth portion and inner portion of the left
 side chest pocket of the shirt of A-2. Bluish glow
 was seen on the wad of currency notes. After
 carrying out the necessary formalities, the post
 trap panchnama was drawn. All the articles were
 seized. The post trap panchnama concluded at 10-15
 p.m. Statements of witnesses were then recorded.
 After completing the necessary formalities and
 after obtaining the sanction to prosecute the
 accused, the accused came to be charged as
 aforesaid.

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 12. In support of its case, the prosecution
 examined as many as six witnesses, The prosecution
 examined PW 1 Tinaikar who was at the relevant time

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 the Municipal Commissioner of Bombay Municipal
 Corporation on the point of sanction to prosecute
 the accused. The prosecution examined PW 2 the
 Complainant. PW 3 Mahesh Ramchandra Gadekar pancha

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 witness, PW 4 Shantilal Lalji Soni, PW 5 Hari
 Lilaram Gangwani and PW 6 Arvind Rangnath Gaikwad,
 Investigating Officer.

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 13. Defence of A-1 was that he was falsely
 involved. According to him he did not know PW 2
 Qureshi. He did not know that Qureshi had any shop
 in which he sold meat. He claimed that Dharavi was
 not within his jurisdiction. He stated that since
 Dharavi was not within his jurisdiction there was
 no question of his accepting any bribe from
 Qureshi. He admitted that PW 2 Qureshi met him
 when he was sitting in his van but according to him
 there was no one with Qureshi. According to him
 Qureshi met him under the guise of giving him some
 secret information relating to illegal slaughtering
 of animals and he told him that the complaint was
 from Deonar area and, therefore, he should go and
 meet the officer who was concerned with that area.
 According to him he does not know what happened
 thereafter. He claimed that pancha witness PW 3
 Gadekar has deposed against him at the instance of
 PW 6 ACP Gaikwad because he had taken action
 against people who had indulged in illegal
 activities.

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 14. A-2 claimed to be innocent. He admitted that
 on the day of the trap he was driving tempo bearing
 No. MMU 6804. He claimed that he did not know PW
 2 Qureshi. He had no knowledge that A-1 quoted any
 amount by way of hafta from Qureshi. He claimed
 that on the day of the trap when he was standing
 behind the tempo, PW 2 Qureshi had alone come
 there. Panch witness PW 3 Gadekar was not there.
 As regards the alleged payment of bribe money A-2
 claimed that PW 2 Qureshi attempted to plant bribe
 money in his shirt pocket. According to him when
 he took out the wad in his hand to ward off
 planting of money he was caught by the police.

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 15. After perusing the evidence on record, the
 learned Judge was of the opinion that the
 prosecution had proved its case beyond reasonable
 doubt. He, therefore, convicted the accused as
 aforesaid. A-2 challenges the said judgment and
 order in this appeal.

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 16. I have heard at some length Ms. Khot, the
 learned counsel appearing for the appellant and the
 learned APP Mrs. Deshmukh for the State. With the
 help of the learned counsel I have gone through the
 evidence and record of the case.

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 17. Ms. Khot has assailed the case of the

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 prosecution that A-2 had committed and abetted the
 offence committed by A-1. She submitted that A-2
 was only driving the vehicle. The prosecution has
 not adduced any evidence which can establish that
 A-2 had any knowledge that A-1 was to accept bribe
 from PW 2 Qureshi. There is no evidence on record
 to suggest that A-2 was to receive any benefit out
 of the said acceptance of bribe by A-1. There is
 nothing to indicate that A-2 had a share in it.
 The learned counsel urged that the offence of
 abetment would be complete only if intention to
 abet the offence is present and for that knowledge
 that the offence is likely to be committed must be
 there. She submitted that knowledge and intention
 are completely absent in the instant case. She
 submitted that admittedly A-2 has not made any
 demand for money. The alleged conversation between
 A-2 and the Complainant is also not borne out by
 the evidence on record. There are serious
 discrepancies in the prosecution evidence. In any
 case what the evidence on record at best would

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 suggest is that A-2 accepted some amount on the
 order or direction of his superior without knowing
 the background or without knowing that it was bribe

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 money. The learned counsel urged that mere
 recovery of alleged bribe money from the possession
 of A-2 cannot give rise to the presumption under
 Section 20 of the the said Act.

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 18. In this connection the learned counsel relied
 on the judgment of the Supreme Court in Trilok
Chand Jain v. State of Delhi, 1977, Cri. L.J.
254. She also relied on the judgment of this court
 in Pandharinath Shelke v. State of Maharashtra,

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2005 (2) B.C.R. (Cri.) 940. Reliance was also
 placed on judgment of the Madhya Pradesh High Court
 in Suresh Kumar Shrivastava v. State of M. P.
1994 Cri. L.J. 3738. Yet another judgment of
 Madhya Pradesh High Court inRam Swaroop Rathore v.
State of M.P., 2000 Cri. L. J. 1882 was also
 relied upon. The learned counsel submitted that in
 the circumstances the impugned judgment and order
 be set aside.

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 19. The learned APP on the other hand strenuously
 contended that the prosecution has proved its case
 beyond reasonable doubt. The evidence of the
 prosecution witnesses is consistent and cogent.
 A-2 was arrested red handed. Money was recovered
 from him. Post trap panchnama clearly establishes

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 the recovery of money from A-2. A-2 was admittedly
 driving the vehicle of A-1. The evidence indicates
 that A-2 was consistently accepting bribe and A-2
 was his driver for a long time and, therefore, in
 the circumstances of the case, the prosecution
 story that A-2 accepted the bribe amount at the
 instance of A-1 with full knowledge that it was
 bribe amount cannot be lightly discarded. The
 learned APP therefore, urged that the order of
 conviction and sentence be confirmed.

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 20. That A-1 and A-2 were at the relevant time
 public servants is not disputed before me. In the
 facts of this case it is not necessary to express
 any final opinion about the truthfulness or
 otherwise of the prosecution story against A-1. I
 will therefore, examine the case of A-2 on the
 assumption that the prosecution story against A-1
 is correct and truthful.

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 21. The charge against A-2 is that being a public
 servant on 4/10/88 he aided and abetted A-1 a
 public servant in attempting to obtain and in
 obtaining and accepting the sum of Rs.1000/-for and
 on behalf of A-1 from Shri Qureshi of Bombay as
 gratification other than the legal remuneration as

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 a motive or a reward for doing or for forbearing to
 do official acts or for showing favour or
 forbearing to show disfavour in the exercise of his
 official functions to the said Shri Qureshi in the
 matter of allowing him to conduct a mutton shop at
 Dharavi, Bombay without a valid municipal licence
 and thereby he has committed an offence punishable
 under Section 12 read with Section 7 of the said
 Act. A-2 is further charged that being a public
 servant on 4/10/88, he aided and abetted A-1 a
 public servant in obtaining pecuniary advantage
 i.e. a sum of Rs.1000/- for and on behalf of A-1
 from Shri Qureshi by corrupt or illegal means or by
 otherwise abusing the position of A-1 as such
 public servant and thereby committed an offence
 punishable under Section 13 (2) read with Section
 13(1) (d) of the said Act and Section 109 of the
 I.P.C. Section 7 of the said Act provides for
 offence of taking gratification other than legal
 remuneration in respect of an official act by a
 public servant. Section 12 of the said Act
 provides for punishment of the abetment of offence
 defined under Section 7 or Section 11 of the said
 Act. Section 13 (2) of the said Act provides for
 punishment for a public servant who commits
 criminal misconduct. Section 13(1) (b) states what

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 is a criminal misconduct by a public servant. A

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 public servant can be said to have committed
 criminal misconduct inter alia if he by corrupt or
 illegal means obtains for himself or for any other
 person any valuable thing or pecuniary advantage or
 he abuses his position as a public servant, obtains
 for himself or for any other person any valuable
 thing or any pecuniary advantage or he while
 holding office as a public servant obtains for any
 person any valuable thing or pecuniary advantage
 without any public interest. Section 109 of the
 I.P.C. provides for punishment for the offence of
 abetment, if the act abetted is committed in
 consequence of abetment, and no express provision
 is made under the I.P.C. for punishment of such
 abetment.

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 22. The Complainant’s case is that he was having
 his shop in Dharavi in which he used to sell meat.
 According to him he did not have a licence for the
 said shop. His case is that A-1 used to collect
 bribe from persons who were selling meat without
 licence and allow them to indulge in selling meat
 without licence. A-1 after taking charge of post
 of Head Inspector Special demanded bribe from PW 2
 Qureshi for the month of September, 1988 which PW 2

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 had not paid. PW 2 thereafter visited the office
 of ACB on 4/10/88 and lodged the complaint. By

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 reason of this complaint, a trap was laid and the
 accused were trapped. Assuming that the
 prosecution story that A-1 was incharge of the
 Dharavi area where PW-2’s shop was situated and by
 accepting bribe he was allowing people like PW 2 to
 continue their business without licence and that on
 4/10/88 A-1 made a demand of Rs.1000/- from PW 2,
 is true it is clear that it was A-1 who was the
 public servant in authority and it is the
 prosecution case that he made a demand. The
 charges which I have quoted hereinabove state that
 A-2 had abetted the offence committed by A-1. If
 charge of abetment is to be proved it is necessary
 for the prosecution to establish that A-2 had
 knowledge that A-1 was collecting bribe and he had
 intention to abet that offence by collecting the
 bribe amount on his behalf. Even if it is assumed
 that A-1 by corrupt and illegal means abused his
 position as a public servant by allowing PW 2 to
 carry on his business without licence and for that
 obtained Rs.1000/- as bribe, it will have to be
 seen whether in this act A-2 participated with
 knowledge. It will have to be examined whether
 even if the recovery of money from A-2 is proved on

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 that basis he could be convicted for abetment. The
 effect of presumption under Section 20 of the said
 Act will also have to be examined.

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 23. In this connection it is necessary to refer to
 the judgment of the Supreme Court inTrilok Chand’s
case (supra). In that case the Complainant was a
 manufacturer of rubber parts. On his application,
 a power connection was sanctioned for his factory.
 Though he had deposited money no steps were taken
 by the employees of the Electric Supply Undertaking
 to install the poles and give connection. One S P
 Gupta, Inspector of the undertaking approached him
 and demanded a bribe of Rs.125/- in consideration
 of giving connection. The Complainant had no
 intention to pay the bribe and, therefore, he
 lodged a complaint with Anti-Corruption Police.
 His statement came to be recorded. A trap was led
 for entrapping Gupta. The police party reached the
 factory of the Complainant on 20th June that being
 the appointed day. However, the Complainant
 received a message from Gupta through a lineman
 that instead of the 20th he would be coming on the
 following day. On the next day i.e. on 21st of
 June, 1968, Gupta came to the factory and started
 installation work. Gupta informed the Complainant

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 that he would return to the factory either
 personally or send somebody else to collect the
 amount of Rs.100/- at about 2 p.m. The Complainant
 passed on this information to the D.S.P. The
 D.S.P. along with raiding party came to the
 Complainant at about 11-30 a.m. and settled the
 details of the trap. Gupta however, did not turn
 up. Instead a permanent labourer working under
 Gupta came to the factory and told the Complainant
 that he had been sent by Gupta and that the money
 be given to him. Thereupon the Complainant handed
 over the currency notes to him. On receiving the
 agreed signal, the D.S.P. and the raiding party
 rushed in and arrested the said person.

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 24. The appellant was charged under Section
 5(1)(d) read with Section 5(2) of the Prevention of
 Corruption Act, 1947 and under Section 161 of the
 I.P.C. The courts below convicted the appellant

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 and an appeal was carried to the Supreme Court.
 The Supreme Court considered the effect of Section
 4(1) of the Prevention of Corruption Act 1947 which
 is in paramateria with Section 20 of the said Act.
 The Supreme Court observed that the presumption
 provided in Section 5(1) read with Subsection (2)
 thereof is rebuttable presumption and not an

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 absolute presumption. If the prosecution proves

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 that the accused has accepted or obtained
 gratification other than legal remuneration, the
 court has to presume that the gratification was
 accepted or obtained by the accused as a motive or
 reward . The presumption, however, being
 rebuttable, the accused can prove to the contrary.
 The proof may partake the shape of defence evidence
 led by the accused or it may consist of
 circumstances appearing in the prosecution evidence
 itself as a result of cross-examination or
 otherwise. The Supreme Court clarified that the
 degree and character of the burden of proof which
 Section 4(1) casts on an accused person to rebut
 the presumption raised thereunder, cannot be
 equated with the degree and character of proof
 which rests on the prosecution. The Supreme Court
 observed that the accused may rebut the presumption
 by showing a mere preponderance of probability in
 his favour. It is not for him to establish his
 case beyond a reasonable doubt. The Supreme Court
 also clarified that if the story set up by the
 prosecution inherently militates against or is
 inconsistent with the fact presumed, the
 presumption will be rendered sterile from its very
 inception, if out of judicial courtesy it cannot be

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 rejected out of hand as still-born. On facts it
 was argued before the Supreme Court that the
 appellant therein had the necessary intention
 because his conduct suggested that. It was pointed
 out that the appellant had visited the site and had
 checked the labourers working there and this
 conduct suggests that he had knowledge. The
 Supreme Court observed that this conduct does not
 suggest that he had received the GC notes with the
 requisite mensrea. Evidently in collecting the
 currency notes from the Complainant he was only
 acting as an innocent tool of Gupta. He was not
 concerned in his official capacity with the
 installation work. The Supreme Court made it clear
 that the gratification must have been received by
 the accused as a motive or reward for committing an
 act or omission in connection with his official

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 function. It must be shown that there was an
 understanding that the bribe was given in
 consideration of some official act or conduct.
 There must be incriminating motive behind the

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 action. The Supreme Court set aside the conviction
 of the appellant holding that the appellant was a

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 mere labourer who was not concerned with the

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 installation work and there was nothing to show
 that he had demanded the money on his own account

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 to get any favour or service done to the
 complainant.

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 25. It is not necessary for me to deal with the
 other judgments on which reliance is placed by Ms.
 Khot the learned counsel for the appellant because
 this court and the Madhya Pradesh High Court have
 reiterated the same principles. The present case
 will have to be examined in the light of the above
 principles laid down by the Supreme Court.

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 26. It is not necessary to refer to the evidence
 of PW 1 Mr. Tinaikar as his evidence is centered
 round the question of sanction and the sanction has
 not been seriously challenged before me. So far as
 PW 2 Qureshi is concerned, admittedly Qureshi is
 running a mutton shop illegally without the
 licence. He has admitted that on earlier two
 occasions he had given bribe to A-1. His evidence,
 therefore, is in the nature of evidence of an
 approver and would, therefore, certainly need
 corroboration. Such evidence in the nature of
 things cannot be accepted at its face value.
 Therefore, it will have to be seen whether
 sufficient corroboration is available to his
 evidence from the other evidence on record. PW 2

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 has in his evidence stated that on the day of
 incident he went along with the raiding party
 towards the tempo in which A-1 was sitting. A-2
 was standing near the said tempo. There was some
 conversation between A-1 and him. According to him
 after he told A-1 that he had brought the money A-1
 gave a hint to A-2 by moving his right hand.
 Thereafter A-2 came and took them to the rear of
 the vehicle. PW 2 took out the money from his
 pocket by inserting his right hand in the left side
 chest pocket and handed over that amount to A-2.
 According to him he paid the money to the driver
 because A-1 had asked him to handover that amount
 to A-2. He has stated that A-2 accepted this
 amount in his right hand, counted the notes by both
 the hands and kept that amount in the left side
 chest pocket of his shirt. He has further stated
 that he introduced pancha witness Gadekar to A-1.
 After A-2 accepted the money A-2 questioned him as
 to what about his money and he told A-2 that his
 money is included in the amount given to A-2.

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 27. It is pertinent to note that whereas he claims
 in the court that A-2 had asked him about his
 money, this assertion is found missing in his
 police statement and that has been brought on

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 record. It is clear, therefore, that this witness
 is prone to exaggeration. If, A-2 had really asked
 this witness about his share or his money that
 would have undoubtedly established his knowledge
 about A-1’s plan to take bribe and his intention to
 participate in it or abet it. This omission, in my
 opinion makes a dent in the prosecution case.

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 28. It is pertinent to note that in his evidence
 PW 2 has stated that sometimes A-1 used to send his
 subordinate to collect bribe and sometime he used
 to send his driver but this is also not stated by
 him in his complaint. A-2 is a driver of A-1.
 Nothing has come in the evidence to suggest that he
 was continuously in the service of A-1 and when A-1
 was collecting bribe from people he all along
 participated in that activity. Therefore, even if
 it is accepted that through his driver A-1 used to
 collect money, there is no evidence on record that
 it is A-2 who used to collect money for A-1. The
 evidence of this witness, therefore, may at the
 most establish that A-2 accepted the money but
 there is nothing to establish that he accepted it
 with knowledge and intention to abet the offence of
 taking bribe. Possibility of a superior officer
 directing his subordinate employee to do or carry

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¶101

 out an act and the subordinate employee carrying

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 out the direction cannot be ruled out.

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 29. PW 3 is Mahesh Gadekar. He is the panch
 witness. He has also stated that A-1 gave a hint
 to A-2, A-2 came near the site of the tempo. He
 and the Complainant went towards the rear side.
 Complainant then took out the money from his pocket
 by his right hand and handed over the said amount
 to A-2, who took that amount in his hand, counted
 it and kept it in his left side chest pocket.

¶104

 30. It is pertinent to note that this witness does
 not say a word about the alleged demand made by A-2
 to the Complainant. This, in my opinion, gives a
 further blow to the prosecution story. If A-2 had
 demanded the money, the panch witness who had heard
 the conversation between A-1 and the Complainant
 could never have failed to reproduce the
 conversation which the Complainant allegedly had
 with A-2. There is, therefore, no corroboration to
 PW 2’s evidence indicating that A-2 asked for
 money. I am therefore, of the opinion that PW 2’s
 evidence so far as it involves A-2 cannot be
 accepted. At any rate he has tried to exaggerate
 his case against A-2.

¶105

¶106

 31. It is also pertinent to note that PW 2 in his
 cross-examination has stated that when he paid the
 money there was no talk between him and A-2 and he
 has also stated that he had not met A-2 on any
 occasion prior to that day and that he had seen A-2
 for the first time in his life when he got down
 from the driver’s seat. This admission of PW 2
 makes it clear that if there were earlier instances
 of A-1 taking bribe through a driver from the
 complainant it was not through A-2 that money was
 taken because in that case the Complainant would
 have stated that he had seen A-2 earlier. It is
 also pertinent to note that PW 2 has stated that on
 two earlier occasions he had paid money to A-1.
 His assertion that he had seen A-2 for the first
 time completely demolishes the prosecution case
 that A-2 had earlier also accepted money on behalf
 of A-1.

¶107

 32. In the ultimate analysis, therefore, I am of
 the opinion that the prosecution has failed to
 prove it’s case against A-2 beyond reasonable
 doubt. Even if it is held that A-2 had collected
 money from PW 2, it is possible as stated by the
 Supreme Court in Trilok Chand’scase (supra) that

¶108

¶109

 he was only acting as an innocent tool of A-1. He
 did not accept the money in his official capacity
 as a motive or reward for committing an act or
 omission in connection with his official function.
 There is no evidence to establish that there was an
 incriminating motive behind the action or that
 there was an understanding that the bribe was given
 in consideration of some official act or conduct.
 It is not possible to hold that A-2 abetted the
 offence committed by A-1. Consequently it is not
 possible to hold that A-2 is guilty of criminal
 misconduct. The prosecution story so far as it
 concerns A-2, is not clear. It is shrouded in
 suspicion. A-2 must, therefore, get benefit of
 doubt. Hence the following order:

¶110

 . "The impugned judgment and order dated 18/11/95
 passed by the Special Judge Greater Bombay in
 Special Case No. 80 of 1989 is quashed and set
 aside to the extent it convicts and sentences A-2
 Sampat Yellappa Gawli. He is acquitted of the
 offence with which he was charged. A-2 Sampat
 Yellappa Gawli is on bail. His bail bond stands
 cancelled.

¶111

 . Appeal is disposed of".

¶112

¶113

 . Office to provide authenticated copy of this
 order.

¶114

 JUDGE.

¶115

¶116

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE

¶117

 CRIMINAL APPEAL NO. 37 OF 1996

¶118

 SAMPAT YELLAPPA GAWLI .. APPELLANT
 (Org.Accd.No.2)

¶119

 Versus

¶120

 THE STATE OF MAHARASHTRA .. RESPONDENT

¶121

 Ms. Shubhada Khot with A. Kuttikrishna, Yogesh
 Jaybhay Suraj Hulka, Maheen Pradhan for appellant

¶122

 Mrs. M. M. Deshmukh, APP for State

¶123

CORAM: SMT. RANJANA DESAI, J.

¶124

DATE: AUGUST 8, 2007.

¶125

 OPERATIVE PART OF THE ORDER:

¶126

 . For the reasons separately in the Oral Judgment,

¶127

 this court has passed the following order:

¶128

 . "The impugned judgment and order dated 18/11/95
 passed by the Special Judge Greater Bombay in
 Special Case No. 80 of 1989 is quashed and set
 aside to the extent it convicts and sentences A-2
 Sampat Yellappa Gawli. He is acquitted of the
 offence with which he was charged. A-2 Sampat
 Yellappa Gawli is on bail. His bail bond stands
 cancelled.

¶129

 Appeal is disposed of".

¶130

¶131

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶132

APPELLATE SIDE

¶133

 CRIMINAL APPEAL NO. 37 OF 1996

¶134

DATE OF DECISION:8/8/2007

¶135

 Submitted for
 approval.

¶136

THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

¶137

THE HON’BLE SHRI JUSTICE :

¶138

1. Whether Reporters of Local Papers ) be allowed to see the Judgment? )

¶139

2. To be referred to the Reporters or ) not? )

¶140

3. Whether Their Lordships wish to ) see the fair copy of the Judgment? )

¶141

4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? )

¶142

5. Whether it is to be circulated to ) the Civil Judges? )

¶143

6. Whether the case involves an impor- ) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa ) Offices? )

¶144

¶145

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶146

APPELLATE SIDE

¶147

 CRIMINAL WRIT PETITION NO. 1988 OF 2006

¶148

 DATE ON WHICH THE JUDGMENT IS
 RESERVED : 14TH JUNE, 2007
 DATE ON WHICH THE JUDGMENT IS
 PRONOUNCED:______TH JULY,2007

¶149

 Transcription of
 Judgment / Order.

¶150

 Submitted for
 approval.

¶151

THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

¶152

THE HON’BLE SHRI JUSTICE : D. B. BHOSALE:

¶153

1. Whether Reporters of Local Papers ) be allowed to see the Judgment? )

¶154

2. To be referred to the Reporters or ) not? )

¶155

3. Whether Their Lordships wish to ) see the fair copy of the Judgment? )

¶156

4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? )

¶157

5. Whether it is to be circulated to ) the Civil Judges? )

¶158

¶159

 6. Whether the case involves an impor- )
 tant question of law and whether )
 a copy of the judgment should be )
 sent to Nagpur, Aurangabad and Goa )
 Offices? )

Sampat Yellapa Gawli v. the State of Maharashtra

Case brief

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Sampat Yellapa Gawli v. the State of Maharashtra

Case brief

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What did the court decide?

What the court decided

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