Allowed

Babasaheb Balaji Wakhre v. State of Maharashtra

Bombay HC14 Mar 2012APEAL/323/1998

Case brief

AI extract

What is this about?

In this criminal appeal against conviction under the Prevention of Corruption Act, the High Court held that the prosecution failed to prove the essential element of demand for a bribe. Due to non-corroboration of the complainant's version by independent witnesses and discrepancies regarding the recovery of the bribe amount, the Court set aside the conviction and sentence.

What did the court decide?

Judgment and order of conviction and sentence set aside; fine amount refunded; bail bonds cancelled.

Babasaheb Balaji Wakhre Vs State of Maharashtra — Corruption | Bombay HC (2012)

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Cri.Appeal No.323 of 1998

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.323 OF 1998

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Babasaheb S/o.Balaji Wakhre, Aged-46 years, Occupation-Service, (Police Head Constable), B.No.596, Police Station Beed (City), Taluka and Dist. Beed APPELLANT

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VERSUS

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The State of Maharashtra

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RESPONDENT

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Mr.S.J.Salgare h/f. Mr.S.S.Jadhav learned advocate for the appellant. Mr.S.G.Nandedkar, learned A.P.P. for respondent/State.

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(CORAM : A.H.JOSHI, J.)

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DATE : 14/03/2012

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ORAL JUDGMENT :

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This is an appeal against conviction.

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The charge, which was framed against accused/appellant was u/s. 7, 13(1)(d) r/w. 13(2) of The Prevention of Corruption Act, 1988.

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Substance of charge is of demanding bribe of Rs.400/-, settling it to Rs. 200/- and accepting it from complainant Laxman Sonaji Mhaske. The purpose of demand was the consideration for not to handcuff while taking before the Magistrate for production.

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Heard both sides. Perused the record.

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Cri.Appeal No.323 of 1998

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The argument advanced by the learned advocate for the appellant in support of appeal is summarized as follows :

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(a) The complainant’s version of prior demand of bribe is not corroborated;

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(b) The demand of bribe by the appellant and presence of complainant and panch witnesses can not be termed as proved;

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(c) Though acceptance of money may be recorded as proved, considering the version of the accused, by which he has probabalized his defence, even acceptance of money by the accused is not proved;

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(d) Recovery of amount from the accused, being recovered from his hand bag and not from his person, comes under shadow of doubt;

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(e) The amount of bribe being Rs.200/- is trivial and conviction can not be sustained on this ground;

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(f) The sanction given to prosecution is proved by the Superintendent of Police, Sanctioning Authority P.W.No.4. It turns out to be an order mechanically passed and hence superfluous. Therefore the sanction is not legally granted and therefore conviction and sentence based on such order passed without application of mind, is not sustainable.

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Learned advocate for the appellant has cited the judgments of the Supreme Court. Only few amongst those need reference.

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After perusal of entire evidence, this Court has formed an opinion that crux of the matter revolves around few points, which are as follows :-

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(i) Proof of demand of bribe prior to actual tender of money;

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(ii) Payment of bribe money to the accused;

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Cri.Appeal No.323 of 1998

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(iii) Recovery of bribe money from the accused;

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(iv) Sanction to the prosecution;

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(v) Bribe amount being trivial.

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This Court has analysed the evidence on all foregoing points.

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Though above mentioned 5 points require advertence of the Court and is done, the balance of the case is ultimately tilt only on account of the first point namely : “Whether the accused had demanded the amount before acceptance.” If the answer is in negative, rest of the points are rendered insignificant.

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It is seen that P.W.No.1 Laxman Sonaji Maske, who is the complainant is examined at Exh.15/C. His testimony is very well formulated.

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This witness has proved the demand by the accused. The version in that regard is seen in para no.9, which reads as follows :-

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“The accused asked Maske as to whether he brought the 7/12 document there upon Maske said that he would bring document later on. Accused said to Maske that he should produce the 7/12 document in the Court through his counsel. Accused then asked me whether I brought Rs.200/- as agreed earlier between us. I said to the accused that I brought Rs.200/- as agreed. Accused then demanded that amount from me.

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(Quoted from page no.75 of paper book)

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This aspect deposed by P.W.No.1 Laxman has not shaken in the cross examination.

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The testimony of P.W.No.1 Laxman Maske, the complainant, needs corroboration, as he is a person who is interested in the prosecution and as his status is that of accomplice.

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Cri.Appeal No.323 of 1998

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P.W.No.2 Ramdas Vitthal Mhaske is pre as well as post raid panchnama witness. He has stated in his examination in chief in para no.12 and 13 as regards what transpired after P.W.No.1 Laxman and P.W.No.2 Panch met him as a part of raid.

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Relevant portion found in his examination in chief reads as follows :-

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“Laxuman said Namaste to the accused. The accused asked him why he was late and Laxuman told him that due to work. The accused asked Laxuman as to whether he had brought surety and Laxuman told him he had brought me as surety. Accused asked me whether I have brought 7/12 extract. I had told him that I had not brought the same. He told me to produce the 7/12 extract in the court through Advocate.

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Thereafter accused asked to Laxuman as to what was happen about Rs.200/- which was settled on yesterday. Laxman told the accused that he had brought money. The accused asked him to give the said money immediately and accordingly Laxman took the currency notes of Rs.200/- by right hand from the left pocket of his shirt and gave in the hands of accused.”

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(Quoted from page no.92 of paper book.)

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This witness i.e. P.W.No.2 Ramdas was cross examined on this point. In para no.32, this witness has stated as follows :-

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“I stated before Shri.Kohak that accused had asked me whether I had brought 7/12 extract. I do not know why it is not mentioned in my statement before Shri.Kohak. I stated before Shri.Kohak that accused asked Laxuman whether he had brought money as settled yesterday. I do not know why it is not mentioned in my statement before Police. I stated before Shri.Kohak that accused asked Laxuman to give the money

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Cri.Appeal No.323 of 1998

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immediately. I do not know why it is not mentioned in my

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statement before police.”

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(Quoted from page no.99 of paper book.)

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Investigating Officer P.W.No.8 Vikas Murlidharrao Kohak was required to explain the aspect i.e. underlined part of quotation being omission. . In the examination in chief, he could have said anything because all that he had done was recording of the witnesses and he was not the witness of demand of bribe money.

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In his cross examination, as regards the version of P.W.No.2 on the point of statement of this witness made before him, he has stated as follows :-

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“He has not stated before me that the accused asked him whether 7/12 extract was brought by him. He has not stated before me that the accused asked the complainant whether he had brought money as decided on yesterday. He has not stated before me that the accused asked the complainant to give the money immediately.”

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(Quoted from page no.158 of paper book.)

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From the portion quoted above, what reveals, is summarized as follows :-

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(i) P.W.No.1 Laxman Mhaske has proved the demand,

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(ii) Version of P.W.No.2 Ramdas Mhaske i.e. panch witness does not concur with what P.W.No.1 Laxman has said,

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(iii) The version of P.W.No.2 Ramdas about demand of 7/12 extract by the accused is not supported by the version of Investigating Officer rather he contradicts it,

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(iv) P.W.No.2 Ramdas states that accused asked the complainant whether he had brought money as decided yesterday,

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(v) Investigating Officer has denied that P.W.No.2 Ramdas made

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Cri.Appeal No.323 of 1998

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such statement,

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(vi) Investigating Officer also states that P.W.No.2 Ramdas did not state before him that accused has asked the complainant to give money.

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For proof of demand of bribe, the statement of the complainant requires corroboration of independent witness.

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Considering the text of testimony of P.W.No.2, it is apparent that his version does not corroborate the evidence of P.W.1. Testimony of P.W.2 creates and generates.

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Law as regards proof of demand, payment and recovery is well settled. All 3 points have to be proved. It shall suffice to refer to 3 judgments as follows :-

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(i) Pannalal Rathi Versus State of Maharashtra, AIR 1979, SC 1191,

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(ii) Ram Prakash Arora versus State of Panjab, AIR 1973 SC 498,

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(iii) Arjun Bajirao Kale Versus State of Maharashtra, 2009 All

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M.R.(Cri.) 85.

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Discussion of these precedents is not necessary.

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In the result, this Court reaches a conclusion that,

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(i) The demand of amount of bribe by the accused is not proved,

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(ii) The acceptance and recovery of bribe money come under shadow of doubt on the ground that though witnesses concurrently state that amount was accepted, there is difference in the version of witnesses on the point of currency notes which were recovered from the bag of the appellant.

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Cri.Appeal No.323 of 1998

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(iii) The complainant Laxman (P.W.No.1) and second panch witness Chandrakant Kulkarni (P.W.No.3) described the bribe money comprising of 4 currency notes of Rs.50/-, while P.W.No.8 states that the currency notes, which were recovered from the bag of the accused, were comprising of 3 currency notes of Rs.50/- and 5 currency notes of Rs. 10/-.

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(iv) P.W.No.4 Kaushalkumar Pathak, Dy.Commissioner of Police, Bombay does not remember whether he has seen all papers. Crime No., FIR etc., in relation to which the alleged demand of bribe was made, are not at all mentioned in his sanction order. His testimony fails to inspire confidence.

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This Court, however, is of considered view that failure to prove the demand of bribe gives fatal blow to the prosecution case. Discussion on all other points is therefore un-necessary and hence it is dispensed.

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In the result, appeal succeeds. Judgment and order of conviction and sentence is set aside. Fine amount paid, if any, be refunded to the appellant. Bail bonds stand cancelled.

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(A.H.JOSHI, J.)

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khs/MARCH 2012/cri.appeal 323-98

Babasaheb Balaji Wakhre v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Babasaheb Balaji Wakhre v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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