IPS Officer Bribery Case Judgement AK Jain

7/30/2019 IPS Officer Bribery Case Judgement AK Jain

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JUDGEMENT 1 ACB SPL.CASE NO.46/2001

Exh.107

IN THE COURT OF THE SPECIAL JUDGE FOR GREATER BOMBAY.ACB SPECIAL CASE No. 46 of 2001

The State of Maharashtra

(Anti Corruption Bureau, B.M.U.

C.R.No.23/2000) ... Complainant.

V/s.1. Shri Ajaykumar Gyanchand Jain

Age : 59 years. Occ.: IPS officer

[Presently under suspension]

Residing at A/3, Mawal Flats,

Moledine Road, Camp, Pune 411 001.

2. Shri Prasanna Champalal Lodha

Age : 55 years, Occ. : Chartered Accountant.

Residing at Flat No.805, Ashok Tower/B,

Dr. Babasaheb Ambedkar Road, Parel(East),

Mumbai 400 042. ...Accused

Ld. Special Public Prosecutor Smt. Kalpana Chavan, for ACB.

Ld. Advocate Shri Shinganapurkar, for accused No.1


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Ld. Advocate Shri Jambhavlikar, for accused No.2.

Coram : HER HONOUR THE SPECIAL JUDGE SMT. S.K. KEOLE

[C .R.No.45]

Dated : 10

th

April, 2013.

{Offences punishable u/s.7,8,9,10,12, 13(1)(d) r/w. 13(2) of

Prevention of Corruption Act, 1988 and u/s 109,120- B and 201

of Indian Penal Code,1860 }

J U D G E M E N T

(Pronounced in Open Court)

1] Accused No.1 Shri Ajaykumar Gyanchand Jain who

was IPS Officer, and was Additional Commissioner of Police, Central

Region, Mumbai in the year 2000 has been chargesheeted for the

offence u/s. 7,10, 13(1)(d) r/w. 13(2) of Prevention of Corruption

Act, 1988 and r/w. Sec.109, 120-B, 201 of Indian Penal Code, 1860

and accused No.2 Prasanna Champalal Lodha who was Chartered

Accountant of accused No.1 has also been chargesheeted for the


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offence u/s.8,9,12 of Prevention of Corruption Act alongwith Sec.109,

120-B of I.P.C (Hereinafter will be referred to as 'P.C.Act' and 'I.P.C.') on

the complaint lodged by Police Inspector, Shri Sanjeev BhagwanraoKokil, attached to Byculla police station at the relevant time. The

offence was registered as C.R.No.23/2000, by Anti Corruption Bureau.

2] The facts of the prosecution case :-

The complainant, Police Inspector, Shri Kokil, in the year

2000 was attached to Byculla Police Station. He was on night duty atByculla Police Station on the intervening night of 21st and 22nd May

2000. On the same night, DCP Shri Date, who was on night round, at

about 02.00 hours found that 'Sairaj Bar and Restaurant', within the

jurisdiction of Byculla Police Station, was open after stipulated time.

Hence, he called the said complainant PI Sanjiv Kokil and asked him

to draw a panchanama to that effect and submit a report to seniorofficers. Accordingly, a report to that effect was submitted by the

complainant.

On 22.05.2000 at about 18.00 hours or so, DCP, Zone III

Shri Amitesh Kumar submitted a default report (Exh. 56) personally in

the office of the accused no.1 Shri Jain, Additional Commissioner ofPolice, of the region, against PSI Giri, PI Kokil and Sr. P.I. Mohite in the

matter of non-closure of 'Sairaj Bar and Restaurant' within stipulated

time. Accused No.2 Shri. Lodha was present in the office of accused

no.1 Shri Jain at the material time.


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On 23.05.2000, at about 08.00 hours, the accused No.2

contacted the said complainant on telephone at his residence. Afterintroducing himself as the 'Chartered Accountant' of Shri A.K. Jain,

Additional Commissioner of Police, Central Region, he informed him

that he was to be suspended in connection with the non- closure of

'Sairaj Bar and Restaurant', and further asked the complainant to see

him immediately, opposite Mahim Police Station.

The complainant reached near Mahim Police Station at

about 09.00 hours and found the accused No.2 was waiting in a

Maruti Car, the description of which was informed on telephone. The

accused No.2 took the complainant in his car and after driving for

about 8 to 10 minutes, entered into a by-lane. The accused No.2 then

told the complainant that he was sent by the accused No.1, ShriA.K.Jain, and further told the complainant that accused No.1, Shri

Jain has decided to suspend him for the alleged default of 'Sairaj Bar

& Restaurant'. He then stated that accused no.1 Shri A.K Jain, has

demanded Rs.5,00,000/- in order to avoid his suspension. On

negotiations, the accused No.2 Shri. Lodha, agreed to accept Rs.

3,00,000/- as the first installment for and on behalf of accused No.1

Shri Jain, and Rs.10,000/- for himself as his 'Mehanatana

' (Remuneration) to be paid by 17.00 hours on the same day. In order

to pass time, the complainant agreed to pay the same. accused No.2

immediately dialed a number from his cell phone and said tSu lkgc


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eS yks


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told to him by accused No.2. The demonstration of Tape recorder was

shown and its operation was explained to complainant Shri Kokil.

4] Thereafter, the raiding party along with the complainant,

independent pancha witnesses S/Shri Medhe and Shri. Kandhare

went to the house of complainant, at Police Officer's Quarters, Ground

floor, Opp. Agripada Police Station, Mumbai. The residential

telephone of the said complainant in the presence of the panchas was

connected to a cassette tape recorder. At about 13.30 hrs. thecomplainant contacted Accused no.2, on his cell phone. The

conversation that took place between Shri Kokil, and accused No.2, it

was recorded on the said cassette. Thereafter at 13.40 hrs, the

accused No.2 called on the said complainant's residential telephone

number. The said conversation was also recorded. During this

conversation, the accused No.2, called the complainant (Shri Kokil)alongwith the money, near Mahim Police Station. (The transcript of

the said conversation is at Exh.40). Thereafter they all proceeded

towards the place where accused No.2, called the complainant.

5] The police vehicles were halted near Mayor's Bunglow,

Shivaji Park. Thereafter, the members of the raiding party, the

complainant and the panch witnesses proceeded towards Mahim

Police Station in two taxis and a police jeep. the vehicles were halted

near Traffic Police Chowky, at the junction of L.J. Road and S.V.S.

Road, Mahim.


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6] At about 14.45 hours, a white colour Maruti 800 Motor

Car bearing No.MP24-G-1747 was noticed as parked opposite theofficers' quarters, near Mahim Police Station facing towards Bandra.

As instructed, the complainant and pancha witness Shri Medhe

contacted accused No.2, who was sitting in the said car on the left

rear side and his driver on the steering wheel. After preliminary

conversation between the complainant and the accused No.2 in the

presence of panch Shri Medhe, the accused No.2 took the complainantand the panch Shri Medhe into the said car and proceeded towards

Bandra. The complainant sat in the car on the rear seat on left side

near the accused No.2 while panch Shri Medhe sat on the front left

side near the driver. The panch witness No.2 and raiding party then

followed the said car. While the said complainant, panch Shri Medhe

and the accused No.2, were travelling in the Maruti Car, the accusedNo.2, enquired about and demanded the bribe amount. Thereafter

knowing that the said complainant had come with the bribe amount

the accused No.2, dialed a number from his cell phone and asked one

Shri Sayyed, to connect the call to 'Saaheb'. When the call was put

through, the accused No.2, informed the person at the other end that

the complainant had come with 3 kg of 'Sweets', the complainant

interfere and say he had brought only 2 Kg. instead of 3 kg. The

accused No.2 then accepted the cash of Rs.2,10,000/-. He then

separated cash of Rs.10,000/- from the amount of Rs.2,00,000/-, put

Rs.2,00,000/- in the polythene bag in which the cash was brought by


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the complainant. The accused No.2 kept Rs.10,000/- under his right

thigh. On receiving pre-determined signal from the said complainant,

the accused No.2, was intercepted near 'Kondor Furnitures',Bandra(W), Mumbai. He was detained in the car and taken to Bandra

Police Station.

7] During post trap procedure on examination, both the

hands, face, neck, the entire front portion of the shirt (Article 9) and

pant (article 10) and the napkin (article 8 ) carried by the accused No.2, were seen emitting bluish glow confirming the presence of

anthracene powder ( encircled portion on article 8 marked as article

15, encircle portion on article 9 marked as article 16 collectively .The

encircle portion on article 10 marked as article 17 ) Which was

transferred from the smearer currency note. The marked money,

(Article 6) the shirt, pant, napkin and the cell phone (Article 5) ofaccused No.2 have been taken charge of under panchanama. The

conversation that took place in the Maruti Car between the

complainant and accused No.2, has been heard. The effect of

anthracine powder was also noted on the right side of the back seat

cover of the car. Article 11 encircle position on it. Said seat cover was

also seized during panchanama.

8] After the completion of the Post trap panchanama, (Exh.

48) The accused No.1 Shri A.K Jain was arrested on 28/06/2009.

During investigation the call detail report of Mobile number


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9820130698, admittedly in possession of accused no.2 were obtained

from concern mobile company (Exh 84, admitted by both accused).

The Location of the said mobile number was also obtained (Exh. 105,Admitted by both accused) The specimen handwriting of the accused

no. 1 was obtained (Exh.98) the said specimen hand writing with

papers (Exh.97 ) forwarded to the handwriting expert. The report was

received from the Handwriting expert (Exh.89 and 90) The statement

of witnesses were recorded. After completing the

investigation,chargesheet was filed against the accused no. 1 , afterobtaining necessary sanction (Exh. 26 and schedule at Exh.28) and

also against accused no.2.

9] My Ld. Predecessor framed the charge at Exh.8 against

accused. The first charge is showing that charge u/s.8, 9 (Wrongly

mentioned as 8 of Prevention of Corruption Act), 10 are framed inthe alternative. Their plea was recorded at Exh.9 and 10 respectively.

Accused pleaded not guilty, therefore, trial has commence.

10] In order to establish the offence levelled against the

accused, prosecution in all have examined 20 witnesses.

P.W.1, at Exh. 19 - Shri Atanu Purkayastha Sanctioning

Authority,

P.W.2, at Exh.30 - Shri Sadanand Vasant Date, on the

point of incidence of 'Sairaj Bar and

Restaurant'


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P.W.3, at Exh. 33- Shri Sanjiv Bhagwanrao Kokil , Complainant

P.W.4, at Exh. 46- Shri Kishore Ramdas Medhe, PanchWitnessNo.1

P.W.5, at Exh.51- Shri Amitesh Kumar, on the point of default

report.

P.W.6, at Exh.57- Shri Pradeep Dakornath Shroff on the point

of default report.

P.W.7, at Exh.59- Shri Chandan Shankarrao Shinde, Orderlyof accused No.1

P.W.8, at Exh.63- Shri Rajendra Bhikaji Jalgaonkar, Panch,

P.W.9, at Exh.64 - Shri Sayed Vahouddin Ather, P.A. of Accused

No.1,

P.W.10, at Exh.68- Shri Akbar Mohd. Hanif Jamadar Muslim,

working in the office of accused no.1.P.W.11, at Exh.69- Shri Sanket Dattatray Yadav, Orderly/Boy

Constable of accused no.1,

P.W.12, at Exh.71- Shri Subhash Shankar Ubale, Orderly/Boy

Constable , attached to office of accused no.1

P.W.13, at Exh.75 - Shri Suresh Arjun Parab, attached to Byculla

Police StationP.W.14, at Exh.76- Shri Arvind Rengurud Kittur, Radio Mechanic

P.W.15 at Exh.77- Shri Sachin K. Kondilkar (Krishna),

employee of mobile company on the point of

Call Details Reporter,


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P.W.16, at Exh.80- Shri Govind Singh Kandari, on the point of

Call Details Record.

P.W.17,at Exh.85- Shri Deepak Manohar Wagle, Handwritingexpert.

P.W.18, at Exh.92- Shri Rajesh Sazu Bandodkar, Engineer of

Mobile Company

P.W.19, at Exh.93- Shri Arun Vittalrao Wable, Investigating

Officer,

P.W.20, at Exh.94- Shri. Madhukar Tukaram Kohe, InvestigatingOfficer,

11] After recording the evidence, statement of both the

accused were recorded separately u/s. 313 of Cr.P.C. at Exh.100 and

Exh.102 respectively. The accused submitted their written statements

at Exh.101 and Exh.103 respectively.

12] The cross examination and written statement submitted by

accused No.1, is showing his probable defence, that he has been

falsely implicated in the instant case. He never demanded and

accepted bribe amount from the complainant at any point of time,

through accused No.2. Probable defence of accused No.2 is that that

to implicate falsely accused No.1. ,he has been used as instrument, he

has been falsely involved in this case. He never demanded or

accepted by amount from complainant for accused no.1 , and for

himself.


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13] Heard Ld. Additional Public Prosecutor Smt. Kalpana

Chavan for State, Ld. Advocate, Shri Shinganapurkar for accused No.1and Ld. Advocate Shri Jambhavlikar for accused No.2.

14] After considering the oral as well as documentary

evidence, available on record following points are raised for my

consideration.

POINTS FINDINGS1] Whether it is proved by the prosecution that

sanction order granted for prosecuting the

present accused No.1 is legal and valid?

2] Whether it is proved by the prosecution that

accused No.1 and 2 hatched the criminalconspiracy on 22/05/2000, to extract the bribe

amount of Rs.5 lacs, through the accused No.2,

In the affirmative.


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from complainant Police Inspector Sanjiv

Bhagwanrao Kokil, attached to Byculla police

station, for not suspending him in connection

with incidence of Sai raj bar. Further in view of

the said conspiracy, on 23/05/2013, in the by

lane near Mahim Police Station, Mumbai, at

about 9.00 a.m. Accused no.2 demanded bribe

amount of Rs. 5,00,000/- from complainant for

showing favor of not suspending him inconnection with the incident of 'Sairaj Bar and

Restaurant' occurred in the night between

21/05/2000 to 22/05/2000.

AND

Further, Whether it is further proved by the

prosecution that accused No.2 on the same dayin the morning , in his car after negotiations,


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agreed to accept a sum of Rs.3 lacs as a first

installment for accused No.1 and Rs.10,000/-

for himself as Mehentana on the same day I.e.

23/05/2000, at 17.00 hrs., from the

complainant above name for the reason

mentioned above ?


on 26/05/2000, complainant called on mobileof accused No.2 and had conversation with him,

then accused No.2 called on landline number of

complainant and called the complainant near

Mahim Police Station, with bribe amount on

the same day. Further during the time of 14.45

hours to 15.05 hours, at Bandra area in car ofaccused No.2, accused No.2 demanded and

accepted bribe amount of Rs.2,00,000/- from

complainant for accused No.1 and Rs.10,000/-

for himself for showing favour in case of

incidence of Sairaj Bar, to the complainant ?


accused No.1 had accepted the said amount of

Rs.2 lacs through accused No.2 and obtained

pecuniary advantage illegally for himself by

In the affirmative.


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misusing his official position, as Govt. servant

for showing favour of not suspending the

complainant? In the affirmative


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on 27/05/2000, at about 3.30 p.m. the accused

No.1 had directed Chandan Shinde, to burn all

the papers in the waste paper basket and on

29/05/2000, he removed the page in the note

sheet bearing Para No.10, folded the same and

entered in Anti chamber with said papers of

folded note sheet and matchbox, when

returned, the said paper was not with him andthereby, tried to destroy the evidence ?


accused No.2 by demanding and accepting Rs.2

lacs for accused No.1 and Rs. 10,000/- for

himself, aided and abetted the commission ofthe offence of bribe acceptance?

In the affirmative.

In the affirmative

with Point No.3


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accused No.2 by accepting the bribe amount of

Rs.2 lacs in order to influence the accused no.1,

for showing favor to the complainant in case of

'Sairaj Bar and Restaurant'?

As per final order

8] Whether it is proved by prosecution that the

accused no. 1 abetted the accused no.2 fordemanding and accepting bribe amount from

complainant for the reason mentioned above?

As per final order

9] What order? As per final order

R E A S O N S

As to Point No.1:-

WHETHER SANCTION GRANTED FOR PROSECUTING

ACCUSED NO.1 IS LEGAL AND VALID

15] Valid sanction is the 'Sine-qua-non' in the cases under

Prevention of Corruption Act, 1988. In view of Sec.19 of the Act, the

Court cannot take the cognizance of the offence punishable u/s.7, 10,

11,13,15, alleged to have been committed by the Public Servant

except with the previous sanction by the competent authority.

16] In this matter, P.W.1 has examine by the prosecution at

Exh.19 to prove that the sanction is legal and valid. In his evidence,


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this witness deposed that in the year 2001, he was posted as 'Director

of Police' in Ministry of Home Affairs, Government of India. As the

Director, he was assigned with the work of entire matters ofEstablishment of IPS officers posted throughout India. According to

him, Establishment of PSI officers includes, appointment, removal and

conduct etc. The accused No.1 who was IPS officer of 1982 batch at

the relevant time was posted as Additional Commissioner of Police' in

Mumbai, for Byculla Division.

17] As deposed by this witness, as per the procedure, the

State Government is required to move the Government of India for

getting sanction to prosecute IPS officer like accused No.1.

18] In his evidence, this witness deposed that how the papers

were received from Government of Maharashtra and how the paperswere examined by the various officers of department including

Central Vigilance Commission (CVC). According to this witness,

Ministry of Home Affairs, is the competent authority to grant

sanction. This witness deposed that he prepared the draft sanction

order and forwarded the same with file of papers of investigation to

superior officer, to Joint Secretary Police, then to Special Secretary

(Internal Security and Police), then to Home Secretary and after that

file was placed before the Central Vigilance Commission. The advise of

Central Vigilance Commission was also called for and on receiving the

advice from Central Vigilance Commission, he again move the file


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through Joint Secretary, Special Secretary, Home Secretary to Home

Minister for the approval. The approval was granted through the

same channel. Thereafter, he issued sanction order. In his evidence,he proved the documents such as requisition letter at Exh.20. In his

evidence he also deposed that due to mistake of State Government,

the said requisition letter had sent to the Department of Personnel and

Training and from there, the letter was sent to this witness. He also

produced the letter at Exh.21 sent by the said department to him and

there is endorsement of his office on it. He also pointed out theendorsement on the said requisition letter at Exh.23.

19] According to this witness, he went through the entire

record and made his comment in writing and then placed the file

before the Joint Secretary, Joint Secretary also examined the papers

and made his comment in writing. He pointed out the signature of Mr.O.P. Arya at Exh.23. This file was put up before the Special Secretary

which was approved vide Exh.23. The file was referred to Joint

Secretary and he was asked to take advise of Central Vigilance

Commission (CVC). The officer of Central Vigilance Commission

(CVC) have also gone through the papers and opined on it. This

witness further deposed that the draft sanction order was prepared

on the basis of record. He prepared his own draft. The said draft was

placed before the Joint Secretary, and he approved the draft and

thereafter, he signed the same.


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20] This witness was cross examined to show that there was

non application of mind and that he is not the competent authority. In

his cross examination, he admitted that Hon'ble Home Minister, givesthe approval in the name of Honourable President. This witness was

also cross examined on the facts of trap case by Ld. Advocate for

accused No.1 specially on the facts mentioned in schedule at Exh.28

( internal Page No. 4 last line in Paragraph No.7, Page No.6 - middle

portion, Page No.7 Opening line of Paragraph No.11, Page No.8

Paragraph No.13).

21] The Ld. Special Public Prosecutor submitted that the

evidence on record is showing that the papers of investigation were

verified by the various officers, those officers also applied their mind

and endorsed the same. According to her, it is not the mind of only an

individual but most of the officers had applied mind while accordingthe sanction.

22] The ld. Advocate of accused No.1 submitted that the cross

examination of the witness is showing that there is no application of

mind and he is not the competent authority. He tried to point out

from the cross examination that the witness was not aware about the

facts of the case. He invited my attention to the questions and

answers given by witness (P.W.1/10) that whether there is any

document to show that that demand was made by accused No.1, the

answer given by this witness is


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As per the record, there was telephonic conversation,

which was recorded and there were statements of witnesses like

Police Officers.

23] He further narrated that only on the basis of memory, he is

telling this, as it is very old incident.

24] The Ld. advocate for accused No.2 submitted that the

sanction is illegal as by order dated 7.6.2002 the then PresidingOfficer of this Court return the chargesheet for want of proper

sanction. The said order was challenged before the Honorable High

Court and the said order is still in existence as it is not set aside by the

Honorable High Court. According to him, this findings are given by

My Ld. Predecessor are still exists, therefore, the sanction order

cannot be said as legal and valid.

25] The Examination in Chief and the cross examination of

this witness conducted on behalf of accused No.1, in my view, is not

showing non application of mind. On the other hand, exhibited

documents are clearly indicating the notings made by various officers

after going through the papers of investigation. The evidence of P.W.1

cannot be discarded only on the ground that he admitted that

schedule annexed with the Sanction Order at Exh.28 was prepared by

his staff. Sanctioning authority P.W.1's evidence and cross

examination is also not showing that he is not competent to grant


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sanction.

26] While considering the evidence of the witness, P.W.1 itshould be bear in mind that the incident had occurred prior to about 9

years, of his recording evidence. Therefore, minor discrepancies in

his evidence needs to be ignored as such discrepancies could appear

only due to lapse of time. Answers given by him in cross examination

are showing a natural conduct of a prudent man, while deposing

regarding the order passed by him, prior to 9 years.

27] It is the well settled of law that the sanction order can be

challenged on the two grounds, one is the competency of the

sanctioning authority and another is the non application of mind by

the sanctioning authority.

28] Perused the documents produced at Exh.22 and 23. The

Examination in chief of the witness is clearly showing that how the

papers of investigation were gone through by the officers and

recommendations were made by them, Exh.22, 23 and 24 are clearly

showing that the papers of investigation were verified by the present

witness and also by the other officers who had recommended the

grant of sanction for prosecuting the accused no.1 The findings given

in the above exhibits are also reflecting that there is application of

mind by the other officers. Though in the cross examination, it is

suggested to this witness that he is not the competent authority and


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had not gone through the entire papers of investigation, but such

suggestion has been denied by the witness.

29] The evidence of witness is not showing the non

application of mind. The documentary evidence filed on record at

Exh.21 to Exh.28 are clearly showing that before granting sanction,

papers of investigation were verified at various stages by various

departments and there was application of mind by the officers

including PW 1. Therefore, the argument made by the Ld. Advocatefor accused No.1, that there is no application of mind and sanctioning

authority is not the competent authority cannot be accepted.

30] So far as the arguments made on behalf of accused No.2 is

concerned, the following order passed by the Honorable High Court at

Page 3 ( reproduced below) will make the position clear.Counsel for the Respondent No.1 fairly accepts on

instructions that the basis on which the Special Judge has

proceeded to hold that the sanction order already granted is bad in

law could be tested only at the end of the trial.

Accordingly, the impugned judgment and order isset aside and the trial court is directed to proceed with the

trial in accordance with law. All questions relating to the

validity of the sanction order in question are left open. The trial

court shall pronounce upon the same on the basis of the evidence


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on record let in by the parties on the matters relevant to decide the

validity of the sanction order.

31] In the said order dated 15/12/2004, at Page No.3, Further,

it is directed by the Honorable High Court to proceed with the trial in

accordance with law.

32] It was accepted by the Ld. Adv. for accused No.1 before

the Hon'ble High Court , that the question of sanction order was keptopen and will be decided at the end of trial. It also needs to be

consider that, at the time of passing of order dated 07/06/2002,

evidence of sanctioning authority was not recorded which is now

recorded. In view of the further directions given by the Honorable

High Court, it is necessary to give fresh findings on the issue of

sanction order, which I have given above. Therefore, the argumentsmade by the Ld. Advocate for accuse No.2 that if the sanction order is

illegal, then entire case cannot proceed further, even against accused

No.2, cannot be accepted. The Ld. Advocate for accused no.2 failed to

notice that the Hon'ble High Court has set aside the order passed by

my ld. Predecessor.

33] As discussed above, the evidence of PW 1 and the

documents produced at Exh.20 to Exh. 28 are clearly showing that the

present witness was the competent authority to grant the sanction

order and also applied his mind.


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34] Further Exh.25 (Page 19) is clearly showing the noting

that the matter was consulted with Central Vigilance Commission(CVC) who approved and then Honorable Home Minister, also

approved the sanction for prosecuting the present accused No.1.

Therefore, the order of sanction issued under the head of

Government of India/Bharat Sarkar, Ministry of HomeAffairs/Grih Mantralayaproduced at Exh.26 cannot be said as the

order issued by the incompetent authority. The schedule attached tothis order at Exh.28 is also showing the details of the incident

occurred and that the papers of investigation had carefully gone

through by the PW 1. Therefore, there is no significace to the

admission given by P.W.1 that schedule at Exh.28 was prepared by his

staff.

35] The Ld. Public Prosecutor placed reliance on the judgment

reported in (2004)4 SCC 615 in case of

State (A.C.B.) Govt. of NCT of Delhi and another

V/s.

Dr. R.C. Anand and others,

as it has suggested to the Sanctioning Authority that Whether

cassettes or CD's in respect of conversation were supplied to him or

not.

36] In the judgment mentioned aforesaid, it is observed by the


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Honorable Apex Court that

Sanctioning Authority has only to see whether the

facts stated in the complaint prima facie disclosedthe commission of an offence or not and further, the

actual production of the tapes, etc. are matters for

proof during trial. On facts, sanction order held was

valid.

In view of this judgment the objection raised by ld. Advocate for

accused no. 1, that cassettes were not forwarded to Sanctioningauthority, can not sustained.

37] The Ld. Public Prosecutor also placed reliance on

Judgment reported in, 2007 ALL MR(Cri) 441 in case of Rajendra

Tatoba Magdum V/s. State of Maharashtra, wherein it is observed

by the Honorable Lordship of Bombay High Court that, The issue of sanction should not be put on such a

pedestal as would make it impossible for the

prosecution and the Court to prosecute a public

servant. The object and purpose of grant of sanction

and protection and immunity contemplated thereby

does not mean that technical and trivial objectionsto the legality and validity of the same must be

entertained. The sanction order cannot be said to be

vitiated merely because, it is termed as Irregular.

38] The objections raised by the Ld. Advocate appearing on


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behalf of accused No.1, in my view is not sustainable , in view of the

provisions of Sec.19(3) of PC Act 1988, and Explanation to this

section, which is reproduced below,Sec.19(3) Previous sanction necessary for prosecution -

(1)....

(2)...

(3) ...

Explanation :- For the purposes of this section -

(a) error includes competency of the authority to grantsanction;

39] The sanction order and the evidence of P.W.1 also needs to

be trusted, In view of the provision of Sec.114(e) of Indian Evidence

Act, 1872, which is reproduced below,

114. Court may presume the existence of any fact which itthinks likely to have happened, regard being had to the common course

of natural events, human conduct and public and private

business, in their relation to the facts of the particular

case. (a) ...

(b) ...

(c) ...

(d) ...

(e) That judicial and official acts have been regularly

performed;


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40] In view of the above discussion and placing reliance on

the principles laid down by the Honorable Apex Court and Honorable

Bombay High Court , in the judgments referred above. I have nohesitation in holding that the sanction granted by P.W.1 to prosecute

the accused No.1 is legal and valid. Hence, I answer the Point No.1

in the affirmative.

As to Point No.2

CRIMINAL CONSPIRACY HATCHED BY ACCUSED NO.1

AND 2 TO EXTRACT BRIBE AMOUNT

FROM COMPLAINANT.

41] It is the case of prosecution that on 22/05/2000, accused

No.1 and 2 hatched criminal conspiracy to extract the bribe amount of

Rs.5 lakhs from the complainant through accused No.2 in connection

with the incidence of 'Sairaj Bar and Restaurant' occurred in the

intervening night of 21/05/2000 to 22/05/2000 for showing favor of

not suspending him.

42] The Criminal Conspiracyhas been defined u/s.120-A of

Indian Penal Code, which is reproduce below.

120 A Definition of criminal conspiracy

When two or more persons agree to do, or cause to be

done - 1] an illegal act, or

2] an act which is not illegal by illegal

means, such an agreement is designated a criminal conspiracy ;


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Provided that no agreement except an agreement to commit

an offence shall amount to a criminal conspiracy unless

someact besides the agreement is done by one or more parties to

such agreement in pursuance thereof.

Explanation :- It is immaterial whether the illegal act is the

ultimate object of such agreement, or is merely incidental to

that object.

43] In order to prove the allegation of the conspiracyhatched by the accused, the prosecution have examined PW.2, P.W.3,

PW.5, PW.6, PW.7, PW.12, PW.13. The prosecution also produced on

record Call Details Report of the mobile No. 9820130698 which was

in the possession of accused No.2, (Admitted documents) at Exh.84,

44] In the evidence of P.W.2, it has been brought on recordthat the incidence of 'Sairaj Bar and Restaurant' was occurred in the

mid night, immediately P.W.2 who was Deputy Commissioner of

Police, Zone III, Mumbai, called the complainant, night duty PI and

directed him to prepare the report about the non-closure of 'Sairaj Bar

and Restaurant' within the stipulated time. One PSI Giri was found

standing in front of said Bar, still the bar was found in runningcondition, when P.W.2 inspected the bar from the entrance at backside.

According to this witness, on next day, i.e. on 22/05/2000, there was

meeting in the office of Commissioner which was attended by

Additional Commissioner including him and the incidence of 'Sairaj


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Bar and Restaurant' was discussed there. In the said meeting, he

suggested to take action against the erring officers and the

Commissioner agreed to it. The commissioner asked DCP, Zone -III(PW 5) to take sanction against the erring officers. According to him,

PSI Giri was erring officer, Senior Police Inspector and night duty

Police inspector ie. complainant were also responsible for such

incidence. It is not disputed that at that time, night PI was the

complainant and Sr.P.I. was one Shri. Mohite.

45] In the cross examination of this witness, nothing adversehas been suggested to him. Therefore, the evidence of this witness

remained unchallenged, wherein it has been brought on record by the

prosecution that the complainant was also one of the erring officer in

case of 'Sairaj Bar and Restaurant' and i.e. accused No.1 being

incharge was directed by the Commissioner to take action against

erring officers.

46] In order to find out the evidence to show as to whether

Sec.120-B of I.P.C. is attracted in this matter or not. I switch over to

the evidence of PW.3 complainant.

47] According to this witness, during the relevant period, he

was attached to Byculla police Station as PI. At that time, incharge of

Byculla Police Station was ACP Mr. Warkhad and incharge of Zone III

was DCP Shri Amitesh Kumar and present accused No.1 was in charge

of Central Region. This witness also narrated about the incidence of


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'Sairaj Bar and Restaurant'. In his evidence,he narrated that on

23/05/2000, at about 8 a.m. when as usual, he was preparing for

attending his duty, at that time, he received one call on his landlinephone No.3075178, the person on the other side introduced him as

Lodha - accused No.2 and also informed him that he is the 'Chartered

Accountant' of accused No.1, and further informed him that he is

found guilty in the matter of 'Sairaj Bar and Restaurant', occurred in

the mid night of 21/05/2000 and 22/05/2000 and also that, there is

possibility of his suspension. The said person at the other end of thephone asked him to come immediately in front of Mahim Police

Station and also provided details of his Car Number and colour etc.

Therefore, immediately complainant rushed there. He reached near

that spot and noticed the car of same description. The car of accused

No.2, was standing facing towards the Mahim Church. Both of them

introduced each other. The person sitting in the car introducedhimself as Lodha, Chartered Accountant of accused No.1. He offered

the seat to him in the car. The vehicle was running and it was stopped

after 8-10 minutes in one galli. Again the present accused No.2

introduced himself and told him that in the matter of 'Sairaj bar and

restaurant' Complainant, PSI Giri and Sr. P.I. of Byculla Police Station

are held guilty for allowing the said bar to run even after stipulated

time. It was further intimated by him that accused No.1 had decided

to suspend him i.e. complainant, out of three officers. Accused No.2

further told him that accused No.1 had demanded Rs.5 lakhs from

him for not suspending him and for not taking action against him.


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Further, accused No.2 also suggested him to pay Rs.3 lakhs as first

installment, at 5 O'clock, in the evening on the same day. Further, to

inspire his confidence, he stated the name of Steno Sayyed (Steno ofaccused No.1). Then on one page of diary, he mentioned his name,

telephone number and handed over to him. Further, to impress him,

he made a call and said tSu lkgsc] eS yks


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these admitted call details, that on 23/05/2000, in the morning, he

received phone call from accused No.2 and prior to that he was not

knowing accused No.2. Further, the case of the complainant that whenhe met accused No.2 and when he was in his car, accused No.2 called

from his mobile and talked with the person on other side as on other

side accused No.1 is there. The CDR is supporting this contention of

the complainant.

50] The Ld. Advocate appearing for accused No.2 thoughadmitted these CDR but from the timings of the call i.e. first call at

8.54 hours and 2nd call at 9.11 hours, tried to point out that these are

not the timings mentioned by the complainant in his deposition and

these timings are totally different. But since the 9 years are passed,

such minor discrepancies may occur in the evidence of the

complainant and it is not unnatural.

51] The argument made by Ld. Advocate that within a short

time, the complainant cannot reach from Agripada Police Quarter to

Mahim (between 8.54 a.m. To 9.11 a.m.). This argument of Ld.

Advocate cannot be accepted as it is not suggested to the witness that

he had not reached within this time at Mahim. Further, the judicial

note of the fact can be take, that prior to 10 years no much traffic was

there compare to heavy traffic as on today.

52] The evidence of the complainant also cannot be


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disbelieved on this point, in view of the admitted document at Exh.

105, which is showing the location of Call Ids. No.10023111 as

Mahim and location of Call IDs No. 10021253 as Shivaji Park (Dadar),Hence there is reason to believe that the complainant was not

knowing accused No.2 prior to 23/05/2000 till receiving the call from

him.

53] The evidence of P.W.5 (P.W.5/3), he narrated that prior to

handing over note sheet at Exh.56 by him, he attached one page tothe note sheet, the page attached by him is missing and other page is

appearing in place of page attached by him. In the cross examination

of this witness, it was not suggested to him that he had not attached

page to note sheet. The said note sheet is showing that till

26/05/2000, nothing was recommended by accused No.1 regarding

the incidence of 'Sairaj Bar and Restaurant'.

54] P.W.7 Shri Chandan Shinde confirms the visit of accused

No.2 in the chamber of accused No.1 in the evening of 22/05/2000.

The cross of this witness (P.W.7) was conducted and it was suggested

on behalf of accused No.1 that he has falsely deposed against accused

No.1. It is suggested to this witness on behalf of accused No.2 that he

has falsely deposed that accused No.2 instructed him to collect the

information from Byculla Police Station about the duty hours of the

complainant. This witness has not cross examined by accused No.2, on

the point that in the evening of 22/05/2000, accused No.2 attended


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the chamber of accused No.1. Hence, the evidence of P.W.7 remains

unchallenged, so far as the visit of accused No.2 to the Chamber of

Accused No.1 is concerned.

55] It is suggested to the witness that 'they have falsely

deposed' , but it is not the case of both the accused that such incidence

had not happened at all. No reasons are brought on record to show

that for the particular reasons the witnesses including P.W.5, falsely

deposed. In fact, there should not be any reason for the witnesses todepose falsely against accused No.1 and 2, as there was no enmity

between them and they have no reason to involve them falsely.

56] Perused the note sheet at Exh.56. The first page is

recommendation. In this note sheet, on the first page recommendation

was given by the Assistant Commissioner of Police Shri Warkhad,about suspension of PSI Giri, Stoppage of two increments of present

complainant for the period of two years, stoppage of increments for

the period of one year of PI Mohite. The same recommendations were

followed by P.W.5 DCP, Zone III. But this note sheet is showing that

the present accused No.1 shown leniency to all these three persons

and note sheet bears the date as 22/05/2000. The accused No.1

recommended 'reprimand' for the complainant and PI Mohite and

stoppage of one increment for the period of one year for PSI Giri.

Prima facie, page on which the notings of accused No.1 starts is

different than the other two pages of the note sheet.


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57] In this regard, the argument made by the Ld. Advocate for

accused No.1 that he was not the competent authority to suspendPolice Inspector i.e. complainant, cannot be considered, in the

background that even if he was not having authority to suspend the

complainant but admittedly, he was authorize to recommend the

suspension of the erring officer, which he failed to do. It is further

clear from this note sheet that ACP Warkhad, recommended the

suspension of PSI Giri, and minor punishment of stoppage ofincrement for complainant and Mohite. Similar recommendations

were made by P.W.5 DCP, Zone III . The accused No.1, who was the

Additional Commissioner of Police, and on the higher post than these

two police officers recommended lighter punishment to all erring

officer. The note sheet also further shows that though the

recommendations were made by various officers, but till 29/05/2000,noting was done by accused No.1. The conduct of accused No.1 is

clearly showing his guilty mind. As it is brought in evidence that the

incidence of 'Sairaj Bar' was serious one but still accused No.1 shown

soft corners to all guilty officers in spite of that in the meeting with

Commissioner, Commissioner consented for initiating stern action

against the erring officers and the incidence of 'Sairaj Bar' was

seriously viewed in the said meeting.

58] In the cross examination of P.W.3, so far as the initial

incidence is concerned, it has been brought on record that the


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incidence of 'Sairaj Bar and Restaurant' was not confidential as the

copies of panchanama were prepared and forwarded. Accused No.1

was not competent to suspend him. It was also suggested to him thathe had not conducted enquiry with his colleague i.e. Mohite and Giri,

that he involved the name of accused No.1 without any reason, to

obtain publicity and to please his superior officer. It is also suggested

to this witness that, he had not discussed the issue i.e. demand made

by accused No.2, for accused No.1, with anyone.

59] Further, that he has falsely deposed about the callreceived to him from accused No.2 in the morning of 23/05/2000. It

is suggested to this witness that with intention to involve the accused

No.1, he lodged complaint and that he has falsely deposed.

60] In statement u/s.313 of Cr.P.C. of accused No.2, while

answering question No.37, he flatly refused that the call was made byhim to the complainant (P.W.3) in the morning, on 23/05/2000. The

suggestion given to the witness that he had not discussed the demand

made by accused No.2 for accused No.1 with anyone including his

colleague, is not of much helpful to the defence, for the reason that

the conduct of the complainant of not discussing the said issue with

anyone is quite natural. It is not expected from anyone that he would

discuss the issue of demand of bribe by his superior authority, with the

other colleagues.

61] In this connection, it needs to be considered that admitted


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document i.e. CDR is showing call made by present accused No.2 to

the complainant in the morning of 23/05/2000. The accused cannot

blow hot and cold, by admitting CDR on one hand and then, denyingthe same in the statement u/s.313 of Cr.P.C. Though, there is some

discrepancies in the timings, but the call was made, has been proved

through the said exhibited documents. The accused No.2 flatly

refusing about his conversation with complainant about the incidence

of 'Sairaj Bar and Restaurant' and about the information given by him

to the complainant that he is going to be suspended.

62] The argument made by the Ld. advocate appearing for

accused No.1 and 2 that incidence of 'Sairaj Bar and Restaurant' was

not confidential, it was known to everyone and therefore, the

evidence of the complainant, that accused No.2, approached to him

regarding the said incidence is totally false. In the entire chain ofcircumstances, it is an important factor that though the argument

made by the Ld. Advocate is considered, regarding the non

confidentiality of the 'Sairaj Bar and Restaurants' case then, there is no

explanation brought on record by both of them, to show that why the

complaint was lodged only against accused No.2 by the complainant,

when the complainant, was not knowing him prior to that date

23/05/2000. In this circumstances, it also needs to be noted that only

the person who was closely associated with accused No.1 i.e. accused

No.2, approaches to the complainant, though, the news of 'Sairaj Bar

and Restaurant' was spread all over in the Police Department, no one


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other than the present accused No.2 had contacted the complainant.

The chain of circumstances is showing that there was previous

meeting of mind between the accused No.1 and 2, in order to demandand extract the bribe amount from the complainant. The conduct of

accused No.2, refusing flatly about the call made by him to the

complainant, is also not supporting his plea of innocence. The said

answer given by accused which is totally against the document

admitted by him shall adversely effect his plea of innocence.

63] The Cross of P.W.7 was conducted on the point of visit ofaccused No.2 to the chamber of accused No.1 on 22/05/2000.

Further, the evidence of P.W.6 is showing that no recommendations

were made by accused No.1 till 26/05/2000. There is no cross of P.W.

7 on the point that accused No.2 was present in the office of accused

No.1 on 22/05/2000. The Ld. Advocates appearing on behalf of

accused No.1 and 2 on the point of phone call mentioned in Exh.84made by accused No.2 to accused No.1 and also to the complainant

argues that even if assuming that such call was made. Accused No.1

and 2 met on 22/05/2000, there is no evidence to show that they

were discussing about the conspiracy. The phone call shows that the

conversation took place between them and therefore, they strongly

argued on the point that there is no evidence to show that on

23/05/2000, in the morning, accused No.2 asked the complainant to

meet him in connection with the incidence of 'Sairaj Bar and

Restaurant'. They also suggested that there is no corroboration to the

evidence of P.W.3, such corroboration is required as he is not credit-


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worthy witness as his conduct and character is questionable in this

case. According to them, P.W.3 being the accomplice, his sole

testimony cannot be believed.

64] The evidence i.e. documentary as well as oral evidence for

proving the charge u/s.120 B of Indian Penal Code, which has been

produced on record by the prosecution is found trustworthy and

reliable. The chain of circumstances i.e. happening of 'Sairaj Bar and

Restaurant' in the midnight of 21/05/2000 and 22/05/2000, meetingof Crime Committee in the office of Commissioner, recommendations

by two police officers suggesting major penalties to erring police

officers, presence of accused No.2 in the office of accused No.1 in the

evening of 22/05/2000, admitted phone call by accused No.2 to the

complainant and immediately after that, another phone call made by

him to accused No.1, knowledge of accused No.2 about the incidenceof 'Sairaj Bar and Restaurant' and involvement of complainant in the

incidence of 'Sairaj Bar and Restaurant', initiative taken by accused

No.2 to call the complainant and informed him about the proposed

action of his suspension, admittedly complainant was not knowing

accused No.2 prior to 23/05/2000, the above chain of circumstances

is clearly showing that there was previous meeting of mind between

accused No.1 and 2 and they hatched the conspiracy to extract bribe

amount from the complainant.

65] This chain of circumstances complete when complainant


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visited the office of Accused No.1 after handing over the bribe amount

to accused No.2 on 26/05/2000. The conduct of accused No.1 on that

is found relevant to the criminal conspiracy which is discussed infurther paragraph.

66] As discussed in earlier paras, there cannot be direct

evidence to prove the offence punishable u/s.120-B of Indian Penal

Code. The prosecution is duty bound to show the circumstances which

creates the offence.

67] In this case, since the CDR produced at Exh.84, 78-A are

admitted by the Ld. advocates for accused No.1 and 2. There is no

reason for me to seek the compliance of Sec.65-B of Indian Evidence

Act. The accused No.1 in Statement u/s. 313 of Cr.P.C. while

answering Question No.88, flatly refused that he received phone callfrom accused No.2, but again this conduct of accused No.1 specially

when the documents on record i.e. Exh.84 is showing that phone calls

was made by accused No.2 to him, is not supporting his plea of total

denial, innocence and false implication.

68] So far as the another argument made by the ld. advocates

for accused No.1 and 2, that the complaint was false and it was

lodged to please the superior officers, but in this connection, nothing

has been produced on record or also suggested in the cross

examination to this witness that on direction of which superior


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officers' or to please which superior officers, the complaint was

lodged. Further, in the entire evidence, no reasons are brought on

record or even in the statement u/s.313 of Cr.P.C., no explanation hasbeen offered by both accused to involve them falsely by the

complainant.

69] So far as the defence of accused No.1 that he was not

having authority to suspend the complainant is concerned, the Ld.

Prosecutor relied upon two reported judgements in support of herargument :-

i] 1976 SCC (Cri.)351 in case of

Chaturdas Bhagwandas Patel V/s. State of Gujrat

- ii] (2004) SCC 399 in case of

State of A.P. V/s. C. Uma- Maheshwara Rao & Ors.

70] In both these judgments it has been observed by

Honorable Lordship that

Not possessing authority could not negate the said charge

And that

To constitute an offence under this section, it is enough if the

public servant who accepts the gratification, takes it by inducing

a belief or by holding, out that he would render assistance to the


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giver with any other public servant and the giver gives the

gratification under that belief. It is further immaterial if the

public servant receiving the gratification does not intend to dothe official act, favour or forbearance which he holds himself

out as capable of doing. This is clear by the last explanation

appended to Section 161 and illustration(c).

71] Thus, from the ratio laid down, it is clear that non

possessing authority to do any act, cannot be defence or ground for

the accused to escape from charges of Corruption, as in this case it is

one of the defence of accused No.1. In view of the cited judgment, I

am not inclined to accept the argument made by Ld. Advocate that the

accused No.1 was not having any authority to suspend the

complainant. It is not disputed by accused No.1, at any point of time

that he was not authorised to recommend suspension of the

complainant.

72] The conduct of both the accused denying the phone call

made by accused No.2, to complainant, and to accused No.1, has

destroyed the presumption of innocence in their favour. As it is

observed by the Honorable Apex Court in a case reported in 1960

CRI.L.J.682 in case ofAnant Chinataman Lagu V/s. State of

Bombay

The conduct which destroys the presumption of

innocence can also be considered as material

This principle laid down by the Honorable Apex Court is applicable in


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this case so far as the answers given by both accused to the questions

put up to them u/s. 313 of Cr.P.C., about the incidence of 23/05/2000

is concerned. Further, their answers are totally contrary to their ownadmissions of documents produced at Exh.78-A, Exh. 84 and Exh.105.

73] So far as the argument made by Ld. Advocate for accused

No.1 and 2 on the point of conduct and questionable character of the

complainant is concerned, at this stage, conduct and character of the

complainant needs to be considered with a view to see that whetherthere is sufficient evidence, to prove the charges u/s.120-B of I.P.C.

In fact, nothing has been brought on record in the cross examination

or in the explanation u/s. 313 of Cr.P.C. to show that when the

complaint was lodged by P.W.3 and when he receives phone call from

accused No.2. He was of such character that his deposition needs to

be discarded. So far as the conduct and questionable character of P.W.3 is concerned, I am discussing the said issue in detail, in further

paragraphs of judgement.

74] So far as the argument that accused No.1 was not

authorised to suspend the complainant is not of much importance, in

view of that, he was authorised to recommend the suspension of the

complainant and it is undisputed fact.

75] The Ld. advocate for accused No.2 argues that, timings of

the call made to complainant and immediately, thereafter to the


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accused No.1, by accused No.2, are not corroborating the oral

evidence of the complainant. It is true that the timings are somehow

different, but it should be kept in mind that the complainant haddeposed after the period of about 10 years from the date of

occurrence of the incidence, such minor discrepancies of the timings

are not unnatural. On the other hand, it is showing that he is not the

tutor witness and he deposed naturally as per his memory. Even if the

timings are somehow different, but for that reason only the evidence

of the complainant cannot be discarded, when it is corroborating tothe Exh.78-A and Exh.84 and also the location from where the calls

were made, as shown in Exh.105.

76] It is well settled principle of law that there cannot be

direct evidence on the conspiracy hatched by accused persons and it

should be inferred from the circumstances showing their guilty mind.

As discussed in above paras, the phone calls made by accused No.2 tocomplainant, the immediate phone call made by accused No.2 to

accused No.1, inspite of stern action suggested, change in the page of

note sheet at Exh.56 showing leniency to all the erring police officers

by accused No.1, continuous visit of accused No.2 to the chamber of

accused No.1 conduct of accused No.1 when complainant visited his

chamber on 26/05/2000 are some of the instances and circumstances

which are connected in one chain and are the circumstances against

accused No.1 and 2.

77] In support of my conclusion, I place reliance on the


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judgment reported in (2002)7 Supreme Court Cases334 in case of

Mohd. Khalid V/s. State of West Bengal, wherein it is observed by

Honorable Lordship of Apex Court thatOffence of conspiracy can be proved by either direct or

circumstantial evidence. However, conspiracies are not

hatched in the open, by their nature, they are secretly

planned. Privacy and secrecy are more characteristics of a

conspiracy, than of a loud discussion in an elevated place

open to public view. Direct evidence in proof of a conspiracyis therefore seldom available. It is not always possible to

give affirmative evidence about the date of the the

formation of

the conspiracy, about the object, which the objectors set

before themselves as the object of conspiracy, and about the

manner in which the object of conspiracy is to be carried

out, all this is necessarily a matter of inference. Therefore,

the circumstances proved before, during and after the

occurrence have to be considered to decide about the

complicity of the accused. Where trustworthy evidence

establishing all links of circumstantial evidence is available

the confession of a co-accused as to conspiracy even without

corroborative evidence can be taken into consideration. It

can in some cases be inferred from the acts and conduct of

the parties.


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78] In view of the above discussion, the argument made by the

Ld. advocates appearing for accused No.1 and 2 are not acceptable to

me. There is sufficient evidence available on record as pointed out byLd. Special Public Prosecutor and the circumstances mentioned in the

above paras are clearly showing that the charge u/s.120-B of I.PC.

r/w. Sec.7, 12, 13(1)(d) r/w.13(2) of Prevention of Corruption Act,

1988 has been proved by the prosecution beyond all reasonable

doubt, in this case.

DEMAND MADE BY ACCUSED NO.2 FOR HIMSELF

AND FOR ACCUSED NO.1 ON 23/05/2000

79] It is the case of the prosecution that on 23/05/2000, when

the complainant was travelling with accused No.2 in his car, accused

No.2 demanded bribe amount of Rs.5 lakhs for accused No.1 and Rs.10,000/- for himself as 'Mehanatana' and further, asked the

complainant to pay the entire amount in the evening on the same day.

Admittedly, the complainant is the sole witness on the point of said

demand made by accused No.2 in his car.

80] In the evidence of the complainant, he deposed about

(Paragraph 6, Page No.3/4) phone call received to him and the

description of the car was given by accused No.2. In the next

paragraph (Paragraph No.7, No.3/4) he deposed that he noticed the

said car,he reached near the car, the person in the car introduced


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himself as Lodha, Chartered Accountant of accused No.1 and asked

him to sit inside the car. After running the vehicle, the car was stopped

and the incidence of 'Sairaj Bar and Restaurant' was narrated byaccused No.2 to him. Then accused No.2 told him that accused No.1

demanded Rs.5 lakhs from the complainant for not suspending him.

Accused No.2 also told him that he will have to pay Rs.3 lakhs as first

installment at 5 O'clock in the evening of the same day and rest of the

amount after the work is over. To inspire his confidence, he also

narrated the name of Steno Sayyed attached to the accused No.1. Hehanded over one piece of paper to him, on which accused No.2

mentioned his name, address and phone number. He again told him to

arrange Rs.3 lakhs and then to inspire confidence, he made a call to

accused No.1.

81] The close association of accused No.1 and 2 has not beendisputed, this can even be infer from the Call details produced at Exh.

78-A and Exh.84. The only suggestion given to the complainant that

You falsely deposed that accused No.2 took

out his mobile and talked with accused No.1.

in my view is not sufficient.

82] It is necessary to bear in mind that the incidence of 'Sairaj

Bar' was very confidential, but according to the complainant, accused

No.2 called him and demanded money from him. Further, nothing

has been brought on record to show that there was previous enmity


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between the complainant and accused No.1 and 2 or the complainant

was used as an instrument by the superior officers of Police

Department to involve the accused No.1 falsely in this case.Therefore, there is no reason to disbelieve the evidence of the

complainant who is the sole witness on the point of first demand

made by accused No.2 in his car.

83] Further, CDR at Exh.84 is showing one incoming call on

the mobile of accused No.2 on 23/05/2000, at about 16.24 hourswhich also corroborating the oral evidence of the complainant that on

that day, in the evening, he made call to accused No.2 (P.W.3/8) and

asked him for some time. The cross examination of P.W.3 was not

conducted on the point that such incidence had not at all occurred

with the complainant.

84] Again the similar argument made by Ld. Advocate for

accused No.1 and 2 that conduct and character of complainant is

questionable. I have already mentioned that I am separately dealing

with this issue, but in my view, this argument cannot be accepted for

the following reason,

i] that the accused No.1 was his superior officer who was

much about in hierarchy than him.

ii] till that date, nothing adverse was happened so as to

lead him to lodge false complaint against accused No.2 or

even mentioning the name of accused No.1 in the


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complaint.

85] The deposition of the complainant on the very firstdemand made by accused No.2 needs to be believed, as according to

the complainant, for the first time, he received phone call from

accused No. 2. He proceeded to meet him. Thereafter, accused No.2

demanded bribe amount for accused No.1 and 'Mehantana' for

himself. This deposition of complainant has not been challenged by

accused No.1 . On behalf of accused No.2, it is suggested that Youhave falsely deposed. It is not suggested that accused No.2 never

demanded money for accused No.1 and for himself. It is not the case

of accused No.2 in his cross examination that P.W.3 never met accused

No.2 near Mahim Police station in the morning of 23/05/2000.

86] It is to be bear in mind that on 23/05/2000, thecomplainant met with accused No.2 for the first time. Therefore,

seeking corroboration is not justified. The evidence of the complainant

without any corroboration on the point of first demand needs to be

accepted, for the reason that, on that occasion, he cannot be treated

or termed as 'an accomplice' for the reason that at that time, he was

not aware that why he was called by accused No.2 or that he was

called by accused NO.2 for demanding gratification. In this regard, I

place reliance on the observation made by the Honorable High Court (

Punjab & Haryana) in a judgement reported in 1983 Cri.L.J. 1338 in

case ofRajendra Kumar Sood V/s. State of Punjab.


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We are of the opinion that there is no question of the

Court insisting upon any such independentcorroboration of the complainant in regard to the

circumstance of the kind. When a given complainant first

visits a public servant for doing or not doing some task

for him he does not go to him as a trap witness. He goes

there in a natural way for a given task. To require a

witness to take a witness with him at that stage wouldamount to attributing to the complainant a thought and

foreknowledge of the fact that the accused would demand

bribe.

For the reasons aforementioned we find no merit in the

argument and hold that no such independent

corroboration of the kind of a fact mooted in

proposition No.1 is necessary at all.

87] The Ld. Advocate for accused No.2 placed reliance on the

judgement reported in case ofPannalal Damodar Rathi V.s, State of

Maharashtra, in AIR 1979 SC 1191, judgement reported in 2005

ALL MR (Cri.)1157, in case of Ninaji Wagh V.s. State of

Maharashtra and 2005(2) Bom.C.R.(Cri.) 940 in case of

Pandharinath Shelke V.s. State of Maharashtra, the situation of the

complainant in the cited cases is totally different than in the case in

hand.


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88] In this case, till meeting with accused No.2, complainant

was not aware that accused No.2 called him in order to demandmoney and therefore, for the incidence dated 23/05/2000, happened

in the morning time, the complainant cannot be treated as 'an

accomplice'.

89] The accused No.2 in the statement recorded u/s.313 of

Cr.P.C. totally denied that he met complainant on 23/05/2000. Againhis false answer are material in this case. Therefore, in view of the

above discussion, the prosecution has proved beyond all reasonable

doubt that the very first demand of bribe, dated 23/05/2000, in the

morning, was made by accused No.2 for accused No.1 and also Rs.

10,000/- for himself. In view of the conspiracy hatched by them, I

answer Point No.2 in the affirmative.

As to Point No.3 and 6.

THE DEMAND AND ACCEPTANCE OF BRIBE AMOUNT

ON 26/05/2000

90] It is the case of the prosecution that after meeting with

accused No.2, the complainant was shocked, thus, on that day instead

of attending his duty, he returned back to his home. Thereafter on

24/05/2000 and 25/05/2000, he proceeded on sick leave. On


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23/05/2000, he made a call from his landline number to the accused

No.2 on his mobile. He talked with accused No.2 and requested him

for sometime to give amount.

91] In the deposition of the complainant, (P.W.3/13) he

narrated that the said conversation between him and accused No.2.

He also recorded in the cassette the conversation between him and

accused no.2. He produced the said cassette at the time of lodging of

the complaint.

92] In the cross examination of this witness, who is again the

sole witness on the said conversation, it is suggested to him by

accused No.2 (P.W.3/43) that he has falsely narrated so. In this

connection, admitted document speaks for itself. In the said

document at Exhibit 84 as discussed in above paragraph, there isentry of incoming call from the landline number of the complainant to

the mobile number of the accused No.2. It shows that on

23/05/2000, at 16.24 hours the complainant called from his landline

number on the mobile number of the accused no. 2. The deposition of

the complainant in this regard is collaborated by the documentary

evidence produced at Exh. 84. The pulse of the said call is shown as

120. If the pulse are converted into minutes which comes as

approximately 1 minutes. The cassette which was produced by the

complainant while lodging his FIR is marked as Article -1 and its

transcript is produced at Exh.37, the said transcript was verified and


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compare by the then Presiding Officer of this Court ( Now High

Court Judge, Honourable Justice Nalawade) and noting to that effect

has also been mentioned in the Roznama dated 09/04/2009.

93] I have carefully gone through the said notings. In the said

noting, it has been observed that ,

The Cassette was sealed on 26/05/2000. Its transcript

at Exh.37 that the conversation recorded in the cassette and the

transcript at Exh.37 is correct.

94] The conversation recorded, being an exhibited document

can be read into the evidence. This conversation is showing that they

were discussing about the amount and the complainant requested for

time to manage the amount.

95] The accused No.2 in the statement recorded u/s.313 of

Cr.P.C. while answering the question No.71, flatly refused that on

23/05/2000 at about 16.24 hours, he received phone call from the

complainant. The said document has been admitted by him. This

conduct of accused is certainly objectionable as it is contrary to his

own admission.

96] In the cross examination of PW 3, it is not suggested to

him that he tampered with the cassette the voice in the said cassette

Article -1 is not of accused No.2. In the entire cross examination, no


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such suggestion has been offered to the complainant. The transcript of

conversation and actual conversation in the cassette was verified by

the Ld. Predecessors of this Court. Hence, there is no reason todisbelieve that the said conversation was not recorded by the

complainant, which was held between him and accused No.2.

97] The Ld. Advocates for accused No.1 and 2 vehemently

argued that the specimen voice of accused No.1 and 2 was not

recorded during the investigation for forwarding the same to CFSL toconfirm that the recorded voice is of accused No.1 and 2. In this

regard, this argument made by the Ld. Advocate cannot be considered

as it is not their case in the cross examination of any witness who

have identified the voice of accused No.1 and 2 that It is not the

original voice of accused No.1 and 2 and it is concocted voice of

accused No.1 and 2. Further, it is also not suggested to thewitnesses that they are not conversant with the voices of accused No.1

and 2 . The Ld. advocate appearing on behalf of accused NO.1 and 2

also strongly objected for relying on the tape recorded evidence for

want of non-compliance of rules framed by the Hon'ble High Court

(Criminal Manual Chapter VI- 'General Rules as to Inquiries and

Trials in all Courts Precedence and expeditious Disposal of Capital

Cases', Rule 24) for production, use and recording of the Tape

Recorded Evidence in Court

which come into force w.e.f. 01/08/1978 .


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98] I have gone through the said rules. According to me,

while preparing transcript and while producing the cassette at Article

1, this rules are followed by the prosecution, as already discussedabove. It is not suggested to the witness i.e. complainant that he

tampered with the cassette before producing it in front of

Investigating officer. The complainant who had heard the voice of

accused No.2 firstly on telephone and then, in his car, is the proper

person to identify his voice. The voice identification of accused no. 2

by complainant also needs to be trusted, in view of that, accused No.2had talked with the complainant on important issue and therefore, it

needs to be presumed that the complainant was remembering his

voice very well. Further, the voice of accused No.2 was identified by

the other witnesses who had an occasion to talk with him. Therefore,

the objection raised by the Ld. advocate for accused No.2 in

connection with the Article No.1 and its transcript is not sustainablespecifically when it is not pointed out that, which rule framed by the

Honourable High Court has not been followed, by the prosecution

while producing Article 1 and its transcript in the Court. Therefore,

the tape recorded evidence dated 23/05/2000 is admissible and found

trustworthy. The said conversation mentioned in Exh.37 took place

between the complainant and accused No.2 on telephone. The

evidence of the complainant is also corroborating by CDR produced at

Exh.84 . It is suggested to P.W.3 that he concocted the voice of

accused No.2 on 23/05/2000. This defence raised by the accused No.

2 is not at all acceptable as there was no reason for the complainant to


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concoct the voice of accused No.2 when for the first time, he met him

in the morning of that day. In the statement u/s.313 of Cr.P.C. of

accused No.2 while answering to Question No.63, he refused that thecall was received on his mobile from the landline of the complainant.

Again this conduct of accused No.2 is material.

99] In view of the above discussion, the evidence of the

complainant on the point that on 23/05/2000 he called on the mobile

of accused No.2 and requested him for sometime to pay the amountcannot be discarded.

100] It is further the case of the prosecution that the accused

No.1 proceeded on sick leave on 24/05/2000 and 25/05/2000 and

during that period, accused No.2 was calling on the landline number

of the complainant. This information was given by the wife of thecomplainant to him. In this regard, the Ld. Advocate for accused No.2

strongly argues that the evidence of the complainant on this particular

issue cannot be believed as his wife who had actually attended the

call, has not been examined. According to him the evidence of

complainant is hear say.

101] This objection raised by the Ld. advocate is not

sustainable. In view of the admitted document at Exh.84 which is

clearly showing that during this period, the calls were made by

accused No.2 on the landline of the complainant. Further, this Exh.84


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is corroborating the evidence of the complainant. Therefore, non

examination of the wife of the complainant as witness is not at all

fatal to the case of prosecution.

102] In this regard, again the accused No.2 in the statement

u/s.313 of Cr.P.C., while answering the question No.71 flatly refused

that he made calls made from his mobile to the landline number of

the complainant. It is not the case of the accused No.2 that during

this period, he was not possessing his mobile. Again this denial iscertainly not favoring the plea of total denial of the accused, in view

of the admitted documents.

103] It is further the case of the prosecution that in the morning

of 26/05/2000, P.W.3 lodged the complaint at Exh.35 with ACB. The

said complaint was registered as Crime No.23/2000 by theInvestigating Officer Shri.Kohe, (PW. 20). It is the case of the

complainant that at the time of lodging of this complaint, he produced

cassette Article A, and chit at Exh.97 given by accused No.2 to him.

Immediately Investigating officer called two panch witness, one Shri.

Medhe (P.W.4) and another Shri. Khandare. The pre trap procedure

was conducted. During the pre trap procedure, personal search of the

complainant was conducted, demonstration of anthracene powder

was shown, anthracene powder was then applied on the currency

notes of Rs.2,10,000/- ( consisting of 4 bundles of 400 currency notes

of Rs.500/- denominations and 100 currency notes of Rs.100/-


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denominations). The said currency notes were then kept in one

polythene bag bearing the marked of Excel Tailor, which was

produced by the complainant. (P.W.3/10, Paragraph 12 and 13) (P.W.4/2, Paragraph 3).

104] According to the complainant,

after checking the said currency notes under UVL, bluish

glow was noted on the currency notes. Thereafter, as per the

instructions of Investigating officer, P.W.20, one Havaldar/employeekept the said tainted currency notes inside the carry bag cautiously

and the said carry bag was given to him by Shri Kohe , (PW 20).

105] In the evidence of P.W.4 he has deposed that,

bluish glow was noted on the currency notes under UVL,

notes were kept in one polythene bag by same Havaldar who hadgiven the demonstration. Shri Kohe gave instructions to the

complainant to carry the said polythene bag containing currency

notes. Therefore, Shri Kokil(P.W.3) lifted that bag in his right hand.

106] The Ld. advocate for accused No.2 has not cross examined

P.W.4, but cross examined P.W.3 (P.W.3/44, Paragraph 55 last 3 lines

continued on Page 3/45,) and this witness admitted that,

it will be incorrect to say that I, myself had lifted the

carry bag containing the tainted currency notes.


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107] The Ld. advocate appearing for accused No.2 pointed out

that this is the major contradiction in the evidence of P.W.3 and 4.

According to him, as per the deposition of P.W.4, the complainanthimself lifted the carry bag in his right hand and according to the

complainant, the said carry bag was handed over to him by

Investigating officer Shri Kohe. In fact, the issue that who had lifted

the carry bag or whether it was lifted by the complainant himself or

whether it was handed over to the complainant by the investigating

officer, is not of much important in this case, or in any trap case. Whatis important is, carrying the tainted currency notes by the

complainant. Only because of such minor contradiction case of

prosecution can not be thrown away.

108] In my view, giving the bag containing tainted currency

notes by the investigating officer in the hand of the complainant orlifting of the said bag by the complainant himself does not make any

difference. Whether either of one is accepted, what is important is

that complainant must possess carry bag containing currency notes in

it in order to hand over the same to the accused. Therefore, the

arguments made by the Ld. advocate is not acceptable.

109] So far as the Chit at Exh.97 is concerned, which was

prepared on one paper of small diary and handed over by the accused

No.2 to the complainant on 23/05/2000 mentioning his name,

telephone number and address, which was later on exhibited as Exh.


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97, I am separately dealing with the evidence of expert witness along

with Exh. 97 and Exh. 98, produced by the prosecution.

110] It is further case of prosecution that, after completing the

pre trap procedure vide Exh.47, all trapping team members with

complainant and panch witnesses proceeded towards the house of the

complainant,at that time, Radio Mechanic Shri Kittur (P.W.14 ) was

also with them. The tape recorder was attached to the landline phone

of the complainant. In the presence of all, the complainant called fromhis landline number, at about 13.30 hours, on the mobile number of

accused No.2. This call has been recorded and shown in Exh.84. The

conversation took place between the complainant and the person on

the other side i.e. accused No.2, was recorded in a Cassette. Then

call was ended. Then after about 10 minutes, one call received on the

landline number of the complainant at about 13.40 hours. The entryin the Exh.84 is showing that this call was made on the landline

number of the complainant by accused No.2. The pulse of both these

calls are showing 90 and 60 respectively. It is showing that for quite

reasonable time the conversation took place between them. This has

been deposed by P.W.3 (Paragraph 16, P.W.3/14, 3/15) (P.W.4/6,

paragraph 6, 4/7 continued on page 4/5). and also in the evidence of

P.W.20, (Page 20/07, 2

IPS Officer Bribery Case Judgement AK Jain

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