Bombay High CourtThe State Of Maharashtra vs Abdul Ghulam Ambiya Khot And Ors on 7 April, 2022Author:Prakash D. NaikBench:Prakash D. Naik204-apeal-1175-2006.doc\n\n\n\n\n                                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                                       CRIMINAL APPELLATE JURISDICTION\n\n                                                      CRIMINAL APPEAL No.1175 OF 2006\n\n                              The State of Maharashtra                                  Appellant\n                                            Versus\n                              1. Abdul Ghulam Ambiya Khot,\n                              Age 57 Years,\n                              Deputy Tax Inspector,\n                              Thane Municipal Corporation,\n                              Resident of  Own House,\n                              Kharbazar, 12/15 Kalyan, District, Thane.\n\n                              2. Ragho Dhulaji Kokare,\n                              Age 52 Years,\n                              Clerk in Thane Municipal Corporation,\n                              Resident of Om Kalavati Apartment,\n                              3rd Floor, Room No.303,\n                              Kulgaon, Badlapur (E),\n                              District : Thane.\n\n                              3. Mohammad Ayub Ataullah Pathan,\n                              Age 38 Years,\n                              Resident of Arafat Mahal,\n                              B-wing, 2nd Floor, Room No.203,\n                              Kausa  Mumbra.                                           Respondents\n\n\n                              Mr. R. M. Pethe - APP, for the Appellant  State.\n                              None for the Respondents.\n\n\n                                                        CORAM            :   PRAKASH D. NAIK, J.\n                              JUDGMENT RESERVED ON                       :   26th AUGUST, 2021.\n                              JUDGMENT PRONOUNCED ON                     :   7th APRIL, 2022.\n\n\n                              JUDGMENT :1.          The State of Maharashtra has preferred this appeal underDigitally signedby SAJAKALISAJAKALI   LIYAKATJAMADARSajakali Jamadar                     1 of 28\nLIYAKAT    Date:JAMADAR    2022.04.07\n           14:08:31\n           +0530\n                                                                204-apeal-1175-2006.docSection 378(3)of the Code of Criminal Procedure (for short Cr.P.C.)\n\nchallenging the judgment and order dated 3 rd February, 2006 passed\n\nby learned Special Judge, Thane in Special Case No. 20 of 2001. The\n\nrespondent Nos. 1 & 2 were acquitted for the offences punishable\n\nunderSections 7,13(1)(d)r/wSection 13(2)of the Prevention of\n\nCorruption Act, 1988 (for short PC Act), whereas respondent No.3\n\nwas acquitted for the offence underSection 12of the PC Act.2.          The prosecution case is as under :-(a)       The complainant (PW-1) purchased flat consisting three\n\n         rooms bearing Nos. 401, 402 & 403 on 4 th Floor of building\n\n         known as Arafat Mahal, B-Wing, in the year 1994. He was\n\n         occupying the said premises.           He did not pay municipal tax\n\n         from 1998 onwards.(b)       PW-1 was at his native place in Uttar Pradesh for a\n\n         period of about one and half year from 1998.               During his\n\n         absence, the flat was sealed by Municipal Corporation for\n\n         default in payment of tax. When he returned to the premises in\n\n         the year  2000 he came to know about sealing of premises.(c)       In view of resolution of standing committee of Municipal\n\n\n\nSajakali Jamadar                      2 of 28\n                                                             204-apeal-1175-2006.docCorporation passed in June, 2000 it was decided to deliver\n\n         possession of flats to defaulters on payment of arrears.(d)       The complainant (PW-1) met Accused No.1 in his office\n\n         showing his willingness to pay the tax with a request to remove\n\n         the seal.(e)       The Accused No.1 told him to bring Accused No.3,\n\n         secretary of Arafat Apartment.         On 29 th June, 2000, the\n\n         complainant met Accused No.1 along with Accused No.3. The\n\n         tax was calculated and the Accused told him to pay Rs.8,200/-towards tax and additional sum of Rs.3,000/- to him for\n\n         performing work. The complainant        returned without parting\n\n         money.(f)       The complainant met Accused on 4th July, 2000 at his\n\n         office along with Accused No.3 and requested to reduce the\n\n         amount.       On negotiation, the Accused agreed to accept\n\n         Rs.2,000/- for removing the seal of flat and the Accused was\n\n         told to give the amount to Accused No.3 on 5th July, 2000.(g)       Since the complainant was not willing to give bribe, he\n\n         lodged the complaint against Accused No.1 with Anti-Corruption\n\n\n\nSajakali Jamadar                      3 of 28\n                                                            204-apeal-1175-2006.doc\n\n\n\n\n         Bureau, Thane. Complaint was recorded by Inspector Devade.\n\n         Trap was arranged.        Panch witnesses were called.            The\n\n         complainant produced amount of Rs.2,000/- for trap. Procedure\n\n         for trap was completed.(h)       As per plan, the complainant met Accused No.1 at his\n\n         office.    He was supposed to handover the tainted notes, if\n\n         demand is made and thereafter, give signal to the raiding party.\n\n         One of the panch was to accompany complainant and watch the\n\n         events.(i)       The complainant and panch went to the Municipal Office\n\n         at Kausa  Mumbra. Raiding party waited outside. They met\n\n         Accused No.3 at Wasim Hotel. He told the complainant to give\n\n         money to him as the Accused No.1 will not accept money from\n\n         him. The complainant gave trap notes to Accused No.3. The\n\n         amount was kept in pocket. They went to the Municipal Office.\n\n         Accused No.1 was not present in the office. Accused No.2 was\n\n         present in the office. He informed that the Accused No.1 has\n\n         proceeded to Sagar Apartment. Hence, they went to Sagar\n\n         Apartment.      Accused was not found.       They returned to\n\n         Municipal Office and waited for Accused No.1.Sajakali Jamadar                     4 of 28\n                                                             204-apeal-1175-2006.doc\n\n\n\n\n         (j)       Accused No.1 reached the office at about 4.45 p.m. Thecomplainant informed him that he paid Rs.2,000/- to Accused\n\n         No.3 and requested to accept the said amount and remove the\n\n         seal.(k)       The Accused ascertained this fact by questioning Accused\n\n         No.3.     Accused No.1 instructed Accused No.3 to handover\n\n         Rs.5,00/- to Accused No.2 and obtain key of the flat from him.\n\n         Accused No.2 was instructed to receive the tax amount and\n\n         handover the key of the flat.(l)       The complainant handed over the tax money to Accused\n\n         No.2. With the help of clerk receipt of Rs.7,100/- was prepared.\n\n         Receipt of Rs.1,000/- was also prepared and was given to\n\n         complainant.      Accused No.3 gave note of Rs.500 out of trap\n\n         note to Accused No.2. The complainant was told by Accused\n\n         No.2 that peon was not present and on his arrival the key will be\n\n         handed over. The complainant gave predetermined signal. The\n\n         raiding party reached the spot. Accused Nos. 2 & 3 were caught.\n\n         Trap notes of Rs.500/- were seized from Accused No.2.\n\n         Anthracene powder was seen on the finger of Accused No.2.\n\n         Trap panchanama was prepared. Complaint was registered with\n\n         Mumbra Police Station vide Crime No.120 of 200. Sanction for\n\nSajakali Jamadar                      5 of 28\n                                                          204-apeal-1175-2006.doc\n\n\n\n\n         prosecution was obtained. Charge-sheet was filed against the\n\n         Accused.3.          Charge was framed by order dated 23 rd July, 2004 against\n\nAccused. Subsequently, the charge was altered by order dated 1 st\n\nMarch, 2005.4.          The prosecution examined four witnesses. PW-1 Aziz Siddiqui\n\nis the complainant.         PW-2  Prasad Patkar is panch.         PW-3 \n\nKalyaneshwar Prasad Bakshi is sanctioning authority. PW  4 - Kedu\n\nRagho Devade is the Investigating Officer.5.          The statement of the Accused was recorded underSection 313of Cr.P.C. The defence of the Accused was denial. Accused No.1 filed\n\nwritten statement underSection 313of Cr.P.C.(Exhibit  72).\n\nAccused No.2 filed written statement underSection 313of Cr.P.C.\n\n(Exhibit  44). Accused No.3 filed written statement (Exhibit  73).\n\nAccused No.1 filed application on 4th October, 2004 for exhibiting\n\ncertain documents. The Court passed an order on 4th October, 2004\n\nthat the documents admitted by defence be exhibited to be read in\n\nevidence.6.          The Accused were acquitted by the trial Court vide judgment\n\nand order dated 3rd February, 2006 concluding that the story of\n\ndemand on 29th June, 2000 and 5th July, 2000 is not established. The\n\n\nSajakali Jamadar                    6 of 28\n                                                         204-apeal-1175-2006.doc\n\n\n\n\nallegations that the tainted notes were given to Accused No.3 as per\n\ninstructions of Accused No.1 is unbelievable. Explanation of Accused\n\nNo.3 regarding acceptance of money is acceptable. In absence of\n\nevidence regarding demand and motive, the charges against Accused\n\nNo.2 shall fail. Accused No.1 did not receive money. Except evidence\n\nrelating to talk of Accused No.1 with Accused No.3 in the office, there\n\nis no other evidence to prove the charges against him. There are\n\nvarious discrepancies in the evidence of the complainant and panch\n\nwitnesses. Their evidence does not inspire confidence. Prosecution\n\nfailed to prove the guilt of the Accused beyond reasonable doubt.7.          Learned APP submitted that the judgment of acquittal is\n\ncontrary to evidence on record.        The conversation between the\n\nAccused and the complainant establishes that there was demand and\n\nacceptance of bribe amount. Tainted currency notes were recovered\n\nfrom Accused. Demand was proved. Bribe amount was demanded\n\nfor de-sealing the premises. Panch witness supported the case of the\n\nprosecution. Presumption underSection 20of the PC Act was not\n\nrebutted by the Accused.        There was no reason to discard the\n\nevidence of witnesses. The charges were proved beyond doubt. The\n\ntrial Court has committed error in arriving at conclusion that demand\n\nof bribe amount is not proved.          The trial Court has erred in\n\n\n\nSajakali Jamadar                  7 of 28\n                                                               204-apeal-1175-2006.doc\n\n\n\n\nconcluding that the prosecution has failed to prove that during the\n\ncourse of same transaction, on 5th July, 2000 at 5.00 p.m. at\n\nMunicipal Office Accused No.2 has accepted the bribe amount. The\n\nAccused No.3 has aided and abetted other Accused in commission of\n\nthe offences. There is no reason to disbelieve the evidence of the\n\ncomplainant and the panch witnesses which is corroborative in\n\nnature. The trial Court has overlooked the evidence on record and\n\narrived at erroneous conclusion that the charge is not proved beyond\n\ndoubt.8.          In the light of the grounds urged by the appellant in this appeal\n\nand submissions of learned APP, I have scrutinized the evidence on\n\nrecord.9.          PW-1 has deposed that he owns the flat consisting of three\n\nrooms at Arafat Mahal at Kausa. He paid municipal tax up to 1998.\n\nAccused No.3 is secretary of the building. The Corporation sealed the\n\nflat for non payment of taxes in 2000. He was at his native place.\n\nOn enquiry he came to know about arrears of taxes. Accused No.1 is\n\nofficer in Tax Department at Kausa office. Accused No.2 works in\n\nthat office as typist. Accused No.1 told complainant to meet Accused\n\nNo.3. PW-1 was informed that the flat was sealed for non payment of\n\ntaxes. On 29th June, 2000, he visited Municipal Office with Accused\n\n\n\nSajakali Jamadar                      8 of 28\n                                                       204-apeal-1175-2006.doc\n\n\n\n\nNo.3. He was introduced to Accused No.1 and requested to calculate\n\nthe tax and accept it and remove the seal. On Calculation, accused\n\nNo.1 told him that he has to pay Rs.8,200/- towards taxes. Accused\n\nNo.1 demanded Rs.3,000/- as bribe. The accused No.1 told him that\n\nif the amount was not given the seals would not be removed. On 4 th\n\nJuly, 2000, the complainant again went to the office of Accused No.1\n\nalong with Accused No.3 and indicated that he would pay the\n\namount of Rs.8,200/- towards tax on the next day.        He tried to\n\nnegotiate the amount of Rs.3,000/- and it was reduced to Rs.2,000/-.\n\nThe amount was to be given on 5 th July, 2000 at 3.00 p.m. at his\n\noffice. He agreed. He was instructed by Accused No.1 to give the\n\namount of Rs.2,000/- to Accused No.3.          On 5 th July, 2000\n\ncomplainant went to Anti-Corruption Bureau, Thane office and\n\nlodged Complaint.   Panchas were called.    Procedure for trap was\n\ncompleted. Instructions were given to complainant and panch\n\nwitnesses and members of raiding party.     All of them proceeded\n\ntowards the office of Accused. They reached near Petrol Pump. As\n\nper instructions, he along with panch PW-2 went to Wasim Hotel,\n\nwhere he was supposed to meet Accused No.3. PW-1 and PW-2 went\n\nto Wasim Hotel and met Accused No.3 outside the hotel. Accused\n\nNo.3 told him that he was waiting for him and told him that they\n\nwould go to pay the tax and the seal would be removed. He further\n\nSajakali Jamadar               9 of 28\n                                                       204-apeal-1175-2006.doc\n\n\n\n\ntold him to give Rs.2,000/- which was to be given to Accused No.1 as\n\nhe would not accept money himself from him.        The notes were\n\nhanded over to Accused No.3. He accepted them. Than, they went to\n\nmunicipal office with him.   Accused No.1 was not present in the\n\noffice. Accused No.2 was present. He informed that Accused No.1\n\nhas gone to Sagar Apartment. Thereafter the complainant, panch\n\nwitness and Accused No.3 went to Sagar Apartment.      Accused No.1\n\nwas not found. They returned to Municipal Office at 4.00 p.m. and\n\ninformed accused No.2 that accused No.1 was not present. Accused\n\nNo.2 asked PW-1 about nature of work.       He told him about it.\n\nAccused No.2 told him that the Accused will reach by 5.00 p.m. At\n\n4.45 p.m. accused No.1 reached there. Complainant requested him\n\nto accept the tax amount and remove the seal of flat. Accused No.1\n\nasked PW-1 whether he gave Rs.2,000/- to Accused No.3. Accused\n\nNo.3 told him that work was done and he received Rs.2000/-. He\n\nalso told accused No.2to accept Rs.8,200/- from complainant to\n\nremove the seals. Accused No.1 told Accused No.3 to go out as he\n\nwanted to discuss something. He went out. Complainant went out\n\nwith PW-2. Accused No.3 again told that he had received amount for\n\naccused No.1 and accused No.1 may take the money. Accused No.1\n\ndirected accused No.3 to give Rs.500/- to accused No.2. Except this,\n\nhe (PW-2) could not listen other conversation between them. Again\n\nSajakali Jamadar               10 of 28\n                                                         204-apeal-1175-2006.doc\n\n\n\n\nthey went inside the office. Accused No.1 directed accused No.2 to\n\naccept the tax amount and to issue receipt. He directed Accused\n\nNo.3 to give Rs.500/- to accused No.2. He also told that he was\n\ngoing out for some work. Thereafter PW-1 gave Rs.8,00/- to accused\n\nNo.2. He took money and issued two receipts. One for Rs.7,100/-\n\nand the other for Rs.1,000/-. Accused No.3 handed and kept it in\n\npocket. over amount of Rs.500/- to Accused No.2. He accepted the\n\namount. He demanded receipts. Accused No.3 asked Accused No.2\n\nto go to the flat and remove the seal. Accused No.2 told that office\n\npeon was not available and on his arrival seal would be removed.\n\nAccused No.3 went out. Complainant gave signal to raiding party.\n\nThe raiding party caught Accused No.2.        Accused No.3 was also\n\ncaught. Further procedure was completed. In the cross examination\n\nhe stated that there was only one secretary for all the wings of Arafat\n\nMahal. Tax from all the flat owners was collected by the society and\n\npaid in Municipal office. On 29 th he was at the office of Accused for\n\n15-20 minutes. Conversation took place in the office. Except himself\n\nAccused No.1 and Accused No.3 nobody was present in hearing\n\ndistance at the time of conversation. He do not remember whether\n\nhe stated while complaint was lodged that Accused No.3 introduced\n\nhim to Accused No.1 and told him to calculate the tax and accept the\n\nmoney. This fact is not stated in the complaint. He did not state\n\nSajakali Jamadar                11 of 28\n                                                          204-apeal-1175-2006.doc\n\n\n\n\nbefore the Police. He had stated this fact when his supplementary\n\nstatement was recorded. He cannot say why it is not mentioned in it.\n\nHe felt that after paying taxes he had right to get back the possession.\n\nHe had no money on 29th to pay the taxes and he was not knowing\n\nhow much amount was due and therefore, he did not pay taxes on\n\n29th. He borrowed Rs.10,000/- from his friend which was used for\n\ntrap. In view of demand he felt that it was necessary to give bribe.\n\nHe did not like the demand.    He did not state to police that Accused\n\nNo.1 told him that if the amount was not given, the seals would not\n\nbe removed. He has stated that this fact during his supplementary\n\nstatement. He cannot say why it is not recorded in his supplementary\n\nstatement. He was not willing to pay the bribe. He questioned the\n\nAccused about it. He stated that he will not do the work unless the\n\nbribe was paid. He agreed to pay bribe on 29 th. He did not approach\n\nAssistant Commissioner Raje or Commissioner as he wanted to\n\napproach the Anti-Corruption Bureau to trap the Accused. He felt\n\nthat on approaching Commissioner, he would not be required to pay\n\nbribe. On 29th he did notapproach ACB as he had no money on that\n\nday and also for the reason that he had told the accused that he\n\nwould approach him again on 4th. He had not told the Accused that\n\nhe would approach him on 4th. On 4th he went to the office of the\n\nAccused at 3.00 p.m. Accused Nos.1 & 3 were present. He did not\n\nSajakali Jamadar                12 of 28\n                                                        204-apeal-1175-2006.doc\n\n\n\n\ninform accused No.3 that he was to trap accusedNo.1. He did not\n\ninform accused No.3 that he lodged complaint. Accused No.3 was\n\nsecretary and hence he took him with on 29 th. As per instructions he\n\nwas to approach Accused No.1 at his office with panch and pay the\n\ntax and obtain the receipt and then to make a request to open the flat\n\nand if there was demand he was to give trap money to him. He was\n\ninstructed to give signal on acceptance of bribe.     There were no\n\ninstructions to meet Accused No.3 and to give him the trap notes. He\n\nwas not asked by Mr. Devade, where Accused No.3 was and where he\n\nwould meet. He did not tell him about it. He did not mention his\n\nname in ACB office.     He did not tell Devde that accused No.1\n\ninstructed him to give money to accused No.3. The panch was not\n\nknowing accused No.3 Shri. Devade did not instruct him to search\n\nfor accused No.3. He was not knowing that he would meet Accused\n\nNo.3 near Wasim Hotel. He told the panch that Accused No.3 was\n\nsecretary of the building. The panch was with him when the trap\n\nnotes were given. The panch questioned him when he gave trap\n\nnotes to Accused No.3. According to him from the talk with Accused\n\nNo.3, the panch got knowledge as to why the amount was given to\n\nAccused No.3. Raiding party members were watching them. He do\n\nnot know whether raiding party members witnessed the incident of\n\ngiving trap notes. Before giving trap notes to Accused No.3 he did\n\nSajakali Jamadar               13 of 28\n                                                       204-apeal-1175-2006.doc\n\n\n\n\nnot contact Shri. Devde for further instructions. He did not consult\n\npanch at that time. Except panch nobody witnessed the incident of\n\ngiving trap notes. Shri. Devde did not sent anybody at the hotel to\n\nsee why they were there. The talk with Accused No.3 was in normal\n\ntone. Money was given openly. The panch was silently watching the\n\nevents till they reached Municipal Office. He did not signal at Wasim\n\nHotel as the trap notes did not reach the target. He did not contact\n\nShri. Devde after knowing that Accused No.1 was not in the office.\n\nHe did not ask Accused No.2 to receive the money of tax. Without\n\norder from Accused No.1, tax would not have been accepted in the\n\noffice. He cannot tell why he did not give the tax money to Accused\n\nNo.3. He was not knowing why Accused No.1 had gone to Sagar\n\napartment. Shri. Devde did not send anybody to contact them. The\n\nraiding party followed them to Sagar Apartment.      They were not\n\ncontacted by raiding party till they returned to Municipal Office.\n\nThe panch did not tell him that the events were not happening as per\n\ninstructions. He did not tell Accused No.3 to give money to Accused\n\nNo.1. He did not feel that the money did not reach the target. He\n\nfelt that accused No.1 would accept the money from Accused No.3.\n\nWhen Accused No.1 and Accused No.3 went out of office for\n\ndiscussion, he followed them to listen conversation. Accused No.1\n\nasked whether his work was done and Accused No.3 said, yes.Sajakali Jamadar               14 of 28\n                                                        204-apeal-1175-2006.docExcept this, that other conversation took place between them could\n\nnot be heard. He had stated to Police in supplementary statement\n\nthat instruction to give Rs.500/- to Accused No.2 was given inside the\n\noffice. It is not mentioned in supplementary statement. The money\n\nhas reached the hand of Accused No.2. He do not know whether\n\nAccused No.1 had received the money or not. He tried to contact Mr.\n\nDevde. It was not possible for him to stop Accused No.1. Panch did\n\nnot ask him to stop Accused No.1 from going out.           He got the\n\npossession of flat in the night of trap. The name of Accused No.2 is\n\nnot mentioned in the complaint.       He had stated to Police that\n\nAccused No.3 introduced him to Accused No.1 and appraised him of\n\nthe fact and requested to calculate the tax and to accept the amount\n\nto remove the seal.    However, this fact is not mentioned in the\n\ncomplaint. He felt that Accused No.1 and Accused No.3 may accept\n\nbribe outside the office and therefore went out with panch. Accused\n\nNo.2 asked about nature of work. There were no instructions to meet\n\nAccused No.3 at Wasim Hotel. It was not decided that he should\n\nmeet Accused No.3 at Wasim Hotel. In the supplementary statement\n\nhe had stated that Accused No.3 told him that he was waiting for him\n\nand that they were go to pay the tax and seal would be removed.\n\nThis fact was not mentioned in the supplementary statement. He do\n\nnot know whether accused No.1 received money or not nameof\n\nSajakali Jamadar               15 of 28\n                                                           204-apeal-1175-2006.doc\n\n\n\n\naccused No.2 is not mentioned in complaint. He had stated to Police\n\nthat accused No.3 had introduced him to accused No.1 and appraised\n\nhim of the facts and requested to calculate the tax and to accept the\n\namount and to remove the seal. He felt that accused No.1 & 3 may\n\naccept money outside the office and therefore he went out with\n\npanch after them. Accused No.2 was not present when accused No.3\n\nto give Rs.500/- to Accused No.2. There were no instructions to meet\n\naccused No.3 at Wasim Hotel. It was not decided that he should\n\nmeet him at Wasim Hotel. It is not mentioned in his statement that\n\naccused No.3 told him that he was waiting for him and that they\n\nwould go to pay the tax and that seals would be removed.10.         Thus, the evidence of PW-1 suffers from serious doubt. There\n\nare various omissions in his statement. It is difficult to accept his\n\nevidence about demand and acceptance of bribe. PW-1 and PW-2\n\nhad acted contrary to the instructions given by the raiding party. The\n\namount was not given to Accused No.1.            His evidence does not\n\ninspire confidence. There was no conversation with accused No.2 to\n\nabout demand and acceptance of bribe amount.11.         PW-2  Prasad Patkar is panch witness.    He stated that he\n\nattended Anti-Corruption Bureau Office on 5 th July, 2000 along with\n\nDeepak Phulkar. Complainant was present. His complaint was that\n\n\n\nSajakali Jamadar                    16 of 28\n                                                           204-apeal-1175-2006.doc\n\n\n\n\none Khot employee of T.M.C. demanded bribe from him to open seal\n\nof his flat.       He was told to act as panch witness.     Complainant\n\nproduced cash of Rs.2,000/-. Anthracene Powder was applied. Notes\n\nwere shown under ultra violet light. He kept the notes in his pocket.\n\nPanchanama was drawn.           He was instructed to accompany the\n\ncomplainant as his relative. Phulkar was instructed to accompany\n\nraiding party. They left ACB office. They reached the office of T.M.C.\n\nAccused was not present. Accused No.2 was present. He told that\n\nAccused No.1 had proceeded towards building.           They proceeded\n\ntowards that building which was in front of office. Raiding party\n\nfollowed them. Accused No.1 was not present.         They returned to\n\noffice. They met Accused No.3. He was secretary of the society of\n\nthe complainant.        He took them to Wasim Hotel.      Accused No.3\n\ninquired with complainant whether he did the job of Accused No.1.\n\nHe replied in affirmative. Accused No.3 told him that Accused No.1\n\nwill not accept money from him and that the money should be given\n\nto him. On this complainant gave amount to him. He accepted the\n\nsame. Accused No.3 told him to pay the tax in the office. They went\n\nto office. Accused No.1 was not present. Accused No.2 was present.\n\nThey waited for Accused No.1.           After sometime Accused No.1\n\nreached there.        Accused No.3 was present.   Accused No.1 called\n\nAccused No.3 outside and asked him whether his work was done.Sajakali Jamadar                  17 of 28\n                                                          204-apeal-1175-2006.docAccused No.3 said 'yes'. Accused No.1 instructed Accused No.3 to\n\ngive Rs.500/- to Accused No.2. He further told that Accused No.3\n\nshould keep the remaining amount with him and he would collect\n\nlater on. Thereafter they went inside the office.        Accused No.1\n\ninstructed Accused No.2 to receive the tax amount and he left the\n\nplace. He instructed Accused No.2 to handover the key of the flat.\n\nThe complainant paid the tax amount. Receipt was issued. Receipts\n\nwere given to Accused No.1. On giving signal, raiding party reached\n\nthe spot.          Accused No.2 was apprehended.    Currency notes of\n\nRs.500/- were recovered from Accused No.2. Rs.1,500/- were found\n\nwith Accused No.3. In the cross examination he stated that as per\n\ninstructions, the complainant was to contact Accused No.1 and talk to\n\nhim and handover the trap notes in the event there is demand of\n\nbribe from him.         The raiding party members were outside.            On\n\nfinding that Accused No.1 was not in the office, they did not contact\n\nthe Investigating Officer. There were no instructions to search for\n\nAccused No.1, if he was not present in the office.        They crossed\n\ndistance of about 10 minutes for his search.       They did not inform\n\nabout it to Shri. Devde. He did not feel that it is necessary to inform\n\nabout the said fact to Shri. Devde. They did not feel that trap was\n\nover as Accused No.1 was not present at the office. Shri. Devde had\n\ninstructed him to accompany the complainant till further instructions.Sajakali Jamadar                   18 of 28\n                                                        204-apeal-1175-2006.docHe was aware that the notes were to be given to Accused No.1.\n\nComplainant told him that Accused No.3 was secretary of the society.\n\nHe felt that the trap notes were not given as per instructions. It did\n\nnot occur to him that it was not proper. He did not disclose to Shri.\n\nDevde that the notes were given to wrong person. He did not know\n\nhow Accused No.3 reached the spot. Accused No.1 had reached the\n\noffice at about 4.00 to 4.15 p.m. He was there for about 10 to 15\n\nminutes. The trap notes were with Accused No.3. It did not occur to\n\nhim to prevent to Accused No.3 from going out. From conversation\n\nbetween Accused No.2 and Accused No.1 he came to know that he\n\nwas the officer. Shri. Devde did not ask him why signal was not\n\ngiven on arrival of Accused No.1. He did not tell PW-1 to inform\n\nShri. Devde that the Accused No.1 is leaving office.      He was not\n\nknowing Accused No.2. His name was disclosed accidentally. There\n\nwere no instructions whether trap amount was to be paid. The trap\n\namount was given to Accused No.2 by the same hand by which trap\n\nnotes were given by complainant. They were at Wasim hotel for 10\n\nminutes.12.         PW-3 Kalyaneshwar Bakshi is the sanctioning authority.\n\nAccording to him he was Muncipal Commissioner, Thane. He was\n\ncompetent to appoint Assistant Tax Inspector and clerks in the\n\n\n\nSajakali Jamadar                 19 of 28\n                                                               204-apeal-1175-2006.doc\n\n\n\n\ncorporation. He received investigation papers from ACB with request\n\nto accord sanction for prosecution. He went through the papers and\n\ncame to the conclusion that it was fit case for filing charge-sheet.\n\nThe general body resolved to accord sanction for prosecution of the\n\nAccused. On the basis of that resolution he accorded sanction by\n\norder dated 26th June, 2001. The sanction order was issued on 27th\n\nJune, 2001.        In the cross examination he stated that the copy of\n\nresolution was sent along with sanction order.                He produced\n\nforwarding letter received from ACB. He admitted that draft sanction\n\nwas sent to him in sealed envelope. He did not remember whether\n\ndocuments about the sanction of the flat of complainant were seen by\n\nhim. Flat and shops of defaulters were purchased by the corporation\n\nfor normal price.        The complainant was defaulter.       There was no\n\ndemand by Accused No.2. He did not accept bribe from him. The\n\nPolice papers revealed that the complainant did not follow the\n\ninstructions of ACB officers in giving trap notes, even though, he did\n\nnot find any suspicion.          He relied on the report of ACB and\n\ninvestigation papers. The sanction order was drafted by personnel\n\nofficer. He approved it. It is identical to draft sanction.13.         PW-4 Kedu Ragho Devde is the Investigating Officer. According\n\nto him complainant lodged the complaint against Accused No.1 about\n\n\n\nSajakali Jamadar                    20 of 28\n                                                             204-apeal-1175-2006.doc\n\n\n\n\ndemand of bribe. He arranged the trap.            Panch witnesses were\n\nsummoned.            Amount was arranged by complainant.        Instructions\n\nwere given to complainant and the panch witnesses.                          The\n\ncomplainant was instructed to visit office of Accused No.1 with panch\n\nwitness. The trap notes were to be handed over to the Accused in the\n\nevent of demand by him. On receipt of the bribe amount by Accused,\n\nthe complainant was instructed to give signal to the raiding party.\n\nThey left the office for trap. The raiding party along with him was\n\nwaiting outside the office of Accused. He met Accused No.3. Three\n\nof them entered the hotel. They came out of the hotel and went\n\ntowards the municipal office. Accused No.1 came to his office. After\n\nsometime Accused No.1 left the office. Accused No.2 was working as\n\nclerk in the office. Complainant gave signal to the raiding party.\n\nThereafter, they approached into the office of Accused No.1 and\n\ncaught the hands of Accused No.2. The complainant was asked to\n\nwait outside. Tainted money were recovered. Traces of anthracene\n\npowder were noted on the currency notes.               Panchanama was\n\nrecorded.          Statements of witnesses were recorded.   Accused were\n\narrested and subsequently granted bail. Papers were forwarded for\n\nobtaining sanction. Sanction was accorded. Charge-sheet was filed\n\nagainst the Accused. In the cross examination he deposed that, he\n\nwas convinced about the story reflected in the last paragraph of the\n\nSajakali Jamadar                     21 of 28\n                                                         204-apeal-1175-2006.doc\n\n\n\n\ncomplaint.         He arranged trap against Accused No.1.   Instructions\n\nwere given to the raiding party, complainant and panch witnesses.\n\nWasim Hotel is adjacent to Municipal Office. Going towards the hotel\n\nby complainant and panch witnesses was contrary to instructions\n\ngiven to them. He did not feel it necessary to know why they acted\n\nso. He had no discussion with the second panch and members of\n\nraiding party about it.       He has no personal knowledge about the\n\nevents occurred inside the Wasim Hotel and Municipal office. He did\n\nnot feel it necessary to know why they came out of the office after\n\nfirst visit and went towards Sagar Apartment.        He did not know\n\nwhere they were going. He did not feel it necessary to know why\n\nthey again returned to Municipal Office. Till the signal was received,\n\nhe was not aware whether the complainant and panch witness had\n\nmet Accused No.1. On receiving signal, he felt that Accused No.1\n\nhad accepted the trap amount. The complainant pointed out fingers\n\ntowards Accused No.2 and Accused No.3 and told that money was\n\nreceived them. He did not inquire about Accused No.1. He came to\n\nknow from Accused No.2 and Accused No.3 that the Accused No.1\n\nwas not there. He did not find it necessary to mention one person\n\nhad entered the office and subsequently his name was revealed as\n\nKhot (Accused No.1). The events which were not personally seen by\n\nhim are narrated in the complaint as told by complainant. There\n\nSajakali Jamadar                   22 of 28\n                                                            204-apeal-1175-2006.doc\n\n\n\n\nwere no instructions in respect to Accused No.2 & Accused No.3. The\n\ntrap was against Accused No.1. The Deputy Superintendent of Police\n\ndid not make any endorsement on the complaint. There is no record\n\nthat he read the complaint.         Statement was not recorded during\n\ninvestigation.        He do not know why he was examined by the\n\nprosecution. It was revealed that three flats from Arafat Mahal were\n\nseized by Corporation due to arrears of tax. The flats were auctioned\n\nand the same were purchased by corporation. As per the auction, the\n\nCorporation became owner of the flat. The complainant was given\n\npossession of the flats. The complainant moved an application to the\n\nCommissioner for possession of flats. Accused No.3 was arrested on\n\nthe same day.           He did not record the statement of Municipal\n\nCorporation. Supplementary statement of the complainant was\n\nrecorded.          He did not state before him that Accused No.1 had\n\ninstructed to give Rs.500/- to Accused No.2.           When he caught\n\nAccused he did not know where and when the trap notes were given.\n\nHe did not feel it necessary to inspect tax amount under ultra violet\n\nlight.14.         In addition to explanation given by the Accused qua questions\n\nput to them while recording statement underSection 313of Cr.P.C.,\n\nWritten statements were filed by them. The written statement filed\n\n\n\nSajakali Jamadar                    23 of 28\n                                                                   204-apeal-1175-2006.doc\n\n\n\n\nby       Accused     No.1   mentions     that     incriminating   circumstances\n\nappearing on record were put to him in the form of questions &\n\nanswers.           He denied the incident alleged against him.                    The\n\ncomplainant filed false complaint as he told him that it was not\n\npossible to remove the seals even if he pays the tax in respect to three\n\nflats. Seals were put up by corporation which had purchased the flat\n\nin auction and reserved for rehabilitation.           The complainant did not\n\nvisit his office. He had gone to Mumbra for routine work. He has\n\ninstructed Accused No.2 to receive the tax amount.                    He did not\n\ninstruct the Accused No.3 to pay Rs.500/- to Accused No.2. Accused\n\nNo.2 has also filed similar statement and contended that he has been\n\nfalsely implicated in the case. On the day of trap, he was in the office\n\nand the Accused No.1 had gone to Mumbra office. The complainant\n\npaid the tax. Accused No.1 was not in the office at all. Bribe was not\n\ndemanded by the Accused.           Accused No.3 has also filed written\n\nstatement and contended that PW-1 was in arrears of maintenance\n\ncharges. The complainant gave writing that he would pay the arrears\n\nof maintenance. The arrears was to be paid by Accused No.3. The\n\nflats were sealed by the Corporation in 1998. On 5 th July, 2000 he\n\nwas at his residence. In the afternoon, he was conveyed the request\n\nof complainant. He was told to accompany him for collecting the\n\nreceipt of tax. He went to T.M.C. office. He has no acquaintance\n\nSajakali Jamadar                       24 of 28\n                                                              204-apeal-1175-2006.doc\n\n\n\n\nwith Accused No.1 and Accused No.2. He had not met Accused No.1.\n\nFalse complaint is filed by PW-1. He was not concerned with the\n\ntrap.15.         From the evidence of all these witnesses it is apparent that the\n\nprosecution case suffers from serious doubt. The trial Court gave\n\nfindings of acquittal.          The impugned judgment was based on the\n\nreasoning of trial Court.           The version of PW-1 is doubtful.         The\n\nevidence of PW-2 contradicts PW-1. Motive has been attributed to\n\nPW-1 for falsely implicating the Accused. The demand of bribe by\n\nAccused No.1 has not been established beyond doubt. The case of\n\nthe prosecution is that bribe was demanded by Accused No.1. The\n\nAccused No.3 was the abettor. He accepted the money from PW-1.\n\nAmount of Rs.500/- was handover to Accused No.2. There was no\n\ndemand of bribe by Accused No.2. Accused No.1 and Accused No.2\n\nare public servants.            The entire case of the prosecution speaks\n\nvolumes of doubts. The complainant and the panch witnesses have\n\nacted contrary to instructions given to them. Accused No.2 was not\n\nin picture at all.           Accused No.3 was also not concerned with the\n\nwork.              The complainant had approached Accused No.1.       Accused\n\nNo.1 was not present in the office when PW-1 & PW-2 had visited the\n\noffice. It has not been explained that PW-1 & PW-2 has proceeded\n\n\n\nSajakali Jamadar                       25 of 28\n                                                             204-apeal-1175-2006.doc\n\n\n\n\ntowards the building. They were acting contrary to the instructions\n\nby the officers of ACB.          The alleged conversation of PW-1 and\n\nAccused No.1 does not refer to involvement of either Accused No.3 or\n\nAccused No.2. Accused No.3 has been inducted by the complainant\n\nhimself. It is not the case of the prosecution that Accused No.1 had\n\nrequested PW-1 to handover bribe amount to Accused No.3 or\n\nAccused No.2. Money was not accepted by Accused No.1. Accused\n\nNo.3 is not a public servant. The defence of Accused No.3 would\n\nindicate that he was Secretary of the society where the flats of\n\ncomplainant were situated. Accused No.3 was collecting arrears of\n\nmaintenance.          Flats were sealed on account of non-payment of\n\ncharges. The complainant was interested in releasing the flats. The\n\nAccused No.1 had instructed the complainant to pay the tax. The\n\nquestion of demanding bribe does not arise.16.         The trial Court has taken into consideration the infirmities in\n\nevidence and rightly acquitted the Accused.              The conduct of\n\ncomplainant is suspecious. As per evidence of PW-4 it is apparent\n\nthat flats were sealed for non-payment of tax. The property was\n\nauctioned. The Corporation purchased the property. The flats were\n\nearmarked for transit accommodation.             The Accused No.1 was\n\nDeputy Assistant Tax Inspector in Kausa Office of Corporation.Sajakali Jamadar                     26 of 28\n                                                            204-apeal-1175-2006.docAccording to complainant he met Accused No.1 along with Accused\n\nNo.3. Accused No.1 demanded Rs. 3,000/- as bribe for removing\n\nseal.        According to him Accused No.3 introduced him to Accused\n\nNo.1 and appraised him of facts and requested to calculate the tax\n\nand remove the seals. This part of evidence is an omission. In the\n\nmeeting on 29th, Accused No.1 allegedly told him that the seals would\n\nnot be removed if the bribe amount was not given.               This is an\n\nomission. It appears that after purchase of flats by Corporation in\n\npublic auction and earmarked for certain purpose, it would not be\n\nwithin power of the Assistant Tax Inspector to remove the seals.17.         The statement of complainant is contrary to prosecution case.\n\nThere were no instructions to contact Accused No.3 at Wasim Hotel.\n\nThe instructions were to contact Accused No.1 and give trap notes to\n\nhim on demand. The Panchanama is silent about instructions when\n\nthe complaint was given and preparations were made and\n\ninstructions were given, the Accused No.3 was not in picture.                  If\n\nAccused No.1 had asked PW-1 to give money to Accused No.3, this\n\nfact would have been mentioned in the complaint. Trap would have\n\narranged by taking into consideration of this fact. In normal course\n\nPW-1 and PW-2 would not have gone in search of Accused No.1.\n\nThey could have waited in the office for his arrival. However, they\n\n\n\nSajakali Jamadar                    27 of 28\n                                                                204-apeal-1175-2006.doc\n\n\n\n\nwent towards Sagar Apartment contrary to instructions. PW-1 did\n\nnot contact the raiding party when Accused No.1 was not found in\n\nthe office.            They could not have searched Accused No.1 at Sagar\n\nApartment. They did not contact raiding party. According to panch\n\nhe took them to Wasim Hotel. Accused No.3 inquired whether he has\n\ndone the job of Khot (Accused No.1). Trap amount was given to him.\n\nIf amount was given to Accused No.3 at Hotel Wasim either before\n\nmaking search for him or thereafter, the trap was over and there was\n\nno reason to again contact Accused No.1. The plan as per pre-trap,\n\npanch was to trap Accused No.1. However, the action was contrary.\n\nAll these aspects create doubt about the prosecution case. The Trial\n\nCourt has assigned cogent reasons for acquittal. I do not find any\n\ninfirmity in the decision of the trial Court. The appeal must fail.18.         Hence, I pass the following order:-ORDER\n\n                         Criminal Appeal No.1175 of 2006 is dismissed and\n\n                   stands disposed of accordingly.(PRAKASH D. NAIK, J.)\n\n\n\n\nSajakali Jamadar                          28 of 28