Criminal Appeal No. 210 of 2011. Case: Sanjay Vs The State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 210 of 2011 |
| Counsel | For Appellant: S.R. Chitnis, Senior Advocate and Vrishali Raje, Advocate and For Respondents: V.B. Konde Deshmukh, APP |
| Judges | A. M. Thipsay, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Section 173; Prevention of Corruption Act, 1988 - Sections 13(1)(d), 13(2), 19, 20, 3, 7 |
| Judgement Date | April 27, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
A. M. Thipsay, J.
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This Appeal is directed against the judgment and order delivered by the Special Judge (appointed under section 3 of the Prevention of Corruption Act) for Greater Mumbai, convicting the appellant of offences punishable under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as 'P.C. Act') and sentencing him to suffer Rigorous Imprisonment for 3(three) years, and to pay a fine of Rs. 7,500/- on each of the said two counts.
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The prosecution case, as put forth before the trial Court, can be best taken from Form No. 5E of the Printed Prescribed Proforma of the police report (Final Report Form) u/s. 173 of the Code of Criminal Procedure. In brief, it be stated thus:
"Hemant Bhagwat, (hereinafter referred to as 'the complainant') at the material time, was doing his Garment business under the name and style of "Four Seasons Garments" at Unit No. IV, Star Delta Industrial Estate, Saki Naka, Andheri (East), Mumbai-400072. He had no permits or licences required for the said business. That, in the third week of January 2004 at about 2.00 p.m, the appellant went to the Company of the complainant and introduced himself as an Officer in the Encroachment Department, Municipal Corporation of Greater Mumbai, " L" ward, Kurla (West). The appellant asked the complainant whether the complainant had taken permission of the Municipal Corporation for constructing the loft which was in the premises of the complainant's company. The complainant said that he had not taken any such permission whereupon the appellant gave his mobile telephone number to the complainant and asked him to meet the appellant. That, on 5th February 2007, the appellant contacted the complainant on mobile telephone and informed him that he would be coming to meet the complainant in his Company in the evening. Accordingly, the appellant went to the Company of the complainant in the evening and told the complainant that the loft in the Company premises was illegal, and that it would be demolished. The appellant discussed the matter with the complainant and demanded an illegal gratification of Rs. 60,000/- as a consideration for not taking the action of demolition of the said loft. The complainant expressed his inability to pay that much amount whereupon the appellant asked the complainant to consider about the quantum of the illegal gratification and meet him in his office on the next day. The complainant had no desire to pay any illegal gratification or bribe to the appellant, and as such, he reported the matter to the Anti Corruption Bureau (ACB) on 6th February 2007 by giving a complaint in writing. This complaint was verified in the presence of two panchas and in the verification, it became clear that the appellant had demanded an amount of Rs. 45,000/- as and by way of bribe from the complainant and had agreed to accept an amount of Rs. 15,000/- therefrom on 7th February 2007; and as such a crime vide C.R. No. 12/07 was registered. On 7th February 2007 at about 8.35 p.m, the appellant was apprehended red-handed after he had accepted the tainted amount near the counter of a store near Mahim Railway Station. Traces of Anthracene powder, which was used for laying the trap, were noticed on the fingers and the pant pocket of the appellant. Further investigation into the matter was carried out and record of the conversation between the complainant and the accused which had been recorded earlier, was forwarded to the FSL at Kalina. On receipt of the report about the identity of the voices in question, a charge-sheet alleging commission of the aforesaid offences was filed against the appellant who, as aforesaid, was tried, convicted and sentenced by the learned Special Judge."
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The prosecution examined four witnesses during the trial. The first one is the complainant himself and the second is Ajay Sarolkar, a panch. The third witness Jayraj Phatak is the person who had accorded sanction to prosecute the appellant under the provisions of Section 19 of the P.C. Act. The fourth and the last witness for the prosecution is Rajendra Jadhav, the trap laying and Investigating Officer The appellant did not examine himself as a witness. He, however, examined one Nayan Pumbhadiya as a witness in his defence.
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I have heard Mr. S.R. Chitnis, learned Senior Advocate with Mrs. Vrishali Raje, Advocate for the appellant. I have heard Mr. V.B. Konde-Deshmukh, learned APP for the State. I have carefully gone through the record of the case. I have carefully gone through the entire evidence that was adduced during the trial. I have also examined the impugned judgment carefully.
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Mr. Chitnis, the learned Senior Advocate for the appellant contended that the order of conviction, as recorded by the learned Special Judge, is not in accordance with law. He submitted that the prosecution case was suffering from a number of serious infirmities, and was unbelievable in itself. He submitted, firstly, that the appellant was working as a Security Officer in " L" Ward, and had nothing to do with the demolition of illegal structures. He also submitted that the premises of the complainant were not falling within " L" ward. He also submitted that the sanction accorded for the prosecution of the appellant was bad-in-law, and it suffered from non-application of mind. Over and above, he contended that the falsity of the case of the prosecution was established by the fact that the premises in which the complainant claimed he was running a garment factory, did not exist at all, and that this is amply proved from the documents obtained by the appellant under the Right to Information Act. The learned APP, on the other hand, contended that in this case, the acceptance of illegal gratification by the appellant was proved beyond reasonable doubt. That, based on the evidence of acceptance of the bribe amount, the learned Special Judge has properly concluded that the appellant was guilty of the offences in question, and that as such, the order of conviction and the sentences imposed upon the appellant, are proper and legal, needing no interference.
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According to the complainant, the appellant visited his premises situate at Unit I V, Star Delta Industrial Estate, Telephone Exchange Lane, Andheri (East), sometime before February 2007 and introduced himself as a Vigilance Officer from the BMC, Kurla " L" Ward. The complainant is categorical that he did not know the appellant till then.
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The complainant further stated that it is at that time that the appellant informed the complainant that the loft in his factory was illegal, and that the appellant would have to demolish the same. According to the complainant, at that time, the appellant said that if the demolition was to be prevented, the complainant would have to pay money to the appellant. It is in this meeting that the appellant took the mobile telephone number of the complainant, and gave his to the complainant. The complainant also said that initially the appellant demanded Rs. 75,000/- from him, and when the complainant said that he was not in a position to pay such huge amount, the appellant again came to him after two days and demanded an amount of minimum Rs. 60,000/-. In this meeting, the complainant told the appellant that he was not in a position to pay the entire amount in one stretch, and that he would pay it in instalments. It is on the next day, which the complainant remembers to be a Tuesday, that the complainant went to the office of the ACB. Thus, it appears that the demand of Rs. 60,000/- was made by the appellant on a day prior to lodging his complaint with the ACB. Though the complainant has not given the dates of the happenings, since, admittedly, the matter was for the first time reported by him to the ACB on 6th February 2007, the happenings i.e. of the appellant demanding a minimum amount of Rs. 60,000/- as and by way of bribe, and the complainant saying that he would pay the same in instalments, had, clearly, taken place on 5th February 2007.
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It is the case of the prosecution that the verification of the alleged demand was made after the matter was reported by the complainant to the ACB. It is well settled that the demand of gratification is the foundation of the trap cases. The position is so well settled that no further discussion on this aspect is necessary, for the present. What is significant, however, is that according to the prosecution, a trap was laid only after verifying the demand of illegal gratification.
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It would be necessary to first examine what is the evidence with respect to the demand of gratification and incidentally, of the verification of such demand.
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In this case, what the complainant initially reported to...
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