(a) The complainant is a regular bribe giver, and
had been giving bribe to different public
servants for a long span of several years;
(b) He had been giving bribe of Rs.10/ per day to
different policemen from Colaba Police Station
for a number of years;
(c) That, no reason has been given by him, or can be
found from the case of the prosecution, about his
suddenly feeling aggrieved by the demand of the
same amount of illegal gratification, on one fine
day;
(d) That, the complainant tried to hide that his
business was being run in partnership with one
Ramdev who had got atleast three public
servants trapped on the allegation of having
demanded bribes;
(e) That, the complainant had been a witness in the
previous trap cases registered against some
public servants previously on the report of the
said Ramdev;
(f) That, the complainant had along with other
photographers and Ramdev Gupta had been
dealing and negotiating with different public
servants for the purpose of enabling him and
other photographers to carry on their business,
and was thus, not a novice in the matter of
seeking favours from, or dealing with public
servants;
(g) That the tainted amount was not accepted by
either the accused no.1 or the accused no.2, but
was accepted by accused no.3 who was not a
public servant;
(h) That, there was no evidence that the accused
no.3 had been acting for and on behalf of the
accused nos.1 and 2, and that, such inference
had been drawn by the trial Court merely from
the use of the word 'hafta' as stated by Joshi
(PW 2) – not initially but only after reading
panchnama;
render it extremely unsafe to hold the charge against any of the
accused as proved.
22 In fact, when the theory of the initial demand itself
was discarded, it was hazardous to place reliance on the evidence
obtained by laying a trap. The reasoning and the findings of the
learned Special Judge are not very logical, inasmuch as it would
mean that the trap was laid without sufficient basis, but did
accidentally succeed. The learned Special Judge did not take into
consideration the special features of the case such as the
complainant being a regular bribe giver, and inspite of that, feeling
aggrieved suddenly on a given date for the demand of the usual
amount for the usual favour. The learned Judge also overlooked
that the complainant had continued to do his business which was
believed to be unauthorized and illegal, and in any case, without a
licence from the local authority, even after the incident. The
learned Judge also overlooked that the complainant and others
had often come in conflict or friction with the public servants over
the issue of permitting them to carry on the business at the
Gateway of India.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.248 OF 2002
Shashikant Sitaram Masdekar & Anr
V
The State of Maharashtra .
Mr.Deepak Thakre, APP for the Respondent State.
CORAM : ABHAY M. THIPSAY, J.
DATED : 27th OCTOBER 2015
Citation:2016 ALLMR(CRI)3775
1 These two Appeals can be conveniently disposed of by
this common judgment as the appellants in both the Appeals were
convicted on a single trial held by the Special Judge (under the
Prevention of Corruption Act, 1988) for Greater Bombay. The
appellants in Criminal Appeal No.248/02 are policemen. The
appellant in Criminal Appeal No.307/02 is, however not a public
servant. He is an ordinary citizen. The learned Sessions Judge has
convicted and sentenced the appellants in Criminal Appeal
No.248/02 of offences punishable under section 7 and of an
offence punishable under section 13(2) read with Section 13(1)
(d) of the Prevention of Corruption Act (hereinafter referred to as
“the P.C.Act”). He sentenced both of them to suffer Rigorous
Imprisonment for 1(one) year each, and to pay a fine of
Rs.1,000/ each on both the counts. He directed that the
substantive sentences would run concurrently. The appellant in
Appeal No.307/02 was convicted of an offence punishable under
Section 12 r/w section 7 of the P.C. Act. The learned Special Judge
sentenced him to suffer RI for 6(six) months and to pay a fine of
Rs.500/.
Being aggrieved by their conviction and the sentences
imposed upon them, the appellants have approached this Court by
filing separate Appeals, as aforesaid.
2 During the pendency of the present Appeals, the
appellant no.1 in Criminal Appeal No.248/02 – Shashikant
Masdekar – passed away. However, since the sentence imposed
upon him by the learned Special Judge comprised of a sentence of
fine also, the Appeal – even in so far as it related to him – did not
abate.
3 The appellants in Criminal Appeal No.248/02 were
the accused nos.1 and 2 respectively, and the appellant in Criminal
Appeal No.307/02 was the accused no.3 in the trial Court. For the
sake of convenience and clarity, they shall be referred to by their
position in the trial Court.
4 The case against the accused persons arose on a
report made by one Baijnath Chaudhary to the Anti Corruption
Bureau (ACB) on 20th February 1992.
5 The prosecution case, as was put forth before the trial
Court may, in brief, be stated thus :
Baijnath Chaudhary is a photographer. He had been
doing his business of photography at Gateway of India in
partnership with one Ramdev Gupta. There were about 20 – 25
photographers who were also, at the material time, doing the
business of photography at Gateway of India. It was not
permissible to do the business of photography in the area of
Gateway of India. Moreover, these photographers had no licence
to run a business. The tourists would have their photographs
taken at Gateway of India, and the photographers – including
Baijnath Chaudhary – would despatch the photographs by post to
the address given by such customers. So far as Baijnath
Chaudhary (hereinafter referred to as 'the complainant) and his
partner Ramdev were concerned, they used to divide the profit at
the end of the day.
Since the business of photography, as was being
conducted by the complainant and other photographers, was
illegal, the police used to demand illegal gratification from these
photographers for permitting them to do their business. In case of
refusal to pay illegal gratification, such photographers would be
taken to Colaba Police Station and would be charged for having
committed an offence punishable under the relevant provisions of
law. In a number of cases that had been filed against them, the
photographers attended the Court and pleaded guilty to the
accusation levelled against them. The police used to permit the
photographers – and even other hawkers – to carry on their
business, provided illegal gratification would be paid to the police.
The police from Colaba Police Station within the jurisdiction of
which Gateway of India is situated, used to collect Rs.10/ per day
by way of illegal gratification from the photographers.
On 20th February 1992, at about 10.00 a.m, the
accused nos.1 and 2 approached the complainant and his partner
Ramdev, and demanded 'hafta' of Rs.10/ each, from both of them.
The accused no.2 Bhosale told the complainant (PW 1) that the
payment should be made on behalf of both, between 2.00 pm to
5.00 pm on the same day. The complainant and his partner
decided to report the matter to the Anti Corruption Bureau (ACB)
and the complainant actually reported the matter to the Anti
Corruption Bureau at about 10.20 a.m. The report was registered
by PI Gaikwad (PW 3) and was treated as the First Information
Report. PI Gaikwad then called for two panchas, and accordingly,
Chandrakant Joshi (PW 2) and Kumthekar, employees working in
the office of the Dy. Director of Land Records, came to the Anti
Corruption Bureau office. It was decided to lay a trap. Anthracin
powder was to be used in the trap. After following the usual pretrap
procedure, a pretrap panchnama was drawn and appropriate
instructions were given to the complainant. Among other things,
the complainant was instructed not to touch the tainted currency
notes and not to give the same until demanded by the policemen.
After the tainted money would be given to the policemen, the
complainant was to give a signal by folding the right sleeve of his
shirt by his left hand.
After the arrangements for laying the trap were
completed, the members of the raiding party, including the
panchas, went up to Lion Gate, together. From there, the
complainant – Baijnath Chaudhary (PW 1) and Chandrakant Joshi
(PW 2) went together to the Gateway of India. The other
members of the raiding party followed them by maintaining some
distance.
The complainant and the panch Joshi kept waiting in
the open space around the Gateway of India till at about 4.00 p.m
when the accused no.3 Pandey approached the complainant, and
made a demand for illegal gratification. The complainant refused
to make the payment and hence, the accused no.3 went away. He,
however, again approached the complainant at about 4.30 p.m,
but this time also, the complainant refused to make any payment.
At about 4.50 p.m, the accused no.3 came along with accused no.1
– Head Constable Masdekar and accused no.2 – Constable
Bhosale, Buckle No.8919. The accused no.1 asked the
complainant – by pointing out a finger towards accused no.3
Pandey – as to why money was not given to him. The complainant
said that he had not had any customer, and therefore, could not
make the payment. The accused no.1 thereupon warned the
complainant that if the payment would not be made, the
complainant would not be allowed to be in that area. Thereafter,
the accused no.2 Constable Bhosale also pointed out towards
accused no.3 Pandey and told the complainant that if money
would not be paid to Pandey, the complainant would be challaned,
and would not be allowed to remain in the area from the next day.
The complainant thereupon took out the tainted currency notes
and gave the same to the accused no.3 Pandey. After accused no.3
had accepted the tainted amount, and had kept the same in his left
breast pocket, the complainant gave the predetermined signal to
the raiding party, whereafter the members of the raiding party
came there and apprehended not only the accused no.3, but even
the other accused. All the accused persons were brought to a
Customs chowky situate nearby. When examined under the ultra
violet rays, bluish glow was found on all the finger tips and thumb
of the right hand of the accused no.3 Pandey. In the personal
search of accused no.3 Pandey, a visiting card on which several
names were written and some markings were made against the
written names, some loose coins, a blue ball pen refill and
currency notes of different denominations, totally amounting to
Rs.655/, were found. No traces of Anthracin powder were found
on the person or clothes of either the accused no.1 or accused
no.2.
6 Further investigation into the matter was carried out.
Sanction of the Commissioner of Police – Shrikant Bapat (PW 4) –
who was the competent authority to accord the sanction as
contemplated under section 19 of the P.C. Act was obtained. On
completion of investigation, a chargesheet was filed against all
the three accused, who, as aforesaid, were tried and held to be
guilty.
7 During the trial, the prosecution examined totally four
witnesses, all of whom have been referred to earlier.
8 I have heard Mr.Rajiv Patil, learned Senior Advocate
for the appellants in Criminal Appeal No.248/02. As none
appeared for the accused no.3 at the time of the hearing of the
Appeals, Mr.Vinod Bhanushali was appointed as amicus curiae to
assist the Court in the matter. I have heard him also. I have heard
Mr.Deepak Thakre, the learned APP for the State.
9 I have carefully gone through the entire evidence
adduced during the trial and other records of the case. I have
carefully gone through the impugned judgment.
10 Before proceeding to discuss the evidence adduced by
the prosecution, some basic features of the matter must be kept in
mind. These features are either undisputed and a part of the
prosecution case itself, or in any case, sufficiently and satisfactorily
established. The first and foremost is that the complainant is
indulging into the business of photography in the area of Gateway
of India, illegally and unauthorizedly. That, it is not permissible to
do photography as and by way of business in the area of Gateway
of India, is accepted by the complainant himself. It is also
admitted that the complainant does not hold any licence issued by
the local authority to do a business. Apart from the police and the
Officers of the local authority i.e. Municipal Corporation, even the
Customs Department appears to be having an objection for
permitting the business of photography to be done in the area of
Gateway of India. The second feature is that inspite of these
objections, the business of photography is being done not only by
the complainant and his partner Ramdev, but also by several other
photographers. This is possible because these photographers,
including the complainant and his partner, pay bribes to the
concerned public servants. The incident giving rise to the present
case has taken place on 20th February 1992, but the complainant
had been doing the business of photography at Gateway of India
since atleast about 8 to 9 years prior to that. That, each of the
photographer used to pay Rs.10/ per day to the police from
Colaba Police Station. That, he having been left with no other
alternative, everyday pays Rs.10/ to the policemen from Colaba
Police Station, has been stated by the complainant in the First
Information Report itself, apart from having accepted this position
in his evidence. The third aspect is that the complainant has not
given any reason for suddenly complaining about the demand of
illegal gratification on a particular date i.e. 20th February 1992
when such demands were usual, had been since about 8 years
prior to 1992 and were being readily acceded to since a number of
years.
11 It is in this background that the complainant's
evidence about the alleged demand and the acceptance of the
bribe amount, needs to be examined. It is well settled that unless
the evidence of the initial demand is satisfactory, the whole
evidence obtained by laying a trap would be open to doubt and
would require a thorough and meticulous scrutiny before it is
accepted. As the evidence with respect to the initial demand is
only that of the complainant, the circumstances in which the
alleged demand was made, and in which category – out of so
many different categories of persons complaining of corruption by
public servant/s, – the complainant falls, needs to be considered
and kept in mind while appreciating his evidence. A reading of
the evidence of the complainant, reveals a number of interesting
aspects.
12 It appears that the disputes between the complainant
and the other photographers, hawkers, operating in the area of
Gateway of India and the public servants concerned, are not
something new. Interestingly, in his evidence, the complainant has
stated that he had been doing the business of photography in the
area of Gateway of India since about 18 – 19 years, which means
that even after the incident, which is the subject matter of the
present case, the complainant had continued his business at the
same place, and had been doing it even when he gave his evidence
before the learned Special Judge which was some time in February
2001. In the crossexamination, the complainant admitted that
the policemen were not allowing him and other photographers to
do business of photography in the area of Gateway of India, and
that on several occasions, the complainant and other
photographers were prosecuted and sentenced to pay fine.
According to him, he had appeared before the Court on 5 – 6
occasions every year. It also transpires that prior to the incident,
he had been assaulted by policemen on 2 – 3 occasions as he had
been found continuing the business inspite of a warning given by
the policemen to him earlier to discontinue the same. It also
transpires that Customs Officers were also not permitting the
photography business to be done at Gateway of India, and that, on
a report made by one photographer, a Custom Officer had been
trapped. The complainant also admitted that after the trap, the
Customs Officers had not been taking interest in preventing
photographers from doing their business. It also transpires that
Ramdev Gupta (who has been referred to as 'Mishra' in the FIR)
and the complainant had been doing the business of photography
in partnership and that, Ramdev Gupta had previously made
reports against a number of public servants to the ACB. On the
complaint of Ramdev Gupta, one Officer from the Municipal
Corporation was trapped and two constables from the Colaba
Police Station were also trapped in the year 1985. The
complainant was a witness in both these cases. It also transpires
that Ramdev had gone with the complainant to the ACB office on
20th February 1992 when the complainant lodged a report (FIR).
The complainant admitted in the crossexamination that the
person referred to as 'Mishra' in the FIR, is actually 'Ramdev
Gupta', and though the complainant said that this mistake
occurred due to some 'confusion', it appears quite unlikely keeping
in mind the long standing business association between the
complainant and the said Ramdev. Instead, the possibility of the
name 'Mishra' having been given to conceal the identity of Ramdev
who had lodged a number of complaints with the ACB against
different public servants in the past, appears to be greater. It
transpired in the crossexamination that the Custom Officer who
had been trapped on a complaint of Ramdev – one Pingle – was
ultimately acquitted. The complainant was a witness in that case.
He was also a witness in the case against two constables from
Police Station – Dinkar Vichare and Sakharam Chougule – who
had been trapped in the year 1985 on a report lodged by Ramdev.
13 It is evident that the complainant is not a reliable
person at all. It is true that he, perhaps, had no other alternative
but to pay money to the public servants concerned, in order to be
able to continue his business, but the fact remains that he is a
habitual bribe giver. He is not a person to whom a demand of
illegal gratification was made for the first time by any public
servants on 20th February 1992. He had been carrying on his
business by giving bribe to different public servants by negotiating
with them, and occasionally, by trapping them. It is also evident
that the demand of illegal gratification used to be made by
different public servants, at different points of time, and even the
policemen from Colaba Police Station who used to demand and
accept illegal gratification used to be different on different
dates./occasions. When such was the position, the complainant was
expected to state a reason for suddenly on a given date feeling like
not giving the bribe and feeling aggrieved by the demand made. This
is more so because the demand also does not seem to be more
than the usual demand which was of Rs.10/ per day.
14 Under these circumstances, it would be hazardous to
accept the evidence of the complainant, and consequently, place
reliance on the evidence with respect to the initial demand, said to
have been made by the accused nos.1 and 2 at about 10.00 a.m on
20th February 1992. In fact, the trial Judge has not believed the
theory of such demand having been made. He has categorically
framed such a point for determination, and has answered the same
in the negative. The learned Special Judge noticed the conduct of
the complainant and observed that he and the other photographer,
hawkers were paying illegal gratification for conducting illegal
business. He, however, also observed that the accused persons
could not derive any benefit from this, and that there was no
justification for demanding and accepting illegal gratification by
them. Though the learned Special Judge was right in that regard,
he ought to have considered as to what prompted the complainant
– who was a habitual and regular bribe giver – to make a
grievance about the usual illegal demand of illegal gratification.
15 Anyway, the learned Judge has disbelieved the
complainant entirely. He categorically held that it was not safe to
rely on the testimony of the complainant. It is on this basis that he
also held that there was no cogent evidence to establish the initial
demand by the accused nos.1 and 2 from Ramdev and the
complainant. He, however, held that the evidence of the panch
Chandrakant Joshi (PW 2) and PI Madhav Gaikwad was sufficient
to hold the accused persons guilty. The learned Judge was of the
view that the demand made by accused nos.1 and 2 at about 4.50
p.m and the acceptance of the tainted amount by them was
satisfactorily proved. The learned Special Judge was of the view
that though the tainted amount was demanded and accepted by
the accused no.3 Pandey, it was proved that the same had been
demanded and accepted on behalf of the accused nos.1 and 2.
According to him, the accused no.3 had aided and abetted the
accused nos.1 and 2 in obtaining illegal gratification from the
complainant for allowing him to conduct his illegal photography
business.
16 The approach adopted by the learned Special Judge in
appreciating the evidence of panch Joshi and Investigating Officer
Gaikwad, does not seem to be proper. It must be clearly
understood that the case of the prosecution was that the tainted
amount was accepted by the accused no.3. It was nobody's case
that it was either accepted by the accused no.1 and/or accused
no.2, or that the accused no.3 had passed it on to the accused no.1
and/or accused no.2. Thus, in order to hold the accused persons
guilty, it was necessary to come to a conclusion that the money that
was accepted by the accused no.3 was for and on behalf of the
accused nos.1 and 2, and that it was pursuant to the demand of
illegal gratification made by the accused nos.1 and 2. In my
opinion, there was no satisfactory evidence in that regard.
17 I have carefully considered the evidence of panch
Joshi and IO Gaikwad. According to Joshi (PW 2), after he and
the complainant went to Gateway of India which was at about
3.15 p.m, they remained there till 4.00 p.m, and it is only at about
4.00 p.m, a person i.e. accused no.3 approached the complainant
and demanded money. The demand that was made, was,
according to Joshi, something like 'gekjk iSlk ns nks'. The complainant
told him that he will not make the payment and then the accused
no.3 Pandey went away. That, Pandey again returned at about
4.30 p.m and on this occasion also, similar conversation took place
between the complainant and accused no.3 Pandey. That, Pandey
then came back to the complainant at about 4.45 p.m to 5.00 p.m
and this time, the accused nos.1 and 2 were with him. One of the
two (i.e. either accused no.1 or accused no.2) asked the
complainant as to why he had not given money to Pandey. The
complainant then told him that he had not had a customer till
then, and he had not earned any money. One of the accused nos.1
and 2 then told the complainant something to the effect that if
money would not be paid, Chaudhary would not be allowed to
remain in the area. According to Joshi, after all this was over, the
other Havildar also said the same thing. He pointed out a finger
towards Pandey and told the complainant to make payment of
money to Pandey. That, it is thereafter that the complainant took
out the money and gave the tainted notes to accused no.3 Pandey.
18 In my opinion, this evidence is hardly sufficient to
show that the amount that was asked to be paid to the accused
no.3 Pandey was as and by way of illegal gratification demanded
by the accused nos.1 and 2. It cannot be overlooked that the
learned Judge has totally discarded the evidence of the complainant
and disbelieved him with respect to the initial demand itself. When
the evidence of the initial demand was not felt acceptable and was
totally discarded, this conversation – as spoken about by panch
Joshi – is not sufficient to come to a conclusion that the money
that was allegedly asked to be paid by the accused nos.1 and 2 to
the accused no.3 Pandey, was as and by way of illegal gratification
for themselves. In coming to the conclusion that it was by way of
illegal gratification, the learned Judge has relied upon the
statement made by Joshi in the further part of his evidence viz :
'that, accused no.3 Pandey had used the word 'hafta' while making
the demand of money'. Joshi mentioned the word 'hafta' only after
reading the panchnama. He had not mentioned it earlier. He was
not questioned before that to try to remember the exact words
used by the accused no.3 while demanding the money. When the
panchnama was shown to him for establishing his signature
thereon, Joshi stated that it was on reading the panchnama that he
recollected that the accused no.3 had asked for demand of 'hafta',
and the word 'hafta' had been used for demanding the money. It is
hazardous to place reliance on this evidence of Joshi which has
been brought on record in this manner. While appreciating the
evidence of the panch witness and the Investigating Officer, the
entire case of the prosecution and the peculiar features of the case,
need to be kept in mind. At the cost of repetition, it may be
observed that it is well settled that when the evidence regarding
the initial demand is found to be unsatisfactory, the entire
evidence obtained by laying a trap would be weak, and would be
difficult to be relied upon.
19 The learned Special Judge did not accept the defence
of the accused no.3 as probable, and disbelieved it entirely. The
accused no.3 had submitted that the amount that was accepted by
him was towards the price of the colddrink which the
complainant had purchased from him previously. The learned
Special Judge has subjected this defence to a very minute and
careful scrutiny, discussed it in greater depth than the prosecution
evidence, and discarded the same. In holding the prosecution case
as proved, he was greatly influenced by his opinion that the
defence was false. In my opinion, the learned Judge was not right
in doing so. In the first place, falsity of the defence by itself would
not establish the case of the prosecution. It would only be one
circumstance that would add strength to the prosecution case.
When the prosecution case is basically weak, not supported by
satisfactory evidence and suffering from obvious infirmities, it
cannot be held as proved merely because the defence is believed to
be false. Moreover, the reasons for discarding the theory of the
accused no.2 as given by the learned Special Judge, do not appear
to be entirely sound. The first reason given by the learned Judge
for disbelieving this claim is that there was no evidence to show
that the accused no.3 was having any bucket or bottles containing
colddrinks with him at the time of the trap. The learned Judge
also observed that the accused no.3 had not specified which colddrinks
had been purchased on credit by the complainant, and how
much amount was due. The learned Judge observed that the
accused no.3 could not show that the price of one or more bottles
of colddrinks would come to the aggregate of Rs.20/, and that,
that is why the accused no.3 had been avoiding to specify which
colddrinks had been purchased by the complainant. The learned
Judge did observe that suggestions were given to the complainant
during his crossexamination that 'Thumsup' and 'Gold Spot' had
been purchased by him from the accused no.3, but further
observed that the prices thereof were not mentioned, and that the
cost of the colddrinks came to Rs.20/, was not shown. It is not
possible to agree with this reasoning so as to hold categorically
that the defence was false. In the first place, when the colddrinks
were said to have been supplied to the complainant previously, it
did not matter that the accused no.3, at the time of demanding the
amount, was not having any colddrinks with him. The
complainant had admitted in the crossexamination that the
accused no.3 had been selling 'kulfi' and 'colddrinks'. Secondly,
the learned Judge ought to have realized that it was nobody's case
and could not be imagined that the accused no.3 was charging the
Maximum Retail Price (MRP) for the goods he was selling.
Hawkers illegally selling goods at places where tourists visit,
seldom charge the MRP and the prices of the goods which they sell
can greatly vary. However, that is not the crucial aspect of the
matter. The crucial aspect of the matter is the failure of the
learned Special Judge to appreciate the role of defence evidence in
the adjudication of guilt or otherwise of an accused. It is well
settled that an accused need not prove his assertions. The burden
of proving the entire case rests on the prosecution. The assertions
of the accused and the statements made by him during his
examination are expected to play a limited role of creating a
reasonable doubt about the truth of the prosecution case, when
taken into consideration along with the evidence. Therefore, that
the defence is false, even if satisfactorily established, would not
ipso facto result in accepting the case of the prosecution.
20 So far as the evidence of Investigating Officer
Gaikwad is concerned, he had not heard the conversation that
took place between the complainant and the accused persons. As
such, only on the basis of a sentence in the testimony of the panch
Joshi (PW 2) that 'word “hafta” was used by the complainant
while demanding the payment', it was unsafe to accept that there
had been a demand of illegal gratification, particularly when this
version was not originally given by Joshi, and was given only after he
read the panchnama.
21 To sum up, the following factors :
(a) The complainant is a regular bribe giver, and
had been giving bribe to different public
servants for a long span of several years;
(b) He had been giving bribe of Rs.10/ per day to
different policemen from Colaba Police Station
for a number of years;
(c) That, no reason has been given by him, or can be
found from the case of the prosecution, about his
suddenly feeling aggrieved by the demand of the
same amount of illegal gratification, on one fine
day;
(d) That, the complainant tried to hide that his
business was being run in partnership with one
Ramdev who had got atleast three public
servants trapped on the allegation of having
demanded bribes;
(e) That, the complainant had been a witness in the
previous trap cases registered against some
public servants previously on the report of the
said Ramdev;
(f) That, the complainant had along with other
photographers and Ramdev Gupta had been
dealing and negotiating with different public
servants for the purpose of enabling him and
other photographers to carry on their business,
and was thus, not a novice in the matter of
seeking favours from, or dealing with public
servants;
(g) That the tainted amount was not accepted by
either the accused no.1 or the accused no.2, but
was accepted by accused no.3 who was not a
public servant;
(h) That, there was no evidence that the accused
no.3 had been acting for and on behalf of the
accused nos.1 and 2, and that, such inference
had been drawn by the trial Court merely from
the use of the word 'hafta' as stated by Joshi
(PW 2) – not initially but only after reading
panchnama;
render it extremely unsafe to hold the charge against any of the
accused as proved.
22 In fact, when the theory of the initial demand itself
was discarded, it was hazardous to place reliance on the evidence
obtained by laying a trap. The reasoning and the findings of the
learned Special Judge are not very logical, inasmuch as it would
mean that the trap was laid without sufficient basis, but did
accidentally succeed. The learned Special Judge did not take into
consideration the special features of the case such as the
complainant being a regular bribe giver, and inspite of that, feeling
aggrieved suddenly on a given date for the demand of the usual
amount for the usual favour. The learned Judge also overlooked
that the complainant had continued to do his business which was
believed to be unauthorized and illegal, and in any case, without a
licence from the local authority, even after the incident. The
learned Judge also overlooked that the complainant and others
had often come in conflict or friction with the public servants over
the issue of permitting them to carry on the business at the
Gateway of India.
23 The appreciation of evidence, as done by the learned
Special Judge, is not proper.
24 This was a case where there certainly was a doubt
about the truth of the matter. The appellants should have been
given benefit of such doubt and should have been acquitted.
25 In the result, the Appeals succeed.
OPERATIVE ORDER IN APPEAL NO.248 OF 2002
The Appeal is allowed.
The impugned judgment and order of conviction of
the appellants, as also the sentences imposed upon them, are set
aside.
The appellants are acquitted.
The bail bonds of the appellant no.2 are discharged.
Fine, if paid by the appellant no.1, be refunded to his
legal heirs. Fine, if paid by the appellant no.2, be refunded to him.
OPERATIVE ORDER IN APPEAL NO.307 OF 2002
The Appeal is allowed.
The impugned judgment and order of conviction of
the appellant, as also the sentence imposed upon him, is set aside.
The appellant is acquitted.
His bail bonds are discharged.
Fine, if paid be refunded to him.
(ABHAY M. THIPSAY, J)
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