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Gulabdastagir Ramzan Inamdar And … vs The State Of Maharashtra on 15 June, 2018

203-APPEAL-823-2015-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.823 OF 2015

1) GULABDASTAGIR RAMZAN INAMDAR )
)
2) SUNIL PANDHARINATH POKALE )…APPELLANTS

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Pawan Mali, Advocate for the Appellants.

Mr.A.R.Kapadnis, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 15th JUNE 2018

JUDGMENT :

1 This appeal is taken up for final hearing in view of the

order dated 7th May 2018 of the Honourable Supreme Court in

Petition for Special Leave to Appeal (Crl.) No.3758 of 2018 filed

by appellants/ accused.

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2 Two appellants/convicted accused, by this appeal, are

challenging the judgment and order dated 24 th July 2015 passed

by the learned Special Judge, Anti Corruption Bureau, Pune, in

Special Case No.32 of 2014. By the said judgment and order,

appellant/accused no.1 Gulabdastagir R. Inamdar came to be

convicted of offences punishable under Sections 7 and 13(1)(d)

read with 13(2) of the Prevention of Corruption Act, 1988

(hereinafter referred to as P.C.Act, 1988, for the sake of brevity).

For the offence punishable under Section 7 of the said Act, he is

sentenced to suffer rigorous imprisonment for 1 year, apart from

imposition of fine of Rs.3,000/- and default sentence of rigorous

imprisonment for 3 months. For the offence punishable under

Section 13(1)(d) read with 13(2) of the P.C.Act, 1988, he is

sentenced to suffer rigorous imprisonment for 2 years, apart from

imposition of fine of Rs.5,000/- and default sentence of rigorous

imprisonment for 3 months. Appellant/accused no.2 Sunil P.

Pokale came to be convicted of the offence punishable under

Section 12 of the P.C.Act, 1988, and he is sentenced to suffer

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rigorous imprisonment for 1 year, apart from payment of fine of

Rs.3,000/- and default sentence of rigorous imprisonment for 3

months. Appellant/accused no.1 G.R.Inamdar, at the relevant

time, was working as Assistant Police Inspector, whereas appellant

/accused no.2 S.P.Pokale was working as Police Naik with the

Alankar Police Outpost falling under jurisdiction of Police Station

Kothrud.

3 Facts leading to the prosecution of appellants/accused

persons can be summarized thus :

(a) Complainant/PW1 Santosh Bhelke approached the Anti

Corruption Bureau, Pune, on 22nd August 2013 and lodged

the complaint Exhibit 7 against appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector. Complainant/PW1

Santosh Bhelke in his complaint Exhibit 7 made the

following allegations :-

(i) In November 2011, he (Santosh Bhelke) married

Samiksha Borile, who was resident of the same Housing

society, located at Survey No.87, Azad Nagar, Kothrud, Pune.

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On 23rd May 2013 there was dispute between the couple

over domestic issue. Two policemen then came to their

house and called them to Alankar Police Outpost. Therefore,

complainant/ PW1 Santosh Bhelke and his mother, so also

Samiksha and her parents attended Alankar Police Outpost

and met appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector and his staff. They were served with notice

under Section 149 of the Code of Criminal Procedure. Two

or three days thereafter, appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, contacted

complainant/PW1 Santosh Bhelke from his cell phone and

told him to come to Alankar Police Outpost. When

complainant/PW1 Santosh Bhelke attended Alankar Police

Outpost, appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector, demanded Rs.50,000/- from him by

threatening that he (G.R.Inamdar) had not obtained the

First Information Report (FIR) from Samiksha, but now also

he can obtain the FIR. Under this threat, complainant/PW1

Santosh Bhelke paid an amount of Rs.40,000/- to

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appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector.

(ii) It is further averred in the complaint Exhibit 7 by

complainant/PW1 Santosh Bhelke that 2¼ months

thereafter, appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector, called him and informed him that Samiksha

had lodged complaint and what is to be done in the matter.

When complainant/PW1 Santosh Bhelke showed his

willingness to cohabit with Samiksha, appellant/accused

no.1 G.R.Inamdar, Assistant Police Inspector, said that he

will conciliate and settle the matrimonial dispute and

accordingly made efforts on two or three occasions to settle

the matrimonial dispute. Complainant/PW1 Santosh Bhelke

further averred that in second week of August 2013,

appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, again called him and demanded an amount of

Rs.25,000/- on account of the work done by him, but

complainant/PW1 Santosh Bhelke refused. Thereafter,

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appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, asked complainant/PW1 Santosh Bhelke to pay an

amount of Rs.10,000/- immediately and granted time to pay

rest of the amount after compromise in the matter. On this

insistence by appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector, complainant/PW1 Santosh Bhelke paid an

amount of Rs.10,000/- to him.

(iii) According to complainant/PW1 Santosh Bhelke, on 19 th

August 2013, his wife Samiksha lodged FIR against him as

well as his mother and three sisters, which resulted in

registration of the offence punishable under Section 498A of

the Indian Penal Code. It is further averred in the complaint

Exhibit 7 that on that day, appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, had arrested him at

11.00 p.m. and produced him in the court on 20 th August

2013. Then he was released on bail. Complainant/PW1

Santosh Bhelke further averred in the complaint Exhibit 7

that, thereafter, the court granted ad-interim anticipatory

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bail to his mother and three sisters on 21st August 2013,

with a direction that they should attend Kothrud Police

Station from 22nd August 2013 to 26th August 2013. When

he accompanied his mother and three sisters to Kothrud

Police Station, the staff working there directed him to meet

appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, at Alankar Police Outpost, he being the

Investigating Officer of the said offence.

(iv) It is averred in the complaint Exhibit 7 by

complainant/PW1 Santosh Bhelke that, therefore on 22 nd

August 2013, he met appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector, at Alankar Police Outpost and

showed him the order granting ad-interim anticipatory bail

to his mother and sisters. Thereupon, as per contention of

complainant/PW1 Santosh Bhelke, appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, demanded an

amount of Rs.50,000/- from him by stating that he is to

investigate the crime in question and he would investigate

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the crime in a manner that the offence would not be proved

and the charge-sheet favouring the accused persons would

be sent to the court. It is categorically averred in the

complaint by complainant/PW1 Santosh Bhelke that

appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, told him that he has already conveyed his demand

of Rs.50,000/- to the friend of complainant/PW1 Santosh

Bhelke. Complainant/PW1 Santosh Bhelke further alleged

in his complaint Exhibit 7 that he informed appellant/

accused no.1 G.R.Inamdar, Assistant Police Inspector, that

his financial position is not sound. Thereupon,

appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, scaled down the demand to Rs.25,000/-.

Complainant/PW1 Santosh Bhelke, further, reported to Anti

Corruption Bureau, Pune, that he is not desirous of giving

bribe to appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector and requested the Anti Corruption Bureau

to take necessary action.

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(b) PW3 Vinod Satav, Police Inspector of Anti Corruption

Bureau, Pune, who is the Investigating Officer, recorded the

complaint Exhibit 7 lodged by complainant/PW1 Santosh

Bhelke on 22nd August 2013 itself. Thereafter, two panch

witnesses were requisitioned from the office of the

Additional Director General of Police (Prison), Pune on

22/08/2013 itself. Accordingly, P.W.No.2 Rahul Bodade

(Panch Witness No.1) and Vijay Hile (Panch No.2) attended

the office of the Anti Corruption Bureau (hereinafter

referred to as ‘ACB’ for the sake of brevity), Pune. Their

consent was obtained. Then they were introduced to

complainant/P.W.No.1 Santosh Bhelke. They verified the

compliant (Exhibit 7) and thereafter put their signatures

thereon. Panch witnesses as well as the complainant were

then asked to come to the office of the ACB on 23/08/2013

for the purpose of verification of demand as well as for

laying the trap.

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(c) On 23/08/2013, both panch witnesses and the complainant

came to the office of the ACB, Pune in the morning.

Complainant/P.W.No.1 Santosh Bhelke produced

government currency notes to be paid as bribe to

appellant/accused No.1 G.D.Inamdar, Assistant Police

Inspector. In pre-trap panchanama (Exhibit 10), this fact is

noted by stating that complainant/P.W.No.1 Santosh Bhelke

produced one currency note of Rs.500/-, two currency notes

of Rs.100/- each and one currency note of Rs.500/- (though

the demand was for an amount of Rs.25,000/-). Numbers of

those currency notes were recorded in the pre-trap

panchanama (Exhibit 10). The government currency notes

produced by complainant/P.W.No.1 Santosh Bhelke were

smeared with the anthracene powder by Police Head

Constable Palande and they were checked under the ultra

violet lamp. Then currency notes emitted bluish tinge.

Police Head Constable Palande then folded those currency

notes and kept in the left shirt pocket of the

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complainant/P.W.No.1 Santosh Bhelke. All these events

were being recorded in pre-trap panchanama (Exhibit 10).

Necessary instructions were imparted to the complainant/

P.W.No.1 Santosh Bhelke and panch witnesses. Complainant

/P.W.No.1 Santosh Bhelke was asked to meet appellant/

accused No.1 G.D.Inamdar and to speak him in respect of

work. P.W.No.2 Rahul Bodade (Panch Witness No.1) was

asked to hear their conversation carefully. It was further

instructed to the complainant that after confirmation of the

demand of bribe by appellant/accused No.1 G.D.Inamdar,

then only he should hand over the tainted currency notes

kept in his left shirt pocket by right hand to appellant/

accused No.1 G.D.Inamdar and then he should gave a pre-

determined signal to the squad of the ACB. P.W.No.2 Rahul

Bodade (Panch Witness No.1) was asked to keep vigil and

observe minutely as to whether bribe money is then kept by

the accused. He was, thus, to act as a shadow panch. After

completion of these formalities and finishing of the

recording of pre-trap panchanama (Exhibit 10), the team of

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ACB lead by Assistant Police Commissioner Galande left the

office of the ACB at about 10.45 a.m. of 23/08/2013.

(d) Around 11.30 a.m. of 23/08/2013, raiding squad of the ACB

accompanied by complainant/P.W.No.1 Santosh Bhelke and

both panch witnesses reached near Alankar Police Outpost,

where P.W.No.3 Vinod Satav, Police Inspector again

reiterated the instructions and tagged the Digital Voice

Recorder to the banian of complainant/P.W.No.1 Santosh

Bhelke. Then complainant/P.W.No.1 Santosh Bhelke along

with P.W.No.2 Rahul Bodade (Panch Witness No.1/shadow

panch) were sent to the Alankar Police Outpost for meeting

for meeting to appellant/accused No.1 G.D.Inamdar,

Assistant Police Inspector for verification of demand at about

11.45 a.m. They both returned to the raiding squad of the

ACB at about 12.50 p.m. of 23/08/2013. P.W.No.2 Rahul

Bodade (Panch Witness No.1/shadow panch) then informed

P.W.No.3 Vinod Satav, Police Inspector of the ACB that

complainant/P.W.No.1 Santosh Bhelke had introduced him

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to appellant/accused No.1 G.D.Inamdar as surety and there

was talk between both of them in respect of the work.

P.W.No.2 Rahul Bodade (Panch Witness No.1/shadow panch)

further informed that complainant/P.W.No.1 Santosh Bhelke

requested appellant/accused No.1 G.D.Inamdar to get the

surety bond executed from P.W.No.2 Rahul Bodade (Panch

Witness No.1/shadow panch) but the appellant/accused

No.1 G.D.Inamdar told him that this work will be done after

31/08/2013. Thereafter, P.W.No.2 Rahul Bodade (Panch

Witness No.1/shadow panch) further informed P.W.No.3

Vinod Satav, Police Inspector and other staff of the ACB that

complainant/P.W.No.1 Santosh Bhelke informed appellant/

accused No.1 G.D.Inamdar that he has an amount of

Rs.20000/- with him and he will give the remaining amount

in next two days. Upon that, as per recitals of P.W.No.2

Rahul Bodade (Panch Witness No.1/shadow panch),

appellant/accused No.1 G.D.Inamdar told complainant/

P.W.No.1 Santosh Bhelke that the entire amount be given

immediately. Complainant/P.W.No.1 Santosh Bhelke then

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told the appellant/accused No.1 G.D.Inamdar that he will

come back in half an hour with the full amount. With these

recitals of P.W.No.2 Rahul Bodade (Panch Witness No.1),

P.W.No.3 Vinod Satav, Police Inspector and staff of the ACB

came to the conclusion that there was demand of illegal

gratification amounting to Rs.25000/- by appellant/accused

No.1 G.D.Inamdar from complainant/ P.W.No.1 Santosh

Bhelke and, therefore, it was decided to lay a trap.

(e) Then again the Digital Voice Recorder was tagged inside the

shirt of complainant/P.W.No.1 Santosh Bhelke and he along

with P.W.No.2 Rahul Bodade (Panch Witness No.1/shadow

panch) were sent to the Alankar Police Outpost at about

1.10 p.m. of 23/08/2013. Members of the raiding team of

the ACB as well as Panch No.2 Vijay Hile took their position

nearby Alankar Police Outpost. Seven to eight minutes

thereafter, appellant/accused No.1 G.D.Inamdar came out of

the Police Outpost and went towards Kothrud. Thereafter, at

about 1.20 p.m. of 23/08/2013, complainant/P.W.No.1

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Santosh Bhelke came out of the Police Outpost and gave pre-

arranged signal. Reading squad of the ACB accompanied by

Panch No.2 Vijay Hile then immediately rushed inside the

Alankar Police Outpost. P.W.No.2 Rahul Bodade (Panch

Witness No.1/shadow panch) was asked as to who has

received the amount of illegal gratification. He pointed out

appellant/accused No.2 S.P.Pokale, Police Naik as a person,

who received the tainted currency notes. Thereafter, the

Digital Voice Recorder was put off and taken in custody of

the ACB. Upon checking hands and clothes of appellant/

accused No.2 S.P.Pokale in ultra violet light, those were

found emitting bluish tinge showing presence of anthracene

powder thereof. Tainted currency notes were recovered

from right pant pocket of appellant/accused No.2 S.P.Pokale.

Their serial numbers matched with the government currency

notes produced by complainant/P.W.No.1 Santosh Bhelke.

Those were also found to be smeared with an anthracene

powder.

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(f) At about 1.50 p.m. of 23/08/2013, there was a phone call of

appellant/accused No.1 G.D.Inamdar on the cell phone of

appellant/accused No.2 S.P.Pokale. P.W.No.3 Vinod Satav,

Police Inspector of ACB then asked appellant/accused No.2

S.P.Pokale to speak by putting on the speaker of his

cellphone. Conversation between the appellant/accused

No.1 G.D.Inamdar and appellant/accused No.2 S.P.Pokale

was then recorded on the Digital Voice Recorder which was

with P.W.No.3 Vinod Satav, Police Inspector of the ACB.

(g) Appellant/accused No.1 G.D.Inamdar was then brought back

to the Alankar Police Outpost and thereafter case papers of

the FIR lodged by Samiksha against complainant/P.W.No.1

Santosh Bhelke were taken in custody by the ACB. Search of

cupboard of appellant/ accused No.1 G.D.Inamdar was

taken. Thereafter, the staff of the ACB along with panch

witnesses and both appellants/accused went to the Police

Station, Kothrud where further proceedings in respect of

post-trap formalities were undertaken. Conversation

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recorded in the Digital Voice Recorder right from verification

of demand till conclusion of the trap was then heard. It was

transferred on the laptop of the ACB. Transcript of the

recorded conversation was prepared and incorporated in the

Verification-cum-Trap panchanama (Exhibit 11). From the

laptop, then recorded conversation between complainant/

P.W.No.1 Santosh Bhelke and appellant/accused No.1

G.D.Inamdar as well as the conversation with appellant/

accused No.2 S.P.Pokale and recorded telephonic

conversation between both the accused came to be

transferred to the Audio Cassette and that Cassette came to

be seized. All these events including the transcript of

recorded conversation during the verification of demand till

end of the trap panchanama found in the Digital Voice

Recorder were incorporated in the Verification-cum-Trap

panchanama (Exhibit 11).

(h) On completion of post-trap formalities, along with covering

letter (Exhibit 19), FIR (Exhibit 20) came to be lodged with

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the Police Station, Kothrud by P.W.No.3 Vinod Satav, Police

Inspector of the ACB. Accordingly, Crime No.3152 of 2013

for offences punishable under Sections 7, 12, 13(1)(d) read

with Section 13(2) of the Prevention of Corruption Act,

1988 came to be registered against the appellants/accused

persons.

(i) During the course of investigation, on 28/08/2013, both

appellants/accused persons were given the Verification-cum-

Trap panchanama and they were asked to read the portion

conversation written against their names. That is how

samples of voice of both appellants/accused persons came to

be taken by recording recitals of the appellant/accused and

preparing the audio cassette thereof. This event was

recorded by preparing panchanama (Exhibit 15) of taking

voice samples of both appellants/accused persons. That

panchanama was also prepared in presence of P.W.No.2

Rahul Bodade (Panch Witness No.1) and Vijay Hile. Call

Detail Records of the appellants/accused persons and that of

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complainant/P.W.No.1 Santosh Bhelke were collected. Vide

letter (Exhibit 24) dated 19/09/2013 audio cassette of voice

samples of both the appellants/accused so also the audio

cassette of voice recording during the start of demand

verification till the end of trap were sent to the Regional

Forensic Laboratory, Mumbai, for report. On conclusion of

investigation, the appellants/accused persons were charge-

sheeted.

(j) The learned Special Judge (ACB), Pune framed and

explained charge for offences punishable under Section 7,

13(1)(d) read with Section 13(2) and under Section 12 of

the Prevention of Corruption Act, 1988 to appellants/

accused persons. They pleaded not guilty and claimed trial.

(k) In order to bring home the guilt to the appellants/accused

persons, prosecution has examined in all three witnesses.

Complainant Santosh Narayan Bhelke is examined as

P.W.No.1. Complaint lodged by him with the ACB on

22/08/2013 is at Exhibit 7. Rahul Ramesh Bodade (Panch

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Witness No.1) is examined as P.W.No.2. Pre-trap

panchanama recorded on 23/08/2013 is at Exhibit 10.

Verification-cum-Trap panchanama is at Exhibit 11. Exhibit

Nos.12 and 13 are arrest panchanamas and Exhibit 15 is the

panchanama of taking voice samples of appellants/accused

persons. Investigating Officer, Vinod Satav, Police Inspector

of the ACB is examined as P.W.No.3. FIR lodged by him is at

Exhibit 20. Exhibit 23 is the letter addressed to the ACB by

the Deputy Commissioner of Police, Pune giving details of

service record of the appellants/accused persons. Exhibit 24

is the request letter for report by the ACB addressed to the

Forensic Laboratory, Mumbai forwarding seized audio

cassettes. Exhibits 25 to 27 are communications with and by

Cellular Company.

(l) Defence of the accused persons was that of total denial.

According to appellant/accused No.1 G.D.Inamdar, API, he

registered the offence against complainant/P.W.No.1 Santosh

Bhelke on the basis of report lodged by wife Samiksha on

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18/08/2013 and had arrested said Santosh. He produced

complainant in the Court and demanded police custody.

Thereafter, on 23/08/2013, complainant/P.W.No.1 Santosh

Bhelke came to him along with one surety and insisted him

to accept the surety in pursuant to the ad-interim

anticipatory bail granted to his mother and sisters.

According to the defence, appellant/accused No.1

G.D.Inamdar informed him that interim bail cannot be

accepted and he should bring two witness daily and also

produce some documents. Thereafter, in the afternoon,

complainant/P.W.No.1 Santosh Bhelke came alone and asked

him whether he should give to Pokale saheb. Thereupon he

said “yes” presuming that complainant/P.W.No.1 Santosh

Bhelke must be asking about submission of documents.

Thereafter, he left for offering namaj. So far as

appellant/accused No.2 S.P.Pokale is concerned, his defence

is to the effect that no work of complainant/P.W.No.1

Santosh Bhelke was pending with him and he had neither

demanded nor accepted bribe.

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4 After hearing the parties, by the impugned Judgment

and Order the learned trial Court was pleased to convict

appellant/accused No.1 G.D.Inamdar for the offences punishable

under Sections 7, 13(2)read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988, whereas appellant/accused

No.2 S.P.Pokale is convicted only for the offence punishable under

Section 12 of the said Act. It is apposite to note the reasonings of

the learned trial Court for recording this conviction and resultant

sentence. The learned trial Court gave a finding that

complainant/P.W.No.1 Santosh Bhelke has not supported the

prosecution case on the point of acceptance of the amount in

presence of P.W.No.2 Rahul Bodade (Panch Witness No.1) and has

changed his stand during the cross-examination. The learned trial

Court further observed that the prosecution did not cross-examine

complainant/P.W.No.1 Santosh Bhelke though it ought to have

cross-examined the said witness because of his changed stand in

the cross-examination. The learned trial Court further recorded

that complainant/P.W.No.1 Santosh Bhelke has stuck up to the

prosecution case in respect of the initial demand and there is

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evidence of independent panch witness i.e. P.W.No.2 Rahul Bodade

(Panch Witness No.1). It is further observed that this shadow

witness is a government servant working as ‘Junior Clerk’ with the

Director General of Police (Prison), he is dutiful citizen of India,

who came forward to assist the investigating agency and if his

evidence is disbelieved, then it will add insult to his pride. With

this reasoning, the learned trial Court concluded that the

prosecution has proved recovery of tainted currency notes from

possession of the accused enabling it to raise presumption under

Section 20 of the Prevention of Corruption ct, 1988. The accused

did not offer any plausible explanation as to how the accused No.2

came into possession of tainted currency notes. Call Detail Record

shows that there was a phone call made by appellant/accused

No.1 G.D.Inamdar to appellant/accused No.2 S.P.Pokale. With

these reasonings, the learned trial Court concluded that the

prosecution has proved beyond all reasonable doubts that

appellant/accused No.1 G.D.Inamdar demanded an amount of

Rs.25,000/- on 22/08/2013 and 23/08/2013 and accepted the

same through appellant/accused No.2 S.P.Pokale in order to

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favour complainant/PW1 Santosh Bhelke in an official act. The

learned trial Court further recorded a finding that both the

appellants/accused misused their official position and by corrupt

and illegal means obtained pecuniary advantage and thereby

committed criminal misconduct. At this juncture, it is apposite to

note that though this finding is recorded even in respect of

appellant/accused No.2 S.P.Pokale, the learned trial Court had not

taken any steps which would have enabled him to convict the

appellant/accused No.2 S.P.Pokale for the offence punishable

under Section 13(2) read with Section 13(1)(d) of the Prevention

of Corruption Act, 1988. Thus, the learned trial Court itself found

testimony of complainant/P.W.No.1 Santosh Bhelke unworthy of

credit and had relied on part of his testimony. The appellants

/accused were then convicted and sentenced on the basis of

evidence of shadow panch i.e. PW2 Rahul Bodade.

5 I have heard Shri.Mali, the learned Advocate

appearing for both appellants/accused persons at sufficient length

of time. By taking me through evidence of complainant/P.W.No.1

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Santosh Bhelke and by comparing it with evidence of P.W.No.2

Rahul Bodade (Panch Witness No.1/shadow panch), the learned

Advocate vehemently argued that entire evidence of prosecution

regarding initial demand allegedly made by appellant/accused

No.1 G.D.Inamdar is by way of omission. The learned Advocate

further argued that evidence regarding the demand at the time of

trap is also of no use to the prosecution as the same is in the

nature of vague and sweeping statement. There is variance in

evidence of complainant/P.W.No.1 Santosh Bhelke and P.W.No.2

Rahul Bodade – shadow panch in respect of place as well as

alleged demand of illegal gratification. Their versions are totally

contradictory to versions of each other and it is not possible to

record a finding that who amongst the two is speaking the truth.

Therefore, the entire prosecution evidence needs to be discarded

and as there is no evidence of demand of illegal gratification, the

appellants/accused persons are entitled for acquittal. The learned

advocate has placed reliance on various reported judgments,

which I propose to deal with at the appropriate place. The

learned APP on the other hand supported the impugned judgment

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and order by contending that the purpose of recording evidence is

not to test the memory of witnesses and in the case in hand, the

prosecution has proved the demand as well as acceptance of

illegal gratification.

6 I have carefully considered the rival submissions and

also perused the Record and Proceedings including oral as well as

documentary evidence. The defence has not disputed the fact that

the prosecution was preceded by a valid sanction by the authority

in terms of Section 19 of the P.C.Act, 1988. The sanction order is

not disputed by the defence.

7 Considering the charges leveled against appellants/

accused persons, in the case in hand, the prosecution will have to

prove that the appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector had demanded and accepted through

appellant/accused no.2 S.P.Pokale, Police Naik, gratification other

than legal remuneration amounting to Rs.25,000/- as a motive or

reward for showing favour in the official act. It will have to be

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established that by corrupt or illegal means and by abusing his

position, the appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, had obtained for himself pecuniary advantage. It will

have to be proved by the prosecution by cogent evidence that –

(a) at the time of the alleged offence, appellants/accused
persons and more particularly appellant/accused no.1
G.R.Inamdar, Assistant Police Inspector, was a public
servant;

(b) Appellant no.1 / accused no.1 G.R.Inamdar, Assistant
Police Inspector demanded and accepted or obtained
for himself gratification other than legal remuneration;

(c) such gratification was accepted as a motive or
reward for official act i.e. investigating the crime in a
manner favourable to complainant/PW1 Santosh
Bhelke and the presentation of the charge-sheet in a
manner that the complainant/PW1 Santosh Bhelke
and his relatives would not be convicted.

(d) Appellant/accused no.2 S.P.Pokale abetted the offence
punishable under Section 12 of the Prevention of
Corruption Act by accepting an amount of Rs.25,000/-
for and on behalf of appellant no.1/accused no.1
G.R.Inamdar.

If these ingredients are established by the prosecution, then the

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Charge leveled can be held to be proved. The third requirement

in respect of motive or reward for doing official act is generally

difficult to prove against the public servant. Therefore, the

legislature has enacted Section 20 which prescribes rule of

presumption. The presumption specified therein will arise only

upon proof that accused has accepted any gratification other than

legal remuneration. This mandatory presumption of law is

required to be understood in terrorum i.e. in tone of command

(see M. Narsinga Rao vs. State of Andhra Pradesh1). Prior to

appreciating, evaluating and analyzing evidence of the

prosecution, let us put on record the position of law on the subject

matter.

8 At this juncture, it is also apposite to note the burden

of proof expected from the appellant/accused for rebutting the

presumption as envisaged by Section 20 of the Prevention of

Corruption Act. In the matter of Trilok Chand Jain vs. State of

Delhi2 the Hon’ble Apex Court has held thus :

1 (2001) 1 SCC 691
2 AIR 1977 SC 666

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“If at such a trial, the prosecution proves that the
accused has accepted or obtained gratification other
than legal remuneration, the court has to presume
the existence of the further fact in support of the
prosecution case, viz., that the gratification was
accepted or obtained by the accused as a motive or
reward such as mentioned in Section 161, Penal
Code. The presumption however, is not absolute. It
is rebuttable. The accused can prove the contrary.
The quantum and the nature of proof required to
displace this presumption may vary according to the
circumstances of each case. Such proof may partake
the shape of defence evidence led by the accused, or
it may consist of circumstances appearing in the
prosecution evidence itself, as a result of cross-
examination or otherwise. But the degree and the
character of the burden of proof which Section 4(1)
casts on an accused person to rebut the presumption
raised thereunder, cannot be equated with the
degree and character of proof which under Section
101, Evidence Act rests on the prosecution. While
the mere plausibility of an explanation given by the
accused in his examination under Section 342,
Cr.P.C. may not be enough, the burden on him to
negate the presumption may stand discharged, if the

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effect of the material brought on the record, in its
totality, renders the existence of the fact presumed,
improbable.”

9 The learned advocate for appellants/accused persons

placed reliance on judgment of the Hon’ble Apex Court in the

matter of P. Satyanarayana Murthy vs. The District Inspector of

Police and Another3 to demonstrate that mere possession and

recovery of currency notes from the appellant/accused without

proof of demand is not sufficient for establishing the alleged

offence. Reliance is further placed on judgment of this court in

the matter of Shri Balkrishna Bhau Desai vs. The State of

Maharashtra4 to demonstrate that for seeking conviction for

alleged offences, satisfactory evidence regarding demand is

necessary. The learned advocate for appellants/accused persons

further relied on judgment of the Honourable Supreme Court in

State of Punjab vs. Madan Mohan Lal Verma 5 to demonstrate

that demand of illegal gratification is sine-qua-non for constituting

an offence under the P.C.Act, 1988. Paragraph 11 thereof needs

3 2015(4) RCR (Cri) Page 305
4 2016 ALL MR (Cri) 1913
5 (2013) 14 Supreme Court Cases 153

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reproduction which reads thus :

“11 The law on the issue is well settled that
demand of illegal gratification is sine qua non for
constituting an offence under the Act 1988. Mere
recovery of tainted money is not sufficient to convict
the accused when substantive evidence in the case is
not reliable, unless there is evidence to prove
payment of bribe or to show that the money was
taken voluntarily as a bribe. Mere receipt of the
amount by the accused is not sufficient to fasten
guilt, in the absence of any evidence with regard to
demand and acceptance of the amount as illegal
gratification. Hence, the burden rests on the accused
to displace the statutory presumption raised under
Section 20 of the 1988 Act, by bringing on record
evidence, either direct or circumstantial, to establish
with reasonable probability, that the money was
accepted by him, other than as a motive or reward
as referred to in Section 7 of the Act 1988. While
invoking the provisions of Section 20 of the Act, the
court is required to consider the explanation offered
by the accused, if any, only on the touchstone of
preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt.
However, before the accused is called upon to

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explain how the amount in question was found in
his possession, the foundational facts must be
established by the prosecution. The complainant is
an interested and partisan witness concerned with
the success of the trap and his evidence must be
tested in the same way as that of any other
interested witness. In a proper case, the court may
look for independent corroboration before
convicting the accused person. (Vide: Ram Prakash
Arora v. State of Punjab AIR 1973 SC 498 ; T.

Subramanian v. The State of T.N . 2006(1) SCC 401 ; State
of Kerala Anr. v. C.P. Rao (2011) 6 SCC 450 ; and
Mukut Bihari Anr. v. State of Rajasthan (2012) 11 SCC

642).”

Reliance is also placed on the judgment in Krishna Chander vs.

State of Delhi 6 to buttress the same proposition.

10 Law regarding appreciation of evidence of trap

witnesses as well as the complainant can be found in catena of

judgments delivered by the Hon’ble Apex Court as well as by this

court. The learned advocate for the appellants/accused persons

6 (2016) 3 SCC 108

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has rightly placed reliance on judgment in M.O.Shamsudhin vs.

State of Kerala7. On this aspect, paragraphs 22 and 23 thereof

needs reproduction and those read thus :-

“22 Now coming to the witnesses in trap cases,
as held in State of Bihar
vs. Basawan Singh (AIR

1958 SC 500) by a Bench of Five Judges, if any of
the witnesses are accomplices who are particeps
criminis in respect of the actual crime charge, their
evidence must be treated as the evidence of
accomplices is treated; if they are not accomplices in
that sense but are only partisan or interested
witnesses who are concerned in the success of the
trap, their evidence must be tested in the same way
as other interested evidence is tested which may
vary from case to case and the corroboration in the
case of such interested witnesses can be in a general
way and not as one required in material particulars
as in the case of an approver. Therefore in seeking
corroboration for the evidence of trap witnesses a
distinction has to be drawn where participation of
an individual in a crime is not voluntary but is the
result of pressure. In such a case the element of
mens rea to commit the crime is not apparent and
(sic) cannot strictly be classified as an accomplice
7 (1995) 3 Supreme Court Cases 351

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and at any rate be treated as being on the same
footing. Where bribe has already been demanded
from a man and if without giving the bribe he goes
to the police or magistrate and brings them to
witness the payment it will be a legitimate trap and
in such cases at the most he can be treated as an
interested witness and whether corroboration is
necessary or not will be within the discretion of the
court depending upon the facts and circumstances
of each case. However as a rule of prudence, the
court has to scrutinise the evidence of such
interested witnesses carefully.”

“23 Now coming to the nature of corroborating
evidence that is required, it is well settled that the
corroborating evidence can be even by way of
circumstantial evidence. No general rule can be laid
down with respect to quantum of evidence
corroborating the testimony of a trap witness which
again would depend upon its own facts and
circumstances like the nature of the crime, the
character of trap witness etc. and other general
requirements necessary to sustain the conviction in
that case. The court should weigh the evidence and
then see whether corroboration is necessary.

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Therefore as a rule of law it cannot be laid down
that the evidence of every complainant in a bribery
case should be corroborated in all material
particulars and otherwise it cannot be acted upon.
Whether corroboration is necessary and if so to
what extent and what should be its nature depends
upon the facts and circumstances of each case. In a
case of bribe, the person who pays the bribe and
those who act as intermediaries are the only persons
who can ordinarily be expected to give evidence
about the bribe and it is not possible to get
absolutely independent evidence about the payment
of bribe. However, it is cautioned that the evidence
of a bribe-giver has to be scrutinised very carefully
and it is for the court to consider and appreciate the
evidence in a proper manner and decide the
question whether a conviction can be based upon or
not in those given circumstances.”

8 it is
In the matter of Sudhakar Jadhao vs. State of Maharashtra

held thus :

“After all, P.W.1. is himself the complainant and
therefore, interested in the success of the
prosecution of his complaint. The evidence of an
8 2004 ALL MR (Cri.) 648

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interested witness cannot be accepted by itself. It is
unsafe to accept the evidence of interested witness
unless corroborated by independent witnesses.”

Similarly, the Hon’ble Apex Court in the matter of Jaswant Sing

vs. State of Punjab 9 has held thus :

“As P.W.1. is the complainant, his evidence will have
to be considered with great caution and it will not
be ordinarily safe to accept his interested testimony
unless there is material corroboration found in the
other evidence adduced by the prosecution.”

10

In the matter of Ramprakash
Arora vs. State of Punjab the

Hon’ble Apex Court has given guidelines guide-lines regarding

appreciation of evidence of trap witnesses and has held that they

are concerned with the success of the trap and their evidence must

be tested in the same way as that of other interested witnesses

and in a proper case, the court may look for independent

corroboration.

9 AIR 1973 SC 707
10 AIR 1973 SC 498

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11 The learned advocate for the appellants/accused

persons has rightly relied on the judgment in the matter of P.

Satyanarayana Murthy (supra) and paragraphs 19, 20 and 21 of

the said judgment needs reproduction. They read thus :

“19 In State of Kerala and another vs.
C.P.Rao (2011) 6 SCC 450, this Court, reiterating
its earlier dictum, vis-à-vis the same offences, held
that mere recovery by itself, would not prove the
charge against the accused and in absence of any
evidence to prove payment of bribe or to show that
the accused had voluntarily accepted the money
knowing it to be bribe, conviction cannot be
sustained.”

“20 In a recent enunciation by this Court to
discern the imperative pre-requisites of Sections 7
and 13 of the Act, it has been underlined in B.

Jayaraj (supra) in unequivocal terms, that mere
possession and recovery of currency notes from an
accused without proof of demand would not
establish an offence under Sections 7 as well as
13(1)(d)(i)(ii) of the Act. It has been propounded
that in the absence of any proof of demand for
illegal gratification, the use of corrupt or illegal

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means or abuse of position as a public servant to
obtain any valuable thing or pecuniary advantage
cannot be held to be proved. The proof of demand,
thus, has been held to be an indispensable
essentiality and of permeating mandate for an
offence under Section 7 and 13 of the Act. Qua
Section 20 of the Act, which permits a presumption
as envisaged therein, it has been held that while it is
extendable only to an offence under Section 7 and
not to those under Section 13(1)(d)(i)(ii) of the
Act, it is contingent as well on the proof of
acceptance of illegal gratification for doing or
forbearing to do any official act. Such proof of
acceptance of illegal gratification, it was
emphasized, could follow only if there was proof of
demand. Axiomatically, it was held that in absence
of proof of demand, such legal presumption under
Section 20 of the Act would also not arise.”

“21 The proof of demand of illegal
gratification, thus, is the gravamen of the offence
under Sections 7 and 13(1)(d)(i)(ii) of the Act
and in absence thereof, unmistakably the charge
therefor, would fail. Mere acceptance of any amount
allegedly by way of illegal gratification or recovery

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thereof, dehors the proof of demand, ipso facto,
would thus not be sufficient to bring home the
charge under these two sections of the Act.”

12 Recently, in the matter of N.Sunkanna vs. State of

Andhra Pradesh11 law on the point is restated in the following

words in paragraph 6 :-

“…….It is well settled law that mere possession
and recovery of the currency notes from the
accused without proof of demand will not bring
home the offence under Section 7, since the
demand of illegal gratification is sine-qua-non to
constitute the said offence. The above also will
be conclusive in so far as the offence under
Section 13(1)(d) is concerned, as in absence of
any proof of demand for illegal gratification, the
use of corrupt or illegal means or abuse of
position as a public servant to obtain any
valuable thing or pecuniary advantage cannot be
held to be established……”

Keeping in mind this position of law, let us examine evidence

adduced by the prosecution in order to establish its case. This

11 2015 ALL MR(Cri) 4551 (S.C.)

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being an appeal challenging conviction of both accused, there is

no embargo on reviewing the entire evidence or rather it becomes

duty of this court to re-appreciate the entire evidence, this court

being the last fact finding court in the subject matter.

13 Considering the nature of charge leveled against both

appellants/accused persons, the prosecution case mainly rests on

version of complainant/PW1 Santosh Bhelke and PW2 Rahul

Bodade (Panch Witness No.1/shadow panch). As I have set out

the prosecution case in detail as reflected in the charge-sheet, it is

not necessary to repeat and reproduce the entire evidence

adduced by the prosecution witnesses. What is material is to

consider the evidence regarding demand of illegal gratification as

well as acceptance thereof and material brought on record by the

defence to dislodge the presumption envisaged by Section 20 of

the P.C.Act, 1988. Let us, therefore, consider evidence of

complainant/PW1 Santosh Bhelke on this aspect. However, prior

to adverting to his evidence, it is apposite to put on record the

spot of the incident where the initial demand as well as the

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demand at the time of the trap and the events leading to tainted

currency notes changing hands took place. This incident,

according to the case of prosecution, took place at Alankar Police

Outpost of Kothrud Police Station, Pune. Evidence of PW2 Rahul

Bodade (Panch Witness No.1/shadow panch), so also material

elicited from cross-examination of complainant/PW1 Santosh

Bhelke shows that there is one hall after entering in the Alankar

Police Outpost. Then, resting on backside wall of that hall, there

are two cabins. Appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector, used to sit in one of the cabins, whereas in

another cabin, his Writer i.e. appellant/accused no.2 S.P.Pokale,

Police Naik, used to sit. On the cabin of appellant/accused no.2

S.P.Pokale, Police Naik board stating that it is cabin of “Daftari” or

“Lekhnik” was hanging. Evidence of PW3 Vinod Satav,

Investigating Officer of the Anti Corruption Bureau as well as

Verification cum Trap Panchnama, Exhibit 11, reflects that at the

time of trap, it was at this cabin of appellant/accused no.2

S.P.Pokale, Police Naik, he was found along with PW2 Rahul

Bodade (Panch Witness No.1/shadow panch). It is case of the

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prosecution that it is in this cabin of appellant/accused no.2

S.P.Pokale, Police Naik, he was found with tainted government

currency notes amounting to Rs.25,000/- and the incident of

tainted currency notes changing hands took place inside the cabin

of appellant/accused no.2 S.P.Pokale, Police Naik. Subsequent

discussion will reveal that this situation on the spot of the incident

is relevant for determining the points involved in the instant case.

14 Complainant/PW1 Santosh Bhelke as well as his wife

Samiksha were holding Masters Degree in Business

Administration. The learned trial court in its judgment has

observed that this complainant/PW1 Santosh Bhelke changed his

stand in chief-examination itself and has not supported the

prosecution case on the point of acceptance of illegal gratification.

Instead of presence of PW2 Rahul Bodade (Panch Witness

No.1/shadow panch) this complainant/PW1 Santosh Bhelke has

stated in his evidence that at the time of the trap and at the time

of happening of the incident of tainted currency notes changing

hands, it was Panch No.2 Vijay Hile (not examined as witness by

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the prosecution) who was present with him as a shadow panch

and PW2 Rahul Bodade (Panch Witness No.1/shadow panch) was

not present during the course of the trap. Meticulous analysis of

evidence of this complainant/PW1 Santosh Bhelke will show that

he has changed his category from the category of the forced bribe

giver to the category of particeps criminis and rather than

requirement of careful scrutiny of his evidence requiring general

corroboration, his evidence may require corroboration in material

particulars as that of evidence of accomplice, as per standard of

evaluating evidence of complainant in the bribe case enunciated in

the matter of M.O.Shamsudhin (supra). Careful scrutiny of

evidence of complainant/PW1 Santosh Bhelke and meticulous

analysis thereof by comparing with other evidence adduced by the

prosecution reflects that, without demand being emanated from

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

complainant/PW1 Santosh Bhelke himself was offering money to

him. This complainant/PW1 Santosh Bhelke was, undisputedly,

arrested by appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, in the crime registered on the basis of report lodged by

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Samiksha. His mother, as well as three sisters, were also accused

in that offence, which was under investigation by

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector.

Mother and sisters of complainant/PW1 Santosh Bhelke were

required to apply for anticipatory bail and they were protected till

31st August 2013. All these happened prior to lodging of the

complaint Exhibit 7 to the Anti Corruption Bureau by

complainant/PW1 Santosh Bhelke. At that time, he was under

legal advise of Advocate M.D.Pawar, as seen from his cross-

examination. At the time of demand verification on 23 rd August

2013, complainant/PW1 Santosh Bhelke had introduced PW2

Rahul Bodade (Panch Witness No.1/shadow panch) as surety for

his mother and sisters and insisted appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, to get his surety bond

executed. Appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, refused to do so by saying that it will be done after 31 st

August 2013, as the interim protection was till that date. This

position is clearly reflected from the prosecution case as well as

evidence of complainant/PW1 Santosh Bhelke.

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15 With this, let us examine what the complainant says

about payment of bribe in pursuant to initial demands of

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector. In

his complaint Exhibit 7, complainant/PW1 Santosh Bhelke has

claimed to have paid an amount of Rs.40,000/- to

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

two or three days after 25th August 2013. He also claims to have

paid an amount of Rs.10,000/- to appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, in second week of August

2013, as per recitals in his complaint Exhibit 7. His cross-

examination reveals that, for the first time, his wife Samiksha

lodged complaint on 30th May 2013 and he received call from the

police on 31st July 2013 for remaining present. On that day, his

wife sought time and on 8 th August 2013, they both were advised

by police to approach the Women Complaint Redressal Forum as

there was no amicable settlement. It is, thus clear that, till

lodging the FIR by Samiksha on 19th August 2013, there was no

reason for complainant/PW1 Santosh Bhelke to pay the amount

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totaling Rs.50,000/- to appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector. Still, he claimed in his complaint to

have paid such hefty amount to appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector.

16 Complainant/PW1 Santosh Bhelke has made bald

allegations in his complaint Exhibit 7 in respect of earlier demand

made by appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector on 22nd August 2013. The complaint Exhibit 7 makes an

allegation that complainant/PW1 Santosh Bhelke was directed by

the staff of Kothrud Police Station to meet appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, and therefore, he went

and met appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, at Alankar Police Outpost, on 22 nd August 2013, when

further demand of Rs.50,000/- was made to him. The complaint

Exhibit 7 contains utterances of appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, made to complainant/

PW1 Santosh Bhelke. Those are to the effect that he conveyed

this demand of Rs.50,000/- to friend of complainant/PW1 Santosh

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Bhelke. The complaint Exhibit 7 contains further averment that

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

scaled down his subsequent demand to Rs.25,000/-. However,

when evidence of complainant/PW1 Santosh Bhelke is compared

with this averment in the complaint Exhibit 7, then it is seen that

before the court, complainant/PW1 Santosh Bhelke is not

speaking about further demand of Rs.50,000/- allegedly made on

22nd August 2013 by appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector. He has not spoken about utterances of

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

that this further demand of Rs.50,000/- is conveyed to the friend

of complainant/PW1 Santosh Bhelke. Though not stated in

complaint Exhibit 7, in his evidence complainant/PW1 Santosh

Bhelke claims that he had attended Alankar Police Outpost on 22 nd

August 2013 in pursuant to the phone call by appellant/accused

no.1 G.R.Inamdar, Assistant Police Inspector, asking him to come

and meet him. Thus, evidence regarding initial demands and

payments, so also that of further demand of Rs.50,000/- made on

22nd August 2013, which was scaled down to Rs.25,000/-, is

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totally unsatisfactory and highly doubtful. Evidence on that

aspect adduced by complainant/PW1 Santosh Bhelke is totally

omnibus, vague, sweeping and inconsistent. Allegations to that

effect are bald. It is hard to digest that even without there being

any cause, complainant/PW1 Santosh Bhelke would pay an hefty

amount of Rs.50,000/- prior to lodging his complaint to the Anti

Corruption Bureau.

17 Now let us examine evidence of complainant/PW1

Santosh Bhelke in respect of verification of demand dated 22 nd

August 2013 as well as the actual trap – both conducted on 23 rd

August 2013. It is worthwhile to note that even as per

prosecution case as well as evidence of all three prosecution

witnesses, right from the beginning, digital voice recorder was

hidden on person of complainant/PW1 Santosh Bhelke and entire

conversation held by him with appellants/accused persons as well

as with others during the course of demand verification and trap,

was being recorded therein. According to the prosecution case,

the same was subsequently transferred in the audio cassette apart

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from making transcript thereof which was incorporated in the

panchnama.

18 As per version of complainant/PW1 Santosh Bhelke, at

the time of verification of demand, he met appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, while being accompanied

by PW2 Rahul Bodade (Panch Witness No.1/shadow panch). It is

reflected from Verification cum Trap Panchnama Exhibit 11 that

they were in company of appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector from 11.45 a.m. to 12.50 p.m. of 23 rd

August 2013. What happened at the time of demand verification

is deposed in following words by complainant/PW1 Santosh

Bhelke :-

“…..I opened the discussion with the accused
no.1 and told him that, I was short by
Rs.5,000/-. Accused no.1 was insisting for entire
amount of Rs.25,000/-. I assured him to pay the
entire amount, provided that, there shall not be
any trouble to me in future. Accused no.2
Mr.Pokale was present there. He had also
participated in the discussion. Accused no.1 told

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me to bring the amount immediately. I told him
that I will withdraw the amount from ATM and
come back. I left the police outpost….”

This evidence of complainant/PW1 Santosh Bhelke makes it clear

that appellant/accused no.2 S.P.Pokale, Police Naik, had

participated in the conversation and demand of illegal

gratification was not emanated from appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector. It was complainant/PW1

Santosh Bhelke, who offered money to appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector in present of

appellant/accused no.2 S.P.Pokale, Police Naik. Verification cum

Trap Panchnama Exhibit 11, evidence of PW3 Vinod Satav,

Investigating Officer, as well as cross-examination of

complainant/PW1 Santosh Bhelke goes to show that he was

strictly instructed not to open discussion on the subject of demand

or payment of bribe, but he should talk only about his work.

However, substantive evidence of complainant/PW1 Santosh

Bhelke shows that he straightaway opened the discussion by

offering money and stating that he was short of money by

Rs.5,000/-.

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19 PW2 Rahul Bodade (Panch Witness No.1/shadow

panch) has deposed about the very same incident of verification of

demand in the following manner. As per his version, conversation

between appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector and complainant/PW1 Santosh Bhelke started by

introducing this witness as a friend, who came to act as surety.

They talked in respect of acceptance of surety bond but

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

told that he cannot accept the surety till 31 st August 2013. PW2

Rahul Bodade (Panch Witness No.1/shadow panch) further stated

that then three to four citizens came and appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, had conversation with

them for five to ten minutes. Thereafter, complainant/PW1

Santosh Bhelke told appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector, that he had brought the amount of

Rs.20,000/- and would pay the balance amount in two to three

days. Appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, told to pay the entire amount in lump sum and

complainant/PW1 Santosh Bhelke assured him that he would

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come with entire amount within half an hour. Then, they left. In

cross-examination, PW2 Rahul Bodade (Panch Witness

No.1/shadow panch) has stated that all these events took place

inside the cabin of appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector, and in his presence appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector had not demanded bribe

amount of his own from complainant/PW1 Santosh Bhelke. PW2

Rahul Bodade (Panch Witness No.1/shadow panch) has not stated

about presence of appellant/accused no.2 S.P.Pokale, Police Naik,

at the time of this discussion, though complainant/PW1 Santosh

Bhelke had not only stated about presence of appellant/accused

no.2 S.P.Pokale, Police Naik, but participation of appellant/accused

no.2 S.P.Pokale, Police Naik, in the discussion. Complainant/PW1

Santosh Bhelke has not spoken about any discussion regarding his

request to accept PW2 Rahul Bodade (Panch Witness

No.1/shadow panch) as surety or interruption of talks due to

arrival of three to four citizens during the conversation, at the

time of verification of demand. Both these witnesses are,

however, congruous about the fact that appellant/accused no.1

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G.R.Inamdar, Assistant Police Inspector, never made demand of

illegal gratification of his own, but money was offered to him by

complainant/PW1 Santosh Bhelke. Moreover, rest of their

evidence in respect of demand verification is totally inconsistent.

20 Now let us examine evidence of complainant/PW1

Santosh Bhelke and that of PW2 Rahul Bodade (Panch Witness

No.1/shadow panch) in respect of the events occurred at the time

of the actual trap.

21 As per version of complainant/PW1 Santosh Bhelke,

after fifteen to twenty minutes of returning from Alankar Police

Outpost, he and Panch No.2 Vijay Hile(not examined by

prosecution) were sent by the Anti Corruption Bureau to meet

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

for payment of illegal gratification in order to trap him. At the

conclusion of his chief-examination, complainant/PW1 Santosh

Bhelke stated that PW2 Rahul Bodade (Panch Witness

No.1/shadow panch) was with him at the time of the trap but

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again in cross-examination complainant/PW1 Santosh Bhelke has

stated that he is cocksure that at the time of the trap only one

person i.e. Panch No.2 Vijay Hile(not examined by prosecution)

was accompanying him and he had introduced Panch No.2 Vijay

Hile(not examined by prosecution) as his tenant to

appellants/accused persons. Thus, version of complainant/PW1

Santosh Bhelke is to the effect that, infact, Panch No.2 Vijay

Hile(not examined by prosecution) acted as a shadow panch to

observe demand and acceptance of illegal gratification.

Complainant/PW1 Santosh Bhelke, thus, has spoken that PW2

Rahul Bodade (Panch Witness No.1/shadow panch) was not

present and had not witnessed the incident of demand and

acceptance at the time of the trap. Complainant/PW1 Santosh

Bhelke has stated about the actual incident leading to acceptance

of illegal gratification by the appellants/accused persons in the

following manner, in paragraph 8 of his chief-examination :-

“……Myself and Panch Witness No.2 entered the
police outpost. There was discussion between
myself and accused no.1 and 2. Accused no.1
inquired me whether I had brought the amount

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and told me to give it to the accused no.2.
Before handing over the amount I again
requested both the accused to extend the help
while filing the charge-sheet and both of them
assured me. I took out the amount from shirt
pocket and hold it in front of the accused no.1.
Accused no.1 did not touch the amount and told
me to hand over it to the accused no.2. Then I
handed over tainted money to the accused no.2.
Accused no.2 accepted the amount and kept it in
his pant pocket. I came out of the police outpost
and gave pre-arranged signal. Before arrival of
the A.C.B. Officials accused no.1 started his
motorbike and went to offer namaz. A.C.B.
Officials asked me, who had accepted the
amount, I told them that accused no.2 Mr.Pokale
had accepted the amount.”

This evidence of complainant/PW1 Santosh Bhelke shows that at

the time of the trap, it was appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector, who demanded bribe in presence of

Panch No.2 Vijay Hile(not examined by prosecution) and had

directed complainant/PW1 Santosh Bhelke to pay the amount of

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bribe to appellant/accused no.2 S.P.Pokale, Police Naik.

Accordingly, in presence of appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector, complainant/PW1 Santosh Bhelke paid

the amount of bribe to appellant/accused no.2 S.P.Pokale, Police

Naik. Then, after giving pre-arranged signal to the Anti

Corruption Bureau by complainant/PW1 Santosh Bhelke and

before arrival of the raiding team of the Anti Corruption Bureau,

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

left the police outpost for offering namaz.

22 If we go to the cross-examination of complainant/PW1

Santosh Bhelke, and particularly to paragraph 16 thereof read

with paragraph 12 of the evidence of Investigating Officer PW3

Vinod Satav, then it becomes clear that entire evidence in chief-

examination of complainant/PW1 Santosh Bhelke in respect of

demand of bribe by appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector, at the time of the trap, has come on

record by way of omission. PW3 Vinod Satav, Investigating

Officer, has categorically stated that complainant/PW1 Santosh

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Bhelke has not stated to him that as soon as he entered the police

outpost, there was discussion between himself and both

appellants/accused persons and then appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, inquired him as to

whether he had brought the amount and when complainant/PW1

Santosh Bhelke said “Yes”, appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector, had asked complainant/PW1 Santosh

Bhelke to hand over the same to appellant/accused no.2

S.P.Pokale, Police Naik. It needs to be reiterated here that

evidence regarding demand at the time of the trap and acceptance

of illegal gratification is of great importance for concluding

commission of such offence. If really appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, demanded the amount of

illegal gratification from complainant/PW1 Santosh Bhelke, at the

time of the trap and accepted the same through appellant/accused

no.2 S.P.Pokale, Police Naik, then there was no reason for

complainant/PW1 Santosh Bhelke, for not disclosing the same to

Investigating Officer, PW3 Vinod Satav. This important fact was

omitted by complainant/PW1 Santosh Bhelke while giving his

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statement to the Investigator in the anti corruption matter. True it

is that minor variation in the statement of witness cannot be

considered as improvement but omission which goes to the root of

the case and materially affects the core of prosecution case

renders the testimony of such witness suspect. In such case, such

improved version of the witness is required to be kept out of

consideration by the court. (See Sunil Kumar Sambhudayal

Gupta (Dr.) and Others vs. State of Maharashtra)12. If this

material improvement in the version of complainant/PW1 Santosh

Bhelke is kept out of consideration, then his evidence reflects that

even at the time of the trap, there was no demand of illegal

gratification by appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector, with a further direction to pay the amount of

illegal gratification to appellant/accused no.2 S.P.Pokale, Police

Naik.

23 Cross-examination of complainant/PW1 Santosh

Bhelke, in respect of how actual incident of demand and

acceptance of illegal gratification at the time of raid by the Anti
12 (2010) 13 Supreme Court Cases 657

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Corruption Bureau happened, is also interesting. In cross-

examination, complainant/PW1 Santosh Bhelke, has deposed

about it in the following manner :-

“…..It is true that as soon as I met accused no.1,
I asked him whether I shall “give” and accused
no.l told “give it”. I again said whether to
Mr.Pokale, accused no.1 said “give it”.”

This is how, according to evidence in cross-examination of

complainant/PW1 Santosh Bhelke, the episode of demand and

acceptance of the bribe took place, and that too, in the hall of

Alankar Police Outpost. This admission of complainant/PW1

Santosh Bhelke, in cross-examination makes it clear that even at

the time of the trap, the demand was not emanated from

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector.

Moreover, this admission in cross-examination probabilise the

defence of appellants/accused persons that appellant/accused

no.1 G.R.Inamdar, Assistant Police Inspector had asked

complainant/PW1 Santosh Bhelke to produce certain documents

and thinking that those documents are being given, he replied to

question of complainant/PW1 Santosh Bhelke, by answering “give

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it”. Evidence on record shows that appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, had informed

complainant/PW1 Santosh Bhelke to produce two witnesses daily

and also supply some documents for the purpose of investigation

in the matter of the offence registered at the instance of Samiksha.

That apart, evidence of complainant/PW1 Santosh Bhelke in

respect of the demand and acceptance at the time of the trap is

also inconsistent and in the cross-examination this witness has

virtually given up the story given in the chief-examination

regarding demand of illegal gratification by appellant/accused

no.1 G.R.Inamdar, Assistant Police Inspector.

24 From further cross-examination of complainant/PW1

Santosh Bhelke, it is brought on record by the defence that entire

episode of demand and acceptance of illegal gratification and

handing over and accepting the tainted currency notes, took place

at the hall of Alankar Police Outpost and not in cabin.

Complainant/PW1 Santosh Bhelke was firm in stating that it did

not happen that bribe was paid in cabin to appellant/accused no.1

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G.R.Inamdar, Assistant Police Inspector. He categorically stated

that he did not even enter in the cabin of appellant/accused no.2

S.P.Pokale, Police Naik, for this purpose.

25 To test the veracity of version of complainant/PW1

Santosh Bhelke, let us compare it with that of shadow panch.

According to the prosecution case, PW2 Rahul Bodade, Panch

Witness No.1, acted as shadow panch, but complainant/PW1

Santosh Bhelke dislodged the prosecution case on this aspect and

was firm in stating that it was Panch No.2 Vijay Hile(not examined

by prosecution) who acted as shadow panch, whom he has

introduced as tenant. Be that as it may, let us see what PW2

Rahul Bodade (Panch Witness No.1/shadow panch according to

the prosecution) says about the events which took place at the

time of the trap. He deposed that, at about 1.10 p.m. of 23 rd

August 2013, he, accompanied by complainant/PW1 Santosh

Bhelke, entered in the Alankar Police Outpost where both

appellants/accused persons were present. Complainant/PW1

Santosh Bhelke, then, told appellant/accused no.1 G.R.Inamdar,

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Assistant Police Inspector, that he had brought the amount and

whether he should hand over the same to him (G.R.Inamdar).

Upon that, as per version of PW2 Rahul Bodade (Panch Witness

No.1/shadow panch), appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector, said “Yes”. Complainant/PW1 Santosh

Bhelke then asked appellant/accused no.1 G.R.Inamdar, Assistant

Police Inspector, as to whether he shall hand over the amount to

appellant/accused no.2 S.P.Pokale, Police Naik. Appellant/accused

no.1 G.R.Inamdar, Assistant Police Inspector, said “Yes”. Then, as

per evidence of PW2 Rahul Bodade (Panch Witness No.1/shadow

panch), appellant/accused no.1 G.R.Inamdar, Assistant Police

Inspector, said that he wanted to go for offering namaz and left

Alankar Police Outpost. PW2 Rahul Bodade (Panch Witness

No.1/shadow panch) further testified that then complainant/PW1

Santosh Bhelke and he himself went to the cabin of

appellant/accused no.2 S.P.Pokale, Police Naik and appellant/

accused no.2 S.P.Pokale, Police Naik, was found present in the

cabin. PW2 Rahul Bodade (Panch Witness No.1/shadow panch)

categorically deposed that, then complainant/PW1 Santosh Bhelke

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paid the amount of bribe to appellant/accused no.2 S.P.Pokale,

Police Naik, which was counted by the said accused by both

hands.

26 What is stated by this shadow panch PW2 Rahul

Bodade is made further clear by him in his cross-examination. He

stated that at the time of the trap, appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, did not demand bribe

amount of his own. He further stated that the incident of giving

and taking bribe did not happen in cabin of appellant/accused

no.1 G.R.Inamdar, Assistant Police Inspector. As per version of

this shadow panch PW2 Rahul Bodade, it was for the first time he

saw appellant/accused no.2 S.P.Pokale, Police Naik. This, in other

words, implies that at the time of discussion at the time of the trap

between complainant/PW1 Santosh Bhelke and appellant/

accused no.1 G.R.Inamdar, Assistant Police Inspector, appellant/

accused no.2 S.P.Pokale, Police Naik was not present. The version

of the shadow panch PW2 Rahul Bodade further shows that

complainant/PW1 Santosh Bhelke and this shadow panch visited

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cabin of appellant/accused no.2 S.P.Pokale, Police Naik, after

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector

left the police outpost for offering namaz. As against this version

of shadow panch PW2 Rahul Bodade, complainant/PW1 Santosh

Bhelke is stating that at the time of the trap when he and Panch

No.2 Vijay Hile(not examined by prosecution) visited Alankar

Police Outpost, there was joint discussion between him,

appellant/accused no.1 G.R.Inamdar, Assistant Police Inspector,

and appellant/accused no.2 S.P.Pokale, Police Naik. Not only that,

even as per version of complainant/PW1 Santosh Bhelke, at the

time of demand verification also, appellant/accused no.2

S.P.Pokale, Police Naik, was present and had participated in

discussion. Thus, not only versions of both these witnesses are

divergent, even their versions in chief-examination and cross-

examination are not matching. With this inconsistent and

divergent evidence of the complainant and shadow panch, it is

very difficult to ascertain whether PW2 Rahul Bodade (Panch

Witness No.1/shadow panch) was the shadow panch, who

accompanied complainant/PW1 Santosh Bhelke at the time of the

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trap or whether, as claimed by complainant/PW1 Santosh Bhelke,

it was Panch No.2 Vijay Hile(not examined by prosecution) who

accompanied him at the time of the trap. Even version of both

these witnesses is not matching in respect of place of incident of

transfer of tainted currency notes and manner of happenings of

the incidents. Incident of demand verification and happenings

thereof are stated differently by both these witnesses.

Complainant/PW1 Santosh Bhelke is very specific in stating that

the entire episode of handing and taking over the bribe took place

in the hall of Alankar Police Outpost, whereas PW2 Rahul Bodade

– shadow panch (according to the case of prosecution), is stating

that at the time of the trap, they met appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, at his cabin and then after

he left the police outpost, they entered in the cabin of

appellant/accused no.2 S.P.Pokale, Police Naik, and handed over

the tainted currency notes to appellant/accused no.2 S.P.Pokale,

Police Naik. This inconsistent evidence of two important

witnesses casts serious shadow of doubt on the entire case of

prosecution. Their evidence lacks assurance of trustworthiness

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required in the criminal trial. With such discrepant evidence, it is

difficult to hold that the prosecution has established demand of

illegal gratification by appellant/accused no.1 G.R.Inamdar,

Assistant Police Inspector or that he has obtained the same

through appellant/accused no.2 S.P.Pokale, Police Naik. Critical

analysis of evidence of both these witnesses reflects that their

versions about the incidents of demand as well as acceptance of

illegal gratification are suffering from serious infirmities. They do

not seem to be witnesses of the truth. These two alleged eye

witnesses to the offence are coming up with a version which is

even significantly different from the prosecution case. They have

contradicted each other on material particulars by their

inconsistent versions about the incidents. Their evidence does not

show that the incidents happened in the manner alleged by the

prosecution. Let us, therefore, examine whether there is any

corroboration to the evidence of these two witnesses in order to

cull out nuggets of truth from the version of these two witnesses

and whether anything can be said, from such evidence, in favour

of the prosecution.

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27 As stated in opening paragraph of this judgment, right

from the beginning of the process of verification of the demand till

actual raid resulting in apprehending appellant/accused no.2

S.P.Pokale, Police Naik, with tainted currency notes, entire

conversation of complainant/PW1 Santosh Bhelke with all persons

who came in his contact on 23rd August 2013, was being recorded

in the digital voice recorder, which was kept concealed in his body.

Evidence adduced by the prosecution on this aspect is certainly

acceptable and the same is gaining corroboration from the

contemporaneous documentary evidence in the form of Pre-Trap

panchnama Exhibit 10 and Verification cum Trap Panchnama

Exhibit 11 as well as panchnama of taking voice of

appellants/accused persons Exhibit 15. Even, as seen from

evidence of PW2 Rahul Bodade (Panch Witness No.1/shadow

panch) and PW3 Vinod Satav, Investigating Officer, subsequent to

successful trap, there was phone call by appellant/accused no.1

G.R.Inamdar, Assistant Police Inspector, to appellant/accused no.2

S.P.Pokale, Police Naik, who at that time, was in custody of the

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Anti Corruption Bureau and that conversation was also recorded

in the digital voice recorder. Evidence of PW2 Rahul Bodade

(Panch Witness No.1/shadow panch) and that of Investigating

Officer PW3 Vinod Satav, makes it clear that during post trap

formalities at Kothrud Police Station, the digital voice recorder

was played and conversation recorded therein was heard by them.

Its transcript came to be included in the Verification cum Trap

Panchnama Exhibit 11. It has also come on record from evidence

of these two witnesses as well as from the recitals in

contemporaneous document Verification cum Trap Panchnama

Exhibit 11 that the data from the digital voice recorder then came

to be transferred to the laptop and audio cassette of recorded

conversation came to be prepared and then it was seized.

Panchnama at Exhibit 11 is clear on this aspect.

28 It has come on record through evidence of PW3 Vinod

Satav, Investigating Officer, that on 28th August 2013, in presence

of both panch witnesses, he took sample of voice of both

appellants/accused persons. The manner in which that voice

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sample came to be taken is reflected in panchnama of taking voice

samples Exhibit 15, which came to be proved by the prosecution,

through evidence of PW2 Rahul Bodade (Panch Witness

No.1/shadow panch) and PW3 Vinod Satav, Investigating Officer.

Recitals in this panchnama Exhibit 15 unerringly points out that

recorded version was reflected in the Verification cum Trap

Panchnama Exhibit 11, as the same after transcription was also

included therein. This fact is also deposed by Investigating Officer

PW3 Vinod Satav. For taking their voice sample, this Verification

cum Trap Panchnama Exhibit 11 came to be handed over to both

appellants/accused persons, as seen from recitals in Panchnama

Exhibit 15. Both appellants/accused persons were made to recite

and read their part of conversation reflected in Verification cum

Trap Panchnama Exhibit 11 and recitals of appellants/accused

persons were then came to be recorded in the audio cassette.

That is how, sample of voice of both appellants/accused persons

came to be taken by the Investigating Officer PW3 Vinod Satav

vide Panchnama Exhibit 15 for comparing it with the recording

made at the time of verification of demand and actual trap. Then,

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audio cassette of recorded voice of both appellants/accused

persons was played and after confirmation of recording, the same

came to be seized vide Panchnama Exhibit 15.

29 Evidence of PW3 Vinod Satav, Investigating Officer,

goes to show that during the course of investigation, along with

Request Letter dated 19th September 2013 at Exhibit 24, both

audio cassettes were sent for forensic examination and for

supplying the necessary report as to whether the voice in the

questioned recording matches with that of accused persons.

However, the prosecution has not produced on record the said

report. Investigating Officer PW3 Vinod Satav has not even

deposed the reason for non-production of such report, though he

had specifically requested the Forensic Laboratory to report as to

whether the voice recorded during the Verification cum Trap

Panchnama is that of both appellants/accused persons. It is not

the case of the prosecution that no such report was received by

the prosecution. This action on the part of the prosecution in

withholding the available evidence requires me to draw adverse

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inference against the prosecution in terms of Illustration “g” to

Section 114 of the Evidence Act.

30 The prosecution has not produced and proved

electronic evidence in the form of recorded conversation though it

was available with it. According to the prosecution case, entire

recorded conversation between complainant/PW1 Santosh Bhelke

and both appellants/accused persons since inception till

concluding of the proceedings of the trap, came to be recorded in

the digital voice recorder and ultimately, it was transferred in the

audio cassette, which was seized during the course of

investigation vide Verification cum Trap Panchnama Exhibit 11.

Production and proof of this electronic evidence in the form of

recorded conversation was very relevant to establish guilt of both

appellants/accused persons as ocular evidence adduced by the

prosecution by examining complainant/PW1 Santosh Bhelke and

PW2 Rahul Bodade (Panch Witness No.1/shadow panch) is found

to be highly unsatisfactory as well as totally untrustworthy. In

this view of the matter, for establishing guilt of the accused, it was

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incumbent on the part of the prosecution to prove the audio

cassettes containing tape recorded conversation amongst the

complainant/PW1 Santosh Bhelke and accused persons by

following the due process of law. For the reasons best known to

the prosecution, this evidence is not adduced by it creating further

doubt in its case. The necessary inference which follows is that

such evidence was not favourable and supporting the prosecution

case. The Honourable Supreme Court has considered importance

of electronic evidence in criminal trial in the matter of Tomaso

Bruno and Another vs. State of Uttar Pradesh 13. The learned

advocate for appellants/accused persons rightly relied on the

same. It is apposite to quote observations of the Honourable

Supreme Court found in paragraphs 24 to 27 of the said

judgment. Those read thus :

“24 With the advancement of information tech-

nology, scientific temper in the individual and at
the institutional level is to pervade the methods
of investigation. With the increasing impact of
technology in everyday life and as a result, the
production of electronic evidence in cases has
13 (2015) 7 Supreme Court Cases 178

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become relevant to establish the guilt of the ac-
cused or the liability of the defendant. Electronic
documents strictu sensu are admitted as material
evidence. With the amendment to the Indian Evi-
dence Act in 2000, Sections 65A and 65B were
introduced into Chapter V relating to documen-
tary evidence. Section 65A provides that con-
tents of electronic records may be admitted as
evidence if the criteria provided in Section 65B is
complied with. The computer generated elec-
tronic records in evidence are admissible at a tri-
al if proved in the manner specified by Section
65B of the Evidence Act. Sub-section (1) of Sec-
tion 65B makes admissible as a document, paper
print out of electronic records stored in optical or
magnetic media produced by a computer, subject
to the fulfillment of the conditions specified in
sub-section (2) of Section 65B. Secondary evi-
dence of contents of document can also be led
under Section 65 of the Evidence Act. PW 13
stated that he saw the full video recording of the
fateful night in the CCTV camera, but he has not
recorded the same in the case diary as nothing
substantial to be adduced as evidence was
present in it.”

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“25 The production of scientific and electronic
evidence in court as contemplated under Section
65B of the Evidence Act is of great help to the in-
vestigating agency and also to the prosecution.
The relevance of electronic evidence is also evi-
dent in the light of Mohd. Ajmal Amir Kasab vs.
State of Maharashtra , (2012) 9 SCC 1
, wherein
production of transcripts of internet transactions
helped the prosecution case a great deal in prov-
ing the guilt of the accused. Similarly, in the case
of State
(NCT of Delhi) vs. Navjot Sandhu ,
(2005) 11 SCC 600, the links between the slain
terrorists and the masterminds of the attack were
established only through phone call transcripts
obtained from the mobile service providers.”

“26 The trial court in its judgment held that
non-collection of CCTV footage, incomplete site
plan, non-inclusion of all records and sim details
of mobile phones seized from the accused are in-
stances of faulty investigation and the same
would not affect the prosecution case. Non- pro-
duction of CCTV footage, non-collection of call
records (details) and sim details of mobile
phones seized from the accused cannot be said to

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be mere instances of faulty investigation but
amount to withholding of best evidence. It is not
the case of the prosecution that CCTV footage
could not be lifted or a CD copy could not be
made.”

“27 As per Section 114 Illustration (g) of the
Evidence Act, if a party in possession of best evi-
dence which will throw light in controversy with-
holds it, the court can draw an adverse inference
against him notwithstanding that the onus of
proving does not lie on him……..”

31 As stated earlier, conversation of complainant/PW1

Santosh Bhelke with appellants/accused persons during the course

of verification of demand since inception and till conclusion of the

trap, so also telephonic conversation between both appellants/

accused persons after the trap came to be recorded in the digital

voice recorder. The transcript of this recorded conversation was

prepared as seen from evidence of PW2 Rahul Bodade (Panch

Witness No.1/shadow panch) and PW3 Vinod Satav, Investigating

Officer, as well as from the recitals of the Verification cum Trap

Panchnama. It was made part of this Verification cum Trap

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Panchnama Exhibit 11, as seen from evidence of Investigating

Officer PW3 Vinod Satav, so also from recitals in the Panchnama

Exhibit 15, by which voice samples of appellants/accused persons

came to be seized. This Panchnama Exhibit 15 shows that both

appellants/accused persons were given Verification cum Trap

Panchnama and were asked to read the conversation of

complainant/PW1 Santosh Bhelke with appellants/accused

persons during the process of verification and conduct of the trap,

transcribed thereat. However, perusal of Verification cum Trap

Panchnama Exhibit 11 shows that no such conversation is

transcribed therein. Probably the transcript of the recorded

conversation in the digital video recorder was prepared by the

prosecution and the same might have been annexed with the

Verification cum Trap Panchnama Exhibit 11. However, the

recorded conversation is not found in the body of Verification cum

Trap Panchnama Exhibit 11. Separately prepared transcript was

not proved by the prosecution by adducing necessary evidence in

that regard and the same has not been exhibited before the

learned trial court, after its due proof. This again gives an

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indication that the transcribed conversation between

complainant/PW1 Santosh Bhelke and appellants/accused persons

may not be in favour of the prosecution case, and therefore, the

transcript was not proved by the prosecution. Moreover, the

prosecution has not explained during the course of evidence as to

why such transcribed conversation between complainant/PW1

Santosh Bhelke and appellants/accused persons is not finding its

place in the Verification cum Trap Panchnama. This position of

evidence gives a clear indication that material evidence is

suppressed and substituted by the prosecution and whole and

unvarnished truth has not been brought before the court. This

flawed approach of the prosecution does not allow me to hold that

the prosecution has duly proved the demand and acceptance of

illegal gratification by appellants/accused persons. As the

demand itself is not established by clear and cogent evidence by

the prosecution, even though the tainted currency notes were

allegedly recovered from appellant/accused no.2 S.P.Pokale, Police

Naik, it cannot be said that the prosecution has been able to bring

home the guilt to appellants/accused persons for offences with

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which they were charged. For invoking the provisions of Section

20 of the P.C.Act, 1988, the court is required to consider

explanation offered by the accused and in the case in hand, such

burden has been discharged by appellants/accused persons by

preponderance of probabilities. Demand of illegal gratification

precedes acceptance of illegal gratification and when the demand

itself is not proved, then the offence of criminal misconduct

cannot be held to be proved.

32 In the light of the foregoing discussion, I am unable to

endorse the view taken by the learned trial court and reasons

recorded by it for convicting both appellants/accused persons.

The findings given and conviction of appellants/accused persons

recorded by the learned trial court cannot be sustained in the

wake of evidence adduced by the prosecution. The prosecution

has utterly failed to prove guilt of appellants/accused persons in

respect of the charge leveled against them.

33 In the result, I proceed to pass the following order :

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ORDER

1 The appeal is allowed.

2 The impugned judgment and order of conviction and the
resultant sentence imposed on the appellants/accused vide
judgment and order dated 24th July 2015 passed by the
learned Special Judge (Anti Corruption Bureau), Pune, in
Special Case No.32 of 2014 is quashed and set aside.

3 Appellants/accused nos.1 and 2 are acquitted of the offences
punishable under Sections 7, 13(1)(d) read with 13(2) as
well as under Section 12 of the Prevention of Corruption Act,
1988.

4 Their bail bonds stand cancelled.

5 Fine amount, if any, paid by them be refunded to them.

(A. M. BADAR)

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