IPS Officer Bribery Case Judgement AK Jain
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Transcript of IPS Officer Bribery Case Judgement AK Jain
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JUDGEMENT 1 ACB SPL.CASE NO.46/2001
Exh.107
IN THE COURT OF THE SPECIAL JUDGE FOR GREATER BOMBAY.ACB SPECIAL CASE No. 46 of 2001
The State of Maharashtra
(Anti Corruption Bureau, B.M.U.
C.R.No.23/2000) ... Complainant.
V/s.1. Shri Ajaykumar Gyanchand Jain
Age : 59 years. Occ.: IPS officer
[Presently under suspension]
Residing at A/3, Mawal Flats,
Moledine Road, Camp, Pune 411 001.
2. Shri Prasanna Champalal Lodha
Age : 55 years, Occ. : Chartered Accountant.
Residing at Flat No.805, Ashok Tower/B,
Dr. Babasaheb Ambedkar Road, Parel(East),
Mumbai 400 042. ...Accused
Ld. Special Public Prosecutor Smt. Kalpana Chavan, for ACB.
Ld. Advocate Shri Shinganapurkar, for accused No.1
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JUDGEMENT 2 ACB SPL.CASE NO.46/2001
Ld. Advocate Shri Jambhavlikar, for accused No.2.
Coram : HER HONOUR THE SPECIAL JUDGE SMT. S.K. KEOLE
[C .R.No.45]
Dated : 10
th
April, 2013.
{Offences punishable u/s.7,8,9,10,12, 13(1)(d) r/w. 13(2) of
Prevention of Corruption Act, 1988 and u/s 109,120- B and 201
of Indian Penal Code,1860 }
J U D G E M E N T
(Pronounced in Open Court)
1] Accused No.1 Shri Ajaykumar Gyanchand Jain who
was IPS Officer, and was Additional Commissioner of Police, Central
Region, Mumbai in the year 2000 has been chargesheeted for the
offence u/s. 7,10, 13(1)(d) r/w. 13(2) of Prevention of Corruption
Act, 1988 and r/w. Sec.109, 120-B, 201 of Indian Penal Code, 1860
and accused No.2 Prasanna Champalal Lodha who was Chartered
Accountant of accused No.1 has also been chargesheeted for the
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JUDGEMENT 3 ACB SPL.CASE NO.46/2001
offence u/s.8,9,12 of Prevention of Corruption Act alongwith Sec.109,
120-B of I.P.C (Hereinafter will be referred to as 'P.C.Act' and 'I.P.C.') on
the complaint lodged by Police Inspector, Shri Sanjeev BhagwanraoKokil, attached to Byculla police station at the relevant time. The
offence was registered as C.R.No.23/2000, by Anti Corruption Bureau.
2] The facts of the prosecution case :-
The complainant, Police Inspector, Shri Kokil, in the year
2000 was attached to Byculla Police Station. He was on night duty atByculla Police Station on the intervening night of 21st and 22nd May
2000. On the same night, DCP Shri Date, who was on night round, at
about 02.00 hours found that 'Sairaj Bar and Restaurant', within the
jurisdiction of Byculla Police Station, was open after stipulated time.
Hence, he called the said complainant PI Sanjiv Kokil and asked him
to draw a panchanama to that effect and submit a report to seniorofficers. Accordingly, a report to that effect was submitted by the
complainant.
On 22.05.2000 at about 18.00 hours or so, DCP, Zone III
Shri Amitesh Kumar submitted a default report (Exh. 56) personally in
the office of the accused no.1 Shri Jain, Additional Commissioner ofPolice, of the region, against PSI Giri, PI Kokil and Sr. P.I. Mohite in the
matter of non-closure of 'Sairaj Bar and Restaurant' within stipulated
time. Accused No.2 Shri. Lodha was present in the office of accused
no.1 Shri Jain at the material time.
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JUDGEMENT 4 ACB SPL.CASE NO.46/2001
On 23.05.2000, at about 08.00 hours, the accused No.2
contacted the said complainant on telephone at his residence. Afterintroducing himself as the 'Chartered Accountant' of Shri A.K. Jain,
Additional Commissioner of Police, Central Region, he informed him
that he was to be suspended in connection with the non- closure of
'Sairaj Bar and Restaurant', and further asked the complainant to see
him immediately, opposite Mahim Police Station.
The complainant reached near Mahim Police Station at
about 09.00 hours and found the accused No.2 was waiting in a
Maruti Car, the description of which was informed on telephone. The
accused No.2 took the complainant in his car and after driving for
about 8 to 10 minutes, entered into a by-lane. The accused No.2 then
told the complainant that he was sent by the accused No.1, ShriA.K.Jain, and further told the complainant that accused No.1, Shri
Jain has decided to suspend him for the alleged default of 'Sairaj Bar
& Restaurant'. He then stated that accused no.1 Shri A.K Jain, has
demanded Rs.5,00,000/- in order to avoid his suspension. On
negotiations, the accused No.2 Shri. Lodha, agreed to accept Rs.
3,00,000/- as the first installment for and on behalf of accused No.1
Shri Jain, and Rs.10,000/- for himself as his 'Mehanatana
' (Remuneration) to be paid by 17.00 hours on the same day. In order
to pass time, the complainant agreed to pay the same. accused No.2
immediately dialed a number from his cell phone and said tSu lkgc
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JUDGEMENT 5 ACB SPL.CASE NO.46/2001
eS yks
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JUDGEMENT 6 ACB SPL.CASE NO.46/2001
told to him by accused No.2. The demonstration of Tape recorder was
shown and its operation was explained to complainant Shri Kokil.
4] Thereafter, the raiding party along with the complainant,
independent pancha witnesses S/Shri Medhe and Shri. Kandhare
went to the house of complainant, at Police Officer's Quarters, Ground
floor, Opp. Agripada Police Station, Mumbai. The residential
telephone of the said complainant in the presence of the panchas was
connected to a cassette tape recorder. At about 13.30 hrs. thecomplainant contacted Accused no.2, on his cell phone. The
conversation that took place between Shri Kokil, and accused No.2, it
was recorded on the said cassette. Thereafter at 13.40 hrs, the
accused No.2 called on the said complainant's residential telephone
number. The said conversation was also recorded. During this
conversation, the accused No.2, called the complainant (Shri Kokil)alongwith the money, near Mahim Police Station. (The transcript of
the said conversation is at Exh.40). Thereafter they all proceeded
towards the place where accused No.2, called the complainant.
5] The police vehicles were halted near Mayor's Bunglow,
Shivaji Park. Thereafter, the members of the raiding party, the
complainant and the panch witnesses proceeded towards Mahim
Police Station in two taxis and a police jeep. the vehicles were halted
near Traffic Police Chowky, at the junction of L.J. Road and S.V.S.
Road, Mahim.
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JUDGEMENT 7 ACB SPL.CASE NO.46/2001
6] At about 14.45 hours, a white colour Maruti 800 Motor
Car bearing No.MP24-G-1747 was noticed as parked opposite theofficers' quarters, near Mahim Police Station facing towards Bandra.
As instructed, the complainant and pancha witness Shri Medhe
contacted accused No.2, who was sitting in the said car on the left
rear side and his driver on the steering wheel. After preliminary
conversation between the complainant and the accused No.2 in the
presence of panch Shri Medhe, the accused No.2 took the complainantand the panch Shri Medhe into the said car and proceeded towards
Bandra. The complainant sat in the car on the rear seat on left side
near the accused No.2 while panch Shri Medhe sat on the front left
side near the driver. The panch witness No.2 and raiding party then
followed the said car. While the said complainant, panch Shri Medhe
and the accused No.2, were travelling in the Maruti Car, the accusedNo.2, enquired about and demanded the bribe amount. Thereafter
knowing that the said complainant had come with the bribe amount
the accused No.2, dialed a number from his cell phone and asked one
Shri Sayyed, to connect the call to 'Saaheb'. When the call was put
through, the accused No.2, informed the person at the other end that
the complainant had come with 3 kg of 'Sweets', the complainant
interfere and say he had brought only 2 Kg. instead of 3 kg. The
accused No.2 then accepted the cash of Rs.2,10,000/-. He then
separated cash of Rs.10,000/- from the amount of Rs.2,00,000/-, put
Rs.2,00,000/- in the polythene bag in which the cash was brought by
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JUDGEMENT 8 ACB SPL.CASE NO.46/2001
the complainant. The accused No.2 kept Rs.10,000/- under his right
thigh. On receiving pre-determined signal from the said complainant,
the accused No.2, was intercepted near 'Kondor Furnitures',Bandra(W), Mumbai. He was detained in the car and taken to Bandra
Police Station.
7] During post trap procedure on examination, both the
hands, face, neck, the entire front portion of the shirt (Article 9) and
pant (article 10) and the napkin (article 8 ) carried by the accused No.2, were seen emitting bluish glow confirming the presence of
anthracene powder ( encircled portion on article 8 marked as article
15, encircle portion on article 9 marked as article 16 collectively .The
encircle portion on article 10 marked as article 17 ) Which was
transferred from the smearer currency note. The marked money,
(Article 6) the shirt, pant, napkin and the cell phone (Article 5) ofaccused No.2 have been taken charge of under panchanama. The
conversation that took place in the Maruti Car between the
complainant and accused No.2, has been heard. The effect of
anthracine powder was also noted on the right side of the back seat
cover of the car. Article 11 encircle position on it. Said seat cover was
also seized during panchanama.
8] After the completion of the Post trap panchanama, (Exh.
48) The accused No.1 Shri A.K Jain was arrested on 28/06/2009.
During investigation the call detail report of Mobile number
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JUDGEMENT 9 ACB SPL.CASE NO.46/2001
9820130698, admittedly in possession of accused no.2 were obtained
from concern mobile company (Exh 84, admitted by both accused).
The Location of the said mobile number was also obtained (Exh. 105,Admitted by both accused) The specimen handwriting of the accused
no. 1 was obtained (Exh.98) the said specimen hand writing with
papers (Exh.97 ) forwarded to the handwriting expert. The report was
received from the Handwriting expert (Exh.89 and 90) The statement
of witnesses were recorded. After completing the
investigation,chargesheet was filed against the accused no. 1 , afterobtaining necessary sanction (Exh. 26 and schedule at Exh.28) and
also against accused no.2.
9] My Ld. Predecessor framed the charge at Exh.8 against
accused. The first charge is showing that charge u/s.8, 9 (Wrongly
mentioned as 8 of Prevention of Corruption Act), 10 are framed inthe alternative. Their plea was recorded at Exh.9 and 10 respectively.
Accused pleaded not guilty, therefore, trial has commence.
10] In order to establish the offence levelled against the
accused, prosecution in all have examined 20 witnesses.
P.W.1, at Exh. 19 - Shri Atanu Purkayastha Sanctioning
Authority,
P.W.2, at Exh.30 - Shri Sadanand Vasant Date, on the
point of incidence of 'Sairaj Bar and
Restaurant'
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JUDGEMENT 10 ACB SPL.CASE NO.46/2001
P.W.3, at Exh. 33- Shri Sanjiv Bhagwanrao Kokil , Complainant
P.W.4, at Exh. 46- Shri Kishore Ramdas Medhe, PanchWitnessNo.1
P.W.5, at Exh.51- Shri Amitesh Kumar, on the point of default
report.
P.W.6, at Exh.57- Shri Pradeep Dakornath Shroff on the point
of default report.
P.W.7, at Exh.59- Shri Chandan Shankarrao Shinde, Orderlyof accused No.1
P.W.8, at Exh.63- Shri Rajendra Bhikaji Jalgaonkar, Panch,
P.W.9, at Exh.64 - Shri Sayed Vahouddin Ather, P.A. of Accused
No.1,
P.W.10, at Exh.68- Shri Akbar Mohd. Hanif Jamadar Muslim,
working in the office of accused no.1.P.W.11, at Exh.69- Shri Sanket Dattatray Yadav, Orderly/Boy
Constable of accused no.1,
P.W.12, at Exh.71- Shri Subhash Shankar Ubale, Orderly/Boy
Constable , attached to office of accused no.1
P.W.13, at Exh.75 - Shri Suresh Arjun Parab, attached to Byculla
Police StationP.W.14, at Exh.76- Shri Arvind Rengurud Kittur, Radio Mechanic
P.W.15 at Exh.77- Shri Sachin K. Kondilkar (Krishna),
employee of mobile company on the point of
Call Details Reporter,
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JUDGEMENT 11 ACB SPL.CASE NO.46/2001
P.W.16, at Exh.80- Shri Govind Singh Kandari, on the point of
Call Details Record.
P.W.17,at Exh.85- Shri Deepak Manohar Wagle, Handwritingexpert.
P.W.18, at Exh.92- Shri Rajesh Sazu Bandodkar, Engineer of
Mobile Company
P.W.19, at Exh.93- Shri Arun Vittalrao Wable, Investigating
Officer,
P.W.20, at Exh.94- Shri. Madhukar Tukaram Kohe, InvestigatingOfficer,
11] After recording the evidence, statement of both the
accused were recorded separately u/s. 313 of Cr.P.C. at Exh.100 and
Exh.102 respectively. The accused submitted their written statements
at Exh.101 and Exh.103 respectively.
12] The cross examination and written statement submitted by
accused No.1, is showing his probable defence, that he has been
falsely implicated in the instant case. He never demanded and
accepted bribe amount from the complainant at any point of time,
through accused No.2. Probable defence of accused No.2 is that that
to implicate falsely accused No.1. ,he has been used as instrument, he
has been falsely involved in this case. He never demanded or
accepted by amount from complainant for accused no.1 , and for
himself.
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JUDGEMENT 12 ACB SPL.CASE NO.46/2001
13] Heard Ld. Additional Public Prosecutor Smt. Kalpana
Chavan for State, Ld. Advocate, Shri Shinganapurkar for accused No.1and Ld. Advocate Shri Jambhavlikar for accused No.2.
14] After considering the oral as well as documentary
evidence, available on record following points are raised for my
consideration.
POINTS FINDINGS1] Whether it is proved by the prosecution that
sanction order granted for prosecuting the
present accused No.1 is legal and valid?
2] Whether it is proved by the prosecution that
accused No.1 and 2 hatched the criminalconspiracy on 22/05/2000, to extract the bribe
amount of Rs.5 lacs, through the accused No.2,
In the affirmative.
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JUDGEMENT 13 ACB SPL.CASE NO.46/2001
from complainant Police Inspector Sanjiv
Bhagwanrao Kokil, attached to Byculla police
station, for not suspending him in connection
with incidence of Sai raj bar. Further in view of
the said conspiracy, on 23/05/2013, in the by
lane near Mahim Police Station, Mumbai, at
about 9.00 a.m. Accused no.2 demanded bribe
amount of Rs. 5,00,000/- from complainant for
showing favor of not suspending him inconnection with the incident of 'Sairaj Bar and
Restaurant' occurred in the night between
21/05/2000 to 22/05/2000.
AND
Further, Whether it is further proved by the
prosecution that accused No.2 on the same dayin the morning , in his car after negotiations,
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JUDGEMENT 14 ACB SPL.CASE NO.46/2001
agreed to accept a sum of Rs.3 lacs as a first
installment for accused No.1 and Rs.10,000/-
for himself as Mehentana on the same day I.e.
23/05/2000, at 17.00 hrs., from the
complainant above name for the reason
mentioned above ?
3] Whether it is proved by the prosecution that
on 26/05/2000, complainant called on mobileof accused No.2 and had conversation with him,
then accused No.2 called on landline number of
complainant and called the complainant near
Mahim Police Station, with bribe amount on
the same day. Further during the time of 14.45
hours to 15.05 hours, at Bandra area in car ofaccused No.2, accused No.2 demanded and
accepted bribe amount of Rs.2,00,000/- from
complainant for accused No.1 and Rs.10,000/-
for himself for showing favour in case of
incidence of Sairaj Bar, to the complainant ?
4] Whether it is proved by the prosecution that
accused No.1 had accepted the said amount of
Rs.2 lacs through accused No.2 and obtained
pecuniary advantage illegally for himself by
In the affirmative.
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JUDGEMENT 15 ACB SPL.CASE NO.46/2001
misusing his official position, as Govt. servant
for showing favour of not suspending the
complainant? In the affirmative
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JUDGEMENT 16 ACB SPL.CASE NO.46/2001
5] Whether it is proved by the prosecution that
on 27/05/2000, at about 3.30 p.m. the accused
No.1 had directed Chandan Shinde, to burn all
the papers in the waste paper basket and on
29/05/2000, he removed the page in the note
sheet bearing Para No.10, folded the same and
entered in Anti chamber with said papers of
folded note sheet and matchbox, when
returned, the said paper was not with him andthereby, tried to destroy the evidence ?
6] Whether it is proved by the prosecution that
accused No.2 by demanding and accepting Rs.2
lacs for accused No.1 and Rs. 10,000/- for
himself, aided and abetted the commission ofthe offence of bribe acceptance?
In the affirmative.
In the affirmative
with Point No.3
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JUDGEMENT 17 ACB SPL.CASE NO.46/2001
7] Whether it is proved by the prosecution that
accused No.2 by accepting the bribe amount of
Rs.2 lacs in order to influence the accused no.1,
for showing favor to the complainant in case of
'Sairaj Bar and Restaurant'?
As per final order
8] Whether it is proved by prosecution that the
accused no. 1 abetted the accused no.2 fordemanding and accepting bribe amount from
complainant for the reason mentioned above?
As per final order
9] What order? As per final order
R E A S O N S
As to Point No.1:-
WHETHER SANCTION GRANTED FOR PROSECUTING
ACCUSED NO.1 IS LEGAL AND VALID
15] Valid sanction is the 'Sine-qua-non' in the cases under
Prevention of Corruption Act, 1988. In view of Sec.19 of the Act, the
Court cannot take the cognizance of the offence punishable u/s.7, 10,
11,13,15, alleged to have been committed by the Public Servant
except with the previous sanction by the competent authority.
16] In this matter, P.W.1 has examine by the prosecution at
Exh.19 to prove that the sanction is legal and valid. In his evidence,
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JUDGEMENT 18 ACB SPL.CASE NO.46/2001
this witness deposed that in the year 2001, he was posted as 'Director
of Police' in Ministry of Home Affairs, Government of India. As the
Director, he was assigned with the work of entire matters ofEstablishment of IPS officers posted throughout India. According to
him, Establishment of PSI officers includes, appointment, removal and
conduct etc. The accused No.1 who was IPS officer of 1982 batch at
the relevant time was posted as Additional Commissioner of Police' in
Mumbai, for Byculla Division.
17] As deposed by this witness, as per the procedure, the
State Government is required to move the Government of India for
getting sanction to prosecute IPS officer like accused No.1.
18] In his evidence, this witness deposed that how the papers
were received from Government of Maharashtra and how the paperswere examined by the various officers of department including
Central Vigilance Commission (CVC). According to this witness,
Ministry of Home Affairs, is the competent authority to grant
sanction. This witness deposed that he prepared the draft sanction
order and forwarded the same with file of papers of investigation to
superior officer, to Joint Secretary Police, then to Special Secretary
(Internal Security and Police), then to Home Secretary and after that
file was placed before the Central Vigilance Commission. The advise of
Central Vigilance Commission was also called for and on receiving the
advice from Central Vigilance Commission, he again move the file
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JUDGEMENT 19 ACB SPL.CASE NO.46/2001
through Joint Secretary, Special Secretary, Home Secretary to Home
Minister for the approval. The approval was granted through the
same channel. Thereafter, he issued sanction order. In his evidence,he proved the documents such as requisition letter at Exh.20. In his
evidence he also deposed that due to mistake of State Government,
the said requisition letter had sent to the Department of Personnel and
Training and from there, the letter was sent to this witness. He also
produced the letter at Exh.21 sent by the said department to him and
there is endorsement of his office on it. He also pointed out theendorsement on the said requisition letter at Exh.23.
19] According to this witness, he went through the entire
record and made his comment in writing and then placed the file
before the Joint Secretary, Joint Secretary also examined the papers
and made his comment in writing. He pointed out the signature of Mr.O.P. Arya at Exh.23. This file was put up before the Special Secretary
which was approved vide Exh.23. The file was referred to Joint
Secretary and he was asked to take advise of Central Vigilance
Commission (CVC). The officer of Central Vigilance Commission
(CVC) have also gone through the papers and opined on it. This
witness further deposed that the draft sanction order was prepared
on the basis of record. He prepared his own draft. The said draft was
placed before the Joint Secretary, and he approved the draft and
thereafter, he signed the same.
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JUDGEMENT 20 ACB SPL.CASE NO.46/2001
20] This witness was cross examined to show that there was
non application of mind and that he is not the competent authority. In
his cross examination, he admitted that Hon'ble Home Minister, givesthe approval in the name of Honourable President. This witness was
also cross examined on the facts of trap case by Ld. Advocate for
accused No.1 specially on the facts mentioned in schedule at Exh.28
( internal Page No. 4 last line in Paragraph No.7, Page No.6 - middle
portion, Page No.7 Opening line of Paragraph No.11, Page No.8
Paragraph No.13).
21] The Ld. Special Public Prosecutor submitted that the
evidence on record is showing that the papers of investigation were
verified by the various officers, those officers also applied their mind
and endorsed the same. According to her, it is not the mind of only an
individual but most of the officers had applied mind while accordingthe sanction.
22] The ld. Advocate of accused No.1 submitted that the cross
examination of the witness is showing that there is no application of
mind and he is not the competent authority. He tried to point out
from the cross examination that the witness was not aware about the
facts of the case. He invited my attention to the questions and
answers given by witness (P.W.1/10) that whether there is any
document to show that that demand was made by accused No.1, the
answer given by this witness is
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JUDGEMENT 21 ACB SPL.CASE NO.46/2001
As per the record, there was telephonic conversation,
which was recorded and there were statements of witnesses like
Police Officers.
23] He further narrated that only on the basis of memory, he is
telling this, as it is very old incident.
24] The Ld. advocate for accused No.2 submitted that the
sanction is illegal as by order dated 7.6.2002 the then PresidingOfficer of this Court return the chargesheet for want of proper
sanction. The said order was challenged before the Honorable High
Court and the said order is still in existence as it is not set aside by the
Honorable High Court. According to him, this findings are given by
My Ld. Predecessor are still exists, therefore, the sanction order
cannot be said as legal and valid.
25] The Examination in Chief and the cross examination of
this witness conducted on behalf of accused No.1, in my view, is not
showing non application of mind. On the other hand, exhibited
documents are clearly indicating the notings made by various officers
after going through the papers of investigation. The evidence of P.W.1
cannot be discarded only on the ground that he admitted that
schedule annexed with the Sanction Order at Exh.28 was prepared by
his staff. Sanctioning authority P.W.1's evidence and cross
examination is also not showing that he is not competent to grant
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JUDGEMENT 22 ACB SPL.CASE NO.46/2001
sanction.
26] While considering the evidence of the witness, P.W.1 itshould be bear in mind that the incident had occurred prior to about 9
years, of his recording evidence. Therefore, minor discrepancies in
his evidence needs to be ignored as such discrepancies could appear
only due to lapse of time. Answers given by him in cross examination
are showing a natural conduct of a prudent man, while deposing
regarding the order passed by him, prior to 9 years.
27] It is the well settled of law that the sanction order can be
challenged on the two grounds, one is the competency of the
sanctioning authority and another is the non application of mind by
the sanctioning authority.
28] Perused the documents produced at Exh.22 and 23. The
Examination in chief of the witness is clearly showing that how the
papers of investigation were gone through by the officers and
recommendations were made by them, Exh.22, 23 and 24 are clearly
showing that the papers of investigation were verified by the present
witness and also by the other officers who had recommended the
grant of sanction for prosecuting the accused no.1 The findings given
in the above exhibits are also reflecting that there is application of
mind by the other officers. Though in the cross examination, it is
suggested to this witness that he is not the competent authority and
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JUDGEMENT 23 ACB SPL.CASE NO.46/2001
had not gone through the entire papers of investigation, but such
suggestion has been denied by the witness.
29] The evidence of witness is not showing the non
application of mind. The documentary evidence filed on record at
Exh.21 to Exh.28 are clearly showing that before granting sanction,
papers of investigation were verified at various stages by various
departments and there was application of mind by the officers
including PW 1. Therefore, the argument made by the Ld. Advocatefor accused No.1, that there is no application of mind and sanctioning
authority is not the competent authority cannot be accepted.
30] So far as the arguments made on behalf of accused No.2 is
concerned, the following order passed by the Honorable High Court at
Page 3 ( reproduced below) will make the position clear.Counsel for the Respondent No.1 fairly accepts on
instructions that the basis on which the Special Judge has
proceeded to hold that the sanction order already granted is bad in
law could be tested only at the end of the trial.
Accordingly, the impugned judgment and order isset aside and the trial court is directed to proceed with the
trial in accordance with law. All questions relating to the
validity of the sanction order in question are left open. The trial
court shall pronounce upon the same on the basis of the evidence
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JUDGEMENT 24 ACB SPL.CASE NO.46/2001
on record let in by the parties on the matters relevant to decide the
validity of the sanction order.
31] In the said order dated 15/12/2004, at Page No.3, Further,
it is directed by the Honorable High Court to proceed with the trial in
accordance with law.
32] It was accepted by the Ld. Adv. for accused No.1 before
the Hon'ble High Court , that the question of sanction order was keptopen and will be decided at the end of trial. It also needs to be
consider that, at the time of passing of order dated 07/06/2002,
evidence of sanctioning authority was not recorded which is now
recorded. In view of the further directions given by the Honorable
High Court, it is necessary to give fresh findings on the issue of
sanction order, which I have given above. Therefore, the argumentsmade by the Ld. Advocate for accuse No.2 that if the sanction order is
illegal, then entire case cannot proceed further, even against accused
No.2, cannot be accepted. The Ld. Advocate for accused no.2 failed to
notice that the Hon'ble High Court has set aside the order passed by
my ld. Predecessor.
33] As discussed above, the evidence of PW 1 and the
documents produced at Exh.20 to Exh. 28 are clearly showing that the
present witness was the competent authority to grant the sanction
order and also applied his mind.
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34] Further Exh.25 (Page 19) is clearly showing the noting
that the matter was consulted with Central Vigilance Commission(CVC) who approved and then Honorable Home Minister, also
approved the sanction for prosecuting the present accused No.1.
Therefore, the order of sanction issued under the head of
Government of India/Bharat Sarkar, Ministry of HomeAffairs/Grih Mantralayaproduced at Exh.26 cannot be said as the
order issued by the incompetent authority. The schedule attached tothis order at Exh.28 is also showing the details of the incident
occurred and that the papers of investigation had carefully gone
through by the PW 1. Therefore, there is no significace to the
admission given by P.W.1 that schedule at Exh.28 was prepared by his
staff.
35] The Ld. Public Prosecutor placed reliance on the judgment
reported in (2004)4 SCC 615 in case of
State (A.C.B.) Govt. of NCT of Delhi and another
V/s.
Dr. R.C. Anand and others,
as it has suggested to the Sanctioning Authority that Whether
cassettes or CD's in respect of conversation were supplied to him or
not.
36] In the judgment mentioned aforesaid, it is observed by the
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Honorable Apex Court that
Sanctioning Authority has only to see whether the
facts stated in the complaint prima facie disclosedthe commission of an offence or not and further, the
actual production of the tapes, etc. are matters for
proof during trial. On facts, sanction order held was
valid.
In view of this judgment the objection raised by ld. Advocate for
accused no. 1, that cassettes were not forwarded to Sanctioningauthority, can not sustained.
37] The Ld. Public Prosecutor also placed reliance on
Judgment reported in, 2007 ALL MR(Cri) 441 in case of Rajendra
Tatoba Magdum V/s. State of Maharashtra, wherein it is observed
by the Honorable Lordship of Bombay High Court that, The issue of sanction should not be put on such a
pedestal as would make it impossible for the
prosecution and the Court to prosecute a public
servant. The object and purpose of grant of sanction
and protection and immunity contemplated thereby
does not mean that technical and trivial objectionsto the legality and validity of the same must be
entertained. The sanction order cannot be said to be
vitiated merely because, it is termed as Irregular.
38] The objections raised by the Ld. Advocate appearing on
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behalf of accused No.1, in my view is not sustainable , in view of the
provisions of Sec.19(3) of PC Act 1988, and Explanation to this
section, which is reproduced below,Sec.19(3) Previous sanction necessary for prosecution -
(1)....
(2)...
(3) ...
Explanation :- For the purposes of this section -
(a) error includes competency of the authority to grantsanction;
39] The sanction order and the evidence of P.W.1 also needs to
be trusted, In view of the provision of Sec.114(e) of Indian Evidence
Act, 1872, which is reproduced below,
114. Court may presume the existence of any fact which itthinks likely to have happened, regard being had to the common course
of natural events, human conduct and public and private
business, in their relation to the facts of the particular
case. (a) ...
(b) ...
(c) ...
(d) ...
(e) That judicial and official acts have been regularly
performed;
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40] In view of the above discussion and placing reliance on
the principles laid down by the Honorable Apex Court and Honorable
Bombay High Court , in the judgments referred above. I have nohesitation in holding that the sanction granted by P.W.1 to prosecute
the accused No.1 is legal and valid. Hence, I answer the Point No.1
in the affirmative.
As to Point No.2
CRIMINAL CONSPIRACY HATCHED BY ACCUSED NO.1
AND 2 TO EXTRACT BRIBE AMOUNT
FROM COMPLAINANT.
41] It is the case of prosecution that on 22/05/2000, accused
No.1 and 2 hatched criminal conspiracy to extract the bribe amount of
Rs.5 lakhs from the complainant through accused No.2 in connection
with the incidence of 'Sairaj Bar and Restaurant' occurred in the
intervening night of 21/05/2000 to 22/05/2000 for showing favor of
not suspending him.
42] The Criminal Conspiracyhas been defined u/s.120-A of
Indian Penal Code, which is reproduce below.
120 A Definition of criminal conspiracy
When two or more persons agree to do, or cause to be
done - 1] an illegal act, or
2] an act which is not illegal by illegal
means, such an agreement is designated a criminal conspiracy ;
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JUDGEMENT 29 ACB SPL.CASE NO.46/2001
Provided that no agreement except an agreement to commit
an offence shall amount to a criminal conspiracy unless
someact besides the agreement is done by one or more parties to
such agreement in pursuance thereof.
Explanation :- It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely incidental to
that object.
43] In order to prove the allegation of the conspiracyhatched by the accused, the prosecution have examined PW.2, P.W.3,
PW.5, PW.6, PW.7, PW.12, PW.13. The prosecution also produced on
record Call Details Report of the mobile No. 9820130698 which was
in the possession of accused No.2, (Admitted documents) at Exh.84,
44] In the evidence of P.W.2, it has been brought on recordthat the incidence of 'Sairaj Bar and Restaurant' was occurred in the
mid night, immediately P.W.2 who was Deputy Commissioner of
Police, Zone III, Mumbai, called the complainant, night duty PI and
directed him to prepare the report about the non-closure of 'Sairaj Bar
and Restaurant' within the stipulated time. One PSI Giri was found
standing in front of said Bar, still the bar was found in runningcondition, when P.W.2 inspected the bar from the entrance at backside.
According to this witness, on next day, i.e. on 22/05/2000, there was
meeting in the office of Commissioner which was attended by
Additional Commissioner including him and the incidence of 'Sairaj
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JUDGEMENT 30 ACB SPL.CASE NO.46/2001
Bar and Restaurant' was discussed there. In the said meeting, he
suggested to take action against the erring officers and the
Commissioner agreed to it. The commissioner asked DCP, Zone -III(PW 5) to take sanction against the erring officers. According to him,
PSI Giri was erring officer, Senior Police Inspector and night duty
Police inspector ie. complainant were also responsible for such
incidence. It is not disputed that at that time, night PI was the
complainant and Sr.P.I. was one Shri. Mohite.
45] In the cross examination of this witness, nothing adversehas been suggested to him. Therefore, the evidence of this witness
remained unchallenged, wherein it has been brought on record by the
prosecution that the complainant was also one of the erring officer in
case of 'Sairaj Bar and Restaurant' and i.e. accused No.1 being
incharge was directed by the Commissioner to take action against
erring officers.
46] In order to find out the evidence to show as to whether
Sec.120-B of I.P.C. is attracted in this matter or not. I switch over to
the evidence of PW.3 complainant.
47] According to this witness, during the relevant period, he
was attached to Byculla police Station as PI. At that time, incharge of
Byculla Police Station was ACP Mr. Warkhad and incharge of Zone III
was DCP Shri Amitesh Kumar and present accused No.1 was in charge
of Central Region. This witness also narrated about the incidence of
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'Sairaj Bar and Restaurant'. In his evidence,he narrated that on
23/05/2000, at about 8 a.m. when as usual, he was preparing for
attending his duty, at that time, he received one call on his landlinephone No.3075178, the person on the other side introduced him as
Lodha - accused No.2 and also informed him that he is the 'Chartered
Accountant' of accused No.1, and further informed him that he is
found guilty in the matter of 'Sairaj Bar and Restaurant', occurred in
the mid night of 21/05/2000 and 22/05/2000 and also that, there is
possibility of his suspension. The said person at the other end of thephone asked him to come immediately in front of Mahim Police
Station and also provided details of his Car Number and colour etc.
Therefore, immediately complainant rushed there. He reached near
that spot and noticed the car of same description. The car of accused
No.2, was standing facing towards the Mahim Church. Both of them
introduced each other. The person sitting in the car introducedhimself as Lodha, Chartered Accountant of accused No.1. He offered
the seat to him in the car. The vehicle was running and it was stopped
after 8-10 minutes in one galli. Again the present accused No.2
introduced himself and told him that in the matter of 'Sairaj bar and
restaurant' Complainant, PSI Giri and Sr. P.I. of Byculla Police Station
are held guilty for allowing the said bar to run even after stipulated
time. It was further intimated by him that accused No.1 had decided
to suspend him i.e. complainant, out of three officers. Accused No.2
further told him that accused No.1 had demanded Rs.5 lakhs from
him for not suspending him and for not taking action against him.
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JUDGEMENT 32 ACB SPL.CASE NO.46/2001
Further, accused No.2 also suggested him to pay Rs.3 lakhs as first
installment, at 5 O'clock, in the evening on the same day. Further, to
inspire his confidence, he stated the name of Steno Sayyed (Steno ofaccused No.1). Then on one page of diary, he mentioned his name,
telephone number and handed over to him. Further, to impress him,
he made a call and said tSu lkgsc] eS yks
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JUDGEMENT 33 ACB SPL.CASE NO.46/2001
these admitted call details, that on 23/05/2000, in the morning, he
received phone call from accused No.2 and prior to that he was not
knowing accused No.2. Further, the case of the complainant that whenhe met accused No.2 and when he was in his car, accused No.2 called
from his mobile and talked with the person on other side as on other
side accused No.1 is there. The CDR is supporting this contention of
the complainant.
50] The Ld. Advocate appearing for accused No.2 thoughadmitted these CDR but from the timings of the call i.e. first call at
8.54 hours and 2nd call at 9.11 hours, tried to point out that these are
not the timings mentioned by the complainant in his deposition and
these timings are totally different. But since the 9 years are passed,
such minor discrepancies may occur in the evidence of the
complainant and it is not unnatural.
51] The argument made by Ld. Advocate that within a short
time, the complainant cannot reach from Agripada Police Quarter to
Mahim (between 8.54 a.m. To 9.11 a.m.). This argument of Ld.
Advocate cannot be accepted as it is not suggested to the witness that
he had not reached within this time at Mahim. Further, the judicial
note of the fact can be take, that prior to 10 years no much traffic was
there compare to heavy traffic as on today.
52] The evidence of the complainant also cannot be
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JUDGEMENT 34 ACB SPL.CASE NO.46/2001
disbelieved on this point, in view of the admitted document at Exh.
105, which is showing the location of Call Ids. No.10023111 as
Mahim and location of Call IDs No. 10021253 as Shivaji Park (Dadar),Hence there is reason to believe that the complainant was not
knowing accused No.2 prior to 23/05/2000 till receiving the call from
him.
53] The evidence of P.W.5 (P.W.5/3), he narrated that prior to
handing over note sheet at Exh.56 by him, he attached one page tothe note sheet, the page attached by him is missing and other page is
appearing in place of page attached by him. In the cross examination
of this witness, it was not suggested to him that he had not attached
page to note sheet. The said note sheet is showing that till
26/05/2000, nothing was recommended by accused No.1 regarding
the incidence of 'Sairaj Bar and Restaurant'.
54] P.W.7 Shri Chandan Shinde confirms the visit of accused
No.2 in the chamber of accused No.1 in the evening of 22/05/2000.
The cross of this witness (P.W.7) was conducted and it was suggested
on behalf of accused No.1 that he has falsely deposed against accused
No.1. It is suggested to this witness on behalf of accused No.2 that he
has falsely deposed that accused No.2 instructed him to collect the
information from Byculla Police Station about the duty hours of the
complainant. This witness has not cross examined by accused No.2, on
the point that in the evening of 22/05/2000, accused No.2 attended
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JUDGEMENT 35 ACB SPL.CASE NO.46/2001
the chamber of accused No.1. Hence, the evidence of P.W.7 remains
unchallenged, so far as the visit of accused No.2 to the Chamber of
Accused No.1 is concerned.
55] It is suggested to the witness that 'they have falsely
deposed' , but it is not the case of both the accused that such incidence
had not happened at all. No reasons are brought on record to show
that for the particular reasons the witnesses including P.W.5, falsely
deposed. In fact, there should not be any reason for the witnesses todepose falsely against accused No.1 and 2, as there was no enmity
between them and they have no reason to involve them falsely.
56] Perused the note sheet at Exh.56. The first page is
recommendation. In this note sheet, on the first page recommendation
was given by the Assistant Commissioner of Police Shri Warkhad,about suspension of PSI Giri, Stoppage of two increments of present
complainant for the period of two years, stoppage of increments for
the period of one year of PI Mohite. The same recommendations were
followed by P.W.5 DCP, Zone III. But this note sheet is showing that
the present accused No.1 shown leniency to all these three persons
and note sheet bears the date as 22/05/2000. The accused No.1
recommended 'reprimand' for the complainant and PI Mohite and
stoppage of one increment for the period of one year for PSI Giri.
Prima facie, page on which the notings of accused No.1 starts is
different than the other two pages of the note sheet.
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57] In this regard, the argument made by the Ld. Advocate for
accused No.1 that he was not the competent authority to suspendPolice Inspector i.e. complainant, cannot be considered, in the
background that even if he was not having authority to suspend the
complainant but admittedly, he was authorize to recommend the
suspension of the erring officer, which he failed to do. It is further
clear from this note sheet that ACP Warkhad, recommended the
suspension of PSI Giri, and minor punishment of stoppage ofincrement for complainant and Mohite. Similar recommendations
were made by P.W.5 DCP, Zone III . The accused No.1, who was the
Additional Commissioner of Police, and on the higher post than these
two police officers recommended lighter punishment to all erring
officer. The note sheet also further shows that though the
recommendations were made by various officers, but till 29/05/2000,noting was done by accused No.1. The conduct of accused No.1 is
clearly showing his guilty mind. As it is brought in evidence that the
incidence of 'Sairaj Bar' was serious one but still accused No.1 shown
soft corners to all guilty officers in spite of that in the meeting with
Commissioner, Commissioner consented for initiating stern action
against the erring officers and the incidence of 'Sairaj Bar' was
seriously viewed in the said meeting.
58] In the cross examination of P.W.3, so far as the initial
incidence is concerned, it has been brought on record that the
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JUDGEMENT 37 ACB SPL.CASE NO.46/2001
incidence of 'Sairaj Bar and Restaurant' was not confidential as the
copies of panchanama were prepared and forwarded. Accused No.1
was not competent to suspend him. It was also suggested to him thathe had not conducted enquiry with his colleague i.e. Mohite and Giri,
that he involved the name of accused No.1 without any reason, to
obtain publicity and to please his superior officer. It is also suggested
to this witness that, he had not discussed the issue i.e. demand made
by accused No.2, for accused No.1, with anyone.
59] Further, that he has falsely deposed about the callreceived to him from accused No.2 in the morning of 23/05/2000. It
is suggested to this witness that with intention to involve the accused
No.1, he lodged complaint and that he has falsely deposed.
60] In statement u/s.313 of Cr.P.C. of accused No.2, while
answering question No.37, he flatly refused that the call was made byhim to the complainant (P.W.3) in the morning, on 23/05/2000. The
suggestion given to the witness that he had not discussed the demand
made by accused No.2 for accused No.1 with anyone including his
colleague, is not of much helpful to the defence, for the reason that
the conduct of the complainant of not discussing the said issue with
anyone is quite natural. It is not expected from anyone that he would
discuss the issue of demand of bribe by his superior authority, with the
other colleagues.
61] In this connection, it needs to be considered that admitted
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JUDGEMENT 38 ACB SPL.CASE NO.46/2001
document i.e. CDR is showing call made by present accused No.2 to
the complainant in the morning of 23/05/2000. The accused cannot
blow hot and cold, by admitting CDR on one hand and then, denyingthe same in the statement u/s.313 of Cr.P.C. Though, there is some
discrepancies in the timings, but the call was made, has been proved
through the said exhibited documents. The accused No.2 flatly
refusing about his conversation with complainant about the incidence
of 'Sairaj Bar and Restaurant' and about the information given by him
to the complainant that he is going to be suspended.
62] The argument made by the Ld. advocate appearing for
accused No.1 and 2 that incidence of 'Sairaj Bar and Restaurant' was
not confidential, it was known to everyone and therefore, the
evidence of the complainant, that accused No.2, approached to him
regarding the said incidence is totally false. In the entire chain ofcircumstances, it is an important factor that though the argument
made by the Ld. Advocate is considered, regarding the non
confidentiality of the 'Sairaj Bar and Restaurants' case then, there is no
explanation brought on record by both of them, to show that why the
complaint was lodged only against accused No.2 by the complainant,
when the complainant, was not knowing him prior to that date
23/05/2000. In this circumstances, it also needs to be noted that only
the person who was closely associated with accused No.1 i.e. accused
No.2, approaches to the complainant, though, the news of 'Sairaj Bar
and Restaurant' was spread all over in the Police Department, no one
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JUDGEMENT 39 ACB SPL.CASE NO.46/2001
other than the present accused No.2 had contacted the complainant.
The chain of circumstances is showing that there was previous
meeting of mind between the accused No.1 and 2, in order to demandand extract the bribe amount from the complainant. The conduct of
accused No.2, refusing flatly about the call made by him to the
complainant, is also not supporting his plea of innocence. The said
answer given by accused which is totally against the document
admitted by him shall adversely effect his plea of innocence.
63] The Cross of P.W.7 was conducted on the point of visit ofaccused No.2 to the chamber of accused No.1 on 22/05/2000.
Further, the evidence of P.W.6 is showing that no recommendations
were made by accused No.1 till 26/05/2000. There is no cross of P.W.
7 on the point that accused No.2 was present in the office of accused
No.1 on 22/05/2000. The Ld. Advocates appearing on behalf of
accused No.1 and 2 on the point of phone call mentioned in Exh.84made by accused No.2 to accused No.1 and also to the complainant
argues that even if assuming that such call was made. Accused No.1
and 2 met on 22/05/2000, there is no evidence to show that they
were discussing about the conspiracy. The phone call shows that the
conversation took place between them and therefore, they strongly
argued on the point that there is no evidence to show that on
23/05/2000, in the morning, accused No.2 asked the complainant to
meet him in connection with the incidence of 'Sairaj Bar and
Restaurant'. They also suggested that there is no corroboration to the
evidence of P.W.3, such corroboration is required as he is not credit-
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JUDGEMENT 40 ACB SPL.CASE NO.46/2001
worthy witness as his conduct and character is questionable in this
case. According to them, P.W.3 being the accomplice, his sole
testimony cannot be believed.
64] The evidence i.e. documentary as well as oral evidence for
proving the charge u/s.120 B of Indian Penal Code, which has been
produced on record by the prosecution is found trustworthy and
reliable. The chain of circumstances i.e. happening of 'Sairaj Bar and
Restaurant' in the midnight of 21/05/2000 and 22/05/2000, meetingof Crime Committee in the office of Commissioner, recommendations
by two police officers suggesting major penalties to erring police
officers, presence of accused No.2 in the office of accused No.1 in the
evening of 22/05/2000, admitted phone call by accused No.2 to the
complainant and immediately after that, another phone call made by
him to accused No.1, knowledge of accused No.2 about the incidenceof 'Sairaj Bar and Restaurant' and involvement of complainant in the
incidence of 'Sairaj Bar and Restaurant', initiative taken by accused
No.2 to call the complainant and informed him about the proposed
action of his suspension, admittedly complainant was not knowing
accused No.2 prior to 23/05/2000, the above chain of circumstances
is clearly showing that there was previous meeting of mind between
accused No.1 and 2 and they hatched the conspiracy to extract bribe
amount from the complainant.
65] This chain of circumstances complete when complainant
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visited the office of Accused No.1 after handing over the bribe amount
to accused No.2 on 26/05/2000. The conduct of accused No.1 on that
is found relevant to the criminal conspiracy which is discussed infurther paragraph.
66] As discussed in earlier paras, there cannot be direct
evidence to prove the offence punishable u/s.120-B of Indian Penal
Code. The prosecution is duty bound to show the circumstances which
creates the offence.
67] In this case, since the CDR produced at Exh.84, 78-A are
admitted by the Ld. advocates for accused No.1 and 2. There is no
reason for me to seek the compliance of Sec.65-B of Indian Evidence
Act. The accused No.1 in Statement u/s. 313 of Cr.P.C. while
answering Question No.88, flatly refused that he received phone callfrom accused No.2, but again this conduct of accused No.1 specially
when the documents on record i.e. Exh.84 is showing that phone calls
was made by accused No.2 to him, is not supporting his plea of total
denial, innocence and false implication.
68] So far as the another argument made by the ld. advocates
for accused No.1 and 2, that the complaint was false and it was
lodged to please the superior officers, but in this connection, nothing
has been produced on record or also suggested in the cross
examination to this witness that on direction of which superior
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officers' or to please which superior officers, the complaint was
lodged. Further, in the entire evidence, no reasons are brought on
record or even in the statement u/s.313 of Cr.P.C., no explanation hasbeen offered by both accused to involve them falsely by the
complainant.
69] So far as the defence of accused No.1 that he was not
having authority to suspend the complainant is concerned, the Ld.
Prosecutor relied upon two reported judgements in support of herargument :-
i] 1976 SCC (Cri.)351 in case of
Chaturdas Bhagwandas Patel V/s. State of Gujrat
- ii] (2004) SCC 399 in case of
State of A.P. V/s. C. Uma- Maheshwara Rao & Ors.
70] In both these judgments it has been observed by
Honorable Lordship that
Not possessing authority could not negate the said charge
And that
To constitute an offence under this section, it is enough if the
public servant who accepts the gratification, takes it by inducing
a belief or by holding, out that he would render assistance to the
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JUDGEMENT 43 ACB SPL.CASE NO.46/2001
giver with any other public servant and the giver gives the
gratification under that belief. It is further immaterial if the
public servant receiving the gratification does not intend to dothe official act, favour or forbearance which he holds himself
out as capable of doing. This is clear by the last explanation
appended to Section 161 and illustration(c).
71] Thus, from the ratio laid down, it is clear that non
possessing authority to do any act, cannot be defence or ground for
the accused to escape from charges of Corruption, as in this case it is
one of the defence of accused No.1. In view of the cited judgment, I
am not inclined to accept the argument made by Ld. Advocate that the
accused No.1 was not having any authority to suspend the
complainant. It is not disputed by accused No.1, at any point of time
that he was not authorised to recommend suspension of the
complainant.
72] The conduct of both the accused denying the phone call
made by accused No.2, to complainant, and to accused No.1, has
destroyed the presumption of innocence in their favour. As it is
observed by the Honorable Apex Court in a case reported in 1960
CRI.L.J.682 in case ofAnant Chinataman Lagu V/s. State of
Bombay
The conduct which destroys the presumption of
innocence can also be considered as material
This principle laid down by the Honorable Apex Court is applicable in
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this case so far as the answers given by both accused to the questions
put up to them u/s. 313 of Cr.P.C., about the incidence of 23/05/2000
is concerned. Further, their answers are totally contrary to their ownadmissions of documents produced at Exh.78-A, Exh. 84 and Exh.105.
73] So far as the argument made by Ld. Advocate for accused
No.1 and 2 on the point of conduct and questionable character of the
complainant is concerned, at this stage, conduct and character of the
complainant needs to be considered with a view to see that whetherthere is sufficient evidence, to prove the charges u/s.120-B of I.P.C.
In fact, nothing has been brought on record in the cross examination
or in the explanation u/s. 313 of Cr.P.C. to show that when the
complaint was lodged by P.W.3 and when he receives phone call from
accused No.2. He was of such character that his deposition needs to
be discarded. So far as the conduct and questionable character of P.W.3 is concerned, I am discussing the said issue in detail, in further
paragraphs of judgement.
74] So far as the argument that accused No.1 was not
authorised to suspend the complainant is not of much importance, in
view of that, he was authorised to recommend the suspension of the
complainant and it is undisputed fact.
75] The Ld. advocate for accused No.2 argues that, timings of
the call made to complainant and immediately, thereafter to the
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accused No.1, by accused No.2, are not corroborating the oral
evidence of the complainant. It is true that the timings are somehow
different, but it should be kept in mind that the complainant haddeposed after the period of about 10 years from the date of
occurrence of the incidence, such minor discrepancies of the timings
are not unnatural. On the other hand, it is showing that he is not the
tutor witness and he deposed naturally as per his memory. Even if the
timings are somehow different, but for that reason only the evidence
of the complainant cannot be discarded, when it is corroborating tothe Exh.78-A and Exh.84 and also the location from where the calls
were made, as shown in Exh.105.
76] It is well settled principle of law that there cannot be
direct evidence on the conspiracy hatched by accused persons and it
should be inferred from the circumstances showing their guilty mind.
As discussed in above paras, the phone calls made by accused No.2 tocomplainant, the immediate phone call made by accused No.2 to
accused No.1, inspite of stern action suggested, change in the page of
note sheet at Exh.56 showing leniency to all the erring police officers
by accused No.1, continuous visit of accused No.2 to the chamber of
accused No.1 conduct of accused No.1 when complainant visited his
chamber on 26/05/2000 are some of the instances and circumstances
which are connected in one chain and are the circumstances against
accused No.1 and 2.
77] In support of my conclusion, I place reliance on the
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judgment reported in (2002)7 Supreme Court Cases334 in case of
Mohd. Khalid V/s. State of West Bengal, wherein it is observed by
Honorable Lordship of Apex Court thatOffence of conspiracy can be proved by either direct or
circumstantial evidence. However, conspiracies are not
hatched in the open, by their nature, they are secretly
planned. Privacy and secrecy are more characteristics of a
conspiracy, than of a loud discussion in an elevated place
open to public view. Direct evidence in proof of a conspiracyis therefore seldom available. It is not always possible to
give affirmative evidence about the date of the the
formation of
the conspiracy, about the object, which the objectors set
before themselves as the object of conspiracy, and about the
manner in which the object of conspiracy is to be carried
out, all this is necessarily a matter of inference. Therefore,
the circumstances proved before, during and after the
occurrence have to be considered to decide about the
complicity of the accused. Where trustworthy evidence
establishing all links of circumstantial evidence is available
the confession of a co-accused as to conspiracy even without
corroborative evidence can be taken into consideration. It
can in some cases be inferred from the acts and conduct of
the parties.
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78] In view of the above discussion, the argument made by the
Ld. advocates appearing for accused No.1 and 2 are not acceptable to
me. There is sufficient evidence available on record as pointed out byLd. Special Public Prosecutor and the circumstances mentioned in the
above paras are clearly showing that the charge u/s.120-B of I.PC.
r/w. Sec.7, 12, 13(1)(d) r/w.13(2) of Prevention of Corruption Act,
1988 has been proved by the prosecution beyond all reasonable
doubt, in this case.
DEMAND MADE BY ACCUSED NO.2 FOR HIMSELF
AND FOR ACCUSED NO.1 ON 23/05/2000
79] It is the case of the prosecution that on 23/05/2000, when
the complainant was travelling with accused No.2 in his car, accused
No.2 demanded bribe amount of Rs.5 lakhs for accused No.1 and Rs.10,000/- for himself as 'Mehanatana' and further, asked the
complainant to pay the entire amount in the evening on the same day.
Admittedly, the complainant is the sole witness on the point of said
demand made by accused No.2 in his car.
80] In the evidence of the complainant, he deposed about
(Paragraph 6, Page No.3/4) phone call received to him and the
description of the car was given by accused No.2. In the next
paragraph (Paragraph No.7, No.3/4) he deposed that he noticed the
said car,he reached near the car, the person in the car introduced
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himself as Lodha, Chartered Accountant of accused No.1 and asked
him to sit inside the car. After running the vehicle, the car was stopped
and the incidence of 'Sairaj Bar and Restaurant' was narrated byaccused No.2 to him. Then accused No.2 told him that accused No.1
demanded Rs.5 lakhs from the complainant for not suspending him.
Accused No.2 also told him that he will have to pay Rs.3 lakhs as first
installment at 5 O'clock in the evening of the same day and rest of the
amount after the work is over. To inspire his confidence, he also
narrated the name of Steno Sayyed attached to the accused No.1. Hehanded over one piece of paper to him, on which accused No.2
mentioned his name, address and phone number. He again told him to
arrange Rs.3 lakhs and then to inspire confidence, he made a call to
accused No.1.
81] The close association of accused No.1 and 2 has not beendisputed, this can even be infer from the Call details produced at Exh.
78-A and Exh.84. The only suggestion given to the complainant that
You falsely deposed that accused No.2 took
out his mobile and talked with accused No.1.
in my view is not sufficient.
82] It is necessary to bear in mind that the incidence of 'Sairaj
Bar' was very confidential, but according to the complainant, accused
No.2 called him and demanded money from him. Further, nothing
has been brought on record to show that there was previous enmity
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JUDGEMENT 49 ACB SPL.CASE NO.46/2001
between the complainant and accused No.1 and 2 or the complainant
was used as an instrument by the superior officers of Police
Department to involve the accused No.1 falsely in this case.Therefore, there is no reason to disbelieve the evidence of the
complainant who is the sole witness on the point of first demand
made by accused No.2 in his car.
83] Further, CDR at Exh.84 is showing one incoming call on
the mobile of accused No.2 on 23/05/2000, at about 16.24 hourswhich also corroborating the oral evidence of the complainant that on
that day, in the evening, he made call to accused No.2 (P.W.3/8) and
asked him for some time. The cross examination of P.W.3 was not
conducted on the point that such incidence had not at all occurred
with the complainant.
84] Again the similar argument made by Ld. Advocate for
accused No.1 and 2 that conduct and character of complainant is
questionable. I have already mentioned that I am separately dealing
with this issue, but in my view, this argument cannot be accepted for
the following reason,
i] that the accused No.1 was his superior officer who was
much about in hierarchy than him.
ii] till that date, nothing adverse was happened so as to
lead him to lodge false complaint against accused No.2 or
even mentioning the name of accused No.1 in the
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JUDGEMENT 50 ACB SPL.CASE NO.46/2001
complaint.
85] The deposition of the complainant on the very firstdemand made by accused No.2 needs to be believed, as according to
the complainant, for the first time, he received phone call from
accused No. 2. He proceeded to meet him. Thereafter, accused No.2
demanded bribe amount for accused No.1 and 'Mehantana' for
himself. This deposition of complainant has not been challenged by
accused No.1 . On behalf of accused No.2, it is suggested that Youhave falsely deposed. It is not suggested that accused No.2 never
demanded money for accused No.1 and for himself. It is not the case
of accused No.2 in his cross examination that P.W.3 never met accused
No.2 near Mahim Police station in the morning of 23/05/2000.
86] It is to be bear in mind that on 23/05/2000, thecomplainant met with accused No.2 for the first time. Therefore,
seeking corroboration is not justified. The evidence of the complainant
without any corroboration on the point of first demand needs to be
accepted, for the reason that, on that occasion, he cannot be treated
or termed as 'an accomplice' for the reason that at that time, he was
not aware that why he was called by accused No.2 or that he was
called by accused NO.2 for demanding gratification. In this regard, I
place reliance on the observation made by the Honorable High Court (
Punjab & Haryana) in a judgement reported in 1983 Cri.L.J. 1338 in
case ofRajendra Kumar Sood V/s. State of Punjab.
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JUDGEMENT 51 ACB SPL.CASE NO.46/2001
We are of the opinion that there is no question of the
Court insisting upon any such independentcorroboration of the complainant in regard to the
circumstance of the kind. When a given complainant first
visits a public servant for doing or not doing some task
for him he does not go to him as a trap witness. He goes
there in a natural way for a given task. To require a
witness to take a witness with him at that stage wouldamount to attributing to the complainant a thought and
foreknowledge of the fact that the accused would demand
bribe.
For the reasons aforementioned we find no merit in the
argument and hold that no such independent
corroboration of the kind of a fact mooted in
proposition No.1 is necessary at all.
87] The Ld. Advocate for accused No.2 placed reliance on the
judgement reported in case ofPannalal Damodar Rathi V.s, State of
Maharashtra, in AIR 1979 SC 1191, judgement reported in 2005
ALL MR (Cri.)1157, in case of Ninaji Wagh V.s. State of
Maharashtra and 2005(2) Bom.C.R.(Cri.) 940 in case of
Pandharinath Shelke V.s. State of Maharashtra, the situation of the
complainant in the cited cases is totally different than in the case in
hand.
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88] In this case, till meeting with accused No.2, complainant
was not aware that accused No.2 called him in order to demandmoney and therefore, for the incidence dated 23/05/2000, happened
in the morning time, the complainant cannot be treated as 'an
accomplice'.
89] The accused No.2 in the statement recorded u/s.313 of
Cr.P.C. totally denied that he met complainant on 23/05/2000. Againhis false answer are material in this case. Therefore, in view of the
above discussion, the prosecution has proved beyond all reasonable
doubt that the very first demand of bribe, dated 23/05/2000, in the
morning, was made by accused No.2 for accused No.1 and also Rs.
10,000/- for himself. In view of the conspiracy hatched by them, I
answer Point No.2 in the affirmative.
As to Point No.3 and 6.
THE DEMAND AND ACCEPTANCE OF BRIBE AMOUNT
ON 26/05/2000
90] It is the case of the prosecution that after meeting with
accused No.2, the complainant was shocked, thus, on that day instead
of attending his duty, he returned back to his home. Thereafter on
24/05/2000 and 25/05/2000, he proceeded on sick leave. On
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JUDGEMENT 53 ACB SPL.CASE NO.46/2001
23/05/2000, he made a call from his landline number to the accused
No.2 on his mobile. He talked with accused No.2 and requested him
for sometime to give amount.
91] In the deposition of the complainant, (P.W.3/13) he
narrated that the said conversation between him and accused No.2.
He also recorded in the cassette the conversation between him and
accused no.2. He produced the said cassette at the time of lodging of
the complaint.
92] In the cross examination of this witness, who is again the
sole witness on the said conversation, it is suggested to him by
accused No.2 (P.W.3/43) that he has falsely narrated so. In this
connection, admitted document speaks for itself. In the said
document at Exhibit 84 as discussed in above paragraph, there isentry of incoming call from the landline number of the complainant to
the mobile number of the accused No.2. It shows that on
23/05/2000, at 16.24 hours the complainant called from his landline
number on the mobile number of the accused no. 2. The deposition of
the complainant in this regard is collaborated by the documentary
evidence produced at Exh. 84. The pulse of the said call is shown as
120. If the pulse are converted into minutes which comes as
approximately 1 minutes. The cassette which was produced by the
complainant while lodging his FIR is marked as Article -1 and its
transcript is produced at Exh.37, the said transcript was verified and
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JUDGEMENT 54 ACB SPL.CASE NO.46/2001
compare by the then Presiding Officer of this Court ( Now High
Court Judge, Honourable Justice Nalawade) and noting to that effect
has also been mentioned in the Roznama dated 09/04/2009.
93] I have carefully gone through the said notings. In the said
noting, it has been observed that ,
The Cassette was sealed on 26/05/2000. Its transcript
at Exh.37 that the conversation recorded in the cassette and the
transcript at Exh.37 is correct.
94] The conversation recorded, being an exhibited document
can be read into the evidence. This conversation is showing that they
were discussing about the amount and the complainant requested for
time to manage the amount.
95] The accused No.2 in the statement recorded u/s.313 of
Cr.P.C. while answering the question No.71, flatly refused that on
23/05/2000 at about 16.24 hours, he received phone call from the
complainant. The said document has been admitted by him. This
conduct of accused is certainly objectionable as it is contrary to his
own admission.
96] In the cross examination of PW 3, it is not suggested to
him that he tampered with the cassette the voice in the said cassette
Article -1 is not of accused No.2. In the entire cross examination, no
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JUDGEMENT 55 ACB SPL.CASE NO.46/2001
such suggestion has been offered to the complainant. The transcript of
conversation and actual conversation in the cassette was verified by
the Ld. Predecessors of this Court. Hence, there is no reason todisbelieve that the said conversation was not recorded by the
complainant, which was held between him and accused No.2.
97] The Ld. Advocates for accused No.1 and 2 vehemently
argued that the specimen voice of accused No.1 and 2 was not
recorded during the investigation for forwarding the same to CFSL toconfirm that the recorded voice is of accused No.1 and 2. In this
regard, this argument made by the Ld. Advocate cannot be considered
as it is not their case in the cross examination of any witness who
have identified the voice of accused No.1 and 2 that It is not the
original voice of accused No.1 and 2 and it is concocted voice of
accused No.1 and 2. Further, it is also not suggested to thewitnesses that they are not conversant with the voices of accused No.1
and 2 . The Ld. advocate appearing on behalf of accused NO.1 and 2
also strongly objected for relying on the tape recorded evidence for
want of non-compliance of rules framed by the Hon'ble High Court
(Criminal Manual Chapter VI- 'General Rules as to Inquiries and
Trials in all Courts Precedence and expeditious Disposal of Capital
Cases', Rule 24) for production, use and recording of the Tape
Recorded Evidence in Court
which come into force w.e.f. 01/08/1978 .
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JUDGEMENT 56 ACB SPL.CASE NO.46/2001
98] I have gone through the said rules. According to me,
while preparing transcript and while producing the cassette at Article
1, this rules are followed by the prosecution, as already discussedabove. It is not suggested to the witness i.e. complainant that he
tampered with the cassette before producing it in front of
Investigating officer. The complainant who had heard the voice of
accused No.2 firstly on telephone and then, in his car, is the proper
person to identify his voice. The voice identification of accused no. 2
by complainant also needs to be trusted, in view of that, accused No.2had talked with the complainant on important issue and therefore, it
needs to be presumed that the complainant was remembering his
voice very well. Further, the voice of accused No.2 was identified by
the other witnesses who had an occasion to talk with him. Therefore,
the objection raised by the Ld. advocate for accused No.2 in
connection with the Article No.1 and its transcript is not sustainablespecifically when it is not pointed out that, which rule framed by the
Honourable High Court has not been followed, by the prosecution
while producing Article 1 and its transcript in the Court. Therefore,
the tape recorded evidence dated 23/05/2000 is admissible and found
trustworthy. The said conversation mentioned in Exh.37 took place
between the complainant and accused No.2 on telephone. The
evidence of the complainant is also corroborating by CDR produced at
Exh.84 . It is suggested to P.W.3 that he concocted the voice of
accused No.2 on 23/05/2000. This defence raised by the accused No.
2 is not at all acceptable as there was no reason for the complainant to
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JUDGEMENT 57 ACB SPL.CASE NO.46/2001
concoct the voice of accused No.2 when for the first time, he met him
in the morning of that day. In the statement u/s.313 of Cr.P.C. of
accused No.2 while answering to Question No.63, he refused that thecall was received on his mobile from the landline of the complainant.
Again this conduct of accused No.2 is material.
99] In view of the above discussion, the evidence of the
complainant on the point that on 23/05/2000 he called on the mobile
of accused No.2 and requested him for sometime to pay the amountcannot be discarded.
100] It is further the case of the prosecution that the accused
No.1 proceeded on sick leave on 24/05/2000 and 25/05/2000 and
during that period, accused No.2 was calling on the landline number
of the complainant. This information was given by the wife of thecomplainant to him. In this regard, the Ld. Advocate for accused No.2
strongly argues that the evidence of the complainant on this particular
issue cannot be believed as his wife who had actually attended the
call, has not been examined. According to him the evidence of
complainant is hear say.
101] This objection raised by the Ld. advocate is not
sustainable. In view of the admitted document at Exh.84 which is
clearly showing that during this period, the calls were made by
accused No.2 on the landline of the complainant. Further, this Exh.84
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JUDGEMENT 58 ACB SPL.CASE NO.46/2001
is corroborating the evidence of the complainant. Therefore, non
examination of the wife of the complainant as witness is not at all
fatal to the case of prosecution.
102] In this regard, again the accused No.2 in the statement
u/s.313 of Cr.P.C., while answering the question No.71 flatly refused
that he made calls made from his mobile to the landline number of
the complainant. It is not the case of the accused No.2 that during
this period, he was not possessing his mobile. Again this denial iscertainly not favoring the plea of total denial of the accused, in view
of the admitted documents.
103] It is further the case of the prosecution that in the morning
of 26/05/2000, P.W.3 lodged the complaint at Exh.35 with ACB. The
said complaint was registered as Crime No.23/2000 by theInvestigating Officer Shri.Kohe, (PW. 20). It is the case of the
complainant that at the time of lodging of this complaint, he produced
cassette Article A, and chit at Exh.97 given by accused No.2 to him.
Immediately Investigating officer called two panch witness, one Shri.
Medhe (P.W.4) and another Shri. Khandare. The pre trap procedure
was conducted. During the pre trap procedure, personal search of the
complainant was conducted, demonstration of anthracene powder
was shown, anthracene powder was then applied on the currency
notes of Rs.2,10,000/- ( consisting of 4 bundles of 400 currency notes
of Rs.500/- denominations and 100 currency notes of Rs.100/-
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denominations). The said currency notes were then kept in one
polythene bag bearing the marked of Excel Tailor, which was
produced by the complainant. (P.W.3/10, Paragraph 12 and 13) (P.W.4/2, Paragraph 3).
104] According to the complainant,
after checking the said currency notes under UVL, bluish
glow was noted on the currency notes. Thereafter, as per the
instructions of Investigating officer, P.W.20, one Havaldar/employeekept the said tainted currency notes inside the carry bag cautiously
and the said carry bag was given to him by Shri Kohe , (PW 20).
105] In the evidence of P.W.4 he has deposed that,
bluish glow was noted on the currency notes under UVL,
notes were kept in one polythene bag by same Havaldar who hadgiven the demonstration. Shri Kohe gave instructions to the
complainant to carry the said polythene bag containing currency
notes. Therefore, Shri Kokil(P.W.3) lifted that bag in his right hand.
106] The Ld. advocate for accused No.2 has not cross examined
P.W.4, but cross examined P.W.3 (P.W.3/44, Paragraph 55 last 3 lines
continued on Page 3/45,) and this witness admitted that,
it will be incorrect to say that I, myself had lifted the
carry bag containing the tainted currency notes.
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107] The Ld. advocate appearing for accused No.2 pointed out
that this is the major contradiction in the evidence of P.W.3 and 4.
According to him, as per the deposition of P.W.4, the complainanthimself lifted the carry bag in his right hand and according to the
complainant, the said carry bag was handed over to him by
Investigating officer Shri Kohe. In fact, the issue that who had lifted
the carry bag or whether it was lifted by the complainant himself or
whether it was handed over to the complainant by the investigating
officer, is not of much important in this case, or in any trap case. Whatis important is, carrying the tainted currency notes by the
complainant. Only because of such minor contradiction case of
prosecution can not be thrown away.
108] In my view, giving the bag containing tainted currency
notes by the investigating officer in the hand of the complainant orlifting of the said bag by the complainant himself does not make any
difference. Whether either of one is accepted, what is important is
that complainant must possess carry bag containing currency notes in
it in order to hand over the same to the accused. Therefore, the
arguments made by the Ld. advocate is not acceptable.
109] So far as the Chit at Exh.97 is concerned, which was
prepared on one paper of small diary and handed over by the accused
No.2 to the complainant on 23/05/2000 mentioning his name,
telephone number and address, which was later on exhibited as Exh.
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97, I am separately dealing with the evidence of expert witness along
with Exh. 97 and Exh. 98, produced by the prosecution.
110] It is further case of prosecution that, after completing the
pre trap procedure vide Exh.47, all trapping team members with
complainant and panch witnesses proceeded towards the house of the
complainant,at that time, Radio Mechanic Shri Kittur (P.W.14 ) was
also with them. The tape recorder was attached to the landline phone
of the complainant. In the presence of all, the complainant called fromhis landline number, at about 13.30 hours, on the mobile number of
accused No.2. This call has been recorded and shown in Exh.84. The
conversation took place between the complainant and the person on
the other side i.e. accused No.2, was recorded in a Cassette. Then
call was ended. Then after about 10 minutes, one call received on the
landline number of the complainant at about 13.40 hours. The entryin the Exh.84 is showing that this call was made on the landline
number of the complainant by accused No.2. The pulse of both these
calls are showing 90 and 60 respectively. It is showing that for quite
reasonable time the conversation took place between them. This has
been deposed by P.W.3 (Paragraph 16, P.W.3/14, 3/15) (P.W.4/6,
paragraph 6, 4/7 continued on page 4/5). and also in the evidence of
P.W.20, (Page 20/07, 2