Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.M. GAVHANE, J.
Jagganath Divanrao Barse - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 265 of 2005
Decided On : 02-11-2018
Challenged - Possession of accused - Appeal against Conviction - Suspension of sentence – Quashed Order - Prevention of Corruption Act 1988 - Section 7, 13 (1)(d) 13 (2) - Appellant/accused has challenged judgment and order in Special Case No.26/2003 passed by Special Judge at Aurangabad thereby convicting him for offences punishable under Section 7 an13 (1)(d) punishable under S13 (2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the said Act) and sentencing him to suffer rigorous imprisonment and to pay a - In default, to suffer further rigorous imprisonment for one month on each count - Both sentences of imprisonment have been ordered - Facts of prosecution case - Complainant Shaikh Kalimoddin S/o. Shaikh Najimoddin (PW1) who is resident of Khultabad, Dist - Aurangabad was driver on private Taxi bearing owned by one Mohd. Muzafar resident of Khultabad since one year prior to complaint that time appellant Barse was Police Naik attached to Police Station Fulambri, Dist. Aurangabad - Complainant was running aforesaid jeep on Khultabad to Fulambri road for carrying passengers - It is alleged that appellant was taking Hafta of from complainant on weekly Bazar day of Fulambri and on failure of complainant to give said Hafta to appellant he used to threat complainant that he would not allow complainant to run jeep to carry passengers – Held, Court hold that prosecution has failed to prove that on at Fulambri appellant public servant demanded and accepted Rs. 200/ from complainant as gratification as motive to allow complainant to run jeep without having permit to carry passengers and obtain said gratification amount from complainant by corrupt or illegal means for himself by abusing his position as a public servant which amounts to criminal misconduct and failed to prove offences under S 7 and 13(1)(d) read with S 13(2) of said Act against accused beyond reasonable doubt and as such he is entitled to be acquitted by giving benefit of doubt - Findings recorded by trial Court that prosecution has proved aforesaid offences against accused are not sustainable - Consequently, impugned judgment and order convicting and sentencing appellant for aforesaid offences is liable to be quashed and set aside by allowing appeal - In result following order is passed - Appeal is allowed - Impugned judgment and order in Special Case passed by II Special Judge Aurangabad convicting and sentencing appellant - Appellant Jagganath Divanrao Barse is acquitted of offences punishable under S 7 and 13(1)(d) punishable under S13(2) of Act - Bail bond of appellant stands cancelled - Fine amount as per impugned judgment and order, if deposited by appellant be refunded to him- Order regarding disposal of Muddemal property passed by trial Court is maintained - Record and proceeding in Special Case No.26/2003 be sent to trial Court forthwith – Ordered Accordingly.
S.M. GAVHANE, J.
1. The appellant/accused has challenged the judgment and order dated 29.03.2005 in Special Case No.26/2003 passed by the II-Special Judge at Aurangabad thereby convicting him for the offences punishable under Section 7 and Section 13 (1)(d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the said Act') and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for one month on each count. Both the sentences of imprisonment have been ordered to run concurrently.
2. Facts of the prosecution case, in short, are as under:
(A) The complainant Shaikh Kalimoddin S/o. Shaikh Najimoddin (PW1) who is resident of Khultabad, Dist. Aurangabad was driver on the private KaliPili Trax/Taxi bearing No.MH19C5565, (hereinafter referred to as 'the jeep') owned by one Mohd. Muzafar (whose name is Shaikh Muzafar Shaikh Akbar in the list of witnesses in the charge-sheet, who is hereinafter referred to as Mohd. Muzafar) resident of Khultabad since one year prior to the complaint dated 26.08.2003. At that time the appellant Barse was Police Naik attached to the Police Station Fulambri, Dist. Aurangabad. The complainant was running the aforesaid jeep on Khultabad to Fulambri road for carrying the passengers. It is alleged that the appellant was taking Hafta of Rs. 200/- from the complainant on the weekly Bazar day of Fulambri and on failure of the complainant to give said Hafta to the appellant he used to threat the complainant that he would not allow the complainant to run the jeep to carry passengers. Due to rainy reason there was no sufficient business of carrying passengers on Khultabad to Fulambri road and therefore, the complainant and owner of jeep had requested the appellant that they are unable to give Hafta to him.
Thereupon, the appellant had threatened them that they have to stop the business and if they have to do the business they will have to pay Rs. 200/- on every Bazar day to him.
(B) Further it is the case of the prosecution that on 23.08.2003 at about 16.00 hours while the complainant was taking jeep towards Fulambri from Khultabad with passengers, the appellant stopped the jeep near Deogiri Sugar Factory and demanded Hafta amount of Rs. 200/-. At that time the complainant told him that on asking Sheth i.e. his master he would give said amount to him in the after noon of Bazar day of Fulambri. Thereupon, the appellant allowed the complainant to go. Thereafter, the complainant narrated said incident to jeep owner Mohd. Muzafar. Thereupon, owner of the jeep showed his unwillingness to give Hafta of Rs. 200/- on weekly Bazar day to the appellant and asked the complainant to lodge the complaint with the Anti Corruption Bureau, Aurangabad. Accordingly, in the morning on 26.08.2003 the complainant went to the office of Anti Corruption Bureau at Aurangabad and narrated incident as above to the Police Inspector Naik (PW6) who reduced the complaint (Exh.11) into writing. It is further alleged in the complaint that on 26.08.2003 the appellant would accept Hafta amount of Rs. 200/- from complainant on Khultabad to Fulambri road between Deogiri Sugar Factory to Fulambri.
(C) After the complaint as above PI Naik called two Panchas in the office of Anti Corruption Bureau at Aurangabad. After giving necessary instructions to panchas and complainant by PI Naik (PW6) pretrap panchanama (Exh.16) was prepared and an amount of Rs. 200/- i.e. one currency note of 100 denomination, one currency note of 50 denomination, two currency notes of 20 denomination and one currency note of 10 denomination which were produced by the complainant were given to him after the said currency notes were smeared with anthracene powder. Then the complainant (PW1), Panch No.1Keshav Jadhav (PW2) Shadow panch, Shaikh Nazimoddin (PW4) and Police Constables Pathan and Awale proceeded by jeep to meet the appellant on
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
