Abhimanyu Vithalrao Jadhav vs State of Maharashtra

The appellant is a Sub-Inspector of Police. He takes exception to his conviction for the offences punishable u/s 161 of the IPC and u/s 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act. Upon conviction for the first of this offence, he was sentenced to rigorous imprisonment for one year and fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for three months and for the second offence he was sentenced to rigorous imprisonment for 18 months and fine of Rs. 2,000/- in default to suffer rigorous imprisonment for six months.

Briefly stated the prosecution case is that the accused had joined to Mandrup Police Station in Solapur District only a few months before this incident which took place on 3rd October, 1986. The accused was on duty as the Police Station Officer also on that night.

One Shirish Chandulal Shah (P.W. 1) is an agriculturist, holding about 50 acres of agricultural land at the village Bhandarkavathe while his residence as such is at Solapur. It appears that the Police Station at Mandrup is in between Bhandarkavathe and Solapur. Shirish Shah is a fairly educated person also. For the purpose of his agricultural cultivation and transport of agricultural products he owns a tractor and trolley both. One Bapu Budhale (P.W. 4) is employed as driver of this tractor. Amongst the servants employed by Shirish Shah, one is Shri Bharale, (P.W. 3). Budhale and Bharale both figure as important prosecution witnesses in this case. On 2nd of October 1986, Shirish Shah was at his house at Solapur. His servant at Bhandarkavathe loaded the trolley with fodder which was meant for a buffalo which was maintained at the Solapur house. The loaded trolley was fastened to the tractor which left for Solapur at about 8-00 p.m. Some more fodder belonging to one Tammeswami was also being carried in the said trolly. The said Tammeswami apart, there were 2-3 other persons who were also going with the vehicle.

When the tractor reached the vicinity of Mandrup Police Station, two Police Constables Shaikh (P.W. 5) and Khatke, attached to that Police Station, who were on night patrolling duty, saw the tractor going by the road. They suspected that the trolley was over-loaded and or that persons being carrying in the said tractor and the trolley were so for consideration. (Sic) using vehicle for hire. Perhaps on this suspicion they stopped the said vehicle. They demanded from Budhale his driving licence. It appears that, in fact, Budhale was having only a learning license at the material time and could not show even that to these Police Constables at that time; Moreover documents pertaining to the tractor and trolley could not also be shown by the driver Budhale to these two Constables.

It is prosecution case that these two Police Constables, therefore, demanded a gratification of Rs. 100/- from the driver Budhale to permit the tractor to proceed further towards Solapur. Budhale could not have offer more than that of Rs. 10/-. (Sic) The Constables ordered the said driver Budhale to take the tractor to the Police Station and that was at about 10-00 p.m. The accused P.S.I. was at that time in the Police Station. Upon a report being made by the two Police Constables, he ordered only orally, that the tractor and the trolley along with its load be detained in the Police Station. The driver Budhale also requested the P.S.I. to release the vehicle. The accused declined and asked him to produce the original documents pertaining to the vehicle on the next day inasmuch as the xerox copies which bad with him did not satisfy him. Not only he asked the driver Budhale to bring the original documents but also his master. This particular demand that Budhale should go and also bring master Shirish Shah; it will be found to be of considerable significance. Budhale remained with the vehicle and sent the servant Bharale to Solapur by bicycle.

Budhale accordingly informed his master Shirish Shah that the tractor and the trolley with the load of fodder had been detained in the Police Station and that the PSI was demanding production of the original documents pertaining to the tractor and trolley and further informed that PSI directed that owner of the vehicle should also appear before him. In the circumstances Shirish Shah went to the Police Station on the next day in the morning. At that time P.S.I. was not there. He made enquiries with Police Constable Mhaske (P.W. 6) as also Head Constable Sangamnwar (P.W. 7). The latter was the officer in charge of the Police Station al that time (PS). Neither of these two persons could enlighten Shirish Shah as to why the tractor and trolley had come to be detained. They also told him that they could not consider his request for release of the vehicle for the reason that nothing could be done by them in the absence of the PSI himself and the order of detention being that of the PSI.

6A. Shirish Shah had, therefore, to wait at the Police Station until the PSI returned to the Police Station from Tulzapur. On meeting the accused PSI the latter gave him a lecture that it was not proper to keep only xeroxed copies of the documents with the driver pertaining to the tractor and trolley. He told Shrish Shah that the original must be carried with the vehicle. Shirish Shah agreed and promised that thenceforth all the originals could be carried with the vehicle. However, his request for release of the vehicle was turned down by the accused PSI. The PSI told him that Shirish Shah was not paying any Hapta to him. He also stated to Shirish Shah if he was urgently in need of the tractor and the trolly and its contents, then he should pay Rs. 300/-. He came out of the PSI''s room and met the driver Bapu Budhale and Cleaner Dareppa Kamble, who were waiting outside. On being asked what had happened, he told them that PSI was demanding a bribe of Rs. 300/- and he had no alternative but to go to Solapur and bring the amount. He asked both of them to wait there only and he went back to Solapur.

At Solapur, Shirish Shah, however, promptly approached the Inspector Kadam Anti-Corruption Branch. Inspector Kadam sent for two panchas, in whose presence he proceeded to record the complaint of Shirish Shah. The Panchas were Shaikh (P.W. 2) and Mitragotri. The complaint was recorded at about 4-00 p.m. Three currency notes of Rs. 100/- each were taken by the Police from Shirish Shah and anthracene powder was applied to the currency notes of Rs. 300/- and thereafter these were also kept in the right side pocket of the complainant''s pant by Constable Utage. Necessary instructions were given to the complainant, Shirish Shah, in the presence of Panchas as to what was to be further done. The Pancha Shaikh was to accompany Shirish Shah for meeting the accused. Both of them were warned by Inspector Kadam that the currency notes kept in the pocket of Shirish Shah should be given to the accused by the complainant only after he made a demand and Pancha Shaikh should observe all the incident and listen to the conversation which would be taking place between Shirish Shah and the accused PSI. In the event of demand being made by the accused PSI and thereupon the amount of Rs. 300/- being handed over by Shirish Shah to the accused, Shirish Shah was asked to give the pre-arranged singal by pretending to clean his face with his handkerchief. Inspector Kadam and other panchas and other members of the staff after taking further steps and panchanama was of this incident were drawn (Sic) and the Police party proceeded to Mandrup.

They reached the Police Station there at about 6-00 p.m. The complainant accompanied by Pancha Shaikh met the accused who was standing near his motor-cycle, very close to his residential quarter. PSI asked them to go to the Police Station and wait. Shirish Shah and the Pancha Shaikh also went to the Police Station and stood in front of the Police Station building, close to the platform built around a tree. Accused PSI soon came on his motor-cycle, stopped near the complainant Shirish Shah and enquired whether he had brought (the amount). Upon reply from Shirish Shah that he had brought (the amount), the accused PSI asked the Pancha Shaikh to go away from the stand aside at the distance. Shaikh did not move from that place. It would appear that if any suspicion had taken place in the mind of the accused at that time as to the purpose and propriety of Shaikh accompanying Shirish Shah, the temptation of taking money was apparently too great. Caution, which he had probably exercised in this first instance, came to be thrown to the winds. The accused, therefore, demanded that the amount be paid to him, satisfying himself that the reply of Shirish Shah that Shaikh was a person from his village was true. The accused made his demand and asked Shirish Shah to hurry up, saying that he had to immediately leave for Solapur.

Shirish Shah only then, upon such demand, took the three currency notes out of the pocket of his pant and handed them over to the accused. The accused took these currency notes with the left hand and inserted the said notes through opening in front shirt flap thus keeping the currency notes between his shirt and banian. Immediately thereafter the pre-arranged signal was made by Shirish Shah. To the two Constables, in uniform and another in civilian clothes standing nearby, the accused directed that the tractor and the trolley should be released and given to Shirish Shah. Shirish Shah, having learnt that accused was proceeded to Solapur requested him to take Pancha Shaikh along with him. The accused PSI however, declined to oblige. Upon the pre-arranged signal, and just as the accused had started on his motor-cycle (the engine of which had been kept idling) five or six persons came up in his direction. Suspecting something was happening against him, the accused tried to speed up. Kadam the Police Inspector requested him to stop but accused did not pay any heed to this request. The Police Inspector Kadam gave dash to the moving motor-cycle whereupon the machine slipped and fell down along with the accused. Knowing that he was trapped the accused PSI quickly took out the currency notes and threw them away.

The accused was helped to get up. The motor cycle was lifted and kept on its stand. Deputy S. P. Wadekar who was the head of the raiding party, quickly snatched the revolver from the holster of the accused so as to avoid any untoward incident. Wadekar and PI Kadam disclosed their identity which had been obviously gathered also by the accused. The currency notes were collected by other Pancha Mitragotri at the direction of P.I. Other things and articles of the accused such as his peak-cap, ball pen, goggle etc. which had also fallen on the road were also collected. The currency notes were examined under ultraviolet light. They were found smeared with anthrancene powder. The said powder was also found to have adhered to the uniform shirt and also banian of the accused. Hands of the accused also had traces of the said powder, obviously since he had first received the same from the hands of the complainant Shrish Shah. The numbers on the currency notes were found to tally with the numbers mentioned in the first panchanama which had been drawn when the raiding party started from Anti-Corruption Office from Solapur. The hands of the complainant were also examined and under the ultraviolet light showed the bluish shine of anthracene powder on the currency notes when Shirish Shah took them out from his pocket for being given to the accused PSI. A detailed panchanama of all this was also drawn up.

A search of the accused''s residential quarter was taken. The register of the cases registered under the Motor Vehicles Art and other books such as the weekly diary which used to be maintained by the accused and Police Station Diary were also seized.

On the next day, Police Inspector Kadam lodged his own complaint at Mandrup Police Station about this incident and further investigation was also taken up by him. The complaint lodged against the accused by Police Constable Mhaske of that Police Station was also received by Inspector Kadam. The investigation proceeded as usual and on completion thereof and after obtaining necessary sanction for prosecution a charge-sheet was framed against the accused. He was charged as per Exhibit 5, that while he was serving as Sub-Inspector at Mandrup Police Station and being a public servant on or about 3rd day of October 1986 at 1-30 p.m. or thereabout at the said Police Station demanded and attempted to extract Rs. 300/- from the complainant. That he had repeated his demand later that day at about 6-05 p.m. and had then accepted an amount of Rs. 300/- as bribe from the complainant as a gratification other than legal remuneration, as a motive or reward for not prosecuting the said complainant Shirish Shah''s tractor driver and for releasing the tractor and trolly which had been detained there along with the load of fodder in the trolly. That he had thereby committed an offence punishable u/s 161 of the IPC. He was further charged u/s 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, that he had thus also obtained illegal gratification of Rs. 300/- from Shirish Shah for himself and this was in consideration of not prosecuting Shirish Shah''s employee, the tractor driver Budhale, and for allowing Shirish Shah to take away his tractor and trolly. That this amounted to criminal misconduct.

To that charge the accused pleaded not guilty and claimed to be tried.

The accused in his statement u/s 313 of the Cr.P.C. admitted that the trolly and tractor had been brought to the Police Station by the two Constables Khatke and Shaikh, also that he had directed these two constables, that these be detained in the Police Station that he had also asked the driver of the tractor to go and bring the original documents pertaining to the vehicle and further that he had directed that the driver should bring the owner of the tractor and trolly. He admitted that Shirish Shah had accordingly met him on the next day but denied that he had at any time made any demand of Rs. 300/- or any amount by way of bribe or illegal gratification for not prosecuting the tractor driver or for releasing the tractor and trolly. That evidence was merely a concocted one. Admitting that the currency notes of Rs. 300/- had been, in or way, (Sic) in his possession, he explained that these were tried to be surreptitiously introduced under his clothing by Shirish Shah when, while he was going out of Police Station in that evening. He was stopped by a group of 5-6 persons which he later came to know was of Anti-corruption Branch staff. It was while these currency notes were being placed between his shirt and banian, through the fold of uniform shirt that he became aware of the act and it was therefore that he had promptly tried to find out what it was, and realising that these were currency notes, he had quickly and promptly thrown on the road. He had neither demanded nor received any amount from Shirish Shah by way of illegal gratification. According to him the prosecution case that he had demanded and received the illegal gratification of Rs. 300/- was only got-up inasmuch as Shirish Shah as also Inspector Kadam and other officials having once decided to lay a trap, were also determined to see that they succeeded somehow or the other. Therefore, he submitted that the commission of offences was only foisted upon him. He was not guilty and therefore claimed to be acquitted.

Upon trial, however, the learned Additional Session Judge was fully satisfied with and accepted the prosecution evidence. He held in the first instance that the tractor and trolly with its contents of fodder while on way from Bhandarkavathe to Solapur had been intercepted and brought to the Police Station at Mandrup by Police Constables Shaikh and Khatke. He also held that these constables had demanded some gratification from the driver Budhale and when the driver had not been able to pay anything to them, they had therefore directed the tractor and trolly be taken to the Police Station. On being taken there, the accused PSI had directed the tractor and trolly to be detained at the Police Station. There had been, therefore, virtually, brought (tractor ?) and detained without a proper panchanama of such attachment. It being the admitted position that the accused PSI had asked for production of the original documents pertaining to the tractor and the trolly and also that he had asked driver to go and call his master, the trial court held that the complainant Shirish Shah had accordingly gone to the Mandrup Police Station on the next day. He had a talk with the accused in the course of which the latter had demanded Rs. 300/-. Shirish Shah did not have the money to release the tractor and the trolly, that he had therefore to go back to Solapur asking his driver Budhale and the servant Bharale to remain there. Shirish Shah had told them that they should wait there because he was going back to Solapur for bringing the amount of Rs. 300/- as demanded by the accused PSI. The trial court held further that on returning to Solapur, Shirish Shah had lodged complaint with Anti-Corruption Branch and thereafter the trap was laid and also successfully carried through. The accused had demanded and received from Shirish Shah an amount of Rs. 300/- in the form of currency notes which had been earlier treated with anthracene powder. The accused was accordingly convicted upon the charge as framed and sentenced as stated above.

He has now challenged the conviction as also sentence as stated. The learned Counsel Smt. Bhosale for the appellant has taken me exhaustively through the entire evidence on record as also the accused''s explanation and the written statement in defence, filed by him. The first of her submissions is that the evidence of Shirish Shah P.W. 1 itself replete with as many as contradictions as variances and discrepancies and would not at all deserve acceptance; apart from the fact, that the testimony of the other important prosecution witness Pancha PW. 2 Shaikh would also be found unreliable and insufficient in law, as corroboration to the version of Shirish Shah. However, the point of the facts which would be in uncontroversial would appear to lie within a narrow compass. This is for the reason that it is not only that Shirish Shah is only holding agricultural lands at Bhandarkavathe, but he also has farm house there. He has residential house at Solapur. Budhale and Bharale are respectively his tractor driver and agricultural servant. He also owns a trolly which is attachable to the tractor. The evidence of Budhale and Bharale is undisputed that on 2nd October 1986 they were carrying a load of fodder in the trolly attached to the tractor, from Bhandarkavathe to Solapur for use of the buffalo maintained by Shirish Shah at his Solapur house. The Police Constables Khatke and Shaikh had admitted that while on patrolling duty, they found this tractor with the attached trolly and halted it. They questioned the driver about his driving license. The driver did not have a license to show to them. Other material documents pertaining to the tractor and trolly were also not with him. He had only some xerox copies of the material documents with him. It is also not in dispute that therefore they directed the driver that tractor and trolly be taken to the Police Station at Mandrup.

It is further not in dispute as can be seen from not only the evidence of the prosecution witnesses but also the examination of the accused u/s 313 of the Cr.P.C. as also his written statement at Exh. 39, that tractor and trolly had been brought by the Constables (1) Shaikh P.W. 2 and (2) Khatke. Accused also admits that the driver had requested him not to detain the tractor and permit him to proceed to Solapur. He had, however, again admittedly, declined to do so because the driver Budhale did not have any driving licence and secondly when he had asked for production of the documents pertaining to the tractor and trolly, such as registration certificate, the taxation certificate etc. From the driver, what the driver could only show to him was a set of the xeroxed copies, he did not find it safe to rely upon such copies and thereupon directed that the original documents be shown to him on the next day. Up to this point and up to this limit, the directions, in my opinion, would have been legitimate enough. However, over and above these, it is also the evidence of both the tractor driver Budhale and the servant Bharale that the accused PSI also directed them to bring their master Shirish Shah before him. It is this admission that Shirish Shah as owner of the tractor and trolly was asked to appear before PSI which according to the prosecution has to be noted as very significant. It appears from the statement of the accused as also one of the Constables P.W. 2 Shaikh that the tractor driver Budhale P.W. 4 did not also have any driving license to show to the Police. It does appear from the examination of Budhale that he was not holding a valid driving license at that time. That he was only holding the learning license which also was not at that time with him to show to the accused P.S.I. However for production of this driving license by the tractor driver Budhale, it was not necessary that Shirish Shah, the owner of the tractor and trolly, should be asked to report to the P.S.I. in person. It appears no justified directions and justly legitimate also that not only originals should be required to be produced but these should be brought before P.S.I. by Shirish Shah himself. If the xeroxed copies pertaining to the tractor and the trolly did not satisfy the PSI, mere verification by perusal of the original ones, to be produced on the next day, would have been sufficient to satisfy the accused P.S.I. that everything pertaining to the tractor and trolly was in order. Throughout the course of the cross-examination of the prosecution case or in his statement u/s 313 of the Criminal P.C. or the written statement Exh. 39 also filed along with it, the accused failed to show any explanation as to why there was insistence upon the owner Shirish Shah himself appearing before the P.S.I. This explanation was more than an expected one when accused admitted that he did give the direction that Shirish Shah appear before him.

Equally unexplained is the fact that upon the tractor and the trolly being brought to the Police Station by the Police Constables Shaikh and Khatke, the specific contravention of any provisions of law, neglecting the provisions of Motor Vehicles Act and Rules which had been contravened never made clear. P. W. Mhaske who was on duty on that night stated that the accused P.S.I. was at the Police Station when tractor and trolly was brought. The accused had asked him that the tractor driver also be prosecuted under the Motor Vehicles Act. Under what specific provisions he was to be prosecuted was never made clear. What is more significant therefore is that upon the tractor and trolly being brought to the Police Station, no entry was whatsoever in that behalf in the first instance made in the station diary. There is a separate register of cases to be registered under the Motor Vehicles Act and rules. No entry was also taken in that register which it appears is required to be maintained by Police Head Constable Mhaske. Why these entries were not taken is tried to be explained by the accused by saying that this was simply a matter of remissness on the part of the two Police Officials Head Constable Sangamnwar who was holding charge as P.S.O. and Police Constable Mhaske who was looking after the record of the cases under the Motor Vehicles Act. This explanation must also fall short of conviction or even plausibility. For it further appears that if these two persons had failed to make entry in the station diary and the Motor Vehicles Act cases register, then on the next day when admittedly the accused P.S.I. himself took charge as P.S.O., he himself could have ensured that the requisite entries in the station register were taken either by himself or written under his eye by those who are in charge of this register. That was also not done and again the accused has offered no explanation in this behalf.

A third circumstance which was pressed by prosecution and which I think was rightly accepted by learned Court was that if the tractor and trolly which were ordered to be detained to the Police Station were in connection with the commission of any offence or contravention of any provisions of law including the Motor Vehicles Act, it was necessary then, that the detention should have been under a proper panchanama of attachment thereof. It is not in dispute at all that no such panchanama of attachment of the tractor and trolly was drawn up by the accused at any time. It appears that upon the tractor and the trolly being brought to the Police Station he simply detained them in the Police Station premises and went away for patrolling checking duty. When he thereafter came back at about 10 a.m. on the next day he was in the Police Station up to 1-00 p.m. or so. When the complainant met him, he had again not ensured that at least then a proper panchanama of the tractor and trolly was drawn. This omission could not and ought not to be considered as simply an innocent and inadvertent one, and is rightly observed (Sic) by the trial Court.

It is in this context, as it must be appreciated, that testimony of Shirish Shah has to be considered. He has stated that his servant Budhale came to his house at Solapur and informed him that the tractor and the trolly had been detained in Mandrup Police Station. This servant also told Shirish Shah that the P.S.I. had demanded the production of the original documents pertaining to the vehicle. He further averred that P.S.I. wanted to see him (Shirish Shah himself) at the Police Station in this connection. Naturally therefore Shirish Shah went to the Police Station next day in the morning. At that time the accused P.S.I. was not present. Police Constable Shri Mhaske and Head Constable Sangamnwar have both deposed that the said Shirish Shah therefore made an enquiry from them about the purpose of detention of tractor and trolly and requested them to release his tractor and trolly. This request, the two policemen told him, they could not consider, it was beyond them and that he must wait for P.S.I. to return to the Police Station. This as evidence of these two Policemen corroborates Shirish Shah''s version that he waited at the Police Station for accused P.S.I. to return from Tulzapur.

19A. By about 1-00 p.m. the accused had met and talked with Shirish Shah. Shirish Shah said that he asked the accused as to why the tractor and trolly had been detained at the Police Station. He also requested that such detention would be of considerable loss to him and that P.S.I. should therefore be pleased to release the tractor and trolly. Shirish Shah states that thereupon the accused in the first place warned him that original documents pertaining to the vehicle ought to be kept in the tractor itself which mistake Shirish Shah admitted and assured would be corrected in future. When he thereafter again requested for release of the tractor the accused had remarked that no hapta was being paid to him and secondly that if Shirish Shah was so badly in need of the tractor and trolly, he must pay Rs. 300/- to him. Now Shirish Shah has been contradicted with his previous statement. There he has not mentioned of grievance made by the accused about nonpayment of any hapta to him. May be this is some embellishment but does not in my opinion detract from the course of truth about the bribe demanded by the accused. It was a demand for illegal and unlawful consideration for exercise of his power to release of the tractor and trolly. Shirish Shah says that when after talk with P.S.I. he came out and met his driver Budhale and the servant Bharale enquired as to what had happened. He told them that the accused would not release the tractor and trolly unless Rs. 300/- were paid to him. This is what both these witnesses have testified, and they therefore corroborate Shirish Shah. This is apart from the fact that in the complaint recorded by Police Inspector Shri Kadam at the Anti-Corruption Branch Office Solapur, as per Exh. 24, there is specific mention of this fact of Shirish Shah telling his servants about the demand made by the accused. What exactly was the talk which he had with Shirish Shah is not anywhere suggested by the accused in the cross examination of Shirish Shah himself, nor does he make any reference to it either in his examination u/s 313 of the Criminal Procedure Code or specific written statement in defence filed by him at Exh. 39. Of course the accused has stated in Exh. 39 that at the time when he met Shirish Shah, he had neither made any demand for Rs. 300/- or any amount, nor had he accepted any such later on. However that part of prosecution story that upon Shirish Shah''s meeting the accused P.S.I. at the Police Station on 3-10-1986, the latter had made a demand of Rs. 300/- for release of the vehicle i.e. tractor and trolly is thus clearly brought home in my opinion.

It is difficult to accept or imagine, unless such a demand for payment of bribe had really been made with Shirish Shah that he would have any occasion or reason to go to the Anti-Corruption Branch office at Solapur and make a false complaint against the P.S.I. as per Exh. 24. It will be appreciated that when the complaint was recorded Shirish Shah appears to have been specifically asked as to whether he had been previously on cross terms with or had disputes with the P.S.I. and also whether there was any monetary transaction between them as debtor or creditor. In his complaint he has clearly stated that he has no acquaintance with the accused any time before. It is also not the case of the accused that there was any enmity between them previous to this incident. Therefore when this complaint Exh. 24 was lodged by Shirish Shah at Anti-Corruption Branch office at Solapur, it was founded upon his interview or talk with the accused at the Police Station at Mandrup on 3-10-1986.

Apart from the fact that the accused does not explain as to why he had called Shirish Shah at the Police Station, and what was then talked between them, it appears to be his contention that after this meeting, there was no further meeting between himself and Shirish Shah at any time during the course of the day on 3-10-86. Now the evidence of Shirish Shah duly corroborated by Budhale as also Bharale is that he then went back to Solapur, collected Rs. 300/- for payment to the P.S.I. when they met. These two witnesses also state that Shirish Shah did there (Sic) after return to Mandrup Police Station. The fact of a talk between the accused is also borne out by the testimony of the Police Constable Mhaske and Head Constable Sagamnwar. In particular P.W. 7 Head Constable Sangamnwar states that after talk with P.S.I., the tractor owner Shirish Shah had gone away while the tractor and the trolly still remained there. Sangamnwar had taken charge of the Station diary at about 1-00 p.m. and then he had gone to Antroli from where he returned about 4-00 p.m. Accused also returned to the Police Station at about 4-00 p.m. and having given some instructions, had gone home. Sangamnwar also states that at about 6-00 p.m. the accused came from his residential quarters, towards the Police Station on his motor-cycle. He also deposed that at that time Shirish Shah accompanied by one more person was standing near the platform built around a tree near the Police Station; he had also seen the accused, having a talk with the accused P.S.I. (Sic) at that time. This therefore confirms the story given by Shirish Shah that he had, accompanied by Pancha witness Shaikh P.W. 2, first gone to the house of the residential quarter of the accused had met him just as he was about to get on his motor cycle and that the accused then directed him to go over to the Police Station when he would meet him (Shirish Shah). Accordingly Shirish Shah and Pancha witness Shaikh went and waited near the platform built around the tree, where as stated by Head Constable Sangamnwar, the accused had then come and had a talk with Shirish Shah. It was there that according to Shirish Shah accused made a terse enquiry from him whether he had brought (the amount). Shirish Shah replied that he had brought (the amount) whereupon the accused having considered the presence of Shaikh as an embarrassing and inconvenient one demanded to know from Shirish Shah who he was. Shirish Shah replied that Shaikh was a person from his own village Bhandarkavathe. The accused still directed Shaikh to go and stand near a Police vehicle which was parked at some distance away. The Pancha Shaikh had been instructed that he must constantly remain near Shirish Shah and hear the conversation between the accused and Shirish Shah. Therefore Shaikh did not move away in spite of this virtual command from the accused. The argument before the trial Court and which has been repeated here also is therefore that if the accused indeed wanted to obtain such illegal gratification from Shirish Shah and had suspicion that perhaps the real reason for the presence of Shaikh was different, he would not have accepted the amount in the presence of Shaikh. Here it is only working of the human mind, that has to be understood. A choice stood offered to the accused either to take a risk and accept the amount ignoring the presence of Shaikh or to lose the opportunity to make an illegal and unlawful gain of Rs. 300/- which was there just for his asking. The temptation it must appear was irresistible and had the better of the accused and in spite of Shaikh declining to move away, he then made bold and asked Shirish Shah that the amount be given to him. It was only then that Shirish Shah took out the treated currency notes from out of pocket of his pant and handed them over to the accused. The accused took these currency notes in his hand and put them inside, through the flaps of his uniform shirt and hurriedly placed them in between his banian and the uniform shirt. Shirish Shah has stated that the accused had asked him to hurry up with the payment explaining that he wanted to go to Solapur. This is corroborated by P. W. Sangamnwar, he deposed that the accused at that time directed him to make an entry in the Station Diary to the effect that he (the accused P.S.I.) had left the Police Station at 6-00 p.m. for bandanas duty. Thus the evidence shows that in the earlier part of the day on 3-8-1986 the accused did make demand for payment of Rs. 300/- by way of illegal gratification for him to perform the official duty of exercising his authority to direct release of the tractor and the trolly which had been detained by him earlier under his orders, at the Police Station. The complaint Shirish Shah had to agree to this illegal demand and had to promise that he would make the payment. It appears that he did not have the amount ready with him and therefore he went back to Solapur to bring the same. On going back to Solapur or probably on way to Solapur, it occurred to him that he should better make a Complaint about this behaviour and illegal demand of the accused to the Anti-Corruption Branch of the Police. He, therefore, went to the Antil Corruption Branch office where proceedings took place as detailed in Panchanama Exh. 18. Treated currency notes were given to him; specific instructions were given to him as also to the Pancha Shaikh as to how these were to be handled. Then the currency notes treated with anthracene powder were placed in his pocket by one of the staff of Anti-Corruption Branch Office. He was warned that these currency notes were not to be touched by him, until occasion for payment thereof arose and that such payment was to be made only after demand specifically for the amount was made by the accused in the first instance. It is under these circumstances that, upon demand made by the accused, sitting on the motor-cycle as he was, Shirish Shah had taken out the currency notes and handed over the same to the accused. He did so, accordingly only after a demand was made by accused for the amount. The fact of such demand has been corroborated by the Pancha witness Shaikh. There appears a slight variance in the versions of Shirish Shah and Shaikh about the specific words used by the accused suggesting that the payment be made to him. Learned Counsel for the appellant pointed out that according to the panch witness Shaikh, ''Shirish Shah the complainant had enquired with the accused whether he should pay and the accused said to him that he should''. In examination-in-chief Shirish Shah stated that the accused asked me "whether you have brought ?" and I said "Yes, I have brought". Questioned about this in cross-examination Shirish Shah deposed that he had stated at the time when his statement was recorded after raid that ''he had asked the accused as to whether he should pay, the accused had replied that he should''. No doubt this constitutes some variance but what is to be noted is that the accused P.S.I. Jadhav did enquire with Shirish Shah in the words ''Have you brought ?'' and the complainant had replied ''Yes, I have brought''. Therefore in reality there is no material discrepancy or inconsistency in the real sense of the expression.

The evidence shows that after the accused thus demanded and then received Rs. 300/- from the complainant Shirish Shah, he revived up the engine of his motor-cycle which at that time was kept idling. He proceeded along the approach way leading to the main road. As he headed for the main road, P.I. Kadam, Dy.S.P. Wadekar, the other pancha Mitragotri and other Anti-Corruption Branch staff all forming group of 4-5 or 5/6 persons came rushing in his direction. Suspecting something foul, suspecting that he had probably fallen into a trap laid by the Anti-Corruption Branch, the Accused P.S.I. tried to speed away, ignoring the signal of P.I. Kadam indicating that the accused should stop. When he ignored the signal and tried to make an escape in this manner, P.I. Kadam gave dash to the motor cycle as it approached, both the machine and rider fell down. Dy.S.P. Wadeker promptly removed the accused''s revolver from the holster. The motorcycle was lifted and brought to rest on its stand. P.I. Kadam then disclosed his identity and asked the accused not to make any move or make any further attempt and bade him to keep quiet. The treated currency notes were, in the process of his being apprehended or obstructed, removed by the accused from where he had concealed them between the fold of his shirt and banian. He had thrown away the currency notes. The scattered currency notes were collected by the panch Mitragotri under the directions of P.I. Kadam. These were found to be the same currency notes which were earlier treated with anthracene powder and had been handed over to Shirish Shah. The numbers printed on these currency notes were also found to tally with the numbers noted in the pre-trap panchanama Exh. 18. The presence of the anthracene powder was noticed on the right side pocket of the pant of Shirish Shah under the ultraviolet light. Traces of anthracene powder were also noticed on the inside of the uniform shirt, near the fold of it, which the accused was wearing. So also his banian was found to have traces of anthracene powder indicating that he had received these three currency notes which he had first taken in hands to place them in between folds of his uniform shirt and the banian. Thus acceptance of the marked currency notes as such and therefore receipt of the amount of Rs. 300/- by way of illegal gratification has been fully established against the accused as argued by the learned Additional Public Prosecutor.

The accused''s explanation of the presence of anthracite powder on banian, on the inside portion of cloth of his uniform shirt, his banian and on his hands is that it was after his vehicle was stopped, voluntarily by him as be says, upon the signal given by P.I. Kadam that the complainant Shirish Shah P.W. 1 who was one amongst the group of 5/6 persons had then tried to thrust the currency notes on his person and that he had reacted equally promptly; he had taken out these currency notes and thrown them away. This apparently simple explanation must be found far removed from the reality of the situation in that at the material time Shirish Shah and Pancha Shaikh were not in the group which was headed by P.I. Kadam and Dy.S.P. Wadekar and was waiting for Shirish Shah''s signal. The contents of panchanama exh. 19 the evidence point all the way to the fact that Shirish Shah and Shaikh had first gone to the house of the accused in the same compound of the Police Station; the accused was then seen standing in front of his residence near his motor-cycle and just about to start from there and that he had then asked Shirish Shah to meet him in front of the Police Station. Shirish Shah and Shaikh had then gone and stood near the platform around the tree, in front of the Police Station. They waited for the accused to arrive there. It was there and there only that the demand was made by the accused and Shirish Shah had parted with currency notes of Rs. 300/-. It was there only that the accused had received the three currency notes of Rs. 100/- each. The testimony as also contents of panchanama Exh. 19 and sketch Exh. 15 when considered together show that it is highly impossible, in view of the manner in which trap was laid, and the manner in which the transaction proceeded thereafter, that Shirish Shah and Shaikh could have been in the party which was headed by the Police Inspector Kadam. That party was waiting for the pre-arranged signal to be given by Shirish Shah and then to approach and apprehend the accused. The distance, it will be appreciated is considerable one of about 148 Ft. and it is difficult that after meeting the accused at his residence in the first instance, Shirish Shah and Shaikh could have gone over to and joined the party headed by P.I. Kadam.

The further explanation of the accused which did not find favour with the learned Judge of the trial Court, is that Shirish Shah when he had gone to complain to the Anti Corruption Branch at Solapur had been warned by Police Inspector Kadam. The warning was that since Shirish Shah was making a complaint against a Police Officer, if the complaint was eventually found to be a false one, then it would be Shirish Shah who would have to face trouble, possibly prosecution. Such being the warning given to Shirish Shah, it was the further contention of the accused that it was therefore an imperative for the complainant to thereafter succeed. It was therefore since the accused had never made any demand for money that Shirish Shah subsequently tried to thrust the currency notes on his person. The justification about thrusting currency notes was therefore that it was made at the instigation and under the directions of the P.I. Kadam. Anti Corruption Branch staff who (Sic) were standing some considerable distance from the place where the accused and Shirish Shah met in front of the Police Station. This suggestion that the accused was subjected to this trap - as falsely laid and executed one - merely because Shirish Shah had to make success of it is something which cannot appeal to the mind of the Court and preponderance of the factual situation. In the circumstances, the contention that this was a case of thrusting possession of the currency notes on the accused does not impress this Court as it also failed to impress the trial Court.

In his written statement Exh. 39 the accused also contended that there was some ''misunderstanding'' on the part of the complainant Shirish Shah and misunderstanding was that the accused had without any reason and forcibly stopped and detained his tractor (at the Police Station). My attention was specifically drawn to the accused''s written statement by his learned Counsel. The question which arises is, if as contended there was any ''misunderstanding'' on the part of Shirish Shah, what then was it which had to be correctly understood by him or the Court ? What if any was the reason for the accused P.S.I. to direct the detention of the tractor and the trolly in the Police Station ? There is none which the accused is able to suggest and offer. It is very significant to note that while explaining the adverse and incriminating evidence of the Police Constable Mhaske and Head Constable Sangamnwar, the accused has stated that these two Police Officials were deposing against him because he was annoyed with them when they failed to carry out his directions namely, that Police Head Constable Sangamnwar was to take entry in the Station Diary and the Police constable Mhaske was to take the entry in the register meant for cases under the Motor Vehicles Act. It also appears that some kind of a complaint perhaps a non-cognizable offence was lodged by Constable Mhaske before the Judicial Magistrate, First Class Court Solapur. It also appears that complaint was not accepted by the Court''s staff for the reason that it was N.C. complaint and for a N.C. complaint, it was necessary to produce the accused person himself. Inasmuch as accused person could not be produced at that time, the complaint was not accepted and Constable Mhaske reported accordingly to his superior, the accused P.S.I. The explanation of the accused is that his annoyance with Mhaske in not getting the complaint registered was the reason why Mhaske had chosen to depose against him (the accused). This explanation hardly holds any water. In the circumstances, the testimony of these two police constables from the Police Station Mandrup amply supports the happening on the night of the 2nd of October 1986 and during the course of the day on 3rd October 1986. It substantially corroborates the version of the complainant Shirish Shah and the Pancha Shaikh. Against the Pancha Shaikh also, who was equally unknown and a stranger to the accused, the latter has no explanation to offer as regards his incriminating testimony, it will therefore be appreciated that in the first place the accused P.S.I. did not have any reason, ground or basis which justified his detention of the tractor and the trolly in the Police Station when it was brought there by the Police Constable Khatke and Shaikh. The accused did not draw a Panchanama of the attachment of the tractor and trolly. The provisions of law contravened and offence committed was never disclosed. He also did not record any reasons anywhere for the detention of the tractor and the trolly as being property which would be evidence of commission of any offence. In these circumstances detention thereof was illegal. The accused knew that release of the tractor and trolly from such illegal detention was inevitable. However, accused wanted, out of such detention, to make illegal gain. That is only the reason why he, though otherwise unnecessary, detained the tractor and trolly and demanded that the owner Shirish Shah should himself immediately meet him personally. Otherwise non-production of the necessary documents pertaining to the tractor and trolly was only a facade for such detention. It would have been quite sufficient if the tractor driver were to have produced originals before the accused P.S.I. on next day; that would have satisfied the accused P.S.I. and he would have released the tractor and the trolly. But then it is clear he wanted to do so only after his palms were greased. He, therefore, made an illegal demand for illegal gratification of Rs. 300/- agreeing only thereupon to release the tractor and the trolly. That is fully and beyond any reasonable doubt brought home to the accused. It is brought home to him that it is only in pursuance of these demands, that he called owner Shirish Shah with Rs. 300/- on 3-8-1986 in the evening at 6-15 p.m. in the premises of Police Station at Mandrup. This was amount claimed only for the purpose of performing his official duty of releasing the tractor and the trolly which had been otherwise unnecessarily, unwarrantedly detained by him in the Police Station. The commission of offence u/s 161 and S. 5(1)(d) read with 5(2) of the Prevention of Corruption Act 1947 was thus rightly held established by the trial Court and on appeal here this Court must also unhesitatingly confirm the same.

Learned Counsel Smt. Bhosale then made an earnest submission that the punishment of rigorous imprisonment for one year and fine of Rs. 1,000/- u/s 161 of IPC as also the sentence of rigorous imprisonment for 18 months and to pay a fine of Rs. 2,000/- u/s 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act must appear to be more than harsh, in the circumstances of the case. However, there do not appear to be such circumstances to me as would be extenuating. It was pointed out that the accused had, after his posting at Mandrup Police Station brought the crime rate under considerable control. The same had previously mounted and timely action against several goondas and anti-social elements had been taken. He had enforced discipline by performing his duties conscientiously. This also does not appear true if regard is given to the fact that at the time of seizing the registers from the Police Station, it was noticed by P.I. Kadam that the registers were not filled in for a whole week preceding the incident. The claim of being a disciplinarian would find little support if this evidence and accused''s admission about its truth is taken into account. The accused is neither young nor freshly recruited nor inexperienced officer. He is not a person at the stage of retirement. In fact he is in the prime of his youth. The incident took place when he was 37 years and he is presently 40 years old. Submission of learned Counsel is that by reason of his conviction u/S. 161 and 5(1)(d) read with 5(2) of the Prevention of Corruption Act he necessarily stands to be dismissed; that he stands to lose several service benefits. That is of course an inevitable consequence of the conviction and cannot, therefore, come in the way of appropriately determining the quantum of punishment to be awarded. In that view of the matter, the sentence imposed which is certainly not the maximum awardable - though also not the minimum would appear to be only adequate. It would deserve no interference from this Court. Consequently the sentence awarded be confirmed. In the result, the appeal is dismissed. The conviction u/s 161 of the I.P.C. and u/s 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act 1947 and the sentences passed against the accused on these two counts are hereby confirmed.

The appellant has been on bail during the pendency of this appeal; he is now ordered to surrender to his bail.

At the request of Smt. Bhosale, learned-Counsel for the appellant, time is granted to him to surrender to his bail, for undergoing sentence awarded, on or before 15th February 1991.

Order accordingly.