VIBHA KANKANWADI,J. - (1.) Heard learned Senior Counsel Mr. V. D. Sapkal instructed by learned advocate Mr. S. R. Sapkal for applicants/appellants and learned Additional Public Prosecutor Mr. A. R. Kale for respondent- State.
(2.) Present application has been filed by the applicants for suspension of sentence passed in Special (ACB) Case No.23 of 2016, by learned Additional Sessions / Special Judge, Jalgaon on 29-06- 2020. They have been sentenced thus ; "1) Accused No.1 Aabasaheb Bhaskar Patil is hereby convicted for the offence under Section 7 of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- (Rupees Two Thousand only) in default of payment of fine, he shall suffer simple imprisonment for three months. 2) The accused No.1 Aabasaheb Bhaskar Patil is hereby convicted for the offence under Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs.2,000/- (Rupees Two Thousand only) in default of payment of fine, he shall suffer simple imprisonment for three months. 3) The accused No.2 Mohan Bhika Gujar is hereby convicted for the offence punishable under Section 12 of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/- (Rupees one Thousand only) in default of payment of fine, he shall suffer simple imprisonment for two months........"
(3.) It has been vehemently submitted on behalf of the applicants that, the learned Trial Judge has not appreciated the evidence properly. The trap was conducted after the complaint was filed by P.W.1 Swapnil who is said to be the driver on Maruti Omni bearing No.MH-41/ V-0572. According to him one Deepak Sukhdeo Pagar is the owner of the said vehicle, however in the cross-examination he has stated that, one Musa is also the owner. So he has not confirmed as to who is in fact the owner of the vehicle but when he was only the driver and according to him the present applicant who is the police officer demanded the illegal gratification, yet he says that he had not informed the said fact to his owners/ employers. The vehicle he was plying is a private vehicle, however he used to use it for illegal transportation for profit. How far such person should be believed itself is a question. Further his evidence would show that, he was not able to say when exactly the applicant who was the accused No.1 had demanded amount. He was not even remembering whether police who had demanded the amount, was in civil dress or in uniform. He has not stated as to whether any passenger was travelling from his vehicle at that time or not. If such passenger was travelling from his vehicle at that time then that independent witness would have been the proper person to say about demand of illegal gratification. The prosecution has put a story that, the amount has been accepted through original accused No.2 Mohan, however the nexus has not been properly established. The complainant had not seen Mohan as well as present applicant together. Even as regards sanction to prosecution is concerned, it is to be noted that, P.W.3 has stated that he had not seen the necessary documents of the vehicle whether forwarded to him or not, this shows lack of application of mind. Another point which the learned senior counsel wanted to submit was that, whether the informant who had lodged the First Information Report on behalf of State can himself be the Investigating Officer. Taking into consideration the points those have been raised and the appeal has been admitted, since arguable points are made and it is less likely that the appeal would be heard within near future, so also the short sentence that has been imposed; the learned senior counsel prayed for suspension of sentence and release of the applicants on bail during the pendency of the appeal.;