High Court

Legal Reasoning

1 criapeal5.2005 judgmentIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPEAL NO. 5 OF 2005 Deepak s/o Laxman Shinde,Age; 33 years, Occ; Service as JuniorEngineer, M.S.E.B., District Ahmednagar.R/o; 23/1, Model Colony, Savedi,Ahmednagar, Tq. & Dist. Ahmednagar....APPELLANT(Original Accused ) V E R S U SThe State of Maharashtra...RESPONDENT...Advocate for Appellant : Mr. N.R.Dhorde (Senior Advocate) i/b Mr.V.R. Dhorde a/w Mr. S.P. NimbalkarAPP for Respondent/State : Mr. S.K. Shirse... CORAM : KISHORE C. SANT, J. Date of Reservation : 21.08.2024Date of Decision : 12.11.2024 JUDGMENT 1. The appellant is before this Court challenging thejudgment and order dated 14.12.2004, passed by the learned 2 criapeal5.2005 judgmentSpecial Judge, Ahmednagar, in Special Case No. 10 of 1998. Theappellant is held guilty of the offences punishable under Section 7,13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act and issentenced to suffer R.I. for 3 years and to pay fine of Rs. 2,000/-, indefault to suffer R.I. for 6 months for each of the offences. Thesentences are directed to run concurrently. 2.The case of the prosecution in brief is that the appellantat the relevant time was working as Junior Engineer with the thenM.S.E.B. at Karjat, District Ahmednagar. The informant GautamDagadu Shelke approached Anti Corruption Bureau (ACB) on09.02.1998 and lodged a report. It is informed that the saidinformant had applied for electricity connection for installing anelectric motor pump of 5 H.P. on the well situated in his land. Therewere also applications made by the others persons for gettingelectricity connections. On making an application the informantalso deposited amount as per quotation. He was told in the MSEBoffice that he will receive letter from their office and thereafter hewill have to again to approach MSEB office. The appellant (for shortaccused) asked the informant to come along with other persons ingroup. On that, he went to one Balasaheb Yadav, the Sarpanch of 3 criapeal5.2005 judgmentthe village, who also wanted to get electricity connection. Along withSarpanch he approached to the office of MSEB Karjat, where it wastold that they have to pay Rs. 1,000/- each, for getting electricityconnection. Thereafter, the line was taken after bringing material,like wire and other instruments. Line was given to one SandipanToradmal by taking wire till his line so the informant was also givenconnection. Even after getting connection the motor of theinformant did not work and therefore, again he went to the office ofthe accused along with said Balasaheb Yadav. At that time, theaccused demanded amount of Rs. 500/-. It is on that the complaintcame to be lodged with ACB. On receiving the complaint, ACBdecided to lay a trap. It is held that the trap was successful and theprosecution was launched.EVIDENCE BY PROSECUTION3.The prosecution in its support examined four witnesses.PW-1 is the defacto informant namely Gautam Shelke. He stated thefacts, lodging of complaint, laying of the trap and about actualhappening of the incident etc. He deposed that on the date ofincident the raiding party left the ACB office at 8 a.m., byGovernment Jeep and reached Karjat at around 11 a.m. He was 4 criapeal5.2005 judgmentaccompanied by Balasaheb Yadav & pancha No. 1. The raidingparty was following them. On reaching to the office, they found thataccused was present in the office. Balasaheb asked the accused asto when connectioan would be given. On this accused told thatunless the amount is paid the connection will not be given. On thatthe informant placed the amount on the table, the accused pickedup the amount and kept in the bag on the table. Thereafter, theinformant came out and gave signal to the raiding party. On thatthe raiding party came in the office. The informant was asked to goout and again was called after some time. After returning, hishands were tested under the Ultra Violate lamp and anthracenepowder was seen to his right hand. 4.In the cross-examination he accepted that he had fixed astarter for the connection. One Mr. Babar from MSEB had been tohis field for giving connection. He could not tell as to whether saidBabar had come on 02.02.1998. He denied that said Babar hadagain come on 24.01.1998. He accepted that the starter and otherthings were brought, however, were not fitted. He could notremember whether said Balasaheb Yadav was with him when thepersons from the group had been to the accused on earlier occasion. 5 criapeal5.2005 judgmentHe could not tell as to whether Balasaheb was present when theaccused made alleged demand of Rs. 1,000/-. However, he waspresent while taking connection. The informant accepted that on07.02.1998 he had been to the ACB office alongwith Balasaheb. Hehad not decided to go to ACB office but it was Balasaheb who wentto the ACB office with informant. When the complaint was lodgedBalasaheb was present, he was knowing the ACB office. He couldnot remember as to whether Balasaheb accompanied him at thetime of raid. On 10.02.1998 Balasaheb was present in ACB office.He could not tell as to whether he was present while drawing pretrap panchanama. He also could not tell as to whether he on hisown had been to the ACB office on 10.02.1998. He could not tell asto whether Balasaheb was present in the jeep with raiding party. 5.PW-2 Balasaheb Yadav is a Member of Grampanchyat,Bhairobawadi. He stated that on 7.2.1998 he had gone with theinformant to see the accused. The accused told that the work wouldnot be done unless the applicant and he himself have paid him Rs.1,000/- each. The informant paid Rs. 1,500/-. The informant toldhim that he would pay remaining amount of Rs. 500/- on Monday.On Monday the informant requested this witness Balalsaheb to 6 criapeal5.2005 judgmentaccompany him and asked him to come near the College onTuesday. On 11.02.1998 he had been to the MSEB Office at around11.00 a.m. and met the accused. The accused told him that hewould come around 11.30 a.m. The Complainant at that time camethere with one unknown person. This witness told accused to lookinto the work of the informant. The accused on that questioned asto whether the informant has brought the amount. This witnessanswered in affirmative, on that the informant kept amount on thetable of the accused, the accused picked that amount by his handand kept the amount in a bag on the table. He again said that theamount was kept by the accused in a bag over the table.Thereafter, the informant immediately went and signaled the raidingparty. The raiding party came on the spot.6.In the cross-examination, he stated that for the first timehe met the accused on 07.02.1998 and that was Saturday. Hisstatement was recorded by Dy. Superintendent of Police, ACB. Ithas come in his evidence that he did not state in police statementthat the amount of Rs. 1,000/- was demanded by the accused. Theamount of Rs. 1500/- was paid in a month prior to 07.02.1998 andit was paid by the informant to the accused. He denied that the 7 criapeal5.2005 judgmentaccused was not present in the office on 7.02.1998. He was notknowing about the lodging of the complaint with ACB office till10.02.1998. On 10.02.1998 he met informant and Mr. Mane in theoffice of ACB as he was specifically called for that purpose on10.02.1998. He denied the suggestion that he had a quarrel withthe accused over giving connection and he has falsely implicated theaccused through informant.7.PW-3 is Bhumayya Ramayya Yamul a panch. He wasasked by his superior to attend the ACB office. Therefore, he wentto the ACB office. There was one more person present namely Mr.Sonar. They both went to the ACB office. There they met Mr. Mane.Their consent was taken to act as pancha. They were thereafter,called by ACB at 6.a.m. on 10.02.1998. For some reason thesecond pancha was substituted and therefore, the second panchaMr. Malwade went to the office of ACB. The informant narrated thecomplaint and the same was reduced into writing. After takingdecision to go for raid they left the office of ACB at 8,30 a.m. byprivate jeep. Near the office of MSEB, Balasaheb was also present.He was introduced by the informant. Thereafter, they went to seethe accused. Balasaheb Yadav asked the accused as to what 8 criapeal5.2005 judgmenthappened about the work of the informant, on that the accuseddemanded bribe amount. The Complainant gave the amount to theaccused. The accused accepted the amount and kept the same in abag which was on the table. On that, Balasaheb told the accused todo the work of the informant. Saying that the informant went outand the gave signal to the raiding party. The raiding party arrived.The I.O. asked this witness as to who accepted the amount, he toldthat the accused had accepted the amount and kept the same in abag which was on the table. Thereafter the hands of the accusedwere tested under the Ultra Violate Lamp and those shown blueshining under the said lamp. Thereafter, the shirt of the informantwas checked, and anthracene powder was found even on the shirtpocket of the informant. Thereafter, all went to Police Station andlodged the complaint.8.In the cross-examination, he accepted that while drawingpre trap panchanama the informant told that Balasaheb would bewith them. Balasaheb only talked with Shelke. He could notremember that twice they entered the room of the accused. It wastried to show that the portion was shown from the panchanamawhere it was written that they once again entered the office. He 9 criapeal5.2005 judgmentaccepted that during that period Balasaheb, informant and himselfwere sitting in the room. It is taken in his cross-examination thatthe accused had given his written say and the same was signed bythis witness, which is marked as Exh. 51.9.PW-4 Ramchandra Supali a Sanctioning Authority, wasworking as Joint Secretary in the MSEB. In his evidence he statedthat he is appointing and removing authority of the JuniorEngineers. He had received papers from ACB office for sanction.He perused the statements, report and thereafter came to aconclusion that it was a fit case to accord sanction and accordinglyhe granted sanction. This witness proved the sanction order.Nothing much is asked to this witness in cross.10.PW-5 Sharad Mane, the I.O., stated in his evidence aboutreceiving complaint, calling of the panchas, about the process ofconducting raid and collecting evidence. He filed the charge-sheet.He stated that the anthracene power was found to the hands of theaccused. Even bag of the accused in which the money was kept andthe table which was also checked under the ultra violate lamp.They found the traces of the anthracene power on the said pocket as 10 criapeal5.2005 judgmentwell as on the table cloth. Those were attached to the panchanama.11.In the cross-examination he accepted that he did notrecord the statement of Sandipan Toradmal, from whom demandwas made and who also had paid amount. He could not rememberwhether Balasaheb had come along with informant Shelke forlodging the complaint. He accepted that the Balasaheb Yadav wasnot present when the pre-trap panchanama was drawn and it wasnot decided that Balasaheb Yadav should accompany the informantfor raid. This Balasaheb Yadav went along with informant on hisinstructions. It is taken that he did not peruse the muster roll to seewhether the accused was on duty on that day. There was alsostatement recorded of Mr. Ashok Navgire. This witness proved thecomplaint, /report of the District Collector and that he had gone tothe field of informant on dated 09.02.1998. On that the complaint ofthe accused that the informant had assaulted the employee Babarwhen he had gone to the field of the informant. There is one morecomplaint made by this Babar on 09.02.1998 that when he hadseized the material alongwith motor that was illegally fitted on hisfield, that time said Babar was threatened. 11 criapeal5.2005 judgmentDEFENCE OF THE ACCUSED12.It is the defence of the appellant/accused that whileworking in the MSEB had taken action against many persons forillegal installation of motors in their fields by putting hooks on wire.One such person was Balasaheb Yadav, who happens to beinfluential person being member of the Grampanchyat. There wasaction taken against this Balasaheb Yadav as well and therefore, itis at his instance a complaint was lodged by the informant. It isfurther a case that on the date of demand on 07.02.1998 theaccused was not on duty and was not present in the office of MSEBas there was some marriage in his family on 05.02.1998 andtherefore, he had gone to his native place. His further defence isthat on the date of incident the amount was thrusted by theinformant and was kept below the bag on the table. He had notaccepted the said amount, neither there was any demand of theamount. The entire story of the prosecution is concocted.SUBMISSIONS BY APPELLANT 13.Learned Senior Advocate Mr. Dhorde, made submission.He submitted that there is no specific date of the demand of 12 criapeal5.2005 judgmentamount. He relied on Exh. 22, a letter by which the informant wasinformed on 16.10.1997 that he will get the pump installed before15.11.1997 and to submit its report. If the said exercise is notdone, then the informant will have to apply afresh for theconnection and thereafter, it will be given as per seniority list.Secondly Balasaheb Yadav happens to be a local leader, who madethe informant to lodge a complaint and therefore, he wasaccompanying him on the date of trap though the ACB had notdirected. On 07.02.1998 there was ‘Satyanarayan Pujan’ after themarriage of nephew of the accused at Newasa, therefore, he was athis native place. From the duty chart it is clear that the accusedwas not present on the date of alleged first demand.14.Said Balasaheb Yadav has accepted in his evidence thathe was helping the informant. It is the case of the accused that asper action taken by him against the Balasaheb, he was falselyimplicated in the crime. On 13.11.1997 said Balasaheb hadthreatened the employee namely Mr. Babar. There was report13.11.1997 showing that Mr. Babar was threatened by BalsahebYadav. 13 criapeal5.2005 judgment15.On 24.01.1998 Mr. Babar had given connection to oneMr. Toradmal and on 02.02.1998 This Mr. Babar had visited thefield of the informant, however, he did not find Starter and the MainSwitch as well as Capacitor on the well and therefore, he did notgive connection to the informant. At that time Mr. Balasaheb hadagain threatened this employee. A complaint was determined toimplicate the accused by hook or crook. He thus, submits that theentire action is with malice. The learned trial Court failed toappreciate evidence in its proper perspective and has believed thestory of the prosecution witnesses. He relied upon the followingjudgments :(a)In Mukhtiar Singh (Since Deceased) Thorughhis Legal Representative Vs. State of Punjab - 2017(8) SCC 136(b)In Babu Lal Bajpai Vs. State of U.P. - AIR1994 SC 1538(c)In Mr. Khushalchand Yashwant Gaikwad Vs.The State of Maharashtra - 2018 ALL MR (Cri.) 3711(d)In Suryakant Shankarrao Gaikwad Vs. TheState of Maharashtra - 2016 ALL MR (Cri) 1844(e)In Dagadu Paku Dhebe Since (D) thr. LR’s Vs.State of Maharashtra - 2022 ALL MR (Cri) 4055(f)In Samsul Haque Vs. State of Assam - 2019 14 criapeal5.2005 judgment(18) SCC 161(g)In Kalicharan and Others Vs. State of UttarPradesh - 2023 (2) SCC 583(h)In Bhikaji Vishnu Patil Vs. The State ofMaharashtra - 2022 ALL MR (Cri) 3765(I)In Govind Yeshwant Adsule Vs. The State ofMaharashtra - 2023 ALL MR (Cri) 2905(j)In State of Maharashtra Vs. DnyaneshwarLaxman Rao Wankhede - 2009 AIR SCW 5411.SUBMISSIONS BY THE STATE16.Learned AGP vehemently opposes the appeal. Hesubmitted that the prosecution by examining five witnesses hasproved the guilt of the accused beyond reasonable doubt. The storyof the prosecution is that the accused was falsely implicated is onlyafter thought. Consistently all the witnesses i.e. the informant,Balasaheb Yadav, the panch withess Bhumayya Ramayya Yamulare consistent on the point of demand and acceptance of theamount. From the cross-examination of the informant it has comethat the Starter was fixed by him on his well and still connectionwas not given to him, thus the defence is falsified. There wasspecific demand of the amount. The accused took the amount by 15 criapeal5.2005 judgmenthis right hand and the said fact is clearly mentioned in thedepositions of the witnesses. Therefore, the presumption underSection 20 is clearly attracted. It has come on record that thequotation was filled in by the informant long back, still noconnection was given to him. It is stated that there was enmity inbetween Balasaheb Yadav and the accused. This story put up bythe accused is not probable. The pre-trap panchanama and the posttrap panchanama are duly proved by all the witnesses. The defenceis not improbable. From the explanation it is clear that there wasalready Switch and Starter fitted by the employee Babar who wasalready sent to the spot but the work was still pending. He submitsthat the judgments relied upon by the learned Senior Advocate arenot applicable to this case.JUDGMENTS RELIED UPON 17.In Mukhtiar Singh (supra) the Hon’ble Apex Court heldthat to prove offence under Section 7 and 13 (1) (d) r/w 13 (2) proofof demand and acceptance of the amount is indispensable and thebald allegations about the demand and acceptance, if notcorroborated, will not prove the offences. Considering the facts of 16 criapeal5.2005 judgmentthat case the acquittal was recorded.18.In Babu Lal Bajpai (supra), the Hon’ble Allahabad HighCourt held that when there is no motive of demand and acceptanceof bribe, there has to be acquittal. It was the case that no bill ofcomplainant contractor was pending with accused. It was heldwhen there was no bill pending with the accused, there was noquestion of asking for a bribe for sanction of the bill. In that viewthe judgment was delivered.19.In Mr. Khushalchand (supra), the informant hadadmitted in the cross-examination that the accused did not accepthis request by not sending proposal to Tahsildar, there was grudgein his mind against the informant. The Court drawn inference thatit is because of the grudge in the mind of the informant he lodgedthe complaint.20.In Suryakant (supra) it was the case that even afterobtaining the bribe, the work of the informant was impossible to bedone. In this case it is held that in such cases it would beimprobable that the accused would make any demand. In Dagadu 17 criapeal5.2005 judgmentPaku (supra) it is held that the Complainant was disparate toinvolve the accused in the trap case. In Samsul Haque (supra) it isheld that in 313 examination accused was not given an opportunityto explain the incriminating circumstances and in that view theHon’ble Apex Court allowed the appeal of the accused. In Kalicharan(supra) it is held that the relevancy of circumstances appearing werenot put to the accused in 313 examination. It is held that theaccused could not get an opportunity to explain the circumstancesagainst him and in that view the acquittal was recorded.21.In Bhikaji (supra) it is held that there were discrepanciesin the evidence of witnesses and the benefit was given to theaccused. In Govind Adsule (supra) it is held that when genesis ofstory of demand of illegal gratification itself is untrustworthy, thenthe entire prosecution must fail. In State of Maharashtra Vs.Dnyaneshwar Wankhede (supra) it is held that illegal gratification issine-qua-non for the constitution of offence under Prevention ofCorruption Act. Before the accused was called upon to explain as tohow the amount in question was found in his possession, thefundamental facts must be established by the prosecution.Presumption under Section 20 cannot be raised unless fundamental 18 criapeal5.2005 judgmentfacts are proved.DISCUSSION22.Considering the above judgments, this Court has only tosee that as to whether the case is made out of acquittal. In thepresent case evidence of PW-1, 2 and 3 i.e. the informant, PW-2Balasaheb Yadav and another pancha witnesses is consistent andcorroborative on all material aspects on the point demandacceptance by the accused and putting the amount by the accusedhimself in the pocket on his table.23.This Court finds that even on examination of the tablecloth and the bag shown glitterance of anthracene powder under theultra violate lamp. The fingers of the accused were found withanthracene powder. There is no explanation as to how there appearsanthracene powder to the fingers of the accused. He has also notexplained as to how the anthracene powder was found to the tablecloth and also to the bag on the table. This evidence is consistentwith version of PW-1, PW-2 and PW-3. 19 criapeal5.2005 judgment24.So far as the explanation given by the accused isconcerned it is only tried to show that there was grudge in the mindof Balasaheb Yadav and therefore, he made the Complainant to filea complaint. However, no grudge is shown in the mind of theinformant. The accused has merely tried to show that thecomplaint was lodged at the behest of Balasaheb Yadav. Thisdefence does not appear to be probable looking to the other evidenceon record.25.This Court finds substance in the submissions of thelearned APP that specific demand was made by the accused. Nocase is made out by the appellant/accused to show that theinformant himself had any reason to falsely implicate him in thiscase. There is also no case that the informant was desperate toinvolve the accused in the trap case. It is not pointed out that as towhich of the circumstances are not proved under Section 313examination. So far as the immediate explanation is concerned,though the accused has stated that because of the grudge, thecomplaint is lodged, but the alleged grudge was in the mind ofBalasaheb Yadav and not the informant. From the said explanationit is not clear as to how the main Switch and Starter were installed 20 criapeal5.2005 judgmenton the well of the informant. In view of the immediate explanationthe defence that the accused was at Newasa for family function alsogoes.26.The explanation is silent about as to how the fingers ofthe accused received anthracene powder. If at all the theory of thethrusting of the amount by the informant is accepted then thequestion remains of getting the fingers of accused in contact withthe anthracene powder. The accused in the explanation stated thatthe amount was put in the bag by the informant himself. Looking tothe evidence of the witnesses who have specifically stated that theaccused himself accepted the amount by his hand in their presenceand kept it in the bag on the table. So far as the sanction isconcerned, the authority is not even cross-examined on the point ofsanction There is no case made out that the genesis of the storyitself is untrustworthy. Thus all these probable reasons, this Courtfinds that the judgments relied upon by the appellant/accused arenot applicable to this case. In the present case the fundamentalfacts are thus established by the prosecution, therefore, thepresumption under Section 20 is rightly invoked. Thus, no case ismade out by the accused to invoke presumption under Section 20. 21 criapeal5.2005 judgmentThis Court finds that the prosecution has clearly proved guilt of theaccused. The appellant has not pointed out any illegality orperversity in the judgment. Hence the appeal needs to be dismissedand the same is hereby dismissed.27.The accused to surrender to his bail bonds within sixweeks from today.( KISHORE C. SANT ) JUDGEmahajansb/