Mr. N. K. Tungar, Advocate for v. Bhadane, APP for
Legal Reasoning
Cri.Appeal.12.2013-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 12 OF 2013Avinash Kashiram Pakhale, Age : 46 years, Occu. : Service,R/o. N-12, G-78, Swami Vivekanand Nagar,Hudco, AurangabadDied, Through LR’sPushpa Avinash Pakhale, Age : 50 years, Occu. : Household, R/o. As Above.… Appellant VersusState of Maharashtra… Respondent.…..Mr. N. K. Tungar, Advocate for Appellant.Mr. C. V. Bhadane, APP for Respondent - State.…..CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 01 APRIL 2025PRONOUNCED ON : 22 APRIL 2025JUDGMENT : 1.Instant appeal arises out of judgment and order ofconviction dated 19.12.2012 passed by learned Special Judge,Osmanabad in Special Case (ACB) No.9 of 2009 convicting appellantfor offence under sections 7 and 13(1)(d) read with under section13(2) of the Prevention of Corruption Act 1988.PROSECUTION STROY IN TRIAL COURT IS AS UNDER2.PW1 Mahadeo a differently abled person had applied for Cri.Appeal.12.2013-2-agricultural loan from Maharashtra State Handicap Finance andDevelopment Corporation, Mumbai. In that connection, aftertendering application, he approached appellant, who worked as anAccountant in the branch at Osmanabad. PW1 Mahadeo was told byappellant that for sending file to Mumbai for sanction he will have toexpend. Demand of Rs.5000/- was put up, but on negotiation it wasbrought down to Rs.2800/-, out of it Rs.1500/- were paid upfrontadvance and remaining Rs.1300/- were to paid later on. As PW1Mahadeo was not willing to pay illegal gratification, he approachedAnti Corruption Bureau, lodged report Exh.32 with PW5. Hearranged panchas, trap was laid, pre-trap panchanama was drawnand tainted currency were handed over to PW1 Mahadeo to pay ondemand and relay necessary signal. As planned PW1 Mahadeo, informant and PW2 Shivaji,shadow pancha approached appellant. PW1 Mahadeo asked abouthis work. Again demand was put up for remaining amount, which waspaid in the form of tainted currency. Signal was given. Raiding partycame and apprehended appellant. PW5 lodged report, investigatedthe crime, sought necessary sanction and charge-sheeted appellant. Trial was conducted before Special Court, whichculminated into conviction, hence the present appeal.
Legal Reasoning
Cri.Appeal.12.2013-3-SUBMISSIONSOn behalf of Appellant : 3.At the outset, learned counsel for the appellant submittedthat, during pendency of appeal, original convict/appellant died.Present appeal is contested by his wife in the capacity of heir. Hefurther submitted that, there is no dispute that appellant wasAccountant. However, being working in such capacity, he had noauthority or power to accept any application for loan or to sanction it.It was a job of Manager and this is accepted by said witness, who hasstepped in witness box as witness. Therefore, there is no question ofdemand for illegal gratification. On the point of duty, learned counselseeks reliance on Exh.49 which is a circular enumerating the dutiesof each of the staff. 4.He further submitted that, complaint is lodged withulterior motive only because deceased appellant had raised severaltechnical queries necessary for sanction before proposal was sent forsanction. Out of annoyance, complaint has been lodged. 5.It is further pointed out that, there is possibility ofdeliberate thrusting of currency. That, prosecution has not examinednecessary important witnesses like pancha. Pre-trap panchanama isseriously questionable on the point of its credibility. Lastly learned Cri.Appeal.12.2013-4-counsel submitted that, sanction is improper and without applicationof mind. For all above reasons, impugned judgment is sought to be setaside by allowing the appeal.On behalf of Respondent – State :6.Supporting the conviction, learned APP pointed out thatessential requirements like demand are substantiated throughcomplainant, but also through independent witness. That, demandverification is also got done prior to trap. That, in presence of PW2shadow pancha there is again demand as well as acceptance. That,evidence of PW1 Mahadeo and PW2 Shivaji, shadow pancha hasremained intact on the point of demand and acceptance. That,sanction is after application of mind. Therefore, for above reasons,learned APP prays to not to disturb the conclusion reached at bylearned trial Judge and rather dismissed the appeal.EVIDENCE BEFORE TRIAL COURT7.The prosecution has examined following 5 witnesses insupport of its case. Their role and status are as under :-PW1Mahadeo, informant, who lodged report at Exh.32.PW2Shivaji is the shadow Pancha. His testimony is atExh.37.PW3Dhamendra is the Manager in the Mahrashtra State Cri.Appeal.12.2013-5-Other Backward Class, Finance and DevelopmentCorporation, under whose control the appellant wasworking.PW4Sanjay Kolathe is the Managing Director, MaharashtraState other Backward Class, Financial and DevelopmentCorporation, Mumbai.PW5A.S.I. Pratap Kulkarni is the Investigating Officer.8.For proper appreciation and comprehension, it wouldfruitful to reproduce the very testimonies of relevant witnesses i.e.PW1 Mahadeo, informant and PW2 Shivaji, shadow pancha inverbatim as has been stated in witness box in trial court.9.PW1 Mahadeo is the informant. In his testimony atExh.31 he deposed as under :- 1.I am educated upto 10th standard. 1 am affected by Polioto my right leg since my childhood. I am handicapped person. Iknow about Maharashtra State Handicapped Finance andDevelopment Corporation, Mumbai. There is one branch of saidCorporation at Osmanabad. 2. On 22-10-2008 I made application for grant ofRs.5,00,000/- as agricultural loan from Osmanabad Branch. Ihad given application to accused. Accused was working as aAccountant in the said Branch at Osmanabad. Accused told methat to sent loan file to Mumbai office for grant of loan it willrequire expenses. I asked accused as to how much expenses willrequire. Accused told me to visit in next month, and he will tell innext month about the expenses. Accused before the Court is thesame person working as a Accountant in the Branch atOsmanabad. Cri.Appeal.12.2013-6-3. I did not visit Branch Osmanabad in the next month astold by accused. I went to the office of accused on 5-1-2009.Accused was present there on 5-1-2009 in the office. Accusedmade demand of Rs.5000/- from me. I told accused that I cannotpay Rs.5000/- in view of my financial condition. Accused told meto give Rs.2800/-. 1 paid Rs.1500/- in cash to accused in hisoffice. Accused told me to come on coming Monday with Rs.1300/-. Accused told me if I will bring Rs. 1300/- then in thatevent, the loan file would be sent to Mumbai otherwise not. Iagreed to come to coming Monday with Rs. 1300/-.4. On 12-1-2009 I went to the Anti Corruption Office atOsmanabad at about 1.00 p.m.. Shri. Yunus Shaikh was presentin the office of Anti Corruption Office. I do not know hisdesignation. I told Yunus Shaikh that, accused made demand ofbribe from me for sending my loan file. I narrated the entireincident to Yunus Shaikh. I narrated orally my complaint toShaikh Yunus which he had reduced in writing as per my say. Iread the complaint and thereafter I signed. Now I am shown thecomplaint. I say that, it bears my signature. Its contents arecorrect. Complaint is at Exh.32. 5.………. Yunus Shaikh introduced me with those twopersons namely Gangawane and Umbare being pancas. YunusShaikh introduced me with Gangawane and Umbare. YanusShaikh directed me to tell my complaint in front of panchGangawane and Umbare. I narrated my complaint toGangawane und Umbare. Shaikh Yunus had given the complaintExh.32 which was recorded by him to read to Gangawane andUmbare Gangawane and Umbare made signature on mycomplaint Exh.32 that the contents in the compliant are correctas per the narration given by me before them. Now I am shownthe complaint Exh.32, 1 say that, the complaint bears thesignature of Gangawane and Umbare.6.Myself, Yunus Shaikh, Gangawane, Umbare and staff ofAnti Corruption Office, came towards the office of accused by aGovernment Jeep. The jeep has stopped near Kohinoor Hotel Cri.Appeal.12.2013-7-near the office of accused. Anti corruption staff members stoodnear jeep. The office of the accused is located on the second floorin the Kohinoor Hotel in Anand Nagar area. Myself andGangawane went to the second floor of the Kohinoor hotel in theoffice of accused. Accused was present in the office. I offeredNamaskar to him. He also acknowledged by Namaskar. I askedaccused as to whether he had sent my loan file to Mumbai Office.Accused told me that I had paid half money to him, and I havenot paid remaining money. He told me to bring Rs. 1300/- thenhe will sent my file to Mumbai office. I told accused that I willbring Rs.1300/- till 5.00 p.m. and in the meantime accusedshould sent my file to Mumbai Office. Accused told me to bringthe money then he will sent the file. ……..8.Yunus Shaikh then instructed me and Gangawane to visitaccused and I should request accused to send loan file toMumbai office. If accused made demand of money, then I shouldgive the tainted notes to accused by using right hand from mypocket. Shaikh Yunus also instructed me to give signal by takingout the handkerchief from my left pocket of my pant, by left handin order to put the handkerchief on left shoulder if accusedaccepted the money. …..9.……. Myself and Gangawane went to the office ofaccused. In the office accused and two unknown people werefound sitting. I offered Namaskar and accused alsoacknowledged the same. I told accused that, I had come as saidby you. Accused then stood up from his chair, and told me tocome down. Myself, accused and Gangawane came on the roadinfront of the hotel Kohinoor. Accused told me to give money tohim. I told accused to take tea. Accused told me to give moneyimmediately and not tea. I then took out the money from my righthand from my left pocket of my shirt and hold the money infrontof accused. Accused then took the money by his right hand frommy right hand. I then gave signal by taking out handkerchieffrom the left pocket of my pant by left hand and put on my leftshoulder. Accused was holding the currency notes in his righthand at the time when I gave signal. Thereafter, Yunus Shaikhhis staff members and panch Umbare came near us. Gangawanetold Yunus Shaikh that Pakhale Saheb had accepted the money Cri.Appeal.12.2013-8-by showing finger on accused. Yunus Shaikh had then caught theboth wrist of the accused.”10.PW2 Shivaji is the Shadow Pancha. In his testimony atExh.37 he deposed as under :-“In January 2009, I was working in Osmanabad division officeas a senior clerk. On 12.1.09. I was present in my office. On thatday my superior officer directed me and another panchDharmraj Umbare to go to office of ACB Osmanabad and helpthe ACB Officer. Myself and another employee Umbare went tosaid office at about 2.30 p.m. Dy.S.P.Shaikh, ASI Kulkarni,constables Bagade, Jadhav, Tambare were present there.Dy.S.P.Shaikh introduced them to us. Dy.S.P.Shaikh told us thatwe are required to act as a panch. We consented for the same.Dy.S.P.Shaikh told us that we are required to arrange trap onone Ramling Baraskar. One person namely Baraskar waspresent in the office. Dy.S.P.Shaikh told complainant tointroduce himself. Then complainant introduced himself to meand another panch Umbare. ....2.….. Mr. Shaikh drew panchanama prior to verification...4.…. Accordingly the pre-trap panchanama was prepared.Pre-trap panchanama now shown to me bears my signature,signature of another panch and Dy.S.P. shaikh. The contents inpanchanama are true and correct. It is Exh.43. Pre-Trappanchanama at Exh.43 was drawn at 4:30 p.m.5.Myself and complainant Baraskar went at office ofaccused on 1st floor. When we went there, we saw that Mr.Pakalewas in his office and two other persons were sitting in front ofhim. Mr.Baraskar said Namaskar Pakale saheb and further toldhim that he came as per his instruction. Mr.Pakale respondedcomplainant by saying Namaste and thereafter told us to comedown. Accordingly Mr.Pakale went down the steps and weaccompanied him. We came outside the gate. Mr.Pakale askedMr. Baraskar to give money. Mr.Baraskar told Mr.Pakale atleastto take tea. Accused Mr.Pakale declined to come with him and Cri.Appeal.12.2013-9-asked Baraskar to pay the amount. Thereafter Mr.Baraskar tookout the tainted amount by his right hand from left pocket of hisshirt and hold before the accused. The accused Pakale acceptedthe said tainted amount by his right hand and hold it in his hand.Thereafter Mr. Baraskar took out handkerchief from his leftpocket by left hand and put it on left shoulder. On receivingsignal, the staff of raiding party gathered there. I toldDy.S.P.Shaikh that accused Pakale accepted the tainted amountfrom the complainant Baraskar. Mr.Shaikh asked Mr.Baraskar togo out side. On receiving information from me Mr.Shaikh caughthold hand of accused near the wrist and asked the accused hisname. …..”ANALYSIS11.On re-appreciating and re-analyzing the evidence ofcomplainant, it is emerging that he being a differently abled personhad applied for loan specially sanctioned by the office in whichappellant worked. In his evidence at Exh.31 PW1 Mahadeo has statedthat, when he approached office of appellant for forwarding file ofloan for sanction, appellant demanded Rs.5000/-, deal was finalizedat Rs.2800/- and Rs.1500/- were paid on that day and remainingRs.1300/- were paid on Monday. He being unwilling to give bribe,lodged report (Exh.32) with ACB. To this extent evidence of PW1Informant has remained undisturbed in spite of being crossexamined.12.PW2 Shivaji is the independent pancha and his evidenceis at Exh.37. He has also testified about being summoned to ACB Cri.Appeal.12.2013-10-office, introduced to PW1 Mahadeo, made aware of complaint. He andPW1 Mahadeo being given necessary instructions by PW5Investigating Officer. They both visited office of appellant to verifythe demand and in his presence demand being made andsubsequently verification panchanama being drawn. That, heaccompanied PW1 Mahadeo to the office of appellant, which was saidto be on first floor. After exchanging greetings, appellant called themout and accordingly asked PW1 Mahadeo to give money, which wasgiven and duly accepted and later on PW1 Mahadeo gave signal toraiding party headed by PW5 A.S.I. Kulkarni, who came andapprehended appellant. He deposed about further procedureundertaken by PW5 A.S.I. Kulkarni. Even his above testimony hasremained intact in the cross. 13.For proving the charges, there has to be demand andacceptance. These sine quo non are available in the evidence of PW1Mahadeo and PW2 Shivaji.14.Main ground is that appellant was not authorized.However, he is on an Accountant. PW3 Dharmendra, the Manager inhis evidence at Exh.47 has confirmed appellant to be working asAccountant. Procedure of receiving proposals for loan is alsoelaborated by him. He also testified about receiving proposal from Cri.Appeal.12.2013-11-PW1 Mahadeo and its scrutiny being done by appellant. He deposedthat it was expected of appellant to place application to the headoffice and that no charges or fees is required to forward theapplication, but application was not at all put up before him byaccused.15.In the light of above unshaken evidence of PW3Dharmendra, above ground that the appellant had no concern withthe loan application and he had no duty to accept application, has noforce. Very Superior Officer of appellant has confirmed his such duty.16.Another ground of challenge is that there is possibility ofthrusting. However, evidence of PW2 Shivaji rules out any suchpossibility as this witness has narrated the sequence of events sincehis visit to ACB office, accompanying PW1 Mahadeo to the office ofappellant for verification, pre-trap panchanama being drawn andsubsequently accompanied PW1 Mahadeo when again demand ofremaining amount of Rs.1300/- was put up. Appellant has called PW1Mahadeo outside the office and has accepted the amount demandedby him.17.Therefore, on complete re-appreciation, this court findsthere to be cogent, reliable and credible evidence of PW1 Mahadeo, Cri.Appeal.12.2013-12-informant and PW2 Shivaji, shadow pancha on the point of demandand acceptance. Sanctioning Authority PW4 Sanjay Kolathe has alsodeposed about applying mind and according sanction. All essentialingredients being available, there is no perversity or illegality so as todisturb the findings of learned trial court. Hence, the following orderis passed :-ORDERThe criminal appeal is dismissed. (ABHAY S. WAGHWASE, J.) Tandale