High Court
Legal Reasoning
{1} CRI APPEAL 32 OF 2011IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 32 OF 2011The State of MaharashtraThrough Anti Corruption Bureau,District Jalgaon.….Appellant (Ori. Complainant)VersusVijay Pandurang JogiAge: 55 years, Occu.: Service,Asst. Engineer, M.S.E.D. Company,Chopda, Dist.Jalgaon.…..Respondent(Ori. Accused) ….. APP for Appellant : Mr.N.D.BatuleAdvocate for Respondent : Mr. Joydeep Chatterji ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 02 APRIL, 2024 PRONOUNCED ON : 08 APRIL, 2024 JUDGMENT :- 1. State is hereby questioning the judgment and order dated30-11-2009 passed by learned Ad-hoc Additional Sessions Judge,Amalner, acquitting present respondent from offence under Sections7, 13(1)(d), 13(2) of the Prevention of Corruption Act (PC Act). PROSECUTION CASE IN TRIAL COURT 2. Complainant, Madhukar Kankhare, an agriculturist, alongwith {2} CRI APPEAL 32 OF 2011other agriculturists approached accused, an Assistant Engineer,posted in the then MSEB Office in Chopda, with a request to erectD.P. as they were experiencing shortage of electricity supply.Accused assured to sanction new D.P. but on payment of Rs.25,000/-.Complainant and others raised Rs.25,000/- by way of contribution.Complainant paid initial amount of Rs.15,000/-. D.P. was erected butelectricity supply had not started and therefore, when they againapproached accused, he demanded remaining amount ofRs.10,000/-. After which, complainant approached Anti CorruptionBureau (ACB) authorities and lodged complaint with PW4 Dattatray,who summoned pancha, got pre-trap verification done and plannedtrap. On 09-10-2007 PW1 Madhukar, complainant and PW2Ravindra, shadow pancha visited office of accused and on demand,paid Rs.10,000/-. Predetermined signal was relayed and raidingparty, which was waiting in lay, apprehended accused and furtherprocedure of investigation was undertaken by PW4 Dattatray. After obtaining due sanction, accused was chargesheeted andtried by learned Ad-hoc Additional Sessions Judge, Amalner. SaidCourt conducted trial by examining in all four witnesses and byappreciating oral and documentary evidence reached to a fining thatprosecution had failed to establish the charges, hence by judgment {3} CRI APPEAL 32 OF 2011and order dated 30-11-2009, acquitted the accused.3.Feeling aggrieved by above order of acquittal, State has comeup in appeal primarily on following grounds :GROUNDSFirstly, there is improper appreciation of evidence both oral anddocumentary.Secondly, prosecution had established demand as well as acceptanceand as such offence was complete.Thirdly, testimony of complainant and shadow pancha was consistentand lending support to each other.Fourthly, sanctioning authority has accorded sanction after dueapplication of mind.Lastly, inspite of availability of essential ingredients to attract thecharges, there is improper appreciation of evidence as well as lawand erroneous conclusion has been reached at, which needs to berectified by re-appreciation of evidence in appeal. 4.In answer to above, learned counsel for accused pointed outthat prosecution has miserably failed to bring home the charges. Thegist of his argument is that at the threshold accused was in no way
Legal Reasoning
{4} CRI APPEAL 32 OF 2011incharge or responsible for getting work of complainant done. Hewas neither holding jurisdiction to erect D.P. nor was an authority toaccord sanction for the same. Further according to him, hereprosecution, at the outset, failed to establish very demand, which issine qua non in cases of such nature. Taking this Court through thetestimonies of PW1 Madhukar and PW2 Ravindra, it is his submissionthat it is evident from their testimonies that complainant was himselfpersuading accused to get the work done and was hotly pursuingaccused by approaching him repeatedly. Learned Counsel foraccused pointed out that evidence of PW1 Madhukar and PW2Ravindra clearly shows that there is no acceptance of any bribe,rather it is a case of thrusting or planting of amount for deliberateimplication. Complainant had not touched planted currency and assuch no offence has at all been committed as there is neither demandnor acceptance. He also questions the validity of sanction by invitingattention of this court to the cross-examination faced by SanctioningAuthority PW3 Narayan. Lastly he submitted that accused had noconcern with the work related to D.P. and therefore, there was noquestion of demanding bribe. That accused has offered plausibleexplanation without delay probabilizing his case of false implicationand therefore, he prays to dismiss the appeal for want of merits. He {5} CRI APPEAL 32 OF 2011seeks reliance on the ruling of Hon’ble Apex Court in the case T.Subramanian v. State T.N. (2006) 1 SCC 401; Punjabrao v. State ofMaharashtra, AIR 2002 SC 486; Suraj Mal v. The State (DelhiAdministration), AIR 1979 SC 1408. GIST OF THE EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT5.PW1 Madhukar Chindu Kankhare at exh.13 deposed that hehas landed property in Shivar of Kamalgaon. There is no electricityD.P. near his landed property. Consequently, he was getting lesselectricity supply and was so incurring losses. His neighbours werealso facing same difficulty. According to him, he and otheragriculturists consequently decided to approach MSEB office forinstallation of D.P. In the year 2006, he himself and others visitedMSEB Office in Chopda, met accused and put up demand to installD.P. Accused informed that he will get it sanctioned for them butthey would incur expenses to the tune of Rs.25,000/-. They agreedand seven agriculturists collected Rs.21,000/-, complainant himselfcontributed Rs.4,000/-. According to him, again in the year 2006,he, Balu Tayade, Laxman Tayade visited MSEB Office and at that timeaccused informed that he would send proposal for installation. {6} CRI APPEAL 32 OF 2011Accused called them to his house. He deposed that this happened sixmonths prior to lodging of complaint. At the house of accused, theygave amount of Rs.15,000/- to the accused and they informedaccused that they will give Rs.10,000/- later on. He deposed thatthey also told accused that they will give remaining amount ofRs.10,000/- after D.P. gets functional. Accused did not complete thework and so complainant approached accused and thereafter, work ofinstallation of D.P. commenced and in the year 2007 D.P. wasinstalled, but there was no supply of electricity from the D.P. Whenthey approached accused, he asked them to pay remainingRs.10,000/- and thereafter, supply of electricity would start. Accusedasked them to bring amount of Rs.10,000/- in his office after twodays. Therefore, on 08-10-2007, complainant went to ACB office andlodged complaint exh.14. 6.On 09-10-2007, he and shadow pancha were explained theprocedure and made to carry tainted currency. After reaching officeof accused, he and shadow pancha approached him and againrequested to start the electricity supply, upon which accuseddemanded remaining amount of Rs.10,000/- and that thereafter, hewould start electricity supply. Complainant took out tainted currency {7} CRI APPEAL 32 OF 2011and thereafter, accused asked him to keep the amount on the table.Accused placed tray over it and complainant went out and gavepredetermined signal followed by raid and apprehension of accused.7.PW2 Ravindra Pralhad Patil, who acted as shadow pancha,deposed about visiting ACB office, meeting complainant, coming toknow about complaint, its contents, demonstration and procedure ofapplication of anthracene powder being given and he beingaccompanied complainant to the office of accused. According to him,complainant requested accused to start D.P., who thereafter, askedcomplainant whether remaining amount has been brought andfurther directed complainant to keep Rs.10,000/- on the table.Accordingly, complainant kept Rs.10,000/- on the table, upon whichaccused kept plastic tray on currency. Thereafter, complainant wentand gave predetermined signal and thereafter, raiding party cameand apprehended accused.8.PW3 Narayan Genu Misal, Chief General Manager, deposedthat he received papers from Chopda City Police Station, hepersonally perused and examined the papers and thereafter, issuedsanction to launch prosecution. {8} CRI APPEAL 32 OF 20119.PW4 Dattatray Karbhari Ghuge, Investigating Officer, whonarrated all steps taken by him since receipt of complaint tillapprehending accused, completing investigation, obtaining sanctionand thereafter, chargesheeting accused. ANALYSIS10.Prosecution has been launched on the premise thatcomplainant and other agriculturists approached accused, AssistantEngineer, MSEB with a request to install D.P. for want of sufficientelectric supply. According to prosecution, accused demanded illegalgratification of Rs.25,000/-. Initially, he accepted Rs.15,000/- andsubsequently while accepting remaining Rs.10,000/-, he wasapprehended. 11.Considering the nature of charge, obviously, testimony of PW1Madhukar, complainant and PW2 Ravindra, shadow pancha is ofrelevance and significance. Therefore, such evidence is carefullysifted. On doing so, it is noticed that according to PW1 Madhukar,complainant, he and other seven agriculturists decided to approachMSEB Office. In substantive evidence, he does not give the exactdate when they all visited office of accused at Chopda, rather he ismerely found to be deposing about going to the MSEB office in the {9} CRI APPEAL 32 OF 2011year 2006. According to him, hearing their request for D.P., accusedsaid that he will sanction the D.P. for them and for that they will haveto incur expenses. On enquiring about quantum, accused allegedlytold that Rs.25,000/- would be required. He further deposed thatwhen accused informed them about expenditure of Rs.25,000/- forD.P., they all agreed and even raised Rs.25,000/- by contribution.Further according to him, when he, one Balu Tayade, LaxmanTayade, approached accused to enquire about the proposal ofinstallation, he allegedly called them at his house. According to him,all this happened six months prior to lodging of complaint (i.e. 08-10-2007). This suggests that second visit to accused might havetaken place on 08-04-2007. According to him, they gave Rs.15,000/-to accused and assured to pay Rs.10,000/- after D.P. went functional.D.P. was installed in 2007 but there was no electricity supply and onbeing asked to that extent, accused allegedly demanded remainingamount of Rs.10,000/- and hence, complaint.12.From above discussion, it is emerging that exact dates onwhich complainant approached accused has not come on record. Hisvisit alongwith other agriculturists are said to be in 2006. D.P. is saidto be installed in 2007. Thereafter, as there was no electricity {10} CRI APPEAL 32 OF 2011supply, he again approached accused, but even dates of such visitsare not stated inspite of claiming to have paid Rs.15,000/- in thehouse of accused. Apparently no complaint is lodged prior to payingRs.15,000/- at the house of accused. Complainant himself speaks ofpaying remaining amount of Rs.10,000/- after electricity supplycommences. What can be gathered from above material is that infact thereis no demand from accused side to do the work. Inspite of otheragriculturists raising amount by contribution and were said to beaccompanying complainant for their joint work, only PW1 Madhukaralone has approached ACB authorities on 08-10-2007 and has lodgedcomplaint. Even so called other agriculturists are not examined byprosecution to fortify above assertion of demand of Rs.25,000/- orpart payment of Rs.15,000/- being made and further retainingRs.10,000/- to be paid later on supply of electricity. His testimonyshows that he and shadow pancha visited office of accused on 09-10-2007. 13.It is also worth noting that, complainant speaks aboutapproaching accused in 2007 after which D.P. was said to beinstalled, but when exactly accused was approached has not been {11} CRI APPEAL 32 OF 2011specified by him. He merely speaks of requesting connection ofelectricity supply and accused making demand of remainingRs.10,000/-. He directly speaks about approaching ACB on08-10-2007 and visiting office of accused on 09-10-2007. Histestimony is silent about accused asking him to visit his office withremaining amount on 09-10-2007. 14.Further interesting feature of his evidence is that, taintedcurrency was allegedly asked to be kept on table and there is no actof accepting the currency and pocketing it or keeping it in his ownpossession or drawer. Apparently amount is kept by complainant onthe table only. Role attributed to accused is that he placed plastictray over it. But there is no physical contact with tainted currency toassume acceptance. 15.In cross-examination faced by complainant, he admitted thatthe area in which D.P. was to be installed, was falling in thejurisdiction of one Adavad Unit and Choudhari was Jr. Engineer ofAdavat Unit. He claims ignorance about D.P. already sanctioned oneyear prior to lodgement of complaint. He admits about workers ofPioneer Company installing D.P. prior to lodging complaint on {12} CRI APPEAL 32 OF 201108-10-2007. With such answers, it is doubtful whether accused wasauthorized to sanction and get D.P. installed in a jurisdiction, whichfell in the domain of other Officers. Moreover, he has categoricallyadmitted in cross-examination that he had talked with accused afterwork of installation of D.P. and connection of wire was completed.He admits that during first visit when accused quoted amount ofRs.25,000/-, he realized that it was illegal and it was demanded asbribe and further admitted that still he did not lodge complaint withACB at that juncture. Surprisingly he further answered in cross-examination that at the relevant time of giving amount ofRs.15,000/- to accused, they were not knowing that the amountgiven was bribe. Therefore, complainant is contradicting himself.Rather he candidly admitted that they felt that they were givingamount for D.P. work and it was official amount. He is also unable togive exact dates on which visits were paid to the Office of accused.He also admitted that he himself had not talked with otheragriculturists, who were also interested in D.P. regarding lodging ofcomplaint at ACB office. He admitted that on the day of complaint,amount collected by contribution from other agriculturists was withhim only. He admitted that ACB authority instructed that amounthas to be given at any cost otherwise trap would fail. Such answers {13} CRI APPEAL 32 OF 2011shows that complainant was keen in paying bribe even when hisevidence is silent about demand being made by accused towardsbribe. 16.On reanalyzing evidence of PW2 Ravindra, shadow pancha, itis emerging that after visiting office of accused on 09-10-2007,accused was not present. This also shows that visit by PW1Madhukar and PW2 Ravindra was not on calling of accused to theoffice. He deposed that while in the Office, accused askedcomplainant to pay remaining amount and to keep it on the tablewhich was duly kept by complainant over which accused allegedlykept plastic tray. His examination-in-chief shows that raiding partymerely seized currency from the table and table cloth, plastic traywhich was allegedly placed by accused on tainted currency isapparently not seized. Had it been a case that plastic tray was keptover tainted currency, definitely there would have been traces ofanthracene to such part of the tray, which had come in contact ofcurrency. But evidence of shadow pancha does not show that traywas also seized. Even otherwise, his evidence shows that accusedhad not touched, accepted or pocketed the tainted currency. It isapparently lying on the table at the time of seizure also. {14} CRI APPEAL 32 OF 2011PW2 Ravindra, Pancha witness in cross-examination hasadmitted that after complainant went out of the cabin, accused didnot touch the currency note, rather accused was simply sitting onchair. Therefore, in strict sense, apart from no demand, there cannotbe said to be acceptance of bribe. Seizure of tainted currency isapparently not from possession of accused. Both PW1 Madhukarand PW2 Ravindra do not speak about accused touching the currencyor counting the currency. Learned Counsel for accused pointed outthat it is a case of either thrusting of planting bribe amount.Circumstances at spot lean in such direction. 17. It is fairly settled that there is fundamental burden onprosecution to prove both demand of illegal gratification as well asacceptance. Law has gone to the extent of holding that mere demandand possession is not sufficient and it is further expected ofprosecution to demonstrate or substantiate that the amount wastowards only and only illegal gratification for doing official work.Here prosecution’s own witness speaks about work of installation ofD.P. to be with other Officers and not accused. SUMMATION18.To sum up, complainant’s evidence is silent about date of visit {15} CRI APPEAL 32 OF 2011to accused or date of demand and exact date of payment of partamount. Visits are paid in 2006 and complaint is lodged in 2007.Complainant admits that part amount paid was not towards bribe butwas towards expenditure. Inspite of bribe amount having share ofother agriculturists, they are not party to the complaint. Therefore,such circumstances and above discussed quality of evidence, rendercase of prosecution weak.19.Perused the judgment under challenge. Learned trial Court hasappreciated entire prosecution evidence i.e. substantive evidence ofboth crucial witnesses i.e. PW1 Madhukar, complainant and PW2Ravindra, shadow pancha. The view taken by learned trial Court isthe possible view that could emerge on appreciation of such qualityof evidence. No illegality or perversity is brought to the notice of thisCourt in the impugned judgment. No case being made out on meritsto interfere, I proceed to pass following order : ORDER Criminal Appeal No.32 of 2011 stands dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT