High Court
Legal Reasoning
CriAppeal-154-2005+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 154 OF 2005WITHCRIMINAL APPLICATION NO. 1258 OF 2022IN CRIMINAL APPEAL NO. 154 OF 2005Mohammad Abdul Salims/o Mohammad Abdul Halim,Age 54 years, Occu. Service,R/o. Akhadabalapur, Tq. Kalamnuri,District Parbhani.… Appellant[Orig. Accused]versusThe State of Maharashtra..… respondent…..Mr. Shailesh S. Chapalgaonkar, Advocate for the Appellant.Mr. N. D. Batule, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 31.01.2024Pronounced on: 07.02.2024JUDGMENT : 1.Convict for offence punishable under Sections 7, 13(1)(d) r/w13 (2) of the Prevention of Corruption Act, 1988 [PC Act] is herebyassailing the judgment and order passed by Special Judge, Parbhanidated 28.02.2005 in Special Case No. 8 of 2002. CriAppeal-154-2005+-2- 2.PW2 Shivaji had approached the appellant-convict on19.10.2001 with a registered sale deed requesting convict, a Talathi,to give effect to the transaction by carrying out mutation entry. Butaccused did not certify it. Again on 31.12.2001 PW2 approachedaccused with similar request to carry out and certify mutation i.e.while accused was at Yeldari and that time accused demandedamount Rs.800/- for certification of mutation in the name of hisbrother Rajaram. Finally, after negotiations accused reduced theamount to Rs.400/-. On the same day, complainant paid Rs.150/- tothe accused and assured to repay the remaining amount of Rs.250/-on 09.01.2002. Thereafter PW2 approached Anti Corruption Bureau [ACB],Parbhani and filed complaint which was entertained and investigatedby PW4 after deploying PW3 Chandrakant as a pancha andaccordingly, pre-trap panchanama was drawn and accused wasapproached by complainant and shadow pancha as decided andaccused was apprehended while accepting amount and hence he waschargesheeted and tried by the court of Special Judge, Parbhani, whoon appreciating the oral and documentary evidence, after trial, heldcharges proved and recorded conviction, which is now assailed beforethis Court.
Legal Reasoning
CriAppeal-154-2005+-3- 3.Learned counsel for the appellant would submit that there is nocogent, reliable and convincing evidence. He pointed out that demandand acceptance is not proved. He took this Court through theevidence of prosecution witnesses and also answers given by them incross and submitted that evidence is not convincing. He submittedthat prosecution witness PW1, a Bank Official, has not supportedprosecution. That, learned trial court has only considered evidence ofpancha PW3 Chandrakant. Sanction is also without proper applicationof mind and is rather accorded in a mechanical way i.e. withoutverifying documents. According to him, mutation entry was alreadysanctioned and therefore there was no question of demand of moneyfor effecting any mutation entry. He pointed out that ACB authorityhas forcibly obtained signature on the statement of accused. Asessential ingredients for attracting none of the above offences wereavailable, conviction was not warranted, however learned trial courthas straightway accepted the case of prosecution and has recordedguilt and he prays to set aside the same.4.Opposing the above appeal, learned APP would submit thatthere is overwhelming evidence regarding complainant approachingaccused for getting mutation entry done which was official duty ofaccused who was Talathi, but he demanded bribe. That, part payment CriAppeal-154-2005+-4- was made and it was accepted and thereafter complainantapproached ACB. That, ACB authorities noted the complaint, laid trapby drawing both, pre-trap and post-trap panchanama. Complainant’sevidence as well as evidence of PW3 pancha is consistent and bothwitnesses are corroborating each other. There is demand as well asacceptance of illegal gratification. That, learned trial court haselaborately dealt and discussed the entire oral and documentaryevidence. Sanction is also after application of mind and as allnecessary ingredients for attracting charges were available, learnedtrial Judge has correctly appreciated the evidence and has committedno error whatsoever in convicting accused. Thus, he prays that, asthere is no merit in the appeal, the same be dismissed.5.Heard. Perused the papers. Record shows that in support of itscase, prosecution has examined following five witnesses:PW1 Fakirrao, a bank official, deposed about bank premisesbeing used by accused that day for doing his work by occupying atable it being bazar day and about police party conducting raid andapprehending accused. CriAppeal-154-2005+-5- PW2 Shivaji is the complainant and sum and substance of hisevidence is that his brother had purchased land and for effectingmutation entry, this witness had approached accused, a Talathi, andput up an application. His version is that accused had demandedRs.800/- for doing the needful but finally accused negotiated andbrought down the amount to Rs.400/-. Therefore this witness paidRs.150/- that time and assured to pay remaining Rs.250/- later onand thereafter, he approached ACB office, informed ACB authoritiesand lodged complaint. He further deposed that thereafter panchas were called andthey were made aware of the contents of the complaint and on duesatisfaction, panchas caused signature. He further deposed that hehad Rs.300/- and he handed it to police who returned Rs.50/-. Aftermaking some demonstration of application of anthracene powder, hewas instructed to pay the amount on demand. That, a pre-trappanchanama was drawn. Thereafter, he deposed that he himself andPW3 pancha both went towards Yeldari. It was a bazar day. Theyfound accused sitting on the varanda of the bank and on reachingthere, complainant asked accused whether extract of mutation and 7x 12 extract are ready, to which accused answered in affirmative andalso questioned whether amount was brought. Complainant claims CriAppeal-154-2005+-6- that he removed the tainted currency but accused asked him to placeit on his table and thereafter accused placed paper over it andthereafter complainant removed handkerchief, which was a signaland then police party entered the veranda and this witness wentoutside and after 30 minutes he was called back.PW3 Chandrakant was working as a clerk in District Employeeoffice Parbhani and he deposed about being called to act as a panchaand he agreeing and accordingly he was introduced to thecomplainant and was appraised about nature of the complaint. Thiswitness stated that he verified the contents of the complaint andthereafter caused signature over it. He further deposed that at ACBoffice, ACB authorities made some demonstration about application ofanthracene powder and examination of hands in Ultra Violate [UV]light and thereafter amount of Rs.250/- being handed over tocomplainant and he and complainant both going to Yeldari on09.01.2002 and in his presence accused was asked by complainantwhether documents are ready and accused answered in affirmativeand further he put up demand of money and thereupon accusedplaced the currency on the table followed by placing of paper byaccused over it and thereafter complainant giving signal upon whichpolice conducted raid and apprehended accused. CriAppeal-154-2005+-7- PW4 Rangnath Nagare, PI was the Investigating Officer whodeposed about all steps taken by him since lodgement of complaint byPW2 till apprehension of accused and seizure of currency notes.PW5 Jagdish Maniyar was the sanctioning authority.6.On re-analysis and re-appreciating the evidence of above fivewitnesses, it is emerging that PW2 complainant and PW3 pancha areconsistent about complaint being lodged, verification being done byshadow pancha, pre-trap panchanama being drawn and complainantcarrying tainted currency to be handed over on demand and on09.01.2002, accused, while sitting on the table, asked complainantwhether amount was brought and demanded the same, upon whichPW2 placed the tainted currency on the table over which accusedallegedly placed paper and on predetermined signal given bycomplainant, police came. 7.Both these witnesses have given detailed account of thesequence of events that took place i.e. PW2 approached accused on30.12.2001 and accused demanded Rs.800/- and finally broughtdown the bribe amount to Rs.400/- out of which Rs.150 being paid CriAppeal-154-2005+-8- and remaining Rs.250/- to be paid later on, and thereforecomplainant approached ACB authorities and lodged complaint andas per directions of ACB authorities, PW3 being called and on hisagreement to act as pancha, he accompanying complainant to Yeldarion 09.01.2002. 8.PW3 pancha had also narrated about the events that took placei.e. in the ACB office after verification of complaint, demonstrationbeing carried out, currency being handed over to complainant meantto be further handed over to accused.9.Though both these witnesses are subjected to extensive cross,except the suggestion that money was kept on the table when accusedhad bent down to gather documents, there is no other effective cross.In fact, such suggestion itself clearly shows that the meeting betweenaccused and complainant that day is not disputed. Accused was foundin possession of tainted currency notes. He was immediatelyapprehended. Nothing doubtful has been brought in the cross of PW2and PW3. PW3 is an independent witness. He has completelysupported prosecution. Both complainant PW2 and pancha PW3 arefound to be unequivocal about all the sequence of events which tookplace at ACB office till accused being apprehended. Therefore, as CriAppeal-154-2005+-9- there being nothing to disbelieve their version, there is no hesitationto hold their testimony as credible and trustworthy.10.PW5 Jagdish Maniyar was the sanctioning authority and he hasdeposed about receiving papers, he verifying the same and thereafteraccording sanction. Nothing adverse has been brought to show thatthere was non application of mind or sanction accorded mechanically,as is alleged before this court. 11.The offence of demand and acceptance is complete. There iscogent and reliable evidence to that extent. Accused had demandedillegal gratification to perform his official duty and he wasapprehended with the tainted currency. Therefore, pre-trappanchanama as well as post-trap panchanama were drawn. Complaintas well as both panchanamas were proved and exhibited. Allwitnesses had stuck up to their version. At no point their cross wasshaken.12.After going through the impugned judgment, this court hasfound that all evidence is dealt and discussed in detail and there isproper appreciation. The legal requirements for attracting the chargesare very much available. Therefore, findings which are reached are
Decision
CriAppeal-154-2005+-10- found to be supported by sound reasons. No case on merits being out,appellant fails and appeal requires to be dismissed. Hence, I proceedto pass the following order:ORDERI.The appeal is hereby dismissed.II.In view of dismissal of the Appeal, the application also standsdisposed of. [ABHAY S. WAGHWASE, J.]vre