High Court
Legal Reasoning
{1} CRI APPEAL 302 OF 2006IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 302 OF 2006Balasaheb s/o Bapurao HolkarAge: 45 years, Occu.: Service (Surveyor),T.I.L.R. Udgir, District Latur,R/o. At Chilka, Post. Taluka Ahmedpur,District Latur.….Appellant(Original Accused) VersusThe State of MaharashtraThrough Suryakant s/o Balbhim PatilAge: 41 years, Occu.: Police Inspector,A.C.B., Latur.…..Respondent (Original Complainant) …..Advocate for Appellant : Mr.Amit A. MukhedkarAPP for Respondent : Mr.S.M.Ganachari….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 08 APRIL, 2024 PRONOUNCED ON : 17 APRIL, 2024 JUDGMENT :- 1. Conviction recorded under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act (PC Act) vide judgment andorder dated 01-04-2006 passed by the learned Special Judge (ACB),Latur in Special Case (ACB) No.11 of 2003 is taken exception to byappellant by filing instant appeal. {2} CRI APPEAL 302 OF 2006 FACTS LEADING TO THE TRIAL 2. Accused Balasaheb Holkar, who was working as CadastralSurveyor in T.I.L.R., Latur, was approached by PW1 Narsing,complainant for carrying out measurement of land purchased by hissister-in-law Namely Chayabai, for fixing boundaries. It is the case ofprosecution that accused demanded Rs.2,000/-. On negotiations,figure was brought down to Rs.1,700/-. PW1 Narsing, Complainantpaid Rs.100/-, but thereafter, approached Anti Corruption Bureau(ACB) authorities and lodged report exh.32, which culminated intoplanning and laying trap and finally apprehending accused aftermaking demand and accepting the bribe amount. Consequently, after being chargesheeted for above Sections,accused was made to face trial before Special Judge (ACB), Latur andtried vide Special Case (ACB) No.11 of 2003. Learned Special Judge,on appreciating oral and documentary evidence, accepted case ofprosecution as proved and handed down conviction, which isprecisely assailed herein. SUBMISSIONSOn behalf of appellant :3. Attacking the prosecution case on the ground of false
Legal Reasoning
{3} CRI APPEAL 302 OF 2006implication, the learned Counsel pointed out that prosecution hasmiserably failed to prove its case beyond reasonable doubt. Hisprimary criticism is that owner of the land, who tendered applicationnamely Chayabai, sister-in-law of PW1 complainant, has not steppedin the witness box. He further submitted that evidence ofcomplainant itself shows that accused had refused to accept moneyon several occasions. He pointed out that apparently PW1 Narsinghas not specified and given details exactly on which date heapproached complainant and where and when there wasconversation for negotiations. He pointed out that even insubstantive evidence, complainant speaks of talking with his brother2-4 months after the alleged meeting with appellant. He pointed outthat during telephonic conversation, complainant himself admittedthat accused declined to accept the amount. That with suchevidence, it is his submission that there is no demand at all. Furtherhe pointed out that delayed complaint creates doubt and that it is afalse and fabricated story. 4.It is his further submission that DW1 Balasaheb BapuraoHolkar has candidly admitted that required procedure of carryingout measurement was duly done on 16-05-2003 and complied. {4} CRI APPEAL 302 OF 2006Thus, he submitted that when there was not work pending andmeasurement was already done and the purpose of complainant wasalready served, where is question of demanding illegal gratification.However, according to him, all such crucial aspects are notconsidered and appreciated by learned trial Judge. 5.It is his further submission that evidence of PW1 Narsing,complainant, PW4 Sachin, shadow pancha is not inspiringconfidence. Several attempts are made to pay bribe and the same isemerging from prosecution evidence. That apart, testimonies of PW1Narsing, complainant and PW4 Sachin, shadow pancha are full ofmaterial omissions and contradictions.He further pointed out that not only there is no demand buteven there was attempt to thrust money deliberately. That evenseizure of tainted currency is from the floor and it is his submissionthat there is no acceptance. Thus, learned Counsel conclude thatprosecution has miserably failed to establish demand as well asacceptance. Therefore, it is his submission that prosecution havingfailed to establish its case beyond reasonable doubt, it was a fit casefor granting benefit of doubt. However, according to him, there isimproper appreciation of evidence as well as law and so he prays to {5} CRI APPEAL 302 OF 2006allow the appeal by setting aside the impugned judgment. In supportof his case he relied on following decisions :(a)State of Maharashtra v. Ramlal Shriram Gajbhiye [2017 DGLS (Bom.) 256].(b)Bhimrao Savala Gaikwad v. State of Maharashtra, 2016 DGLS (Bom.) 766.(c)Dattatraya Rajaram Thaokar v. State of Maharashtra [2017 DGLS (Bom.) 641].(d)Vyankat Baburao Kailwad v. State of Maharashtra [2016 DGLS (Bom.) 208.(e)Judgment of this Court dated 06-06-2022 in Criminal Appeal No.48 of 2002 [Shri Raghunath Kasinath Mokal (since deceased through its legal heirs) Smt.Vandana and others v. The State of Maharashtra]. On behalf of State :6.In answer to above, learned APP pointed out that accused haddemanded Rs.2,000/- for measuring the land. It is pointed out thatafter negotiations, accused agreed to accept Rs.1,700/- and he alsoaccepted Rs.100/- paid by complainant. However, demand ofremaining amount was made for fixing boundaries. Learned APPpointed out that mere measurement is done, but unless boundariesare fixed, said exercise is incomplete. That accused did notdeliberately fix boundaries with sole intention of receiving bribe. {6} CRI APPEAL 302 OF 2006That there was complaint by PW1 Narsing. That PW4 Sachin,shadow pancha, independent authority was summoned and theyboth were instructed by the Investigating Officer. Accordingly,verification was done and thereafter trap was planned. That bothcomplainant and shadow pancha witnesses are consistent andlending support to each other. That there is demand as well asacceptance. That there are traces of anthracene powder on the righthand and right side pant pocket of accused on immediate arrest.That there is proper citation. That evidence of prosecution is fullproof and so supporting the conviction, learned APP prays to dismissthe appeal for want of merits. GIST OF THE PROSECUTION EVIDENCE IN TRIAL COURT7.PW1 Narsing Dattu Bhore at exh.31 deposed that wife of hisbrother Udhav purchased land from Haribhau and his brother Bharat,but they were doubtful about the area and so application formeasurement was filed with T.I.L.R., Latur and his brother depositednecessary charges. According to him, accused visited the land,measured it but did not fix boundaries for four days. Therefore, whenhe was approached, he was asked to pay amount of Rs.2,000/- andon being questioned about the charges, accused replied that it was {7} CRI APPEAL 302 OF 2006his private fees. Accused asked him to contact on phone afterarrangement of amount was made and on negotiation, accusedagreed to receive Rs.1,700/-. Therefore, Rs.100/- was paid byassuring to pay remaining balance and thereafter, PW1 Narsingcomplainant and his brother approached ACB and filed complaintexh.32. ACB authorities summoned pancha, apprised him aboutcomplaint and thereafter, both complainant and pancha wereexplained the procedure of trap. Accordingly, when he and shadowpancha approached accused in his office, accused questioned aboutpancha witness. When complainant was about to pay amount,accused asked him to stop and they went out to take tea. Near asweet mart shop at Shivaji Chowk, accused asked whether amountwas brought and when complainant held it before accused, accusedaccepted it and predetermined signal was given by complainant,which was followed by apprehension of accused.8.PW2 Suresh Neminath Ramdhave, a Surveyor working inT.I.L.R., Latur office explained the procedure of measurement andfixing boundaries, duties of Surveyor and drawing of map. Hedeposed about receipt of application in the name of Chayabai on08-04-2003 for measuring land and fixing boundaries. {8} CRI APPEAL 302 OF 20069.PW3 Narayan Dharma Sable, Sanctioning Authority deposed atexh.56 about receipt of papers from ACB, studying it, applying mindand according sanction.10.PW4 Sachin Vishwanath Jawalekar, shadow pancha deposedabout being called at ACB office on 20-08-2003, 22-08-2003, meetingcomplaint, hearing his grievance, verifying complaint exh.32 andACB authorities explaining both him and complainant procedure andgiving necessary instructions. According to him, he accompaniedcomplainant to the office of accused. According to him, whenaccused asked whether he has done the work, and when complainantattempted to remove money, accused asked him not to handoveramount there and took them outside the office i.e. toward ShivajiChowk. There accused asked to pay Rs.1,600/- brought by him, itwas handed over by complainant and accepted by accused followedby giving signal and raiding party apprehending accused.11.PW5 Murlidhar Lalu Apte is also an official of T.I.L.R., Latur,who on instructions, drew map and issued the same exh.71. {9} CRI APPEAL 302 OF 200612.PW6 Suryakant Balbhim Patil is the Investigating Officer ANALYSIS 13.The fundamental grounds of challenge are firstly, originalcomplainant Chayabai being not examined, secondly, work ofmeasurement was already done by accused, thirdly demand notproved cogently and fourthly, acceptance not proved cogently. 14.This Court has scrupulously and meticulously gone through thetestimonies of crucial witnesses i.e. PW1 Narsing and PW4 Sachin i.e.complainant and shadow pancha. The primary objection raised bylearned Counsel for the appellant is that here application formeasurement was by one Chayabai and her husband i.e. brother ofPW1 Nasing had paid measurement charges, but none of them areexamined and therefore, case of prosecution cannot be straightawayaccepted. This Court finds no force in the above submission. Though,,application is on behalf of Chayabai, apparently PW1 Narsing,complainant is her brother-in-law and his brother works at otherstation. Therefore, there is nothing unusual in tendering applicationon behalf of Chayabai. Entire transaction, demand as well as {10} CRI APPEAL 302 OF 2006acceptance is with complainant and therefore, mere failure toexamine Chayabai or her husband Udhav will not water-down theevidence of complainant. Having put the primary objection to rest, this Court proceeds tore-appreciate the evidence of firstly PW1 Narsing, complainant andthereafter, PW4 Sachin, shadow pancha. 15.Record shows that on application of measurement, date fixedfor measurement was 16-05-2003. PW1 Narsing, complainantdeposed at exh.31 that accused appellant did complete themeasurement, but he did not fixed boundaries, which are essential toearmark the area. According to complainant, when asked to thatextent, accused informed that boundaries will be fixed after fourdays. When he was approached after four days, at that time,appellant asked him to pay amount of Rs.2,000/- and being asked asto what the said amount demanded was for, appellant told that “itwas his fees”. Finally, on negotiation with PW1 Narsing, figure wasbrought down to Rs.1,700/- and according to complainant, accusedappellant accepted Rs.100/- for preparing documents. It is to benoted that there is no dispute that brother of complainant had paidrequired fees of Rs.1,000/- and this is not disputed by appellant. {11} CRI APPEAL 302 OF 2006Therefore, the above amount or Rs.100/- is apparently towardsadvance of the bribe. Exh.32 complaint has been lodged and PW1Narsing in para 5 has narrated the sequence of the events that tookplace when he was accompanied by PW4 Sachin, shadow pancha i.e.carrying tainted currency of Rs.1,600/-, which was balance meant tobe paid towards bribe. It does emanates from testimony of PW1Narsing that appellant had treaded cautiously finding shadow panchaPW4 Jawalekar continuously accompanying complainant. He hasrefused to accept the money in Office and seems to have takencomplainant outside for tea and on the way, he has attempted tomake shadow pancha wait . Precautions seems to have been taken ashe seems to have entertained suspicion about shadow pancha, butfinally seems to have believed the statement of complainant thatshadow pancha, his brother to be mentally ill and finally demandedand even accepted the tainted currency. On visiting cross-examination of PW1 Narsing, above aspectsare not rendered doubtful. Nothing adverse has been brought incross of complainant. Omissions are brought in para 8 about accusedasking complainant to meet him after four days, initially demandingRs.2,000/- and negotiating and bringing the figure to Rs.1,700/- anddeveloping contact on phone to accept the amount. In the {12} CRI APPEAL 302 OF 2006considered opinion of this Court, the above omissions are notmaterial because already Rs.100/- out of Rs.1,700/- is alreadyaccepted and for fixing boundaries, Rs.1,600/- is accepted. His righthand on examination revealed traces of anthracene powderconfirming acceptance. Resultantly, here there is both demand aswell as acceptance of illegal bribe for completing the process ofmeasurement by fixing boundaries.16.On sifting evidence of PW4 Sachin, an independent witness, heis found to be lending complete support to the testimony ofprosecution as well as complainant. He deposed about being calledin ACB office, introduced to complainant, hearing his narrative ofdemand, verifying the complaint, endorsing it, being party to thedemonstrations, instructions given by ACB authorities andaccompanying accused, who was equipped with tainted currency tobe paid on demand. In para 3 of his substantive evidence, he hasnarrated about accompanying complainant for visiting office ofT.I.L.R. at 10:35 p.m., personal meeting and greeting betweencomplainant and accused. He has specifically reiterated about hisown details being questioned by accused with complainant. Thataccused refused to accept money in Office and made both this {13} CRI APPEAL 302 OF 2006witness and complainant for going out for tea. He also like PW1Narsing deposed that accused repeatedly asked complainant to makethis witness wait at a place and not to accompany them, complainantinforming about his mental illness to accused, thereafter, accused notobjecting and finally, in his presence, accused putting up demand andeven accepting it. He also like complainant stated that accusedaccepted the money with his right hand and thereafter, signal beinggiven by complainant and raiding party completing the remainingjob, and right hand of accused revealing traces of anthracene powder.Therefore, this witness is party to both demand as well asacceptance. To sum up, evidence of PW1 Narsing and PW4 Sachin confirmsboth demand as well as acceptance of bribe. Testimonies of boththese witnesses have remained unshaken inspite of lengthy cross. 17.PW3 Narayan Dharma Sable, Sanctioning Authoritycategorically deposed that on receipt of papers from ACB, the samewere studied and on application of mind, sanction was accorded.Therefore, there is valid sanction also. Consequently, all necessaryrequirements for attracting the charges are apparently and patentlyavailable in the prosecution evidence. {14} CRI APPEAL 302 OF 200618.The fundamental ground raised in appeal about non-examination of Chayabai and Udhav i.e. sister-in-law and brother-in-law of complainant is already held in aforesaid paragraph to beinsignificant by assigning reasons. As regards to second ground regarding thrusting is concernedalso has no force because already there is acceptance of part amountand accused has apparently taken complainant and shadow panchaoutside the Office to receive amount in isolation. Both complainantand shadow pancha are in unison deposing about demand beingmade and amount being accepted in right hand. Traces to the righthand as well as to the right pant pocket belies and falsifies thedefence of thrusting.19.Perused the citations placed on record. Facts in those cases areapparently distinct. The ruling A.Subair v. State of Kerala [(2009) 6 SupremeCourt Cases 587] is also of no avail because in that case maincomplainant with whom demand was made was not examined. Hereit is not so. Here demand is specifically with PW1 Narsing, who hadapproached accused for measurement on application of his sister-in- {15} CRI APPEAL 302 OF 2006law. Entire transaction is with PW1 Narsing. Demand is put to him,negotiations to bring down the amount is with him. Resultantly, evensaid ruling does not come to the aid of accused.20.Perused the judgment taken exception to. In the consideredopinion of this Court, there is no error or infirmity in appreciation oftestimonies of PW1 Narsing and PW4 Sachin. No perversity orinfirmity is brought in the appreciation of evidence, findings andreasons so as to interfere. No case being made out on merits, Iproceed to pass following order : ORDER Criminal Appeal No.302 of 2006 stands dismissed. ( ABHAY S. WAGHWASE ) JUDGE 21.On pronouncement of this Judgment, learned Counsel for theappellant prays for six weeks time to surrender so as to enable him toapproach the Hon’ble Apex Court.22.Learned APP strongly opposes the same. {16} CRI APPEAL 302 OF 200623.Considering the above request made by learned Counsel for theappellant, six weeks time is granted for the appellant to surrender. ( ABHAY S. WAGHWASE ) JUDGE SPT