Shah Bazar, AurangabadDist. AurangabadVERSUSState of Maharashtra...RESPONDENTMr v. D. Sapkal, Senior
Legal Reasoning
(1)904 criapl362.05IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.362 OF 2005Syed Shaukat Ali S/o. Syed Akhtar Ali,...APPELLANTAge-47 years, Occu-Junior Engineer, AurangabadMunicipal Corporation,R/o. Shah Bazar, AurangabadDist. AurangabadVERSUSState of Maharashtra...RESPONDENTMr. V. D. Sapkal, Senior Advocate i/b Mr. S. R. Sapkal, Advocatefor the appellant Mr. K. K. Naik, APP for the respondents/StateCORAM:KISHORE C. SANT, J.RESERVED ON:14th AUGUST, 2024PRONOUNCED ON:20th SEPTEMBER, 2024JUDGMENT1.The original accused, convicted for the offencespunishable under sections 7, 13 (1)(d) and 13(2) of thePrevention of Corruption Act, has approached this courtchallenging the judgment and order dated 13-05-2005 passed inSpecial Case No. 26/2001, by the learned Special Judge,Aurangabad. By way of impugned judgment he is sentenced to1 of 18 (2)904 criapl362.05suffer RI for a period of two years with fine of Rs.2500/- and indefault to suffer SI for a period of six months for each of thesections.2.Prosecution was launched against the appellant withallegations that the appellant while working as Junior Engineerin the Assessment Section of Municipal Corporation haddemanded bribe of Rs.8000/- for assessing house tax at a lowrate. The complainant /PW-2, therefore, had approached theAnti Corruption Bureau (for short ‘ACB’).3.It is this case that the complainant constructed ahouse. After completion assessment of tax was to be made. Hetherefore, requested the appellant to assess the tax at low rate.The accused, at that time, demanded an amount by assuringthat he would levy the tax at low rate. Alleged demand wasmade on 02-08-2001 telling that the taxes are increased from01-04-2001 and the complainant will have to pay tax ofRs.27000/-. If amount of Rs.8000/- is paid, he would assess tax2 of 18 (3)904 criapl362.05as per the old rates. In the office of the ACB, the complainantwas told to give that amount of Rs.8000/- on 03-08-2001 at hishome at the time of measusrement. On the said date, trap wasdecided. It is alleged that at that time accused demanded andaccepted the amount of Rs.8000/-. He was caught hold redhanded. After the investigation and filing of charge-sheet theaccused was tried. The court as stated above held him guilty andpassed the impugned order.4.Prosecution in support of its case has examined fivewitnesses. PW-1 is the sanctioning authority, PW-2 is the De-facto complainant, PW-3 is the shadow witness, PW-4 is theRecovery Officer from the Tax Department, PW-5 is theInvestigating Officer. Accused examined one defense witness i.e.Yamaji Abhang from the Tax Department.5.PW-2-the complainant stated that his mother SushilaPatil owns a house at Rajnagar. She sought permission toconstruct/renovate house on 30-03-2000. House was3 of 18 (4)904 criapl362.05constructed. The complainant then wanted a completioncertificate. For that purpose for levying taxes, he met theaccused. The accused demanded an amount. On that PW-2lodged a complaint to the ACB. The amount was decided to bepaid at the house of the complainant. Therefore, it was decidedto lay a trap at the house of complainant. Pursuant to planraiding party went to the house of the complainant. Panch-Nagre-PW-3 went to the house of the accused alongwithcomplainant. The Investigating Officer and one constable sat inanother room in the house of the complainant, whereas threepersons from the raiding party were standing around the house.6.After sometime the accused arrived at the house. Oncoming to the home, the complainant asked the accused as towhere the amount of Rs.8000/- to be paid. On that accused toldthat he has properly fixed the amount and told that if amount ispaid, taxes would be charged as per old rate and that wouldsave the money. Thereafter, accused carried measurement of thehouse. After that he demanded amount of Rs.8000/-. The4 of 18 (5)904 criapl362.05complainant paid the amount to the accused and gave signal.The raiding party came in the room on receiving a singnal andasked the complainant to go to the other room. After 45 minuteshe was called. His fingers of right hand and left shirt pocketwere tested under the ultra violet lamp which shown blueshining.7.In the cross-examination this witness accepted thathouse was constructed in two phases. He also accepted that notax was assessed on the five rooms constructed in the secondphase. Thus making of the report, he got completion certificatewhere the accused was not concerned. It is his brother who usedto go to the office of the Municipal Corporation for gettingpermission, completion certificate etc. The application forassessment of tax was made after February, 2001. He could nottell as to when the application was submitted. He could not tellabout charges of temporary water connection are more thanpermanent water connection.5 of 18 (6)904 criapl362.058.He further admitted that a notice was received on21-08-2001 showing that since 06.06.1993, water charges werebeing paid as temporary water connection. A notice wasreceived on 03-05-2001 where the amount was shown to beRs.49,200/- towards temporary water connection. He could nottell as to whether some employee of the corporation hadcollected Rs.10,000/- to clear the dues and settle the matter andto convert the temporary connection into permanent. Heaccepted that one Sathe was present at the time of incident oftrap. At the time of trap, he asked for a receipt from the accused.Accused had told him that he would get the receipt after Sundayor Monday on getting signature from the Officer & thecomplainant need not worry. Though he denied that amount ofRs.8000/- was towards tax. He accepted that amount of tax wasaround Rs.8000/-.9.So far as PW-3 is concerned, he deposed as to howhe was called to act as panch and about actual trap. He deposedthat on coming in the room, the accused told Patil to obtain a6 of 18 (7)904 criapl362.05signature of the mother of the complainant on the receipt. Thecomplainant got the signature of his mother towards receipt ofmap. The complainant then took out tainted notes. The accusedcollected said notes. The complainant then asked the accusedabout receipt, on which, the accused told that he would getreceipt within 2-4 days. On getting amount, the raiding partycaught hold the accused. He deposed about further procedure.10.In the cross-examination he stated that when theaccused came alongwith Panch Sathe the complainant offeredhim water. After arrival of the accused, the complainant went togive a signal after half an hour. The accused also had asked thecomplainant as to whether he has paid the taxes of the adjoiningplot. On that complainant shown him receipt in respect ofadjoining plot also. At the time of all these events Sathe waspresent. He also told that accused collected the amount and onthat the complainant asked when receipt would be passed. Healso gave admission that before entering into the witness-box,he was shown the panchanama to recollect the contents of7 of 18 (8)904 criapl362.05panchanama etc.11.PW-4 in his evidence stated that he had receivedapplication from mother of the complainant for assessment oftaxes of her house. The accused had not submitted assessmentreport to him till trial. The accused was not authorized to collectthe amount towards payment of tax and there was no scheme inAugust, 2001 to recover the taxes. In the cross he accepted thatthe taxes for the house of the complainant Rs.8167/- were due.He also accepted that there is no restriction on the Municipalemployees to collect the money of the house taxes.12.PW-5 the Investigating Officer stated about theprocedure followed for laying the trap after receipt of complaintof the complainant. He proved the panchanama and otherdocuments. In the cross-examination, he accepted that ittranspired during investigation that the complainant had askedas to when accused would give the receipt for the amount. Hedenied that the amount was given towards taxes. He accepted8 of 18 (9)904 criapl362.05that he did not verify the name of Municipal employee who usedto accept the money and pass receipt. Nothing more is taken inthe cross.13.The defense of the accused was that amount wastowards house taxes and it was usual practice of the Municipalemployees to collect the amount of taxes etc from the people. Insupport of his case, he examined defense witness who wasserving as Zonal Officer in Zone No.6 in which the house of thecomplainant comes. He stated that the complainant had been tohis office after receipt of notice Exh.18. This notice was inrespect of arrears of taxes. This witness told the complainantthat till complainant pays the house taxes and obtains thecompletion certificate, he has to pay water charges as temporarywater connection. On that the complainant asked this witnessfor assessment so he can deposit the house tax. It is upon thatthis witness instructed the accused to inspect the house of thecomplainant for the purpose of lavying taxes. He also deposedthat complainant used to recover taxes while discharging his9 of 18 (10)904 criapl362.05duties. After depositing the said amount, he used to give receiptsto the house owners, after getting same signal from the cashier.In the cross-examination, it is taken that there are otheremployees for recovery of taxes. PW-4 was the Tax CollectionOfficer.14.Thus on taking this court through the evidence thelearned Senior advocate for the appellant submits that amountwas not an amount of bribe, but it was of taxes. In the entiredeposition of the complainant and shadow witnesses, there is noword as bribe has come for the said amount, in fact the amountwas simply forwards house taxes. From PW-4, it is taken thatamount of tax was Rs.8167/-which matches with the amountgiven to the accused. Accused was accompanied by one moremunicipal employee namely Sathe. His presence is duly proved,still statement of Mr. Sathe is not recorded by the InvestigatingOfficer and he is not examined before the court. There was ademand of receipt by the complainant which clearly shows thatamount was towards taxes of legal dues. PW-4 accepted in the10 of 18 (11)904 criapl362.05cross-examination that there is no restriction on any of theemployees from collecting the amount of tax from the people.PW-3 has also stated that on making payment of the amount, thecomplainant asked for receipt for the said amount. Had theamount been towards alleged bribe, the complainant would nothave asked for a receipt. From the evidence of defense witness,he submits that it is clearly brought on record that thecomplainant was in arrears of house taxes since long. Afterreceipt of notice demanding arrears of taxes towards temporarywater connection, he met a superior officer of the accused in thecorporation, where he realized that unless assessment is doneand completion certificate is granted, his water connectionwould not be treated as regular water connection. Till such time,the rate for water connection charges, would be as applicable tothe temporary water connection at higher rate. It has come onrecord that accused was sent for measurement of the house ofthe complainant. The complainant has given the amountwithout there being any demand from the accused.11 of 18 (12)904 criapl362.0515.So far as sanctioning authority is concerned, hesubmits that sanctioning authority could not prove that sanctionwas granted by application of mind. There is nothing on recordto show that all the documents were produced before thesanctioning authority while giving the sanction. The sanctioningauthority had no power to accord sanction as approval ofstanding committee is necessary for removal of permanent class-III employees. No proposal was sent by the MunicipalCommissioner to the standing committee seeking approval toaccord the sanction. He could not tell how many papers he hadreceived while obtaining sanction. Submission is therefore, thatprosecution has failed to prove that a sanction was validsanction. He submits that Exh.18 i.e. a notice is on recorddemanding Rs.49,200/- towards temporary water connection.Thus, there is ample evidence to show that amount was towardsproperty taxes. 16.In support of his submission the learned senioradvocate relied upon following judgments:12 of 18 (13)904 criapl362.051. 2002 Bombay CR (Cri) 661 Tryambak Lilaji Binnar Vs State of Maharashtra2. 2019 (1) Mh.L.J. Cri 355 Nivrutti Ganpati Sadekar Vs State of Maharashtra3. 2015 (3) Mh.L.J Cri 424 Suresh Purushottam Ashtankar Vs State of Maharashtra and another4. 2006 (2) Mh.L.J. (Cri) 1210 Sharad Namdeorao Shirbhate Vs State of Maharashtra17.Learned APP opposed the appeal stating thatprosecution has clearly established its case. Defense taken is notprobable. Sanctioning authority had granted sanction on goingthrough all the papers in the proposal and after satisfying itselfof the fact that case is made out for grant of sanction. Aboutdemand, it is submitted that amount was demanded forassessing tax of the house as per old rates. In the evidence ofPW-3, it has come that there was bargain to reduce the amount.This itself shows that amount was towards bribe. There is noquestion of reducing amount of taxes. Had it been the amount of13 of 18 (14)904 criapl362.05tax, it would have been paid in the office. He also submittedwritten notes of argument.18.This court has gone through the evidence andsubmissions of the learned senior advocate and learned APP. Sofar as judgments relied upon by the appellant are concerned,those are discussed here. In the case of Trimbak Lilaji Bankar(supra) after payment of amount towards alleged bribe thecomplainant had asked for receipt of the said amount. This courtheld that had the amount been towards bribe, there was noquestion to ask for a receipt. On that count, the court held thatamount was not amount towards bribe. In the case of NivruttiGanpati Sadekar (supra), the court considered that demand ofillegal gratification was ‘sine qua non’ to establish an offenceunder the provisions of the Act. Court has to see that demandand acceptance of the amount both are satisfied and it is onlythereafter the court can invoke the presumption under Section20 of the Act. Before asking the accused as to how he receivedthe amount, foundational facts must be established by the14 of 18 (15)904 criapl362.05prosecution. In this case, the court discarded the evidence of oneof the witnesses i.e. sanctioning authority for the reasons thatbefore stepping into the witness box, he has perused the file thatwas with the APP and it is, thereafter, he deposed before thecourt. The court held that there is nothing wrong in the witnessrefreshing his memory but that should be done before the courtand not out side the court. Witness has to depose by recollectingfacts by his memory.19.Thus, considering all the evidence and judgments inthe present case what transpires is that there was a demand ofRs.49,200/- towards arrears of water connection charges. Anotice was therefore issued by the corporation. The complainantwent to the office of corporation to make enquiry to that effect.In the corporation, he was told that unless completion certificateis obtained, the water connection will be treated as temporarywater connection and he will have to pay the tax at higher rate.It was, therefore, necessary to get the completion certificate toconvert temporary water connection into permanent. For getting15 of 18 (16)904 criapl362.05the completion certificate, it was necessary to get measurementof the house done and to get the taxes assessed. Thecomplainant, therefore, had made an application to thecorporation. The concerned officer therefore directed theaccused to go and carryout measurement of the house. Theaccused alongwith one other employee Mr. Sathe went to takemeasurement of the house for the purpose of assessing thetaxes. There talks were about rate of taxes and the measurementand in that context discussion was about the amount. Thecomplainant handed over the amount to the complainantwithout any specific demand. On handing over the amount, heasked for receipt for the said amount. This fact clearly showsthat the complainant was expecting a receipt of the amount.20.PW-4 though stated in his evidence that for recoverythere is other staff, however, in the cross, he accepted that thereis no prohibition from collecting the taxes by the employees ofthe Corporation from the tax payers. In this context, the defenseevidence needs to be considered. The defense witness is a16 of 18 (17)904 criapl362.05Superior Officer of the accused working in the corporation. Hestated that usually the employees collect the taxes whiledischarging their duties. He also stated that he has sent theaccused for measurement to the house of the complainant withone more employee Mr. Sathe of the corporation. This employeeMr. Sathe was present with the accused at the time of allegedincident. He is still not examined in the court. Panch witness hasalso not stated that amount was demanded by the accused at thetime of trap. In the present case, previous demand is not proved.There is no demand verification report/panchanama. From thediscussion of the judgments, it is clear that when witness isgiven the material to refresh his memory before entering intothe witness box, his evidence cannot be relied upon. In thepresent case, it has come on record that sanctioning authoritywas given documents to refresh his memory before entering intothe witness box. Sanctioning authority was thus not deposingfrom its memory, but was deposing after going through thepapers.21.Considering all above, certainly a doubt is created17 of 18
Decision
(18)904 criapl362.05about the case of the prosecution. This court has no hesitation inholding that the prosecution has failed to prove the offencebeyond reasonable doubt. Assuming the argument of the learnedAPP is correct, at the same time, it has come on record that thecomplainant had asked for a receipt of the amount whichcertainly creates doubt about prosecution story. Therefore, thiscourt finds that prosecution has failed to prove the offencebeyond reasonable doubt. This court is, thus, persuaded to allowthe appeal by quashing and setting aside the impugnedjudgment and order dated 13-05-2005 in Special Case No.26-2001 of conviction & imposing sentence on the applicant. Theappellant stands acquitted of the charges under Sections 7, 13(1)(d) read with section 13 (2) of the Prevention of CorruptionAct. Amount of fine, if paid, be refunded to the appellant.22.The appeal stands disposed off.23.Interim application, if any, stands disposed off. [KISHORE C. SANT, J.]VishalK/904 criapl362.0518 of 18