High Court
Legal Reasoning
CriAppeal-636-2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 636 OF 2005Ramesh S/o Digambarrao Zadgaonkar,Age : 52 years, Occu. Service as Talathi,at Sajja Irlad & Addl. Charge ofSajja Manwath, Tq. Manwath,District Parbhani.… Appellant[Orig. Accused]VersusThe State of MaharashtraThrough Anti Corruption Bureau,Parbhani.… Respondent…..Mr. S. B. Bhapkar, Advocate for the Appellant.Mrs. Ashlesha S. Deshmukh, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 07.10.2024Pronounced on: 14.10.2024JUDGMENT : 1.In the instant appeal, there is challenge to the judgment andorder dated 23.08.2005 passed by learned Special Judge, Parbhani inSpecial Case No. 4 of 2005 recording guilt for the offence punishableunder Sections 7, 13(1)(d) r/w (2) of the Prevention of CorruptionAct, 1988 [P.C. Act]. CriAppeal-636-2005-2- IN BRIEF, CASE OF PROSECUTION IS AS UNDER2.Brother-in-law of PW1, namely Gangadhar Gaware, had appliedfor loan from Annabhau Sathe Vikas Mahamandal. Said corporationhad insisted for documents including 7/12 extract of two guarantors.Gaware being illiterate and as was a private driver moving to distinctplaces, he executed power of attorney in favour of PW1 Kiran Gawlii.e. his sister-in-law, to complete the formalities for loan. In thatbackground, PW1 approached appellant - a Talathi on 25.08.2004and requested him to issue 7/12 extract. For doing the needful,according to prosecution, accused demanded Rs.1,000/- to endorsecharge on the 7/12 extract of Gaware. Finally, complainant agreed topay Rs.500/-, however, as she was not willing to pay bribe, shelodged report Exhibit 19 with PW4 Prakash Jadhav, P.I. (ACB). 3.Said officer of ACB planned and arranged trap and summonedpancha PW2 Parwatibai. Both, complainant and pancha, wereexplained the procedure of trap. Complainant and pancha approachedaccused at his office. There, complainant questioned about 7/12extract, upon which he asked whether amount was brought.Complainant took out tainted currency, held it before accused.Accused also issued 7/12 extract and they exchanged document 7/12
Legal Reasoning
CriAppeal-636-2005-3- extract and currency simultaneously, after which pre-determinedsignal was given by complainant and trap was executed. PW4 lodgedreport, investigated crime and chargesheeted accused, who was madeto face trial before learned Special Judge in Special Case and onappreciating all evidence, accused was held guilty and came to beconvicted.Such judgment and order of conviction is now taken exceptionto by filing instant appeal.SUM AND SUBSTANCE OF THE EVIDENCE ON RECORD4.The role and states of the witnesses examined by prosecution insupport of its case, and the sum and substance of their evidence is asunder:PW1Kiran Gawli is the complainant. In her evidence at Exhibit 16,in para 3, she has deposed as under:“3.On 25/8/04 I met the accused in his office at Manwat toget the 7/12 extract of Shri Jondhale. I demanded him the7/12 extract of field Gat No.184 of Shri Jondhale. He asked mefor what purpose I wanted it. I told him that my brother-in-lawShri Gavare had submitted application to get a loan of CriAppeal-636-2005-4- Rs.1,00,000/-, and hence I need the 7/12 extract. Accused thendemanded me Rs.1,000/- to keep the charge on 7/12 extract. Itold him that Shri Gavare is a poor person and he cannot payhim Rs.1,000/-. He then told that as we were to getRs.1,00,000/- as loan then there should be no hitch to pay himRs.1,000/-. He told me to pay Rs.1,000/- and collect 7/12extracts. I at last agreed to pay him Rs.500/- after a day. Hethen told me that give him Rs.500/- and collected the 7/12extract. I was not willing to pay him any amount of bribe.There were no transactions between us. On 26/8/2004 I thenlodged a complaint with Shri. Jadhav, Dy.S.P.Parbhani. I amnow shown the said complaint. It bears my signature. Thecontents thereof are true and correct. It is at Exh.19.”Further, in para 5, she deposed that :“5.We then marched by a jeep to Manwat. We reached atmain road Manwat at 14.10 hours. Smt. Chauhan and myselfthen marched towards the office of accused. Shri Jadhav andother members followed us. At about 2.30 p.m. we entered theoffice. He resides behind his office. We found that the accusedwas sitting there in chair. He was alone. We wished him andoccupied two chairs opposite him. He then called one boy andoffered us water. I then asked him as to what had happened of7/12 extract. He then asked me whether I had brought theamount. I said yes. I again say that accused asked me whether Ibrought Rs.500/- and I said yes. He then took out a registerand prepared the 7/12 extract of the field of Yeshwant MesajiJondhale. He signed it and sealed. Accused then demanded meRs.500/-. I then took out the tainted notes and held it beforehim. I collected 7/12 extract by left hand. He collected thetainted notes by his right hand and kept it in his left shirtpocket. I stayed for two minutes and came out the house andthen transmitted the agreed signal.” CriAppeal-636-2005-5- In her relevant cross, which commences from para 8, sheanswered that she had submitted relevant documents with thecorporation except 7/12 extract of surety and that she was toldto submit 7/12 extract of two sureties. She also admitted thatshe was told that they would send the 7/12 extract of theagriculturists to record charge on the field. That, previously shehad submitted extract of one Laxmibai Khedkar and she hadalso collected it from accused. She answered that while issuing7/12 extract of Laxmibai, accused had recorded chargethereon. She admitted that before recording charge, mutationhas to be recorded and that, on 17.08.2004 she had tendered7/12 extract of Laxmibai indicating charge. She admitted thatshe was knowing the necessity to record charge on 7/12 extractof sureties. She also admitted that Gaware had got the loan ofRs.1,00,000/-. She admitted that on Exhibit 18, there is nomention to keep charge of Rs.1,00,000/- on the field ofJondhale and she had not intimated him about it. She admittedthat she did not request accused on 25.8.2004 to record chargeof Rs.1,00,000/- on the 7/12 extract of Shri Jondhale. In para11 of her cross, she answered as under:“On 25/8/04 I firstly met accused for 7/12 extract. It wasabout 4 p.m. Power of attorney Exh.18 was written at thehouse of Shri. Jondhale. I again say that I did not met accusedat 4 p.m. but met him at 7 p.m. I never had met accused before25/8/04. It has never so happened that I requested accused tosupply the 7/12 extract of Shri. Jondhale on recording thecharge thereon. It has never so happened that accused told methat unless a person consents to record the charge in the 7/12extract and unless there is a letter of Mahamandal for keepinga charge on 7/12 extract, he cannot issue it. I was knowing CriAppeal-636-2005-6- that to record a charge a consent of field owner was necessary.I got this power of attorney of Shri Jondhale for his suchconsent.”In para 12 she answered that she was not knowing thatJondhale was in arrears of cess taxes to the tune of Rs.510/-with effect from 1998-1999 onwards and that, she did notknow whether accused was demanding those charges of ShriJondhale. Rest all suggestions are denied. She further answeredthat on 25.8.2004 in the morning, she carried complaint in themorning to the ACB office, but she was told to come on thenext day as none of the officers were present and therefore, sheagain went on 26.08.2004 and handed over written complaint. PW2Parwatibai, shadow pancha, initially stated that she visited ACBoffice on 26.08.2004, she agreed to act as pancha, she wasintroduced to complainant, she went through her complaintand then caused signature over it i.e. Exhibit 19. Then shedeposed about pre-trap panchanama Exhibit 25 being drawn,i.e. after necessary instructions and demonstration given byPW4. In para 3, regarding the actual trap, she deposed asunder:“3.We then marched by a jeep to Manwat. We reachedthere at 2.30 p.m. We got down on road. Smt. Gawli and methen marched on feet towards the office of Talathi. The othermembers of the staff followed us. We then entered the office ofTalathi. Talathi then came there. We were offered water. Mrs.Gawli then demanded 7/12 extract to Talathi. Talathi then toldMrs. Gawli whether she has brought what was told yesterday.Talathi did not disclose the details of that thing. Mrs. Gawli CriAppeal-636-2005-7- said ‘Yes’. Talathi then prepared a 7/12 extract and handedover it to Mrs. Gawli. Smt. Gawli then took out the taintednotes and offered it to Talathi. Talathi collected those notes byhis right hand kept it in his shirt pocket. Smt. Gawli then wentout of the office. Shri Jadhav, Shri Kendre and other membersof staff came there.”In para 6, she further deposed as under :“6.I again say that accused Talathi had told Mrs. Gawliwhether she brought Rs.500/- as told yesterday. She said ‘Yes’.After preparing the 7/12 extract accused again demanded herRs.500/-. On which Mrs. Gawli handed over me the taintednotes. He then handed over 7/12 extract.”While under cross, she admitted that during their visit tothe office of accused, accused had returned after attendingmeal. She answered that one person was already sitting on thecarpet and he was also present there when police caught holdof accused. She had denied all suggestions about complainanttelling accused to hand over 7/12 extract by recording chargeand he refused to issue the same. She denied suggestion thataccused asked complainant whether she brought amount ofnon-agricultural taxes and complainant handed it over andthereafter receipt of Rs.510/- was issued. Rest is all denial.PW3Madhukar Choudhari was the sanctioning authority, whodeposed at Exhibit 29 about receipt of investigation papersfrom ACB, Nanded, studying the papers and according sanctionwhich he identified to be at Exhibit 31. He also deposed thataccused had sent a representation Exhibit 32 and the same to CriAppeal-636-2005-8- be considered before according sanction. He further deposedthat in para 5 of the sanction order, name of complainant wasmistakenly written as Suresh Rupsing Rathod. While under cross, he answered that he dictated sanctionorder and at that time he was having case papers. He admittedthat there was mistake regarding name of complainant in para5 of the order. He also admitted that complaint revealed thatthere was demand of Rs.1,000/-. He was questioned aboutappointment by Assistant Collector, powers of Sub-DivisionalOfficer.PW4P.I. (ACB) Prakash Jadhav was the Investigating Officer.SUBMISSIONSOn behalf of the appellant :5.Criticizing the judgment and submitting that prosecution failedto prove the charges beyond reasonable doubt, learned counsel forthe appellant had taken this Court through the entire testimony ofcomplainant PW1 and according to him, her entire testimony is false,afterthought and is not reliable for various infractions in her evidence,which, according to him, are brought in her cross. At the outset, hepointed out that according to this witness, she had tendered writtencomplaint, and she deposed to that extent in her testimony also, butPW4 Investigating Officer testified about he lodging complaint on CriAppeal-636-2005-9- narration of PW1. Therefore, according to learned counsel, in absenceof any written complaint on behalf of PW1, of which she testified inthe witness box, the very complaint allegedly noted by PW4Investigating Officer comes under shadow of doubt. 6.He further submitted that this witness PW1 came with a casethat she was authorized by her brother-in-law Gaware to do thepaperwork of sanction of loan, but she was not authorized to lodgecomplaint by Gaware. Learned counsel pointed out that it is also notclear as to whether Gaware was aware that any bribe was demanded,as Mr. Gaware himself has not been examined to accept her versionthat she was authorized to act on behalf of him. According to learnedcounsel, when it was a serious matter of paying bribe, testimony ofGaware was very crucial, but investigating machinery has notexamined him in support of case about PW1 acting on his behalf tonot only do the office work, but also to lodge complaint or pay bribe.Therefore, he seriously questions the credibility of testimony of PW1.7.He next submitted that testimony of PW1 is not reliable foranother reason as, in one breath she has stated that she approachedaccused on 25.08.2004 and she alleges demand of Rs.1,000/- to issue7/12 extract with charge, but complaint is not lodged on the same CriAppeal-636-2005-10- day, and according to learned counsel, her testimony that, in spite ofher visit on 25.08.2004, her complaint was not entertained for wantof presence of officer, is not believable. Learned counsel pointed outthat in para 5, PW1 complainant merely spoke about accused askingher whether she brought money. Learned counsel pointed out thatthere is no clear phrasing about illegal gratification or demand fordoing any work. At this juncture, learned counsel pointed out thatdefence of accused is that 7/12 extract on which charge was to be putup i.e. 7/12 extract of Jondhale, he was at arrears towardsagricultural cess and such amount was demanded and so-calledconversation between PW1 and accused, which she testified in para 5,was regarding amount towards cess and not illegal gratification.Inviting attention of this court more particularly to para 12 ofcomplainant’s cross, learned counsel pointed out that her cross in thispara is with such specific defence.8.Learned counsel also pointed to the answers given by PW1 inpara 11 of the cross and would submit that at one point of time,complainant spoke of visiting appellant at 4.00 p.m. and then shechanged her version and stated that she did not meet him at 4.00 butmet him at 7.00 p.m. and that, in second breath she answers that she CriAppeal-636-2005-11- never met accused before 25.08.2004. Consequently, according tolearned counsel, when the witness is not firm and is giving differenttimings by repeatedly changing it, according to him, she is unworthyof credence.9.Taking this Court through the testimony of PW2 Parwatibaishadow pancha, more particularly para 3, learned counsel submittedthat she has not corroborated testimony of complainant because,according to him, shadow pancha has not whispered about eitherquantum or bribe amount as, according to him, this witness merelystated that accused asked complainant whether she brought the whatwas told to her yesterday. He pointed out that in fact, the day onwhich her testimony was recorded, she had only stated about accusedasking whether she brought what was told to be brought and nothingbeyond this. But on the next day, attempt has been made to fill up thelacuna and by virtue of evidence in para 6, this witness is made todepose that there was demand of bribe of Rs.500/-. Thus, accordingto learned counsel, there is a deliberate attempt to falsely implicatethe accused.10.Therefore, on the evidence of PW1 and PW2, learned counselwould submit that their testimonies do not inspire confidence and the CriAppeal-636-2005-12- crucial aspect of very demand has come under shadow of doubt.Complainant merely carried authority letter. Her brother-in-law forwhom 7/12 extract was expected, is not examined, and therefore,even on account of non-examination of Gaware or Jondhale, adverseinference needs to be drawn by giving benefit of doubt to the accused.11.As regards the testimony of sanctioning authority is concerned,learned counsel pointed out that sanction is granted in mechanicalmanner. He pointed out that in the very sanction order, name of oneSuresh Rathod is reflected as complainant, whereas name ofcomplainant is Kiram Keshavrao Gawli. Therefore, according to him,it is doubtful whether the documents allegedly stated to be verified bythis witness were pertaining to appellant, and therefore, he questionsthe validity of sanction by submitting that it is explicit that there isnon-application of mind. 12.Lastly, while criticizing the judgment impugned herein, learnedcounsel submitted that above aspects have not been correctlyappreciated by learned trial Judge. Judgment is based onassumptions, presumptions and conjectures. That, learned trial courtfailed to consider that case has to be proved beyond reasonabledoubt. That, here prosecution had failed to do so and therefore, he CriAppeal-636-2005-13- questions the legality and maintainability of this judgment by prayingto allow the appeal.On behalf of the Respondent-State :13.Learned APP, who supports the judgment, would submit thatthere is clear demand. Demand was raised while complainant wasaccompanied by shadow pancha PW2. They both are lending supportto each other. On this count, learned APP also took this Court throughthe substantive evidence of PW1 and PW2 and she submits that thereis consistency in their version as regards the demand is concerned.Moreover, there is acceptance in presence of PW2, an independentwitness. That, hands of accused were found to be carrying shining ofanthracene powder which is a proof of acceptance. She submitted thatfalse defence has been put up, as in the very statement recordedimmediately, different theory of hand loan is put forth. Therefore,finding testimony of PW1 and PW2 convincing, learned APPsubmitted that, there is cogent and reliable evidence of demand andacceptance. She also pointed to the evidence of PW3 sanctioningauthority and submitted that after due verification and satisfaction,sanction has been accorded. He was competent. According to her,minor typing mistakes in the name would not be sufficient toovershadow overwhelming evidence and as such, she prays to dismiss CriAppeal-636-2005-14- the appeal for want of merits. Learned APP placed reliance on thefollowing rulings :1.Appasaheb Narayan Jadhav v. The State ofMaharashtra [Criminal Appeal No. 1261 of 2004decided by the Single Judge of this Court at PrincipalSeat on 23.08.2013]2.Dattatraya Laxman Bagdi v. State of Maharashtra 2017DGLS (Bom.) 643.ANALYSIS14.Re-appreciated the evidence in the line of above argumentsadvanced by both sides. Admitted position is that complainant PW1was acting on behalf of Gaware and Jondhale. She is equipped withauthority letter. Her version is that when she approached appellantfor endorsement/remark of charge on 7/12 extract, there wasdemand of Rs.1,000/-, but was agreed and brought down to Rs.500/-,of which she lodged report. 15.It is fairly settled position that complainant being always lookedas an accomplice, it is expected of prosecution to supportcomplainant’s version with independent testimony, and in cases ofsuch nature, it is always pancha who accompanies complainant.Therefore, it is to be seen whether in the case in hand, testimony ofcomplainant about bribe demanded and accepted is supported by CriAppeal-636-2005-15- shadow pancha. Relevant testimony regarding visits and interactionsis already reproduced in aforesaid para.16.Regarding demand, PW1 has deposed in para 3 wherein shestated that accused demanded Rs.1.000/- to keep charge on 7/12extract and finally he agreed to accept Rs.500/- and then to issue7/12 extract. All this seems to have happened on 25.08.2004. On26.08.2004 i.e. next day, she carried tainted currency while she wasin the company of PW2 shadow pancha and regarding this, she hasdeposed in para 5. She has testified that accused resides behind hisoffice. When they went, he was already sitting on a chair and he wasalone. The conversation between both of them, as is emanating fromher testimony is, “I then asked him as to what had happened of 7/12extract. He then asked me whether I had brought the amount. I saidyes. I again say that accused asked him whether I brought Rs.500/-and I said yes. He then took out a register and prepared 7/12 extractof the field of Yeshwant Mesaji Jondhale. He signed it and sealed.Accused then demanded Rs.500/-. I then took out tainted notes andheld it before him. I collected 7/12 extract by left hand. He collectedthe tainted notes by his right hand and kept it in his left shirt pocket.I stayed for two minutes and came out of the house and thentransmitted the agreed signal”. CriAppeal-636-2005-16- 17.PW2 Parwatibai – shadow pancha in para 3 of her examination-in-chief, testified that she and complainant marched towards office ofTalathi. They entered office. She stated that then Talathi came there.The complainant demanded 7/12 extract to Talathi. She deposedthat, “Talathi then told Mrs. Gawli whether she has brought what wastold yesterday. Talathi did not disclose the details of that thing.”Talathi prepared 7/12 extract, handed it to complainant, she took it.She took out tainted currency, offered it to accused who collected it,and then complainant went out of the office. 18.As pointed out and submitted by learned counsel, shadowpancha has deposed in ambiguous manner which is reproduced asabove. Shadow pancha does not speak, as like PW1 complainant hasstated that when they visited, Talathi was siting on his chair.However, version of PW2 is different as, according to her, when theywent in the office, thereafter, he arrived. Whatever PW1 stated about‘accused asking whether she brought Rs.500/- and 2nd time, aftersigning 7/12 extract, he again demanding Rs.500/-’, is apparently notcoming from the mouth of PW2, and it is clear from her abovetestimony. Therefore, as regards the actual demand is concerned,both are not consistent. It is pertinent to note that testimony of PW2 CriAppeal-636-2005-17- was recorded on 12.07.2005 and the matter was adjourned for wantof muddemal and it was posted on next day i.e. 13.07.2005. On thesaid day, by virtue of examination-in-chief para 6, PW2 has deposedsaying that, “she again says, accused asked complainant whetherRs.500/- is being brought as told”. Therefore, this is clear attempt tofill up the lacuna which was missed by her in her earlier day’stestimony. PW2 is not specific about demand of gratification. Here,defence is that Jondhale was at arrears and he was expected to pay it.Consequently, PW2 ought to have been specific.19.Here, testimony of complainant, more particularly answersgiven by her in para 10, wherein it is noticed that she was changingtimings of the visit allegedly paid by her to accused on 25.08.2004,also creates doubt. Initially, she stated about visiting accused at 4.00p.m.. Then she stated that she did not meet him at 4.00 p.m., but methim at 7.00 p.m.. Such timing goes beyond office timings. She againstated that she never met accused prior to 25.08.2004 and in herexamination-in-chief, she has already stated that she had been to theoffice for getting 7/12 extract of Laxmibai and Yashawant Khedkar. Inpara 12, she answered that on 25.08.2004 in the morning, she hadcarried complaint to the ACB. Going by such date, it is clear that ifcomplaint is to be lodged, then there has to be previous visit to CriAppeal-636-2005-18- accused. As stated above, she has denied meeting accused prior to25.08.2004.20.As pointed out, again, complainant is very categorical aboutapproaching ACB office with a written complaint, but according to theInvestigating Officer PW4, he noted the complaint as narrated by her.Therefore if she had carried written complaint, question is, where wasit? Her evidence in para 12 shows that twice visits were paid by her tothe ACB office i.e. on 25.08.2004 as well as 26.08.2004. Again whileunder cross at the hands of accused, in para 14, she has admittedabout not mentioning in the complaint regarding demand ofRs.1,000/- by accused for supplying 7/12 extract. Therefore, with such quality of evidence, as pointed out, thereis force in the submission that evidence on the point of very demandis weak. Complainant’s evidence is not finding support on actualdemand of bribe by accused. Legal position is settled that demand isthe essence and gravamen of the charge and that has to be provedbeyond reasonable doubt. Here, for above reasons, it is not so. CriAppeal-636-2005-19- 21.Equally, objection raised is regarding validity of sanction. Thetestimony of PW3 sanctioning authority does go to show that in para5 of the sanction order, name of complainant is shown as Suresh,whereas name of appellant is not so. However, this could beattributed to typing mistake. Therefore, it is not appropriate to giveundue importance to typographical mistake.22.To sum up, here, firstly, as pointed out, neither Gaware norJondhale, for whom PW1 was acting, are examined. Their testimonieswere essential because question of ‘whether they also authorizedcomplainant to pay bribe and whether the amount arranged forapplication of anthracene powder was at their behest’, is a crucialquestion. Secondly, testimony of PW1 on the point of demand is notsupported by PW2, who has apparently deposed to that extent, but atsubsequent point of time, which amounts to filling up lacuna; thirdly,complainant is changing versions about timing and visits to ACBoffice. Therefore, for above reasons, prosecution story is not inspiringconfidence and case is not proved beyond reasonable doubt. Hence, itis a fit case for extending benefit of doubt. Accordingly, I proceed topass the following order :
Decision
CriAppeal-636-2005-20- ORDERI.The appeal is allowed.II.The conviction awarded to the appellant Ramesh S/oDigambarrao Zadgaonkar, by learned Special Judge, Parbhani inSpecial Case No. 04 of 2005 under Sections 7 and 13(1)(d) r/w(2) of the Prevention of Corruption Act, 1988 on 23.08.2005stands quashed and set aside.III.The appellant stands acquitted of the offence punishable underSections 7 and 13(1)(d) r/w (2) of the Prevention of CorruptionAct, 1988.IV.The bail bonds of the appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre