High Court
Legal Reasoning
1 Cr.Appeal.61.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.61 OF 2004.Mohd. Irfanuddin S/o. Mohd. Riyazuddin,Aged: 37 Years, Occu.: Service,R/o.: Manzoorpura, Aurangabad,District: Aurangabad .. Appellant (Ori. Accused)Versus.State of Maharashtra .. Respondent…Advocate for Appellant: Mr. Nasim R. ShaikhAPP for State: Mrs. Chaitali Choudhari-Kutti…CORAM:ABHAY S. WAGHWASE, J.Reserved on:01.07.2024Pronounced on:16.07.2024JUDGMENT:1.The Judgment and Order dated 06.01.2004, passed by theSpecial Judge, Aurangabad in Special Case No.35/1999, convicting thepresent appellant for offence under Sections 7, 13(1)(d) and 13(2) of thePrevention of Corruption Act, 1988 (PC Act) is assailed in the presentappeal.FACTS LEADING TO TRIAL2. The subject matter of challenge in this appeal is thatcomplainant – Ganesh Bhagat was in need of Medical Certificate.Therefore, he approached District Tuberculosis Hospital (T.B. Hospital).
Legal Reasoning
2 Cr.Appeal.61.2004He approached Dr. Misal, who directed him to accused, who was workingas a Clerk for issuing required certificate. As illegal gratification wasdemanded, for same Complainant approached A.C.B. and lodged report,on the basis of which ACB Authorities planned and arranged trap.Complainant was accompanied by panch. Both the complainant andpanch approached accused in the Hospital, accused demanded money forissuing certificate, complainant handed over the cash and it was acceptedby the accused. Predetermined signal was relayed and accused wasapprehended, complaint was lodged, which was investigated and finallyhe was charge-sheeted.Learned Special Judge conducted trial vide Special CaseNo.35/1999 for commission of offence under Section 7, 13(1)(d) and13(2) of the PC Act. After appreciating the oral and documentary evidence, thejudgment and order dated 06.01.2004, in Special Case No.35/1999, theSpecial Judge, Aurangabad held appellant guilty for offence underSections 7, 13(1)(d) and 13(2) of PC Act. Hence, instant appeal.SUBMISSIONSOn behalf of the appellant:3.Learned counsel for the appellant pointed out that here is aclassic case, wherein in spite of very complainant not supporting 3 Cr.Appeal.61.2004prosecution, case of prosecution has been accepted on the testimony ofpanch witness and other witnesses like Sanctioning Authority andInvestigating Officer, who are interested witnesses. He further submittedthat the sine qua non for attracting the charges i.e. demand andacceptance is not proved, as required by law. That, main accused, whohad allegedly demanded illegal gratification is not charge-sheeted andtried for the best reasons known to the Investigating Agency. According tolearned counsel, present appellant is mere subordinate staff, who was notauthorized to issue any certificate. He pointed out that, in fact, requiredcertificate is issued by specially constituted board comprising of severalresponsible officers. Therefore, the appellant ought not to have heldguilty for the above charges. That, complaint was specifically againstDr. Misal, but he was spared. Therefore, present appellant, who is made ascapegoat, ought not to have been charge-sheeted and tried. According tohim, learned trial judge has misconstrued role of appellant and has notcorrectly appreciated evidence as required and, hence, he seeksinterference.On behalf of the State:4.On the other hand, learned APP supported the judgment bystating that though complainant initially did not supported butsubsequently he has supported prosecution. Demand was made to him 4 Cr.Appeal.61.2004and, therefore, he lodged complaint. That, complainant was accompaniedby shadow panch. They both are consistent not only about demand butalso about acceptance. Tainted currency is accepted and is in possessionof appellant, of which there is no plausible explanation and, hence,according to learned APP conviction recorded is just and proper.EVIDENCE BEFORE THE TRIAL COURT5.Role and status of the prosecution witnesses and the sum andsubstance of their evidence is as under :PW-1 Madhuri, Sanctioning Authority, who accorded sanction - Exhibit13.PW-2 Ganesh Bhagat / Complainant stated that he was working as a Peonin Corporation. He was suffering from T.B. He went on leave andwhile resuming duty he was called upon to tender certificate.Therefore, he approached T.B. Hospital and met Dr. Misal, whodirected him to meet Irfan. That, during second visit when heapproached Dr. Misal, he told him to give Rs.2,000/- and thencertificate would be issued. In chief itself, he stated that he hadRs.2,000/- and he paid Rs.1,500/- to Irfan. In chief again he statedthat no clerk of Dr. Misal demanded Rs.2,000/-. Therefore, notfinding him supporting, learned APP cross-examined him byputting leading questions, wherein he deposed that he had metclerk of Dr. Misal, who had demanded Rs.1,500/-, but he againdenied that he had therefore lodged report against the clerk of Dr.Misal. He again stated that he was asked to approach Irfan for 5 Cr.Appeal.61.2004certificate. He put amount of Rs.1,500/- in the hands of Irfan andthat time raiding party apprehended him.PW-3 Ashok Belsare, Shadow Panch, stated that, on instructions of ACBauthorities, he and complainant Ganesh Bhagat visited T.B.Hospital. They approached Irfan, who told to collect the certificatefrom Ghati Hospital or to meet Dr. Misal. After 15 minutes, Dr.Misal came in the cabin. He, complainant and Irfan jointly went inthe cabin and then Irfan told Dr. Misal about demand of certificate.Then, Dr. Misal told to Irfan to prepare certificate of complainant –Ganesh Bhagat and they went out of the cabin. Irfan then statedcomplainant, whether he could pay Rs.1,500/- to whichcomplainant agreed to pay Rs.1,200/- and Irfan allegedly furtherstated that he had already talked with Dr. Misal and he has topay Rs.1,500/- only. That, he further stated that amount is to bepaid to the Saheb. Complainant then went out to collect xeroxcopies, he returned and delivered xerox copies. At that time, Irfandemanded Rs.1,500/-, which was handed over by complainant andaccused accepted it by left hand and complainant gave necessarysignal and accused was caught.PW-4 Subhash Joshi, Investigating Officer.ANALYSIS6.Prosecution was lodged against present appellant onallegations that, when complainant had approached T.B. Hospital forissuance of certificate to avail leave salary, bribe was demanded.Therefore, complaint was lodged by PW-2 Ganesh Bhagat. The 6 Cr.Appeal.61.2004Authorities planned and arranged trap in presence of panch. Complainantand panch visited the Hospital and present appellant accepted bribe ofRs.1,500/- and, therefore, arrested and on investigation charge-sheeted. 7.On carefully analysing the evidence of PW2 and PW3, whichis crucial, it is noticed that PW-2 complainant has not supportedprosecution wholeheartedly. In initial chief itself, he has stated that heapproached Dr. Misal, who asked him to pay amount of Rs.2,000/- andonly then certificate would be issued. He further stated that Dr. Misal toldhim to pay amount to Irfan. He gave Rs.1,500/- to present appellant –Irfan and got the certificate and he was allowed to resume duties. Hevirtually denied in chief itself that no clerk of Dr. Misal demandedRs.2,000/- and he was never told to pay Rs.1,500/-. He again submittedthat he lodged report in ACB as Dr. Misal and the Clerk had demandedmoney. Then he stated that he did not lodged any complaint. He virtuallydenied about meeting shadow panch PW-3 and he virtually denied abouthanding over notes of Rs.1,500/- to Shri Joshi. It seems from record that at such point, learned APP afterseeking permission of the court put up leading questions. Therefore, oncross conducted by prosecution itself, he again stated that he had met Dr.Misal, who had asked him to pay Rs.2,000/- for his certificate. He deniedhaving met Clerk of Dr. Misal before lodging report with ACB. He also 7 Cr.Appeal.61.2004denied lodging report of clerk of Dr. Misal. He answered that he did notknew the name of Clerk of Dr. Misal. In para 7, he stated that when hevisited Hospital and when Dr. Misal left, he and panch approached Irfanand he put amount of Rs.1,500/- in the hands of Irfan and while he waspreparing certificate ACB Officer Mr. Joshi came. As such, evidence wasrecorded by learned trial judge on 10.10.2003 and, further chief wasdeferred by the court. Subsequently, further chief was resumed, on06.11.2003 and at such time and on such date, he again supportedprosecution by stating that he took treatment for T.B. That, he could notget salary and, therefore, he was called to procure certificate and,therefore, he approached Dr. Misal and as accused was serving as Clerk,he approached him and he asked to pay Rs.2,000/- to the Doctor. He wasnot willing to pay the amount so he lodged the report. Therefore,consequently after 2 weeks of previous statement again this witness hassupported prosecution and in para 11 he stated that when theyapproached Hospital Dr. Misal directed irfan to issue certificate and Irfanasked him whether he brought Rs.1,500/- to which complainant statedthat he had Rs.1,200/- only, but Irfan stated that Doctor has asked him topay Rs.1,500/-. In cross, he admitted that on the last date of his chief, he wastold to give evidence as per the documents on record and he wasthreatened so that he would loose his service if he deposed otherwise. In 8 Cr.Appeal.61.2004cross, he admitted that accused Irfan never demanded money and that hehad given currency notes on his own at the instance of Joshi.Resultantly, very complainant has taken a flip flop stand.Initially, he supported then retracted then again supported and againretracted and finally in cross denied demand by the appellant.8.PW-3 Ashok Belsare / panch, who allegedly accompaniedcomplainant, in para 4 of the chief stated that he accompaniedcomplainant to the Hospital. He, complainant and accused jointly visitedthe chamber of Dr. Misal. Therefore, this accused told Dr. Misal aboutdemand of certificate and further complainant himself told that hewanted to go to Ghati Hospital. That, Dr. Misal asked him why he hadcame here and, therefore, again Dr. Misal told appellant to preparecertificate for Bhagat Therefore, it is seen that there were no talks ofmoney in the chamber of Dr. Misal. He further stated that when theywent to the cabin of Irfan there he allegedly asked complainant, whetherhe could pay Rs.1,500/-. His such testimony shows that it was merelyasked whether he had capacity to pay and when Bhagat agreed to payRs.1,200/-, accused allegedly told him that he had talked with Dr. Misaland that complainant has to pay Rs.1,500/- only. Panch witness furtherstated that appellant asked complainant to bring xerox of plain certificateand after complainant went, he had contacted with accused and that time 9 Cr.Appeal.61.2004accused told him to inform complainant to hand over the money, as it isto be paid to Saheb. Again, when complainant returned with xerox, Irfandemanded upon which complainant handed over tainted currency and itwas accepted by the accused by his left hand and pocketed it in the shirtand, then, complainant went and gave signal. Above witness, in cross, admitted that in complaint PW-2 hadalleged demand of money by Dr. Misal. He answered that at the time ofverification of complainant himself had told Dr. Misal that he wanted tomeet the Clerk and Dr. Misal has stated that Clerk cannot issue certificateand it needs signature of Civil Surgeon. He further admitted thatappellant told Dr. Misal that signature of other 2 Doctors were requiredon the certificate and, hence, it cannot be issued. He further answeredthat when complainant had been to obtain xerox, he himself was takingthe round outside the door and, that, after giving white card to appellant,complainant – Ganesh Bhagat transmitted signal.Therefore, testimony of shadow panch also does not showthat there was any direct demand by the appellant. There seems to besome conversation between the shadow panch and appellant to whichcomplainant is not a party. Shadow panch has answered in cross thatthere was some complaint against Dr. Misal and that Dr. Misal had toldthat Clerk cannot issue certificate and it is the Civil Surgeon who issuesit. Therefore, taking such answers in the cross of shadow panch it is 10 Cr.Appeal.61.2004doubtful as put forth by the learned counsel for the appellant thatappellant herein was competent to issue certificate. Admittedly, certificateis issued by a Doctor comprising of several other Doctors. Therefore,when there is doubt about authority of appellant to issue certificate, thefurther story of prosecution also comes under shadow of doubt. Here, asstated above, complainant has also not supported prosecution. Therefore,solely on the basis of testimony of shadow panch, when complainant ishostile, case cannot be said to be proved beyond reasonable doubt. It isthe fit case for extension of benefit of doubt. 9.Learned trial judge has failed to consider and appreciate theabove aspects and has accepted prosecution version only on the basis oftestimony of shadow panch alone. Therefore, on such approach taken bythe trial judge, case cannot be said to be appreciated correctly and,hence, appeal deserves to be allowed.ORDERI)Criminal Appeal No.61 of 2004 is allowed.II)The conviction awarded to appellant Mohd. Irfanuddin S/o.Mohd. Riyazuddin in Special Case No.35 of 1999 by the learnedSpecial Judge, Aurangabad, on 06.01.2004 for the offencepunishable under Sections 7, 13(1)(d) and 13(2) of the Preventionof Corruption Act, 1988 stands quashed and set aside. 11 Cr.Appeal.61.2004III)The appellant stands acquitted of the offence punishableunder Sections 7, 13(1)(d) and 13(2) of the Prevention ofCorruption Act, 1988.IV)The bail bonds of appellant stand cancelled. V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the order inrespect of disposal of muddemal. [ABHAY S. WAGHWASE, J.]marathe