High Court
Legal Reasoning
CriAppeal-271-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 271 OF 2004Nivrutti s/o Vithal GarjeAge 53 years, Occu. Service as a Talathi Sajja Sautada,Additional charge of SajjaWahali, Taluka Patoda,District Beed.… AppellantVersusThe State of Maharashtra… Respondent…..Mr. R. G. Hange, Advocate for the Appellant.Mr. N. D. Batule, APP for the Respondent-State...… CORAM :ABHAY S. WAGHWASE, J.Reserved on: 22.07.2024Pronounced on: 29.07.2024JUDGMENT : 1.The judgment and order of conviction recorded by theAdditional Sessions Judge/Special Judge, Beed in Special Case No. 12of 1998 dated 07.04.2004 has been questioned by filing instantappeal. CriAppeal-271-2004-2- FACTS IN BRIEF, LEADING TO TRIAL2.PW1 Parmeshwar (informant) approached accused appellant,who was Talathi, on 10.02.1997 for issuing 7/12 extract. Accuseddemanded Rs.300/- for the same. Informant was not willing to payand therefore he approached ACB authorities and lodged reportExhibit 14 on the basis of which, ACB authorities planned andarranged trap, arranged pancha and explained both, pancha andinformant, the procedure of trap. Both, complainant and pancha,were made to approach appellant. Informant was instructed to paytainted currency on demand. During visit to Talathi office, demandwas made and after handing over tainted currency, PW1 informantgave signal upon which, raid was carried out and appellant wasapprehended. PW6 Dy.S.P. Bhokare carried out investigation andchargesheeted accused for commission of offence punishable underSections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,1988 [PC Act].3.Special Judge conducted trial vide Special Case No. 12 of 1998and by his judgment and order dated 07.04.2004, accepted the caseof prosecution as proved and recorded conviction for the aboveoffence, which is assailed by filing instant appeal.
Legal Reasoning
CriAppeal-271-2004-3- SUM AND SUBSTANCE OF THE ARGUMENTS/SUBMISSIONSOn behalf of the appellant :4.Learned counsel for the appellant pointed out that there isapparently false implication. That, prosecution did not prove eitherdemand or acceptance beyond reasonable doubt. According tolearned counsel, there is inordinate delay in approaching ACBauthorities in spite of alleged demand. Moreover, investigatingmachinery did not ascertain and verify that there was demand. That,repeated attempts were made to trap and therefore it is a clear case ofdeliberate implication. 5.According to learned counsel, in fact, appellant was merelyholding additional charge. The main thrust of his argument is thatthere was land revenue arrears towards informant. The amount paidthat day was towards land arrears. That, cross of informant is on suchlines. Defence case has been probabilized as there is admission to thatextent. Learned counsel pointed to the communication Exhibit 38 andsubmitted that higher authorities and supervisors of appellant werepressing hard for recovery of land revenue. Therefore, the amountaccepted was not illegal gratification, rather it was land revenue CriAppeal-271-2004-4- arrears. That, in spite of such evidence coming on record, learned trialcourt failed to consider and appreciate such evidence and defence ofaccused. Even answer given immediately is regarding acceptancetowards land revenue arrears. However, learned trial court lost sightof such evidence and according to learned counsel, learned trial courtcommitted error in disbelieving the defence and accepting theprosecution version without there being cogent, reliable andtrustworthy evidence.On behalf of the State :6.On the contrary, supporting the judgment of trial court, learnedAPP submitted that there is evidence of complainant regardingdemand of Rs.300/-. Complaint was lodged, trap was laid, panchawho accompanied complainant is lending support to the evidence ofdemand and acceptance. That, false, unsupported defence of landrevenue arrears is taken and the same is rightly disbelieved by trialcourt. That, there is correct appreciation. All requirements forattracting the charges being available, according to learned APP, thereis no need to interfere in the judgment. CriAppeal-271-2004-5- EVIDENCE BEFORE TRIAL COURT7.In support of its case, prosecution has examined following sixwitnesses. Their role and status and the sum and substance of theirevidence is as under :PW1 Parmeshwar is the informant. He in his evidence at Exhibit 13stated that he had approached Talathi for 7/12 extract. Accuseddemanded Rs.300/- for issuing the same. As he was not willingto pay bribe, he approached ACB and lodged report Exhibit 14.He and shadow pancha PW4 visited Talathi office. Again heasked accused whether 7/12 extract was ready, upon whichaccused asked if amount is brought. He paid and accusedaccepted the amount and thereafter he went out and gavesignal and raiding party apprehended accused.PW2SDO Deshmukh is the sanctioning authority, who, in hisevidence at Exhibit 15, stated that after applying mind to thepapers received from ACB, he accorded sanction Exhibit 16.PW3 Pandharinath, a villager, who did not support prosecution.PW4 Ratan acted as shadow pancha. In his evidence at Exhibit 19, hestated that ACB office called him, introduced him tocomplainant, he and complainant were given instructions abouttrap and instructions to pay on demand. This pancha was askedto observe events of demand and acceptance. He stated that in CriAppeal-271-2004-6- his presence complainant asked about 7/12 extract, upon whichaccused counter-questioned whether he had come withpreparations. Complainant told accused that he was short offunds, but accused told that extract will be given only ifRs.300/- are given. Subsequently, he and complainantapproached Talathi. Again accused asked if total amount isbrought. Complainant handed over the amount and accusedaccepted it, after which complainant gave signal. PW5Bhimrao is the staff of Tahsil office who issued communicationExhibit 28-C.PW6Dy.S.P. Bhokare is the Investigating Officer.8.Defence has also examined one witness DW1 Ramrao, who wasa retired Tahasildar. He stated that while he was working asTahasildar at Patoda, accused had 8 villages under his jurisdiction.That, revenue collector had taken review on 17.01.1997 regardingrecovery made by accused and it was found to be unsatisfactory andunder his signature, show cause notice Exhibit 38 was issued.According to him, in 1997, nine times land revenue, as shown in the7/12 extract, was recovered and Talathi used to recover the amountand entries to that effect were taken in Jamabandi file from 7/12extract and 8-A form. CriAppeal-271-2004-7- ANALYSIS9.On analyzing the above evidence, it is clearly emerging thatprime defence of accused is that he did accept amount given bycomplainant, but it was towards land revenue arrears and nottowards illegal gratification. 10.On analyzing complainant’s evidence, it is emerging that heclaims to have interacted with accused for the first time on10.01.1997 and he lodged report with the ACB i.e. Exhibit 14 on16.01.1997. It further shows that after lodging report, he and raidingparty had tried to approached accused but he was not available andtherefore, trap was not successful. Second time visit seems to havebeen paid by complainant on Thursday, i.e. to the ACB office, and onFriday, again complainant and team approached accused and onbeing asked by accused about amount, he stated that he was short offunds, but accused insisted for Rs.300/- and to come with full amountand therefore, complainant and pancha approached IO Bhokare andthereafter amount was handed over to accused. 11.Similar version is coming from PW4 pancha also. There isdemand as well as acceptance, but as stated above, fundamental CriAppeal-271-2004-8- defence of accused is that, the amount accepted was towards landrevenue arrears. 12.Learned counsel for the appellant would strenuously submitthat just before the raid, superior authority had issued communicationcalling explanation for not achieving target of recovery of landrevenue. Communication Exhibit 38, though is of 20.01.1997, it refersto the meeting conducted on 17.01.1997 i.e. three days earlier.Explanation of accused seems to have been called for unsatisfactoryperformance regarding collection of revenue. 13.Even the authority who issued the communication has beenexamined by accused as DW1 and he has supported accused in thatregard. Even communication has been placed on record regardinginquiry made with Talathi office to ascertain whether complainantwas liable to pay land arrears. Communication Exhibit 28 clearlyshows that complainant was liable to pay land revenue. Therefore,there is material suggesting move by higher revenue authorities toaugment process of recovery of land revenue arrears. Even shadowpancha admits accused giving statement to Investigating Officer at thetime of his apprehension that amount accepted by him was towardsland revenue. CriAppeal-271-2004-9- 14.Consequently, defence has been probabilized. Law enjoinsliability on accused persons to merely probabilize the defence and notto substantiate it. Here, though complainant and Investigating Officerdenied that complainant was not liable to pay any revenue, there iscommunication in black and white suggesting that complainant wasliable to pay land revenue Rs.5.95/- as per the 8-A form. Exhibit 28/Cdoes come to the rescue of accused. Contemplating action, there isevery probability that complainant was made to pay arrears first.Therefore, taking such material into consideration, defence takencannot be brushed aside. 15.Learned trial court has not appreciated the above defence in itscorrect perspective. There is no prior verification of demand.Possibility of acceptance of money towards land revenue has beenprobabilized. Panchanama also carries material that in body search ofaccused, there was collection of land revenue arrears to the tune ofRs.751/- and remaining amount was belonging to accuses. Taintedcurrency is part of the same collection. Therefore, learned trial courtdid not appreciate this crucial aspect and has brushed aside thedefence lightly and therefore interference is required. Hence, Iproceed to pass the following order :
Decision
CriAppeal-271-2004-10- ORDERI.The appeal is allowed.II.The conviction awarded to the appellant Nivrutti s/o VithalGarje, by learned Additional Sessions Judge/Special Judge, Beedin Special Case No. 12 of 1998 under Sections 7, 13(1)(d) r/w13(2) of the Prevention of Corruption Act, 1988 on 07.04.2004stands quashed and set aside.III.The appellant stands acquitted of the offence punishable underSections 7, 13(1)(d) r/w 13(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