High Court

Legal Reasoning

{1} CRI APPEAL 312 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 312 OF 2004Shaikh Nadeem Sk. YasinAge: 32 years, Occu.: GovernmentService, Muster Assistant, MinorIrrigation, Sub-Division No.4, Zilla Parishad, Kalamnuri under PanchayatSamiti Basmath Taluka,Basmath Resident of BasmathTaluka, Dist.Basmath.….Appellant VersusThe State of MaharashtraThrough Anti Corruption BureauParbhani.…..Respondent …..Advocate for Appellant : Ms.A.N.AnsariAPP for Respondent : Mr.N.D.Batule ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 05 MARCH, 2024 PRONOUNCED ON : 20 MARCH, 2024 JUDGMENT :- 1.Judgment and order of conviction passed by the Special Judge,Parbhani dated 30-04-2004 in Special Case No.8 of 2001 holdingappellant guilty for offence under Sections 7, 13(1)(d) r/w 13(2) ofthe Prevention of Corruption Act (PC Act), is assailed by filing instantappeal. {2} CRI APPEAL 312 OF 2004CASE OF PROSECUTION IN BRIEF2.Complainant Bhimrao was a beneficiary of scheme for diggingbore well in his land. After digging bore well up to 20 feet,Panchayat Samiti Committee paid visit and part amount was issuedby way of subsidy i.e. in the year 2000 as well as 2001. Forremaining amount of subsidy, complainant had approached presentappellant with a request to release the remaining amount. However,accused stated that he cannot release the amount free of charge andthereby demanded Rs.1,000/- for releasing said subsidy amount. Ascomplainant was not willing to pay bribe, he approached AntiCorruption Bureau (ACB), lodged complaint, after which ACBauthorities planned and arranged trap and he was caught acceptingbribe and was therefore, chargesheeted for offence under Sections 7,13(1)(d) r/w 13(2) of the PC Act and tried before the learnedSpecial Judge, who after appreciating the oral and documentaryevidence, held offence to be made out and recorded conviction asstated above. Said judgment is therefore, impugned herein. SUBMISSIONSOn behalf of Appellant : 3.Learned Counsel for the appellant pointed out that there is {3} CRI APPEAL 312 OF 2004apparently false implication. According to her, appellant wasworking as a mere Muster Assistant that too on contractual basis.Therefore, he is at threshold not a public servant. Therefore, hecannot be booked and tried under the provisions of PC Act. Sheelaborated that employment of appellant was under the EmploymentGuarantee Scheme (EGS), which is purely on contractual basis andfor particular project only. There is no fix pay scale like otherGovernment employees. She invited attention of this Court to theappointment order and would submit that from the same, it is clearthat services of appellant were on temporary basis and he wasengaged to look after and supervise work of labours. His job wasonly to maintain register of labours and as such he was notauthorized to issue or release any amount by way of subsidy.Therefore, according to her, there is no question of demanding anyillegal gratification or bribe. In support of her above submissions,she seeks reliance on the Government Resolution dated 01-12-1995. 4.She further questioned sanction to prosecute as according toher, Chief Executive Officer, who has granted sanction in this case,was not appointing authority. Therefore, such authority was notcompetent to also grant sanction to prosecute. For all above reasons, {4} CRI APPEAL 312 OF 2004she submits that prosecution launched itself was faulty and moreover,evidence of complainant, pancha witness was not consistent.Therefore, according to her, learned trial Court ought not to haveaccepted the case of prosecution and ought not to have convictedaccused.On behalf of State : 5.Per contra, learned APP submitted that accused has not deniedhis employment in Government. Therefore, he squarely falls in thedefinition of “public servant”. He invited attention of this Court toSection 2(c) of the PC Act and pointed out that he was on pay-rolland he was receiving regular remuneration from the Government andtherefore, he infact is a public servant. He had demanded illegalgratification for clearing subsidy. He was caught raid-handed afterdemand and accepting bribe. Therefore, offence was complete. Thatvalid sanction was obtained from the competent authority andtherefore, learned trial Court rightly accepted the evidence adducedby the prosecution and has rightly convicted appellant and therefore,he prays to dismiss the appeal for want of merits. EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT 6.PW1 Bhimrao Shamrao Dhabe, who is examined at exh.10 {5} CRI APPEAL 312 OF 2004deposed about sanction of subsidy of Rs.45,000/- for digging thebore well and receiving amount of Rs.26,000/- in 1999, Rs.5,000/- in2000 and Rs.3,000/- in 2001 and for remaining Rs.10,000/-, heclaims to have approached Panchayat Samiti office, Basmath and hadcontacted appellant and made request to release the amount.According to him, accused told that amount cannot be released freeof charge and further told that he has to pay rs.1,000/-. Finallyaccused agreed to receive Rs.500/- and accused had called him withamount on 22-05-2001. On same day, complainant approached ACBand lodged complaint exh.11. He deposed about pancha namelyRaut being called, apprised about complaint and both of them givendetailed instructions and information about procedure of trap.Finally he and pancha both approached accused at Panchayat Samitioffice. There, he and pancha went to a hotel and after tea,complainant told him that as directed by him, he brought Rs.500/-.Accused told that since others are around, he would talk later on.After 15 minutes, accused alone came and took complainant to sideand asked how much amount was brought. When complainant toldhim that he had brought Rs.500/-, accused asked him to pay andfurther said that cheque of remaining amount would be issued onTuesday. He accepted the currency and kept in the chest pocket. {6} CRI APPEAL 312 OF 2004Thereafter, ACB authorities carried out the trap. 7.PW2 Nivrutti Sitaram Raut, who has acted as pancha alsostated that he has approached ACB authorities, he heard grievance ofcomplainant, he verified the complaint, caused signature over it andthereafter, ACB authorities explaining the procedure and draftingpanchanama exh.16. Thereafter, he, complainant, other pancha andstaff of ACB rushed to Basmath. They approached accused in hisoffice. After tea in a hotel, PW1 Bhimrao told accused that he hasbrought the amount as per direction. Accused asked him to waitoutside the office saying that he would return after a while. When hecame back, accused questioned complainant as to how much amountwas brought and he demanded the said amount and after heaccepted it, complainant told him that BDO has gone to Aundha andhe should come to collect the cheque on Tuesday. Complainant gavesignal to raiding party, who arrived and caught accused. 8.PW3 Radheshyam Laxmanrao Mopalwar is the Chief ExecutiveOfficer (CEO). According to him, he received papers from ACB andafter considering the investigating papers, he granted sanction toprosecute accused. He identified sanction order exh.20. According {7} CRI APPEAL 312 OF 2004to him, accused was Muster Assistant, who was appointed by theCEO and therefore, he was competent authority to remove him. 9.PW4 Rangnath Dhondiba Nagare is the Investigating Officer,who narrated all steps taken by him during the investigation. GROUNDS IN APPEAL10.On appreciating the arguments, here fundamental grounds ofchallenge are, firstly accused to be not a public servant and therefore,cannot be tried or held guilty under the provisions of PC Act.Secondly, being Muster Assistant and appointed temporarily to noteand register details of labours, he had no authority to deal withfinancial transactions and therefore, no question of releasingremaining subsidy. Thirdly, there was no demand, which is sine quanon for attracting the offence. ANALYSIS11.Re-appreciated the evidence adduced in the trial Court.12. PW1 Bhimrao Shamrao Dhabe is the complainant and PW2Nivrutti is the shadow pancha. Initial demand when was made at {8} CRI APPEAL 312 OF 2004that time PW1 Bhimrao was alone, but he has immediatelyapproached ACB and has lodged complaint. Thereafter, PW2 Nivruttiwas summoned and both PW1 Bhimrao and PW2 Nivrutti wereapprised about pre-trap and post-trap activity. They both are foundto be consistent approaching Panchayat Samiti that day with taintedcurrency and meeting accused. They both are consistent about theyall going to take tea, after which accused asked complainant whetheramount has been brought. They both are consistent about accusedmaking such demand and even accepting it. They both are consistentabout accused informing complainant that BDO was out of town andcheque would be issued on Tuesday i.e. amount towards remainingamount of subsidy. Consequently, here PW1 Bhirao and PW2 Nivruttiare lending support to each other about demand being made and onhanding it over, accused accepting it, after which he wasapprehended. Therefore, here prosecution has demonstrated thatthere is demand as well as acceptance. 13.Though both PW1 Bhimrao, complainant and PW2 Nivrutti aresubjected to grueling cross, their above version has remainedunshaken and undisturbed. Both PW1 Bhimrao and PW2 Nivruti arelending support to each other. PW2 Nivruti, an independent pancha {9} CRI APPEAL 312 OF 2004is party to conversation of demand and also a party to the aspect ofacceptance. Right Hand of accused and inner side pocket of his shirtare smeared with powder, regarding which there is no explanation ordispute. Consequently, here both demand and acceptance is cogentlyproved. 14.Another ground of criticism is that there is no valid sanction.Such submission has no force because PW3 Mopalwar, CEO,Sanctioning Authority deposed that while he was working as CEO, hereceived papers from ACB, which he scrutinized. He narrated thenature of documents i.e. original complaint, papers of trap and evenservice record of accused. He thereafter, has drawn conclusion thatsanction needs to be accorded and therefore, issued sanction orderexh.20. According to him, accused was appointed as MusterAssistant by CEO and therefore, he is authorized to remove him also.That Panchayat Samiti falls under jurisdiction of CEO, Zilla Parishad.Though cross-examined, questions to this witness are regardingappointment letter, accused approaching Labour Court. He answeredthat fresh appointment orders of Muster Assistant were issued byCEO in 1992. He flatly denied that accused is not a public servant.He also answered that Muster Assistant has to note attendance of {10} CRI APPEAL 312 OF 2004labours working under EGS and that it is not his duty to issue or passcheques. 15.Next ground of challenge is raised pointing to above cross-examination of PW3 Mopalwar, Sanctioning Authority that accusedbeing mere a Muster Assistant, was not dealing with drawing chequesor issuing cheques and rather he was assigned only the work ofmaintaining attendance of labours. Though, the above arguments sounds attractive, there is noforce in the submission that accused was not a public servant.Accused was apparently appointed as Muster Assistant on EGS. Hewas receiving remuneration and salary from Government. He waseven on pay roll of Government and rendering services ofGovernment in EGS, which is a permanent scheme run byGovernment. 16.The Government Resolution (GR) of 21-04-1999 is heavilyrelied by learned Counsel for appellant. However, on carefully goingthrough the entire GR, it is apparent that the said GR was required tobe issued regarding applicability of benefits of 5th Pay Commission. Itis not a GR specifying that Muster Assistants are not public servantfor all purposes. In the considered opinion of this Court, accused was {11} CRI APPEAL 312 OF 2004appointed under the orders of CEO and his services were governed byBDO at Panchayat Samiti level. CEO is the Head of the Departmentand is also removing authority. Consequently, at the time of trap, accused was working asMuster Assistant and was on pay roll of the Government. Mere someissue raised before the Labour Court would not itself be sufficient tobring him out of the ambit of public servant. Similarly, merely hisduty was to record attendance of labours, also in itself is notsufficient to hold that he had no authority to handle or issue chequesand therefore, entire story of complainant regarding demand ofillegal gratification being made would not be washed out. Herecomplaint has been lodged alleging demand of Rs.500/- for issuingcheque towards subsidy. The demand was apparently illegalgratification. There is both demand as well as acceptance of moneyother than remuneration.17.Perused the impugned judgment. Learned trial Court hascorrectly appreciated the evidence as well as documents relied upon.No illegality or perversity is brought to the notice of this Court so asto cause interference. Findings being in consonance with theevidence and law and no case being made out for any interference, Iproceed to pass following order : {12} CRI APPEAL 312 OF 2004ORDERCriminal Appeal No.312 of 2004 is dismissed ( ABHAY S. WAGHWASE ) JUDGE 18.On pronouncement of this Judgment, learned Counsel for theappellant prays for six weeks time to surrender so as to enable her toapproach the Hon’ble Apex Court.19.Learned APP strongly opposes the same.20.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