High Court
Legal Reasoning
{1} CR APPEAL NO. 689 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 689 OF 2004Balasaheb S/o Sheshrao BanAge: 33 years, Occu.: Service,Clerk in Tahsil Office, Jintoor, R/o. Jintoor, Dist.Parbhani.….Appellant (Ori. Accused)VersusState of Maharashtra…..Respondent …. Advocate for Appellant : Mr.S.B.Bhapkar APP for Respondent : Mrs.Chaitali Choudhari - Kutti …. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 02 SEPTEMBER, 2024 PRONOUNCED ON : 06 SEPTEMBER, 2024 JUDGMENT :- 1.In this appeal there is challenge to the judgment and order ofconviction rendered by the learned Special Judge, Parbhani in SpecialCase No.4 of 2000 recording guilt and convicting present appellantfor offence under Section 7, 13(1)(d) read with 13(2) of thePrevention of Corruption Act, 1988.FACTS IN BRIEF LEADING TO TRIAL2.PW1 Prabhakar was booked by Jintoor Police Station on {2} CR APPEAL NO. 689 OF 2004complaint of one Ramesh Sapkal, his neighbour and therefore, achapter case was registered against him in the Court of ExecutiveMagistrate, Jintoor and he succeeded in getting bail. In saidproceedings to seek further date, he approached present appellant, aClerk in the Office of Executive Magistrate / Naib Tahsildar andrequested to fix next date in the matter. According to PW1Prabhakar, appellant demanded Rs.500/- for giving him date andthreatened that on failing, he would be sent behind bar. On requestof PW1 complainant, appellant agreed to do the needful on paymentof Rs.200/- and asked him to come with said amount. Complainantwas not willing to pay bribe and therefore, he approached ACBOffice, Parbhani and lodged report exh.22, which was entertained byPW4 More (PI), who further summoned and arranged tow Panchas,apprised complainant and Panchas with the procedure of trap,handed over tainted currency to complainant, gave necessaryinstructions and sent PW1 Prabhakar and PW2 Vilas Sangewar,shadow panch to the Office of appellant and asked them to pay bribeamount on demand and relay necessary signal after acceptance,which would be followed by trap and apprehension. Accordingly, on 04-01-2000, PW1 Prabhakar and PW2 Vilasapproached accused in Tahsil Office, Jintoor. Accused appellant,
Legal Reasoning
{3} CR APPEAL NO. 689 OF 2004while PW1 was in company of PW2 Vilas, demanded amount,accepted it and on signal given by PW1 Prabhakar, raiding partyapprehended appellant. Complaint came to be lodged and aftercompleting formalities, seeking sanction, accused was made to facetrial before the Special Judge, who appreciated the prosecutionevidence and accepted the case of prosecution by renderingjudgment of conviction on 30-09-2004.Feeling aggrieved by the above conviction, appellant hasknocked doors of this Court by filing instant appeal. SUBMISSIONSOn behalf of appellant :3. Pleading innocence and false implication, Mr.Bhapkar, learnedCounsel for the appellant would submit that, prosecution hasmiserably failed to bring home the charges. At the threshold, heapprised this Court that present appellant is merely working as aClerk in Tahsil Officer and being at the lower rank in the hierarchy,he was not at all authorized to give any date or to take any action ofarrest as is claimed by the complainant. He took this Court throughthe charge at exh.4 and would point out that there is charge for notdoing an official act or not issuing the warrant, however, primary {4} CR APPEAL NO. 689 OF 2004allegations of prosecution are that bribe was demanded to merelygive date for appearance of appellant in a chapter proceedings.Therefore, according to him, very charge is defective and it ismisplaced as it is contrary to the very story of the prosecution. Taking this Court through the testimony of PW1 Prabhakar atexh.21, it is pointed out that testimony of very complainant isunworthy of credence because according to him, demand wasallegedly made on 01-01-2000 but complaint is lodged on04-01-2000 and therefore, it is a delayed complaint and deliberateattempt to implicate appellant.4.Learned Counsel questioned as to why when trap was plannedon 01-01-2000, second trap and complaint was entertained on04-01-2000 and according to him, it is clear that to see that by hookor crook appellant is trapped and implicated, trap is carried out in afalse case. He pointed out that there is no independent orconvincing evidence about alleged demand and according to learnedCounsel, it is admitted position and it has also come in the cross that,appellant, being a Clerk, was not authorized either to give dates ofthe hearing or even in position to take any action for not complyingwith the demand. {5} CR APPEAL NO. 689 OF 2004Learned Counsel took this Court through cross-examination ofPW1 Prabhakar, more particularly in paragraph 5 and would pointout that there is clear admission that complainant is not in position togive exact date and time of alleged demand. Learned Counselpointed out that in between 01-01-2000 to 04-01-2000, complainanthas admitted to have approached accused, but on such dates, there isapparently no demand as alleged and therefore, it is his submissionthat there is no question of putting up any demand of bribe. He alsotried to discredit testimony of PW1 Prabhakar by taking this Courtthrough paragraph 8 of the cross-examination on the points ofdemand and payment of hand-loan advanced by him in support of hisdefence. 5.Taking this Court through testimony of PW2 Vilas HaribhauSangewar, it is pointed out that though this witness is shown to haveacted as shadow pancha, there is nothing in black and white to showthat services of this witness was requisitioned by the InvestigatingOfficer by issuing any communication. He pointed out tocommunication exh.36, date of reference of letter to ACB authoritiesby superior of PW2 Vilas is on 01-01-2000 and therefore, hequestioned how and on whose decision, second trap was arranged on {6} CR APPEAL NO. 689 OF 200404-01-2000. Learned Counsel hasten to add that only when allegedtrap of 01-01-2000 was unsuccessful, second trap was laid andtherefore, it is his submission that there was deliberate attempt tofoist appellant, who was an innocent person. He also pointed out thateven this witness PW2 shadow pancha merely stated in his evidencethat appellant accused demanded amount from complainant, but forwhat purpose amount was demanded has not been stated by thiswitness. Therefore, it is his submission that it cannot be said that theamount demanded was any illegal demand, rather it was amount duefrom complainant, which was sought back. He also took this Courtthrough paragraph 7 of cross-examination of PW2 Vilas and wouldsubmit that this witness has admitted that accused had, in hispresence, told this complainant that he would produce him beforeNaib Tahsildar and as such accused was not at all authorized orempowered to give date or to take action of any sought. 6.Learned Counsel pointed out that there was no demand ofbribe, rather amount was deliberately thrusted in his pocket. ThatPanch, who allegedly removed tainted currency from the pocket ofaccused, is not examined, rather PW4 Investigating Officer and PW2shadow pancha are giving contradictory versions regarding removal {7} CR APPEAL NO. 689 OF 2004of tainted currency from accused and for such reason, he questionsthe prosecution version. 7.His next attack is on the testimony of PW3 as according to him,said Officer, who accorded sanction, was not at all competentbecause at the time of sanction, this witness had admitted that hewas working as Additional Collector and such post was sub-ordinateto Collector. Therefore, sanction given by incompetent authority isnot valid. Further it is stated that there is casual approach becausewhat material has been considered has not been spelt out by thiswitness in his testimony. Therefore, even sanction is improper andaccording to learned Counsel, for the said reason also case ofprosecution ought not to have been accepted by the learned trialJudge.8.Lastly, learned Counsel took this Court through evidence of thePW4 More, Investigating Officer and would point out that hisevidence does not corroborate very prosecution version. There issuppression of material, necessary panchanamas are not brought onrecord. Another Superior Officer namely Perke, who was party to allthe events, is deliberately not examined. Therefore, it is hissubmission that adverse inference be drawn against prosecution. {8} CR APPEAL NO. 689 OF 2004Criticizing the judgment of the trial Court, learned Counsel submitsthat there is total improper appreciation of evidence as well as settledlegal position and hence, he prays to set aside the impugnedjudgment. On behalf of State :9. Supporting the judgment learned APP pointed out thatprosecution has established the charges beyond reasonable doubt.She would submit that PW1 complainant was accompanied by PW2shadow pancha, an independent witness and they lend support toeach other. That there was demand to favour the complainant bygiving date and there were threats to pay bribe or to face direconsequences of going behind bar, therefore, complainant wasconstrained to succumb to demand, but he has approached ACBauthority PW4 More and complaint was lodged and he had calledtwo panchas, they both were apprised of the nature of the complaintand they were introduced to complainant and all of them apprisedabout procedure of trap. That unfortunately on decided date of trap,accused was on casual leave and therefore, trap was postponed, butconsequently trap was carried out on 04-01-2000. That demand wasmade and it was accepted in presence of PW2 shadow pancha and {9} CR APPEAL NO. 689 OF 2004the shadow pancha deposed to that extent. That PW2 shadowpancha deposed that there was application of anthracene powder tothe currency and traces of the same were found on the currencyremoved from the pocket of the appellant as well as on the hands ofappellant. Therefore, both demand as well as acceptance is proved.That PW3 sanctioning authority, who was authorized and holdingpost of Collector at the relevant time, had stated that he studiedpapers and had granted sanction. That there is no infirmity in thesanction order. It is her submission that on availability ofoverwhelming evidence, learned trial Judge has correctly acceptedprosecution version as proved and therefore, she prays to dismiss theappeal for want of merits. SUM AND SUBSTANCE OF EVIDENCE IN TRIAL COURT10.PW1 Prabhakar Rangnathrao Kuptekar, complainant, in hisevidence at exh.21 stated that on complaint of his neighbourRamesh, chapter proceedings were initiated against him in the Courtof Executive Magistrate. He was arrested and produced before theCourt on 07-12-1999 and released on bail. Thereafter, heapproached accused, who was working in that Section and asked himto give next date fixed in the matter. He deposed that accused said {10} CR APPEAL NO. 689 OF 2004that he will give date later on. Therefore, he again approached himand requested to give next date in the matter. At that time, it isalleged that accused demanded Rs.500/- for giving next date in theproceedings and also threatened to put him behind bar, if he fails topay the amount. Complainant deposed that he told accused that hewould pay Rs.200/- on the next date. That on 04-01-2000,complainant approached ACB, lodged report exh.22. That ACBauthorities called two panchas, panchas heard grievance ofcomplainant, verified complaint lodged by him, he gave currency toACB authority, anthracene powder was applied to the currency, ACBauthority explained him and panchas procedure of trap andinstructed PW2 Vilas, shadow pancha, to accompany complainantand hear and witness the transaction and complainant was asked togive signal after accused demands and accepts money. Accordingly, PW1 complainant and PW2 Vilas approachedTahsil Office at Jintoor. PW1 complainant went to accused and askedto give next date in the matter. Accused asked whether he broughtthe amount and he replied in affirmative. Thereafter, accusedremoved file from steel cupboard, wrote complainant’s name on awhite paper and asked him to put his signature against his name andthen accused asked the complainant to pay the amount. {11} CR APPEAL NO. 689 OF 2004Complainant removed the amount kept in his left chest pocket ofshirt by right hand and paid it to the accused, who accepted the saidamount by his left hand and kept it in left hand chest pocket of hisshirt, upon which signal was given and raiding party came andcaught accused. He identified complaint exh.22. 11.PW2 Vilas Haribhau Sangewar is shadow pancha. He deposedthat on 04-01-2000, Chief Officer, Municipal Council, Parbhanidirected him and Mohd. Abdul Mukhtasir to visit ACB Office. There,they were introduced to complainant as well as shown writtencomplaint exh.22. In his presence, complainant gave two currencynotes of Rs.100/- each to which ACB authorities applied anthracenepowder, demonstration was given and necessary instructions weregiven. Thereafter, he and raiding party alongwith complainantproceeded in a private Jeep to Tahsil Office, Jintoor. After reachingTahsil Office, he and complainant approached accused, afterexchange of greetings, accused told that he was busy and to comeafter 15 minutes. Therefore, he and complainant went out to taketea and returned, after which accused asked complainant whether hebrought the amount. Thereafter, accused removed a file kept in thecupboard and obtained signature of complainant and thereafter, {12} CR APPEAL NO. 689 OF 2004accused asked complainant to pay amount to him and complainantremoved the amount from his left chest pocket of his shirt and paidamount to accused, who accepted the amount and kept it in leftchest pocket of his shirt. After complainant gave signal, raidingparty came and asked complainant as to who took the amount andhe pointed out towards the accused. Then amount, which was keptby accused in his pocket was removed. Currency notes as well ashands of accused examined under the UV light and thereafter, ACBOfficers conducted search and seized documents. He identifiedpanchanama exh.32, 33. 12.PW3 Yeshwant Eknathrao Kerure, Sanctioning Authority,deposed that he was holding charge of post of Collector,Parbhani from 10-01-2000 to 30-04-2000. On 17-02-2000, paperswere received from ACB Office alongwith draft sanction. He wentthrough the papers. He took sufficient time to study the papers andthereafter, he deposed that he was satisfied that there was sufficientproof in the allegations against accused. Accordingly, he issuedsanction, which he identified at exh.39. PW4 Rajendra Madhavrao More is the Investigating Officer. {13} CR APPEAL NO. 689 OF 2004OBJECTIONS RAISED BY APPELLANT13. Pointing towards the above evidence, fundamental objectionsraised by the learned Counsel for the appellant is that firstly,prosecution version and charge do not match, and accused appellantwas not authorized or competent to give date or take action,secondly, there is no reliable evidence of demand, thirdly, there wasno complaint on alleged date of demand i.e. 01-01-2000, fourthly,amount was thrusted in the pocket of accused and there was nodemand or acceptance, fifthly, amount accepted was towards hand-loan due towards complainant and lastly, invalid sanction. ANALYSIS14.Here prosecution version is that PW1 complainant was bookedfor chapter proceedings on account of complaint by his neighbour.Testimony of complainant commences with such background. Suchaspect of action taken by Executive Magistrate / Naib Tahsildar hasnot been challenged by the appellant in the trial Court. Version ofcomplainant that accused demanded Rs.500/- to give date ofproceedings and threatened him to put him behind bars, if he fails tomeet demand, is also not rendered doubtful. Mere submissionsadvanced are that alleged demand is of 01-01-2000, but complaint is {14} CR APPEAL NO. 689 OF 2004of 04-01-2000. Merely on such count, prosecution version cannot bedoubted. Similarly, this Court does not find any defect in the chargeas very case of prosecution is that for giving date in chapterproceedings, bribe has been demanded from complainant. Afterdeal, amount was brought down from Rs.500/- to Rs.200/- on03-01-2000, so complainant has approached to ACB authorities andlodged complaint exh.22. Such version of complainant has not beendisturbed or challenged in the entire cross-examination.Complainant has narrated in his testimony that after lodgingcomplaint, ACB authorities summoned two panchas and he andpanchas were introduced to each other, they were explainedprocedure of trap and necessary instructions were given to bothcomplainant as well as shadow pancha. Cross-examination ofcomplainant, more particularly, paragraph 6 clearly shows that visitof complainant to Tahsil Office on 04-01-2000 is got confirmed asentire set up and location of Office of accused is brought in cross-examination and all suggestions and questions are answered bycomplainant. Complainant has categorically stated that after hewished appellant, appellant asked him to come after 15 minutes ashe was busy in other work. PW1 Complainant and PW2 shadowpancha spent time outside for taking tea and thereafter, they claim to {15} CR APPEAL NO. 689 OF 2004have returned and PW1 complainant has also, on query, introducedPW2 shadow pancha to be his nephew. So much part of histestimony has not been shaken or rendered doubtful. Therefore,complainant and shadow pancha both went to the Office of accusedand there presence is not rendered doubtful. Complainant hascategorically stated that accused demanded amount and it wasremoved from his pocket and handed over to accused after causingsignature on the document. Therefore, some official act has beenperformed and thereafter, demand has been raised and it has beencomplied with and accused has accepted the amount and kept in leftside pocket of his shirt. The amount has been recovered from pocketof accused. Both i.e. his shirt pocket and hands are demonstrated tobe carrying anthracene powder traces thereby confirming bothdemand and acceptance. 15.Testimony of PW2 shadow pancha lends full support to theversion of PW1 complainant as he has also narrated that after visitingTahsil Office, Jintoor, complainant was asked to wait for 15 minutesby the accused as he was busy in official work and they returned backafter taking tea. In presence of this witness, demand was made andit was complied, accused accepted amount and even he stated that {16} CR APPEAL NO. 689 OF 2004accused accepted the amount and kept in left chest pocket of shirtafter which signal was relayed and raiding party successfullycompleted raid. Testimonies of PW1 complainant and PW2 shadowpancha about demand and acceptance have virtually remained intact.There is little or no cross-examination on demand or acceptance. FIRST OBJECTION :16. Prosecution version and charge do not match, and accusedappellant was not authorized or competent to give date or takeaction,This ground has no force for the simple reason that there is nodenial that appellant was working in Tahsil Officer as a Clerk. Hewas assigned duty of doing “Kamgiri” i.e. daily work of chapterproceedings allotted by the Magistrate. He has demanded money forgiving date. The question whether he was authorized to give date orthat he was not competent to give date becomes insignificant becauseprosecution version is that, for giving date in a chapter proceedings,bribe amount has been demanded. No doubt authority to conductchapter proceedings was with Executive Magistrate, but he being sub-ordinate to Magistrate and when there is no denial that he was doing“Kamgiri” work, there is reason for him to put up demand for giving {17} CR APPEAL NO. 689 OF 2004next date and i.e. precisely case of prosecution.SECOND OBJECTION : 17. There is no reliable evidence of demand.As regards this objection, here there is PW1 complainant’s versionfinding support from PW2 shadow pancha, independent witness, whowas from Municipal Council and also Government official. He hadno axe to grind against appellant. He has also supportedcomplainant on the part of demand and he has not only heardcomplainant’s version in ACB Office but also seen complaint andaccompanied complainant during trap. He is a star witness forprosecution. Therefore, there is no force in the submission that thereis no convincing evidence on the point of demand. Here there is notonly demand of amount but even acceptance and possession oftainted currency from appellant. THIRD OBJECTION : 18.There was no complaint on alleged date of demand i.e.01-01-2000. As regards to no prompt complaint on 01-01-2000 andcomplaint to be of 04-01-2000, it is true that complainant has notlodged report on 01-01-2000, but apparently report has been {18} CR APPEAL NO. 689 OF 2004entertained and registered on 04-01-2000 and on same date twopanchas from Office of Municipal Council are also summoned andthey are explained procedure of trap. Merely because there was nocomplaint uptill 04-01-2000 itself would not render entireprosecution version doubtful. Immediately after lodgment of reporton 04-01-2000, ACB authority has acted, planned trap and evensucceeded in catching hold of accused after he had demanded andaccepted bribe amount. FOURTH AND FIFTH OBJECTIONS :19. Amount was thrusted in the pocket of accused. Amountaccepted was towards hand-loan due towards complainant. It is surprising that two contrary grounds are raised i.e.amount being deliberately thrusted in the pocket of appellant andamount demanded to be against hand-loan extended previously.Therefore, such self contradictory stands taken by accused itselfshows that he has accepted the amount. Moreover, immediately afterarrest on trap, he has not offered explanation that the amountaccepted by him was the dues returned by the complainant. Detailsof the amount of hand-loan and when it was taken, has also not beensatisfactorily explained. The defence that amount was thrusted in his {19} CR APPEAL NO. 689 OF 2004pocket loses its significance once fingers / hands of appellant arecarrying traces of anthracene powder. Both PW1 complainant andPW2 shadow pancha categorically stated that after demand, PW1complainant took out tainted currency from his pocket and handedover to appellant, who accepted it with his hand and then pocketedit. Therefore, there is both demand as well as acceptance and as suchoffence is complete. SIXTH OBJECTION :20.Invalid sanction.The ground about invalid sanction also has no force. PW3Kerure was holding charge of Collector from 10-01-2000 to30-04-2000. He has received papers from ACB Office on 15-02-2000while he was acting as Collector. He has claimed that he studied thepapers and took sufficient time to get himself satisfied and thereafter,he accorded sanction. Therefore, on the date of sanction, he wasofficiating as Collector and as such was competent and his testimonyshows that on getting satisfied, sanction has been accorded.Therefore, it cannot be said that there is no application of mind as itput-forth by learned Counsel for the appellant. {20} CR APPEAL NO. 689 OF 2004SUMMATION21.To sum up, evidence of PW Prabhakar, complainant findingsupport of PW2 Vilas, shadow pancha, independent witness clearlyshows that there is demand of illegal gratification by the appellant,who was working as a Clerk and as such a public servant. There isdemand as well as acceptance. There is recovery of tainted currencyfrom his pocket. Panchanama to that extent was drawn. PW4 More,Investigating Officer, who planned and arranged trap, has alsostepped into witness box and even his evidence remained intact oncrucial points. After investigation, sanction has been obtained fromPW3 Kerure, competent authority and therefore, when all necessaryingredients for attracting charges are palpably available on therecord, learned trial Court, in the considered opinion of this Court,committed no irregularity or error in accepting case of prosecution asproved. No case is made out on merit to interfere in a well reasonedjudgment. Consequently, appeal deserves to be dismissed.Accordingly, I proceed to pass following order : ORDERCriminal Appeal No.689 of 2004 is dismissed. ( ABHAY S. WAGHWASE ) JUDGE {21} CR APPEAL NO. 689 OF 200422.On pronouncement of this Judgment, learned Counsel for theappellant prays for eight weeks time to surrender so as to enable himto approach the Hon’ble Apex Court.23.Learned APP strongly opposes the same.24.Considering the above request made by learned Counsel for theappellant, eight weeks time is granted for the appellant to surrender. ( ABHAY S. WAGHWASE ) JUDGE SPT