High Court
Facts
{1} CR APPEAL 452 OF 2014IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 452 OF 2014The State of MaharashtraThrough Dy.S.P, Anti-Corruption Bureau,Nandurbar.….Appellant VersusKailas Onkar MohiteAge: 42 years, Occu.: Service,R/o. 214, Patelwadi, Nandurbar,Originally R/o. Deur Budruk,Tq. & Dist.Dhule.....Respondent (Ori. Accused)…..APP for Appellant : Mr.S.M.Ganachari Advocate for Respondent : Mr. N.L.Chaudhari….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 10 JULY, 2025 PRONOUNCED ON : 21 JULY, 2025 JUDGMENT :- 1.In this appeal, State is assailing judgment and order dated24-12-2012 passed by the learned Additional Sessions Judge andSpecial Judge, Nandurbar, thereby acquitting respondent fromcharges under Sections 7, 13(1)(d) read with 13(2) of the Preventionof Corruption Act. {2} CR APPEAL 452 OF 2014BRIEF FACTS OF THE CASE2. Complainant PW2 Sitaram, who set law into motion, was atrelevant time, serving as Kendra Pramukh (Center Head) of ZillaParishad Primary School at Borpada. Under Government scheme ofproviding nutritious food, bills were required to be drawn andtendered to Block Development Officer, Panchayat Samiti, Nawapur.PW2 Complainant had forwarded consolidated bill in the office ofPanchayat Samiti through one of the Teachers of the school namelyVilas More, who approached present accused, who was working as aTeacher, but was on deputation in Zilla Parishad to assist ExtensionOfficer and was responsible to verify the bills. On 30-03-2010,complainant learnt through Vilas More that accused told him thatthere are technical mistakes in the bill and as such bill cannot besanctioned and further allegedly told that bribe of Rs.2,500/- wouldbe required for correcting and encashing the bills. Complainantpersonally visited accused on 01-04-2010, but again he too wasallegedly told that there are several technical mistakes and unless hereceives Rs.2,500/- as bribe, mistakes would not be allowed to berectified. As complainant was not willing to pay bribe, heapproached Anti Corruption Bureau (ACB) and lodged complaintresulting into planning of trap, its execution, apprehending accused.
Legal Reasoning
{3} CR APPEAL 452 OF 2014After investigation, accused was chargesheeted and tried by learnedAdditional Sessions Judge and Special Judge, Nandurbar, who waspleased to appreciate the oral and documentary evidence and finallyrecorded finding and opinion that prosecution failed to prove itscharges and by order dated 24-12-2012 acquitted the accused fromcharges under Sections 7, 13(1)(d) read with 13(2) of the Preventionof Corruption Act. It is the above acquittal, which is taken exceptionto by the State by filing instant appeal. SUBMISSIONSOn behalf of State :3. Sum and substance of arguments advanced by learned APP isthat there is no dispute that complainant and accused were workingas Kendra Pramukh (Center Head) and Teacher respectively in ZillaParishad School. There is no dispute about the assignments withthem and respondent original accused dealing with verification ofconsolidated bills under the nourishment scheme floated by the StateGovernment. Learned APP pointed out that bills were duly tenderedthrough another Teacher Vilas More and there was initial demand ofRs.2,500/- through him by way of illegal gratification. Whencomplainant learnt about it, he too had approached accused, butunder the garb of some technical mistakes, there was demand of {4} CR APPEAL 452 OF 2014bribe to him also of which prompt complaint was lodged. 4.Learned APP submitted that before chargesheeting accused,ACB authorities had obtained sanction. PW1 Kulkarni, SanctioningAuthority was examined, who had studied the investigation papersand then accorded sanction, which was after due application of mind.He further pointed out that PW2 and PW3 are complainant andshadow pancha respectively. They both are consistent regardingreceiving instructions and guidance from ACB authorities aboutlaying of trap and manner of its execution. Learned APP pointed outthat pre-trap panchanama was drawn. That, both PW2 complainantand PW3 shadow pancha unanimously narrated the events of the daywhen they both together visited accused. That, there was cleardemand regarding which they both deposed. That, they alsowithstood extensive cross-examination and their evidence as regardsto demand has remained unshaken. He further submitted that aspectof acceptance is proved from the traces of anthracene powder on thehands of accused. That, with such quality of evidence, PW2complainant and PW3 shadow pancha had fortified the case ofprosecution, however, the same has not been correctly appreciated bylearned trial Judge. {5} CR APPEAL 452 OF 20145.Learned APP further submitted that as the foundational factsare proved, learned trial Court ought to have employed and takenrecourse to Section 20 of the Prevention of Corruption Act, regardingpresumption to return the guilt. Accused had failed to rebut thepresumption or onus, which fell upon him, still it is his submissionthat, learned trial Judge ignored such evidence of sterling quality. 6.He further submitted that while answering questions underSections 313 of the Code of Criminal Procedure, accused had nosatisfactory explanations and answers and chose to remain quite,which indicates his involvement as well as guilt. According tolearned APP, learned trial Court had adopted hyper technicalapproach and has highlighted minor discrepancies. That, suchapproach has resulted into acquittal. Lastly, he submits that thelearned trial Judge has failed to appreciate evidence adduced byprosecution in its correct perspective and erred in acquitting accusedand hence, he prays for interference by allowing appeal. On behalf of Respondent / Accused :7. In answer to above, learned counsel for accused submits thatprosecution has miserably failed to establish the charges. That,evidence of crucial witnesses like PW2 complainant and PW3 shadow {6} CR APPEAL 452 OF 2014pancha is not consistent on various counts and learned trial Court hasmeticulously compared testimonies of these two witnesses, theanswers given by them in cross-examination, as well as cross-examination faced by the the PW4 Investigating Officer. That, thereare several serious doubts about prosecution version. That, evidenceof PW2 complainant does not lend support to PW3 shadow panchathough they were both together. He would emphasize that, in thiscase, very crucial aspect of demand has not been cogently proved.8.Supporting the analysis of evidence of PW1 SanctioningAuthority done by the learned trial Judge, he would submit thatthere is total non application of mind. That, PW1 SanctioningAuthority has merely used draft sanction without properlyreconsidering the documents. That once sanction itself is not valid,very prosecution gets vitiated. 9.He lastly submitted that, it is surprising to note that bill inquestion was duly cleared on 31-03-2010 itself and therefore, therewas no question of putting up demand subsequently. For the morereason, it is his submission that case of prosecution comes undershadow of multiple doubts and case being not proved beyond {7} CR APPEAL 452 OF 2014reasonable doubt, he supports acquittal accorded by learned trialJudge and rather he prays to dismiss the appeal for wants of merits. EVIDENCE IN TRIAL COURT10.In support of its case, prosecution has adduced evidence of inall four witnesses. Sum and substance of their evidence is as under :PW1 Ramchandra Govindao Kulkarni is Sanctioning Authority.At exh.7, he deposed as under :“1. I am working as Chief Executive Officer in Zilla Parishad,Nandurbar from 5th September 2010. On 16/4/2010Parimalsingh was the Chief Exe. Officer. He was CEO from28/9/2009 to June 2010. After taking charge of my post,letter of Dy. SP Nandurbar dt. 16/4/10, now shown to me,was placed before me. The letter now shown to me is officecopy of the same. It is marked Exh.8. My predecessor hadforwarded information of the accused Kailas Onkar Mohite,who was working as Junior Clerk in our office. Theaccompanying documents are copies of record of our office.I identify signature of Parimalsing on letter dt.19/5/10. (With consent of Adv. Vora, marked Exh.9collectively). After transfer of Parimalsing, Addl.CEO Mr.Bariheld the charge of CEO from 7th June 2010 to 1/8/2010.Thereafter, the charge of CEO was held by DD Shinde,Addl.CEO Dhule from 2/8/10 to 27/8/10. Thereafter, Mr.Bari held the charge from 28/8/10 to 5/9/10. Mr. Bari {8} CR APPEAL 452 OF 2014handed over regular charge to me.2. Thereafter, letter of S.P .Anti Corruption, Nashik dt.17/7/10 received by our office on 2/8/10 was placed beforeme. The said letter bears endorsement & signature of ShriBari dt.28/7/10. It is marked Exh.10. Along with said letter Ireceived of all documents of investigation includingpanchanamas and statements. I studied all those papers. Icame to conclusion that there was sufficient material againstthe accused Kailas Mohite that he had demanded andaccepted bribe of Rs.2500/-. Hence, as per my letter dt,10/11/10 I granted sanction. The sanction order dt.10/11/10 now shown to me bears my signature; the contentsare correct. It is marked Exh.11.” PW2 Sitaram Goga Chaudhari is the complainant. At exh.14,he deposed as under :“I was serving as Kendra Pramukh (Head of theCentre) of Zilla Parishad Primary School at Borpada Tal:Nawapur from December 2000 to May 2011. There were 17schools under the supervision of Borpada School. It was myjob to collect bills of 17 schools of nutritious food, attendanceallowance, and to prepare consolidated bill of all schools andto submit it to Block Educational Officer, in Panchayat Samitiat Nawapur The said used to be forwarded by PanchayatSamiti to Zilla Parishad Nandurbar. Whenever such bills weregranted, corresponding amounts used to be credited to theaccounts of Head Masters of various schools. On or about 29or 30 March 2010 I sent consolidated bill of payments fornutritious food to Block Educational Officer Panchayat Samiti {9} CR APPEAL 452 OF 2014Nawapur Mr. Chitte through our teacher Vilas More fromBorpada school. Vilas More told me on 30th March that ourconsolidated bill was forwarded by Panchayat SamitiNawapur, to Zilla Parishad Nandurbar, through him. He toldme that he presented the said bill to Kailas Mohite, who wasa teacher deputed in Zila Parishad to assist Extension Officer,Mr.Potdar. Kailas Mohite is the accused present before theCourt. On the evening of 30th March, 2010 Vilas More toldme that he was told by the accused that there were technicalmistakes in the consolidated bill and therefore, the said billwould not be received. Mr.More told me that accuseddemanded bribe of Rs.2,500/- for correcting the bill andreceiving the same for encashment.2.On 01/04/2010 at 10.30 a.m. I personally meet theaccused Kailas Mohite in Zilla Parishad Office Nandurbar.The accused told me that there were several technicalmistakes in the bill. He told me that unless he would receiveRs.2,500/- as bribe, he would not get those mistakescorrected and the bill presented. Since I was not getting anycommission or money from the Government, for providingnutritious food from the money received, I was reluctant topay any bribe to the accused. Since I felt that I would berequired to pay the bill amount of Rs.1,00,000/- to HeadMasters, I showed willingness to pay the bribe to the accused.Then I decided to report the matter to the Anti CorruptionBureau (ACB). After 11:00 a.m. on the same day, I went toACB Office and meet Dy. S.P. Sangle saheb. I narrated theincident to him and gave it in writing. He recorded it oncomputer and signed the print out. The FIR now shown tome is the same.” {10} CR APPEAL 452 OF 2014PW3 Devidas Bhagwan Kokate is shadow pancha. At exh.17,he deposed as under :“I know the accused. He is Kalias Shankar Mohite. He was ateacher and was working on deputation in the office of EducationOfficer, Primary Schools, Zilla Parishad Nandurbar. The schoolswere getting grants for supplying nutritious food to the students.All Head Masters of Primary Schools were submitting their bills toB.D.O. through Head of the Centres and the consolidated billssubmitted by the heads of the centres were forwarded to EducationOfficer, Zilla Pafishad. I learnt the procedure from informantSitaram Chaudhari ” PW4 Sanjay Chandrarao Sangle is the Investigating Officer. ANALYSIS 11. On hearing both the sides, here there seems to be seriouscontest on following aspects; Firstly, want of valid sanction toprosecute and Secondly, testimonies of PW2 complainant and PW3shadow pancha to be inconsistent. In the light of above points emerging from contest, re-appreciated and reanalyzed the entire evidence. {11} CR APPEAL 452 OF 2014FIRST POINT – VALIDITY OF SANCTION12.As regards to first point of validity of sanction is concerned, onone had learned APP finds no fault or infirmity in the testimony ofPW1 Sanctioning Authority as according to him, there is completeapplication of mind. On the contrary, learned counsel for respondentwould vehemently submits that there is non-application of mind andit is so evident on three counts i.e. failure to mention or specify thedocuments allegedly received and studied by him and secondly,admission about use of draft sanction received from ACB authoritiesand thirdly no satisfactory explanation for blank spaces in thesanction order exh.11. In the light of above objections, evidence of PW1 Kulkarni,answers given by him in cross-examination and very sanction orderare visited. As pointed out, it is apparent from evidence of PW1Kulkarni that he merely deposed about studying the papers and hasnot narrated or given details or particularls of the documentsallegedly studied by him. His cross-examination shows that he hasused draft sanction. Even trial Court, while appreciating andanalyzing the evidence of PW1 Kulkarni, has rightly noted that, in thesanction order, name of Sanctioning Authority is inserted by “ink” {12} CR APPEAL 452 OF 2014which is distinct from the other contents suggesting insertion. Thereis no explanation for the said addition. Therefore, there isconsiderable doubt about independent application of mind, which iscrucial while according sanction. Therefore, there are reasons todoubt the sanction for want of care and application of mind. SECOND POINT – CONSISTENCY IN EVIDENCE13.The second point raised by learned APP is that there isconsistency in the evidence of PW2 complainant and PW3 shadowpancha on material counts and core of prosecution case has remainedunshaken. Such submissions are countered by learned defencecounsel. Evidence of PW2 Sitaram, complainant is at exh.14 and that ofPW3 Devidas, shadow pancha is at exh.17. According to PW2 complainant, when he was accompanied byPW3 shadow pancha on relevant day, PW2 asked accused to carryoutnecessary corrections over the bill and to forward the same. It is hisfurther testimony that, at that time, accused questioned whether hehad brought Rs.2,500/- as told to him in the morning to which PW2affirmed and took out tainted currency and handed over to accused,who allegedly accepted it, counted it, and then kept it in the right {13} CR APPEAL 452 OF 2014side of the cupboard, after which complainant went out and relayedthe signal and raiding party entered and on examination, there weretraces of anthracene powder to the hands of accused. PW3 Devidas, shadow panch in his examination-in-chief hasnarrated about hearing the conversation between PW2 complainantand accused i.e. upto the point of PW2 complainant asking accusedto rectify alleged mistakes, after which accused allegedly askedwhether he brought the money and then PW2 complainant handingover tainted currencies to the accused, who accepted it andthereafter, accused kept the currency in the cupboard, followed byrelay of signal and arrival of raiding party. Now, if cross-examination of above two witnesses i.e. PW2 andPW3 is re-appreciated, in paragraph 14, PW2 complainant hasanswered that after accepting the tainted currency, accused kept it inthe cupboard and when he left the spot, at that time, the cupboardwas still open. Accordingly, initially it was closed but subsequently itwas opened and money was kept there. Whereas PW3 shadowpancha in paragraph 4 of his examination-in-chief itself has statedthat, after accepting the tainted currency, accused kept the notes inthe cupboard i.e. in the third compartment and while PW2complainant went out, he himself stayed there to keep watch on {14} CR APPEAL 452 OF 2014accused. But in further examination-in-chief he has deposed thatMr.Yeshwant Pawar, another pancha, on his pointing out, took out thenotes from the cupboard, there were five currency notes of Rs.500/-denominations and subsequently those notes were kept in an envelopand seized. PW3 shadow pancha, in paragraph 6 of the cross-examination,has stated that, after accepting the amount, accused put the amountin an envelop and then kept the envelop in the cupboard, whereasPW4 Investigating Officer in his cross-examination has stated that,when he entered in the cabin of accused, at that time cupboard wasclosed. PW3 shadow pancha does not speak about cupboard beingclosed by accused when PW2 complainant went to relay signal. PW4Investigating Officer claims that when he came inside the cabin of theaccused, at that time, cupboard was in closed condition. Therefore, regarding the events, which took place in the cabin,PW2 complainant, PW3 shadow pancha and PW4 InvestigatingOfficer are not consistent. If version of PW3 shadow pancha isbelieved that, after accepting tainted currency, accused initially keptit in envelop and then kept it in cupboard, then when PW4Investigating Officer made other pancha witness namely YeshwantPawar open the cupboard and take out the tainted currency and {15} CR APPEAL 452 OF 2014thereafter, if according to PW3 shadow pancha, PW4 InvestigatingOfficer further kept the said currency after noting its numbers anddenominations in another envelop, which admittedly neither PW3shadow pancha nor PW4 Investigating Office claimed of sealingcurrencies at the spot in a distinct envelop carried by PW4Investigating Officer, question arises is that where is the envelop,which according to PW3 shadow pancha, was used by accused forparking tainted currency after its acceptance. Therefore, for abovereasons, case of prosecution, as pointed out to this Court and asobserved by the learned trial Court in its judgment, comes underconsiderable shadow of doubt.14.Though learned APP tried to submit that learned trial Courthas been critically hyper technical, in cases of such nature, evenminor infirmities do count. Even, crucial witnesses like Vilas Moreto whom there was allegedly first demand as well as another panchnamely Yeshwant Pawar, who allegedly removed tainted currencyfrom the cupboard, are not examined. These witnesses were infactmaterial witnesses, more particularly, in the light of above infirmitiesnoticed in the prosecution evidence. {16} CR APPEAL 452 OF 2014SUMMATION15.To sum up, here firstly, while according sanction, draft sanctionhas been put to use suggesting non-application of independent mindby Sanctioning Authority. Secondly, evidence of PW2 complainantand PW3 shadow pancha as well as that of PW4 Investigating Officerare at variance on material counts, which goes to the root of the case.For said reasons, judgment and order of acquittal passed by thelearned trial Court cannot be faulted at. Accordingly, I pass followingorder : ORDER Criminal Appeal is dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT