High Court
Legal Reasoning
CriAppeal-751-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 751 OF 2004Ramrao Jijaram GaikwadAge 42 years, Occ- service,Talathi, Talathi Sajja Gowardhan,Taluka Parali Vaijinath,District Beed.… AppellantVersusThe State of Maharashtrathrough Shri G. D. Deshmukh,Deputy Superintendent of Police,Anti Corruption Bureau, Beed,District Beed.… Respondent…..Mr. B. R. Warma, Advocate for the Appellant.Mr. S. M. Ganachari, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 05.02.2024Pronounced on: 16.02.2024JUDGMENT : 1.Convict for offence punishable under Sections 7, 13(1)(d) and13(2) of the Prevention of Corruption Act, 1988 [PC Act] is herebychallenging the judgment and order of conviction dated 26.10.2004passed by learned Special Judge, Ambajogai, District Beed in SpecialCase (A.C.) No. 1/2002. CriAppeal-751-2004-2- 2.In brief, case of prosecution is that, accused was a Talathi.Brother of complainant-PW1 Tanaji had tendered application withTahsil authorities objecting to the entry of name of one RamraoJadhav in the backdrop of some transaction with Chabubai of whichcivil dispute was pending. According to the prosecution, whencomplainant, i.e. brother of Shivaji, approached Talathi, he agreednot to enter name of said Ramrao in view of the order of Civil Court,but to refrain from doing so, he demanded Rs.5,000/-. Whencomplainant expressed his inability to pay such huge amount, afternegotiations, accused brought down the figure to Rs.2,500/- andasked complainant to pay the same on 27.12.2001. On 26.12.2001, complainant approached Anti-CorruptionBureau [ACB] authorities and lodged complaint Exhibit 18, afterwhich ACB authorities summoned panchas, complaint was verified,trap was planned and explained to complainant and pancha,demonstration of application of tainted currency was given to themand thereafter complainant and pancha went to Talathi office.Accused asked complainant whether he has brought the amount asagreed yesterday. When amount was taken out from the pocket ofcomplainant, accused accepted it, counted it and kept it in hip pocket,after which raiding party entered and apprehended him. His hands, CriAppeal-751-2004-3- on examination, revealed traces of anthracene powder and thereafter,after completing formalities or arrest, crime was registered andinvestigation was carried out for above offence and accused waschargesheeted.After appreciating the evidence of prosecution, learned SpecialJudge, Ambajogai held case of prosecution as proved and awardedconviction under Sections 7, 13(1)(d) and 13(2) of the PC Act byjudgment dated 26.10.2004, which is now questioned by filing instantappeal.SUBMISSIONS3.Questioning the legality and maintainability of the judgment,learned counsel for the appellant pointed out that there is no disputethat accused was Talathi. There is also no dispute that complainanthad approached Talathi at Tahsil office. However, he disputesdemand raised by accused. According to him, accused had demandedland revenue arrears and even specific defence to that extent is raised.He pointed out that even alleged demand is on 25.12.2001, but trapis laid on 27.12.2001 and therefore, it is deliberate attempt. Learnedcounsel submitted that here, very essential aspect of demand as bribehas not been proved. According to him, in support of the abovedefence, accused has adduced evidence of DW1 and DW2 and assuch, he has probabilized his defence. Further, such defence has still CriAppeal-751-2004-4- not been taken into consideration by learned trial Judge. He pointedout that in fact, there is no motive as complainant himself hasadmitted receipt of revenue document i.e. 7x12 extract etc. Therefore,there is no question of bribe being asked for doing or not doing anywork. However, learned trial court, according to him, has notconsidered and appreciated the case in its correct perspective andhence, he prays to set aside the impugned judgment by allowing theappeal.4.On behalf of the State, learned APP pointed out thatcomplainant went with application to the Talathi for not entering thename of subsequent purchaser Ramrao Jadhav in the backdrop ofpending civil dispute and in view of order of civil court. However, inspite of so, accused Talathi had demanded bribe. Thereforecomplainant had approached ACB. Trap was laid, independentpancha was arranged and complainant and pancha together had beento the Talathi and he had specifically raised demand. Taintedcurrency was handed over and it was even accepted by accused andtrap was successful. Accused was apprehended with tainted currencyand therefore he was booked and tried. Prosecution has establishedits case by examining complainant and shadow pancha, who areconsistent and corroborating each other. Demand and acceptance CriAppeal-751-2004-5- being proved, sanctioning authority having applied its mind andaccorded sanction, learned trial court has correctly accepted suchevidence and guilt is rightly recorded. According to him, there is nomerit in the appeal and so he prays to dismiss the same.5.After considering respective submissions, it seems to be the caseof appellant that demand of money, which was accepted by accused,was not towards any illegal gratification or bribe for not doing anyofficial work, but it was towards some arrears towards land revenueof brother of complainant and such payment has been misunderstoodand magnified as bribe.6.On re-appreciating the entire evidence, it is seen thatcomplainant PW1 Tanaji is examined at Exhibit 17 and the sum andsubstance of his evidence is that his father had executed a sale deedof agricultural land in favour of sister Chabubai, without consultingcomplainant and his brother Shivaji. Therefore these brothersinstituted civil proceedings bearing no. 98/2000 and the sale deed infavour of Chabubai was set aside by the court. In spite of it, theirsister Chabubai had executed the sale deed in favour of one RamraoJadhav and for objecting to entry of his name, on behalf of his brotherShivaji, de facto complainant approached Talathi to tender CriAppeal-751-2004-6- application to not to give effect to any mutation entry on the strengthof alleged sale deed between Chabubai and Ramrao Jadhav, and atthat time, accused demanded Rs.5,000/- and on negotiations, broughtit to Rs.2,500/-. He deposed about approaching ACB authorities on26.12.2001, lodging complaint Exhibit 18, on 27.12.2001 in presenceof pancha, preparations being made, demonstration being given, pre-trap panchanama being drawn and he and pancha visiting office ofTalathi on the same day. In para 7, he specifically stated that whenthey approached Talathi, he asked whether amount was brought asper yesterday’s agreement and this witness answered in affirmativeand took out money from his shirt pocket and handed it over to theaccused Talathi, who accepted it, counted it and then kept it in his hippocked. On predetermined signal being given, accused wasapprehended.There is extensive cross of complainant PW1 Tanaji regardinghis educational qualification, about ancestral landed property andholdings, acquisition of their land by Government and receipt ofcompensation. In para 11 and 12 questions are posed regardinglocation and set up of Talathi office, geographical directions, doors,windows, road etc. In para 13 of the cross, again questions are posedabout joint family holdings and its management. Complainant is CriAppeal-751-2004-7- unable to give the amount of land arrears due towards all brothers,but he admitted that it was due towards him from 25.12.2001. Thenagain questions are posed about entry of name of Chabubai in the7x12 extract. In para 13, there are also questions about arrears ofland revenue and he admitted that there was demand to that extentfrom him by accused even prior to 25.12.2001. He flatly denied thatarrears of revenue were also demanded by accused from his brother.Para 14 and 15 is the cross pertaining to visit to Talathi office withapplication. In para 15, he has denied carrying copies of 7x12 extractand other revenue records to Talathi office on 25.12.2001. He is alsounable to state as to whether copies of revenue record were obtainedby him on 25.12.2001 i.e. Exhibits 20 and 21. He answered thatcopies were not prepared in his presence. He is also unable to statewho prepared Exhibits 20 and 21. He is unable to state the date onwhich his brother Shivaji had prepared application raising objection.In para 17, he admitted that Exhibits 20 and 21 were obtained on25.12.2001 and thereafter he went to Talathi office on 27.12.2001.Then there are questions pertaining to his decision to approach ACBauthorities. Again in para 21, he answered that he had promisedaccused that he would clear arrears of revenue on 27.12.2001 but thecopy should be given to him on 25.12.2001 as he was in need of thesaid copies. In para 22 he answered that while his statement was CriAppeal-751-2004-8- recorded by Shri Deshmukh, he was questioned whether he was inarrears of any land revenue and he answered in affirmative. However,he further stated that he did not tell before ACB officers whilerecording his complaint Exhibit 18 that anything was due from him toGovernment or to the Talathi towards land revenue. He is unable tostate why portion marked “A” is appearing in his complaint Exhibit18.7.PW4 Devidas ware, shadow pancha also reiterated about hebeing called to ACB office, introduced to complainant, briefed abouttrap and he agreeing to act as pancha. He also deposed aboutdemonstration of anthracene powder and thereafter he being asked toaccompany complainant and they both approached Talathi. He alsostated that when he and complainant approached accused at Talathioffice, initially complainant wished accused and thereafter hereciprocated and accused asked complainant whether complainanthas brought amount as directed by Talathi day before yesterday.Accused demanded the said amount brought by complainant.Complainant took out the tainted currency from his chest pocket andheld it in front of accused, who accepted it, counted it and kept it inhis hip pocket and thereafter, at signal being given by complainant,he was apprehended. CriAppeal-751-2004-9- Even above witness is cross-examined. In para 18 he stated thatat the time of incident, there was talk between complainant andaccused about land revenue. He also admitted that at that timeaccused told complainant as and when he will pay the remaining landrevenue. He denied it so happened that after keeping amount in thepocket by the accused, accused was turning to the office. Rest is alldenial.8.PW2 Kulkarni is the sanctioning authority who deposed aboutreceiving papers from ACB, he completely studying documents and ongetting satisfied, he according sanction.9.The above discussed evidence shows that complainant hadapproached accused, a Talathi, with an application on behalf of hisbrother objecting to the entry of name of Ramrao Jadhav with whomtheir sister had entered a sale transaction. Specific complaint is thataccused initially demanded Rs.5,000/- for not entering name ofsubsequent purchaser Ramrao Jadhav, but finally negotiated andbrought down the amount to Rs.2,500/-. Complainant and pancha areboth consistent about demand by accused Talathi. Shadow panchaconfirms about going through the contents of the complaint and CriAppeal-751-2004-10- agreeing to act as pancha. They both are also consistent about visitingTalathi office and accused asking him whether he has brought moneyas agreed that day and thereafter complainant agreeing and handingover the tainted currency and it was accepted. Therefore, both,complainant and pancha are lending support to each other on theaspect of demand and acceptance. 10.Specific defence raised by accused is that amount was acceptedbut it was not towards bribe for not entering name of Ramrao Jadhav,rather it was towards arrears of land revenue. Answers given bycomplainant and shadow pancha to that extent in cross arespecifically relied in support of such defence. 11.That apart, accused has examined DW1 Bhausaheb Naibal, whogave evidence at Exhibit 62 and the sum and substance of hisevidence is that he knew accused, who was Talathi. According to him,he along with five to six persons went to the office of Talathi on25.12.2001. At that time, around 10 to 11 a.m., Tanaji was alsopresent along with other Talathis. He deposed that at that time hetold Talathi Gaikwad that he will pay land revenue after one or twodays and Tanaji had also come demanding 7x12 extract fromTalathi and Talathi had told him that he would issue 7x12 extract CriAppeal-751-2004-11- after land revenue is paid. Thereafter, Tanaji agreed to pay the landrevenue on Thursday, but asked to issue 7x12 extract. However, thiswitness further deposed that, thereafter there were altercationsbetween Tanaji and Talathi. Witness claims that he also told Talathithat he will pay land revenue and to issue 7x12 extract. Thereafter,7x12 extract of Tanaji was received by one Nagargoje. On Thursday,he and four persons also paid land revenue to Talathi and at thattime, Talathi had issued receipts which he identified at Exhibits 63and 64.12.DW2 is accused himself and he deposed that there were arrearsof complainant, his brothers for the month of December 2001 andthey were to pay land revenue of Rs.2,632/-.13.Therefore, with above evidence, case is tried to be made outthat on that day, land revenue to the tune of Rs.2,632/- was at theend of complainant and his brother and on 27.12.2001 i.e. the day oftrap, complainant had handed over money towards said arrears andthere was no demand of illegal gratification as claimed byprosecution. CriAppeal-751-2004-12- 14.On sifting cross of complainant, from para 13 it is emergingthat it is elicited that revenue khata are standing in separate names.Complainant is unable to state whether land arrears were due fromall brothers. To his extent, he answered that the land revenue wasdue to the tune of Rs.700/- to 900/- as on 25.12.2001 and that hedoes not know the arrears of his brothers. In para 21 he flatly deniedhanding over amount of Rs.2,500/- to the accused towards arrears ofland revenue of himself as well as his brothers and also denied thesuggestion that an amount of Rs.2632/- was outstanding on27.12.2001 towards land revenue. Therefore, such material showsthat case of land revenue arrears has been refuted outright. Even if we carefully go through the evidence of InvestigatingOfficer, we find him specifically deposing in examination-in-chief thatpancha told him that when he went with complainant, accused askedcomplainant whether he has brought amount of Rs.2,500/- andcomplainant had told accused that he has brought the amount. TheInvestigating Officer further deposed that accused told complainant topay the amount and thereafter complainant paid the amount andaccused put it in pocket of his pant. Further accused also toldcomplainant that he will not take the name of Jadhav in 7x12 extract.Thereafter accused told complainant to pay remaining land revenue CriAppeal-751-2004-13- as early as possible. Investigating Officer claims that thereafter heverified through the revenue inspector as to how much amount wasdue from complainant towards revenue and it was revealed to be tothe tune of Rs.1,151/-. Therefore, the question arises as to for whatpurpose initially amount of Rs.5000/- was demanded and finally onnegotiations, Rs.2,500/- was accepted. Consequently, for abovereasons, the defence raised is apparently false. 15.Therefore, above discussed evidence shows that InvestigatingOfficer has thoroughly investigated the matter even on aspect of socalled revenue arrears. Here, it it pertinent to note that though DW1has been examined, who spoke about land revenue arrears, it is onlycomplainant and pancha who were party to the demand andacceptance. Independent witness PW4 shadow pancha specificallyinformed Investigating Officer that accused, after accepting theamount, assured the complainant that he will not take name ofJadhav in the 7x12 extract. So much evidence of the InvestigatingOfficer has not been challenged or rendered doubtful in the trial courtwhile he was under cross-examination. Therefore, this court finds nosubstance in the defence raised that the amount accepted wastowards land revenue arrears and not towards bribe amount. Eventhere is variance on actual arrears of land revenue and the amount CriAppeal-751-2004-14- accepted by accused. Therefore, there is both, demand as well asacceptance of illegal gratification which is proved from the testimonyof complainant and PW4 pancha witness. 16.There is no challenge to the validity of sanction. Therefore,charge being brought home, offence can safely be said to be proved.No perversity is brought to notice in appreciation of evidence bylearned trial court. Finding no merit in the appeal, I proceed to passthe following order :ORDERI.The appeal is hereby dismissed.II.The bail bonds furnished by the appellant stand cancelled.III.The Superintendent of Police, Beed is directed to see thataccused surrenders to undergo sentence as ordered by thelearned Special Judge, Ambajogai in Special Case (A.C.)No. 1 of 2002 on 26.10.2004 forthwith and sendcompliance report to this court within two weeks from thedate of receipt of this judgment. IV. The record and proceedings be sent back to the concernedcourt forthwith.
Decision
CriAppeal-751-2004-15- V. Criminal Appeal is accordingly disposed of. [ABHAY S. WAGHWASE, J.]vre