The State of Maharashtra v. Dr. Rajendra Balu Patil

State by invoking section 378(1)(b) of the Code of CriminalProcedure urges for grant of leave to question the judgment and orderdated 08.05.2019 passed by learned Special Judge of ACB and AdditionalSessions Judge, Nandurbar in ACB Special Case No. 14 of 2015 by whichpresent respondent - original accused stood acquitted from charges undersections 7, 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act. -2- ALS-92-20252. According to learned APP, on receipt of complain by PW2complainant about demand of illegal gratification to the tune ofRs.20,000/- for clearing subsidy received by complainant, investigatingmachinery after summoning the independent panch witnesses, plannedtrap. That, demand verification was got done by recording conversationand thereafter main trap was planned. It was also successful. That, bothdemand as well as acceptance were cogently proved, but according tohim, the same is not accepted by learned trial court solely on the groundthat PW2 complainant had not partially supported prosecution and theentire case of prosecution has been disbelieved. He further pointed outthat, even evidence of sanctioning authority has been not appreciatedcorrectly. According to him, there is a good case on merits in appeal andso he prays to allow leave to file appeal.

Learned counsel for respondent would support the order ofacquittal and submitting that as very complainant had not supported, crucial aspect of demand has not been proved. According to him, therewas no entire script of alleged conversation. Moreover, electronicevidence on the point of recording of conversation was weak. That, entire conversation was not reflected in the script, and moreover, according to him, for want of natural sample of PW2 complainant, evensuch evidence was rendered valueless. He pointed out that, sanction also -3- ALS-92-2025is by unauthorized witness and for all above reasons, he justifies theorder of acquittal and prays to refuse leave.

In the line of above submissions, evidence on record isvisited. PW1 Shashank seems to be the sanctioning authority; PW2Govind seems to be the complainant, who set law into motion; PW3Shankar is the shadow panch; PW4 Mayur seems to be the PoliceConstable of ACB Office; PW5 Chandrashekar is an expert who issuedHash Value certificate of the recording of voice samples; and PW6Sahebrao is the another Investigating Officer.

As there is no dispute that, the accused facing trial as apublic servant, it is at the threshold required to be tested whethersanction to prosecute itself was valid as there is controversy to thatregard.

On visiting evidence of PW1 Shashank at Exh.11, sanctioningauthority, witness seems to have given his designation as Dy Secretary, Government of Maharashtra in Agriculture, Animal husbandry, DiaryDevelopment and Fishery Department in Mantralaya. According to him, he received all the relevant investigating papers pertaining to CrimeNo.3011 of 2015 of Nandurbar City Police Station. He claims to have -4- ALS-92-2025perused the papers and on getting satisfied about availability of primafacie substance, he accorded sanction to prosecute. He further deposedthat, before sanctioning, he had also obtained sanction from the Ministryof the above department and it was also further forwarded before Lawand Judiciary Department. While under cross, he has admitted that head of hisdepartment is Secretary. He also admitted accused is the Class-I Officer. On being confronted a Government Resolution as regards to clause 4-A inview of the salary of employee exceeding Rs.10,650/-, sanction of ChiefMinister to prosecute the employee was necessary. He admitted that, hedid not obtain sanction from Chief Minister’s officer or In-chargeMinister. He admitted that, proposal letter Exh.12 is addressed to the Secretary of Maharashtra. After deposing that he was directed by Secretary to accord sanction, he admitted that he does not have anydocument to indicate that he was asked to accord sanction. He alsoadmitted that Exh.18 shows that competent authority to accord sanctionis Secretary. Therefore, when this witness was not Secretary and wasrather Deputy Secretary, as submitted, sanction is not by authorizedperson.

Now, as regards to demand is concerned, it is settled lawthat, for attracting the charges it is expected of prosecution to first -5- ALS-92-2025substantiate that there was demand of bribe. Law is fairly settled thatmere possession of money is of no use unless demand of bribe is itselfproved. Here, PW2 complainant, who is examined at Exh.24, in his initialpart of testimony deposed that for obtaining balance of Rs.28,500/-,when he visited office of Panchayat Samiti, accused demandedRs.20,000/- to clear the balance amount, but subsequently whiledeposing regarding the events dated 25.02.2015, he started retractingand answered that no instructions were given by Anti Corruption Bureauoffice, they did not halt near the office of Panchayat Samiti and he deniedbeing given any voice recorder. He also denied that, it was agreed to payRs.20,000/-. He denied accompanying panch witness, and therefore, finding him testified to above extent, learned APP finally seems to havecross examined his own witness very complainant i.e. after declaring himhostile.

What is seen from above testimony of complainant itself, it isclear that, this witness has not supported prosecution, and consequently, the crucial aspect of demand of bribe, which is the core of prosecution, itself renders doubtful.

Further, though shadow panch PW3 Shankar, an importantwitness, was made to step into witness box and he testified at Exh.29about attending Anti Corruption Bureau Office, being introduced to the -6- ALS-92-2025complainant, hearing his story of demand of illegal gratification andcausing signature over the complaint, followed instructions by ACB officeregarding recording of conversation in voice recorder and accompanyingcomplainant and finding accused not available in the office, they bothreturning back. Then he deposed about events that took place on25.02.2015 regarding he accompanying complainant to the office of theaccused where, according to him, there was conversation betweencomplainant and accused, and accused demanding Rs.22,000/- forclearing the balance, he and complainant returning and conversationrecorded in DVR being heard, and thereafter, script of conversation beingdrawn. Regarding main trap he has testified in paragraph no.18, but hereagain he stated that when he went with the complainant to the office ofaccused, accused was not present in the office, and therefore, complainant gave phone call on the mobile of accused and aftersometime accused coming. They proceeding near the statute of ShivajiMaharaj and he deposed that he and complainant were facing towardsaccused and that time complainant removed the tainted currency andhanded it to the accused, who allegedly accepted the same, which wasfollowed by relay of signal.

Thus, what is emerging from above evidence is that on thatday, while this witness was in the company of complainant, there was no -7- ALS-92-2025demand, and it is so evidence from his testimony from paragraph 18. Thiswitness merely stated that, not finding accused in the office, complainantmade call to him and after making such call, accused arriving there. Here, he does not speak about any demand being raised by accused andhe rather states that, while and he and complainant were facing towardsaccused near Shivaji Maharaj Statue, at that time, complainant on hisown handed over tainted currency to the accused. Thus, even fromtestimony of this witness, aspect of demand is itself coming undershadow of doubt.

PW4 Mayur seems to be the Police Constable, who wasassigned the work of recording the conversation in DVR and drawingscript and issuing certificate 65-B. While under cross, he is unable to state in whose custodyExh.50 was lying for a period from 28.02.2015 to 09.01.2018. Headmitted that, Exh.48 and 49, which are certificate of possession andremoval of hash value and conversation Exh.48 drawn from the memorycard, does not bear his signature. Therefore, the exercise of issuance of65-B certificate is not free from doubt. For said reasons, case ofprosecution is rendered doubtful. PW5 Chandrashekhar also a police constable is on the samelines as like PW4. -8- ALS-92-2025 PW6 Sahebrao is the Investigating Officer. While undercross, he has admitted that, in this case, complainant had receivedRs.1,12,500/- by way of loan from Government and out of it, Rs.84,000/-were received by cheque. He admitted that, after going through the rulesframed by Government on the point of same scheme, whatever amount isto be disbursed is through cross cheque. He also admitted that he did notcome across during investigation that accused had authority to issuecheque. Therefore, when accused was not authorized to do the workexpected by complainant, even the aspect of motives comes undershadow of doubt.

For all above reasons and on many counts as stated above, the case of prosecution having been rendered doubtful, this court doesnot find that any fruitful purpose would be served by according leave. Hence, the following order is passed : ORDER (i)Leave is refused. (ii)Application for Leave to Appeal by State is rejected. (ABHAY S. WAGHWASE, J.)Tandale