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-1- Cri.Appeal.520.2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 520 OF 2003WITHCRIMINAL APPLICATION NO. 2880 OF 2018Kamalakar s/o Deoba Sabale, Age : 41 years, Occu. : Service, (Working as Talathi at Aurangabad), Tq. & Dist. Aurangabad… Appellant (Accused)VersusThe State of Maharashtra,Through P. S. KarmadDist. Aurangabad.for ACB Aurangabad… Respondent…Mr. Joydeep Chatterji, Advocate for Appellant. Mr. N. D. Batule, APP for Respondent – State.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 29th FEBRUARY, 2024PRONOUNCED ON : 6th MARCH, 2024JUDGMENT : 1.Conviction awarded for offence punishable undersections 7 and 13 of Prevention of Corruption Act, 1988 by thelearned Special Judge, Aurangabad in Special Case No. 4 of 1998,dated 25.06.2003 is hereby assailed by the accused.FACTUAL MATRIX2.In brief, prosecution was launched against presentappellant on accusation that, while he was working as Talathi andthus being a public servant, he demanded illegal gratification to the
Legal Reasoning
-2- Cri.Appeal.520.2003tune of Rs.5,000/- from complainant PW1 Baliram, who hadapproached him with a request to take mutation entry ofVatsalabai in 7/12 extract. Complainant PW1 Baliram approachedAnti Corruption Bureau (ACB) authorities, lodged complaint atExh.19. Said Authorities planned raid and trap by arrangingpanchas on 01.01.1997. While complainant was accompanied bypanch witnesses, accused demanded and accepted amount and wasthereby apprehended. After investigation, he was charge-sheetedfor above offence and on trial being conducted, held appellantguilty by learned Special Judge, Aurangabad. Hence, instantappeal. SUBMISSIONSOn behalf of appellant :-3.The sum and substance of arguments advanced bylearned counsel for appellant is that, there is no dispute thatappellant was working as Talathi. According to him, on that day,amount was accepted not as a bribe, but amount towards smallsavings scheme, which is a scheme enforced by Government andwork of which was entrusted to appellant. Further according tohim, evidence of complainant and shadow panch is not convincing.That, in fact prosecution had failed to establish demand andacceptance of illegal gratification beyond reasonable doubt. He tookthis court through the testimony of PW1 Baliram and would point -3- Cri.Appeal.520.2003out that in substantial evidence itself, complainant was confusedwhether the amount demanded was for himself or not. He invitedattention of the court to para 3 of examination-in-chief ofcomplainant.4.He next submitted that, complainant himself was notwilling to lodge complaint, but he had lodged complaint at theinstance of one Sandu Shalke and there is admission to that extentin para 6 of cross. Further according to him, material witnessVishwanth Maharaj, who allegedly accompanying complainant hasnot been examined. It is tried to be impressed that very testimonyof complainant in para 4 clearly shows that, there was no demandat all from appellant side, rather complainant himself, before anydemand declared that he had brought money. Therefore, accordingto learned counsel, there is no demand in this case.5.Learned counsel also submitted that, complainant inthe substantive evidence deposed about accused agreeing to issuereceipt and the same was towards small savings scheme, of whichappellant was given target by higher authorities. According tolearned counsel, if there is illegal gratification, where is thequestion of issuing receipt. Further according to him, at the time ofsaid demand, several independent persons were present, but thesame are also not examined. -4- Cri.Appeal.520.20036.Attacking the prosecution case for want of sufficientcorroboration to the testimony of complainant, he pointed out that,even panch witness has deposed that, in his presence accusedprepared receipts in the name of Vatsalabai and on payment ofamount, accused agreed to issue receipt. Consequently, learnedcounsel submitted that, even this independent witness confirmsissuance of receipt on payment. He invited attention of the court tothe deposition of PW3 Shivaji in para 3 and pointed out that,complainant had demanded receipts after paying. Thus, accordingto him, with such material on record, by no stretch of imaginationit can be said that there was acceptance of illegal gratification.7.Criticizing the prosecution evidence on the point ofsanction, it is submitted that, there is no proper scrutiny orapplication of mind independently. Moreover, sanctioningauthority himself confirmed that, there was no work ofcomplainant pending with accused. Further, sanction wasapparently accorded by putting to use draft sanction order. Hepointed out that even sanctioning authority admitted in cross that,scheme of small savings was to be executed by Talathis and as suchthough amount was accepted, there is no demand of illegalgratification and the amount is towards small savings scheme. -5- Cri.Appeal.520.2003 For all above reasons, he submits that, it is a fit case toextend benefit of doubt as prosecution has failed to discharge itsprimary burden by proving the case beyond reasonable doubt. Learned counsel for the appellant, in order tosubstantiate his contentions, placed reliance on the followingrulings : i]Tryambak Lilaji Binnar v. State of Maharashtra, 2002 (3) Mh.L.J. 293 ii]Ratnakar Narayan Morankar v. The State of Maharashtra, Criminal Appeal No. 560 of 2005 (High Court of Bombay, Bench At Aurangabad)On behalf of State : -8.In answer to above, learned APP pointed out that,prosecution had establish its case by adducing testimony ofcomplainant and independent shadow panch, who are bothconsistent on the point of demand and acceptance of illegalgratification for entering name in 7/12 extract. The defence put upis false and afterthought. The demand was only for doing officialwork and not towards any scheme. Sanctioning authority hasaccorded sanction after application of mind, and therefore, takingsuch evidence into consideration, it is submitted that, learned trialJudge has rightly convicted the accused and he prays to dismissthe appeal. -6- Cri.Appeal.520.20039.On carefully scrutiny and re-appreciation, here, it isthe case of prosecution that, accused appellant while working as aTalathi, put up a demand of illegal gratification for entering namein revenue record. Trap was laid and he was apprehended whileaccepting and possessing tainted currency. Whereas, defence put up is that though amount wasaccepted, it was not towards illegal gratification, rather it wastowards contribution for small savings scheme.EVIDENCE ON BEHALF OF PROSECUTION10.PW1 Baliram is the complainant. The sum andsubstance of his evidence is that, when he approached accused forentering name of his sister in 7/12 extract, there was demand ofRs.5,000/- which was subsequently brought down to Rs.2,000/-and remaining Rs.3,000/- was to be paid later. Thereafter,complainant approached Anti Corruption Bureau (ACB)authorities, lodged complaint at Exh.19 and ACB authoritiesarranged pancha, explained them the procedure and directed topay tainted currencies on demand. After meeting, complainantinitially asked accused about his work, upon which accusedinitially issued two receipts (Exhs.21 and 22) and after teaaccused asked about the money as settled on previous day, upon -7- Cri.Appeal.520.2003which complainant took out the same and held it before accused,who collected it and accepted and thereafter raiding partyapprehended accused.11.On going through the cross of complainant, questionsseem to have been put regarding the incident taking place eightyears back. He admitted that, he was aware that accused was notauthorized to do their work. He admitted that, one Sandu Shalkehad told him about ACB office and that accused had offered todeposit the amount with Tahsil office or with him, by handing overfour forms, suggesting to obtain thumb impression of Vatsalabai.He admitted that, he had asked the accused about the receipt ofRs.2,000/-, to which accused told him that he would get it afterpaying the whole amount. Accused told that, the said amountwould be deposited in the name of Vatsalabai. He further admittedthat, he lodged report at the instance of Sandu Shalke.12.Shadow panch PW3 Shivaji at Exh.37 testified aboutvisiting ACB office, being introduced to complainant, going throughhis complaint, he and complainant both made aware of theprocedure of application of anthracene powder to the currencies,panchanama of the same being drawn and he accompanyingcomplainant to approach accused. According to him, accused asked -8- Cri.Appeal.520.2003complainant whether amount has been brought as agreed. In hispresence, accused prepared two receipts of Rs.240/- and Rs.225/-respectively in the name of Vatsalabai while at office and whenthey went to take tea, accused asked whether he had brought themoney and complainant told that he has brought Rs.2,000/- as toldto him and then accused demanded him the money, which washanded over by complainant and accepted by accused. Panchfurther testified that, accused then asked the complainant when hewould give balance amount of Rs.3,000/-, upon which complainanttold that he would pay after selling the cotton. 13.On going through the cross of shadow panch, there isomission brought regarding before going to take tea accused askingcomplainant about money. He is further asked who was sitting inthe hotel, its distance from Talathi office, at what distance accusedwas caught, whether there was Master and Waiter in the hotel. Incross it has been brought that, complainant paid tainted money tothe accused in the hotel and accused made some account andcalculations. Rest is all denial.ANALYSIS14.Pointing to the above evidence, learned counsel forappellant tried to submit that, it is clearly emerging that, afteraccepting the amount, there was drawing of receipts (Exhs.21 and -9- Cri.Appeal.520.200322). That, both complainant as well as shadow panch are candidlyadmitting about accused accepting money and drawing receiptsand even returning some amount to complainant. Therefore, it ishis submission that, defence of accused is clearly made out. That,the amount so demanded and accepted was towards small savingsand not a bribe. This argument though sounds attractive, it cannot beaccepted for the simple reason that Exhs. 21 and 22 are receiptstoward revenue record. Complainant is very categorical incomplaint as well as substantive evidence that when heapproached accused to enter name of his sister Vatsalabai in 7/12extract, accused demanded Rs.5,000/-. Complainant agreed to payRs.2,000/-. Complainant is further categorical that, he was able topay only Rs.2,000/-, and therefore, he was asked to come on nextday i.e. on 01.01.1997 and accordingly an amount of Rs.550/- washanded over in addition to Rs.2,000/-. He further categoricallystated that, at such time, he had agreed to pay remaining amountof Rs.3,000/- after work is done. Witness further stated that, hesought indulgence of Vishwanath Maharaj to reduce the amount. PW3 Shivaji shadow panch also, though speaks ofaccused preparing receipts of Rs.240/- and Rs.225/- respectively -10- Cri.Appeal.520.2003and refunding Rs.50/- while at Tahsil office, but he is alsocategorical that thereafter they went to have tea and that timeagain accused asked complainant whether he brought money, uponwhich complainant said to him about bringing Rs.2,000/- as told tohim, then accused demanded and even accepted the amount in hisfist. It has further come in his evidence that, accused again askedcomplainant when he would pay the balance amount of Rs.3,000/-. Considering such evidence of PW1 Baliram and PW3Shivaji, in the opinion of this court, there is no confusion that,when complainant approached accused, he put up a demand ofRs.5,000/- and finally agreed to accept Rs.2,000/- on the day oftrap and that remaining amount would be paid later on. Thoughthere is conversation about paying Rs.240/- and 225/-, of whichreceipts are issued, bribe amount is distinct demand for carryingmutation. Here, evidence of PW1 Baliram and PW3 Shivaji clearlyshows that, on the day of trap, again demand was raised and met.Questioning by accused regarding remaining amount of Rs.3,000/-fortifies the aspect of demand of Rs.5,000/-. Mere suggestion aboutaccused, being Talathi, also performing work of small savingsscheme, itself would not be sufficient to hold that the amount soaccepted was towards said scheme and not towards bribe. Further,there is no distinct suggestion to PW3 Shivaji and independent -11- Cri.Appeal.520.2003panch on the point of amount paid towards small savings scheme.Hence, defence so taken cannot be accepted as a rebuttal ofpresumption or probabilizing the defence.15.I have gone through the rulings and citations tried tobe taken aid of, but facts in those cases are materially distinct thanthe facts in the case in hand. Therefore, with due respect, it is notopen for appellant to seek reliance of the same. Though this verycourt had accepted such defence of accused in the case of RatnakarNarayan Morankar (supra) in Criminal Appeal No.560 of 2005,there was distinct material about contribution made towards smallsavings. Here, it is not so. Except mere suggestions, there isnothing to accept such defence. Hence, none of the rulings can betaken aid of by the appellant. 16.Having gone through the impugned judgment, thiscourt is convinced that, with such quality of evidence, theconclusion reached at by learned trial Judge is just, legal andproper and findings are supported by assigning sound reasons. Noperversity or illegality is brought to the notice so as to interfere inthe findings arrived at by the learned trial Judge. Finding nomerits, I proceed to pass the following order :- -12- Cri.Appeal.520.2003ORDER i)The criminal appeal stands dismissed.ii)In view of disposal of the appeal itself, CriminalApplication No.2880 of 2018 does not survive and it isaccordingly disposed of. (ABHAY S. WAGHWASE, J.) 17.On pronouncement of this judgment, learned counselfor appellant prays four weeks time to surrender so as to enablehim to approach the Hon’ble Apex Court.18.Learned APP strongly opposes the same.19.Considering the above request made by learned counselfor the appellant, four weeks time is granted for the appellant tosurrender. (ABHAY S. WAGHWASE, J.) Tandale