High Court
Legal Reasoning
{1} CRI APPEAL 652 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 652 OF 2004Onkar s/o. Hariram ShiraleAge: 52 years, Occu.: Service,R/o. Ektanagar, Parbhani,District Parbhani.….Appellant (Original Accused)VersusThe State of Maharashtra….Respondent …..WITHCRIMINAL APPLICATION NO. 3832 OF 2023INCRIMINAL APPEAL NO. 652 OF 2004 Onkar S/o. Hariram ShiraleAge: 65 years, Occu.: Nil,R/o. Ektanagar, Parbhani,District Parbhani.….Applicant VersusThe State of Maharashtra….Respondent …..Advocate for Appellant – Applicant : Mr. S.P. Chapalgaonkar APP for Respondent : Mrs.Chaitali Chaudhari – Kutti ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 26 SEPTEMBER, 2024 PRONOUNCED ON : 04 OCTOBER, 2024 JUDGMENT :- 1.In this appeal, there is challenge to the judgment and order {2} CRI APPEAL 652 OF 2004dated 28-09-2004 passed by the Special Judge, Parbhani in SpecialCase No.5 of 2001 thereby convicting the appellant for offence underSections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act(PC Act). FACTS IN BRIEF LEADING TO TRIAL2.PW1 Gulab Digambarrao Pawar, an agriculturist, was intendingto carry out sale transaction of land survey no.210 situated at villageWazur. As such he was in need of 7/12 extract and therefore, heapproached appellant, a Talathi. For issuing 7/12 extract, appellantdemanded Rs.1,000/-. On request of complainant PW1, figure wasbrought down and on that day, he accepted Rs.100/- and directedcomplainant to bring remaining amount. Complainant, as was notwilling to pay bribe, lodged report with ACB authority, who plannedand arranged trap by summoning panchas and explaining panchasnecessary procedure. PW2 Sambha Rathoji Sadawarte, shadowpancha and PW1 complainant approached accused at Parbhani at hisresidence. There accused put up demand and accepted the amount,after which predetermined signal was relayed and appellant wasapprehended. Thereafter, complaint was lodged, which wasinvestigated and appellant was duly chargesheeted and tried bySpecial Judge, Parbhani and finally held guilty. Hence, appeal.
Legal Reasoning
{3} CRI APPEAL 652 OF 2004SUBMISSIONSOn behalf of appellant :3. Learned Counsel for the appellant alleges false implication.According to him, there is no convincing, cogent and reliableevidence on behalf of prosecution in the trial Court. He verystrenuously and emphatically submitted that in this case, there is nodemand at all. On this count, he sought reliance on the evidence ofPW2 Sambha, shadow pancha. He submitted that testimonies ofboth PW1 complainant and PW2 shadow pancha are not consistent.That there are material variances. He further submitted that infact7/12 extract was already issued and therefore, there was no questionof putting up demand of bribe. He pointed out that infact amountwas thrusted and there is admission to this extent by PW2 shadowpancha. He lastly submitted that in this case, there is no validsanction and therefore, even prosecution and guilt cannot accepted.He took this Court through the evidence of PW4 Deelip Ranba Gutte,sanctioning authority and would submit that it is evident fromanswers given by him in his cross-examination that there is total non-application of mind and as such sanction is not good sanction in theeyes of law. For all above reasons, he prays to allow the appeal bysetting aside the conviction. {4} CRI APPEAL 652 OF 2004 On behalf of State :4. Learned APP, who opposed appeal and favoured the judgment,would submit that appellant was Talathi and he had put up demandof bribe. There was prompt lodgment of complaint. That in presenceof shadow pancha amount was demanded and even accepted. Thateven sanction is valid as all papers were studied by the sanctioningauthority. Therefore, according to her, judgment is infallible andneed to be confirmed by dismissing the appeal. EVIDENCE ON RECORD5.In support of its case, prosecution has examined as many asfive witnesses. The sum and substance of their evidence is as under :PW1 Gulab Digambarrao Pawar, complainant in his evidence atexh.15, deposed that he has share of land in survey no.210, whichhe had intended to sale and therefore, he approached appellantTalathi of village Wazur for 7/12 extract. He deposed that, on beingapproached, appellant asked him to pay Rs.1,000/-, if he requires7/12 extract immediately. He deposed that when he expressed hisinability to pay amount, appellant denied to issue 7/12 extract. Thaton the request of complainant, accused appellant asked him to pay {5} CRI APPEAL 652 OF 2004whichever amount is with him and therefore, complainant paidRs.100/-, after which, appellant old him that he should pay balanceRs.900/- at Wajur and to collect 7/12 extract. Complaint to thatextent was lodged to ACB authority, who planned and arranged trapand on proceeding at his house, appellant accepted tainted currencyand therefore, was trapped and apprehended. PW2 Sambha Raghoji Sadawarte, shadow pancha deposed at exh.18that he was called at ACB Office. That he met complainant, wentthrough the complaint, complainant produced currency before ACBauthority. That demonstration and necessary instructions were givento them. In paragraph 3, he deposed that he accompaniedcomplainant to meet appellant at Wajur, but it was realized that hewas already left for Parbhani and therefore, they proceeded towardsParbhani to the resident of appellant at Ekta Nagar. That there, in hispresence, demand was made and even accepted. This witness claimsthat he pointed out to raiding party the person, who accepted theamount and therefore, necessary formalities were completed. PW3 Manik Shivram Perke is the Investigating Officer. PW4 Deelip Ranba Gutte is the Sanctioning Authority. {6} CRI APPEAL 652 OF 2004 ANALYSIS6.Two fundamental grounds of challenge are that firstly, herethere is no demand secondly, there is no valid sanction.FIRST GROUND :7.In support of defence and ground that there was no demand,appellant primarily relied on evidence of PW2 Sambha, shadowpancha, more particularly, evidence in paragraph no.3. On scrutiny of his evidence to that extent, it is noticed that hehas deposed that they entered house of accused, who asked them toseat on Sofa set while accused sat on cot. Complainant demanded7/12 extract to that person narrating his urgency. Accused askedGulab whether he had come prepared and as per directions.However, from above discussion, it can be clearly discerned thatcomplainant is questioned whether he has come prepared. Evidenceof complainant has remained intact as regards to demand ofRs.1,000/-, Rs.100/- accepted by way of advance and furtherdirections to come with remaining amount to collect 7/12 extract. PW2 Sambha, shadow pancha was in the company ofcomplainant and though he stated that complainant asked whetherhe has come prepared, clear inference can be drawn is that demand {7} CRI APPEAL 652 OF 2004was of remaining amount. Above text appearing in evidence of PW2Sambha, shadow pancha cannot be read in isolation. The precedingand post conversation evidence also needs to be analyzed andappreciated, wherein PW2 Sambha, shadow pancha has narrated thatafter being called to ACB Office, he was introduced to thecomplainant and made aware of the complaint. That in his presenceamount to be paid was taken from complainant to which anthracenepowder was applied and this entire demonstration watched by thiswitness has been testified by this witness in his evidence. Therefore,above submission that there is no demand, has no force.SECOND GROUND :8.The second ground of challenge is that there is no validsanction, as according to learned Counsel for appellant, there is noapplication of mind before according sanction. In the light of above objection, it would be desirable toreproduce paragraph no. 2 of testimony of PW4 Gutte.“2.On 20.6.2001 I received a letter from SP ACB Aurangabadwith a request to accord sanction for prosecution of the accused. Theletter Exh.39 is the office copy of the letter. I received case papersalongwith the said letter of SP ACB Aurangabad. I had gone throughthe case papers. On considering the recital in the case papers, Iformed my opinion that there was prima facie grounds for prosecution {8} CRI APPEAL 652 OF 2004of the accused. Therefore, I accorded sanction for prosecution of theaccused. Sanction order now shown to me is the same. It bears mysignature. Its contents are true and correct. It is marked as Exhibit-42. Sub-Divisional Officer is appointing and removing authority of theTalathi.” 9.On visiting answers given in cross-examination to whichattention is invited, it is true that this witness has not received the listof documents and that he has received draft sanction and had takenaid of it. However, in his examination-in-chief, he is very categoricalthat after receiving case papers, he has gone through the case papersand after going through recital of the case papers, he accordedsanction. His answer that he is unable to state whether 7/12 extracthad been issued to the complainant or not, is not of muchsignificance because acts of demand and acceptance, which is sinequa non for attracting the charges are very much available in theevidence of complainant, whose testimony has remained virtuallyunshaken and is finding support from testimony of PW2 shadowpancha. Consequently, there is no merit in the appeal. Accordingly, Iproceed to pass following order : {9} CRI APPEAL 652 OF 2004ORDER(i) Criminal Appeal No.652 of 2004 is dismissed.(ii) Criminal Application No.3832 of 2023 is also disposed of. ( ABHAY S. WAGHWASE ) JUDGE 10.On pronouncement of this Judgment, learned Counsel for theappellant prays for six weeks time to surrender so as to enable him toapproach the Hon’ble Apex Court.11.Learned APP strongly opposes the same.12.Considering the above request made by learned Counsel for theappellant, six weeks time is granted for the appellant to surrender. ( ABHAY S. WAGHWASE ) JUDGE SPT