Bombay High Court
Arun S/O Laxman Satokar vs State Of Mah. Thru. Dy. Suptd. Of Police on 18 April, 2017
CRI. APPEAL NO.401.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.401 OF 2008
Arun s/o Laxman Satokar,
Aged about 55 years,
Occupation-Nazul Surveyor,
T.I.L.R., Wani, Tahsil-Wani,
District-Yavatmal. .. APPELLANT
.. VERSUS ..
The State of Maharashtra,
Through its Deputy Superintendent
of Police, Anti-Corruption Bureau,
Yavatmal. .. RESPONDENT
..........
Shri Anil S. Mardikar, Senior Advocate a/w Shri Sumit G.
Joshi, Advocate and Ms. Akshaya Kshirsagar, Advocate for
Appellant,
Shri I.J. Damle, Additional Public Prosecutor for Respondent-
State.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : APRIL 18, 2017.
ORAL JUDGMENT
This appeal takes an exception to the judgment and order dated 12.6.2008 passed by the learned Special ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:07 ::: CRI. APPEAL NO.401.08.odt 2 Judge, Pandharkawada in Special Case No.5/2004 convicting the appellant for the offences under sections 7 and 13 (1)
(d) punishable under section 13 (2) of the Prevention of Corruption Act, 1988 and sentencing him as under :
Conviction under section Sentence
7 Rigorous imprisonment for one
year and fine of Rs.2,000/-
in-default rigorous Imprisonment
for three months.
13 (2) Rigorous imprisonment for one
year and fine of Rs.1,000/-
in-default rigorous imprisonment
for one month.
2] Prosecution case which can be revealed from the
charge-sheet and connecting papers thereto may be stated, in brief, as under :
(a) Complainant Ananta Wasekar is brother of Surekha Chikate and brother-in-law of Shilatai Bobade. They were residents of Wani. Accused was serving as Nazul Surveyor. Surekha and Shilatai purchased plot no.2/4 Sheet No.102 ad-measuring 2400 sq.ft. for the consideration of Rs.1,20,000/- by two different sale deeds. As there was no male member in the families of Surekha ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:07 ::: CRI. APPEAL NO.401.08.odt 3 and Shilatai, Ananta approached Nazul Survey Department for mutation of plot in the name of both the purchasers. Surekha and Shilatai had also moved applications for mutation.
Complainant met the accused. Accused asked complainant to get the plot measured and submit receipt of measurement fees. On 1.6.2004, complainant deposited Rs.1,500/- for measurement. The plot was measured by Surveyor Shri Kinake on 16.6.2004. Shri Kinake supplied measurement sheet on 21.6.2004. Complainant then met the accused. Accused told him to bring photo copy of map and receipt depositing measurement fees.
(b) On 7.8.2004, complainant approached accused and enquired about mutation. According to complainant, accused demanded Rs.2,000/-. Complainant informed the accused that both the ladies are poor and widow and, therefore, it was not possible for them to pay Rs.2,000/-. Accused brought down the demand to Rs.500/- and asked complainant to come on 10.8.2004.
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(c) Complainant was not willing to pay bribe. He approached Anti-Corruption Bureau, Yavatmal and lodged the report. Deputy Superintendent of Police Shri Mairal reduced the complaint to writing. On the same day, trap was arranged. It was successful and five currency notes of denomination of Rs.100/- each were found in possession of the accused. Pre-trap panchanama was prepared before the actual trap. After trap was successful, post trap panchanama was drawn. Statements of witnesses were recorded. On completing investigation papers were submitted to the competent authority for issuing sanction. PW-3 Pandit Kanekar was Deputy Director of Land Records at Amravati. Being sanctioning authority, he issued sanction to prosecute the accused. Thereafter, charge-sheet was filed before the Special Court.
3] Charge of the alleged offence came to be framed against the accused vide Exh.3. He pleaded not guilty and claimed to be tried. Accused raised specific defence that Vijay Mate, close relative of then sitting MLA tried to kill the ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 5 son of accused. A report of the incident was lodged by father of accused. Vijay Mate had strong political support and at his instance, complainant attempted to implicate the accused in a false trap. Another defence of the accused appears to be that measurement fees which was required to be paid by complainant was Rs.2,000/-. Complainant deposited Rs.,1500/- on 1.6.2002. The amount of Rs.500/- was the deficit fee which was required to be paid. Accused processed the applications for mutation and he did his job. Further action was required to be taken by T.I.L.R. and not by him. Having completed the job at his end, there was no need or occasion for the accused to make a demand and accept the amount, as alleged by the complainant. In sum and substance, defence is that to wreak vengeance at the instance of Vijay Mate, a false case came to be filed against him.
4] To substantiate the alleged guilt of the accused, prosecution examined in all four witnesses viz. PW-1 Ananta Wasekar (Exh.13), PW-2 Chandrajit Deviputra (Exh.22), PW- 3 Pandit Kanekar (Exh.35) and PW-4 Ashok Mairal, Investigating Officer (Exh.38). Considering the evidence of complainant, panch witnesses, sanctioning authority and ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 6 investigating officer, trial court came to the conclusion that demand and acceptance were proved beyond reasonable doubt. Regarding sanction, evidence of PW-3-Competent Authority was relied upon and sanction was held as legal and valid. On the basis of evidence of above witnesses, trial court held that charge was proved beyond reasonable doubt and in consequence thereof convicted the accused. Hence, this appeal.
5] Shri Anil Mardikar, learned Senior Counsel for the appellant vehemently submitted that accused had processed the applications and his job was over. Further action was to be taken by T.I.L.R. So question of demand, as stated by complainant, would not arise. It is submitted that mutation entry was entered in the register. The duty of accused was only to enter mutation entry in the register. So far as confirmation of the entry is concerned, it was to be certified by T.I.L.R. Since accused performed his duty before the date of alleged demand, there was no question for asking illegal gratification from the complainant. 6] The next submission is that accused did not touch the currency notes. The amount was not handed over to ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 7 him. The same was kept in paper box on the table. This fortifies the contention of accused that money was planted by the complainant at the instance of Vijay Mate, who had a reason to grind an axe against the accused. 7] Regarding sanction, submission is that competent authority has not taken into consideration the entire material. It failed to record the subjective satisfaction. Conviction is based on statutory presumption under Section 20 of the Prevention of Corruption Act, though evidence on demand of money as a bribe is totally absent. In sum and substance, it is submitted that prosecution failed to establish the charge and trial court committed serious error in recording the judgment and order of conviction and sentence.
8] Per contra, Shri Damle, learned Additional Public Prosecutor strongly supports the judgment and order of conviction and sentence and submits that complainant has stated in complaint and also in evidence that accused demanded money towards bribe. He further submits that trap was successful and currency notes were found from the possession of the accused. Accused picked up the paper ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 8 box containing the currency notes and put it in the drawer of his table. It is submitted that trap was successful and based on evidence, trial court has rightly convicted the accused. 9] On the basis of the material placed on record and submissions advanced on behalf of the parties, following points arise for determination of this court :
(i) Whether prosecution has proved that on 7.8.2004, appellant-accused being a public servant had demanded an amount of Rs.500/- as a remuneration other than legal remuneration as a motive or reward for showing favour to complainant in exercise of his duty in the matter of mutation entry of plot purchased by relatives of complainant and agreed to accept the same on 10.8.2004 in the office at Wani and on 10.8.2004, accused accepted Rs.500/- as illegal gratification ?.
(ii) Whether prosecution has further proved that appellant being public servant committed criminal misconduct by securing amount of Rs.500/- by corrupt or illegal ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 9 means from complainant by abusing his position as a public servant ?.
(iii) Whether sanction to prosecute the appellant granted by PW-3 Sanctioning Authority Shri Kanekar is legal and valid ?. 10] Findings to above points (i) and (ii) are in the negative and point (iii) in the affirmative for the reasons to follow.
REASONS 11] Following are the undisputed facts :
At the relevant time, accused was serving as a Nasual Surveyor in the office of T.I.L.R., Wani, District- Yavatmal. On 5.3.2003, Surekha Chikate and Shilatai Bobade moved applications for mutation of plot no.2/4, sheet no.102 purchased by them by two different sale deeds. As there was no male member in their families, Ananta, being their close relative, was pursuing the mutation proceedings. Ananta approached the accused in his office and enquired about mutation. Accused told the complainant to get the land measured and submit the ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 10 receipt of measurement fees. On 1.6.2004, complainant deposited Rs.1,500/- for measurement of plot. The said plot was measured by Surveyor Shri Kinake on 16.6.2004 and measurement sheet was issued by the Surveyor on
21.6.2004. Thereafter, complainant met the accused. Accused asked the complainant to bring photo copy of map and measurement fees. The total measurement fee to be deposited was Rs.2,000/- and Rs.1,500/-, as stated above, were deposited on 1.6.2004.
12] In view of above facts which are not in dispute, this court has to consider the evidence of complainant and panch witness to find out whether amount of Rs.500/- was demanded and accepted by the accused as illegal gratification, as alleged by the complainant. 13] PW-1 Ananta Wasekar states in his evidence that he approached the accused on 7.8.2004 and accused demanded Rs.2,000/-. Complainant told the accused that both the ladies are poor and on that accused told him that he had to pay at least Rs.500/-. Since complainant was not willing to pay bribe, he approached the Anti-Corruption Bureau office and reported the incident. The evidence of ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 11 complainant further indicates that trap was arranged on the same day. He was introduced to both the panch witnesses called by the officer of Anti-Corruption Bureau. Demonstration of use of anthracene powder was given. He had given five currency notes of denomination of Rs.100/- each, pre-trap panchanama was drawn and then raiding party proceeded to Wani in a vehicle. The vehicle was stopped in front of Lokmanya Tilak Vidyalaya. Complainant along with panch no.1 went to the office of accused. Accused was standing near pan shop. Complainant saluted him. Thereafter, complainant and one unknown person sat in front of the accused and complainant asked the accused whether work was completed. Thereafter, the unknown person left the office. Accused demanded Rs.500/-. Complainant took out currency notes from his pocket and when he was about to give the same to the accused, he was asked by the accused to keep the currency notes in a paper box kept on the table. That time, panch no.1 was sitting in the office of the accused. Accordingly, currency notes were kept in the paper box on the table. Accused picked up the paper box and put the same inside the drawer. Signal was given to the raiding party members. They rushed and accused was caught. ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 12 Currency notes were found in the drawer of table of the accused. PW-4 API Mairal confirmed the demand and acceptance of amount and drew post trap panchanama. The evidence of complainant is supported by PW-2 Chandrajit Deviputra and PW-4 Investigating Officer Ashok Mairal.
14] The moot question in the present case is, whether an amount of Rs.500/- found in the drawer of table was demanded and accepted as a bribe by the accused. According to the prosecution, plot was purchased by Surekha Chikate and Shilatai Bobade by two different sale deeds. Both the ladies moved separate applications for mutation. Complainant was asked by Surekha and Shilatai to process their applications for mutation submitted to T.I.L.R. office. Surekha and Shilatai have not been examined as witnesses.
15] Another drawback in the case of prosecution is that mutation was to be effected in respect of a plot purchased by two purchasers by different sale deeds. On 1.6.2004, complainant deposited Rs.1,500/- towards the measurement fees. The receipt is issued in the name of ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 13 Shilatai Bobade. It is not the case of prosecution that complainant was following the mutation application of Shilatai Bobade alone. In fact, there is no clarity in the case of prosecution and the evidence of complainant is also silent to the effect, whether application of Surekha Chikate was also being processed by the complainant at the relevant time. It appears from the receipt that Rs.1,500/- measurement fee was deposited in respect of one plot. It is not in dispute that measurement fee in all which was to be deposited by the plot owner was Rs.2,000/-. It means Rs.500/- were in deficit so far as measurement fee is concerned.
16] It is the defence of accused that entire measurement fee was not deposited by the complainant. If at all accused was to make a demand and if according to the complainant he was looking after both the applications for mutation moved by two ladies, then alleged demand would have been in respect of both the applications and not one, as stated by the complainant. There is no whisper in the evidence of complainant that demand was for mutation of plot in the name of both the ladies or in respect of Shilatai Bobade alone. The evidence of complainant on this aspect ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 14 is vague. It is not in serious dispute that recording entry in the register for mutation was the job assigned to the accused. So far as the confirmation of mutation entry is concerned, it was for T.I.L.R. to look into the same. 17] In this connection, extract of mutation register has been proved at Exh.17 and entries in register would indicate that on 5.7.2003 entry no.4893 was entered in the register in the name of Surekha Chikate and entry no.4894 was entered in the name of Mangala @ Sushila Bobade. If on 5.7.2003, these entries were made in mutation register, then job on the part of the accused was complete on that day as confirmation of entry was not the duty assigned to accused, but it was with T.I.L.R. If work was complete at the end of the accused much before the complaint, then it is doubtful whether accused made a demand of Rs.500/-, as alleged by the complainant on 7.8.2004 and accepted the same on 10.8.2004.
18] It is no where the case of complainant that entire measurement fee of Rs.2,000/- was deposited and accused demanded Rs.500/- as a bribe. The evidence of complainant clearly shows that measurement fee of Rs.1,500/- was ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 15 deposited and Rs.500/- remained to be deposited. There is unequivocal admission in the cross-examination of complainant that accused had a right to direct them to deposit Rs.500/- more. In view of this admission, it is difficult to believe that accused demanded Rs.500/- as a bribe as alleged by the complainant.
19] So far as acceptance is concerned, admittedly tainted currency notes were not found in the hand of the accused. Mere recovery of tainted money from the drawer of the table is not enough to come to the conclusion that money was recovered from the possession of the accused. Who kept the paper box on the table is not known, who was the unknown person who came with the complainant is a mystery and investigating officer in his wisdom did not investigate into this aspect and did not find out who was that person. It appears from the evidence of complainant that a lady also intervened at the relevant time. She went out after keeping the files and after sometime, accused asked the complainant to call that lady when the complainant was to pay money. No investigation was made in that direction and the concerned lady has not been examined. These are the glaring infirmities left in the ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 16 prosecution case and the same would indicate that somewhere something is being suppressed. 20] If the defence raised by the accused is looked into, it appears to be more probable, plausible, believable and acceptable. According to the accused, one Vijay Mate, a close relative of sitting MLA that time, tried to kill the son of accused. A report of the incident was lodged and to take revenge, Vijay Mate used the complainant to implicate the accused in a false trap case. Since beginning accused raised this defence and the same is reiterated by him in his statement under Section 313 of the Code of Criminal Procedure. The defence raised by the accused cannot be said to be without substance, particularly in the light of the fact that on the date of alleged demand no work was pending with him.
21] Coming to the sanction as required under section 19 of the Act of 1988, it appears from the evidence of PW-3 Kanekar that documents which were submitted for according sanction were perused by him before granting sanction to prosecute the accused. It is stated by Shri Kanekar, the then Deputy Director of Land Records, Amravati that he ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 17 verified all the documents and, thereafter, came to the conclusion that there was sufficient evidence to prosecute the accused. Sanction order (Exh.36) clearly indicates that all the material documents were looked into by the sanctioning authority and subjective satisfaction recorded by the sanctioning authority was based on the verification of record. Nothing could be elicited in the cross-examination of sanctioning authority to disbelieve his evidence. Trial court has observed that sanction is legal and valid and this court, placing reliance on the evidence of sanctioning authority as well as the sanction order, does not find any reason to take a view different than taken by the trial court so far as legality and validity of sanction order is concerned. 22] However, on merits, prosecution does not succeed for want of cogent, trustworthy and reliable evidence on demand and acceptance of money as illegal gratification. Impugned judgment and order of conviction and sentence therefore deserves to be interfered with. In the result, following order :
ORDER
(i) Criminal Appeal No.401 of 2008 is allowed.
(ii) Impugned judgment and order 12.6.2008 passed ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 ::: CRI. APPEAL NO.401.08.odt 18 by the learned Special Judge, Pandharkawada in Special Case No.5/2004 convicting appellant Arun s/o Laxman Satokar for the offences punishable under sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 is hereby set aside.
(iii) Appellant Arun s/o Laxman Satokar is acquitted of the offences punishable under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988.
(iv) Bail bonds of appellant Arun s/o Laxman Satokar shall stand cancelled forthwith.
(v) Fine amount, if deposited, shall be refunded to the appellant.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:08 :::