Bombay High Court
Bhanudas Baburao Pawar vs The State Of Maharashtra on 4 November, 2020
Equivalent citations: AIRONLINE 2020 BOM 2497
Author: Prakash D. Naik
Bench: Prakash D. Naik
Ethape 1/27 Cri.Appeal 275.09.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.275 OF 2009
Bhanudas Baburao Pawar
Aged: 47 years, Occu.Service,
Residing at Bhoiwada Police Line,
A/85, 2nd Floor, Parel, Mumbai. .. Applicant
Vs.
The State Of Maharashtra .. Respondent
......
Mr. C.P. Sengaokar, advocate for Applicant.
Mr. A. R. Kapadnis, A.P.P. for the State-Respondent.
......
CORAM : PRAKASH D. NAIK, J.
JUDGMENT RESERVED ON : 23rd SEPTEMBER 2020
JUDGMENT PRONOUNCED ON : 4th NOVEMBER 2020
JUDGMENT:-
1 This appeal challenges the judgment and order dated 03 rd March, 2009 passed by Special Judge, City Civil and Sessions Judge, Greater Bombay in ACB Special Case No. 17 of 2000, convicting the appellant for the ofence punishable under Section 7 of Prevention of Corruption Act, 1988 and sentencing him to sufer rigorous imprisonment for 6 months and to pay fne of Digitally signed by Manish Rs.1,000/-. The appellant is also convicted for the ofence Manish S. Thatte S. Thatte Date: 2020.11.06 16:05:55 +0530 punishable under Section 13 (1) (d) read with 13 (2) of Ethape 2/27 Cri.Appeal 275.09.doc Prevention of Corruption Act, 1988 and sentenced to sufer rigorous imprisonment for 1 year and to pay fne of Rs.1,000/-. Both the substantive sentences shall run concurrently. 2 The prosecution case is as under:-
(a) The complainant Mr. Peregrine Virendra Gomes is resident of Parel. He wanted to go to Middle-East for job with his wife. He wanted to obtain passports and so he made applications for getting passports for himself and his wife. The passport ofice sent the applications to Bhoiwada Police Station for verifcation.
The accused was working at Bhoiwada Police Chowki as Assistant Sub-Inspector. The applications were referred to the accused for verifcation by Senior Police Inspector of Bhoiwada Police Station.
(b) On 15th July, 1999, the complainant received phone call from Bhoiwada Police Station. The complainant and his wife were informed that they shall attend the Chowki situated near Parel fyover bridge along with original documents. On the same day at about 06:30 p.m. the complainant and his wife visited Police Chowki. They met accused at Police Chowki and produced Ethape 3/27 Cri.Appeal 275.09.doc documents before him. The accused informed the complainant to show other original certifcates and told him to come to Chowki on the next day.
(c) On 16th July, 1999, the complainant and his wife went to Police Chowki at 06:30 p.m. with all the original documents demanded by accused. The accused told the wife of complainant to wait outside and then he made demand of Rs.500/- from complainant as bribe for sending favourable and early reply in the matter. The complainant showed his inability to pay the amount. The demand was reduced to Rs.300/- . The accused told the complainant to come with the money on 17 th July, 1999 after 06:30 p.m.
(d) The complainant had no intention to give bribe and hence he approached Anti Corruption Bureau on 17 th July, 1999. Police Inspector Shastri recorded report of complainant. He called two panch witnesses. The complainant produced the articles on his person, including cash amount. Three notes of Rs.100/- were produced by the complainant. Demonstration of use of anthracin powder was given by Police to the complainant.
Ethape 4/27 Cri.Appeal 275.09.doc (e) The complainant and panch witness Chandrashekhar Waichal were instructed to go ahead. Other necessary
instructions were also given to the complainant. Pre-trap Panchnama was recorded. Complainant and Panch witness reached the Chowki. Both entered the Chowki. The accused was not present in the Chowki. They came out and waited for arrival of accused. The accused came to Chowki at about 07:00 p.m. The complainant and panch entered the Police Chowki.
(f) After entering the Chowki, the complainant made inquiry about his work with accused. The complainant requested to do the work as early as possible. The accused said that if the amount demanded is given, the work would be expedited. The complainant said that he had brought Rs.300/- as per the demand of accused. The accused told complainant to hand over the money and promised to do the work. The complainant took out the marked notes and tendered the amount by using his right hand which were accepted by the accused by right hand and kept in the left chest pocket of his shirt. After handing over the money, the complainant gave pre-decided signal by raiding party. Police Inspector Shastri and his staf rushed to the spot and held Ethape 5/27 Cri.Appeal 275.09.doc the accused. On examining the accused, anthracin powder was detected on both the hands and left side chest pocket. The amount was taken out from left side chest pocket of his shirt. The numbers of these notes tallied with the numbers noted in pre- trap panchnama. Anthracin powder was detected on the fngers of right hand of complainant and mouth portion and deep inner portion of left side chest pocket. On completing investigation, report was submitted to Superior Oficer. The Superior Oficer moved the ofice of Police Commissioner for sanction. The matter was referred to Deputy Commissioner of Police by the ofice of Commissioner of Police. The Deputy Commissioner of Police, accorded the sanction to prosecute the accused. Charge sheet was fled.
3 Charge was framed on 7th February 2007. Four witnesses were examined by the prosecution. (PW No.1) Dilip Govind Shrirao, Deputy Commissioner of Police accorded sanction. (PW No.2) Peregrine Virendra Gomes is complainant. (PW No.3) Chandrashekhar Narayan Waichal is panch witness. (PW No.4) Mr. Abhay Ramrao Shastri is Investigating Oficer.
Ethape 6/27 Cri.Appeal 275.09.doc 4 Learned Advocate for the appellant submitted that,
the prosecution has failed to establish that the appellant had demanded and/or accepted the bribe as motive or reward for showing either favour or disfavour to the complainant while discharging his oficial duty. The sanction order is invalid on several grounds. The sanction is not accorded by the competent authority, who is empowered to remove the accused from his post. There is non application of mind while according the sanction. The appellant was not appointed by PW No.1. He cannot grant sanction for prosecution. Powers of removal from service cannot be delegated. The appellant was appointed by the Commissioner of Police and the oficer of subordinate to him cannot grant sanction. The documents on record shows that sanction was to be granted by Commissioner of Police and not by the Deputy Commissioner of Police. The case of the prosecution is false. The alleged demand was made for sending earlier favourable reply in respect of the applications of complainant and his wife regarding passport verifcation. Admittedly, the complainant was not having bad character. Hence, favourable reply would have been given in ordinary course. The complainant was not in hurry in getting passport. His evidence disclosed that Ethape 7/27 Cri.Appeal 275.09.doc he had received the passport after about one months after this incident. As per procedure, the passport has either to be issued or denied within 45 days from the application. The complainant did not go abroad after getting the passport. Thus, there was no hurry to get the passport. The complainant is accomplice and he had decided to involve the appellant in false case. Work of complainant was not pending with the accused at the time of incident. During investigation PW No.4 had collected the extract of transit register. The register contained entries relating to the complainant and his wife. It shows that accused had submitted verifcation report on 17th July, 1999 to the Senior Police Inspector of Bhoiwada Police Station prior to trap. There were two certifcates signed by Senior Police Inspector of Bhoiwada Police Station on 17th July, 1999. Thus, no work was pending with the accused with regard to verifcation of passport. There is no corroboration to the evidence of complainant in respect of earlier demand. Testimony of complainant cannot be accepted as gospel truth. The prosecution failed to prove the demand dated 17 th July 1999. PW No.2 stated that he alone went to Police Chowki. Panch witness was not with him. Assuming that acceptance is proved, mere acceptance of the amount is not suficient. Demand is sine Ethape 8/27 Cri.Appeal 275.09.doc qua non for prosecuting the accused for the ofences charged against him. The accused had rebutted his presumption under Section 20 of the Prevention of Corruption Act. The trial Court had overlooked defence of accused in his written statement as per of examination in accordance with Section 313 of Criminal Procedure Code. (for short Cr.P.C.).
5 Learned APP submitted that demand and acceptance are proved. There is no reason to disregard the evidence of PW No.2. His version is corroborated by PW No.3 and PW No.4. The bribe amount is accepted by the appellant/accused. The tainted notes found in his possession tallied with the number of notes recorded in pre-trap panchnama. Anthracin powder was found on the currency notes recovered from the accused. The presumption under Section 20 of the Prevention of Corruption Act has not been rebutted by the accused. There is no infrmity in the sanction order. PW No.1 was empowered to grant sanction. PW No.2 has proved in his evidence that the accused had demanded Rs.500/- for sending favourable reply in relation to verifcation received from passport ofice with regard to passports of the complainant and his wife. Accused was apprehended by raiding Ethape 9/27 Cri.Appeal 275.09.doc party and bribe amount was recovered from his possession. The prosecution has proved its case beyond doubt. 6 I have scrutinized the oral and documentary evidence on record. The prosecution case stems from the alleged demand made by the appellant with the complainant. Complainant was intending to go abroad for job and hence, applied for passport for himself and his wife. He received call from Bhoiwada Police Station on 15th July 1999 informing that applications for passport are received for verifcation. He was called to Police Station around 06:30 p.m. Accordingly, at about 6.30 p.m. he along with his wife went to Police Chowki. He was told to come with the documents. Hence, on the next day he again visited Police Station along with documents. His wife accompanied him. The accused told his wife to wait outside the Police Chowki. Accused made demand. Thus, according to PW No.2 when the demand was made by the accused, except him none else was present at the place of demand. He approached ACB ofice and lodged the complaint. According to him, on 16 th July 1999 the accused demanded Rs.500/-. The demand was reduced to Rs.300/-. On the next day, at about noon the complainant and his wife went to Ethape 10/27 Cri.Appeal 275.09.doc ACB Ofice. Complaint was lodged. The ACB decided to lay a trap. Anthracin powder was applied to the currency notes. There were three currency notes of Rs.100/-. They moved towards Police Chowki. After walking towards bridge, they scattered. He was asked to go to Chowki along with his wife. He went to Police Chowki with his wife. He do not remember whether he entered the Chowki with his wife. He also categorically stated that only he and accused were present inside Chowki and he gave money after entering the Chowki. The raiding party entered Chowki and arrested accused. Tainted currency notes were recovered from accused.
7 The case of the complainant is that he was in need of job and applied for passports for himself and his wife. The accused said that if the amount is not paid, he would give adverse report. The complainant received passports after about one month from incident. Thus, the requisite report in respect of verifcation of passports was forwarded to passport ofice. He had no occasion to see his application after the incident. It is not case of the prosecution that some other oficer had forwarded said report to the passport ofice. It is also apparent that, Ethape 11/27 Cri.Appeal 275.09.doc complainant was not in hurry to receive the passport, since he did not go abroad after the receipt of passport. No case was pending against him. Hence, there cannot be apprehension in the mind of complainant about the report of bad character. 8 If evidence of PW No.2, complainant is accepted, it signifes that at the time when initial demand was made, he was alone with accused and on the day of acceptance of amount, he was alone with accused in Chowki. Thus, his testimony about demand and acceptance is uncorroborated. His version is contradictory to evidence of PW No.3 and PW No.4. In the light of nature of his evidence, it is dificult to rely on his testimony. 9 PW No.3 Chandrashekhar Narayan Waichal had acted as panch witness. According to him, on 17 th July, 1999 he was directed to go to ACB to act as panch witness alongwith Shri. Khandagale in the ofice of ACB. Complainant was present in the ofice of ACB. They were also told about the complaint given by him, all required formalities were completed for trap. PW No.4 gave instructions to complainant that the notes were to be given to Pawar only after the demand. PW No.3 was instructed to Ethape 12/27 Cri.Appeal 275.09.doc remain in company of complainant and to witness the transaction between complainant and Pawar and also to listen the conversation between accused and complainant. He was asked to remain in company of complainant and make inquiry with Pawar about the progress made in respect of number given to him and the number was in respect of passport application. It is pertinent to note that, the evidence of PW No.2 is completely silent in this regard. He has not even referred to presence of PW No.3 with him and instructions given to him. He further deposed that, they left ofice of ACB at 05:25 p.m. on 17 th July 1999. When they reached at bridge situated near Elphinston railway station, instructions were given to him and complainant to walk ahead and others started following them. They reached Police Chowki situated near fyover of Parel. PW No.2 refers to the presence of his wife on 16th July 1999 and 17th July 1999 who had not been examined by the prosecution. PW No.2 did not state that he entered the Chowki with PW No.3. PW No.3 stated that accused was not at police Chowki. They waited for him. He came at about 07:00 p.m. When he was about to enter the Chowki, some constable asked him as to why he was there. He told that he has come to make inquiry about his passport. He was told that the Ethape 13/27 Cri.Appeal 275.09.doc matter was not received and he should come in the next week. He stayed outside Chowki since there were no specifc instructions for this situation. He went towards backside of Chowki to listen conversation. However, due to trafic, he could not listen the conversation. He noticed PW No.4 rushing inside the Police Chowki. He also entered the Chowki. Currency notes of Rs.300/- were recovered from accused. The instructions were given to PW No.2 to enter into Chowki. He did not hear the conversation between PW No.2 and accused. He did not see accused accepting the money from the complainant. The pre-trap panchnama Exh-22 mentioned that the complainant was instructed to go to Police Chowki and meet accused and to hand over the currency notes to the accused only on demand by him as a bribe. He was instructed to talk to him and introduce him to accused suitably to remain present and witnessed transaction and hear the conversation. The contents of pre-trap panchnama and evidence of PW No.2 is contradictory. I also perused the post trap panchnama at exhibit 24 it refers to alleged conversation between complainant and the accused. PW No.3 is one of the panch witness in the said panchnama. The post-trap panchnama mentioned that at 07:00 p.m. accused arrived at Police Chowki.
Ethape 14/27 Cri.Appeal 275.09.doc Complainant and PW no.3 entered in the Police Chowki, when the accused occupied chair in front a table, conversation took place between complainant and accused. The complainant then handed over the amount to the accused, which was accepted by him. The complainant gave signal to the raiding party. The accused was caught by the raiding party. The other panch rushed inside the Police Chowki. The complainant was asked to wait outside the Police Chowki with instructions not to touch his right hand to any other object. The post-trap panchnama is absolutely contradictory to version of PW No.2 and PW No.3. The evidence of PW No.3 clearly indicate that he did not enter Police Chowki at the time of trap. He did not heard any conversation. He did not see the accused accepting amount. The conversation reproduced in post trap panchnama shows as if it has occurred in the presence of PW No.3. It is also mentioned that he entered Chowki at 07:00 p.m. with PW No.2. PW No.2 and PW No.3 have not referred to the alleged conversation refected in the post-trap panchnama in their evidence before Court. Thus the evidence of these witnesses is suspicious and cannot be believed to bring home. The charge against the accused.
Ethape 15/27 Cri.Appeal 275.09.doc 10 PW No.4 Abhay Ramrao Shastri conducted investigation. He referred to the report lodged by PW No.2 inviting panch witnesses, arrangement for trap, recording pre- trap panchnama, arrest of accused etc. According to him on 17 th July, 1999 at about 05:25 p.m. panch No.1 and complainant boarded one vehicle and they went towards Elphinston Railway Station. They walked towards Chowki. They entered Bhoiwada Police Chowki. After sometime panch and complainant came out of Chowki and they sat on bench which was kept near Chowki. After the accused entered Chowki, complainant and panch entered Chowki. After sometime complainant gave pre- determined signal. The members of raiding party then entered Chowki. Accused was found with currency notes. During the course of investigation, recording of statements of panch witnesses, complainant and other witnesses, he collected record like copy of application form given by complainant, P.R. book extracts and relevant certifcates were produced along with application. He collected copy of service book of accused. The report shows that verifcation work with the accused in register were at Sr. Nos.12 and 13. He gave fnal report to superior oficer for sanction. After getting sanction from superior oficer Ethape 16/27 Cri.Appeal 275.09.doc charge-sheet was fled. The evidence of this witnesses is contrary to evidence of PW No.2 qua PW No.3 accompanying PW No.2 and entering in Police Chowki. According to him he did not feel it necessary to make preliminary inquiry to see as to whether there was substance in the allegations made in complaint. The complainant and his wife had came to ACB ofice. No evidence was available for corroboration of previous demand of money. Police Oficer is required to make the verifcation very carefully and minutely. There is also heavy trafic on three sides of Chowki. From the spot where he could see window of Chowki and fgures of persons though not their faces, who are present inside the Chowki. In Exh-24 it is not specifcally mentioned that complainant had come out to give signal. Antracin Powder was detected on both hands of the accused. The Powder was detected on the mouth portion and inner portion of pocket of shirt of accused. Panch No.1 had stated that trap money was kept in pocket of shirt of accused. Personal search of accused was taken by Panch No.2 and trap money was recovered from left pocket of shirt of accused. Thus, the oficer noticed Anthracin on some upper portion of shirt of accused and apparently could not see currency notes and hence he made inquiry with panch No.1 Ethape 17/27 Cri.Appeal 275.09.doc about place where currency notes were kept by accused. In fact evidence of PW No.3 discovers that PW No.2 had approached accused. He has not referred to acceptance of amount by accused. The question of asking him about it and question of reply by the said witness, as stated by PW No.4 does not arise. No powder was detected any other place on the clothes of accused. In Exh-24 it is not mentioned that tainted money was kept in closed and sealed envelope. He did not feel it necessary to ofer their personal search to the accused and to examine them in ultra violet light. Forms of complainant and his wife were not found in Chowki. He did not make inquiry with the appellant about forms. It is relevant to note that no fnding of the application forms in the Chowki, on the day of trap would indicate that the applications were already forwarded. The case of the complainant that bribe amount was demanded for sending favourable report is very doubtful. He admitted that report was submitted by accused. He collected two forms from Senior Police Inspector. He perused forms after collecting them in Exh-26 there is record like entries in T.R. at Sr. Nos.12 and 13 to the efect that Senior Police Inspector had received the record and there are also verifcation reports signed by Senior Police Ethape 18/27 Cri.Appeal 275.09.doc Inspector of Bhoiwada Police Station in respect of complainant and his wife. The accused was posted at Chowki on 08 th July 1999 for passport verifcation. He recorded statement of Senior Police Inspector Ingale and Kurne with regard to Exh-26. It is pertinent to note that these witnesses were not examined by the prosecution. There is no satisfactory evidence to establish that there was demand and acceptance of the amount. There are inherent defects in the case of the prosecution. The accused has suficiently rebutted the presumption envisaged under Section 20 of the Prevention of Corruption Act.
11. The defence of accused emanating from explanation tendered in statement under Section 313 of Cr.P.C., is that the applicant has been involved in false trap at the instance of his rival persons. Pre-trap and Post-trap Panchnama are false. He was posted at Bhoiwada Police Chowki on 08 th July 1999 for verifcation of passport applications. Some of the oficers from his department were against him as they were interested in that posting. On 15th July 1999, he received forms of complainant and his wife for verifcation. They were called and their bonafdes were verifed. On 17th July 1999 at 11:00 a.m. the applicant Ethape 19/27 Cri.Appeal 275.09.doc submitted the said applications with report to in-charge of Police Station. He verifed documents and gave opinions for issuance of passport. The work of complainant was not pending with him at the time of trap. On the day of trap he resumed his duties at 07:00 p.m. complainant visited Chowki and inquired about passport applications. He attempted to give money. He refused to accept by his right hand. Complainant tried to thrust the amount in his left side shirt pocket. Investigation Oficer and others entered Chowki and detained him in his chair. He never accepted the amount nor demanded the same from complainant. 12 Apart from the discrepancies in the evidence of the aforesaid witnesses which indicate that the prosecution has not been able to establish the charges against the appellant beyond reasonable doubt.
13. PW No.1 Shri. Dilip Govind Shrirao was the Deputy Commissioner of Police. According to him, papers were received by him regarding sanction from Additional Commissioner of Police, ACB. Entire set of papers of investigation described proforma and evidence was received from Commissioner of Ethape 20/27 Cri.Appeal 275.09.doc Police. As per endorsement of Commissioner's ofice, the papers were forwarded to him. The endorsement was marked at Exh-10 and forwarding letter below the endorsement addressed to Commissioner of Police was received by him. This letter sent to Commissioner by Additional Commissioner of Police, ACB is marked at Exh-11. He perused the papers and the facts constituting ofence. On his satisfaction he found that it is ft case for according sanction. The sanction order as marked at Exh-12. He forwarded the sanction order to Additional A.C.B. with covering letter dated 11 th February 2003. The covering letter is marked at Exh-13. According to him he was authorized to issue the sanction order in case of A.S.I. and since he was authorized, he issued the Sanction Order. In the cross- examination it was stated that the draft sanction order was sent to him. He made necessary corrections in it. The draft sanction order is marked at Exh-12-A. The Superior Authority of Appointing Authority of accused can remove him from service. The authority who can remove the accused from service can accord sanction. He did not see promotional order of accused for the post of A.S.I. He do not know who promoted the accused on the post of ASI. He do not remember whether papers of the Ethape 21/27 Cri.Appeal 275.09.doc passport of the complainant and it shows were already dispatched by Police Inspector of Bhoiwada Police Station. He do not remember whether it is refected from the panchnama that form pertaining to the complainant and his wife's passport were found in the Chowki. He does not remember whether information for issue of passport was already sent by Police Inspector of Bhoiwada Police Station. At the relevant time information of passport or no objection certifcate was already submitted by Senior Police Inspector of the concerned Police Station. He do not remember whether he had seen the papers of passport of the complainant and his wife in the fle sent to him to accord of sanction. The evidence of this witness shows complete non application of mind while according the sanction. He has evaded answers to relevant question put to him in the cross-examination. He adopted mechanical approach for granting sanction. He admitted that the authority who can remove accused from the evidence can accord the sanction. He stated that he was authorized to issue sanction order in the case of A.S.I. and hence he had issued the sanction order. The prosecution has not explained as to how the Subordinate Oficer can accord sanction when the appointment of the public servant was by superior Ethape 22/27 Cri.Appeal 275.09.doc authority who was also empowered to remove the public servant. 13 According sanction under Section 19 of the Prevention of Corruption Act, 1988 is not an empty formality. The authority must be empowered to do so. The empowered authority should apply its mind to the fact of the case and satisfy himself that it is ft case to accord sanction to prosecute the accused. If it is shown that the sanction is not accorded by the Competent Authority, who is empowered to remove the accused from his post then entire prosecution vitiates. The appointment order of the accused was produced on record by the accused during recording of his statement under Section 313 of Cr.P.C. The appointment order of the accused was issued by Commissioner of Police. The appointment order mentions that accused has been appointed by Commissioner of Police - Greater Bombay. Commissioner of Police is vested with the powers, functions and privileges of the Police Oficer under the Bombay Police Act, 1951. Exh-11 is forwarded letter dated 29 th December 1999 issued by the Additional Commissioner Police-(ACB) to then Commissioner of Police. The letter was issued requesting grant of sanction. Draft sanction order was endorsed. Letter at Exh.-
Ethape 23/27 Cri.Appeal 275.09.doc 10 was forwarded by ACP, from oficer of Commissioner of Police to PW No.1 stating that he is authorised oficer for action against accused for his misconduct. The draft sanction order Exh-12-A indicate that it was to be issued by Commissioner of Police as authority who had to accord the sanction. Thus, even as per the opinion of ACB, the sanction was to be accorded by Commissioner of Police. Exh-10 is not issued by Commissioner. It does not indicate that powers are deligeted to PW No.1. The Commissioner of Police is authorized and who is competent to remove oficers of rank of A.S.I. Nothing is on record by the prosecution to show that PW No.1 was empowered to remove the accused. The appointment order of the accused was issued in March 1978. It was issued by Commissioner of Police-Greater Bombay. PW No.1 nowhere stated that the competency is vested with him. He has stated that he is having power of removal of accused from his post of ASI. In Exh-10 there is no reference of delegation of powers for according sanction by Commissioner of Police. Apart from his competency, there was no application of mind to the fact that the case. The question which falls for consideration is whether power of removal is assigned to PW No.1. Evidence of PW No.1 is silent. Section 10 of Maharashtra Ethape 24/27 Cri.Appeal 275.09.doc Police Act relates to appointment of Deputy Commissioner. As per the said provisions every Deputy Commissioner shall under order of commissioner exercise and perform any powers, functions and duties of commissioner to be exercised or performed by him under provisions of Act. Exh-10 is a letter issued by ACP from oficer of Commissioner. Article 311 of Constitution of India states that no person referred to therein shall be dismissed or removed by authority subordinate to that by which he was appointed. The accused was appointed by Commissioner of Police. In any case sanction order has been issued mechanically. Apart from that even on merits, the case of prosecution is not clear from doubt.
14 Thus, on the basis of the evidence of PW No.2, PW No.3 and PW No.4 it cannot be said that the prosecution is successful in proving the charge against the accused. 15 Learned Advocate for the Applicant in support of his submissions relied upon decision of Supreme Court in the case of Krishna Kumar Vs. Divisional Assistant Electrical Engineer Ethape 25/27 Cri.Appeal 275.09.doc and Others1 in this case it was held that article 311 (1) of the constitution provides that no persons who a member of Civil Service of the Union or all India service or Civil service of State shall be dismissed or removed by the authority subordinate to that by which he was appointed. He also relied upon the decision of Gujarat High Court in the case of Gopalbhai Mohanbhai Nagoda Vs. State of Gujarat2 wherein it was held that the competence of the authority to order removal or dismissal will have to be determined with reference to the requirement of Article 311 (1) of the constitution; and one of the requirements is that the authority that orders of dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was appointed. Learned counsel also relied upon another decision of Madhya Pradesh High Court in the case of Ashok Rangshahi Vs. State of Madhya Pradesh 3, State of Kerala V.s Madhavan4, wherein similar decision was taken reliance is place on decision of Supreme Court in the case of P. Stayanarayan Murthy V.s District Inspector of Police, State of Andhra Pradesh and Another5 in the said decision it was 1 (1979) 4 SCC 289 2 1993 (IV) CCR 3288 3 1996 (2) Crimes 39 4 1962 (1) Cr.L.J. 334 5 2016 (1) SCC CRI 11 Ethape 26/27 Cri.Appeal 275.09.doc observed that mere acceptance of any amount allegedly by way of illegal gratifcation or recovery thereof, dehors the proof of demand, would not be suficient to bring home the charge under Section 7 and 13 of Prevention of Corruption Act. 16 As stated above, there are serious discrepancies in the evidence of the prosecution. The version of the witnesses sufers from serious doubts. There are contradictory versions. The uncorroborated evidence of PW No.1 is under shadow of doubt and cannot be accepted for convicting the accused. In the light of the above observations the conviction of the appellant is required to be set aside. Hence, I pass the following order:
ORDER
(i) Criminal Appeal No. 275 of 2019 is allowed.
(ii) The Judgment and Order dated 03rd March 2009 passed by Special Judge City Civil and Sessions Judge, Greater Bombay in ACB Special Case No.
17 of 2000 convicting the appellant for the ofence under Section 13 (1) (d) read with 13 (2) of Prevention of Corruption Act, 1988 is hereby quashed and set aside and appellant is acquitted.
Ethape 27/27 Cri.Appeal 275.09.doc
(iii) Appeal Stands disposed of.
17. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(PRAKASH D. NAIK, J.)