Bombay High Court
State Of ... vs Ashok Ramchandra Kshirsagar on 7 June, 2017
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
apeal23.01 1
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.23 OF 2001
The State of Maharashtra,
Through Police Station Officer,
Lakadganj Police Station,
Anti Corruption Bureau,
Nagpur. ..... Appellant.
:: VERSUS ::
Ashok Ramchandra Kshirsagar,
Aged 29 years, Patwari Halka
No.10(A), Mouza Binaki, Nagpur.
Now P.H. No.41, Mouza Banwadi
Tahsil and District Nagpur (Rural). ..... Respondent.
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Ms T.H. Udeshi, Addl.P.P. for the Appellant/State.
S.A. Bramhe, Counsel for the Respondent.
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CORAM : V.M. DESHPANDE, J.
DATE : JUNE 7, 2017.
ORAL JUDGMENT
1. Being aggrieved by judgment and order of acquittal, passed by learned Special Judge on 30.11.2000, in .....2/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 2 Special Case No.25 of 1988, the State has preferred the present appeal.
By the impugned judgment, the respondent was acquitted for the offences punishable under Section 161 of the Indian Penal Code corresponding to Section 7 of the Prevention of Corruption Act, 1988 (for short, "the said Act") and under Section 5(1)(d) read with Section 5(2) of the Old Prevention of Corruption Act corresponding to Section 13(1)
(d) read with Section 13(2) of the said Act.
2. I have heard learned Additional Public Prosecutor Ms T.H. Udeshi for the appellant/State and learned counsel Shri S.A. Bramhe for the respondent. With their able assistance, I have gone through the record and proceedings so also the notes of evidences of the prosecutions witnesses.
3. According to learned Additional Public Prosecutor .....3/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 3 Ms T.H. Udeshi for the appellant/State, learned Judge of the Court below committed a mistake in acquitting the respondent. She submits that the prosecution has proved its case with the help of the evidences of the prosecutions witnesses.
4. Per contra, learned counsel Shri S.A. Bramhe for the respondent submits that after proper evaluation and appreciation of the entire prosecution, learned Judge of the Court below, in his submissions, was right in acquitting the respondent. He submits that the view taken by learned Judge of the Court below is not perverse one. He also points out that every piece of evidence, as brought on record during the course of the Trial, was considered in its correct perspective by learned Judge of the Court. Hence, prays for dismissal of the appeal.
5. The facts, giving rise to the present appeal, are as .....4/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 4 under:
6. PW1 Krishna Ganpatrao Pathrabe approached to the Anti Corruption Bureau on 18.11.1986. His complaint is at Exhibit 17. The gist of the complaint is, that in the year 1980 his brother Shamraoji purchased a plot bearing No.3 from one Shri Sai Seva Ashram Cooperative Housing Society Limited, Nagpur for Rs.4,200/-. His brother purchased the said plot in the name of his wife (sister-in-law of the complainant). The said plot was not converted from agricultural to non- agricultural use. Therefore, his sister-in-law received a Notice in October 1986 from Naib Tahsildar, Nagpur by which the demand of Rs.506.35 were made from his sister-in-law by way of arrears of land revenue.
It is further stated in complaint Exhibit 17 that since his brother was serving in Defence, his sister-in-law Pushpa gave Rs.506.35 and Notice and asked him to deposit .....5/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 5 the same. Therefore, on 13th and 14th /11/1986 though he made visits to the Tahsil Office, could not meet the concerned Talathi (present respondent). Therefore, again on 17.11.1986 he went to the Tahsil Office and had a meeting with the respondent. The complainant asked the respondent to accept the amount and pass the receipt. However, as per the complaint, the respondent after perusal of the Notice, informed that the Notice is served 20.10.1986 and, therefore, the amount, so demanded in the Notice, ought to have been deposited on or before 27.10.1986. Thus, there is delay in making the payment. Therefore, action can be taken against Pushpa (sister-in-law of the complainant). Upon that, the complainant pleaded that though it is his mistake, no action should be taken. On that, as per the complaint, for avoiding action, Rs.50/- should be paid extra besides the amount mentioned in the Notice. Ultimately, as per the complaint, the .....6/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 6 respondent agreed to accept Rs.40/-. This fact was informed by the complainant to his sister-in-law, who asked the complainant not to pay excess amount and, therefore, complaint with the Anti Corruption Bureau Exhibit 17 was lodged.
7. After getting the complaint from PW1 Krishna, PW5 Police Inspector Shri Mohd. Shabbir s/o Sk. Ismail Rizvi called two panchas by issuing requisition. On their arrival, they were informed about the complaint lodged by the complainant. As per the prosecution case, necessary demonstration of Anthracene powder was shown to the panchas since the Anti Corruption Bureau decided to lay a trap on the respondent. A pre-trap panchanama is available on record at Exhibit 33.
8. It is the further case of the prosecution that the trap party proceeded in a jeep to the Tahsil Office. However, .....7/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 7 the respondent was not present in the Office. As per the prosecution, the complainant informed PW5 Police Inspector Rizvi that the respondent must be in his house and, therefore, the complainant requested PW5 Rizvi that the trap should be arranged at the house of the respondent. Therefore, the raidying party proceeded towards the house of the respondent.
On reaching to the house of the respondent, the complainant saluted him. After noticing pancha No.1, the respondent demanded amount, which was paid to him and, thereafter, agreed signal was given.
On receipt of agreed signal, raidying party pounced upon the respondent. The amount was seized from the respondent. The post-trap panchanama Exhibit 40 was drawn. Thereafter, PW5 Police Inspector Rizvi prepared his report Exhibit 47 and forwarded the same to the Lakadganj .....8/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 8 Police Station for registration of the offence. The various documents were also seized.
9. Charge under Section 161 of the Indian Penal Code corresponding to Section 7 of the said Act and under Section 5(i)(d) read with Section 5(2) of the Old Prevention of Corruption Act corresponding to Section 13(i)(d) read with Section 13(2) of the said Act was framed against the respondent. The respondent pleaded not guilty and claimed for his Trial.
In order to prove its case, the prosecution examined in all 5 witnesses. The statement of the respondent was also recorded under Section 313 of the Code of Criminal Procedure. The defence of the respondent was of total denial.
10. The evidence of PW1 Krishna Pathrabe shows that his mother and sister-in-law have purchased a plot. The .....9/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 9 Notice for Tax was served against them and on 20.10.1986 he went to the Tahsil Office to pay the Tax. He also states that on 11.11.1986 he has deposited Rs.614.30 Tax of his mother and the respondent has issued receipt.
11. Perusal of complaint Exhibit 17 by PW1 Krishna and his substantive evidence shows that there are material omissions in his complaint and those material omissions are proved by PW5 Police Inspector Shri Rizvi. PW5 Police Inspector Shri Rizvi has stated at Exhibit 44 that:
"..... complainant has not stated before him that on 11.11.1986 in the evening his brother has given him Rs.506.35 to deposit the tax. The complainant did not state before him that he was not having a time for two days from 11.11.1986. Complainant did not state before him that if tax is not deposited fine would be imposed. Complainant did not state before him that he has given Rs.506.35 to the accused, accused has counted it as it as there was Rs.40/- rupees less therefore accused has returned to him. Complainant did not state before him when accused was not seen in .....10/-::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 :::
Judgment apeal23.01 1 10 Tahsil office he inquired with other persons, from other persons the complainant came to know that accused went to home. Complainant has not stated that he has deposited the tax of the mother with accused on 11.11.86. Needless to say that these are material omissions which amounts to contradictions. Again PW5 Rizvi has proved contradictions from evidence of the complainant which has been right marked as portion mark A+B Exhs.56 & 56-A. ...."
12. As per the defence of the respondent, he has accepted Rs.40/- not as a bribe but it was a balance amount of the Tax which was remained to be paid by the complainant. The complainant deposited the Tax in the name of his mother on 11.11.1986. That delay, since the respondent was knowing the complainant, he has accepted less amount of Rs.40/- as the complainant has agreed to pay this balance amount when he will deposit the Tax in the name of his sister-in-law. However, the complainant did not deposit the Tax amount within time. Therefore, the respondent scolded the complainant and, .....11/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 11 therefore, the false case was lodged against him at the instance of PW2 Police Constable Bhaurao Namdeorao Dukare, who was serving in the office of the Anti Corruption Bureau. Thus, passing of tainted notes in the hand of the respondent is not in dispute. Therefore, whether said was a balance or Tax or bribe amount, therefore, in my view, learned Judge of the Court below not attaching much importance to the chemical analyzer's report is correct.
13. Cross-examination of PW1 Krishna Pathrabe shows that his evidence is not free from doubts. He has admitted that the anti corruption officials had been to his house prior to recording of his evidence, not only that they read over to him his report, panchanama and the statement. Further, it is stated that he was instructed that he will have to depose before the Court as per the written documents. This shows that the complainant was a tutored witness. From the .....12/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 12 line of cross-examination of the prosecution witness it is a defence of the respondent that the complaint is lodged against him at the behest of PW2 Police Constable Bhaurao Dukare.
14. In cross-examination, PW2 Police Constable Bhaurao Dukare has stated that it depends upon the officer the amount of reward after the successful trap. This prosecution witness was one of members of the trap party. At the time of trap, he entered into the house of the respondent.
The evidence of PW5 Police Inspector Shri Rizvi also corroborates that PW2 Police Constable Bhaurao Dukare has taken an active participation and role in the trap.
It is also brought on record that the houses of complainant, respondent, and PW2 Police Constable Bhaurao Dukare are situated in the same locality. Therefore, in my view, learned Judge of the Court below has rightly drawn an .....13/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 13 inference that it appears to be probable that the complainant met PW2 Police Constable Bhaurao Dukare before lodging of report.
15. The evidence of PW1 complainant Krishna shows that he was in financial crunch at the time of incident. However, while lodging report, he has taken extra amount to the Office of the Anti Corruption Bureau. In that view of the matter, the suggestion given to the complainant appears to be probable that he came to know from PW2 Police Constable Bhaurao Dukare that before going to the Office of the Anti Corruption Bureau, he has to take Rs.40/- with him.
16. Learned Judge of the Court below has also rightly noticed the changing version from-time-to-time. Further, from the cross-examination of the complainant, it is clear that the alleged incident does not seem to be natural and probable because the complainant has .....14/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 14 stated that after depositing of the Tax amount, he got his name entered into the register through the respondent. That means, if the respondent would have intended to take bribe from the complainant in the ordinary course, he would not have taken entry in the name of the complainant without accepting the bribe amount. There was no demand on 11.11.1986, but it discloses a natural conduct on the part of the respondent and an unnatural conduct on the part of the complainant. The complainant has admitted that on 11.11.1986 the respondent has got angry against him and said that he has not deposited the amount within time. The complainant has further admitted that he informed the respondent that due to financial difficulty, he was unable to deposit the Tax amount within time. Due to this admitted position and suggestion, as noticed in the .....15/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 15 evidence, it appears probable that on 11.11.1986 the respondent got angry against the complainant and, therefore, false complaint was lodged against the respondent to take revenge.
17. PW3 a pancha Gajanan Bisan has turned hostile. In my view, learned Judge of the Court below has correctly appreciated the evidence of PW3 Gajanan though he was declared hostile to reach to the conclusion that the defence of the respondent did not crop up at the eleventh hour during the Trial, but he opened his defence at the initial stage of the trap itself.
18. Learned Judge of the Court below, on appreciation of the evidence, has, in my view, correctly reached to the conclusion that the prosecution has failed to prove that there was any demand on the part of the respondent and in pursuance to the said demand, .....16/-
::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 05:16:17 ::: Judgment apeal23.01 1 16 the respondent has accepted Rs.40/-. The demand and acceptance are sine qua non for proving the case under the provisions of the Prevention of Corruption Act. Since the said was not found to be proved by learned Judge of the Court below, on appreciation of the evidence, which I notice cannot be disturbed since the view of learned Judge of the Court below is based on the correct appreciation of the evidence.
Hence, the criminal appeal fails and is dismissed.
JUDGE !! BRW !! ...../-
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