Bombay High Court
Tejrao Govindrao Wagh vs The State Of Maharashtra on 18 September, 2018
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
1 CrApel 470-2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 470 OF 2006
Tejrao Govindrao Wagh,
Age : 33 years, Occu : Service,
R/o : At Village, Kumbhephal,
Post : Satgaon,
Tq. & Dist. Buldhana. ...Appellant
Versus
The State of Maharashtra ...Respondent
.......
Ms. P. V. Langhe, Advocate for Appellant.
Mr. K. D. Munde, A. P. P. for Respondent / State.
.......
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 19-07-2018.
PRONOUNCED ON : 18-09-2018.
ORAL ORDER :
01. Present appeal has been filed by the original accused challenging the conviction awarded to him in Special Case No. 13/2002 by Special Judge (PC Act) Aurangabad on 9.5.2006 after holding him guilty of committing the offences punishable under Section 7 of Prevention of Corruption Act and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 :::
2 CrApel 470-2006
02. The prosecution has come with a case that complainant Dnyaneshwar Rangnath Dhage was resident of village Khodegaon (Kachner), Tq. & Dist. Aurangabad. There was telephone connection bearing No. 644132 in his house at Khodegaon in the name of his father. The telephone was under repairs. Accused was working in the department of Tele-communications as Telephone Mechanic on regular Mazdoor basis. He was posted in the office at Chitepimpalgaon. Village Khodegaon was within the jurisdiction of telephone office of Chitepimpalgaon. The complainant had requested accused to repair his telephone. Accordingly, repairs were carried out on 29.12.2001. However, within 2 hours the telephone was not functioning, therefore, complainant met accused at the telephone centre at Kachner and again requested for the repairs. Again a request was made to the accused to repair the telephone on 28.1.2002, but, accused did not do anything. Complainant then met accused at his residence in Chitepimpalgaon on 29.1.2002 between 9 to 9.30 AM in order to request him to repair the telephone. At that time, the accused told him that the complainant should pay amount of Rs. 200/- for repairing the same. Complainant felt that he has been left with no alternative and therefore, he paid Rs. 50/- to the accused and requested him to repair the telephone ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 3 CrApel 470-2006 at the earliest. Accused told complainant at that time that unless the balance amount is paid he will not repair the telephone. Complainant told the accused that he would arrange the amount. Accused asked him to bring the balance amount in his office at Chitepimpalgaon in the afternoon. Complainant was not inclined to pay the bribe and, therefore, he approached the office of Anti Corruption Bureau (ACB) at Aurangabad and lodged the complaint.
03. After his complaint was taken down, panchas were arranged from the office of Municipal Corporation, Aurangabad. Complainant narrated his complaint orally to the panchas, who compared the contents with the written complaint filed by the complainant. Thereafter, the personal search of the complainant was taken. He was having amount of Rs. 170/- and other articles. Out of the said cash amount, amount of Rs. 150/- consisting of 2 currency notes of Rs. 100/- each were taken and currency note of Rs. 50/- was also taken. Balance amount was returned to the complainant. It was decided by DYSP Idhate to lay trap. The use and characteristics of anthracene powder were explained to the complainant and panchas. Thereafter, the anthracene powder was applied to the currency notes by Police Constable under the ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 4 CrApel 470-2006 instructions of DYSP. Police Constable thereafter put those tainted currency notes in the left side chest pocket of the shirt. Pre-trap panchnama was executed. Instructions were given to the complainant and panchas. After taking all the material, complainant, both the panchas and members of the raiding party went to village Chitepimpalgaon. Complainant and panch No. 1-Pandit Gavali went to the office of the accused on foot and others were waiting outside for the signal. After the signal was given, the raiding party went inside and tainted currency notes were recovered in presence of the panchas. The hands of the complainant, accused and the currency notes were checked under ultra violet lamp. There was a glittering to the same. Identity of the raiding party was disclosed. Complainant and panch No. 1 were asked to narrate as to what had happened inside the office of the accused. Thereafter, post-trap panchnama was completed. Mr. Idhate, thereafter, lodged the report against the accused on behalf of the State and kept the investigation with him. He had collected certain documents. During the course of the investigation, statements of witnesses were also recorded. Sanction was obtained to prosecute accused. After getting the sanction, charge-sheet was filed.
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5 CrApel 470-2006
04. After the accused appeared before the learned Special Judge, charge was framed at Exh. 7. The contents of the charge were read over and explained to the accused in vernacular. He pleaded not guilty. Trial has been conducted. The defence of the accused was that the complainant had taken hand loan of Rs. 1,000/- from him about one month prior to the incident. Accused was asking the complainant to return the amount and therefore, the complainant was annoyed. The complainant had came to office on 29.1.2002 to pay the telephone bill and also to return the hand loan. Thus, according to him, the amount which was found in his possession i.e. Rs. 150/- was towards the re-payment of the hand loan.
05. Taking into consideration the evidence on record and after hearing both sides, the learned Special Judge has convicted the accused for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and has sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/- in default, to suffer rigorous imprisonment for fifteen days. The accused is further convicted for the offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and has been sentenced to suffer rigorous imprisonment of one year and to pay a fine ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 6 CrApel 470-2006 of Rs. 1,000/- in default, to suffer rigorous imprisonment for one month. The present appeal challenges the said conviction.
06. Heard Ms. P. V. Langhe for appellant (original accused), Mr. K. D. Munde, A. P. P. for respondent / State. It has been submitted on behalf of the appellant that the perusal of testimony of complainant as well as panch No. 1 would show that there was absence of demand. PW-2 Pandit Gavali-panch No. 1 in his cross-examination has clearly admitted that accused himself had not demanded the money from complainant when complainant and he had gone to the office of accused. Further, there was no confirmation of the information given by the complainant on the say day. That means, the investigating Officer directly decided to have a raid. She relied on the decision in B. Jayaraj V/s State of Andhra Pradesh, (2014) 13 Supreme Court Cases 55) wherein it has been held that in absence of proof of demand for illegal gratification or use of corrupt or illegal means or abuse of position for obtaining any valuable thing or for gaining pecuniary advantage, the offences do not stand established. Presumption under Section 20 of the Prevention of Corruption Act can not be drawn under such circumstance. Similar view was also taken in Rakesh Kapoor V/s State of ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 7 CrApel 470-2006 Himachal Pradesh, (2012) 13 Supreme Court Cases 552). She further submitted that merely because tainted amount was found in possession of the accused, inference can not be drawn that he has accepted bribe. She relied upon decision in C. M. Girish Babu V/s CBI, Cochin, High Court of Kerala, (2009) 3 Supreme Court Cases 779) and Rajendrakumar Laxmichand Gupta V/s The State of Maharashtra, (2013 All MR (Cri) 1425) wherein it has been held and reiterated that mere recovery of tainted money by itself is not enough in absence of evidence to proof of payment of bribe or to show that the accused has voluntarily accepted the money knowing it to be a bribe. In State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede, (2009) 15 Supreme Court Cases 200), it has been held that demand of illegal gratification is sine qua non for constitution of an offence under the provisions of the Prevention of Corruption Act.
07. The learned Advocate appearing for the appellant has further submitted that it has come on record that the accused was appointed as Mazdoor and he was not a technical person. He was not a Telephone Mechanic and therefore, it can not be said to have been assigned with the work of repairing the telephones. There was no question of demand of any amount by the accused. She ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 8 CrApel 470-2006 relied on the decision in Mahadeo Narayan Kathane V/s State of Maharashtra, (2010(4) Mh. L. J. (Cri.) 188) wherein the appellant was not performing any official duty for which he could have demanded money by way of illegal gratification. Further, when demand of money by apellant was not proved, the conviction and sentence of appellant was set aside. Further, the evidence of sanctioning authority would show that he has only signed the draft which was sent by Anti Corruption Department. He has not applied his mind. The learned Advocate for the appellant relied on the decision in State of Maharashtra through C. B. I. V/s Mahesh G. Jain, (2014 All SCR 177), wherein it has been observed that the grant of sanction is irrefragably a sacrosanct act and is intended to provide safeguard to public servant against frivolous and vexatious litigations. She submitted that the learned Special Judge did not appreciate the evidence properly and therefore, she prayed for setting aside the conviction.
08. It has been submitted by learned A. P. P. that the sanction order is proper. PW-3 had authority to appoint and remove the accused. He has gone through all the documents which were sent to him by ACB and thereafter, he has signed the sanction order. Therefore, it can not be said that he has not applied his mind before ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 9 CrApel 470-2006 giving sanction, though, it appears that he has signed the same draft. Further, even though the demand verification was not made, yet, the conversation would show that complainant had asked the accused when he should pay the remaining amount. The testimony of the complainant, panch witnesses and the informant cum Investigating Officer are consistent with each other and further the tainted amount was found with the accused. He has not given any explanation. He has not examined any witness to prove that he had extended hand loan to the complainant. When proper explanation is not given, the presumption under Section 20 of the Prevention of Corruption Act is required to be invoked here. No fault can be found with the Judgment and therefore, he prayed for dismissal of the application.
09. PW-1 Dnyaneshwar is the complainant and he has deposed as per his complaint. PW-2 Pandit is the panch No. 1 who was accompanying the complainant and he has also substantially supported the complainant and the prosecution story in his examination-in-chief. PW-4 then Police Inspector M. W. Naik was serving in the Anti Corruption Bureau. Here in this case, the informant cum Investigating Officer Shri K. N. Idhate was no more when the trial started and therefore, PW-4 Manda has been ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 10 CrApel 470-2006 examined, who was also member of raiding party. He has also substantially supported the PW-1 and 2 and the prosecution story in the examination-in-chief. In order to prove the case, basically, the prosecution was required to prove that there was illegal demand on the part of the public servant to do a particular thing or abstain from doing a particular thing. Complainant has specifically come with a case that he had a telephone connection in his house which was not functioning. Accused had done the repairing work on 29.12.2001. However, within 2 hours it became non-functional. He was then requesting the accused again and again to carry out the repairs. It will not be out of place to consider the testimony of PW-3 Ashok Gattani who was the Sub-Divisional Engineer in BSNL Office at Aurangabad. He has deposed that accused was working as Telephone Mechanic (Regular Mazdoor) in the Telephone Exchange Centre at Chitepimpalgaon. However, in his cross-examination he has clearly admitted that Regular Mazdoor and Telephone Mechanic are 2 different posts. Telephone Mechanic is a technical post. Regular Mazdoor does not require to have technical qualification. Accused was working as Regular Mazdoor and was not posted as a Telephone Mechanic. It was not tried to be brought on record by the prosecution that carrying out repairs of ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 11 CrApel 470-2006 telephones within the jurisdiction of the Telephone Exchange at Chitepimpalgaon was the work assigned to the accused. In other words, accused was given duty to repair the telephone connections attached to the Telephone Exchange at Chitepimpalgaon. Therefore, when it was not the duty of the accused to carry out the repairs even if the complainant would have requested him to carry out the repairs, it can not be the part of his official duty. The learned Special Judge has observed that no suggestion was given to PW-3 Gattani that the accused was entrusted with some other work than repairing the telephones. In fact, it was the duty of the prosecution to produce on record the duty chart of the accused. It was not required by the accused to give a suggestion to the witness. Further, it has also been observed that though PW-3 Gattani has stated that the accused was not posted as Telephone Mechanic that does not mean that accused was not entrusted with the work of repairing telephones. When in a public utility services a person is employed, definitely, his work is fixed or prescribed. It is for the prosecution to bring on record as to what were duties those were assigned to the accused in order to prove that the fact that the act which was requested by the complainant was within his duties and in order to fulfill that duty he had asked for ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 12 CrApel 470-2006 the illegal gratification. Therefore, the burden or onus in any manner can not be shifted on the shelters of accused. Here, in this case when the duty chart of the accused was not produced on record, it can not be said that it was the duty of the accused to carry out the repairs of the telephones attached to the Telephone Exchange, Chitepimpalgaon.
10. According to PW-1 Dnyaneshwar, accused had repaired the telephone at his residence on 29.12.2001 and till 28.1.2002 accused did not do anything. That means, for about a month, the telephone of the complainant was not working. He has admitted in his cross-examination that he has not filed any complaint regarding not carrying out of the repairs of his telephone in writing to BSNL. No fault has been found by the Special Judge regarding this conduct of the complainant. However, if we consider this conduct as a conduct of the prudent man then if he was in need and urgency that the telephone at his residence should be repaired immediately, then, after waiting for a reasonable time, he would have filed a written complaint. But, then he has stated that he had gone to the house of accused on 29.1.2002. Why he had chosen to go to the house of the accused has not been explained by him. According to him, the accused had then ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 13 CrApel 470-2006 demanded amount of Rs. 200/- for carrying out repairs. In his examination-in-chief he has stated that he paid amount of Rs. 50/- in the house. He does not say that he had asked the accused as to why he is demanding the said amount. Without any dialogue it appears that he had paid amount of Rs. 50/- to the accused. But, then he says that as he was not intending to give bribe to the accused, he had decided to lodge the complaint. As per complaint, when he paid amount of Rs. 50/- involuntarily and requested the accused to carry out the repairs immediately, accused told him that unless the amount of Rs. 150/- is given he will not carry out the repairs. Whereas, in his examination-in-chief he says that after the paid amount of Rs. 50/- he himself had asked the accused as to when he should pay the balance amount of Rs. 150/-. Then accused told him to bring the amount in his office in the afternoon. Thus, the fact of voluntariness in demand is absent, if we consider the testimony of the complainant.
11. As regards, acceptance of amount of Rs. 150/- in the office is concerned, PW-1 Dnyaneshwar says that when he and PW-2 went to the office and met accused, he had requested the accused to carry out the repairs earliest as he wanted to go to Balaji, accused replied him that some ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 14 CrApel 470-2006 time would be required. Thereafter, complainant asked accused as to whether he should pay him balance amount of Rs. 150/-. The accused replied that the said amount be paid to him. Two facts emerge from this portion of the deposition of the complainant. One is that he was having urgency to get the telephone repaired and secondly when he made that request about carrying out repairs urgently, accused No. 1 had not immediately asked about the balance amount. But, on the contrary, he told that some time would be required. Thereafter, the complainant himself had voluntarily asked when he should pay the balance amount of Rs. 150/- and thereupon the accused has said that the amount be paid to him. It can not be said that this kind of demand is voluntary. This fact can also be considered from the cross-examination of PW-2 Pandit. He has admitted that accused himself had not demanded the money from PW-1, when PW-1 and he himself met accused in his office. When the demand was not voluntary ratio in 1] State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede, (2009) 15 Supreme Court Cases 200), 2] B. Jayaraj V/s State of Andhra Pradesh, (2014) 13 Supreme Court Cases
55), 3] Rakesh Kapoor V/s State of Himachal Pradesh, (2012) 13 Supreme Court Cases 552) (Supra) are applicable here.
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15 CrApel 470-2006
12. No doubt, it has come from the evidence of PW-1, 2 and 4 that the accused was found possessing the tainted amount. As per the ratio laid down in 1] C. M. Girish Babu V/s CBI, Cochin, High Court of Kerala, (2009) 3 Supreme Court Cases 779), 2] Rajendrakumar Laxmichand Gupta V/s The State of Maharashtra, (2013 All MR (Cri) 1425) mere recovery of tainted money by itself is not enough. Here, in this case the accused had come with a defence that he had extended loan of Rs. 1,000/- to the complainant about a month prior to the incident and he was demanding re-payment of the same from the complainant. Suggestions to that effect were given to the complainant, but, he has denied. in his statement under Section 313 of Cr. P. C., the accused had stated that he had made complaint about non re-fund of money by the complainant to him with one Bhausaheb Pawar on 29.1.2002. However, he has not examined Bhausaheb Pawar in defence. Therefore, we can not consider his defence. The first and the foremost fact is that the tainted amount was found in his possession. But, the prosecution, as aforesaid has not proved that the accused had voluntarily demanded the bribe. Second fact that is also required to be considered is that the prosecution has not positively proved that carrying out repairs of the telephones attached to the ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 16 CrApel 470-2006 Telephone Exchange, Chittepimpalgaon was the duty of the accused. He can not be said to be performing any official duty and therefore, the ratio laid down in Mahadeo Narayan Kathane V/s State of Maharashtra, (2010(4) Mh. L. J. (Cri.) 188) (Supra) would be applicable here. One more fact that is Required to be considered is that from the testimony of PW-1 Dnyaneshwar, PW-2 Pandit and PW-4 Manda it is certain that Mr. Idhate, DYSP had not carried out any verification of the demand. Verification of the demand was must, because it safeguards the public servants from being falsely implicated. PW-4 Manda has not given any explanation as to why it was not thought that they should go for verification first before carrying out the actual raid. That means, DYSP Idhate took whatever the complainant has stated as gospel truth. PW-2 Pandit in specific words has admitted in his cross-examination that they had not even cross checked as to whether the telephone connection at the residence of the complainant was working or not working on that day. With such assumption if the raid is conducted, then very purpose of having a verification of the demand has been frustrated.
13. Now, turning towards the order of sanction PW-3 Gattani has stated that he was empowered to appoint a person as Telephone Mechanic and also to remove him from ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 ::: 17 CrApel 470-2006 that post. According to him, as per examination-in-chief accused was working as Telephone Mechanic (Regular Mazdoor). But, in his cross-examination he has stated that Regular Mazdoor and Telephone Mechanic are two different posts. That means, he has given a contrary statement. Further, it was not extracted from him that though he was the appointing and removing authority for the post of Telephone Mechanic whether he was also the appointing and removing authority for the post of Regular Mazdoor. When these two posts are different it was for the prosecution to bring it on record that PW-3 Gattani had also power to appoint and remove regular Mazdoor. Further, in his examination-in-chief he has stated that he had received the papers of investigation from his head office. He went through those papers, applied his mind and thought it fit to accord sanction to prosecute the accused. Sanction order is at Exh. 28. In his cross- examination he has stated that he had received the draft of the sanction order from the office of Anti Corruption Bureau. He had signed on the draft sanction order. He had clarified that he had signed it after reading the papers of investigation. In State of Maharashtra through C. B. I. V/s Mahesh G. Jain, (2014 All SCR 177) it is observed that :
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18 CrApel 470-2006 "Satisfaction of the sanctioning authority is essential to validate an order granting sanction from the various decisions of Supreme Court, the following principles can be culled out :
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the sanctioning authority can not be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite as it ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 02:19:09 :::
19 CrApel 470-2006 is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
Thus, when it is a sacrosanct act to accord a sanction to prosecute a person, signing the draft sanction order and by only uttering words that he had gone through the papers and applied his mind, are not sufficient acts to show that the sanction order was passed after due application of mind. When sanction order was defective, there was no verification to the alleged demand. Further, it had come on record that the alleged demand was not voluntary. Under such circumstance, learned Special Judge ought to have acquitted the accused. The learned Special Judge erred in holding the accused guilty and convicting him for the offences punishable under Sections 7 of Prevention of Corruption Act and Section 13(2) read with Section 13(1)
(d) of the Prevention of Corruption Act.
14. For the aforesaid reasons appeal deserves to be allowed.
15. Hence, following order;
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20 CrApel 470-2006 ORDER
(i)Appeal is hereby allowed.
(ii)The Judgment and Order of conviction passed by Special Judge, (PC Act) Aurangabad in Special Case No. 13/2002 on 9.5.2006 against the appellant is hereby quashed and set aside. The appellant is hereby acquitted of the offences punishable under Section 7 of Prevention of Corruption Act and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Fine amount, if any, be re- funded to the appellant.
(iii)Bail bonds of the appellant are canceled.
(iv)The appellant to execute PR Bond with surety of Rs. 15,000/- as per Section 437(a) of Cr. P. C. and the period of bonds would be 6 months.
(v)It is clarified that the order of disposal of property passed by the learned Special Court is not canceled.
[SMT. VIBHA KANKANWADI] JUDGE Dahibhate/-.
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