Supreme Court - Daily Orders
Umesh Balkrishna Hirve vs State Of Maharashtra on 16 September, 2015
Author: Chief Justice
Bench: Chief Justice, Arun Mishra
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1905 OF 2010
UMESH BALKRISHNA HIRVE .. APPELLANT(S)
VERSUS
STATE OF MAHARASHTRA .. RESPONDENT(S)
O R D E R
1. This appeal is directed against the judgment and order passed by the High Court of Judicature at Bombay, Aurangabad Bench in Criminal Appeal No.6 of 1997, dated 24.11.2008 whereby the High Court has set aside the order of acquittal passed by the Trial Court in Special Case No.2 of 1993, dated 01.07.1996.
2. The prosecution’s case is as follows:
The appellant was, at the time of the alleged incident, working as the “Sheristedar” in the Court of the Civil Judge. The complainant had been the defendant in Civil Suit No.598/88. A decree dated Signature Not Verified Digitally signed by Charanjeet Kaur Date: 2015.09.21 16:42:08 IST Reason: 21.01.1992 was passed against him by the Civil Court 2 wherein he was directed to transfer vacant possession of his residence to the plaintiff-landlord. The Court had further granted him leave to file an appeal against the said decree till 12.02.1992. To this end, the complainant filed an application dated 22.01.1992 for getting certified copies of the judgment and order passed by the Court and deposited the requisite fee of Rs.50/-. Further, on 27.01.1992, he filed an application for extension of time for filing the appeal.
3. On 28.01.1992, the complainant approached the appellant in order to inquire about the issue of the said certified copies and the order made by the Court regarding his application dated 27.01.1992. The appellant informed the complainant that as yet, no order had been passed by the Court regarding his application.
4. On 30.01.1992, the complainant again met the appellant and was informed by the latter that he had 3 been granted time till 10.02.1992 to file an appeal. The appellant further told the complainant that, if he desired to receive the certified copies at an earlier date, he should pay the appellant a sum of Rs.50/-. The complainant, in turn, informed the appellant that he had already deposited a fee of Rs.50/- and inquired about the purpose of paying an additional sum of Rs.50/-, to which the appellant responded that the sum paid by him earlier was the Government fee and that this additional sum was in exchange of providing him with the said documents at an earlier date. The complainant paid Rs.20/- to the appellant who accepted the same and instructed the complainant to give him the remaining amount on the next day.
5. The complainant, thereafter filed a complaint before the Inspector of Police, Anti Corruption Bureau, Ahmednagar. On the morning of 31.01.1992, pre-trap proceedings, including smearing the trap money with anthrocin powder, were completed. 4 Immediately thereafter, the trap team proceeded to the Court premises. At about 02:15 p.m., the complainant, together with a Pancha witness, approached the appellant who took them to a nearby tea cart where they were joined by one Mr. Gavane (PW-5). The appellant told the complainant to pay PW-5 a sum of Rs.5/- but PW-5 refused the money. The complainant inquired whether he should pay the amount and held out the tainted currency notes. The appellant wordlessly accepted the same and kept them in his pocket.
6. On the complainant’s signal, the trap team apprehended the appellant and PW-5. A detailed panchnama regarding the incident was drawn and an FIR was lodged against the appellant as CR No.II 72/92. Subsequently, on sanction for prosecution being received, the investigation was completed and a charge-sheet was filed before the Trial Court. 5
7. Thereafter, on summons being issued, the appellant appeared before the Trial Court. After both sides were heard, charges were framed against the appellant for offences under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, “the Act”). The charges were read over and explained to the appellant who pleaded not guilty. Consequently, the case was committed to trial.
8. The prosecution examined six witnesses and produced various documents. The appellant’s statement was recorded under Section 313(1)(b) of the Code of Criminal Procedure (for short, “the Code”) wherein he stated that he had been falsely implicated. The defense further examined one witness and produced various documents.
9. The Trial Court considered the evidence on record as also the arguments of the parties and noticed that the prosecution had been able to prove 6 that on 30.01.1992, the appellant had demanded a sum of Rs.50/- from the complainant in exchange for giving him the certified documents, had accepted a sum of Rs.20/- from the complainant as illegal gratification and had asked the complainant to pay a sum of Rs.30/- on 31.01.1992.
10. The Court further noticed that the prosecution had been able to prove that the appellant had accepted a sum of Rs.30/- on 31.01.1992 by corrupt means and was, therefore, guilty of criminal misconduct. However the Trial Court observed that the order of sanction for prosecution had been issued without the requisite application of mind by the concerned sanctioning authority (PW-4). Therefore, by judgment dated 01.07.1996, the Trial Court acquitted the appellant of the offences charged against him.
11. Aggrieved by the said judgment of acquittal, the respondent-State approached the High Court. 7
12. By the impugned judgment and order, the High Court re-appreciated the entire evidence on record and observed that the Trial Court ought to have taken note of the fact that the order of sanction for prosecution issued by PW-4 had described the minute details of the complaint against the appellant and the alleged incident, which went to the root of the matter, and that the Trial Court had erred in relying on a minor discrepancy in the number of the concerned courtroom to hold that the sanction for prosecution was invalid.
13. The High Court further observed that no prejudice had been caused to the appellant as a result of this minor discrepancy and therefore the same would not invalidate the sanction for prosecution. Therefore, by the impugned judgment and order, the High Court set aside the judgment of acquittal passed by the Trial Court, convicted the appellant for the offences under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act 8 and sentenced him to rigorous imprisonment for a period of one year and imposed a fine of Rs.1000/-.
14. Aggrieved by the judgment and order passed by the High Court, the appellant is before us in this appeal.
15. We have heard learned counsel for parties to the lis.
16. Learned counsel for the appellant would submit that the prosecution has failed to prove the fact that the appellant demanded illegal gratification from the complainant; that the testimony of the complainant is unreliable since in his cross- examination he was unable to remember details of the alleged incident; and, that the sanction for prosecution issued by PW-4 is invalid since PW-4 has not duly applied his mind. Per contra, learned counsel for the respondent-State would support the judgment and order passed by the High Court. 9
17. After going through the judgment and order passed by the High Court and the Trial Court as well as the material on record, the appellant’s case fails to convince us. On a careful perusal of the plaintiff’s testimony, we find his testimony to be reliable and credible. Given the fact that the trial was held nearly four years after the date of the alleged incident, the mere fact that there were gaps in his memory during his cross-examination would not, in and of itself, discredit his entire testimony. Further, the testimony of the complainant is sufficient to prove the factum of demand. In addition to that, the prosecution’s case is supported by the testimony of the panch witness, PW-2. Therefore, there is sufficient evidence on record to prove the fact that the appellant had demanded and accepted illegal gratification from the complainant.
18. As regards the validity of the sanction for prosecution, we have perused the said order and we find no infirmity in the same. The High Court has 10 rightly concluded that PW-4, the sanctioning authority, had issued the sanction for prosecution after due application of mind and we concur with the same.
19. In light of the aforesaid, we are of the considered opinion that in the instant case, no good ground exists for our consideration and interference. The appeal, being devoid of any merit, is liable to be dismissed and, is dismissed accordingly.
20. The appellant is directed to be taken into custody forthwith to serve out the remaining part of the sentence awarded by the High Court.
Ordered accordingly.
.............CJI.
[ H.L. DATTU ] ...............J. [ ARUN MISHRA ] NEW DELHI, SEPTEMBER 16, 2015.
ITEM NO.12 COURT NO.1 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1905/2010
UMESH BALKRISHNA HIRVE Appellant(s)
VERSUS
STATE OF MAHARASHTRA Respondent(s)
Date : 16/09/2015 This appeal was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN MISHRA For Appellant(s) Mr. Sudhanshu S. Choudhari,Adv. For Respondent(s) Mr. Kunal A. Cheema, Adv.
Mr. Nishant Ramakantrao Katneshwarkar,Adv. UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the signed order.
The appellant is directed to be taken into custody forthwith to serve out the remaining part of the sentence awarded by the High Court.
[ Charanjeet Kaur ] [ Vinod Kulvi ]
A.R.-cum-P.S. Asstt. Registrar
[ Signed order is placed on the file ]