Raju S/O Laxmanrao Bahekar vs State Of Maharashtra(Acb),Thr.Pso ... on 5 March, 2018

[Cites 5, Cited by 0]

Bombay High Court

Raju S/O Laxmanrao Bahekar vs State Of Maharashtra(Acb),Thr.Pso ... on 5 March, 2018

Bench: V.M. Deshpande

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.206 OF 2000
AND
CRIMINAL APPEAL NO.213 OF 2000

CRIMINAL APPEAL NO.206 OF 2000
Kashinath Vikramji Thorat,
Age about 52 years,
Naib Tahsildar,
R/o Amravati. ..... Appellant.

:: VERSUS ::

State of Maharashtra (ACB)
Through PSO, Frazerpura,
Amravati. ..... Respondent.
================================================================
Shri Charuhas B. Dharmadhikari, Counsel for the appellant.
Shri Amit Madiwale, Addl.P.P. for the State.
================================================================

CRIMINAL APPEAL NO.213 OF 2000
Raju s/o Laxmanrao Bahekar,
Aged about 25 years, Patwari Halka
No.59, Resident of Bhalsi, Taluka Bhatkuli,
District Amravati. ..... Appellant.

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:: VERSUS ::

State of Maharashtra (Anti-Corruption
Bureau), through PSO, Frazerpura,
Amravati. ..... Respondent.
================================================================
Shri Anoop J. Gilda, Counsel for the appellant.
Shri Amit Madiwale, Addl.P.P. for the State.
================================================================

CORAM : V.M. DESHPANDE, J.
DATE : MARCH 5, 2018.

COMMON JUDGMENT

1. These two criminal appeals arise out of judgment and

order of conviction, passed by learned Special Judge and Additional

Sessions Judge at Amravati, dated 28.6.2000 in Special Case (ACB)

No.2/1993. Therefore, these two appeals are taken up for hearing

simultaneously and they are decided by this common judgment.

2. By the impugned judgment, both appellants are

convicted for the offence punishable under Section 7 of the

Prevention of Corruption Act, 1988 (for short, "the said Act") and are

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directed to suffer simple imprisonment for 6 months and to pay a

fine of Rs.300 by each of them and, in default of payment of fine

amount, to suffer further simple imprisonment for 1 month. The

appellants are also further convicted for the offence under Section

13(1)(d) punishable under Section 13(2) of "the said Act" and on that

count sentenced to suffer simple imprisonment for 1 year and to pay

a fine of Rs.300/- by each of them and, in default of payment of fine

amount, simple imprisonment for 1 month.

3. Criminal Appeal No.206/2000 is filed by accused No.2

Kashinath Vikramji Thorat and Criminal Appeal No.213/2000 is filed

by accused No.1 Raju s/o Laxmanrao Bahekar. In the present

judgment, they will be referred to by their original position.

4. Accused No.1 Raju s/o Laxmanrao Bahekar, is

represented by learned counsel Shri Anoop J. Gilda and accused

No.2 Kashinath Vikramji Thorat is represented by learned counsel

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Shri Charuhas B. Dharmadhikari. Both these appeals are opposed

by learned Additional Public Prosecutor Shri Amit Madiwale for the

State. They took me through the record and proceedings of the

record of Special Case (ACB) No.2/1993.

5. On 2.4.1992, PW5 Panjab Arjun Bhagat, was discharging

his duties as Police Inspector in the Anti-Corruption Bureau at

Amravati. On the said day, at about 13:00 hours, PW1 Pramod

Thosar, came to the Bureau. He lodged an oral report in respect of

demand of bribe. Therefore, PW5 Panjab Bhagat, reduced the same

in writing (Exhibit 29).

6. PW1 complainant Pramod Thosar, is resident of

Wathoda Shukhleshwar, District Amravati. He purchased

agricultural land from one Anant Madhao Wathodkar at Udapur. He

purchased 8 acres of land by getting 2 sale-deeds executed in his

favour, each for 4 acres. Out of this 8 acres of land, his name is

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mutated as the landowner in respect of 4 acres of land and

remaining 4 acres of land stands in his name as "Vaivatdar". Out of

the said 8 acres of land, already he executed sale-deeds in favour of

3 persons including one Madhukar Bonde, a teacher.

7. The complaint further recites that from the remaining

land with him, he was intending to execute sale-deed in favour of

said teacher Madhukar Bonde and in that behalf an agreement of

sale was also executed and in pursuance to the said, he received

earnest of Rs.10,000/-. As per the earnest note, a date for execution

of sale-deed was decided as 30.4.1992. Therefore, said teacher

Madhukar Bonde demanded that the complainant shall execute the

sale-deed as per the earnest note. However, it was revealed to the

complainant that till the complainant's name is not mutated, as

landowner in the revenue records, he was not ready to get the sale-

deed executed in his favour. Therefore, the complainant met

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accused No.1 'Patwari' Raju s/o Laxmanrao Bahekar and pleaded

with him that his name be mutated in the revenue records. It is

stated in the complaint that accused No.1 Raju Bahekar instigated

Madhukar Bonde that till the name of the complainant is mutated in

the revenue records, he should not get the sale-deed executed in his

favour. It is also stated in the complaint that for mutating his name

in the revenue records, accused No.1 Raju Bahekar demanded

Rs.400/-. It is also stated that out of said Rs.400/-, some amount will

have to be given to Naib Tahsildar and he disclosed a name of Naib

Tahsildar as Shri Thorat (accused No.2). It is also stated in the

complaint that said Naib Tahsildar Shri Thorat shall remain present

at Tahsil Office at Bhatkuli for meeting and if Rs.400/- is agreed to

be given, he will bring entire record at Amravati and, thereafter, the

mutation will be done. As per the complaint, this demand was made

at the office of 'Patwari' at Sonarkheda on 1.4.1992. On 2.4.1992,

since the complainant was not ready to give the bribe amount, he

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approached to the Anti-Corruption Bureau.

8. On getting the complaint, PW5 Police Inspector Panjab

Bhagat, issued a requisition (Exhibit 44) to the Sales Tax Office

requesting the said Office to depute two employees to act as

panchas. Accordingly, Sadashiv Govindrao Uike (PW3) and Arun

Pandurangji Thakare (PW4) were directed to attend the Office of

the Anti-Corruption Bureau.

9. On 3.4.1992, at 7:00 a.m., PW3 Sadashiv Uike and PW4

Arun Thakare attended the Office of the Bureau that time PW1

complainant Pramod Thosar was also present. They were

introduced to the complainant. The written complaint of Pramod

Thosar was handed over to the said two employees of the Sale Tax

Department. They read the complaint and put their signatures in

acknowledgement of reading the same. Thereafter, PW1 Pramod

Thosar produced Rs.400/- consisting of 4 notes of Rs.100/-

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denomination. A Head Constable Manoharrao Tandev from the

Bureau, thereafter, staged demonstration of characteristics of

'Anthracene Powder.' The said Constable then applied the

'Anthracene Powder' on the currency notes. The Investigating

Officer, thereafter, in presence of pancha witnesses, drawn pre-trap

panchanama (Exhibit 34).

10. PW3 Sadashiv Uike was directed by PW5 Panjab

Bhagat that he shall remain with complainant throughout. It was

directed that he shall act as shadow witness. It was also asked to

PW3 Uike that he should hear conversations between the

complainant and the accused persons. It was also directed to the

complainant by the Investigating Officer that till the amount is

demanded, 'Anthracene Powder' applied notes shall not be handed

over to the accused persons.

11. After giving all instructions, the raiding party left the

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Bureau Office by a Government Jeep and came near Circuit House.

The vehicle was parked in the premises of the Circuit House. PW1

complainant Pramod Thosar and PW3 shadow witness Sadashiv

Uike were directed to proceed towards the Tahsil Office.

Accordingly, they went inside the Office and the members of the

raiding party were standing outside the building. At about 14:30

hours, the complainant gave a pre-arranged signal. On getting such

signal, PW5 Panjab Bhagat along with PW4 pancha No.2 Arun

Thakare and other members went near a Tea-Stall from where the

signal was given. The Investigating Officer was informed by the

complainant by pointing out to accused No.1 that he has accepted

the amount. PW5 Panjab Bhagat, thereafter, disclosed his identity.

Then, the Ultra Violet Lamp was taken out and both palms of

accused No.1 and his clothes were examined in the light of the Ultra

Violet Lamp. Those were found to be glittering bluish. All the

proceedings were reduced into writing by drawing panchanama

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(Exhibit 46), post-trap panchanama.

12. PW5 Investigating Officer Panjab Bhagat, thereafter,

lodged a complaint with Frazerpura Police Station by lodging his

complaint (Exhibit 47) on the basis of which an offence under the

relevant Sections of "the said Act" was registered vide

C.R.No.29/1992. After completion of investigation, charge-sheet was

filed.

13. Learned Special Judge and Additional Sessions Judge

at Amravati famed charge against both the accused persons. Both

abjured their guilt and claimed that they be tried.

14. In order to bring home the guilt of the accused persons,

the prosecution examined in all 5 witnesses and principally relied

on panchanama No.1, pre-trap panchanama and panchanama No.2,

post-trap panchanama. Learned Judge of the Court below, after

appreciating the evidences and various proved documents, found

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that the appellants have committed the offence and accordingly

they were convicted and sentenced, as observed in the opening

paragraph of this judgment.

15. Though the criminal appeals are argued by two

different Advocates, both learned counsel for the appellants to the

appeals submitted the following:

(i) the demand made by accused No.1 Raju Bahekar is

not at all proved and the prosecution case is having

inherent contradiction in respect of the demand on the

day of the trap and, therefore, they submitted that the

appeals are required to be allowed;

(ii) Exhibit 32 sanction order, is an outcome of non-

application of mind on the part of PW2 sanctioning

authority Shivajirao Elji Patil and, therefore, they

submitted that there is no valid sanction against the

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appellants and on this count also the appeals are

required to be allowed.

16. Learned counsel for both the appellants relying upon

the following decisions in the cases of Mukhtiar Singh (since

deceased) thr. his legal representative ..vs.. State of Punjab,

reported at (2017) 8 SCC 136; State of Karnataka ..vs.. Ameerjan,

reported at (2007) 11 SCC 273; Mansukhlal Vithaldas Chauhan ..vs..

State of Gujarat, reported at (1997) 7 SCC 622; Jivendhar s/o

Govindrao Katke ..vs.. State of Maharashtra, reported at 2015

OnLine Bom 8488, and Vikram Jija Gite ..vs.. State of Maharashtra,

reported at 2015 OnLine Bom 8497, submitted that the respective

appeals be allowed.

17. Per contra, learned Additional Public Prosecutor Shri

Amit Madiwale for the State submitted that learned Judge of the

Court below, in his judgment and order impugned in the present

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appeals, has considered the evidences of the prosecution case

correctly warranting no interference from this Court and prays for

dismissal of the appeals.

18. Admittedly, in the present case, accused No.2 Kashinath

Thorat, was not found in possession of the tented notes. The tainted

notes were recovered from accused No.1 Raju Bahekar.

19. Merely because the tainted notes are found in

possession of the accused persons, that by itself is not sufficient to

record a finding of guilt for the offences under Sections 7 and 13(1)

(d) punishable under Section 13(2) "the said Act." Principally, the

prosecution is required to prove the demand and illegal

gratification in establishing the charge under Sections 7 and 13 of

"the said Act", is the settled law in view of the numerous decisions of

the Honourable Apex Court and of this Court. Presumption under

Section 20 of the "the said Act" is rebutal one and burden on the

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accused is not so strict as it is on the prosecution. The defence of

the accused has to be examined on the principle of preponderance

of probabilities.

20. In the present case, as it could be seen from the line of

the cross-examination and from statement made by accused No.1

Raju Bahekar when he was examined by learned Judge of the Court

below under Section 313 of the Code of Criminal Procedure, it is his

case that on the day of the trap, PW1 complainant Pramod Thosar,

was in arrears of land revenue and when it was noticed by him that

excess amount is given to him, he was returning the said amount, in

that process complainant thrusted the said amount in his pocket.

21. As per the prosecution case, on two occasions, there was

demand to PW1 complainant Pramod Thosar. As it is reflected in

Exhibit 29, the first demand was made by accused No.1 on 1.4.1992.

Admittedly, at this time, accused No.2 was not present. As per the

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complaint itself, this demand was made by accused No.1 at his Office

at Sonarkheda.

22. As per the complaint, the bribe was demanded for

mutating name of the complainant in the relevant revenue records.

The complainant was required to get his name mutated in the

revenue records since there was an agreement of sale in between

him and one Madhukar Bonde, a teacher. As per the complaint, the

last date for execution of the sale-deed in favour of Madhukar

Bonde was agreed as 30.4.1992 and, therefore, though said

Madhukar Bonde insisted for execution of the sale-deed, he was

reluctant to get it executed in the absence of name of the

complainant mutated in the revenue records.

23. From the reading of the complaint itself, it is clear that

at the time of demand on 1.4.1992, Madhukar Bonde, was present.

Thus, in his presence the demand was made by accused No.1. It

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would be useful to reproduce hereinbelow the relevant portion, as is

appearing in the complaint:

^^eh R;ka u k iS l s deh dj.;kcÌy foua r h ds y h vlrk R;ka u

,dys ukgh ija r q cks a M s ;ka u h e/;Lrh d#u deh djko;kl ykow

vls Eg.kkys - eh Jh ckgs d j ;ka p s ekx.kh iz e k.ks 400 #i;s

ns . ;kl r;kj >kyks o R;ka u h fn- 3-4-1992 jks t h ldkGh

10%00 oktrkP;k lq e kjkl rgfly dk;kZ y ; Hkkrdq y h] vejkorh

;s F ks ;s . ;kl lka f xrys - gh ?kVuk fn- 1-4-1992 ph vlw u

lks e kj[ks M ;s F khy iVokjh dk;kZ y ;krhy vkgs - "

24. Though complaint is never a substantive piece of

evidence, it can always be used for corroborating or for

contradicting the maker.

25. Even from the witness-box in the Examination-in-Chief

itself the complainant, in respect of demand made on 1.4.1992, has

stated the following on oath:

"Accused No.1 said to me that if at all my name

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has to be mutated then I have to pay Rs.400/-. I

requested the accused No.1 to reduce the amount

but he said to me that out of Rs.400/- some

amount is required to pay to Naib Tahsildar and

as such he quoted the amount of Rs.400/- and he

would not reduce it. In the meantime, Madhukar

Bonde said to me that I should keep quiet and he

would see that the amount of Rs.400/- be reduced.

Thereafter I agreed to pay Rs.400/- and myself

and Madhukar Bonde left village Sonarkhed."

26. Thus, from the aforesaid, there cannot be any doubt in

anyone's mind that the first demand on 1.4.1992 was made by

accused No.1 to complainant Pramod Thosar in presence of

Madhukar Bonde.

27. In the present case, the presence of Madhukar Bonde, at

the Office of Sonarkheda, is firmly established. Not only that, from

the evidence of PW1 complainant Pramod Thosar and from the

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recitals of complaint Exhibit 29, it is Madhukar Bonde who

prevailed upon the complainant to leave the Office of accused No.1

with an understanding that he will see that the amount of bribe is

reduced from Rs.400/-.

28. The second demand was made on the day of the trap i.e.

on 3.4.1992. Evidences of PW1 Pramod Thosar, so also PW3 Sadashiv

Uike, establish the presence of Madhukar Bonde, even on this date

not only at Tahsil place but also at Tea-Stall where, according to the

prosecution, accused No.1 accepted the bribe amount.

29. As per the evidence of PW1 Pramod Thosar, on the day

of the trap, he and PW3 Sadashiv Uike, were waiting for accused

No.1 in 'Veranda' since he was not noticed. PW1 Pramod Thosar

further states in his evidence, as under:

"As soon as the accused No.1entered into

varandah, I offered Namaskar to him. Accused

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no.1 did not accept my Namaskar and asked me

whether Bhausaheb Bonde has come to the

office. Nick name of Madhukar Bonde is

Bhausaheb. I replied in the negative and

thereupon the accused No.1 asked me to sit in

the verandah and he went to the meeting hall.

Thereafter myself and Uike occupied the seats

on the bench in verandah. After some times Mr

Bonde arrived in the office. Immediately I

disclosed to Mr. Uike about Mr. Madhukar

Bonde."

30. The presence of Madhukar Bonde in the Office, as

stated by complainant Pramod Thosar, is also corroborated by PW3

Sadashiv Uike. The relevant portion from his Examination-in-Chief

is reproduced hereinbelow:

"At that time, myself and Mr. Thosar remained

in verandah. After sometime i.e. about 1:00

p.m. one Bhausaheb Bonde arrived in the

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verandah and Mr. Thosar told me that the

person who had then come to verandah, was

Bhausaheb Bonde."

31. As per the evidences of these two prosecution witnesses,

though after some time Madhukar Bonde was present there, he

proceeded for answering nature's call. According to these two

prosecution witnesses, the demand was made to complainant

Pramod Thosar and, thereafter, the complainant asked both the

accused persons to accompany to Tea-Stall situated outside the

Tahsil Office premises. Thereafter, 5 persons proceeded towards

the Tea-Stall. In that behalf, following is the version of complainant:

"We all 5, i.e. myself, Uike, Madhukar Bonde,

accused No.1 and his associate, who was

unknown to us, occupied the seats on two

benches at tea stall. Accused No.1 had

occupied the seat on one bench and other

persons on other bench and they were facing

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to each other. I placed the order for five cups

of tea. Accused no.1 told me that unknown

person was the Naib Tahsildar Mr. Thorat.

But subsequently the unknown person was

found to be circle inspector. The accused no.2

before the court is the same who was then

with accused No.1."

32. The presence of Madhukar Bonde at the Tea-Stall is also

corroborated by PW3 Sadashiv Uike and he states as under:

"We five means, myself, Mr. Pramod Thosar,

Bhausaheb Bonde, accused no.1 and Mr.

Thorat."

33. Thus, it is the specific case of the prosecution that at

Tea-Stall when the accused persons were in company of PW1

Pramod Thosar, and PW3 Sadashiv Uike, apart from them

Madhukar Bonde was also present. Importantly, the amount of

bribe changed hands at the Tea-Stall only.

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34. Thus, money smeared with the 'Anthracene Powder'

changed hands in the presence of Madhukar Bonde if the case of the

prosecution is to be evaluated in the light of the available aforesaid

evidences.

35. Madhuklar @ Bhausaheb Bonde is very important

witness to the prosecution. He is the person who entered into the

agreement of sale with complainant. He is requiring the name of

the complainant be mutated in the relevant revenue records so as to

enable him to get the sale-deed executed in his favour. He is the

person who is present in the Office of accused No.1 at village

Somarkheda. Not only that, he prevailed over complainant Pramod

Thosar that he will see that the amount of bribe will be reduced. He

is the person whose presence is asked by accused No.1 when he

noticed complainant Pramod Thosar and PW3 shadow pancha

Sadashiv Uike in 'Verandah' and on getting the negative reply,

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accused No.1 proceeded inside the meeting hall. Thereafter,

Madhukar Bonde arrived on the scene. Not only that, he along with

accused persons and complainant Pramod Thosar and PW3 shadow

pancha Sadashiv Uike proceeded towards the Tea-Stall where the

bribe is accepted by accused No.1.

36. Perusal of charge-sheet shows that this Madhukar

Bonde, a teacher, was shown at serial No.4 as witness. In spite of

this, Shri Bonde who could have thrown light on the vital aspect of

the demand both on 1.4.1992 and on 3.4.1992, for the reasons best

known to the prosecution, is not examined by the prosecution. Even

learned Additional Public Prosecutor Shri Amit Madiwale for the

State could not offer any explanation as to why this important

witness is withheld from the Court. Learned Additional Public

Prosecutor could not point out anything on record by which it could

be said that even before putting Madhukar Bonde in the witness-

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box, it was realized by the prosecution that he may turn hostile.

37. In that view of the matter, I am of the opinion that the

prosecution has withheld an important piece of evidence in the

nature of Madhukar Bonde from the Court who otherwise could

have thrown decisive light on the aspect of the demand.

38. In my view, therefore, adverse inference is required to

be drawn against the prosecution in respect of the first demand

allegedly made by accused No.1 at his Office at village Sonarkheda

from complainant Pramod Thosar. Resultantly, I record my finding

that the prosecution has utterly and miserably failed to prove that

on 1.4.1992 accused No.1 demanded Rs.400/- from complainant

Pramod Thosar for getting his name mutated in the relevant

revenue records.

39. According to the prosecution, through PW1

complainant Pramod Thosar, at the time of taking tea, the following

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has happened:

"When we were taking tea unknown person by

name Thorat (accused no.2) said to me that

the amount of Rs.200/- which was to be paid

to him should be given to the accused No.1.

Immediately thereafter the accused No.1

forwarded his left hand and asked me to give

the amount of Rs.400/-"

40. Though this particular aspect is found to be

corroborated by PW3 pancha witness Sadashiv Uike, in my view,

merely because such is the statement, the Court should not readily

accept the same, in view of not adducing evidence of Madhukar

Bonde an independent person who was present at that time.

41. It appears to me from the evidence of this pancha

witness that he was highly interested witness for success of the case

of the Anti-Corruption Bureau. In his cross-examination, he has

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stated, as under:

"In connection with this case I was required

to come to court for about 3 to 4 times.

Outside the court hall the constable working

in A.C.B. Office had handed over me my

statement and panchanama for reading.

The said constable had asked me to digest or

recite the fact mentioned in my statement

and panchanama so that I can depose in the

court as regards the incident. During my

visits to court, I cam to know if I do not

depose about the incident in terms of my

statement then I may come in trouble as far

as my services is concerned. Till this day, I

have unblemished service record. I do not

wish that I should lose my job. As I do not

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want to lose my service I have given evidence

and constrained (emphasis is supplied) to

give evidence in terms of my statement."

42. In view of the aforesaid, it is crystal clear that the

evidence of this prosecution witness cannot be termed as impartial

one. In that behalf, the law laid down by this Court in the case of

Suresh s/o Purushottam Ashtankar ..vs.. The State of Maharashtra

and anr, reported at 2015 ALL MR (cri) 4243, applies to this case

with its full force.

43. Further, it is the specific defence of accused No.1 that

on the day when the trap was led, on the said day PW1 complainant

Pramod Thosar was in arrears of the land revenue. From the cross-

examination of PW3 shadow pancha Sadashiv Uike, it is clear that

he has heard only that conversation which was in relation to the

demand allegedly made by accused persons. However, he flatly

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denied that heard the conversation in respect of the arrears of land

revenue.

44. Exhibit 49 is a document coming on record from the

custody of the prosecution itself. The said document is an extract of

the details of arrears of land revenue and perusal of the said shows

that PW1 complainant Pramod Thosar was in arrears of the land

revenue.

45. Therefore, when the defence of accused No.1 was about

to get probabalized, this prosecution witness pleads ignorance of

the conversation in that behalf.

46. Further, had Madhukar Bonde was examined in this

case, he would have also best person who could have stated about

independent version of the conversation that took place in between

complainant Pramod Thosar and accused persons.

47. In that view of the matter, it cannot be held that the

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prosecution has established its case in respect of the demand on

3.4.1992 beyond reasonable doubt. When element of doubt is crept

in, it is cardinal principle of law criminal jurisprudence that benefit

has to be extended in favour of the accused persons.

48. Further, the prosecution has not proved its case as to

when the role of accused No.2 will start. Admittedly, taking entry of

the right of ownership was not the job of accused No.2 but it was of

accused No.1.

49. It is nowhere's case even remotely by any evidence that

there was an agreement in between accused Nos.1 and 2 that

accused No.2 will only certify the entry after obtaining the amount

and for that he has authorized accused No.1 to make the demand on

his behalf.

50. Thus, on the day of the trap, when name of complainant

Pramod Thosar was not taken in revenue records, it cannot be said

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that on the said day something was pending before accused No.2

and to discharge his official duty in that behalf he has sought bribe.

51. The other question submitted before this Court is about

the sanction. The sanction order is at Exhibit 32. The said is dated

3.4.1993. It is duly proved by Shri Shivajirao Patil, retired

Additional Commissioner, who at the relevant time was working as

Collector and was appointing authority of both the accused.

52. The Honourable Apex Court, in the case of Mansukhlal

Vithaldas Chauhan ..vs.. State of Gujarat cited supra, in paragraph

Nos.17 and 18 has ruled as under:

"Para No.17 : Sanction lifts the bar for

prosecution. The grant of sanction is not an

idle formality or an acrimonious exercise

but a solemn and sacrosanct act which

affords protection to Government Servants

against frivolous prosecutions. ( See: Mohd.

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Iqbal Ahmed v. State of A.P.). Sanction is a

weapon to ensure discouragement of

frivolous and vexatious prosecutions and is

a safeguard for the innocent but not a shield

for the guilty.

Para No.18 : The validity of the sanction

would, therefore, depend upon the material

placed before the sanctioning authority and

the fact that all the relevant facts, material

and evidence have been considered by the

sanctioning authority. Consideration

implies application of mind. The order of

sanction must ex facie disclose that the

sanctioning authority had considered the

evidence and other material placed before it.

This fact can also be established by extrinsic

evidence by placing the relevant files before

the Court to show that all relevant facts

were considered by the sanctioning

authority."

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53. So also, the Honourable Apex Court, in the case of State

of Karnataka ..vs.. Ameerjan cited supra, in paragraphs No.10 has

ruled as under:

"Ordinarily, before passing an order of

sanction, the entire records containing the

materials collected against the accused

should be placed before the sanctioning

authority. In the event, the order of sanction

does not indicate application of mind (sic

to) as the materials placed before the said

authority before the order of sanction was

passed, the same may be produced before the

court to show that such materials had in

fact been produced."

54. As per the evidence of Investigating Officer, he gave a

letter to the Office of the Tahsildar on 3.12.1992. In pursuance to the

said, the Tahsildar at Bhatkuli, vide communication dated 4.12.1992,

has supplied information about the arrears of the land revenue. The

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extract of the said is placed on record at Exhibit 49.

55. Thus, on 4.12.1992 itself, it was known to the

Investigating officer that there exits arrears of land revenue in

respect of the land owned by complainant Pramod Thosar.

56. PW2 Additional Commissioner Shri Shivajirao Patil, in

his evidence, has stated as under:

"At the time of according the sanction to

prosecute the accused no.1 and 2, I am not

supposed to know whether accused no.1 was

to collect land revenue from the

complainant. I am not supposed to consider

the fact whether the land revenue was

outstanding against the complainant nor

did I come across any document suggesting

the fact that land revenue was outstanding

against the complainant."

57. From the aforesaid, it is clear that the sanctioning

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authority is pleading ignorance that accused No.1 was to collect the

land revenue from complainant Pramod Thosar. Not only that, he

has stated in very clear words that he did not come across any

document suggesting the fact that the land revenue was outstanding

against the complainant.

58. In view of Exhibits 48 and 49, it is crystal clear that PW5

Investigating Officer, has suppressed these two documents from the

sanctioning authority and those two documents were not forwarded

by him to the sanctioning authority. Had these two documents were

before the sanctioning authority, the sanctioning authority could

have taken some other decision after having gone through the

aforesaid two documents.

59. Therefore, in my view, Exhibit 32 sanction order is not a

legal and valid sanction. Consequently, this Court passes the

following order:

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ORDER

(a) The criminal appeals are allowed.

(b) Judgment and order of conviction, passed by learned Special Judge and Additional Sessions Judge at Amravati, dated 28.6.2000 in Special Case (ACB) No.2/1993 is hereby quashed and set aside.

(c) Appellants Kashinath Vikramji Thorat and Raju s/o Laxmanrao Bahekar, are acquitted of the offences under Sections 7 and 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988.

(d) The Bail Bonds of the appellants stand cancelled.

JUDGE !! BRW !! ...../-

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