Bombay High Court
Manohar S/O Ravan Kamble vs The State Of Maharashtra on 23 February, 2011
Author: S.S. Shinde
Bench: S.S. Shinde
1
crapl229.99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.229 OF 1999.
Manohar s/o Ravan Kamble,
age 45 years, occu. Jr. Clerk,
r/o Gaur, Tq. Nilanga,
District Laltur, at present
Vaijapur, Dist. Aurangabad. ...APPELLANT.
(Ori. Accused).
ig VERSUS
The State of Maharashtra. ...RESPONDENT.
...
Shri J.V. Deshpande, Advocate for appellant.
Shri S.G. Nandedkar, A.P.P. for Respondent/State.
...
CORAM: S.S. SHINDE,J.
23rd FEBRUARY, 2011.
ORAL JUDGMENT:
1. This appeal is directed against the judgment and order dated 14th May, 1999 passed by the Special Judge, Aurangabad in Special Case No.8 of 1993 thereby convicting the appellant - original accused No.1 u/s 248(2) of Cr.P.C. for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo R.I. for six months and to pay a ::: Downloaded on - 09/06/2013 17:00:57 ::: 2 crapl229.99 fine of Rs.1000/-, I/D to undergo further R.I. for three months.
The appellant - accused No.1 was however, acquitted of the offence punishable under Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The original accused No.2 was acquitted of all the offences punishable under Sections 12 r/w 7 as also under Section 109 r/w sec.13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
2. The prosecutor case, in brief, is as follows:
The complainant has got agricultural land at village Mahaboob Kheda bearing G.No.113 and G.No.
107. Both these fields are apart from each other. The complainant intended to take water pipeline from his land Gut No.113 to land Gut No. 107 and therefore, he had moved an application to Tahsil Office, Gangapur on 3rd May, 1993.
According to the complainant when he had presented the application to accused No.1 for ::: Downloaded on - 09/06/2013 17:00:57 ::: 3 crapl229.99 permission to lay pipeline, accused No.1 -
present appellant told that the work was big and therefore, Rs.1500/- should be paid.
Accordingly, complainant met accused 2 to 3 times and requested him to get the work done and lastly, the complainant met accused on 26.5.1993 in Tahsil Office at Gangapur.
3. It is the case of the prosecution that on 26th May, 1993 accused once again made demand of Rs.1500/- to which complainant reluctantly agreed to pay and thereafter on 28th May, 1993, complainant went to A.C.B. Office at Aurangabad at about 8 or 9 a.m. where he lodged his complaint, which came to be reduced into writing.
4. It is further case of the prosecution that Investigating Officer Mr. Jagtap, Dy. S.P. called for the panchas and appraised them about the complaint, so also they were shown the use of anthracene powder. Amount of Rs.1500/- was taken from the complainant and its numbers were noted down, anthracene powder was applied to those notes and accordingly, a detailed pre-raid panchanama was drawn.
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5. It is further case of prosecution the raiding party went to Gangapur old bus stop at about 1.30 to 1.45 p.m. where they had parked a vehicle. As per instruction, complainant and panch No.1 namely Mr. Jadhav proceeded further while other raiding members were behind them.
The complainant and panch no.1 went to the table of accused No.1 at that time accused No.1 was not present. Therefore, both of them waited outside the office. At that time they saw accused No.1 coming. They went after him and met him at the table where the accused No.1 questioned if amount of Rs.1500/- was brought and told them to return after two days and he would obtain permission.
6. It is further case of the prosecution that complainant and panch no.1 and accused no.1 went to tea stall where they had tea. At that time accused No.1 became suspicious and started questioning about the panch Mr. Jadhav and started passing off time and went to different rooms. When panch no.1 was accompanying complainant throughout, accused no.1 told panch ::: Downloaded on - 09/06/2013 17:00:57 ::: 5 crapl229.99 to wait away. As it was getting late, panch witness told complainant to get the work done.
The accused no.1 told the complainant that they should go to his house and when they had come out at that time accused no.2 was coming. Accused No.1 told accused no.2 to take complainant to the hotel and accept the amount, while accused no.1 and the panch waited outside. At first, accused no.2 was reluctant to accept the amount, but on insistence of accused no.1, he was ready to go to the hotel and accept the amount. The accused No. 1 told the complainant that it was usually their habit not to accept the amount if there is any other person at the time of giving the amount.
In the mean time, complainant had given the amount to accused no.2 and signaled the raiding party.
7. It is further case of prosecution that raiding party arrived and caught hold hands of accused no.2. At that time accused No.1 started running away. He was also caught hold. As people had assembled, both accused no1 and 2 were brought in Tahsil Office where their hands were ::: Downloaded on - 09/06/2013 17:00:57 ::: 6 crapl229.99 checked under the rays of ultra violet lamp. The documents were recovered from accused No.1 and a detailed panchanama was drawn. Dy. S.P. Mr. Jagtap went to Gangapur Police Station where he lodged complaint on behalf of the State bearing Crime No.14/1993. Then the raiding party arrived at Aurangabad where unsealing panchama of anthracene bottle was drawn. On the next day, statements igof witnesses were recorded, papers were forwarded and sanction order was obtained from Tahsildar as well as Collector to prosecute both the accused. Thereafter, charge-sheet came to be filed against the accused. The prosecution opened its case by submitting draft charge. The accused did not claim to be discharged. Hence, charge was framed against the accused, to which accused pleaded not guilty.
8. Thereafter, the prosecution examined complainant P.W.1 Krishna Kondiram Pure, P.W.2 Murlidhar Madhavrao Jadhav as panch witness, P.W. 3 Vithalrao Kisanrao Sonawane, Dy. Collector (who was Tahsildar at the relevant time), P.W.4 Pramod Annasaheb Mane, Joint Chief Executive Officer, ::: Downloaded on - 09/06/2013 17:00:57 ::: 7 crapl229.99 M.I.D.C., Mumbai, P.W.5 Somnath s/o Eknath Jagtap, Police Inspector, Investigating Officer.
After trial, the accused No.1 - present appellant came to be convicted as aforesaid and the accused No.2 was acquitted of the charges levelled against him. Hence, this appeal by the appellant
- original accused No.1.
9. This appeal was admitted by this Court in the year, 1999 and the appellant was enlarged on bail.
10. The learned Counsel for the appellant submitted that the application dated 3rd May, 1993 filed by the complainant in the office was addressed to the Tahsildar. He invited my attention to the contents of the complaint dated 28th May, 1993 at Exh.34 and submitted that according to the complainant, he wanted to lay pipeline to fetch water from the well which is situated in Gut No.107 to Gut No.113. However, in between these two fields of the complainant, there were lands of other farmers and, therefore, complainant sought permission of the Tahsildar to ::: Downloaded on - 09/06/2013 17:00:57 ::: 8 crapl229.99 lay pipeline through those fields. According to the learned Counsel for the appellant, though it is stated by the complainant in the complaint that there was demand of Rs.1500/- on 3rd May, 1993, the same version / statement of the complainant is not corroborated by an independent evidence. According to the Counsel, the appellant herein was no way concerned with the work of the complainant since one Mr. Gangawane, clerk in the Tahsil office was in-charge of the said work / section. He submitted that the application was handed over to the said clerk Mr. Gangawane by the complainant. Thereafter, the Revenue Inspector conducted panchanama and prepared map by visiting the field of the complainant on 7th May, 1993 and report was submitted to the Tahsildar on 10th May, 1993.
However, on 24th May, 1993 one Mr. Anna Bajirao Kote, neighbour of the complainant objected from granting such permission for laying pipeline through his field. Hence, the Tahsildar issued notice on the application of said Anna Bajirao Kote and the complainant did receive the said notice and he was called by the Tahsildar.
::: Downloaded on - 09/06/2013 17:00:57 ::: 9crapl229.99 Therefore, according to the Counsel for the appellant, the appellant was no way connected or in-charge of the said file and, therefore, there was no occasion for the appellant to demand Rs.
1500/- as illegal gratification to favour the complainant in getting his file cleared from Tahsildar. In fact, the Tahsildar is the ultimate authority to take decision on the said file.
The Counsel for the appellant invited my attention to the contents of the complaint and submitted that according to the complainant, he visited the office on one or two occasions after 3rd May, 1993 and thereafter, again visited the office on 26th May, 1993 when the appellant demanded an amount of Rs.1500/- to do the work.
According to the Counsel for appellant, when the Tahsildar was seized with the matter and Tahsildar in his evidence before the Court has stated that on 24th May, 1993, he called the file and issued notices on the application filed by objector Anna Kote, there was no question of appellant demanding the amount as alleged. He further submitted that the appellant has not demanded Rs.1500/- on 3rd May, 1993 or ::: Downloaded on - 09/06/2013 17:00:57 ::: 10 crapl229.99 thereafter, as alleged by the complainant in his complaint. The counsel invited my attention to the evidence of P.W.3 Vithalrao Sonwane, who was working as Tahsildar at the relevant time, and submitted that even Tahsildar in his evidence has stated that the said application given by the complainant was routed through Mr. Gangwane and thereafter, steps were taken by the officers to conduct panchanama and prepare map. The sum and substance of the argument of the Counsel for the appellant is that the appellant herein is in no way concerned with the application filed by the complainant since he is not in-charge of the said section which deals with granting permission for laying pipeline. The Counsel submitted that the contents of the complaint have not been proved by the prosecution. There is no corroboration to the alleged demand on 3rd May, 1993 or thereafter on 26th May, 1993. He invited my attention to the contents of the complaint in which the complainant has stated that he went to give application on 3rd May, 1993 in the Tahsil office with one Mr. Bandu Shivram Gaikwad. However, said Bandu Gaikwad is not examined by the ::: Downloaded on - 09/06/2013 17:00:57 ::: 11 crapl229.99 prosecution. Therefore, according to the Counsel for appellant, Bandu should have been the best witness on the point of demand. He submitted that the contents of the complaint are not proved by the prosecution, there is no corroboration to the alleged demand of Rs.1500/- by the appellant from the complainant.
The learned Counsel for appellant invited my attention to the evidence of P.W.1 Krishna Pure -
complainant and submitted that the contention of the complainant that his file was withheld by the appellant is falsified by the evidence of the Tahsildar before the Court. P.W.3 Vithal Sonwane
- Tahsildar in his evidence has specifically stated that one Mr. Gangawane was the concerned clerk looking after the application of the complainant. The Counsel submitted that the application for laying pipeline was not given by the complainant to the appellant herein. As it is evident from the evidence of the complainant in which he has stated that though the application of the complainant was accepted by the appellant, he did not give any receipt for ::: Downloaded on - 09/06/2013 17:00:57 ::: 12 crapl229.99 the said application. There is no any corroboration to the version of the complainant that the said application was accepted by the appellant. The learned Counsel further submitted that there are material contradictions in the evidence of the P.W.1 complainant and the panch witness P.W.2 Murlidhar Jadhav - panch witness.
The complainant in his evidence has stated that he did not disclosed that he has brought the amount of Rs.1500/- either in the office of the appellant on 28th May, 1993 or when they went to tea center to have a cup of tea. However, P.W.2 Jadhav in his evidence has stated that the complainant requested the appellant to accept the amount. However, he did not speak anything and after taking tea, got up. Therefore, according to the learned Counsel for the appellant, there are material contradictions and omissions in the evidence of P.Ws.1 and 2 and, therefore, their evidence becomes untrustworthy. He further submitted that it is admitted by the complainant in his examination-in-chief that accused No.2 was reluctantly ready to accept the amount from him. The Counsel also invited my attention to ::: Downloaded on - 09/06/2013 17:00:57 ::: 13 crapl229.99 the cross-examination of the complainant and submitted that in cross-examination the complainant stated that when he visited Tahsil Office, he had not taken Mr. Bandu Gaikwad with him. This statement of the complainant in the cross-examination is contradictory to the contents of the complaint in which he has stated that he went to Tahsil office with Mr. Bandu Shivram Gaikwad. Therefore, according to the Counsel for appellant, if the evidence of the prosecution witnesses contradicts with each other, suffers from improvements, omissions which are of significant nature and when the appellant herein was in no way related or was not assigned the duty to look after the application of the complainant, in that case, the entire case of the prosecution that there was demand of Rs.1500/- to clear the application / file of the complainant is not correct. The complainant has taken different stands on different times and, therefore, the entire prosecution case is required to be rejected.
The learned Counsel further submitted that ::: Downloaded on - 09/06/2013 17:00:57 ::: 14 crapl229.99 the Collector is the authority to grant sanction for prosecution. In his cross-examination, the Collector admitted that he did not call the papers from Tahsil Office before granting sanction or he did not see the file from the Tahsil office for which complaint was lodged.
Therefore, according to the Counsel for appellant, when there is no corroboration to the version of the complainant that there was demand, in that case, benefit of doubt should go to the appellant. He also invited my attention to the vital admission of the P.W.2 Murlidhar Jadhav -
panch in the cross-examination wherein he has specifically admitted that it is true that accused No.1 did not demand amount in his presence. Therefore, the Counsel for appellant would submit that the appeal of the appellant deserves to be allowed.
11. On the other hand, the learned A.P.P. submitted that the application of the complainant was accepted by the appellant on 3rd May, 1993.
He demanded Rs.1500/- as illegal gratification other than remuneration, he reiterated his demand ::: Downloaded on - 09/06/2013 17:00:57 ::: 15 crapl229.99 on subsequent occasions and on 26th May, 1993 also. On 28th May, 1993, there is evidence of panch P.W.2 Jadhav that there was demand of Rs.
1500/- by the appellant. The accused No.2 was told to accept the amount of Rs.1500/- for accused no.1. Thereafter, the said amount was accepted by accused No.2 at the instance of accused no.1 in one hotel. P.W.2 Jadhav has witnessed the acceptance of amount of Rs.1500/-
by the accused No.2 for accused No.1. The currency notes and also fingers of accused No.2 were examined in ultra violet lamp and there was shining on the fingers and the said currency notes of anthracene powder. The learned A.P.P. took me through the impugned judgment and submitted that the Special Court has taken into consideration the entire evidence and thereafter, convicted the appellant - accused. Therefore, this Court may not interfere with the impugned judgment and order.
12. I have given due consideration to the submissions made by the learned Counsel for the appellant as also the learned A.P.P. appearing ::: Downloaded on - 09/06/2013 17:00:57 ::: 16 crapl229.99 for the State. With the able assistance of the learned Counsel for the parties, I have also perused the original record & proceedings and more particularly, the complainat, evidence of P.Ws.1, 2, 3 and 4 before the Court and also other documents which are brought on record by the prosecution and defence.
13. P.W.3 Vithalrao Kisanrao Sonwane, working as Tahsildar at the relevant time, in his examination-in-chief before the Court stated that he was working as Tahsildar, Gangapur from December, 1992 to March, 1994. Tahsildar is the appointing and removing authority of Kotawal.
Kacharu Arjun Tupe was Kotwal who was working at village Bhendala Tq. Gangapur. At that time he was assigned the work of distribution of letters.
He further stated that he had accorded the sanction to prosecute the accused.
In his cross-examination on behalf of original accused No.1 - appellant herein, this witness has stated that Exh.33 is the application which was moved to the Tahsildar. It bears ::: Downloaded on - 09/06/2013 17:00:57 ::: 17 crapl229.99 signature of Mr. Gangawane, Awal Karkun.
(Emphasis supplied). When the document i.e. proceeding sheet was shown to P.W.3 before the Court, he admitted that it bears his signature of having received the file. He further states that on 24.5.1993 itself objection was raised by wife of Anna that no permission should be given for laying of pipeline. He further states that it is true that on the basis of said objection, he had issued notices to the parties calling upon objections and date was fixed for personal hearing and permission has been given to lay down the pipeline. The witness admits the file shown to him to be the same file from Tahsil Office, Gangapur. He further admits that permission was granted for laying the pipeline up to 2000 feet.
He further stated, "It is true that permission was accorded by Tahsildar alone." (Emphasis supplied).
Therefore, from the evidence of P.W.3, it is clear that Exh.33 - application, which was moved to the Tahsildar, bears signature of Mr. Gangawane, Awal Karkoon. Therefore, it is the ::: Downloaded on - 09/06/2013 17:00:57 ::: 18 crapl229.99 contention of the Counsel for the appellant that the appellant was not the concerned clerk to look after Exh.33 - application filed by the complainant. It has also come in the evidence of P.W.3 Sonwane that the proceeding sheet bears his signature. He did issue notices after objection was raised by the wife of Anna for laying pipeline on 24th May, 1993 and the parties were called upon for personal hearing. He has also admitted in his cross-examination that permission was accorded by himself in the capacity of Tahsildar. Therefore, it appears that at the relevant time, the appellant herein was not in-
charge of the file or assigned work to deal with Exh.33 - the said application of the complainant.
From perusal of the panchanama, it appears that the Revenue Officer had conducted inquiry, prepared panchanama and report, and submitted it to the Tahsildar. The panchanama is part of the record. There is also report submitted by the Revenue Officer which indicates that he had made inquiry by visiting the spot and prepared panchanama and map and recommended that permission should be given to the complainant to ::: Downloaded on - 09/06/2013 17:00:57 ::: 19 crapl229.99 lay down pipeline, as requested by the complainant. From perusal of the contents of the application dated 3rd May, 1993 at Exh.33 filed by the complainant to the Tahsildar, it clearly appears that the said application was addressed to the Tahsildar, Gangapur. The record shows that there was complaint in the form of an application by Anna to the Tahsildar objecting laying down pipeline from his field. The said application was received in the office of the Tahsildar on 24th May, 1993 and Tahsildar had issued notices to the parties. Therefore, the learned Counsel for the appellant rightly submitted that when the Tahsildar was seized with the matter and he had issued notices on 24th May, 1993, there was no question for the appellant to demand any amount as alleged by the complainant on 26th May, 1993. The complainant was fully aware that the Tahsildar has issued notices, his neighbour has objected for laying down pipeline from his field and therefore, at the relevant time, it was only the Tahsildar who was in full control of the said application / file of the complainant.
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14. Though the complainant has asserted in his complaint at Exh.34 dated 28th May, 1993 that he had given application on 3rd May, 1993 to the appellant herein, who was working as a clerk in the Tahsil office at the relevant time, on perusal of the application dated 3rd May, 1993, it is abundantly clear that the said application was received and forwarded by Mr. Gangawane and his signature is appearing on the said application. Therefore, on perusal of the record and the evidence of P.W.3, the assertion of the complainant that the application was handed over to the appellant herein, cannot be accepted.
Even, according to the complainant, no any receipt was possessed by him showing therein that the appellant had received his application on 3rd May, 1993. The complainant in his complaint has stated that when he went to give application on 3rd May, 1993, one Mr. Bandu was accompanying him. However, in his cross-examination, he states that said Bandu was not accompanying him.
This conduct of the complainant and contradictory statements of the complainant make his evidence ::: Downloaded on - 09/06/2013 17:00:57 ::: 21 crapl229.99 doubtful. It is an admitted position that Bandu was not examined by the prosecution. Perhaps, he would have been the best witness on the point of alleged demand of illegal gratification of Rs.
1500/- by the appellant from the complainant to do his work favourably. It is an admitted position that so far as initial demand on 3rd May, 1993 is concerned, the version of the complainant ig is not corroborated by any independent evidence. So far as alleged demand on 3rd May, 1993 and on subsequent dates including 26th May, 1993 is concerned, except bare words of the complainant, there is no corroboration to the statement that there was illegal demand of Rs.1500/- by the appellant to decide complainant's application in his favour.
Therefore, what has been stated by the complainant in the complaint has not been substantiated or corroborated by independent evidence. As stated earlier, another clerk was looking after the application at Exh.33 filed by the complainant. The Revenue Inspector inspected the spot, conducted inquiry, prepared map and thereafter submitted his report on 10th May, ::: Downloaded on - 09/06/2013 17:00:57 ::: 22 crapl229.99 1993. The said report was favourable to the complainant.
The evidence of the complainant before the Court is at Exh.22. In his statement before the Court, he has stated that there is no any receipt possessed by him showing that his application was received by the appellant. In his examination-
in-chief, ig he has again reiterated that Bandu Shivram Gaikwad was with him. However, in his cross-examination, he stated, "It is not true to say that earlier when I had visited Tahsil Office I had taken Mr. Bandu Gaikwad." (emphasis supplied). Therefore, what the complainant had stated in the complaint and in examination-in-
chief, is not maintained by him in his cross-
examination and, therefore, the evidence of the complainant becomes doubtful and contradictory to his own statement in the complaint, examination-
in-chief vis-a-vis in cross-examination. Though he has asserted that there was demand of Rs.
1500/- by the appellant on 3rd May, 1993 and thereafter he visited Tahsil office twice or thrice and also on 26th May, 1993 and he met the ::: Downloaded on - 09/06/2013 17:00:57 ::: 23 crapl229.99 appellant / accused. However, the statement of the complainant that there was illegal demand of Rs.1500/- to decide his application favourably and grant permission to lay pipeline is not supported by any independent evidence. There is no any corroboration to the alleged demand by the appellant from the complainant. The complainant P.W.1 in his evidence has stated that he visited the office of the appellant on 26th May, 1993.
He requested him to get his work done by granting permission to lay down pipeline. However, the appellant told him that he would do the work only if an amount of Rs.1500/- is paid and the complainant should not again visit the office without money. The complainant requested the appellant - accused to reduce the amount and accept less amount. However, the appellant refused the request and it is further stated that he agreed to pay the amount to the appellant / accused on 28th May, 1993. Then he collected Rs.
1500/- on 28th May, 1993 and went to the office of the A.C.B., Aurangabad. He disclosed in the office that the accused - appellant is not ready to do his work unless he pay Rs.1500/- and ::: Downloaded on - 09/06/2013 17:00:57 ::: 24 crapl229.99 accordingly, his complaint was reduced into writing. Thereafter, the complainant has narrated minute details about the steps taken by the concerned office before pre-trap panchanama was prepared. Thereafter, the complainant with raiding party went to Gangapur. They reached around 1.30 or 1.45 p.m. The complainant himself and both the panchas Jadhav and Gaikwad got down from vehicle and went walking to Tahsil Office, Gangapur. After some time, the raiding party also came behind them. They reached Tahsil office at about 2 p.m. or 2.15 p.m. The complainant and Mr. Jadhav went to the table of the accused No.1 / appellant Kamble. The accused No.1 was not at his place. On questioning the adjoining staff members, they told them that Mr. Kamble had gone out. They waited for the accused. When the accused came, they went to the accused and inquired about permission for laying down pipeline. Thereupon the accused No.1 i.e. appellant herein asked the complainant as to whether he had brought Rs.1500/-. Thereafter, the complainant, panch no.1 and accused appellant went to Janata Tea Stall and after having cup of ::: Downloaded on - 09/06/2013 17:00:57 ::: 25 crapl229.99 tea, they went back to Tahsil office.
Thereafter, appellant went to another table and started looking to panch no.1 with suspicion. On questioning by accused about the panch no.1, he told him that he is his maternal uncle. The complainant has stated that accused No.1 called him in different room. At that time, panch no.1 also came along with him. Accused No.1 told panch to ig wait away. Accused No.1 thereafter started passing time. The complainant P.W.1 further stated, "Mr. Jadhav told me to and tell the accused No.1 to get work done as it was late.
I told accused no.1 to do work early as I have to go back to my village." Thereafter, accused no.1 told the complainant that they should go to his house and accordingly, they went out of Tahsil Office. P.W.1 further stated, "Accused No.1 who saw accused no.2 coming, called him and instructed him to take me to a hotel and take Rs.
1500/-. Accused No.2 told that he has got his work and was going at that time accused no.1 told to accused no.2 that being Kotwal can't he do this small work for him. Thereafter, accused no.
2 agreed to come to the hotel. Accused NO.2 was ::: Downloaded on - 09/06/2013 17:00:57 ::: 26 crapl229.99 reluctantly ready to accept the amount from me.
Then myself and Tupe accused no.2 went in the hotel while Mr. Jadhav and accused No.1 waited near Tahsil Office. I thereafter paid Rs.1500/-
and counted it. I came out of the hotel and signal by wiping my face with handcurchief (handkerchief). It must have been around 4.15 p.m. Immediately the Officers came and caught hold of hands of accused no.2. At that time accused no.1 about to run away, I told Officers that accused no.1 is about to run."
Upon reading this evidence of the complainant, which is quoted herein above from his examination-in-chief, no conclusion or inference can be drawn that the accused No.1 -
appellant had made demand of Rs.1500/- to clear the application at Exh.33 of the complainant seeking permission to lay down pipeline.
Therefore, the afore stated version of the complainant cannot be read or construed as a demand of Rs.1500/- by appellant as illegal gratification for favourably deciding the said application of the complainant. At the most, it ::: Downloaded on - 09/06/2013 17:00:57 ::: 27 crapl229.99 can be gathered from the afore stated statement of the complainant that accused no.1 instructed the accused no.2 to take Rs.1500/-. However, it cannot be said that there was demand of Rs.1500/-
in front of panchas as illegal gratification.
The complainant has further stated in his evidence that, "The light of the lamp was focused on my hand. It glittered blue. Similarly the light was directed on my pocket which also glittered blue. Similarly the hands of Tupe was checked and it was shining blue. Thereafter detail panchanama was drawn." It is admitted position that the alleged amount of Rs.1500/- was not directly accepted by the appellant - accused no.1. It is the case of the prosecution that accused no.2 accepted Rs.1500/- as illegal gratification at the instance of accused no.1 for favourably deciding the application of the complainant at Exh.33. Therefore, in such cases where the amount is not accepted directly by the accused, the alleged demand assumes importance.
At the cost of repetition it has to be stated that the complainant though asserted in his ::: Downloaded on - 09/06/2013 17:00:57 ::: 28 crapl229.99 complaint and also in examination-in-chief that on 3rd May, 1993 when he visited Tahsil Office, he was accompanied by one Bandu Gaikwad.
However, his assertion in complaint and examination-in-chief is not maintained by him in his cross-examination. In his cross-examination, he denied that earlier when he visited Tahsil office, he had taken Bandu with him. In his cross-examination he has further admitted that the room where Mr. Kamble was sitting, there were about 4-5 tables of other employees. He further admitted that Peshkar (Sr. Clerk) sits in the said room. On the back side, there is room of Employment Guarantee Scheme. Naib Tahsildar has his own office in the separate room. Relying on this portion of the complainant P.W.1 in cross-
examination, the Counsel for the appellant vehemently argued that in such a situation where other employees are sitting in the officer, the story of alleged demand cannot be believed, no other employee from the said office has stated about the alleged demand.
The complainant P.W.1 further stated in his ::: Downloaded on - 09/06/2013 17:00:57 ::: 29 crapl229.99 cross-examination that Revenue Inspector did not visit his land to make inquiry or to draw map.
This statement of the complainant is falsified by the documents which are part of the record, which unequivocally indicates that Revenue Inspector visited the spot on 7th May, 1993 and thereafter, he prepared report which was submitted to his superiors on 10th May, 1993 with recommendation that application of complainant can be favourably decided and complainant can be allowed to lay down pipeline. The complainant has further stated in his evidence before the Court that on 24th May, 1993 he was not called for the purpose of inquiry by notice issued by P.W.3. This statement of the complainant is also incorrect since there are documents on record to suggest that P.W.3 Tahsildar did issue notice to the concerned parties including the complainant. The complainant admitted in his evidence that wife of Anna had moved an application to Tahsildar that pipeline should not pass through her field. This admission of the complainant in his evidence before the Court would suggest that the said objection was raised by filing application before ::: Downloaded on - 09/06/2013 17:00:57 ::: 30 crapl229.99 Tahsildar by said Anna. Therefore, the entire file / application of the complainant was seized with the Tahsildar for necessary action. In his cross-examination, this witness has also stated that he had gone to A.C.B. office around 9 a.m. or 10 a.m. to lodge his complaint is also vague.
The complainant further stated in cross-
examination, "When I met accused no.1 outside the Tahsil Office on that day, it was around 2.15 p.m. I did not at that time tell him about the cash brought by me. I was sitting in the hotel tea stall for about 5-7 minutes. I did not talk with accused no.1 regarding the cash brought by me even when we were sitting in the hotel. Even when I talk to accused no.1 at his table, I did not tell that I had brought the amount. I also did not tell accused no.1 when we entered the different room that I had brought the cash amount." This evidence of the complainant P.W.1 before the Court is suggestive of the fact that he did not disclose about the bringing of Rs.
1500/- by him to hand over it to the appellant.
At this juncture, it would be appropriate to ::: Downloaded on - 09/06/2013 17:00:57 ::: 31 crapl229.99 refer to the evidence of P.W.2 Murlidhar Jadhav, panch witness. In his examination-in-chief, P.W. 2 Jadhav has stated, "Mr. Kamble ordered for three cup tea. Once again Mr. Pure questioned accused about his file. He also told that he brought the amount as requested." Therefore, the evidence of P.W.2 contradicts with the evidence of P.W.1 on the point of making aware or telling the appellant - accused about bringing Rs.1500/- by the complainant. Therefore, the evidence of P.W.1 and 2 creates doubt about its authenticity. It has also come in the evidence of the complainant that the distance between himself and panchas was 25 to 30 feet. There was rush in the hotel, many people were sitting.
Therefore, even on acceptance of amount, it appears that the panch witness had not noticed the actual handing over of the amount and acceptance by accused no.2.
If the entire evidence of the complainant before the Court is minutely scrutinized, the position emerges that there is no assertion in his statement that the alleged amount was ::: Downloaded on - 09/06/2013 17:00:57 ::: 32 crapl229.99 demanded by the appellant in front of other independent witness. As stated earlier, Mr. Bandu is not examined by the prosecution.
Therefore, so far as alleged demand on 3rd May, 1993 is concerned, there is no independent witness to corroborate the version of the complainant.
15. P.W.2 ig Murlidhar Jadhav, who was panch witness, in his examination-in-chief has stated, "Mr. Pure and myself went to the table of Mr. Kamble questioned Pure if the amount as told has been brought or not. He told that, if amount is brought it should be given and should return after 2 days and he would obtain sanction order by that time." This assertion of the P.W.2 does not find place in the evidence of P.W.1 . P.W.1 complainant has not stated in his evidence that Mr. Kamble questioned the complainant in front of P.W.2 if the amount as told has been brought or not. Therefore, the evidence of P.W.2 that Mr. Kamble questioned Mr. Pure if the amount as told has been brought or not, cannot be accepted in absence of the statement of the complainant.
::: Downloaded on - 09/06/2013 17:00:57 ::: 33crapl229.99 After all, the statement of the P.W.2 can be accepted as corroborative piece of evidence.
Therefore, when P.W.1 has not stated in his statement before the Court that Mr. Kamble questioned Mr. Pure if the amount as told has been brought or not, the statement of P.W.2 quoted herein above is of no avail to the prosecution. On careful perusal of the evidence of the complainant and also P.W.2 Jadhav, panch at the most, it can be said that the accused No.1 told the accused No.2 to take Rs.1500/- from the complainant. However, the fact remains that the evidence of P.W.1 complainant does not specifically states that the alleged demand was in front of P.W.2 panch Jadhav or any other witness. Therefore, so far as initial demand on the relevant date i.e. 28th May, 1993 is concerned, except bare words of the complainant that there was demand of Rs.1500/- by the appellant, there is no independent evidence which can corroborate the version of the complainant on the point of demand. P.W.2 in his cross-
examination has stated, "It is true that the accused No.1 did not demand amount in my ::: Downloaded on - 09/06/2013 17:00:57 ::: 34 crapl229.99 presence." (Emphasis supplied).
Therefore, from the entire evidence brought on record by the prosecution, so far alleged demand of Rs.1500/- by the appellant from the complainant to take favourable decision on his application (Exh.33) is not supported by bringing on record evidence of independent witnesses or there is no corroboration to the version of the complainant.
At this juncture, it would be appropriate to refer to some of the judgment of this Court as well as Honourable Supreme Court about the demand.
In case of Ajrun Bajirao Kale vs. State of Maharashtra, reported in 2009 ALL MR (Cri) 85, this Court held that demand of bribe is a foundation in a case under Prevention of Corruption Act. Mere acceptance of money, by itself, would not be sufficient for the purpose of convicting the accused who is charged with an offence punishable under Sections 7, 13(1)(d), 13(2) of the said Act. On perusal of the said ::: Downloaded on - 09/06/2013 17:00:57 ::: 35 crapl229.99 judgment it further appears that this Court has placed reliance on the judgment of the Apex Court in case of Sat Paul vs. Delhi Administration (AIR 1976 SC 294) and Pandharinath Shelke Vs. State of Maharashtra (2005(2) Bom.C.R. (Cri) 940).
In case of Banarasi Dass Vs. State of Haryana (2010 AIR SCW 2282), the Honourable Supreme Court held that mere proof of recovery of bribe money from accused is not sufficient to sustain conviction under the provisions of Prevention of Corruption Act. In case of Avinash Sitaram Garware vs. State of Maharashtra (2008 ALL MR (Cri) 15), this Court held that if prior demand of money by accused is not proved, rest of the prosecution case will have to be read with great caution and circumspection. In cases where a person is charged with offences under the P.C. Act, he is required to refute the presumption of guilt contained in the said Act but the burden on him is not heavy. He has not to establish his defence beyond reasonable doubt. He may rebut the presumption by showing a mere preponderance of probability in his favour. In case of ::: Downloaded on - 09/06/2013 17:00:57 ::: 36 crapl229.99 Subhash Parbat Sonvane vs. State of Gujarat (2002 CRI.L.J. 2287), the Honourable Supreme Court held that mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i) of the P.C. Act. In Sections 7 and 13(1)(a) and
(b) of the Act, the Legislature has specifically used the word `accepts' or `obtains'.
Yet, in case of V. Venkata Subbarao v. State represented by Inspector of Police, A.P. (2007 CRI.L.J. 754), the Honourable Supreme Court held in para 24 that In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved.
In case of State of Maharashtra vs.
Dnyaneshwar (2010(1) Bom.C.R.(Cri) 247, the
Honourable Supreme Court held that the demand of
illegal gratification is sine qua non for
constitution of an offence under the provisions of Prevention of Corruption Act. For arriving at ::: Downloaded on - 09/06/2013 17:00:57 ::: 37 crapl229.99 conclusion as to whether all ingredients of illegal gratification viz. demand, acceptance and recovery have been satisfied or not, facts and circumstances brought on record must be considered in their entirety. Presumptive evidence as laid down under Section 20 must also be considered, but, in respect thereof, it is trite law that, standard of burden of proof on accused vis-a-vis standard of burden of proof on prosecution would differ. Even in a case where burden is on accused, prosecution must prove foundational facts.
In case of Ramprakash Arora vs. State of Punjab (AIR 1973 SC 498), the Honourable Supreme Court held that there should be independent witness from which corroboration could be found of the evidence given by the prosecution witnesses.
In case of Banarasi Dass (supra), the Honourable Supreme Court held that it is a settled cannon of criminal jurisprudence that conviction of accused cannot be founded on the ::: Downloaded on - 09/06/2013 17:00:57 ::: 38 crapl229.99 basis of the inference. The offence should be proved against accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of chain of events is established pointing towards guilt of accused.
16. If the case of the prosecution is considered in the iglight of aforesaid authoritative pronouncements of this Court and the Hon'ble Supreme Court, it can be safely concluded that the prosecution has utterly failed to prove that there was demand of illegal gratification of Rs.
1500/- by the appellant from the complainant to decide the application (Exh.33) in favour of the complainant. At the cost of repetition, it has to be stated that except bare words of the complainant, there is no evidence brought on record by the prosecution so as to support the prosecution case that there was demand of illegal gratification of Rs.1500/- by the appellant. If the prosecution fails on the count of establishing its case on the point of demand, the rest of the prosecution case should necessarily ::: Downloaded on - 09/06/2013 17:00:57 ::: 39 crapl229.99 fail. Apart from this, as discussed herein above, P.W.3 in his evidence, has categorically stated that on 24th May, 1993, the entire file including the application (Exh.33) was with him. He did issue notice to the parties on 24th May, 1993.
Therefore, at least from 24th May, 1993, the matter of the complainant was seized with the P.W.3 Tahsildar. P.W.3 Tahsildar, in his evidence ig has stated that Exh.33 is the application which was moved to the Tahsildar. It bears signature of Mr. Gangawane, Awal Karkoon.
This also falsifies the case of the complainant that the application was given to the appellant.
In fact, the concerned clerk was Mr. Gangawane, who was dealing with application of the complainant. P.W.3 in his evidence has further stated that, "It is true that, permission was accorded by Tahsildar alone." Therefore, the Tahsildar was the authority to decide the application of the complainant at Exh.33. The defence has brought on record sufficient material to show that Mr. Gangawane, Awal Karkoon was in-
charge and concerned employee who was dealing with (Exh.33) i.e. application filed by the ::: Downloaded on - 09/06/2013 17:00:57 ::: 40 crapl229.99 complainant. There is also another circumstance i.e. Revenue Inspector visited the spot on 7th May, 1993, conducted panchanama and also submitted report on 10th May, 1993. The application of the complainant was favourably recommended by the Revenue Inspector. If it is so, there was no question of the appellant coming in between the complainant and Revenue Inspector and Mr. Gangawane, who were the concerned persons to deal with the application Exh.33.
17. The learned Counsel appearing for the appellant invited my attention to the evidence of P.W.4 Pramod s/o Annasaheb Mane, Joint C.O., MIDC who was working as Collector, Aurangabad at the relevant time. He was sanctioning authority for launching prosecution against the appellant.
P.W.4 in his cross-examination has stated that he had not seen file from the Tahsil Office over which the complaint was lodged. Though, the Special Court has concluded that there was a valid sanction. However, the same finding cannot be sustained if the evidence of P.W.4 Collector in his cross-examination is read in its entirety, ::: Downloaded on - 09/06/2013 17:00:57 ::: 41 crapl229.99 the sanctioning authority perhaps might not have granted sanction had the file from Tahsil office been perused. The sanctioning authority should have called the papers and after application of mind, should have granted sanction for prosecution.
The Counsel for the appellant at this stage also brought to my notice that for about four hours the complainant and panch witness were attempting to hand over the amount of Rs.1500/-
allegedly demanded as illegal gratification by the appellant. It has also come in the evidence of the complainant himself that accused No.2 was reluctant to accept the said amount.
18. Therefore, taking into consideration the evidence brought on record by the prosecution, the main question is as to whether the conviction of the appellant / accused can be sustained for the offence punishable u/s 7 of the Prevention of Corruption Act, 1988? In my opinion, as discussed herein above, the prosecution has utterly failed to prove its case on the point of ::: Downloaded on - 09/06/2013 17:00:57 ::: 42 crapl229.99 alleged demand of Rs.1500/- by the appellant from the complainant. Therefore, the prosecution case must fail on this ground alone. However, the sanction given by the P.W.4 Collector also suffers from non application of mind. On that count also, the appellant deserves benefit of doubt. Even, the evidence brought on record by the prosecution so far as acceptance is concerned, is also not convincing as it has come in the evidence of the P.W.1 complainant that the panch witness was standing at 25 to 30 feet away in the hotel where the amount was handed over to the accused no.2 and the hotel was crowded at the relevant time.
19. Viewed from any angle, it would not be safe to sustain the conviction of the appellant / accused. The evidence of the prosecution is full of contradictions, omissions, improvements and suffers from credibility and does not inspire confidence. There is room for doubt and certainly, benefit of doubt should go to the appellant / accused.
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20. In the light of above, the criminal appeal is allowed. The impugned judgment and order dated 14th May, 1999 passed by the Special Judge, Aurangabad in Special Case No.8 of 1993 thereby convicting the appellant - original accused No.1 u/s 248(2) of Cr.P.C. for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo R.I. for six months and to pay a fine of Rs.1000/-, I/D to undergo further R.I. for three months, is quashed and set aside and, the appellant / accused is acquitted of said offence. His bail bonds stand cancelled. Fine amount, if paid, shall be refunded to the appellant. Original record & proceedings be sent back immediately to the concerned Court.
[ S.S. SHINDE, J ] .....
Kadam.
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