State Of Maharashtra vs Bhagwat S/O Dattuji Dongare

apeal.128.00.jud.doc                                 1


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

                    CRIMINAL APPEAL NO.128 OF 2000


State of Maharashtra,
through Anti Corruption Bureau,
P.S. Sitabuldi, Nagpur.                                              .... Appellant

       -- Versus -

Bhagwat s/o Dattuji Dongare,
Aged 39 years, Occu. Junior Clerk,
Command Area Development Authority,
Nagpur,
R/o Ravi Nagar Quarter, No.D-21/B, Nagpur.                       .... Respondent
                            -------------
Shri I.J. Damle, Additional Public Prosecutor for the Appellant/State.
Shri J.M. Gandhi, Advocate for the Respondent.
                            -------------

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : 4th APRIL, 2017.

ORAL JUDGMENT :-

This appeal takes an exception to the judgment and order dated 24/12/1999 passed by the learned Special Judge, Nagpur in Special Case No.22/1991. By the said judgment and order, respondent-accused came to be acquitted of the offence punishable under Section 161 of the Indian Penal Code and Sections 7, 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as 'the Act' for short). ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 2 02] Prosecution case, in brief, is as under :

i. Complainant Pramod Yashwant Ramteke was serving as driver in the Office of Command Area Development Authority, Nagpur. Accused was working as Junior Clerk in the same office. Complainant was prosecuted in a criminal case and was placed under suspension from 12/04/1984 to 30/03/1989. After acquittal in criminal case, he was reinstated. On reinstatement, arrears of his pay were to be drawn.

ii. According to complainant, he requested the accused to draw arrears of his pay. Accused did not prepare pay bill. Before 15 days of incident, complainant met accused in the office and asked to prepare his bill for arrears. It is alleged that accused demanded Rs.

6,000/- for preparation of pay bill. Complainant showed his inability to pay Rs.6,000/-.

iii. On 31/12/1990, complainant again met the accused.

That time, accused told the complainant to bring Rs.2,000/- on the next day and thereafter he would ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 3 prepare his bill and the remaining amount should be paid by him after getting the arrears. Complainant was reluctant to pay money and so he went to the Office of Anti Corruption Bureau and lodged report.

iv. PW-9 Police Inspector Rizvi reduced report of complainant into writing. Panchas were called from R.T.O. Office. PW-2 Bhaurao Zade and PW-3 Krishnarao Bhongade acted as panch. Verification of demand was made in the presence of panch-

witnesses. ASI Lambe gave demonstration of phenolphthalein powder and its effect with solution of sodium carbonate. After the demonstration, complainant produced currency notes of Rs.2,000/-.

Pre-trap panchnama was then drawn.

v. Trap was arranged on the same day. It was successful.

Detailed panchnama was drawn. Statement of witnesses came to be recorded. On completing investigation, charge-sheet was submitted to the Special Court.

03] Charge of the alleged offence came to be framed vide Exh.10. Accused pleaded not guilty and claimed to be tried. His defence was of total denial and false implication. In his statement under Section 313 of the Code of Criminal Procedure, accused raised specific defence and submitted that after office hours, he had taken his vehicle from the stand. Complainant came in front of his vehicle, shook hand with him and asked for lift till M.L.A. Hostel Square. He left him on the square and as usual went to a pan-shop for cigar. The vehicle was parked 15 feet away from pan-shop. The bag, in which currency notes were found, was in the vehicle. He returned after taking cigar. Complainant was behind him. Thereafter, 10-15 persons came, caught him and brought him to the Office of Anti Corruption Bureau. According to the accused, those people have taken his 8 to 10 signatures on blank papers. He submits that his service record was good. He was given advance increment. He denied the allegations of demand and acceptance of money as alleged by the complainant.

04] To substantiate the guilt of accused, prosecution examined in all nine witnesses. Considering the evidence of ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 5 complainant, panch-witnesses, staff working in the office of accused and Investigating Officer, trial Court came to the conclusion that prosecution could not prove the guilt of accused beyond reasonable doubt and in consequence thereof, acquitted the accused. Being aggrieved with the judgment and order of acquittal, this appeal has been preferred by the State. 05] Learned Additional Public Prosecutor assailed the impugned judgment and order on many fold grounds. They are -

(i) Evidence of the prosecution witnesses, particularly complainant and panch-witnesses, was not properly appreciated.

(ii) Accused made a demand of Rs.6,000/-. It was settled to pay Rs.2,000/- and Rs.1,000/- before passing of bill and remaining Rs.3,000/- after encashment of bill. Though demand and acceptance of money is proved, trial Court wrongly held the same as not proved.

(iii) Evidence of complainant is fully corroborated by panch-witnesses and Investigating Officer. Still their evidence has been discarded and disbelieved.

(iv) The approach of the trial Court is perverse and wrong in holding that it was not possible for the accused to draw bill of arrears of pay of complainant.

(v) Though sanction was legally accorded under Section 19 of the Act, trial Court arrived at incorrect finding that sanction was defective and mechanically granted.

06] Per contra, learned Counsel for respondent strongly supports the judgment and order of acquittal and submits that evidence of complainant and panch-witnesses has been properly and legally appreciated by the trial Court and no interference is warranted in this appeal. Learned Counsel submits that accused was not assigned with duty of preparing bill of arrears of pay and when he was not dealing with such work, there was no question ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 7 of demand and acceptance of money for doing the work with which accused had no concern. In this connection, reliance is placed on the decision of the Hon'ble Supreme Court in Raghbir Singh vs. State of Punjab - [(1976) 1 SCC 145, in which it has been held by the Hon'ble Supreme Court in paragraphs 5 and 6 as under -

"5. In the first place, it appears clearly from the evidence that the appellant had nothing to do with the grant of exemption from payment of passenger or goods tax. The appellant was, at the material time, Passenger and Goods Tax Clerk II and, according to the evidence of Harmohan Singh, who was Passenger and Goods Tax Clerk I, the order of allocation of work made by the Excise and Taxation Officer assigned various duties to Passenger and Goods Tax Clerk II, but these did not include processing of application for exemption from payment of passenger or goods tax. The detection and recovery of passenger and goods tax was undoubtedly one of the duties entrusted to Passenger and Goods Tax Clerk II, but not the handling of applications for exemption. This was also made clear by Kashmir Singh who was an establishment clerk in the Excise and Taxation Office. Kashmir Singh stated that "the Passenger and Goods Tax Clerk has no concern with the exemption cases ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 8 and the same are dealt with by the Taxation Inspector" and he added that the release of attached property is also effected on the basis of the report of the Taxation Inspector and "the Passenger and Goods Tax Clerk has nothing to do with it". It would, therefore, be seen that the appellant was not in charge of applications for exemption which were dealt with by the Taxation Inspector. It is true that so far as the detection and recovery of goods tax was concerned, it was within the charge of the appellant, but nothing remained to be done on that count at the material time when the bribe was demanded and paid, since the truck was already attached by Taxation Inspector Brar on July 12, 1968. The only issue which was then being pressed by Jagdish Raj was that relating to exemption from payment of goods tax and so far as that issue was concerned, the appellant had nothing to do with it. There was, therefore, clearly no motivation for Jagdish Raj to give bribe to the appellant for obtaining grant of exemption. This circumstance weakens the foundation on which the edifice of the prosecution story rests and introduces an element of infirmity in it.

6. But more than anything else, the evidence of Taxation Inspector Sharma makes a serious inroad in the prosecution case. The evidence of Sharma shows that it was only on August 1, 1968 that Jagdish Raj ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 9 made an application for exemption from payment of goods tax supported by an affidavit and a certificate of exemption of token tax granted by the Licensing Officer. Now, obviously no exemption from payment of goods tax could be granted to Jagdish Raj until he made an application supported by a certificate of exemption of token tax obtained from the Licensing Officer. The certificate of exemption of token tax issued by the Licensing Officer would show that the truck was not plied during the period for which the certificate was granted and the registration certificate of the truck was lying deposited in the office of the Registration Authority."

07] The next contention raised on behalf of respondent is that complainant was aware that bill for arrears of pay was not to be prepared by accused. Sanction of the Government and approval of the higher authority was necessary for preparing the bill and in such contingency, complainant's allegations of meeting the accused and the accused demanding and accepting alleged illegal gratification need to be disbelieved. In support of his submission, learned Counsel relied upon the decision of the Hon'ble Supreme Court in G.V. Nanjundiah vs. State (Delhi Administration) - [1987 (Supp) SCC 266] and particularly paragraph 18, which reads thus :

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"18. The High Court was not able to place reliance upon the statement of the appellant that he was at the site up to 2.00 p.m. As, according to the contractor, he had left the site about 11.00 a.m., the High Court assumed that the firm message cancelling the visit of the Prime Minister had been received before 11.00 a.m. It has been observed by the High Court that the appellant could have examined any one of the officers in support of his claim that he had left the site after 1.30 p.m., but, he had failed to do so. It may be pointed out that there is also no evidence corroborating the evidence of the contractor that he had left the site at 11.00 a.m. Without any such evidence and having regard to the fact that the learned Special Judge, who had seen the demeanour of the contractor, was disinclined to place any reliance upon the testimony of the contractor, the High Court was not justified in not giving any importance to the statement of the appellant. In our opinion also, it is difficult to accept the evidence of the contractor that he came back from the site at 11.00 a.m. and saw the appellant at his office in the DDA building at 1.00 p.m. when the appellant had demanded the bribe from the contractor. The contractor was very much aware that the appellant was not standing in the way of releasing his security amount and other amounts for extra work and, accordingly, it was not necessary for him to see the ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 11 appellant at his office. In the circumstances, we are not inclined to accept the case of the contractor that he accompanied by his son had met the appellant at his office at 1.00 p.m. on October 30, 1973. The learned Special Judge has also not placed any reliance on the testimony of the contractor's son. We also do not see any reason to place reliance upon his evidence in this regard."

08] Another contention raised on behalf of the respondent is that his service record was excellent throughout. He received an advanced increment for his outstanding work. Though he was not concerned with the work of preparing bill of arrears of pay, he was falsely implicated by the complainant. 09] On going through the material and evidence on record and hearing the submissions advanced on behalf of the parties, following points arise for determination of this Court -

(I) Whether prosecution could prove that on 01/11/1997, respondent being a public servant, demanded Rs.

2,000/- other than legal remuneration as a motive for preparing the bill towards arrears of pay of the complainant?

(II) Whether sanction to prosecute the respondent granted by the sanctioning authority is legal and valid?

10] Findings to both the above points (I) and (II) are in the negative for the reasons to follow :

It is not in serious dispute that at the relevant time, accused was serving as Junior Clerk in the Office of Command Area Development Authority, Nagpur. There is no serious dispute that complainant PW-1 Pramod Ramteke was a Driver in the said office and he was placed under suspension up to 1989. It is stated by complainant that after his acquittal in criminal case, as the bill towards arrears for his pay was to be prepared, he approached the accused and accused demanded Rs.6,000/- for the same. He states that after negotiations, it was agreed by the accused that an amount of Rs.3,000/- should be paid before preparation of bill and remaining Rs.3,000/- after encashment of bill. The evidence of complainant shows that on 31/12/1990, when he met the accused, accused told him to bring Rs.2,000/- on 01/01/1991 and as he was not willing to pay Rs.2,000/-, he ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 13 reported the incident to Anti Corruption Office. PW-9 Police Inspector Rizvi recorded the report [Exh.24] and then pre-trap and post-trap panchnamas came to be drawn before and after the raid.

11] The principal question in the case on hand is, whether accused was responsible for preparation of bill towards arrears of pay of the complainant. In this connection, evidence of PW-7 Executive Engineer (Technical Cell), C.A.D.A., Nagpur is relevant and important. It is stated by PW-7 Mr. Vrujlal Gohil that accused was attached to establishment section and the work of drawing arrears of complainant was with the accused. PW-7 used to countersign the bills and then it was submitted to the Superintendent Engineer. He states that the matter of Ramteke was put up before the Superintending Engineer for his approval. As per service rules, sanction of the Government was necessary to draw arrears of pay. He states that till 1993, he was in that office and till that time, sanction of the Government was not received in case of Ramteke. According to witness Gohil, on 02/03/1991, Ramteke made a complaint to Superintending Engineer Mr. Santani. Departmental inquiry was going on ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 14 against the complainant. Complainant made a complaint to Mr. Santani that on 15/07/1992, Inquiry Officer demanded Rs.2,000/- to decide the matter in his favour. This fact elicited in the cross- examination of PW-7 Gohil would clearly indicate that complainant was a person of complaining nature. Sanction was necessary for clearance of the arrears of complainant. The said sanction was not received. Accused was not responsible for clearing the bill. Even duty list placed on record shows that clearance of bill of arrears of pay was not included in the duty list of the accused. In such a situation, propositions of law laid down by the Hon'ble Supreme Court in the case referred by the learned Counsel for respondent would be applicable and whole case of the complainant that he met the accused, accused demanded and attempted to accept amount of Rs.2,000/- becomes doubtful.

12] Even on merits, if evidence of complainant, panch- witnesses and Investigating Officer is closely scrutinized, it can be seen that there is no consistency in their evidence. On pre- trap and post-trap panchnamas, evidence is conflicting and itnesses do not corroborate each others in material particulars. ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 15 The trial Court has elaborately discussed the evidence of complainant, panch-witnesses, office staff and the Investigating Officer indicating as to how their evidence is not trustworthy and believable. There is no reason for this Court to take a view different than taken by the trial Court.

13] So far as sanction to prosecute the accused is concerned, it would be necessary to look at the evidence of PW-5 Prabhakar Kulkarni, Sanctioning Authority. It is stated by Mr. Kulkarni that in May, 1992, he was Superintending Engineer and Administrator, Command Area Development Authority, Nagpur. He received draft sanction order from Anti Corruption Department along with the papers of investigation. He had gone through those papers and accorded sanction (Exh.42). 14] Before considering the evidence of sanctioning authority it is necessary to see the object of Section 19 of the Act. Under section 19, grant of sanction is a weapon to discourage vexatious prosecution and it is a safeguard for the innocent, though not a shield for the guilty. The essentials of a valid prosecution can be stated as under -

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i. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction;

ii. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction;

iii. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought;

iv. The order of sanction should make it evident that the authority had been aware of all relevant facts/ materials and had applied its mind to all the relevant material.

v. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

15] In the above legal background, evidence of PW-5 Sanctioning Authority Mr. Kulkarni is to be scrutinized. It is admitted by Mr. Kulkarni in the cross-examination that it may be possible that draft sanction order and sanction accorded by him vide Exh.42 are exactly identical. Even prosecution does not dispute that draft sanction order and sanction accorded vide Exh.42 are identical in verbatim. Sanctioning authority no where states in the evidence details of investigation papers scrutinized by the authority before according sanction. In such a situation, ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 ::: apeal.128.00.jud.doc 18 possibility of Sanctioning Authority simply signing the sanction order without application of mind is not ruled out. 16] In the above background, no fault can be found with the reasonings recorded by the trial Court. The view taken by trial Court is a possible view. Hence, no interference is called for in this appeal. Hence, the following order :

ORDER i. Criminal Appeal No.128/2000 stands dismissed.

ii. No costs.

(Kum. Indira Jain, J.) *sdw ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:15:13 :::