CRI. APPEAL NO.35.02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.35 OF 2002
State of Maharashtra, through
Deputy Superintendent of
Anti-Corruption Bureau, Wardha. .. APPELLANT
.. VERSUS ..
Bhaskar s/o Amrutrao Ingole,
Aged about 65 years,
Occupation-Retired,
R/o. Wardha, Tahsil and District-
Wardha. .. RESPONDENT
..........
Shri I.J. Damle, APP for Appellant-State,
Shri A.N. Ansari, Advocate for Respondent.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : APRIL 07, 2017.
ORAL JUDGMENT Being aggrieved by the judgment and order dated 3.8.2001 passed by the learned Additional Sessions Judge and Special Judge, Wardha in Special Case No.4/1992 acquitting the sole accused of the offences punishable under ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:24 ::: CRI. APPEAL NO.35.02.odt 2 Sections 7, 13 (1)(d) and 13 (2) of the Prevention of Corruption Act, 1988, original complainant-State of Maharashtra has preferred this appeal. 2] Prosecution case which can be revealed from the charge-sheet and connecting papers thereto may be stated in brief is as under :
(a) In the year 1990, accused was serving as Patwari in village Mandavgad.
Complainant Aswajit Naik was resident of Mandavgad. He was intending to install a brick-kiln in the agricultural land of Nana Thavere. To install brick-kiln, he was in need of no objection certificate.
(b) On 30.10.1990, complainant went to the house of accused and asked him to supply 7/12 extract and map of nala and the field. It is the case of complainant that accused demanded Rs.108/- for the said work and asked the complainant to come with Rs.108/- on 31.10.1990 between 4 and 5 pm. He assured the complainant that map ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:24 ::: CRI. APPEAL NO.35.02.odt 3 and 7/12 extract would be kept ready. Complainant was not willing to pay bribe and so on 31.10.1990, he went to the office of Anti-Corruption Bureau, Wardha and lodged report.
(c) P.I. Prasad arranged for a trap. Panch witnesses were called. Demonstration was given and pre-trap panchanama was recorded. On 31.10.1990 at around 4.00 pm, raiding party along with complainant went to the house of accused.
Complainant told the accused that he had brought Rs.108/- and kept the amount on the table. He had given signal to the raiding party and accordingly accused was caught accepting the amount of Rs.108/- which was kept on the table. PI Prasad then prepared a written complaint and forwarded the same to Wardha City Police Station. Crime No.315/1990 was registered against the accused for the offences punishable under sections 7, 13 (1)(d) and ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:24 ::: CRI. APPEAL NO.35.02.odt 4 13 (2) of the Prevention of Corruption Act. Investigation was taken over by Dy. S.P. Shri Gautam. Seized muddemal was sent to Chemical Analyser. Statements of witnesses were recorded. Sanction to prosecute the accused was obtained and then charge-sheet was filed in the court.
3] Charge was framed against the accused vide Exh.9. He pleaded not guilty and claimed to be tried. His defence is of total denial and false implication. According to accused, he initiated action for removal of encroachment against the father of complainant and other villagers and to wreak vengeance, he was falsely implicated. 4] In support of its case, prosecution examined in all seven witnesses. Considering the evidence of prosecution witnesses and submissions made on behalf of the parties, Trial court came to the conclusion that charge against the accused has not been proved beyond reasonable doubt and in consequence thereof, accused was acquitted. ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:25 ::: CRI. APPEAL NO.35.02.odt 5 5] Heard Shri Damle, learned Additional Public Prosecutor for appellant-State and Shri Ansari, learned counsel for the respondent. With the assistance of the learned counsel for the parties, this court has gone through the evidence of prosecution witnesses. 6] On meticulous evaluations of evidence and taking into consideration submissions made on behalf of the State and the respondent, this court for the below mentioned reasons finds that the reasonings recorded by the Trial court are in accordance with the evidence on record and no perversity can be seen from the findings recorded by the Trial court. The view taken by the Trial court is a reasonable and possible view and keeping in view the limited scope for interference in appeal against acquittal, appeal deserves to be dismissed.
7] The principal question in the case on hand relates to sanction to prosecute under Section 19 of the Prevention of Corruption act. Before adverting to the evidence, it is essential to mention here the object and the scope of ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:25 ::: CRI. APPEAL NO.35.02.odt 6 Section 19 of the Act, as under :
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 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:25 ::: CRI. APPEAL NO.35.02.odt 7 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.
8] In the present case, sanction order was issued by Mr. A.D. Sane, Collector, Wardha, as sanctioning authority. Prosecution examined PW-7 Dada Amnerkar, a dealing clerk working in the office of Talathi establishment at Collectorate, Wardha. PW-7 Dada states in his evidence that Mr. A.D. Sane received papers of investigation in Crime No.315/1990 and after examining the papers, he issued the order. He identified the signature of Mr. A.D. Sane on Exh.79 sanction order.
9] In the cross-examination, it is admitted by dealing clerk that Mr. Sane received a confidential envelope. The said envelope was handed over to him directly. Except Mr. Sane no one else was knowing about confidential correspondence. He does not state that signature on Exh.79 was made by Mr. Sane in his presence.
::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:25 ::: CRI. APPEAL NO.35.02.odt 8 10] From the evidence of PW-7 Dada, it is apparent that he was not the official attached to sanctioning authority. Prosecution ought to have examined the competent witness who had taken the dictation of the sanction order or the Stenographer/P.A. who was in a position to identify the signature of the Collector. Non examination of competent person, as a witness, is fatal to the prosecution case and in this background, it cannot be accepted that sanction order Exh.79 is duly and legally proved by the prosecution.
11] The next moot question that arises is, whether prosecution could succeed on merits of the case. At the outset, it is to be stated here that complainant is hostile. He does not support the prosecution case. He went on changing his version in the cross-examination by the learned APP. From his entire evidence, it is apparent that he has no regards for the truth.
12] So far as panch witnesses are concerned, their evidence is also not helpful to the prosecution. The amount ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:25 ::: CRI. APPEAL NO.35.02.odt 9 of Rs.108/-, which according to prosecution was a bribe amount, was found lying on the table. As per panchanama, the notes were seized from the custody of accused. There is no consistency in the evidence of panch witnesses, panchanama and the evidence of investigating officer, so far as actual raid is concerned. Moreover, complainant had a reason to grind an axe against the accused. Accused has come with a specific defence that he initiated an action of removal of encroachment against the father of complainant. To substantiate his defence, he has produced several documents on record which have not been seriously challenged by the complainant.
13] In the above background, this court finds that the view taken by the trial court is a reasonable and possible view and there is no reason to take a view different than taken by the trial court. No interference is warranted. Hence, Criminal Appeal No.35/2002 stands dismissed. No costs.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:31:25 :::