apeal.302.01.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.302 OF 2001
Ashok s/o Vishwambhar Chawhan,
Aged about 38 years, Patwari,
R/o Phadke Nagar, Dabki Road,
Akola. .... Appellant
-- Versus -
State of Maharashtra,
Through the Station House Officer,
Anti Corruption Department, Akola. .... Respondent
Shri M.B. Naidu, Advocate for the Appellant.
Shri S.D. Sirpurkar, A.P.P. for the Respondent .
CORAM : KUM. INDIRA JAIN, J.
DATE : NOVEMBER 6, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and order dated 06/10/2001 passed by the learned Special Judge, Akola in Special Case No.1/1993 convicting the appellant of the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act' for short) as under : ::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 2
Conviction Sentence
under Section
7 Rigorous imprisonment for 6 months and fine of
Rs.500/-, in default rigorous imprisonment for 2 months 13(1)(d) r/w Rigorous imprisonment for 1 year and fine of Rs.500/-, 13(2) in default rigorous imprisonment for 2 months. 02] The prosecution case, in brief, is as under :
i. Accused was working as Patwari and was posted at Babhulgaon (Halka) from June, 1991. Ashok Vijayendra Shukla [PW-1] was resident of Akola. His grandfather had agricultural lands at village Gondhalkhed. After the death of grandfather, father and uncles of PW-1 Ashok were cultivating lands. They were intending to sell the agricultural lands. Complainant and his cousin brothers were against the sale. So complainant approached the accused for 7/12 extracts.
ii. On 03/04/1992, complainant met the accused and moved an application for 7/12 extracts. Accused asked him to come after 3-4 days.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 3 iii. According to complainant, he had been to the Office of accused on 10/04/992. That time accused demanded Rs.700/- for issuance of 7/12 extracts. After deliberations, amount was reduced to Rs.350/-. Complainant told the accused that he would pay Rs.200/-. Accused then called complainant to the office on 23/04/1992.
iv. Complainant then went to the Office of Anti Corruption Bureau, Akola on 22/04/1992 and lodged complaint. It was reduced to writing by PW-9 Deputy Superintendent of Police Pitambar Chaudhari. The trap was arranged. It was successful. Pre-trap and post-trap panchnamas were drawn. After completing investigation, charge-sheet was submitted to the Special Court.
v. Charge of the alleged offences came to be explained to accused vide Exh.9. He pleaded not guilty and claimed to be tried. Accused raised specific defence that at the time of trap, agriculture census was going ::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 4 on and all Talathis were required to take original registers of 7/12 extracts, receipt books, village forms to Tahsil Office. He had kept the record in Kothari complex as the said premises was near Tahsil Office. According to the accused, on 08/04/1992, complainant met him and asked for 7/12 extracts. Accused asked the complainant that on getting the order from Tahsildar, on an application to be moved by him, 7/12 extracts could be issued. Complainant then submitted an application. On the same day, he prepared 7/12 extracts and kept them ready. The same could not be issued as land holder was in arrears of land revenue. In the evening, complainant approached the accused and got annoyed for not mentioning his name in 7/12 extracts. vi. Again on 10/04/1992, complainant approached the accused and insisted him to show his name in 7/12 extracts. As accused had shown his inability to do so, exchange of words took place between the duo. While leaving, complainant threatened to see the accused. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 5 vii. It is stated by accused that on 23/04/1992, complainant came to him and told that he had brought arrears of land revenue and 7/12 extracts be issued to him. Accused submitted that complainant paid arrears of land revenue and not bribe. He denied demand and acceptance of amount towards bribe. viii. Prosecution examined in all 10 witnesses to substantiate the guilt of accused. Considering the evidence of prosecution witnesses, trial Court came to the conclusion that demand and acceptance of bribe has been proved by the prosecution and accordingly convicted the accused as stated hereinabove in paragraph 1. Being aggrieved by the judgment and order of conviction and sentence, accused has preferred this appeal.
03] Heard Shri M.B. Naidu, learned Counsel for appellant and Shri S.D. Sirpurkar, learned Additional Public Prosecutor for the State.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 6 04] Learned Counsel for appellant submitted that on demand, absolutely there is no iota of evidence. Referring to the points for determination in the judgment, it is submitted that no point was formulated on alleged demand. Learned Counsel submits that in the absence of proof of demand towards illegal gratification, offence cannot be constituted under the Act. 05] In support of the submissions, learned Counsel placed reliance on :
1. Balkrishna s/o Lakshmi hand Didwani vs. The State of Maharashtra, through A.C.B., Akola - [2014 ALL MR(Cri) 3182].
2. Balkrishna Bhau Desai vs. State of Maharashtra
- [2016(1) Mh.L.J.(Cri.)25].
3. Vyankat s/o Baburao Kailwad vs. State of Maharashtra - [2016(3) Mh.L.J. (Cri.) 578].
4. Vinod s/o Savalaram Kanadkhedkar vs. State of Maharashtra - [2016(4) Mh.L.J. (Cri.) 570].
5. State of Maharashtra vs. Ramlal Shriram Gajbhiye - [2017(3) Mh.L.J. (Cri.) 5691].
06] Per contra, learned A.P.P. for the State supports the judgment and order of conviction and sentence. It is submitted ::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 7 that acceptance of amount towards bribe has been duly proved and the accused has been rightly convicted. 07] On the basis of material and submissions advanced on behalf of the parties, following points would arise for determination of this Court :
i. Whether prosecution could prove that on 23/04/1992, accused/appellant being a public servant demanded an amount of Rs.200/- as a remuneration other than legal remuneration as a motive for issuing 7/12 extracts to complainant?
ii. Whether prosecution could prove that appellant being a public servant committed criminal misconduct by securing amount of Rs.200/- by corrupt and illegal means from complainant by abusing his position as public servant?.
08] Findings to above points (i) and (ii) are in the negative for the reasons to follow :
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REASONS 09] Accused does not dispute that at the relevant time, he was working as Talathi and was posted at Babhulgaon (Halka). It is also not in dispute that village Gondhalkhed was within the jurisdiction of Babhulgaon (Halka). Accused did not dispute that 7/12 extracts were to be issued by him on receiving application from complainant. He admits receipt of Rs.200/- from complainant on 23/04/1992. Accused, however, denies demand and acceptance of money towards illegal gratification as alleged by complainant.
10] On careful scrutiny of the impugned judgment, it can be seen that the trial Court did not formulate point for determination on alleged demand. The points framed by the trial Court are reproduced here for ready reference.
S.N. POINTS FINDINGS
01] Does the prosecution prove valid sanction Yes
to the prosecution ?
02] Does the prosecution prove that the Yes
accused accepted Rs.200/- from PW-1 Ashok as a gratification other than the legal remuneration ?
::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 9 03] Does the prosecution prove that the Yes accused accepted the said gratification as a motive or reward for issuing copies of 7/12 extracts to PW-1 Ashok ?
04] Does the prosecution prove that the Yes accused by corrupt or illegal means obtained for himself a valuable things or pecuniary advantage ?
05] Does the prosecution prove that the Yes accused by abusing his position as a public servant obtained for himself any valuable thing or pecuniary advantage ?
06] What order ? As per final
order
11] From the above, it is apparent that on demand of
alleged illegal gratification, there is no adjudication as no point for determination has been framed. The law is well settled and demand of illegal gratification is sine qua non for constituting an offence under the Act. Mere acceptance in absence of demand is not sufficient to convict the accused. Even mere receipt of money by accused is not sufficient to fasten the guilt in the absence of evidence with regard to demand of money as a bribe. 12] In the case on hand, there is no whisper in the evidence of any witness that amount received by accused was ::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 10 demanded towards illegal gratification. On the contrary, evidence of PW-4 Jagannath Ingle clearly indicates that land revenue in respect of the lands of which complainant had asked for 7/12 extracts was due from cultivators. PW-4 was working as Patwari of Babhulgaon (Halka) at the relevant time. According to him, 7/12 extracts are issued on application of cultivators and on payment of land revenue arrears. In cross-examination, certain important admissions have been elicited, wherein this witness states that amount of Rs.708/- is shown as land revenue on the rear side of Exh.33.
13] It is the case of appellant that after handing over amount and before receipt could be issued, seizure was effected without giving him an opportunity to explain. So far as demand is concerned, complainant admits in cross-examination that he did not state this fact in complaint. It can be revealed from the facts elicited in cross-examination of complainant that he was not aware of land revenue due for the year 1991-1992 in respect of the agricultural lands of which he had asked 7/12 extracts. He admits that at the time of lodging complaint to ACB Officer about demand of land revenue and he told them that he had not paid ::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 11 the land revenue. This clearly indicates that seizure was hurriedly effected without verifying the facts as to whether amount was towards land revenue or illegal gratification as alleged by complainant. The figure reflected on rear side of Exh.33 is towards arrears of land revenue and this fact is not denied by the complainant. There was no opportunity to the accused to manipulate the record. The amount of land revenue assessed by accused on application for 7/12 extracts moved by complainant is almost same as mentioned in complaint lodged by PW-1 Ashok to the Office of Anti Corruption Bureau. 14] It can be seen from the evidence of complainant, panch and Investigating Officer that accused never made a demand towards illegal gratification. If at all accused demanded and accepted the amount, it was towards arrears of land revenue for issuance of 7/12 extracts on an application moved by the complainant. Accused has successfully rebutted the presumption under Section 20 of the Act. The defence raised by accused appears to be more probable, plausible, valuable and acceptable.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 12 15] In the light of above and particularly in absence of specific allegations regarding demand of money towards illegal gratification and also absence of point for determination in the judgment of the trial Court, this Court finds that the impugned judgment and order of conviction and sentence is unsustainable in law. Hence, the following order:
ORDER I. Criminal Appeal No.302/2001 is allowed. II. Impugned judgment and order dated 06/10/2001 passed by the Special Judge, Akola in Special Case No.1/1993 convicting and sentencing the appellant - Ashok Vishwambhar Chavan is hereby quashed and set aside.
III. Instead appellant is acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
IV. Bail bonds of the appellant shall stand cancelled forthwith.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 16/11/2017 00:29:00 ::: apeal.302.01.jud 13 V. Fine amount, if deposited, shall be refunded to the appellant.
*sdw (Kum. Indira Jain, J)
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