Cri. Appeal No.78.01.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.78 OF 2001
Namdeo s/o Gangaram Gawai,
Aged about 58 years,
Occupation-Naib Tahsildar,
Tahsil Office Buldhana,
Tahsil and District-Buldhana. .. APPELLANT
.. VERSUS ..
State of Maharashtra,
through Anti-Corruption Bureau,
Buldhana. .. RESPONDENT
..........
Shri Anil S. Mardikar, Senior Advocate with Shri Rishabh
Khemukha, Advocate for Appellant,
Mrs. H.N. Prabhu, Additional Public Prosecutor for
Respondent-State.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : NOVEMBER 21, 2017.
ORAL JUDGMENT This appeal is directed against the judgment and order dated 27.02.2001 passed by the learned Special ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:11 ::: Cri. Appeal No.78.01.odt 2 Judge, Buldhana in Special (Anti-Corruption) Case No.1/1992 thereby convicting original accused no.1 of the offences punishable under sections 7 and 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act. The sentence awarded by the trial court is as under :
Sr. Conviction Punishment
No. under
section
1. 7 Rigorous imprisonment for one
year and fine of Rs.1,000/- in-
default rigorous imprisonment for
three months.
2. 13 (1) (d) Rigorous imprisonment for one read with 13 year and fine of Rs.1,000/- in-
(2) default rigorous imprisonment for three months.
Both the sentences were directed to run concurrently. 2] For the sake of convenience, appellant shall be referred in his original status as an accused as he was referred before the trial court.
3] The prosecution case which can be disclosed from the charge-sheet and connecting papers thereto may be stated in brief as under :
(i) Complainant Dongarsingh Yedusingh ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:11 ::: Cri. Appeal No.78.01.odt 3 Devhane, a cultivator by occupation, was resident of Chandol, Tahsil and District Buldhana. Accused no.1- appellant was working as Naib Tahsildar in tahsil office Buldhana in May 1991. Accused no.2, who has been acquitted by the trial court, was a Patwari attached to the same office.
(ii) On 9.5.1991, complainant had been to tahsil office Buldhana and filed an application before accused no.1 contending therein that one Sundarabai of his village had applied for taking water to her land from river Dhaman and she should be given permission from maximum distance so that cultivation of his field is not affected. Sundarabai had applied for permission to take river water to her field and to lay down underground pipeline through the field of Dongarsingh and others. Accused no.1 accepted the application from the complainant and raised a query to him, whether he had dug a well on the bank of river with the permission. When complainant replied in the negative, accused no.1 told him that a revenue case can be started against him and he would be liable to pay fine. Accused no.1 then asked the complainant to wait outside and called Anis Babu, Clerk working in the same office to accompany him for a cup of tea. Thereafter, accused no.1, Anis Babu ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:11 ::: Cri. Appeal No.78.01.odt 4 and complainant had been to Hotel Rajkamal.
(iii) According to complainant, accused no.1 told him that even difficult work can be done amicably. They entered the Hotel. Accused no.1 demanded Rs.400/- from complainant to attend his work. When complainant expressed his inability to pay Rs.400/-, negotiations were held and accused no.1 agreed to accept Rs.200/-. Complainant told accused no.1 that he would bring money on the next day. That time, accused no.1 stated that in case he fails to bring money, he would initiate a revenue case against him.
(iv) On the next day i.e. on 10.5.1991 complainant Dongarsingh approached Anti-Corruption Bureau, Buldhana and lodged complaint. Police Inspector
More recorded the complaint. A trap was arranged. After completing the formalities and demonstration to the panch witnesses, complainant and panch no.1 went to Tahsil Office at about 12.45 pm. Panch no.2 and other persons of raiding party followed them.
(v) Complainant and panch no.1 went to the chamber of accused no.1, who was busy in his work. On seeing complainant, accused no.1 asked him to wait. After sometime, he asked the complainant, whether he had ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:11 ::: Cri. Appeal No.78.01.odt 5 brought Shidory. Complainant answered in the affirmative. Accused no.1 told the complainant to wait outside. At 2 O'clock, accused no.1 came outside. Then complainant, accused no.1, panch no.1, accused no.2 and clerk in the office went to Hotel Rajkamal. The order for eatables and cold drink was placed by complainant at the instance of accused no.1. After they had eatables cold drink, accused no.1 asked Anis Babu to go and wait outside the cabin. Then accused no.1 asked complainant, whether he has brought money. Complainant answered in the affirmative, took out the amount and shown it to accused no.1. Accused no.1 asked accused no.2 to accept the same and keep it with him. Accused no.2 accepted the amount by his right hand and kept the said amount in the right pocket of his payejama. Thereafter, they came outside the cabin and went near a pan shop in front of the hotel. Complainant gave a signal by rubbing his left hand on his head and members of raiding party rushed to the spot. Complainant informed the members of raiding party that he handed over amount to accused no.2. The amount was recovered from pocket of payejama of accused no.2. Post trap panchanama was drawn. At the time of demonstration before trap, pre- trap panchanama was recorded. The map of the scene of ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:11 ::: Cri. Appeal No.78.01.odt 6 offence was drawn. Police Inspector More seized relevant record of Sundarabai's case from tahsil office and lodged a formal complaint. Crime No.60/1991 came to be registered in the Police Station, Buldhana. Police Inspector More himself took over investigation. On completion of investigation, papers were forwarded to the sanctioning authority for seeking sanction to prosecute the accused. The Divisional Commissioner, Amravati granted sanction to prosecute accused no.1.
4] Charge-sheet came to be filed before the Special Court. Charge was framed against the accused vide Exh.27. Accused pleaded not guilty and claimed to be tried. The defence of accused no.1 was of total denial. He submitted that he never demanded any amount nor accepted the same from complainant. Accused no.1 submitted that Sundarabai had applied for permission but no consent was received from irrigation department. It is submitted that due to some dispute between complainant and Sundarabai and under a wrong belief that permission was granted by accused no.1 to Sundarabai, false complaint came to be lodged.
::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 7 5] To bring home guilt of the accused, prosecution examined in all five witnesses. PW-1 Mr. Nandlal Gupta, Chief Secretary, Revenue and Forest Department, Government of Maharashtra, is the then Sanctioning Authority, PW-2 Complainant Dongarsingh Deohane, PW-3 Bhaurao Charate-panch no.1, PW-4 Syed Anis Syed Ahmad, the panch and Clerk attached to the office of accused no.1 and PW-5 Police Inspector Daulat More, Investigating Officer are the witnesses examined by the prosecution. Considering the evidence of witnesses and submissions made on behalf of parties, trial court came to the conclusion that charge has been duly proved against accused no.1 but not against accused no.2. In consequence thereof, accused no.1 came to be convicted as stated hereinabove in para 1. 6] Heard Shri Anil S. Mardikar, learned Senior Counsel with Shri Rishabh Khemukha, learned counsel for appellant and Mrs. H.N. Prabhu, learned Additional Public Prosecutor for Respondent-State.
7] The learned senior counsel submitted that sanction issued by PW-1 Mr. Nandlal Gupta, the then Divisional Commissioner is not a valid and legal sanction. ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 8 According to the learned senior counsel, sanction order (Exh.39) suffers from lack of application of mind and prosecution has miserably failed to prove sanction to prosecute the accused. On sanction, learned senior counsel relied upon the judgments of the Hon'ble Supreme Court in State of Maharashtra .vs. Dnyaneshwar Laxman Rao Wankhede [2010] 2 SCC (Cri) 385 and of this court in :
(i) Criminal Appeal No.401/2008 (Arun s/o Laxman Satokar .vs. The State of Maharashtra, dated 18.4.2017).
(ii) Criminal Appeal No.442/2014 (Rajvilas s/o Laxman Gajbhiye .vs. The State of Maharashtra, dated 11.5.2017).
(iii) Vinod s/o Savalaram Kanadkhedkar .vs.
The State of Maharashtra [2016 ALL MR (Cri) 3697.
8] On merits, it is submitted by the learned senior counsel that accused no.1 had no authority to issue permission to take water from the river as consent from irrigation department was never received and certificate about sufficiency of water was not issued. Referring to the testimony of complainant and the facts elicited in elaborate cross-examination of complainant and panch witnesses, ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 9 learned senior counsel submitted that complainant is not a reliable witness and contradictions in the testimonies of witnesses would demonstrate that accused has been falsely implicated. According to learned senior counsel, accused no.2, who was found in possession of the tainted currency notes, has been acquitted by the trial court. There was no recovery of money from the possession of accused no.1. It is submitted that without taking into consideration the fact that if really appellant had demanded money and accused no.2 had accepted on behalf of accused no.1, the demand and acceptance would not have been in the open place visible to public at large. The learned senior counsel submits that presence of independent witnesses has been admitted by the prosecution witnesses and none of those witnesses could be examined by the prosecution. Considering the admissions brought in the cross- examination of complainant, his previous and post conduct and antecedents, submission is that in the absence of corroboration, trial court ought not to have relied upon the sole testimony of complainant to base a conviction. It is submitted that due to animosity between Sundarabai and complainant and as accused no.1 had refused to help the complainant, was dragged to a false prosecution. ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 10 9] Per contra, Mrs. Prabhu, learned Additional Public Prosecutor for respondent-State, strongly supports the judgment and order of conviction and sentence and submits that there is ample evidence to show that accused no.1 demanded and accepted money through accused no.2 towards bribe. She submits that accused no.2 was found in possession of tainted currency notes and it was a successful trap clearly showing that amount was accepted by accused no.2 for accused no.1.
10] Regarding sanction, learned APP placed reliance on the evidence of PW-1 Mr. Nandlal Gupta, the then Sanctioning Authority and submitted that the order was issued after verifying and scrutinizing all the documents submitted along with the proposal. She submits that there is no scope for interference in the present appeal and prays to dismiss the same.
11] On hearing the learned counsel for the parties and taking into consideration the rival submissions, following points would arise for determination of this court.
(i) Whether prosecution has proved that on 10.5.1991 ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 11 appellant-accused no.1 being a public servant had demanded an amount of Rs.200/- as a remuneration other than legal remuneration as a motive or reward for not initiating any action against the complainant for digging a well without permission from the revenue authorities.?
(ii) Whether prosecution has further proved that appellant-accused no.1 being public servant committed criminal misconduct by securing an amount of Rs.200/- through accused no.2 by corrupt or illegal means from complainant by abusing his position as a public servant.?
(iii) Whether sanction to prosecute the appellant-
accused no.1 granted by PW-1 Nandlal Gupta, Sanctioning Authority is legal and valid.? 12] Findings to above points nos. (i) to (iii) are in the negative for the reasons to follow :
REASONS 13] Following are the undisputed facts :
At the relevant time, accused no.1 was serving as Naib Tahsildar at Buldhana. Acquitted accused no.2 was attached to the office of accused no.1 as Talathi. On 9.5.1991 complainant moved an application to accused no.1 ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 12 stating therein that permission to Sundarabai for taking water to her land be granted from long distance. Sundarabai had applied for permission to take water to her field and by laying underground pipeline through the fields of complainant and other cultivators. Accused no.1 accepted the application submitted by complainant. Permission to take water was granted to Sundarabai. 14] In view of the above undisputed facts, this court has to scrutinize the evidence of complainant and panch witnesses to find out whether amount of Rs.200/- was demanded by accused no.1 and accepted by accused no.2 for accused no.1 as illegal gratification as alleged by the complainant.
15] PW-2 Dongarsingh is the complainant. He stated in his evidence that he dug a well in his agricultural land in the year 1988 and an electric motor was installed in the well. The land of Sundarabai is intervening three fields from the land of complainant. The evidence of Dongarsingh shows that before about 1½ to 2 months of the incident, Sukhlal Chanda had come to him. Sukhlal Chanda is son of Sundarabai. He demanded his signature on paper saying ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 13 that he wanted to obtain permission for laying pipeline. Complainant refused to sign the paper as asked by Sukhlal Chanda. It is further stated that before 5-6 days of the incident, Sukhlal and his men had come to the field for digging a pit for laying pipeline. Complainant asked Sukhlal to stop the work but Sukhlal told him that he has obtained permission from Naib Tahsildar.
16] On 9.5.1991, complainant came to Buldhana and had been to the office of accused no.1. He submitted an application raising an objection to the work of laying pipeline by Sukhlal Chanda. It is stated by complainant that Naib Tahsildar read his application and asked him whether he had obtained permission for well. When he expressed that he did not obtain permission, accused no.1 told him that he would initiate revenue proceedings against him and he would be penalized for the same. It is stated by complainant Dongarsing that accused no.1 initially demanded Rs.400/- from him for not taking action and on negotiation amount was brought down to Rs.200/- by accused no.1. He agreed to pay Rs.200/- on the next day. 17] Being not desirous of paying a bribe, he had been ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 14 to the office of Anti-Corruption Bureau and lodged report. The said report (Exh.56) is proved by the complainant. Further evidence of Dongarsingh indicates that a trap was arranged, demonstration of phenolphthalein and sodium carbonate was made, pre-trap panchanama was drawn, trap was successful, accused no.2 was found in possession of tainted currency notes of Rs.200/- accepted on behalf of accused no.1 and post trap panchanama was drawn. 18] It can be seen from cross-examination of the complainant that on 7.5.1991 notice was issued by Naib Tahsildar, Buldhana to complainant in connection with creating obstruction on laying down pipeline. In pursuance to the notice, complainant appeared before accused no.1 and his statement was recorded on 9.5.1991. In his statement, complainant admitted that he is taking water without permission from 1988 and violated the rule by taking water without permission. He stated that he has no objection if Sundarabai lays down pipeline but it would be better if spot is inspected. Further affidavit (Exh.44) would show that complainant and other cultivators had given no objection before the competent authority for laying a pipeline by Sundarabai through their lands. ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 15 19] According to complainant, Sukhlal, son of Sundarabai, had forged his signature as he refused to sign on the paper brought by him. Complainant could not prove that signature was forged, as alleged. On the contrary, voluminous evidence on record shows that complainant had dug a well in his land without permission for which action was initiated by accused no.1 before the alleged demand and acceptance of bribe, as stated by complainant and being aggrieved thereof, complainant filed a report to Anti- Corruption Bureau just after two days of issuance of notice by the office of Naib Tasildar.
20] It has come in the evidence of complainant and panch witnesses that at the relevant time many other persons were present in the office. PW-3 Bhaurao, though attempted to support the testimony of complainant, admitted in cross-examination that Dongarsing had not made any signal from inside the hotel and accused nos.1 and 2 were standing near pan shop when raiding party members came. According to PW-3-Bhaurao, Dongarasing made signal after giving amount and that time no talk had taken place in the presence of Jaiswal regarding the amount ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 16 given. He goes to the extent of saying that Jaiswal was not aware what for amount was given.
21] PW-4 Sayyed Anis is another important witness examined by the prosecution. At the time of incident he was serving as Junior Clerk in Tahsil Office. According to prosecution, the talk between accused no.1 and complainant had taken place in the presence of this witness. If the testimony of PW-4 Sayyed Anis is minutely looked into, it is apparent that talk between accused no.1 and complainant had not taken place in the presence of this witness. On demand and acceptance evidence of PW-4 Sayyed Anis is not at all helpful to the prosecution.
22] The moot question in the present case is whether amount recovered from pocket of payejama of accused no.2 was demanded and accepted as bribe by accused no.1. So far as acceptance for accused no.1 is concerned, as mentioned above, there is no evidence. Accused no.2 has been acquitted of the charge. On demand, evidence of complainant, panch witness and PW-4 Sayeed Anis is not consistent. The presence of independent witness is not disputed. None of the independent witnesses could be ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 17 examined by the investigating agency. In the normal course, corroboration to the testimony of complainant would not have been insisted. But in the case on hand, record reveals that before the date of alleged demand and acceptance notice was issued by the office of accused no.1 to the complainant calling upon him to explain whether permission to dig a well was granted to him. Instead of replying the said notice, it appears that complainant rushed to the office of Anti-Corruption Bureau and lodged report. In this background, prosecution ought to have examined independent witnesses to corroborate the testimony of complainant.
23] Regarding sanction, it is stated by PW-1 Nandlal Gupta that he received papers for sanction to prosecute Namdeo Gawai and Jaiswal. He had gone through the papers and came to the conclusion that prima facie case exists against both the accused and accordingly after applying his mind and analyzing the facts and circumstances, accorded sanction vide Exh.39. 24] It appears from the facts elicited in the extensive cross-examination of sanctioning authority that in all 286 ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 18 documents/papers along with covering letter were received by him. It is stated by PW-1 Nandlal Gupta in the cross- examination that he perused most of the documents from 286 documents sent to him. The description of documents is not given either in the evidence of PW-1 or reflected in the sanction order though he states that he perused complaint lodged to Anti-Corruption Bureau office and application given by complainant to the office of Tahsildar. So far as the scrutiny of the documents is concerned, evidence of PW-1 Nandlal Gupta is totally vague and one does not get from the testimony of PW-1 Nandlal Gupta description of the documents referred while according sanction. 25] So far as sanction to prosecute is concerned, it would be appropriate to mention here the object and the scope of Section 19 of the Prevention of Corruption 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 ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 19 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.
26] From the observations in paragraph 22 of judgment of the trial court, it can be seen that the court had ::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 20 observed about the attitude of PW-1 Mr. Nandlal Gupta, as under :
"Though I accept his evidence that the sanction is not defective, but before parting with the case, I would like to comment on the attitude of this witness which was adopted by this witness while giving evidence in the Court. In evidence, it was his say that whatever documents were sent to him, he had gone through it. So whenever any question was asked to him, he used to answer that it is a matter of record and show me if it is there in the record, if it is there in the record. I have gone through it. If a Senior Officer like him adopts such mode of answering to the cross-examination, it will be difficult to ascertain whether he has really applied his mind to the facts and circumstances of the case or not before according the sanction. Everything cannot be presumed, that the sanctioning authority had applied its mind, otherwise there would have no necessity to examine the sanctioning authority in the Court to prove the application of mind and the sanction order. Anyway by refraining myself from commenting much upon his evidence, I say that the sanction accorded by him is not valid and it is free from infirmities".::: Uploaded on - 04/12/2017 ::: Downloaded on - 04/12/2017 23:37:12 ::: Cri. Appeal No.78.01.odt 21
27] It is significant to note that case regarding pipeline was decided on 29.4.1991. Incident alleged by the complainant is of 9.5.1991. The evidence of sanctioning authority shows that the papers pertaining to the revenue case were not at all considered by the sanctioning authority. Even the notice issued by the office of Naib Tahsildar on 7.5.1991 that is just before two days of alleged incident was ignored by the sanctioning authority.
28] Keeping in view scope and object of Section 19 of the Act, as referred above and the facts elicited in the cross- examination of PW-1 Mr. Nandlal Gupta, this court is of the view that sanction order (Exh.39) issued by PW-1 Nandlal Gupta was without due application of mind and without considering all the documents/papers submitted to the sanctioning authority for issuance of the order to prosecute the accused.
29] In the above premise, it is apparent that prosecution could not prove the guilt of the accused beyond reasonable doubt. As such judgment and order of conviction and sentence is unsustainable in law. Hence, the following order :
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ORDER
(i) Criminal Appeal No.78 of 2001 is allowed.
(ii) Impugned judgment and order dated 27.02.2001 passed by the learned Special Judge, Buldhana in Special (Anti-Corruption) Case No.01/1992 convicting appellant Namdeo s/o Gangaram Gawai for the offences punishable under sections 7 and 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988 is hereby set aside.
(iii) Appellant/accused no.1 Namdeo s/o Gangaram Gawai 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 appellant Namdeo s/o Gangaram Gawai shall stand cancelled forthwith
(v) Fine, if deposited, shall be refunded to the appellant-accused no.1 Namdeo s/o Gangaram Gawai.
(vi) No costs.
(Kum. Indira Jain, J.)
Gulande, PA
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