The State Of Maharashtra vs Nagorao
2012 Latest Caselaw 145 Bom

                                                                   1                                                 
                                                                                                      crl225.99

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                    
                            NAGPUR BENCH, NAGPUR.




                                                                     
                                 CRIMINAL  APPEAL NO. 225/1999


                      The State of Maharashtra,
                      Through Anti-Corruption Bureau,




                                                                    
                      Bhandara.                                      ...Appellant 

                            VERSUS




                                                                
                           Nagorao s/o Vithobaji Motghare,
                           aged 36 years, Occ. Line Helper,
                           M.S.E.B. Mondha Mosara, Tah. Pauni,
                                  
                           Distt. Bhandara.                 ...                .. Respondent.
                                                   ....

Mr. M.J.Khan, APP for the State.

Mr. N.S. Khandewale, Advocate for the respondent.

.....

CORAM : A.R. JOSHI, J

DATED : 9/10/2012

ORAL JUDGMENT :

1] Heard rival submissions on this appeal

preferred by the State challenging the judgment and

order of acquittal of the respondent-accused for the

offences punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988.

2] The only question, that arose in the present

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appeal, is whether the finding arrived at by the trial Court

on Point no.3 is correct or not and whether it is required

to be altered. Said point no.3 raised by the trial Court is

as under:-

"Whether prosecution has proved that the

accused is public servant.?"

Answer- No.

3] ig In fact, the first point in controversy decided

by the trial Court was in the affirmative, inasmuch as the

trial Court had held that the prosecution has proved that

the accused had accepted Rs.100/- as illegal gratification,

otherwise than the legal remuneration and he was public

servant and thereby he committed offence punishable

under Section 7 of the Prevention of Corruption Act,

1988. As mentioned above, the answer to this first point

is in the affirmative, still answer to point no.3, as

mentioned above, was given in the negative and only on

that count the trial Court held that the charges of

demand and acceptance of bribe amount of Rs. 100/-

have not been established inasmuch as the respondent-

accused was not public servant. So far as the acceptance

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of the amount is concerned, there is clear finding of the

trial Court and thus appearing in para 23 of the

impugned judgment and order which reads as under:-

"Any way, the prosecution has proved that

the accused accepted Rs. 100/- from the complainant, but it not proved that the accused is a public servant, and thereby I

answer the point no.2 in the affirmative."

4] ig Said Point No.2 is with respect to acceptance

of Rs. 100/- by the accused towards illegal gratification

by corrupt or illegal means and thereby committed

offence punishable under Section 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act 1988.

5] During the course of arguments, learned

A.P.P. for the State pointed out the reasoning given by

the Trial Court as appearing in paragraph 24 of the

impugned judgment, when point no.3 is answered by the

trial Court. While answering said point no.3 i.e. to

determine whether the respondent-accused was public

servant or not, the trial Court took shelter of the contents

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of letter dated 13/4/1992 which is at Exhibit 32 in the

record. However, strangely enough, only part of the

letter was taken help of to come to the conclusion and

not the entirety of the contents of the said letter and this

approach of the trial Court is definitely erroneous and

the finding arrived at the basis of the reasoning given in

paragraph 24 is definitely required to be interfered with.

6] ig In order to appreciate the arguments, the

learned A.P.P. on this point, the reasoning given by the

trial Court is reproduced hereunder, which is appearing

in paragraph 24 of the impugned judgment and order:-

"Point no.3:- The last question remained is

really the accused is public servant and my

answer is in the negative. Because the

accused was working as Helper. Moreover,

in the letter dated 13.4.1992 it is shown

that:

"Shri Nagorao Motghare, Line-

Helper was appointed as daily wage labour

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in M.S.E.B. Office on 20.4.1979 and he was

working there from 20.4.1979 to 31.8.1988.

The word daily wage is used in this letter. The prosecution has argued before me that though the accused was

working on daily wages, but he was public servant and thereby he committed offence. I am not inclined to accept the argument.

Because daily wages means the worker who

works for 8 hours in day time and for the next day his appointment is fresh and his

past appointment cannot be considered at all. Defence counsel argued before me that if the worker works on daily wages it means

he is not Govt. Servant. There is some force in the argument. No doubt, the accused was

working as Labourer and his work was to help the lineman. Moreover, he was appointed as daily wages labourer and

thereby he is not entitled to get benefit of his past services. Any way, I found that the person appointed on daily wages cannot be

a public servant. In this case though the accused was appointed as daily wages but he is not entitled to get any other benefit. Therefore, I come to the conclusion that he being daily wages servant, he cannot be deemed to be a public servant. I, thereby,

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answer the point no.3 in the negative."

7] It must be said that while arriving at the

conclusion as mentioned above, the trial Court had

ignored the effect of Exhibit 32, which clearly shows that

though the accused was Line-Helper appointed in

M.S.E.B. as worker in daily wages on 20th April 1979, from

1st September 1988, he was working as `Line-Helper'.

8] On the above aspect, much is argued on

behalf of the respondent-accused that as on the date of

trap, which was conducted on 20th March 1992, the

accused was working as daily wages worker and it is

further argued that thus he was not a public servant. In

fact, by the contents of the letter (Ex.32) this aspect as to

whether the accused was `Line-Helper' or `Worker on

daily wages' has been amply cleared, but unfortunately,

this aspect has been overlooked by the trial Court by

accepting the contention on behalf of the accused that

on the relevant date the respondent/accused was daily

wages worker. Otherwise also for the sake of argument if

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it is considered that on the date of trap he was still a daily

wages worker, there is nothing on record to show that

even daily worker cannot be termed as "public servant".

On this aspect, attention of this Court is drawn towards

the definition of "public servant" as appearing in section

2(c) of the Prevention of Corruption Act, 1988 read with

Explanation-1 of the said section. In fact, what is

relevant for the present matter is the definition of Section

2(c) (iii) read with Explanation-1. Said definition reads

as under:-

Section 2(c) "public servant" means,-

(i)............

(ii)..........

(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a

body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).

Explanation 1 - Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.

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9] As such, considering the substantive evidence

of PW 6 - Sanctioning Authority and effect of the letter

(Exh.32) and also considering the answer given by the

accused while recording his statement under Section 313

of the Cr.P.C. i.e. answer to question no.77, now it cannot

lie in the mouth of the respondent/accused that he was

not public servant as on the date of trap and as such the

provisions of Prevention of Corruption Act, 1988 would

not be applicable against him. In that view of the matter,

it must be said that the trial Court had fallen in an error

in accepting the defence and answering point no.3 in the

negative and thus acquitted the accused of the offences

charged.

10] Apart from the above sole point in

controversy, there is nothing in the present appeal so far

as the challenge to the finding by the trial Court as to

acceptance of amount of Rs.100/- by the complainant

during the trap and regarding entire procedure of the

trap. Thus, in view of explanation mentioned above and

considering the documentary evidence at Exhibit 32 and

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substantive evidence of the Sanctioning Authority, it

must be said that the finding arrived at by the trial Court

as to the accused was not public servant, is required to

be altered. Consequently, the present appeal is required

to be allowed and the same is allowed with the following

order when the Court has come to the conclusion as to

establishment of guilt of the respondent-accused for the

offence punishable under Sections 7 and 13(1)(d) and

13(2) of the Prevention of Corruption Act, 1988.

11] At this stage, after holding the accused guilty

of the offences punishable under Section 13(1)(d) and

13(2) of the Prevention of Corruption Act, 1988, it is

argued on behalf of the respondent/accused that the

leniency may be shown and minimum sentence be

awarded, as prescribed in law. For the offence

punishable under Section 7 of the Prevention of

Corruption Act, 1988, the substantive sentence shall not

be less than six months and for the offence punishable

under Section 13(2) which is not less than one year.

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12] In the result, the respondent/accused is

convicted for the offence punishable under Section 7 of

the Prevention of Corruption Act, 1988 and sentenced to

suffer R.I. for a period of six months and to pay a fine of

Rs.100/- in default to suffer simple imprisonment for one

month. The respondent-accused is also convicted for

the offence punishable under Section 13(1)(d) read with

Section 13(2) of the Prevention of the Corruption Act,

1988 and sentenced to suffer R.I. for a period of one year

and to pay fine of Rs. 1000/- in default of payment of fine

to suffer imprisonment for the period of one month.

Both substantive sentences shall run concurrently.

Appropriate action be taken against the

respondent/accused.

JUDGE

Ambulkars