Tah. Ramtek vs The State Of Maharashtra
2012 Latest Caselaw 171 Bom

     apeal642.05.odt                                                                                          1/14


                                  




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




                                                                        
                         CRIMINAL APPEAL NO. 642 OF 2005




                                                                       
              Ka nthiram s/o Marotrao Wasnik (Dead)
              Smt. Anuradha wd/o Kanthiram Wasnik
              aged about 69  yrs. Occ. Pensioner,
              r/o Shitalwadi, Ramtek.




                                                      
              Tah. Ramtek,
              Distt. Nagpur.             ::                                                APPELLANT

                      .. Versus
                         
                                
                                 ..
                               
              The State of Maharashtra
              through A.C.B., Nagpur,
              Distt.                   ::                                               RESPONDENT
                                                               
     ................................................................................................................
      


                        Shri D. C. Chahande, Advocate for the appellant.
                        Shri A. M. Joshi, A. P. P. for the respondent-State.
   



     ................................................................................................................

     CORAM  ::                          ::  A. R. JOSHI, J.

DATE OF RESERVING JUDGMENT :: 14 TH SEPTEMBER, 2012

DATE OF PRONOUNCING JUDGMENT :: 11 TH OCTOBER, 2012.

1. Heard rival arguments on earlier dates on this criminal

appeal preferred by the original accused (since deceased) challenging

the judgment and order of conviction passed on 30/9/2005. Said

impugned judgment and order was passed in Special Case No. 15 of

1995 in which, initially there were three accused including the present

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appellant (since deceased) being original accused No.1, however,

accused Nos. 2 and 3 died during the pendency of the matter and as

such case against them stood abated leaving behind only accused No.1

to face the trial. By the impugned judgment and order original

accused No.1, present appellant (since deceased), was convicted for

the offences punishable under Section 7 and also punishable under

Section 13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988. He was sentenced to undergo rigorous

imprisonment for one year and to pay fine of Rs.1,000/-, in default, to

suffer further rigorous imprisonment for three months. Being

aggrieved by the said judgment and order, original accused No.1

preferred appeal in the year 2005, however, during the pendency of

the appeal, original accused No.1 died and his wife Smt. Anuradha

Wasnik continued the said litigation being legal representative of said

accused No.1 and as such her name was inserted as appellant as

present position stands.

2. Prior to appreciating the rival arguments, the case of the

prosecution in nutshell can be mentioned in order to appreciate proper

prospective of the matter and in order to ascertain whether material

brought before the trial Court warranted conviction for the offences

charged under the Prevention of Corruption Act.

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3. On 07/6/1992 one Narayan Bhongade, father of the

complainant submitted the application for mutation to be effected in

the records of rights concerning his agricultural land. Vide the said

application it was prayed to the concerned authority of revenue of

which original accused No.1 (deceased appellant) was Revenue

Inspector at the relevant time at Kanhan, district Nagpur. By the said

application, said Narayan Bongade wanted that the names of his sisters

i.e. Sau. Manjulabai Thakre and Sau. Sevantabai Kadoo were to be

removed from the record of rights as they had relinquished their shares

in favour of Narayan Bhongade through relinquishment deeds on the

stamp papers of Rs.10/- each, which were also filed along with the

application for mutation. In spite of repeated requests, mutation was

not effected and accused No.1, apparently, demanded a bribe amount

of Rs.500/- for getting the said work done and also demanded Rs.80/-

to cure the defect of deficit stamp papers on the premises that two

relinquishment deeds were on insufficient stamp papers of Rs.10/-

each instead of Rs. 50/- each.

4. According to the complainant, sometime in the month of

August, 1993, there was camp of Revenue Inspector at the village of

the complainant at Kerdi and that time he had met accused No.1, the

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Revenue Inspector and also met accused No.2 Shri Dhoke, the then

Patwari working in revenue department and requested both of them to

complete the work of mutation and to give correct 7/12 extract for the

agricultural property of his father. According to the complainant, that

time, Dhoke Patwari insisted that the complainant should meet

accused No.1 and accordingly in such meeting it was initially told by

accused No.1 that amount of Rs.580/- was necessary, i.e. Rs.500/- for

doing the work and Rs.80/- to cure the deficit stamp papers on the

instruments. That time, according to the complainant, he requested

accused No.1 to lower the said amount of Rs.500/- as he had no

money and as such allegedly the said amount was reduced to Rs.200/-.

Thereafter, the matter was not finalized as no payment was made by

the complainant. Also, according to the complainant, on or about

12/10/1993 he met accused No.1 in the Gram Panchayat office at

Kanhan and again requested for the work. That time he was told that

as the money was not paid, the work was not done and accused No.1

further told him that accused No.2 Dhoke Patwari was available in the

village and asked the complainant to call said Patwari along with the

record and again demanded for the money so that the work could be

done.

5. After the above, according to the complainant, on

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22/10/1993 in the morning he had been to the residence of accused

No.2 Dhoke at Kamptee and gave him message that he was called by

accused No.1 at the office at Kanhan for effecting the mutation entry.

That time, according to the complainant, he was assured by accused

No.2 Patwari Dhoke that he would reach the office of accused No.1 at

2.00 p.m. and asked the complainant to reach there along with his

father and also bring Rs.280/- for the work. As complainant was not

ready and willing to pay the bribe amount, he, on the same day,

contacted the Anti Corruption Bureau office at Nagpur and lodged oral

report which was reduced into writing being complaint (Exh.53). On

the strength of the said complaint, further process was conducted by

the Investigating Officer Shri Jaiswal-P.W.-5, during which, after

calling two panch witnesses including panch, P.W.-3 Vijay Gan, pre-

trap panchanama procedure was conducted and pre-trap panchanama

(Exh.63) was drawn. Thereafter, raid was conducted in the afternoon

of the same day i.e. 22/10/1993 in the office of accused No.1 at

Kanhan. During the raid, according to the complainant, he along with

his father and panch No.1 i.e. P.W.-3, entered the office of accused No.

1. That time accused No.2 Patwari Dhoke saw them and had a talk

with accused No.1 about arrival of complainant and his father.

According to the complainant, accused No.1 told accused No.2 to see

about the work of complainant and thereafter accused No.2 Patwari

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Dhoke told accused No.3 Doma Kotwal (deceased), then working as

Kotwal at village Kerdi to take the complainant and others out of

Gram Panchayat office. Thereafter, accused No.3 Doma Kotwal took

them out and asked the complainant whether he had brought the

amount and, if so, deliver the same to him. On this, the complainant

first handed over him Rs.80/- on which accused No.3 Doma told him

regarding the directions of accused No.1 and to give the remaining

amount. On this, the complainant gave him Rs.200/- and said amount

was accepted by accused No.3 Doma. Thereafter, pre-arranged signal

was given by the complainant to the raiding party members and

accused No.3 Doma was put under arrest and usual trap procedure

was conducted including taking hand washes of accused No.3, his

shirt, etc. and samples were collected of such hand washes and

detailed trap panchanama was drawn which is at Exh.64. Accused No.

3 put under arrest and subsequently, during the investigation, role of

accused Nos. 1 and 2 was revealed and they were also put under arrest

and were charged for the offences as mentioned above. After the trial

and after recording of evidence of six witnesses, trial ended in

conviction of original accused No.1- Kanthiram (since deceased) as

during the pendency of the trial accused Nos. 2 and 3 died.

6. During the trial, out of six prosecution witnesses, important

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prosecution witnesses are only P.W.-2 Deochand Bhongade,

complainant - first informant, P.W.-3 Vijay Gan- panch witness, P.W.-4

Nilkanth Tarare-friend of the complainant, P.W.-5 Ashok Kumar

Jaiswal - Investigating Officer and P.W.-6 Jayant Kawale - the then

Collector, Nagpur who accorded sanction to the prosecution of accused

No.1, the then working as Revenue Inspector at Kanhan. The

evidence of P.W.-1 Vikas Tidke is not of much significance in as much

as though he was member of the raiding party on 22/10/1993, his role

was only to hand over the complaint and requisition letter to Kanhan

police station and thereafter on 27/10/1993 for carrying different

exhibits to the office of the Chemical Analyser for getting C.A. Reports,

etc.

7. Prior to appreciating of the substantive evidence of mainly

the complainant P.W.-2-panch witness No.1, P.W.-3 and P.W.-4 -

friend of the complainant, certain admitted position can be narrated in

order to crystallize the issue in controversy. The said admitted

position is as under.:

(a) During the pendency of the criminal trial, accused

Nos. 2 and 3 died thus case against them stood

abated and only the original appellant faced the

trial.

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(b) Actual taking of the bribe was by accused no.3,

who died during the pendency of the matter.

(c) According to P.W.-4 the friend of the complainant

he was present at the time of initial demand made

by accused No.1 with complainant at the camp

site and, in fact, it was the only demand allegedly

made by accused No.1 to the complainant.

However, entire complaint (Exh.53) is silent

regarding presence of P.W.-4 at the said first

meeting and only occasion when there was

alleged demand by accused No.1 of Rs.500/- and

subsequently reducing the said demand to

Rs.200/- and also demand of Rs.80/- for the

stamp papers.

(d) According to P.W.-4, his statement was not

recorded by the investigating agency in the

matter.

(e) In the entire evidence of the complainant- P.W.-2,

there is no whisper of the presence of his friend

Nilkanth P.W.-4 allegedly at the first meeting with

accused No.1 at the camp office.

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8. Bearing in mind the above admitted/factual position, the

rival arguments are to be dealt with and it is to be ascertained whether

the substantive evidence of P.W.-2, P.W.-3 and P.W.-4 inspire

confidence so far as the charges against original accused No.1-

appellant (since deceased).

9. From the substantive evidence of P.W.-2 and P.W.-3, it

must be said that, there was no specific demand of either Rs.200/- or

Rs.80/- by accused No.1 from the complainant at the time trap. For

this purpose the substantive evidence of P.W.-2 is reproduced

hereunder for ready reference, which is appearing in para-2 of his

evidence.

"........In Gram Panchayat Kanhan Pipari we found the

accused persons and 2-3 other Patwari present in the

said office. There was no talk with anybody in the said

office. Accused No.2 Dhoke after seeing us told accused

No.1 about our arrival in the office. Accused No.1 told

accused No.2 see about our matter, and do according to

his instructions already given. Thereafter accused No.2

Dhoke told accused No.3 Doma Kotwal (deceased) that

he should take us out side Gram Panchayat Office.

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Therefore, accused No.3 Doma, myself and Panch

Vijayram, we came out from the said office. Accused No.

3 Doma asked me as to whether I had carried the

amount, if carried, deliver it. Therefore, I had taken out

Rs.80/- from my right side pant pocket and handed it

over to accused No.3 Doma. Accused No.3 Doma told me

that amount of Rs.80/- was for purchase of stamp.

Accused No.3 Doma further told me that as per direction

of accused No.1 give the amount. Therefore, amount

Rs.200/- (bribe) which was kept in my shirt pocket was

handed over (given) to accused No.3 Doma. Thereafter

accused No.3 Doma had mixed the amount (Rs.80 + Rs.

200) and kept it in his shirt pocket...."

10. When this substantive evidence is to be seen in

juxtaposition of the relevant substantive evidence of P.W.-3 panch

witness, definitely it can be said that there is a variance in the said

evidence as to how the events had actually happened. In other normal

circumstance, if the bribe amount would have been accepted by

accused No.1, this variance would not have been of much relevance.

But, in the specific circumstance of the present case as to the bribe was

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accepted by accused No.3, such variance is definitely a mitigating

circumstance to the prosecution and in that event, it must be said that

the learned trial Court had not properly appreciated the same. For the

sake of ready reference, the substantive evidence of P.W.-3 Vijay Gan

appearing in notes of evidence in para-4 is reproduced hereunder.:

"........Myself, complainant, complainant's father and

accused No.3 Doma, we had taken entry inside in the

office of Gram Panchayat Kanhan Pipri. Complainant

told us about accused No.1 Wasnik accused No.2 Dhoke

were sitting in the said office. After having taken entry

in the office of Gram Panchayat Kanjan Pipri, accused

No.1 told accused No.3 to do the work of complainant.

Thereafter, myself, complainant and accused No.3 came

out from said office and at this time, complainant had

given Rs.80/- to accused No.3 Doma Kotwal. Thereafter,

accused No.3 Doma asked complainant as to whether he

had brought the amount of Saheb. Thereafter,

complainant had taken out the bribe amount (Rs.200/-)

and handed it over to accused No.3 Doma...."

11. From the above evidence, it must be said that according to

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the panch witness, during the trap procedure, after the complainant,

his father and panch took entry in the office, accused No.1 told

accused No.3 to do the work of the complainant and thereafter

accused No.3 took them out of the office. Also, according to the

panch, after accused No.3 was given Rs.80/-, he again asked the

complainant whether the complainant had brought the amount of

'Saheb' and then the bribe amount of Rs.200/- was given to accused

No.3. Whereas, according to the substantive evidence of P.W.-2-

complainant, referred above, when they entered the office, accused

No.1 told accused No.2 to see about the matter of the complainant and

do according to the instructions and thereafter accused No.2 told

accused No.3 to take the complainant and others out of the office.

Again, according to the complainant, after accused No.3 was given

Rs.80/-, he further asked the complainant to give the amount as per

the direction of accused No.1 and then amount of Rs.200/- was given

to accused No.3. In the light of the specific defence of accused No.1

as to he had nothing to do with the said mutation entries and he was

only to verify and finalize them as the initial work was to be done by

accused No.2 only, such variance in the evidence as above would have

been properly appreciated by the trial Court. On the contrary, in the

impugned judgment, a reasoning is given by the trial Court in as much

as proof of the demand of bribe by accused No.1 through accused

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No.3. Such observations of the trial Court are appearing in para-24 of

the impugned judgment. Even, there is another observation by the

trial Court appearing in para-16 of the judgment accepting the

substantive evidence of P.W.-4 Nilkanth, friend of the complainant on

the aspect of demand of bribe of Rs.500/- and then reducing it to

Rs.200/-. In holding so, the trial Court had ignored the factual

position as detailed above in earlier paragraph and specifically the

absence of any reference with respect to P.W.-4 in the complaint and

also in the substantive evidence of complainant P.W.-2.

12. In the result, in the opinion of this Court, the trial Court

had erred in coming to the conclusion that the prosecution has

succeeded in establishing the initial demand and acceptance of the

amount of bribe by accused No.1 through accused No.3 and thus

holding accused No.1 guilty of the offence when the person, who

actually received the amount, i.e. accused No.3, was already dead and

case against him stood abated so also the case against accused No.2

stood abated. A defence of accused No.1 is put forth during the cross-

examination of complainant P.W.-2 wherein it is admitted by the

complainant that the work of accused No.1 was to certify the mutation

entry and in the absence of aunts of the complainant and in the

absence of notice to his mother and without notice under Namuna

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No.9, accused No.1 refused to certify the mutation entry, and

therefore, the complainant has lodged false case.

13. Considering the effect of substantive evidence and mainly

that of P.W. Nos. 2, 3 and 4, it must be said that defence of the

accused was probable on preponderance of probability and moreover

demand of bribe amount by accused No.1 and acceptance of the same

for himself through accused No.3 was not established by the

prosecution beyond reasonable doubt. Hence, the present appeal must

succeed and same is accordingly disposed of as under.

Criminal Appeal is allowed. The impugned judgment and

order dated 30/11/2005 is quashed and set aside. Fine amount

already paid be refunded to the appellant.

JUDGE

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