Bombay High Court

Satish Manoharrao Kulkarni vs The State Of Maharashtra on 15 April, 2016

Bench: I.K. Jain

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD




                                                                           
                            APPELLATE SIDE JURISDICTION




                                                   
                   CRIMINAL APPEAL NO. 349 OF 2001




                                                  
     Satish s/o Manoharrao Kulkarni,
     aged 43 years, occ. Service,
     (Talathi) R/o Gangapur,
     District Aurangabad                             ...Appellant




                                        
                                              [Orig. Accused no.1]
                             
                               VERSUS

     The State of Maharashtra,
                            
     through Police Inspector,
     Anti Corruption Branch,
     Aurangabad                               ...Respondent
                                              [Original Complainant]
      
   



                                      ***
     Mr. Govind Kulkarni, advocate h/f
     Shri Rajendra Deshmukh, Advocate for the Appellant
     Mr. S.D.Ghayal, APP for Respondent





                                      ***


                                        CORAM : INDIRA K. JAIN, J.

                                        DATED :  15th    APRIL, 2016 





     ORAL JUDGMENT :

This appeal takes an exception to the judgment and

order, dated 14.8.2001, passed by the learned Special Judge (ACB),

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Aurangabad, in Special Case No. 6 of 1996 convicting the

appellant/original accused no.1 of the offences punishable under

Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,

1988.

2] Prosecution case, in brief, is as under .

(i) Accused no.1 was serving as Talathi of village

Bhendala Group Grampanchayat. Block No. 192 was situated at village Bhendala. It was belonging to five

families of Mahar community. As some of the original owners of the land had passed away, legal heirs of

the deceased were to be brought on record and mutation entry was to be effected in 7/12 extract.

(ii) Complainant Lahu Hiwale approached accused

no.1 for bringing the names of legal heirs on record. It is alleged that accused no.1 demanded Rs.20,000/- for mutation. The amount was settled to Rs.10,000/-.

On two occasions Rs.4,000/- each came to be paid to accused no.1. It was decided between the parties that complainant would pay Rs.1,500/- and remaining

amount of Rs.500/- to be paid after work is over.

(iii) Complainant was not willing to pay bribe of Rs.2,000/- demanded by accused no.1 and so he approached the Anti Corruption office and lodged complaint. Verification of demand was made in the

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presence of panch witnesses. Pre-trap panchanama was drawn. Trap was arranged on 17.11.1995 and it

was successful. Accused no.2 was the person who

accepted amount of Rs.1,500/- on behalf of accused no.1. Statements of witnesses came to be recorded. On completing investigation charge sheet was

submitted to the Special Court.

3] Charge came to be framed against the accused.

Accused pleaded not guilty and claimed to be tried. Accused no.1

raised specific defence that for making mutation entry arrears of land

revenue were required to be cleared by the holders of the land.

Block No. 192 was in arrears of Rs.2,000/- land revenue. On

17.11.1995 complainant paid Rs.1,500/- to accused no.1 towards

land revenue. Accused no.1 submitted that he was falsely

implicated by complainant who had no concern with the land in

respect of which mutation entry was sought to be effected.

4] To substantiate the alleged guilt of accused, prosecution

examined PW 1-Chokharam Umaji Rathod a shadow panch. PW 2-

Lahu Hiwale complainant, PW 3-Sampat Hiwale a co-sharer of land,

and PW 4-Ambadas Sawai investigating officer.

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5] Considering the evidence of complainant, shadow

panch and investigating officer, Trial Court came to the conclusion

that demand and acceptance was proved beyond reasonable doubt

against accused no.1. Regarding sanction, evidence of investigating

officer was relied upon and sanction was held as legal and proper.

On the basis of evidence, Trial Court held accused no.1 as guilty and

convicted and sentenced him as stated above. However, accused

no.2 was found not guilty and stood acquitted. Being aggrieved with

the order of conviction and sentence this appeal has been preferred

by accused no.1.

6] Appellant assailed the evidence of prosecution

witnesses on various grounds. Shri Govind Kulkarni, advocate

holding for Shri R.S.Deshmukh, learned counsel for appellant

submitted that sanction order (Exh.35) would indicate use of

whitener and name of sanctioning authority written in ink after

scoring the earlier name. It is submitted that prosecution ought to

have examined sanctioning authority to explain the suspicious

circumstances and non-examination of sanctioning authority would

vitiate the sanction order.

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7] Another contention raised on behalf of appellant is that

complainant is a seasoned person. On earlier occasion he lodged

report against another Government employee with Anti Corruption

office. He was fully conversant with the procedure. He was not

concerned with the land Block No.192, still he took upon the

responsibility to get the names of legal heirs entered in 7/12 extract.

It is submitted that evidence of complainant is wholly doubtful and in

the absence of independent corroboration it would be risky to rely

upon the testimony of complainant.

8] The third contention raised by accused is that accused

no.1 has come with a defence that complainant gave him Rs.1,500/-

against the arrears of land revenue which was to be cleared before

the entries in the names of legal heirs were entered in 7/12 extract.

The learned counsel submitted that accused no.1 examined DW 1

concerned Talathi Mahadu Sandu Bangale who has proved the

certificate showing Rs,2,000/- towards arrears of land revenue

against land Block No. 192. The learned counsel submits that

accused no.1 has been falsely implicated and considering his

defence Trial Court ought to have acquitted him.

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9] Per contra, learned Additional Public Prosecutor

supports the judgment and order of conviction passed by the Trial

Court. He submitted that trap was successful and based on

evidence Trial Court has rightly convicted accused no.1.

10] On going through the material and evidence on record

and hearing the submissions advanced on behalf of the parties,

following points arise for determination of this court.

(i)

Whether prosecution could prove that on 17.11.1995 appellant being public servant demanded

Rs.1,500/- as amount other than legal remuneration as a motive for entering names of legal heirs in 7/12 extract ?

(ii) Whether sanction to prosecute the appellant

granted by sanctioning authority is legal and valid ?

Findings to the above points 1 and 2 are in the negative for the

reasons to follow.

11] It is an undisputed fact that at the relevant time accused

was working as Talathi and he was responsible for mutation of

names of legal heirs in 7/12 extract. He did not dispute that on

17.11.1995 he accepted Rs.1,500/- from the complainant. In view of

these admissions, the moot question remains to be answered is

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whether amount of Rs.1,500/- received by the accused from

complainant was towards arrears of land revenue or as a bribe as

alleged by complainant.

12] It is stated by complainant Lahu Hiwale that Block No.

192 was owned by five owners. Names of legal heirs were to be

brought on record and so in a meeting it was decided that he should

get the names of legal heirs recorded in the Record of Rights. On

24.8.1995 complainant met accused no.1 and requested him to

mutate the names of legal heirs. He stated that accused no.1 told

him to give Rs.20,000/- and after settlement it was brought down to

Rs.10,000/-. He then stated that on 28.8.1995 and 9.9.1995 amount

of Rs.4,000/- each was paid to accused no.1. Complainant stated

that for remaining amount of Rs.2,000/- accused no.1 asked him to

pay Rs.1,500/- and to pay remaining amount of Rs.500/- after work

is over. As he was not willing to pay Rs.2,000/- bribe complainant

reported the incident to Anti Corruption office. He proved first

information report. After report, demand was verified, trap was

arranged and the same was successful.

13] It can be seen from cross-examination of complainant

that he had no concern with land Block No. 192. He states that in a

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meeting it was decided that he should get the names of legal heirs

recorded in the Record of Rights. This fact is denied by PW 3-

Sampat Hiwale a co-sharer of land in his evidence. It further

appears from the evidence of complainant that Sanjay Ganpat, Bala

Bhaskar and one Sheshrao accompanied him at the time of initial

demand. None of these witnesses could be examined by

prosecution. Prosecution placed reliance on the evidence of PW 3-

Sampat Hiwale. On meticulous scrutiny of evidence of PW 3-

Sampat it can be seen that he does not support prosecution on

alleged demand. On the contrary, he fully supported the defence

raised by accused that amount was paid towards arrears of land

revenue.

14] The next important factor relates to verification of

demand. If verification panchanama is looked into it can be seen

that there is no whisper in the said panchanama about demand as

bribe. As PW 3-Sampat did not support the prosecution and

verification panchanama is silent on demand towards bribe, Court

was left only with the sole testimony of complainant.

15] As indicated above, independent witnesses were

available to the prosecution. They were kept away from the witness

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box. Considering the fact elicited in cross-examination of

complainant, corroboration to his testimony was essential. For want

of corroboration it would be risky to place reliance on the testimony

of complainant, particularly when accused could show by

preponderance of probabilities that he accepted the amount towards

arrears of land revenue and not as bribe.

16] This takes the Court further to the evidence of DW 1-

Mahadu Bangale. He was serving as Talathi since 1988. He stated

that there were 12 share holders of land Gat No. 192. According to

him, sharers of the land were in arrears of land assessment. As per

assessment year 1994-95. He further states that entries of arrears

of land revenue were made in the register and on the basis of those

entries he issued certificate Exh.44. This certificate clearly indicates

that land holders of Gat No. 192 were in arrears of Rs.2,000/-

towards land revenue. DW 1-Bangale is an independent witness.

His testimony is based on record. Nothing could be elicited in

cross-examination of DW 1-Bangale to disbelieve his evidence.

Based on evidence of DW 1-Bangale and Exh.44 accused no.1

could succeed in showing that land holders of Gat No. 192 were in

arrears of land revenue and since the names of legal heirs were to

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be recorded in 7/12 extract amount of Rs.1,500/- was paid as

arrears.

17] So far as sanction to prosecute accused no.1 is

concerned, it would be necessary to look at the evidence of

investigating officer. Prosecution has not examined the sanctioning

authority. True non-examination of sanctioning authority would not

be fatal to the prosecution case unless it is brought on record that

sanction accorded was without due application of mind. PW 4-P.I.

Sawai was attached to Anti Corruption office. He conducted

investigation and submitted charge sheet. According to P.I. Sawai,

after completion of investigation detailed report was made to

sanctioning authority through Superintendent of Police, Anti

Corruption Bureau along with list of documents. The Superintendent

of Police then submitted a detailed report to Assistant Collector,

Vaijapur. Thereafter Assistant Collector, Vaijapur accorded sanction

vide Exh.35.

18] A quick glance at sanction order Exh.35 would make it

clear that at the bottom whitener was used and the name of

signatory was mentioned in ink by scoring the earlier name. It has

come in the evidence of investigating officer that by letter Exh.32

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documents were forwarded to Superintendent of Police, Anti

Corruption Bureau and in turn Superintendent of Police forwarded

the documents and draft sanction order vide letter Exh.33. On

perusal of letter Exh.33 it can be seen that draft sanction order along

with other documents was sent to the sanctioning authority.

19] Commenting upon draft sanction order sent along with

letter Exh.33, learned counsel for the appellant vehemently

contended that the possibility of the concerned Department drafting

the order, sending it to the authority and the authority simply signing

the order is not overruled. Learned counsel placed strong reliance

on the decision of this court in Jagannath Maruti Tekale Vs State

of Maharashtra [1991 (2) Mh.L.J. 976] and submitted that it would

be extremely risky to hold that sanction order in the present case

was legal and proper.

20] In the judgment in Jagannath referred by learned

counsel for the appellant, it was observed as under : -

"4. Normally, having decided the aforesaid point in favour of the appellant, I would not have considered it necessary to deal with any of the subsequent submissions. Mrs. Ranadive, learned A.P.P. elaborately tried to convince the Court that the application of mind can be gauged from the sanction order itself and that, it was unnecessary to

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examine the sanctioning authority. That argument, unfortunately, is unacceptable because the Court will have

to take judicial notice of the fact that in the Government set- up, the orders are often times drafted out by a department

and put up to an authority for signature and, therefore, it would be extremely dangerous to conclude even if the sanction order is correctly or perfectly drafted, that the

authority who signed it must have applied his mind in the absence of his deposing before the Court that he had in fact done so."

21]

In the case on hand, no evidence is brought on record

that after receiving draft sanction order authority has applied the

mind and issued sanction order (Exh.35).

22] In this circumstance it was necessary for the prosecution

to explain that draft sanction order was approved by the sanctioning

authority after due application of mind and before the sanction order

could be issued authority was subjectively satisfied that accused was

to be prosecuted for the offences under the Prevention of Corruption

Act. These circumstances were not to be explained by the

investigating officer but by the sanctioning authority. Since

sanctioning authority was not examined it is doubtful that sanction