Dadaji Fakroji Kharkar vs The State Of Maharashtra
2016 Latest Caselaw 1635 Bom

                                             1
                                                                           CRI.APPEAL.507.2001.odt


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




                                                                                 
                         APPELLATE SIDE JURISDICTION




                                                         
                            CRIMINAL APPEAL NO. 507 OF 2001

    Dadaji S/o Fakroji Kharkar,




                                                        
    Aged-49 years, Occupation-
    Service, (Assistant Grader),
    in Cotton Federation Centre,
    Jarikot Taluka-Biloli,
    District-Nanded.                                         ... APPELLANT




                                           
                                                            (Original-Accused)


              V E R S U S
                                 
                                
    The State of Maharashtra.
    Copy to be served through
    Public Prosecutor, High Court of
    Judicature at Bombay, 
      

    Bench at Aurangabad.                                     ... RESPONDENT
                                                            (Original-Complainant)
   



                                       ...
    Mr. B. A. Dhengle, Advocate (appointed) for Appellant.
    Mr. S. N. Morampalle, APP for Respondent / State.





                                      ...


                                               CORAM  : INDIRA K. JAIN, J.

                                               DATE      : 20th April, 2016.





    ORAL JUDGMENT: 
     
    .                 This appeal takes an exception to the judgment and order

dated 6th November, 2001 passed by the learned Additional Sessions

Judge, Biloli in Special Case (ACB) No.3 of 1999. By the said

CRI.APPEAL.507.2001.odt

judgment and order, Appellant was convicted of the offences

punishable under Sections 7 and 13(2) of the Prevention of

Corruption Act, 1988 and sentenced as under -

          Conviction under                                Sentence




                                                             
             Section
                     7                 Rigorous Imprisonment for six months and fine

of Rs.2,500/- in default Rigorous Imprisonment

for two months.

13(2) ig Rigorous Imprisonment for one year and fine of Rs.5,000/- in default Rigorous Imprisonment

for four months.

2 For the sake of convenience Appellant shall be referred in

his original status as Accused as he was referred before the Special

Court.

3 Prosecution case in nutshell is as under :

In the year 1999 Accused was working as Assistant

Grader in Cotton Federation Centre, Jarikot, Taluka Biloli. He was

assigned with a duty to examine quality of cotton and give gradation

for the purpose of assured price.

4 Digamber Gopalrao Solunke was a cotton grower. On 8th

CRI.APPEAL.507.2001.odt

March, 1999 he placed his bullock cart containing eight quintal of

cotton at Saikhed Centre. He was allotted Cart No.204 for the

purpose of grading and weighing the cotton. There was rush of

bullock carts and so on 15th March, 1999 Complainant requested

Accused to weigh and give proper grading to cotton in his bullock cart.

It is alleged that Accused demanded Rs.500/- towards bribe for giving

him priority. Complainant was not willing to give bribe. On 15th

March, 1999 he approached Anti Corruption Bureau and lodged

complaint.

5 A trap was arranged on 16th March, 1999. It was

successful. Pre-trap and post-trap Panchanamas were drawn.

Tainted money was seized from Accused. Statements of witnesses

were recorded. After completing investigation papers were submitted

to Sanctioning Authority. PW-4 Rameshwar Parate, General Manager

of Federation accorded sanction. Then charge-sheet was submitted

before the Special Court.

6 Charge was framed against Accused vide Exhibit 14. He

pleaded not guilty and claimed to be tried. Defence of Accused was

of denial and false implication. Accused submitted that he was not a

CRI.APPEAL.507.2001.odt

public servant and so provisions of the Prevention of Corruption Act

would not be attracted against him.

7 Prosecution examined in all 6 witnesses. Considering

evidence of prosecution witnesses and defence raised by Accused

Trial Court came to the conclusion that Accused was a public servant

within the meaning of public servant under the provisions of the

Prevention of Corruption Act and further prosecution succeeded in

proving the guilt of Accused beyond reasonable doubt. In

consequence thereof Appellant was convicted as stated in para 1

above.

8 Heard the learned counsel for parties. On going through

the evidence of prosecution witnesses and defence raised by

Accused for the below mentioned reasons this Court is of the view

that Accused is a public servant within the meaning of Section 2(c) of

the Prevention of Corruption Act, 1988 and prosecution could

succeed in bringing home the guilt of Accused beyond reasonable

doubt.

9 As indicated above Accused was serving as Assistant

Grader in Cotton Federation Centre, Jarikot, Taluka Biloli at the

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relevant time. It was his duty to examine quality of cotton and give

gradation for the purpose of assured price. Since Accused has raised

a defence that he was not a public servant it would be essential here

to refer relevant clause of Section 2(c) and sub-clauses (ii), (iii) and

(viii) of the Prevention of Corruption Act, 1988 -

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

(ii) any person in the service or pay of a local

authority;

(iii) any person in the service or pay of a corporation

established by or under a Central, Provincial or State Act, or any 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); .... .... ....

(viii) any person who holds an office by virtue of which

he is authorised or required to perform any public duty;

10 From the above referred clauses of Section 2(c) of the Act

of 1988 it is evident that any person in the service or pay of a local

authority or any person in the service or pay of a corporation

established by or under a Central, Provincial or State Act, or any

authority or a body owned or controlled or aided by the Government

CRI.APPEAL.507.2001.odt

or a Government company is included in the definition of public

servant. Sub-clause (viii) of definition is still wider. Under this clause

any person who holds an office by virtue of which he is authorised or

required to perform any public duty is a public servant.

11 Section 2(b) of 1988 Act defines "public duty". It means a

duty in the discharge of which the State, public or community at large

has an interest. Explanation to Section 2(b) further clarifies that State

includes a Corporation established by or under Central, Provincial or

State Act or an authority or a body owned or controlled or aided by the

Government or a Government company.

12 From the definition of public servant under 1988 Act it can

be gathered that it contains very wide definition of public servant.

Under the repealed Act of 1947 definition of public servant was

restricted to public servant as defined under Section 21 of the Indian

Penal Code. With a view to effectively curb bribery and corruption not

only under Government establishments and departments but also in

semi-Government authorities, bodies and their departments where the

employees are entrusted with public duty, a comprehensive definition

of public servant has been given in clause (c) of Section 2 of 1988

Act.

CRI.APPEAL.507.2001.odt

13 Appellant has placed reliance on the decision of the

Honourable Supreme Court in State of Maharashtra Vs. Laljit

Rajshi Shah and another1 to show that employees working with

Maharashtra Cooperative Societies would not be covered within the

ambit of public servant under Section 21 of the Indian Penal Code

though under the Cooperative Societies Act by legal fiction they

become public servants only for the purpose of that Act.

14 The decision in Laljit Rajshi Shah's case is distinguishable

as it was based on interpretation of definition of public servant

contained in the repealed Act of 1947. As indicated above definition

of public servant under the Act of 1947 was restricted and covered

only such public servants as included under Section 21 of the Indian

Penal Code. After 1988 Act, Court is required to adopt much wider

definition of public servant brought into force to curb corruption even

in the semi-Government departments, local bodies and authorities

included in Section 2(c) of 1988 Act.

15 In the present case it is not in serious dispute that

Accused was performing public duty. He was to examine quality of

1 AIR 2000 SUPREME COURT 937

CRI.APPEAL.507.2001.odt

cotton and give proper gradation to the same. Sanctioning authority

has also stated that Accused was performing public function at the

relevant time. Thus keeping in view the definition of public servant

under Section 2(c), sub-clauses (ii), (iii) and (viii), post held by

Accused at the time of trap and the duty assigned to him it is clear

that Appellant was a public servant at the time of incident. So the

defence raised by Accused that he was not a public servant is

contrary to law and cannot be accepted.

16 On merits, it is apparent from the evidence of

Complainant PW-1 Digamber Solunke that on 8th March, 1999 he took

eight quintal cotton in bullock cart for sale at Cotton Collection Centre

Saikhed, Taluka Biloli. He stated that variety of cotton was NH-44.

Card No.204 was allotted to him for the purpose of grading and

weighing the cotton. On 8th March, 1999 work of grading was not

done due to number of carts brought to the centre.

It is further stated by Complainant Digamber Solunke that

on 15th March, 1999 he alongwith his friend Ashok Wadje went to

Cotton Collection Centre. They met Accused and requested him to

examine the grade of cotton brought by Complainant. Complainant

stated that, that time Accused demanded Rs.500/- and told him to

CRI.APPEAL.507.2001.odt

come on the next day for grading alongwith Rs.500/-. Complainant

asked Accused to bring down amount to Rs.400/- but he did not listen.

He then went to Anti Corruption Bureau, Nanded and lodged report

vide Exhibit 22. He further states that trap was arranged on 16th

March, 1999. He attended the office of Anti Corruption Bureau on that

day at 05:00 a.m. He stated that demand was verified before the

Panch witnesses and thereafter alongwith raiding party members they

went to Accused. In the presence of Panch witnesses, Accused

accepted Rs.500/- and same was seized from him.

17 The testimony of Complainant is fully supported by PW-2

Ganesh Deshpande a Panch. Evidence of Panch Deshpande makes

it clear that demand was verified in his presence. After following due

procedure trap was arranged. Pre-trap Panchanama was drawn vide

Exhibit 42. After pre-trap Panchanama Complainant, PSI Sangu,

Head Constable Swami, Kadam, PW-2 Deshpande and another

Panch went in Government jeep and reached Saikhed Phata at

09:30 a.m. He stated that then he and Complainant went inside

Cotton Federation Centre. Other members were following them.

Complainant was near his bullock cart. Accused came there. He

demanded Rs.2,000/- from Complainant. Complainant told him that

CRI.APPEAL.507.2001.odt

he had brought Rs.500/- as told earlier. Complainant then gave him

Rs.500/- and Accused kept the same in backside pocket of his pant.

Complainant gave signal to raiding party members. They immediately

rushed. Accused was caught red handed. Ten currency notes of

Rs.50/- denomination seized from Accused were found containing

anthracene powder. In ultra-violate rays hands, tainted money and

backside left pocket of pant of Accused were examined. They were

found glittering in ultra-violate raise. After trap Exhibit 43 post trap

Panchanama was recorded. Evidence of Complainant Solunke and

Panch witness PW-2 Deshpande is further supported by PW-3 Ashok

Wadje and PW-5 Dy.S.P. Shankarrao Sangu. Their evidence is on

the same line and they have fully supported demand and acceptance

of bribe by Accused. Nothing could be elicited in their piercing cross-

examination to disbelieve their testimonies.

18 Further after going through the evidence of PW-4

Rameshwar Parate it appears that he was sanctioning authority and

issued sanction to prosecute Accused vide Exhibit 63. Evidence of

PW-4 Parate and sanction order Exhibit 63 clearly show that order

was issued after due application of mind and sanction was legal and

valid.

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19 In the above premise this Court is of the view that

prosecution could succeed in establishing the charge against

Accused beyond reasonable doubt. No infirmity is noticed in the

procedure followed by authority concerned. Nothing is brought on

record to disbelieve the evidence of Complainant, Panch witness,

persons who accompanied Complainant, Investigating Officer and

sanctioning authority. Appeal is thus found without substance and

merits. Hence the following order -

O R D E R

I. Criminal Appeal No.507 of 2001 is dismissed.

II. Bail bonds of Appellant stand cancelled.

III. Appellant shall surrender to bail bonds to serve out

the remaining sentence.

[ INDIRA K. JAIN, J. ]

ndm