Bombay High Court
State Of Maharashtra vs Saheb Bardan Pande on 28 April, 2016
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 432 OF 2000
The State of Maharashtra. ... Appellant.
Versus
Saheb Bardan Pande.
Aged about 32 years,
Occ.: Sub-Engineer, M.S.E.B.,
Savakarwadi, Taluka-Mallegaon,
District-Nashik. ... Respondent.
---
Mrs. A.A. Mane, APP for State-appellant.
Mr. Shantanu R. Phanse, advocate for respondent.
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CORAM : SMT.SADHANA S. JADHAV,J
DATE : APRIL 28, 2016
P.C.:
1 The State being aggrieved by the Judgment and Order
passed by Special Judge, Malegaon dated 11/2/2000 thereby
acquitting the respondent of the offence punishable under Section 7,
and 13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act, 1988 has filed the present appeal.
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2 It is the case of the prosecution that the present
respondent was working as Sub-Engineer of Maharashtra State
Electricity Board and was posted at Malegaon. One Appa Shripad
Phasale had visited the office of MSEB at Savkarwadi on 12/11/1987
to enquire about the procedure for obtaining electrical connection in
his agricultural land. According to him, there was abundant water in
the well situated in Gat No. 633 and 637 of village Zadi. The
complainant Appa Phasale had met the respondent herein. That Mr.
Pande had given him relevant information and had directed to
produce the 7/12 extract of the land alongwith certificate to show his
ownership over Gat No. 633 and 637. It was also necessary to file a
certificate showing that the mother of the complainant is a marginal
land holder. According to Mr. Phasale, he had obtained all the
requisite certificates and filed an application to the concerned office.
The respondent herein had given him A-1 form and asked him to get
it signed from his mother. The form was given to the complainant on
16/11/1987.
3 According to the complainant, he had revisited the office
in December, 1987. However, he did not get proper response from
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the respondent. It is alleged that in January, 1988 respondent had
demanded Rs. 3000/- for the purpose of giving electricity connection
on his agricultural land. The said amount was negotiated and settled
to Rs. 2500/- on 1st February, 1988 the complainant had allegedly
parted with the amount of Rs. 1000/- in favour of the respondent.
However, the respondent was insisting upon the payment of the
remainder amount.
4 On 8/2/1988 the complainant had expressed his inability
to satisfy the gratification but had assured the respondent that he
would put in the best of his efforts. Since he was not inclined to give
illegal gratification, he had approached the office of Anti-Corruption
Bureau, Nashik and lodged the report.
5 Pursuant to the report filed by the complainant, the Anti-
Corruption Bureau, Nashik had arranged the trap. Two public
servants were summoned to act as panchas. The complainant was
given necessary instructions. The trap was scheduled on 11/2/1988.
According to the prosecution, the accused had accepted the amount
and the trap was successful. Thereafter, DYSP of Anti-Corruption
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Bureau lodged a report at the police Station, on the basis of which
Crime No. 14 of 1988 was registered against the respondent under
Section 161 of the Indian Penal Code and Section 5(1)(3) read with
Section 5(2) of the Prevention of Corruption Act, 1947. The sanction
for prosecution was obtained and charge-sheet was filed.
It is pertinent to note that the prosecution examined four
witnesses to bring home the guilt of the accused. P.W. 1 Amar
Ramdas Nikam had acted as panch to the trap. P.W. 2 Appa Phasale
is the complainant. P.W. 3 Smt. Rama Vitthal Raichur was the typist
of the sanctioning authority Mr. Ghisad and P.W. 4 Narayan Dalvi,
who happens to be the investigating officer.
7 P.W. 1 Amar Nikam happens to be the shadow witness to
the trap. He was working as clerk in Zilla Parishad, Nashik. He has
deposed before the court in respect of pre-trap panchanama. P.W. 1
has deposed before the Court that at about 11.40 a.m. they met Mr.
Pande in the office. Mr. Fasale wished him. Thereafter, Mr. Pande
had asked Mr. Fasale to wait for some time and later on informed him
that he has to attend the meeting. While he was leaving his office, he
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had asked Mr. Phasale whether he had brought the money.
Thereafter, Mr. Phasale and P.W. 1 followed him outside the office.
Mr. Pande asked money and thereafter, had accepted the same. The
raiding party had approached and informed Mr. Pande that they were
from Anti-Corruption Bureau. In the cross-examination, P.W. 1 has
categorically stated that while leaving the office, he was holding the
keys in his right hand. It is further admitted that Mr. Pande did not
ask the complainant whether he had brought money while proceeding
towards door but had asked him only after he had left the office.
8 At this stage, learned Counsel for the respondent rightly
submits that P.W. 1 appeared to be in a confused state of mind and
has not proved that the accused had questioned about the amount or
demanded the same. It is further submitted that on the date of
incident, there was no work pending with the accused and therefore,
there was no reason for demanding gratification.
9 P.W. 2 Appa Shripat Phasale is the complainant. It is
admitted by the complainant that he had approached Mr. Pande and
equired about the procedure. At that time, Mr. Pande had given him
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a list of documents to be submitted including 7/12 extract from
village-talathi. It is admitted by P.W. 2 that after getting instructions
from Mr. Pande, he obtained 7/12 extract. It is also admitted that he
had only given one 7/12 extract alongwith his application although
he had given two 7/12 extracts to the Anti-Corruption Bureau. It is
also admitted that the application at Exh. 38 does not bear thumb
impression of his mother. He has feigned ignorance about the scribe
of Form at Exh.38. It is also admitted that the certificate of being a
marginal holder was not annexed alongwith his application given to
Mr. Pande. It is also admitted that at the time of filing complaint to
Anti-Corruption Bureau P.W. 2 was aware that M.S.E.B. office at
Malegaon has sent his papers to M.S.E.B. Office at Dabhadi as per
procedure. It is also admitted that he has annoyed with the M.S.E.B.
since it had not supplied him electricity earlier and therefore, he had
visited Malegaon office twice to make enquiry. He was under
impression that his application was not forwarded from M.S.E.B.
Office, Savakarwadi to Malegaon.
10 P.W. 3 Smt. Rama Vitthal Raichur was working as typist
in the office of M.S.E.B. Office at Bandra with Joint Director of
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M.S.E.B., Bombay Mr. Ghisad who was the sanctioning authority in
the present case. The prosecution has examined P.W. 3 to prove that
valid sanction was accorded for prosecuting the accused respondent.
It cannot be said that the sanction has been proved. She has also
admitted that the sanction order does not bear her name as typist
who had typed confidential correspondence. According to her, she
had typed her initials on the forwarding letter. She has also admitted
before the Court that it was the first time she had stated that Mr.
Ghisad had given dictation to her which she had typed. Hence, it
cannot be inferred that there was valid sanction in the eyes of law to
prosecute the respondent.
11 P.W. 4 Narayan Shankar Dalvi is the complainant as well
as the investigating officer. He has deposed before the court that Mr.
Phasale had written it in his own hand writing that he had no money
transaction with Mr. Pande.
12 The learned Counsel for the respondent submits that in
fact, at the time of incident, there were 5 to 6 persons seated in the
office of the accused. That the accused had not enquired about the
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identity of the shadow witness and that the learned Special Judge had
held that the accused would not have accepted illegal gratification in
the presence of stranger. Learned Special Judge has rightly held that
the previous demand was not proved neither the prosecution has been
able to establish that on 11/2/1988 an amount of Rs. 1,000/- was
accepted by the accused. It appears that the grant of valid sanction
has not been proved by the prosecution. It is true that grant of
sanction to prosecute is not an idle formality. It is a protection
granted to the public servant that they should not be exposed to
criminal prosecution only because they choose to work within the
frame work of law, rules and regulations.
13 In the case of Suraj Mal v/s. State (Delhi
Administration) reported in AIR 1979 SC 1408, the Hon'ble Apex
Court has observed as under:
"In our opinion, mere recovery of money divorced from the
circumstances under which it is paid is not sufficient to convict
the accused when the substantive evidence in the case is not
reliable."
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14 The learned Counsel for the respondent submits that the
respondent has retired on 28/2/2012, but he has been denied of
pensionery benefits since the appeal against acquittal is pending. It is
admitted position in law that whenever two views are possible, the
Court shall take into consideration the view that is favourable to the
accused in the interest of justice. In the present case, the appellant
has been acquitted in the year 2000. There are no reasons to
interfere with the findings recorded by the learned Special Judge.
Hence, the Criminal Appeal stands dismissed and disposed of
accordingly.
(SMT. SADHANA S. JADHAV,J)
