Bombay High Court
Asaram Dhansing Umre vs State Of Maharashtra on 11 August, 2016
Bench: A.I.S. Cheema
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.1 OF 2003
Asaram Dhansing Umre,
Aged-54 years, Occu:Service,
R/o-Nadarpur, Tq-Kannad,
Dist-Aurangabad.
...APPELLANT
(Ori. Accused)
VERSUS
The State of Maharashtra,
(Through P.S. Sillegaon,
Tq-Gangpur, Dist-Aurangabad).
...RESPONDENT
...
Mr.Ajinkya Patil Advocate h/f. Mr. S.B.
Talekar Advocate for Appellant.
Mrs. V.N. Patil-Jadhav A.P.P. for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 1ST AUGUST,2016.
DATE OF PRONOUNCING JUDGMENT: 11TH AUGUST, 2016.
JUDGMENT :
1. Appellant - original accused (hereafter
referred as "accused") has been convicted in
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Special Case No.5 of 1998 under Section 7 and
Section 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 ("the Act" in brief) on 22nd
November 2002 by Special Judge, Aurangabad.
2. The case of prosecution, in short, is as
follows:-
A)
Complainant (PW-1) Ganesh Baburao Shirsat
was running a shop at Lasur Station, Taluka-
Gangapur, Dist-Aurangabad. He along with other
shop keepers at the concerned shop had been served
with notices by the Gram Panchayat Lasur Station
to vacate the site as their occupation was by way
of encroachment. The accused was, at that time,
Village Development Officer Savangi and he was to
carry out the removal of encroachment. On 6th
August 1997 the complainant approached Police
Inspector Ambadas Savai (PW-4) who was working in
Anti Corruption Bureau, Aurangabad and filed
complaint Exhibit 9. Complainant had gone to the
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Anti Corruption Bureau along with one of the other
shop keeper Subhash Khandagale. Complainant
reported that at the concerned spot he had the
Tapari i.e. small stall which was in the name of
his father Baburao Shirsat from where he was
running the shop. He gave names of other
shopkeepers in the neighbour-hood who had also
received notices dated 25th July 1997. Four
persons out of more shopkeepers had moved the
Civil Court for stay. At that time when the
accused asked the Complainant to remove the
Tapari, they told him that they had moved the
Court and they would be getting stay order. The
accused told them that he will wait till they
bring the stay order and will not remove the
encroachment but each of the Tapari owner should
give Rs.125/- and thus total Rs.500/- to him. They
had agreed to this. They received the status-quo
order on 5th August 1997. After the status-quo
order was served on 5th August 1997, the accused
Village Development Officer demanded Rs.500/- and
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complainant had told him that he will collect the
money and give the same to the accused. The
accused told him to get Rs.500/- by afternoon of
7th August 1997 and give it at the Village
Panchayat. Complainant reported that he had
collected the money but they did not want to give
bribe to the accused and thus the complaint.
B)
Case of prosecution is that the
complainant had produced, along-with the
complaint, copy of notice (Exhibit 10) which he
had received as well as the status-quo order of
the Court (Article A). PW-4 P.I. Ambadas Savai
decided to lay a trap. He secured presence of two
Panchas from Government Dairy, namely, Shri Baban
Galdhar (PW-2) and one Shri Jadhav. They were
asked to come in the morning of 7th August 1997.
On 7th August 1997 the Panchas and complainant
reached the A.C.B. office. Subhash Khandagale was
also there. The complainant was asked to tell his
complaint to the Panchas and the Panchas also
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verified the written complaint. The complainant
had Rs.520/- with him. Rs.500/- which were in the
denomination of Rs.100/- each, were separated and
numbers were noted down. Remaining Rs.20/- and
other personal articles were returned to
complainant. The complainant and Panchas were
given demonstration as to how anthracene powder
works under ultra violet lamp. Procedure as to how
the trap would be conducted was explained. The
signal required to be given after the money is
accepted was also explained. Pre-trap Panchnama
(Exhibit 14) was prepared between 8.00 - 10.00
a.m. on 7th August 1997. The raiding party then
proceeded to Lasur Station from Aurangabad. At
Lasur Station, at some distance from the Gram
Panchayat, the complainant, Subhash Khandagale and
Shadow Panch PW-2 Baban Galdhar separated. While
these persons went ahead, others lay in waiting.
At the Gram Panchayat the complainant was asked by
the accused to hand over money to one Clerk Shri
Pokle. The complainant insisted that the accused
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should receive the money claiming that Pokle would
also ask for money. The accused asked the
complainant and Panch and Shri Khandagale to come
with him to his house. Shri Khandagale claimed
that he had to go and left. The complainant and
Panch went along-with the accused to his house and
accused accepted Rs.500/- at that place. Pre-
decided signal was given by the complainant and
the rest of the raiding party rushed in and caught
the accused. The tainted notes of Rs.500/- were
recovered from the pocket of the accused. Further
procedure regarding the raid was completed and
Panchnama Exhibit 15 came to be drawn. At the
house of accused, certain files and expenditure
voucher, cash book etc. were seized. The raiding
party came back from the house of the accused to
the Gram Panchayat and further documents relating
to the notice, status-quo order etc. were also
seized. Panchnama Exhibit 28 was done. Raiding
party came back to Aurangabad and further
procedures regarding sealing of anthracene powder
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etc. were carried out. P.I. Ambadas Savai (PW-4)
filed First Information Report Exhibit 36 in the
Police Station at Shillegaon and Crime No.6 of
1997 was registered on the same day in the
evening. Investigation was completed and charge-
sheet came to be filed.
3. Accused pleaded not guilty to the
offence. His defence is of denial. According to
the accused, for removal of encroachment labour
had been engaged and when the complainant had
requested to give time to him to get the stay
order, he was told that he would have to pay
labour charges and the amount received was towards
the said labour charges.
4. The prosecution examined four witnesses.
PW-3 Bhaskar Mundhe was then Chief Executive
Officer, Zilla Parishad, Aurangabad who has given
the sanction Exhibit 31.
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5. The trial Court considered the oral and
documentary evidence and discarded the defence and
holding the accused guilty, convicted him for
Sections above mentioned. Under Section 7 of the
Act, he was sentenced to suffer rigorous
imprisonment for six months and fine of Rs.100/-
and in default simple imprisonment for seven days.
Under Section 13 (1)(d) and 13 (2) of the Act, he
was sentenced to suffer rigorous imprisonment for
one year and fine of Rs.100/- and in default to
suffer further simple imprisonment for seven days.
6. I have heard learned counsel for the
Appellant - accused. It has been argued by the
learned counsel that the Appellant - accused was
taking steps against the encroachment done by the
complainant and others. They were naturally angry
with accused. Notice dated 25th July 1997 had been
issued and the encroachment was due to be removed
on 5th August 1997. On the request of the
complainant, the accused gave him breathing time
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to get orders from Civil Court. Fifteen labourers
had been engaged at Rs.25/- per labour. The
accused asked the complainant to pay the said
amount and the complainant had accepted to do so.
The counsel submitted that accused received
Rs.500/- was not disputed but the same was towards
labour charges as the labour had to be sent back
due to the status-quo orders. The learned counsel
referred to Section 53 (2) of the Maharashtra
Village Panchayats Act, 1958 to submit that there
is provision that expenditure for removal of such
encroachment shall be recovered from person who
has done the encroachment. It is argued that mere
acceptance of the money is not enough. It has to
be shown that it was towards illegal
gratification. According to the counsel, the State
failed to prove that the amount accepted was
towards illegal gratification.
7. Against this, the learned A.P.P.
submitted that in evidence the fact of acceptance
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of money is not disputed. According to him, under
Section 20 of the Act, there would be presumption
against the accused that the amount was accepted
as reward for not removing the encroachment. The
learned A.P.P. supported the reasons recorded by
the trial Court for convicting the accused.
8. I have gone through the oral and
documentary evidence available in this matter. The
evidence of the Complainant PW-1 Ganesh Shirsat
supported by Shadow Panch PW-2 Baban Galdhar is
regarding the execution of the trap. PW-4 P.I.
Ambadas Savai has also deposed as to how
complainant came along-with one Subhash Khandagale
and filed the complaint and how the presence of
Panchas was secured and pre-trap Panchnama
Exhibit 14 was executed. The evidence of PW-1,
PW-2 and PW-4 shows as to how the trap was
executed leading to Panchnama Exhibit 15 and
seizure of documents Panchnama Exhibit 28.
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9. Going through the evidence, the fact that
accused received Rs.500/- does not appear to be in
dispute. What is in dispute is the purpose for
which the amount was received. There is no dispute
regarding the fact that Gram Panchayat had indeed
issued notices like Exhibit 10 for removal of the
encroachments. There is no dispute that out of the
shopkeepers, four of the persons had approached
the Civil Court and on the day when the
encroachment was to be removed, they secured the
status-quo order. Looking to the evidence, it does
not appear to be in dispute that when the
complainant and others requested to wait a little,
the accused did not rush in to remove the
encroachment but waited for the status-quo order
to be brought.
10. The complainant PW-1 Ganesh deposed that
he had met the accused on 4th August 1997 and told
him not to remove the shops till they obtain the
stay order from the Court. He deposed that accused
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agreed not to remove the shops but they had to pay
Rs.125/- each totaling to Rs.500/-, to which he
agreed. Complainant deposed that on 5th
August 1997 they obtained the stay order and
served the same on Gram Panchayat at
about 5.00 p.m. His evidence is that accused told
him to bring Rs.500/- in the Gram Panchayat Office
on 7th August 1997 and he agreed. The evidence of
PW-1 Ganesh further is as to how he went to the
A.C.B. office and lodged complainant Exhibit 9 and
how the pre-trap Panchnama was conducted.
. Regarding the trap, complainant deposed
that on 7th August 1997 he along-with PW-2 Baban
and one Subhash Khandagale reached the Gram
Panchayat at about 11.00 a.m. He deposed that
after about 15 minutes, the accused came there and
entered his office and then came out of it.
Complainant deposed that he then told the accused
to collect the money but the accused told him to
give it to Shri Pokle. The complainant again
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changed his version to depose that after the
accused came out of the office, he asked Subhash
Khandagale about the money, who said that the same
had been brought and then the accused asked him to
pay the same to Shri Pokle. The complainant
deposed that he then told the accused that he
should himself receive the money as Shri Pokle may
disown to have received the money and would harass
them. The evidence is that the accused then asked
them to come to his room where he was staying. At
this time, Subhash Khandagale stated that he
wanted to go to Aurangabad and that the
complainant would give the money. According to the
complainant, he then along-with Panch Baban
Galdhar and accused went towards the room of the
accused and entering the same, the complainant
handed over the tainted money from his pocket and
gave it to the accused who collected the same and
kept it in his left pocket of the trouser.
11. If the above evidence of the complainant
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is kept in view, it can be seen that although the
complainant along-with others was near the Gram
Panchayat Office when the accused came there, he
ignored them and did not ask for the money. The
complainant himself offered the money which was
told by the accused to be handed over to Shri
Pokle but the complainant insisted that accused
should receive it. In this regard firstly, Subhash
Khandagale to whom the complainant says that the
demand was made at the time of trap, has not been
examined. Secondly, the evidence of Panch PW-2
Baban Galdhar when perused, the same is that the
accused when he came out from the office, asked
Khandagale if the money had been brought. He also
says that when Khandagale told the accused that
complainant had brought Rs.500/- for not removing
the shops, the accused told to give the money to
Shri Pokle but at that time complainant had
claimed that Shri Pokle would ask for more money
and so accused should collect the same. PW-2 Baban
also deposed that Khandagale had, at such point of
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time, left claiming he wanted to go Aurangabad and
these people had gone to the house of the accused
where the complainant paid the amount to accused.
12. Now, the cross-examination of the
complainant shows admission that they had erected
the shops in 1987 without obtaining permission
from Gram Panchayat. The complainant could not say
when the other three shop keepers had put up their
stalls. His cross-examination shows that these
four persons had met the accused and requested not
to take action till they get the stay, to which
the accused had said yes. The accused had told
them that if they failed to bring the stay by 5th
August 1997, then he would remove the structure.
Complainant accepted in cross-examination that the
accused had made all the arrangements to remove
the shops by engaging labourers and there were
about 20 labours. The further cross-examination
shows that notices had been served on some other
shop keepers like Bhausaheb Ghodke, Thole, Vinayak
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Chavan and Sukhdeo Wakale and they had also been
given notices for removal of encroachment on 5th
August 1997. Complainant admits that their
encroachment was also not removed although they
had not obtained any order from the Court. He
admits that from those persons labour charges were
also not demanded. Complainant admitted that Gram
Panchayat was entitled to recover charges for
removal of encroachment. His claim was that their
encroachment was not removed and so they were not
required to pay labour charges. The cross-
examination shows that the accused had given list
of 20 persons to the A.C.B. office. His cross-
examination shows admission that the complainant
had a feeling that it was injustice on the part of
the accused to demand the money from them only and
not from those other persons who were rich. The
reference was to the other shopkeepers who did not
go to the Court but still their encroachments were
not removed. The evidence is that those other
persons were from upper class and the complainant
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and Subhash Khandagale and one Sunil Gaikwad
belonged to Dalit caste. The evidence is that
nobody had earlier obstructed or asked for removal
of the structure. The complainant deposed that
even the Sarpanch Mrs. Nirmala Gaikwad had
supported them but still the accused had issued
notices to them. The complainant claimed that
Sarpanch Mrs. Gaikwad was Dalit and Boudh and she
had told the accused not to remove the structure
till the last but the accused did not pay heed to
her.
13. When this cross-examination of the
complainant is perused, the picture that emerges
is that the accused as Village Development Officer
had a responsibility to remove the encroachments
and the complainant and others who were the
encroachers, were trying to resist. Even the
Sarpanch appears to have sided with the
encroachers in violation of duty cast on the
Panchayat to remove such encroachments, as can be
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seen from Section 53 sub-clause (2) of the
Maharashtra Village Panchayats Act. The accused
appears to have been in a difficult situation
where the elected representative was siding with
the encroachers and in the situation appears to
have stated to the complainant that he will wait
for the day of 5th August 1997 in case the
complainant and others are able to get the Court
orders. In fact he had kept the labourers ready
for removing encroachment, in case the stay was
not brought. The further cross-examination of the
complainant shows clear admission that it was true
that 20 labourers were sitting there since morning
of 5th August 1997. He admitted that accused did
not remove their shops to honour their words till
5.00 p.m. He further admitted that it was true
that the accused had told them that they would be
required to pay labour charges. His evidence is
that as the demand for labour charges was made
without removing of the shops, hence he felt
annoyed and because of that he lodged the report.
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In the further cross-examination the complainant
in one breath admitted that he paid the amount of
Rs.500/- towards the labour charges. Then he again
retracted to claim that he has not paid Rs.500/-
towards labour charges. In the cross-examination,
the complainant admitted that accused had made
statement regarding labour charges even before
PW-4 P.I. Ambadas Savai.
14. If the Judgment of the trial Court is
perused, it appears to have ignored all this
evidence by observing [in Para 10 I) (b)] that no
doubt complainant had stated that he paid the
amount of Rs.500/- as the labour charges but in
the next breath he corrected himself while stating
that the said amount was not for the labour
charges. The trial Court then reasoned out that in
the light of this answer recorded by complainant,
it cannot be assumed that he had stated two
probable parallel stories. The trial Court,
however, further observed in Para 12 E of the
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Judgment that the accused was working as Village
Development Officer and in this back ground it is
quite possible that Complainant deposed in such
manner so that his father Baburao can retain the
possession of the premises and to exonerate the
accused, the complainant agreed to support the
defence. Trial Court observed that in view of such
possibility the complainant appears to have led
the evidence in such a manner on both counts. It
still went on to observe that it cannot be
concluded that two equal parallel stories or
versions had been put up by the complainant. I am
unable to agree with the trial Court. The same
Court appears to have observed in its Judgment
(probably on the basis of submissions) that it
does not appear that after 5th August 1997 the
Gram Panchayat acted upon the notice dated 25th
July 1997 to remove those shops "barring that of
Baburao Shirsat". Thus, what appears is that the
shop of father of the complainant was indeed
removed. If that is so, it was unlikely that the
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complainant would have given admissions in favour
of the accused just to help the accused getting
exonerated. The act of accused in not asking other
shopkeepers to pay labour charges cannot be
faulted as, when for part of the shopkeepers if
status-quo was ordered and action was dropped,
accused could not have asked those others to pay.
15.
In the present matter, apart from the
admissions given by the complainant, there is
indeed further evidence which supports the defence
that the accused did indeed claim payment of the
expenditures of labour. No doubt, if the
complainant had brought stay order, it would be a
matter of consideration whether or not claiming
labour charges was justified. However even if the
accused felt that in the situation the complainant
and the other three plaintiffs were liable for
costs, those expenses demanded cannot be
straightway branded as illegal gratification. In
the cross-examination of PW-2, Panch Baban Galdhar
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also the accused had put-up the defence that the
complainant had on his own offered the money to
the accused as labour charges. The witness denied
the suggestion. The witness further denied the
suggestion that before accused could prepare
receipt, the police trapped him. However, He
accepted that last receipt in the receipt book was
dated 6th August 1998. The evidence of PW-1, PW-2
and PW-4 read with trap Panchnama Exhibit 15 shows
that at the house of accused he did have
arrangements of an office where the account
registers and cash-book etc. were also there.
Thus, only because the complainant and Panch had
followed the accused home, by that itself one
cannot assume that the accused was not doing
official work from home. PW-2 Baban admitted in
the cross-examination that statement of the
accused was recorded and in that he did tell that
the amount was towards the charges of those
labourers. Now, the P.I. PW-4 Ambadas Savai has
kept back the first response of the accused
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regarding which the statement had been recorded.
State has given no reason why the said statement
was kept back. In the cross-examination PW-4 P.I.
Ambadas also admitted that the accused had put his
say on his own handwriting. He admitted that it
was not with the record. PW-4 Ambadas admitted
that he had not recorded statement of Clerk Pokle.
PW-4 Ambadas denied suggestions as to what was
mentioned by the accused in the statement. Such
denials would have to be ignored when this
investigating officer has kept back the statement
he admittedly received from the accused. A fair
investigation officer would have ascertained facts
from Clerk Pokle to see if he had instructions to
collect labour charges. There was no pre-trap
verification of demand and trap was laid on the
say of an encroacher who had already taken
advantage of indulgence from accused who was
otherwise un-accommodative and not ready to listen
to the Sarpanch also. Complainant clearly had an
axe to grind and wanted to protect encroachment.
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16. Looking to the above evidence, there is
room to doubt the claim of the complainant that
the amount demanded was towards the bribe.
Complainant was also agitated due to insistence of
the accused for labour charges. He brought about
the prosecution against the accused on the basis
of evidence which is seriously doubtful.
17. I have gone through the various reasons
recorded by the trial Court to discard the
defence. I am unable to concur with the trial
Court for reasons discussed above. The admissions
given by the complainant in his cross-examination
cannot be brushed aside on the reasoning as
recorded by trial Court that the complainant had
tried to give statement in favour of the accused
with object of saving his encroachment. I do not
find Complainant reliable witness.
18. For such reasons, the Appeal deserves to
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be allowed. Hence, I pass following order:
O R D E R
(I) Criminal Appeal is allowed.
(II) The impugned Judgment of conviction
and sentence as imposed by Special Judge,
Aurangabad in Special Case No.5 of 1998
on 22nd November 2002 against the
Appellant - accused is quashed and set
aside.
(III) The Appellant - accused is
acquitted of the charges punishable under
Section 7 as well as 13(1)(d) and 13(2)
of the Prevention of Corruption Act,
1988.
(IV) The bail bonds of the Appellant
are cancelled.
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(V) The order of the Special Judge,
Aurangabad, however regarding disposal of
the property is maintained.
[A.I.S. CHEEMA, J.]
asb/AUG16
