Bombay High Court
Pramod Namdeo Choudhary vs State Of Maha on 9 June, 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.213 OF 2003
Pramod s/o Namdeo Choudhary,
Age-47 years, Occu:Medical Officer,
Cottage Hospital, Chopda,
At present residing at 102,
Darshan Apartment, Air India
Housing Society, Bhivandi,
Dombiwali (West), Taluka-Kalyan,
Dist-Thane.
...APPELLANT
(Orig. Accused)
VERSUS
The State of Maharashtra,
Through Deputy Superintendent
of Police, Anti-Corruption, Dhule.
...RESPONDENT
...
Mr. K.C. Sant Advocate for Appellant.
Mr. S.M. Ganachari, A.P.P. for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 5TH MAY,2016.
DATE OF PRONOUNCING JUDGMENT: 9TH JUNE, 2016.
JUDGMENT :
1. Appellant, a Medical Officer had been
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convicted by the Special Judge, Amalner in Special
Case No.11 of 1999 under Section 7 of the
Prevention of Corruption Act 1988 ("Act" in brief)
and sentenced to suffer rigorous imprisonment for
one year and to pay fine of Rs.750/- and in
default to suffer simple imprisonment for four
months. He has been further convicted of offence
punishable under Section 13(2) of the Act and
sentenced to suffer rigorous imprisonment for one
year and to pay fine of Rs.750/-, and in default
to suffer simple imprisonment for four months. The
sentences have been directed to run concurrently.
Thus, this Appeal against conviction.
2. In short, the case of prosecution is as
under:-
(A). On 28th September 1993 complainant Ramsing
Walvi (PW-1) approached the Dy.S.P. PW-5 Prabhakar
Shankar Patil in the Anti Corruption Bureau (ACB),
Dhule and filed complaint (Exhibit 12). The
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complainant, resident of Hisale, Tq-Shirur, raised
grievance that he had taken his wife Bairabai for
treatment to the Cottage Hospital at Chopda as she
was complaining of stomach ache. He met the
Appellant-accused at the hospital. The accused
examined the wife of the complainant and told him
that the uterus of the wife would have to be
removed in an operation and it would require
expenses. The complainant asked that it is
Government Hospital and so why expenses were
required. Accused said that he would properly do
the treatment and operation and if complainant
would go to some other doctor outside, he would
have to spend Rs.5000/-. Complainant said that he
is poor person and does labour work and does not
have such money. Accused told him that at least
Rs.1000/- should be given and he would operate
wife of the complainant. Complainant told the
accused that he does not have Rs.1000/- but he
will bring Rs.500/-. Accused insisted that he
should give Rs.800/-. Complainant told the accused
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that he will bring Rs.500/- some-how and remaining
Rs.300/- he would give later on. Consequently, the
wife of complainant was admitted in the hospital
on 24th September 1993. Complainant came back to
his village and told the facts to one Arjun Dada
and asked him for Rs.500/-. Said Arjun told the
complainant that he would arrange the money by
Monday i.e. 27th September 1993. Arjun agreed to
bring the money to Chopda and give it to the
complainant. Accordingly complainant, on 27th
September 1993, was waiting for Arjun when the
accused - Dr. Choudhary asked him if he had got
money and complainant told that a person would be
coming with the money. Accused told him that on
that day the operation would not be possible and
when complainant receives money, operation will be
done on Tuesday (i.e. 28th September 1993).
Complainant told accused that he is waiting for
the person to come and moment he comes, money
would be available. Accused told complainant to
give the money when there is no crowd or
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complainant may call him aside.
. The complaint further mentioned that the
said Arjun came on 27th September 1993 at about
1.00 p.m. and gave complainant Rs.500/- and at the
same time told complainant that in Government
Hospital money is not required to be paid and he
should not pay the amount. Consequently, the
complainant came to the ACB office on 28th
September 1993 and was filing the complaint.
(B). Dy.S.P. Prabhakar Patil (PW-5), on
receipt of such complaint on 28th September 1993,
sent letter to Public Works Department (PWD),
Dhule and secured presence of two Panchas i.e.
Dhudku Malich (PW-2) and Ramrao Patil (PW-4).
Thereafter procedure regarding introduction,
explaining the complaint and use of anthracene
powder was completed. The complainant and Panchas
were given guidance as to how the trap is to be
executed. The amount of Rs.500/- which was with
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the complainant, was kept in the right pocket of
the pajama of the complainant. He was instructed
that when the accused accepts the currency notes,
he should give signal by folding his right hand
full sleeve by his left hand. Necessary pre-trap
Panchnama Exhibit 16 was executed.
(C) According to the prosecution, thereafter
the trap party proceeded to Chopda by Jeep. Some
distance before the hospital, complainant and
shadow Panch PW-2 Dhudku got down and went ahead.
They reached the hospital at about 3.20 p.m.
However, they could not meet accused even till
6.30 p.m. as he was busy in operations and
consequently they came back. The trap party, then
went back to Dhule. Panchnama regarding such
failed attempt was prepared and the pajama of the
complainant, which still had the marked and noted
currency, was sealed. The concerned Panchnama
Exhibit 26 was completed and the complainant and
Panchas were asked to attend early morning on the
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next day i.e. 29th September 1993.
(D). On 29th September 1993, the trap party
again went to Chopda and like before, waited at
some distance. The complainant and shadow Panch
PW-2 Dhudku went ahead. They reached the hospital
at about 9.10 a.m. According to the case of
prosecution, there were some patients with the
accused and when they came out, the complainant
was called in and he went along with shadow Panch
PW-2 Dhudku and the accused asked if he had
brought the money and complainant gave the same to
the accused, who received it by his left hand and
kept the same in his left hand back pocket of the
pant. The complainant gave signal to the rest of
the trap party and immediately the Dy.S.P. and
others entered the cabin of the accused and he was
caught.
(E). As per prosecution, thereafter the
necessary procedure of checking as to reflection
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of anthracene powder was completed and it was
found that the back pocket of the pant of accused
reflected in the ultra violet lamp and his left
hand fingers has also reflection of anthracene
powder. The Trap Panchnama (Exhibit 17) was
completed and the Dy.S.P. went and filed FIR
(Exhibit 31) to the police station at Chopda and
Crime No.16 of 1993 came to be registered on 29 th
September 1993 at 8.15 p.m. Thereafter further
procedures regarding trap were completed. Letter
was given to Tahsildar to prepare map and map
(Exhibit 24) was got prepared at the hands of PW-3
Waman Badgujar (City Surveyor). The papers
regarding the trap and other concerned documents
were sent to the State Government and sanction of
the State Government was obtained. The order of
sanction (Exhibit 33) was issued on 5th February
1996 under signatures of PW-6 Linganna Ippewar,
Under Secretary to the Government of Maharashtra.
3. The accused came to be prosecuted. He
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denied the charge for Sections mentioned. His
defence is of denial. According to him, the wife
of complainant was admitted in the hospital and
she was required to be operated but there was no
anesthetist posted at the said hospital and there
was no arrangement of blood bank and medicines
required for the operation were not available in
the hospital stock. Such things were required to
be arranged by the concerned person on personal
basis. These conditions were explained to the
complainant, however, he being illiterate Adivasi
and who did not even understand Marathi properly
and speaks Ahirani, did not understand although
the things were explained to him 2-3 times. He had
the feeling that in the Government Hospital,
everything is free and under misunderstanding he
went and filed complaint. On the day of incident,
accused was busy examining the patients and
suddenly found officials of ACB coming in and they
removed the other patients and the officer pointed
out towards money lying on the table and asked as
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to what is the same. At that time, the accused
noticed that on his left hand side on table notes
of Rs.100/- had been kept. Accused explained that
he did not know about it and the officer asked him
to handover that money to the another person
standing there. Accused had got frightened as to
what is happening and understood that these are
police officials and thus did as he was told. As
such, he picked up the money and gave it to that
person. In view of the directions which were given
to him, the accused took out things from his shirt
and pockets and showed the same to the raiding
party. According to the accused, it appeared that
the complainant quietly came in the cabin when he
was busy with other patients and put the money on
the table and had gone away and the raid had been
carried out.
4. The prosecution, however, has relied on
the evidence of PW's 1 to 6 regarding the
complaint which was filed and how earlier there
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was attempt made on 28th September 1993 but the
same could not be completed and the trap was
finally executed on 29th September 1993. The
prosecution relied on the documents proved and the
oral evidence brought on record. The trial Court
considered the evidence and the defence and
convicted the accused, as mentioned.
5.
I have heard learned counsel for
Appellant. Grounds have been raised and it is
argued that there is evidence of the complainant
showing that he simply went in the cabin of the
accused and kept the money on table and came out.
Even on earlier occasion there was no evidence
given by complainant of demand of money by the
accused as illegal gratification. The factual
conditions of the Hospital were explained to the
complainant but he mis-understood and under that
concept he went and filed complaint. The admitted
fact is that he is a simpleton and not good in
Marathi and speaks Ahirani. According to the
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learned counsel, the oral evidence of PW-1 and
PW-2 does not match with the documents which have
been proved and the evidence of PW-5 Dy.S.P.
Patil. The demand and acceptance has not been
established. If the accused had really demanded
money, he would have made himself available to
receive money even on 28th September 1993. The
evidence of PW-1 and PW-2 does not even match
regarding what signal was given by the
complainant. Complainant being illiterate,
misunderstood expenses for bribe and trial Court
wrongly concluded that only because it was told to
the complainant that money would be required,
bribe was demanded.
6. Per contra, the learned A.P.P. submitted
that there is sufficient evidence of six witnesses
on record and which has been accepted by the trial
Court. The learned A.P.P. referred to the
reasonings recorded by the trial Court to submit
that the Judgment of the trial Court is well
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reasoned and the offence was proved beyond
reasonable doubts. From Rs.800/- asked, Rs.500/-
were received by the accused. The accused had
demanded the money to give better treatment to the
wife of the complainant. The complainant being
illiterate, did not give complete details in his
oral evidence but admitted the contents of his FIR
and thus the offence was properly proved.
According to A.P.P., the evidence of complainant
needs to be read in such context.
7. The learned counsel for the accused in
reply further argued that sanction was not duly
accorded and PW-6 Linganna Ippewar did not have
authority to give sanction. It has to be proved
that amount accepted was towards gratification and
the same is not proved in the present case.
8. I have gone through the oral and
documentary evidence as well as the Judgment of
the trial Court and the reasons recorded by it for
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the conviction. I am keeping in view the arguments
raised before me. It would be now appropriate to
refer to the evidence.
9. I have already referred to the relevant
and material contents of the complaint Exhibit 12
which the complainant filed with Dy.S.P. Patil. In
the complaint, there are portions put into
inverted commas regarding the conversation which
took place between the accused and the
complainant. PW-5 Dy.S.P. Patil tried to claim in
the cross-examination that the complainant
narrated the incident to him in Marathi and
Ahirani language. However in the further cross-
examination, he deposed that the contents written
in the complaint Exhibit 12 in inverted commas,
were translated by him while writing the
complaint. The complainant himself in cross-
examination, stated that he narrated the
information to the officer in Ahirani language. It
appears "Ahirani" is an Indo-Aryan language in
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Maharashtra. It is spoken in parts of Khandesh
region. It consists of Khandeshi proper, and the
Dangri and Ahirani dialects. A Marathi speaking
person also would require to strain to understand
what the person speaking Ahirani is saying. There
is no evidence of Dy.S.P. Patil that he is well-
versed in Ahirani language. I am discussing this,
as the accused has taken a defence of
misunderstanding by the complainant as to what the
doctor was explaining to him. Although the Dy.S.P.
Patil (PW-5) claimed that he did not feel that
complainant is illiterate person having very
little understanding and he could not follow
instructions and conversations with him, there is
material to the otherwise. Trap Panchnama
Exhibit 17 itself shows that when the shadow Panch
was asked as to what happened in the course of
trap, he stated (page 11 of the said Panchnama),
that the complainant after giving money went
outside the room and doctor called for the case
papers, and the said Panch kept standing in front
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of the doctor and doctor asked him as to what is
his relation with the complainant and he told the
doctor that Ramsing (i.e. complainant) is his
uncle and he does not understand anything and so
he has come with complainant. Thus, the documents
of the prosecution itself indicate that the Panch
himself, at that time, had formed the opinion that
the complainant does not understand things and
thus requires assistance.
10. Although an exhaustively detailed
complaint Exhibit 12 was recorded before Dy.S.P.
Patil, if the evidence of complainant himself is
perused, it reveals his simplicity. The
complainant deposed that his wife was suffering
from stomach ache and so he had earlier taken her
to one Dr. Lathi at village Hisale, who asked him
to take his wife to the doctor at Taluka place and
so he brought his wife to Cottage Hospital,
Chopda. Complainant PW-1 deposed that the accused
examined his wife and admitted her in the
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hospital. Complainant deposed that the doctor
advised that the wife is required to be operated
and that uterus was required to be removed.
Complainant deposed that doctor told him that some
of the medicines were not available at the Cottage
Hospital, Chopda. Doctor told him, near about
Rs.500/- to Rs.700/- were required for the
purchase of medicines. According to him, he told
the doctor that he did not have the said money.
Thus, this is the only evidence of the complainant
himself recorded in the Court, regarding the
alleged demand before the trap was executed.
. In his further evidence, complainant
claimed that he went back to his village and met
one Arjun Dada and took Rs.500/- from Arjun and
according to him, as the doctor was demanding
money from him, he went to Dhule to trap the
doctor. According to him, he told the police at
the said office that doctor is demanding money
from him and in Civil Hospital no money is
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required. Although the evidence mentions that the
complaint was shown to the complainant and he
deposed that contents of the complaint are
correct, the evidence does not say that in the
Court the complaint was read over and explained to
the complainant. As such, I am not impressed by
the argument of A.P.P. that whatever is lacking in
the oral evidence of the complainant, be treated
as filled up because he has proved the complaint.
11. Now, coming to the trap as was tried to
be executed on 28th September 1993, the evidence of
complainant shows that the officer concerned had
applied powder to the currency notes and the notes
had been kept in the back of his pant as per
instructions of the officer and then he and other
person present in the office came to Chopda at
about 10.00 a.m. The doctor was busy in operation
and could not meet them. According to him, they
waited till 4.00 - 5.00 p.m. and then returned
back to Dhule. Thus, the complainant deposed that
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the amount had been kept in his pant pocket. In
fact, even PW-2 shadow Panch Dhudku in cross-
examination accepted the suggestion that after
application of anthracene powder to currency
notes, the complainant had kept the said notes in
the right side pocket of his pant. PW-2 Dhudku was
asked in the cross-examination and accepted that
he knows difference between Pajama and Pant. He
was referred to the Panchnama Exhibit 16 and asked
and he stated that he did not point out that the
word "Pajama" used in the Panchnama was incorrect.
The pre-trap Panchnama Exhibit 16 and Trap
Panchnama Exhibit 17 as well as Panchnama
Exhibit 26 referred to Pajama of the complainant
as regards keeping of money in the pocket of
complainant. Now, the complainant as well as PW-2
Dhudku, both referred to keeping of money in the
Pant.
12. Evidence of complainant further is that
after the earlier day, they went back to Dhule and
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he deposited the amount of Rs.500/- in the office.
He claimed that he stayed at the office itself and
woke up at 4.00 a.m. and thereafter all of them
had come to Chopda at about 9.00 am. Evidence of
complainant is that doctor was in his room and 2-3
persons were sitting in his room and he entered in
the room of the doctor and kept the amount on the
table of the doctor and came out of the room.
According to him, the officer had asked him to
give signal after receipt of the money by the
doctor and so after coming out, he gave signal to
the officer by scratching the head. His evidence
is that thereafter persons accompanying him, went
in the room. He was further asked in the
examination-in-chief and he deposed that officers
asked him whether doctor has received the amount
and he had replied that he had kept the amount on
the table.
13. I have already referred to the earlier
incident where complainant claimed that doctor
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told him that medicines were not available and
money would be required for purchase of medicines,
which could hardly be considered as demand of
gratification. Now even for the incident of trap
execution, the complainant simply deposed that he
went in the room and kept the money on the table
and walked out. In fact in the cross-examination
this complainant deposed that on the day of trap,
he alone went inside the room and kept the money
on the table and all other persons were waiting
outside. Thus, this complainant even did not claim
that the shadow Panch PW-2 Dhudku came inside the
room with him. For the above reasons, either at
the pre-trap stage or at the trap stage also,
there is no evidence of the complainant that the
doctor demanded the money as gratification or for
himself. The complainant, who appears to have been
of the concept that in Government Hospital no
amount is required, appears to have been told by
said Arjun (as is mentioned in Complaint
Exhibit 12) that no money is required in the
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Government Hospital and he should not pay the
money and make a complaint. He accordingly,
appears to have made the complaint and at the time
of execution of trap, went and kept the money on
the table and came out and he says that he gave
the signal. The complainant, under such concept,
may have given signal to the rest of the trap
party, but I do not think that the same can be
construed as he giving signal that the money has
been accepted. In fact complainant specifically
stated to the officer that he had kept the amount
on the table. The complainant was not declared
hostile. He was not confronted with the contents
of his complaint to the contrary. The prosecution
accepted the examination-in-chief of the
complainant as it is and thus the prosecution
cannot disown the examination-in-chief of material
witness like the complainant. There is no
substance in the argument of the A.P.P. that the
Court should look at the illiteracy of the
complainant and the gaps may be allowed to be
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filled up by reading his evidence along with the
complaint.
14. Now coming to the evidence of shadow
Panch Dhudku, he claims that he was called to the
ACB Office on 28th September 1993 and reached there
at 9.30 a.m. If his evidence is read, it would
appear as if he was called on 28th September 1993
and pre-trap procedure was completed and the whole
trap was executed on 28th September 1993 itself.
This witness did not claim that on 28th September
1993 they had gone to the hospital and waited and
came back as the accused could not become
available being busy in operations.
. PW-2 Dhudku gave details regarding the
procedure which was explained regarding pre-trap
and deposed as to how the currency reflected blue
light in ultra violet rays. He deposed that the
notes were kept in packet. Then he referred to
execution of Panchnama Exhibit 16. According to
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this witness, they then went to the Cottage
Hospital at Chopda. According to him, they went
near the cabin of the accused. The accused was
busy in examining patients and they were waiting
outside. Then one person came from the cabin and
asked who is Ramsing (complainant). This shadow
Panch says that thereafter they both entered the
cabin of the doctor. The evidence of this Panch is
that doctor asked Ramsing whether he has brought
the money, to which he replied yes. The doctor
asked as to how much amount he has brought and
complainant replied Rs.500/-. This Panch says that
the complainant assured that he would give
Rs.300/- to the doctor on Sunday. Doctor then
asked Ramsing to give the amount which he had
brought with him and the witness says that
complainant gave Rs.500/- to the doctor. Although
this Panch refers to such conversation between the
complainant and accused, the complainant himself
has not spoken anything in this regard.
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. Further evidence of the shadow Panch PW-2
Dhudku is that doctor received the amount in his
right hand and kept in his pocket. Now, the whole
case of the prosecution, as appearing from
documents, is that the doctor was handed over
money which was received by the doctor by his left
hand and kept in his back pocket on the left side.
Thus, this shadow Panch has given different
statement as to how the money was received and
kept. Although the case of prosecution is that the
signal fixed was of moving the sleeves of shirt,
complainant deposed that he had given signal by
scratching his head. PW-2 Dhudku claims that
signal was given by moving of sleeves. Although
this witness had, in his examination-in-chief,
deposed that currency notes were kept in packet,
in cross-examination he accepted that when the
currency notes were taken out in the hospital,
they were not in packet. In cross-examination PW-2
Dhudku deposed that accused kept the currency
notes in the right pocket of his pant. He deposed
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that accused gave currency notes to the police by
taking out notes from his pocket by his left hand.
No doubt the witness stated that in the ultra
violet rays glow was found on the left hand and
left pocket of the accused, but the witness was
clearly making different statements. Even if some
concession was to be given considering the fact
that trap was executed on 29th September 1993 and
witness was deposing in 2002, still the
contradictions are with reference to material
aspects. In the background where the complainant
himself has not deposed clearly regarding demand
for gratification and receipt of the money by the
accused himself, much weight cannot be given to
the evidence of PW-2 Dhudku.
15. The second Panch PW-4 Ramrao Patil and
Dy.S.P. PW-5 Prabhakar Patil have given evidence
as to how the complainant had filed complaint and
earlier effort was made on 28th September 1993 but
could not succeed and again an attempt was made on
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29th September 1993 and the trap was executed
successfully. Their evidence goes to prove the
documents of Panchnamas Exhibit 16, 17 and 26.
However, for reasons discussed earlier, there is
serious doubt whether the demand was by way of
gratification and if really the accused received
the money. It is necessary for the prosecution to
prove that attempt was made to receive
gratification other than legal remuneration.
16. I have gone through the Judgment of the
trial Court. On the point of demand, the trial
Court referred to the evidence in Para 14 and 15
of its Judgment and observed that even the defence
of the accused seems to be that he admitted that
he has demanded money from the accused but for
purchase of medicines. I have gone through the
written say of the accused which was filed at the
time of his statement under Section 313 of the
Code of Criminal Procedure. What the written
statement mentioned was that, there was no
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anesthetist posted for the operation and there was
no arrangement of blood bank and such arrangements
were required to be made on personal basis and
medicines are required at the time of operation
as well as subsequent to operation which were not
available and all these difficulties had been
reported to the superiors and as operation cannot
be refused, these facts were being explained to
the patients. According to the written say, the
complainant was illiterate Adivasi who did not
even understand Marathi and he was explained all
this but he could not understand. The written say
does not say that the accused told the complainant
to bring and give money. Thus, the trial Court
appears to have filled in the gap in the case of
prosecution by observing that it seems that
accused has admitted that he demanded money but
for purchase of medicines. The trial Court
concluded that the evidence of complainant coupled
with the defence is sufficient to prove that
accused had demanded money from the complainant. I
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do not think that this can be upheld. Apart from
the evidence of demand, it is necessary for the
prosecution to prove that the demand was by way
gratification.
17. The trial Court then discussed point
regarding acceptance from Para 16 of its Judgment.
Trial Court was aware that PW-2 Dhudku had not
stated regarding withdrawal of trap on the first
day. In Para 17 of the Judgment, trial Court
observed that there was no doubt that in his
evidence complainant had not stated about the
demand and acceptance of bribe amount by the
accused person. Trial Court observed that however
from the evidence of the complainant it appears
that he has given a pre-arranged signal to the
raiding party and this pre-supposes that the
doctor has accepted the amount. I find myself in
disagreement. Firstly, even the alleged signal
given by the complainant was not the signal which
was pre-determined by the trap party. Secondly,
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merely giving of such signal does not mean that
the doctor accepted the amount. In the face of
evidence of the complainant that he told the
officer after the signal that he had kept the
money on the table, would show that the
complainant did not say that the accused accepted
the amount.
18.
The trial Court discussed that the
evidence of PW-2 shadow Panch Dhudku and PW-4
Panch Ramrao did not match as to in which pocket
the doctor had kept the money. Trial Court
observed that minor contradictions here and there
are bound to be there when the evidence was being
recorded after so many years. I agree that there
can be minor contradictions and some concession
can be given to witness when the evidence is being
recorded after some years, however, when it
relates to major contradictions, the concession
cannot be given. PW-2 Dhudku has been in service
as clerk with PWD Department and in his evidence
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gave so many other details including conversation
at the time of trap, but regarding handing over
the money, claimed that the accused received the
same by right hand, although the case of
prosecution is that it was received by left hand.
In the set of present facts, this is major
contradiction.
.
In this context, before discussing the
further Judgment of the trial Court, mention needs
to be made that PW-5 Dy.S.P. Patil admitted in
cross-examination that the doctor did not appear
to be left hander. If this is so, ordinarily the
person would not receive the money by left hand.
The case of prosecution is little surprising where
it claims that the money was received by left hand
and kept in left hand pant pocket. The evidence of
Dy.S.P. Patil shows that at the time of execution
of the trap, personal search of the doctor was
taken and one handkerchief, one vicks bottle,
Rs.175/- cash and thread were found in his right
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side pant pocket. (A small fact. Though not
conclusive, but a Doctor with heavy pressure of
patients, if corrupt should have had better money
in his pocket.) Ordinarily right handed person
would receive money by his right hand and would
ordinarily keep the same with the other money
which he keeps in his pocket. Here it appears as
if the money received by way of gratification was
not to be mixed with the other articles in his
pocket and so it is claimed that it was received
by left hand and kept in left hand pant pocket
while the legitimate lay in the other side pocket.
It appears that the money had been kept by the
complainant on the left hand side of the table of
the accused and thus trap party appears to have
claimed that the money was received by left hand
and kept in left hand back pocket.
19. Coming back to the Judgment of the trial
Court, trial Court observed that the prosecution
witnesses, namely Panchas and Investigating
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Officer had stated that the currency notes were
found with the accused when tested under ultra
violet rays. The trial Court observed that there
was no reason for the Investigating Officer to
involve the accused falsely and the positive test
found on the clothes of the accused goes to show
that he had accepted the amount.
.
When I have perused the evidence of PW-5
Prabhakar Patil, in the cross-examination he
stated that he did not find the doctor to be left
hander. He further stated that doctor kept the
notes on the left side of the table where he was
sitting. He deposed that when the doctor refused
that he had accepted the money, they had asked him
to put the currency notes on the table. The
defence of the accused also is that he was asked
to take up the money which was kept on the table
and handover the same to the person present
(second Panch PW-4 Ramrao). It is also the defence
of the accused that he was asked to take out
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articles from his pocket and show and he had
accordingly followed the instructions. Keeping
such evidence of the Dy.S.P. in view, as
mentioned, I am not impressed by the strange
reasoning of the trial Court that reflection of
anthracene powder on the clothes and hands of the
accused is enough to conclude that there was
acceptance of the amount. When basic evidence of
demand and acceptance is wanting, the periphery
evidence as to how clothes reacted to anthracene
powder is not of much help. I do not find that the
Judgment of the trial Court convicting the
accused, is maintainable regarding the demand and
acceptance.
20. Although the learned counsel for
Appellant - accused argued that the sanction given
by PW-6 Linganna Ippewar was not proper and legal,
I have gone through the evidence of PW-6 Linganna
in the trial Court and the detailed and exhaustive
sanction order Exhibit 33 issued by the Under-
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Secretary in the name of the Governor. There does
not appear to be any defect as far as regards the
sanction is concerned. This has been accepted by
the trial Court. I do not think that on that count
there is an error in the matter.
21. I thus, hold that the prosecution failed
to prove that the accused demanded money by way of
gratification for himself or that the accused had
accepted the money by way of gratification. For
reasons discussed, there is room for serious
doubts and it would not be appropriate to uphold
the conviction. I thus pass the following order:-
O R D E R
(I) The Appeal is allowed.
(II) The conviction and sentence, as
imposed by the Special Judge, Amalner
vide the impugned Judgment dated 5th March
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2003 in Special Case No.11 of 1999, is
quashed and set aside.
(III) The Appellant - original accused
is acquitted of the offence punishable
under Section 7, 13(2) of the Prevention
of Corruption Act, 1988. His bail bonds
are cancelled.
[A.I.S. CHEEMA, J.]
asb/MAY16
