The State Of ... vs Nandkishor S/O Yadaorao Deshmukh
2016 Latest Caselaw 2770 Bom

                                                        1                     apeal153.02.odt


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                        NAGPUR BENCH AT NAGPUR




                                                                
                           CRIMINAL APPEAL NO.153/2002

          The State of Maharashtra,
          through Deputy Superintendent of Police,
          Anti Corruption Bureau, Chandrapur. .....APPELLANT




                                                               
                                   ...V E R S U S...

          Nandkishor s/o Yadaorao Deshmukh,




                                                
          aged about 28 years, Occ. Sub Engineer,
          M.S.E.B. Rajura.    ig                                  ...RESPONDENT
     -------------------------------------------------------------------------------------------
     Mrs. M. H. Deshmukh, A. P. P. for appellant.
     Mr. N. C. Phadnis, Advocate for respondent.
                            
     -------------------------------------------------------------------------------------------

                                                  CORAM:- V. M. DESHPANDE, J.
                                                  DATED :- 13.06.2016
      


     J U D G M E N T

1. The State is before this Court since it is aggrieved by

the judgment and order of acquittal passed by the learned Special

Judge, Chandrapur dated 21.12.2001 in Special Case No.6/1989

whereby the learned Special Judge acquitted the respondent of the

offence punishable under Section 161 of the Indian Penal Code

and Section 5 (i) (d) read with Section 5 (ii) of the Prevention of

Corruption Act.

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2. I have heard Mrs. M. H. Deshmukh, the learned A.P.P.

for the State and Mr. N. C. Phadnis, the learned counsel for the

respondent in extenso. Both of them took me through the notes of

evidence and record and proceedings in detail.

3. In the present judgment, the respondent will be

referred to by his original position. The prosecution case is as

under:

In the year 1988 accused Nandkishor Yadaorao

Deshmukh was working as Sub-engineer in M.S.E.B. office Rajura.

The complainant Prabhakar Sherki with his father and family

members was residing at village Aheri in Rajura Tahsil. They

wanted electric connection for their house. So his father had filed

an application for electric connection with M.S.E.B. office, Rajura.

Complainant Prabhakar Sherki got electric fitting done at his

house from the Contractor and deposited the electric connection

charges of Rs.450/- in Cooperative Bank and filed receipt of that

amount and electric fitting completion certificate of the contractor

with the application.

3 apeal153.02.odt

Thereafter, in that connection complainant Prabhakar

Sherki met the accused Nandkishor Deshmukh in his office and

made request to install electric meter at his house. On that

Mr.Deshmukh said to him that he will send Mr. Borkute, lineman

for installation of electric meter. Accordingly, Mr.Borkute, lineman

came to village, Aheri on 16.06.1988. That day he installed meter

in some house but meter in the house of complainant was not

installed. Then Mr. Borkute, lineman went to the house of

complainant and assured him that he will come on the next day

i.e. on 17th June, 88 and will install meter in his house. But on

17th he did not turn up. He visited Sherki's house on 18.06.1988

and installed meter at the house of complainant and electric

supply was given. In the evening on the same day at 7 p.m. he

again visited the house of complainant and made demand of

Rs.150/- to the complainant for installation of electric meter and

said that amount of Rs.100/- was for Sub-Engineer Mr. Deshmukh

and Rs.50/- for himself. But the complainant told him that he was

not having money and sent Mr. Borkute back.

Thereafter, on 26th June, 88 when complainant was not

at his residence. Mr. Borkute, lineman came to his house and said

to his younger brother that if his brother (Complainant) will not

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pay the amount he will disconnect the electric supply. Thereafter

on 04.07.1988. Complainant went to the office of M.S.E.B. and

met Mr. Borkute. That time Mr. Borkute showed displeasure as

the amount demanded was not paid and said Sub-Engineer

Mr.Deshmukh was insisting for the amount of Rs.100/- of his

share and he had taken the complainant to Mr. Deshmukh and he

stated to Mr. Deshmukh that complainant did not pay the amount

of Rs.150/-. On that Deshmukh asked the complainant to pay the

amount as per the demand of Mr. Borkute. After they came out of

the chamber of Mr. Deshmukh, complainant said to Mr. Borkute

that yet he had not received his salary and he will arrange for the

amount within 2 to 4 days and will pay the same on 08.07.1988.

On that Mr. Borkute asked him to bring the amount of Rs.150/- on

08.07.1988 at 10 a.m. in the office.

But the complainant was not willing to pay the amount

so he went to the office of Anti Corruption Bureau, Chandrapur on

07.07.1988 and lodged oral report against Mr. Borkute which was

reduced into writing. Complainant read the contents of the

complaint, admitted its correctness and signed it. With that report,

he filed receipt in respect of depositing the amount of Rs.450/- in

the Bank for electric meter by challan. After receipt of the

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complaint, officer of the A.C.B. sent letter to the Executive

Engineer for sending two persons to act as panch witness. Panch

witnesses were called. Then demonstration about the effect of

phenolphthalein powder on the solution of Sodicum Carbonate

with water was given to them. Necessary instructions to be

followed at the time of raid were given to complainant and panch

witness. The amount of Rs.150/- consisting of one currency note

of Rs.100/-, two currency notes of denomination of Rs.10/- and

one currency note of Rs.10/- brought by the complainant for

paying the same as bribe to Mr. Borkute was produced by the

complainant. Phenolphthalein powder was applied to the

currency notes and they were kept in the pocket of complainant.

Then panchanama no.1 mentioned all the details as to what

transpired there, was prepared and trap was laid.

4. Then all the members of the raiding party went to

Rajura. The complainant and pancha no.1 met the accused

Borkute and Borkute said to the complainant that he had already

received the amount of Rs.150/- from Mr. Deshmukh and they

should pay the entire amount to Mr.Deshmukh. So they went to

Mr. Deshmukh. One person named Mr. Wankhede was present in

6 apeal153.02.odt

his office. Mr. Deshmukh came out of his chamber and gave signal

to the complainant and there he made demand of amount to the

complainant. Then he paid the amount to which phenolphthalein

powder was applied to the accused Mr. Deshmukh. Accused

Deshmukh accepted the same and was keeping it in the pocket.

That time signal was given as per instructions. Then other

members of raiding party rushed there, and caught hold of the

hands of accused. Currency notes were seized from him, under

seizure memo. Necessary procedure was followed to ascertain

whether phenolphthalein powder was attached to the hands of the

accused, pocket of his full pant, currency notes and fingers of the

complainant. Phenolphthalein powder was found attached to the

hands of accused and complainant when fingers of their hands

were dipped in the solution of sodium carbonate. The said solution

was seized by taking the same in different bottles. Full pant of the

accused was also seized. After completion of procedure of raid,

detail panchanama no.2 was prepared.

5. The Investigating Officer Zalke (PW7) prepared a

report of the incident and sent it to the Police Station, Rajura. On

the basis of the said report, a document was registered as Crime

7 apeal153.02.odt

No.370/88 at Police Station, Rajura. After registration, further

investigation was carried by Zalke himself.

6. In order to establish the guilt of the accused, the

prosecution has examined in all 8 witnesses and also relied on

various documents. From the evidence, which is brought on

record, it is clear that it was Borkute, who has demanded Rs.150/-

from the complainant. It is not the case of the prosecution that at

any point of time, the accused demanded any amount. According

to the prosecution, Borkute demanded Rs.150/- by saying that out

of the said amount of Rs.100/- for the accused and Rs.50/-for

himself. Perusal of Exh.-20 complaint shows that it was filed

against Borkute and not against the accused. In that view of the

matter, the approach of the learned Judge of the Court below is

right in scanning the evidence as to whether there is sufficient

material to prove that the accused has demanded Rs.100/-

through Borkute the lineman.

7. According to the evidence of the complainant, Borkute

the lineman after installation of electric meter on 18.06.1988 had

taken the meal in the house of the complainant itself and then he

made demand of Rs.150/-. On the said day, the amount was not

8 apeal153.02.odt

paid to Borkute. It has further the evidence that the complainant

was informed by his brother that the lineman Borkute had come to

his house and demanded the amount and also given the message

to meet him. According to the evidence, the lineman Borkute

threatened the brother of the complainant that he will discontinue

the electric supply, if the amount is not paid.

According to the complainant's evidence he went to the

M.S.E.B. office after 5-6 days after receiving the message. More

specifically, he went to the M.S.E.B. office on 04.07.1988. This

conduct on his part is unnatural. If really there was a threat of

disconnection, normally he would have visited the office

immediately. In my view, this aspect of the matter is also properly

considered by the learned Judge of the Court below.

Not only in the complaint but also in his substantive

evidence the complainant has not stated that the accused has

demanded any amount from him.

8. In my view, appreciation of the evidence on the part of

the learned Judge of the Court below cannot be termed as

perverse one.

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Noticing the tainted notes in position of the accused is

an admitted fact. However, in view of the recent Apex Court

decision reported in V. Sejappa ..vs.. The State of Karnataka;

2016 ALL SCR (Cri) 902, presumption under Section 20 of the

Prevention of Corruption Act cannot be drawn on mere basis of

recovery of money from the accused. The Hon'ble Apex Court has

reiterated the view that the prosecution is under a bounden duty

to prove that what was paid was an illegal gratification. In the

present case, there is no iota of evidence to show that at any point

of time, the amount was demanded by the accused or he has

received the amount by way of illegal gratification.

9. By now, the interference at the hands of the appellate

Court is well settled. Merely because another view is possible that

itself is not sufficient to replace its view in place of the view taken

by the learned trial Judge. The appellate Court can intervene and

set aside the order of acquittal if it is noticed by the appellate

Court that the appreciation of the evidence by the Court below is

perverse and/or the view taken by the Court below is not a

possible view on the basis of the available material.

10 apeal153.02.odt

The learned A.P.P. was unable to point out any

perversity in the impugned judgment. In my view, the reasoning

given by the learned Special Judge is on the basis of the available

evidence as brought on record by the prosecution.

10. In that view of the matter, interference is not

warranted. Consequently the appeal is dismissed.

                              ig                 JUDGE
                            
     kahale