Ravindra Girjappa Kharatmal vs The State Of Mah
2016 Latest Caselaw 2970 Bom

                                                        Criminal Appeal No.579/2005
                                              1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                               
                                   BENCH AT AURANGABAD




                                                       
                            CRIMINAL APPEAL NO.579 OF 2005




                                                      
     Ravindra s/o Girjappa Kharatmal
     Age 39 years, Occ. Service as
     Tracer in the office of the
     Manjra Administration, Irrigation
     Department Sub-Division, Latur                    ...      APPELLANT




                                         
              VERSUS         
     The State of Maharashtra
     through Anti Corruption Bureau, Latur             ...      RESPONDENT
                            
                     .....
     Shri S.S. Choudhari, Advocate for appellant
     Shriu K.D. Mundhe, A.P.P. for respondent/ State
      


                     .....
   



                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       17th June, 2016.





                      Date of reserving judgment : 9th June, 2016
                      Date of pronouncing judgment : 17th June, 2016.





     JUDGMENT:

1. The appellant - original accused (hereafter referred

as accused) has been convicted by 2 nd Additional Sessions Judge

& Special Judge, Latur in Special Case No.4/1997 under Sections

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7 and 13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act 1988 (Act in brief). Being aggrieved by the

conviction as well as sentence passed, the present appeal has

been filed.

2. The case of prosecution in brief is as follows :

(a) P.W.2 Angad Vishwanath Jadhav - complainant

(hereafter referred as complainant) approached Anti

Corruption Bureau at Latur on 22.4.1997. He filed

complaint (Exh.65), interalia mentioning that from

agricultural field Gat No.148, part of the field standing

on the name of his father had been acquired in Manjra

Project and he wanted certificate of being project

affected. Accordingly, he had gone to the office of

Manjra Administration, Irrigation Department, Sub-

Division, Latur, where the accused was working.

Complainant filed application and time to time went to

the concerned office and asked for the certificate. He

was asked to bring copy of notice, award, C.C. form etc.

He procured the said copies and submitted the same to

the concerned office on 21.4.1997. Thereafter the

accused told complainant to give Rs.150/- if he wanted

the project affected certificate. Complainant told the

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accused that he is poor student and from where he will

bring the money. However, the accused told that

without paying Rs.150/- complainant would not get the

said certificate. Finding no way out, complainant agreed

to bring and pay Rs.150/- on next day. As the

complainant did not want to give bribe of Rs.150/-, he

was filing the complaint.

(b) The then Dy. S.P. Bhaurao Chavan (P.W.5) received the

complaint of the complainant. Dy. S.P. sent letter to

I.T.I., which was nearby and presence of two panchas -

P.W.1 Jayant Bagare and Sudhakar Vaijawade was

obtained. The complainant was introduced to the

panchas and complainant informed his grievances to the

panchas also and the complaint was seen by the

panchas. Signatures of the panchas were also obtained

on the complaint (Exh.65).

(c) It appears that, the Dy. S.P. decided to get verified if

there was really demand of bribe and the complainant

along with P.W.1 Jayant Bagire were sent to the office of

the accused. In presence of panch P.W.1 Jayant also

the accused made the concerned demand and Dy. S.P.

recorded panchanama Exh.24 regarding verification of

the demand. It was decided to lay a trap on the next

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day of 23.4.1997. Accordingly, on 23.4.1997 the

panchas and the complainant and Dy. S.P. assembled at

the A.C.B. office and earlier the Dy. S.P. and his staff

explained the use of anthracine powder and ultra violet

lamp for execution of such trap by A.C.B. Pre-trap

panchanama (Exh.25) was prepared. Necessary

instructions were give to the complainant and panchas

and the raiding party proceeded for execution of the

trap. While the complainant and panch P.W.1

proceeded to the office of the accused, the other raiding

party lay in waiting. At the time of execution of the

trap, the complainant P.W.2 and panch P.W.1 waited

near the office of the accused and when he came out, a

person was with him. Earlier, the accused asked the

complainant and the panch to first come along for tea.

They went and had tea, for which the complainant made

the payment. When they came back to the office, the

other unknown person left and when the complainant

and panch went inside, the accused demanded the

amount. The same was paid. The complainant gave

pre-decided signal to the rest of the raiding party when

accused accepted Rs.150/- from the complainant. He

was caught. Further procedure of examining hands and

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clothes in the light of ultra violet lamp was carried out

and the necessary panchanama (Exh.61) was prepared.

(d) Dy. S.P. Bhaurao Chavan then filed complaint Exh.78

with Police Station, Shivaji Nagar, Latur and Crime

No.22/1997 was registered. The necessary

investigation was carried out. Matter was put up to

P.W.3 Ajinath Londhe the Superintending Engineer who

was the appointing authority of the accused and

sanction Exh.68 was obtained. Charge sheet came to be

filed.

3. Charge was explained to the accused vide Exh.3 by

the trial Court under Section 13(2)(d) read with Section 13(2) of

the Prevention of Corruption Act. After recording some evidence,

the same came to be amended vide Exh.3(A) so as to add charge

under Section 7 also of the Act. The witnesses were recalled and

further examined.

4. Prosecution brought on record evidence of 5

witnesses and proved the concerned documents. The accused

pleaded not guilty to the charge and the cross-examination of

witnesses shows that the defence is of denial. With statement

under Section 313 of the Code of Criminal Procedure, accused

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filed his written say or statement explaining his stand to claim

that he was knowing panch P.W.1 Jayant Bagare since before as

the panch was Member of one Association of Instructors and he

was also such member. The complainant misunderstood that the

accused delayed giving of certificate. The application given by

complainant was incomplete till 21.4.1997. The certificate was

ready and even outward number had been put on 21.4.1997 and

there was no reason for the accused to demand money.

ig The

complainant tried to forcibly put the money in pocket of the

accused, which he resisted with both hands. At such time, the

accused was arrested.

5. I have heard learned counsel for the appellant -

accused. He referred to the defence statement by the accused in

his written say filed along with statement under Section 313, and

referring to the defence as taken therein, it is argued that the

case of illegal gratification was not made out. According to the

counsel, the accused has not committed any offence. The

sanction given by P.W.3 was without application of mind. P.W.3

was not even able to tell the description of papers which he had

received. The trial Court has resorted to wrong reasonings to

accept the evidence.

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6. Against this, the learned A.P.P. stated that, although

it is claimed in defence that panch P.W.1 Jayant was known to

the accused since before, there is no material to support such

evidence as the witness denied any such acquaintance. The

A.P.P. referred to the evidence to show that, there were repeated

demands by the accused and he ultimately accepted the amount

of gratification. According to A.P.P., there is nothing to show

that complainant had any enmity with the accused so as to

forcibly thrust amount in the pocket of the accused and to

unnecessarily trap him. The defence claimed in the written

submission was not claimed at the time of execution of the raid.

The evidence of P.W.3 shows that, he had applied his mind to the

material which was put up to him as well as considered rules and

granted sanction. The witness was unnecessarily put to memory

test to tell the description of papers he had received which the

person not regularly accustomed with police papers or court

papers may not be able to tell. The A.P.P. supported the

reasonings of the trial Court and sought dismissal of the appeal.

7. I have gone through the material which was brought

before the trial Court as well as the judgment of the trial Court. I

have considered the arguments and submissions raised. Going

through the judgment and reasons recorded by the trial Court, I

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find that the trial Court has exhaustively referred to the evidence

of witnesses on the various aspects of initial demand; demand at

the time of verification; demand at the time of execution of the

trap and subsequent recovery of the tainted currency from the

pocket of the accused. The various arguments being now raised

appear to have been raised in the trial Court also and the same

have been dealt with and answered by the trial Court. I now

proceed to see if the prosecution has duly established the offence

against the accused.

8. There is no dispute regarding the fact that the

complainant had in fact filed an application to the concerned

office where accused was working as Tracer. The complainant

had filed application for certificate referred to by the complainant

in evidence as "Shifaras Patra". What appears is that the

complainant was seeking certificate that he was project affected

person. Exh. 38 shows that the application was filed on

1.4.1997. The evidence of the complainant Angad is that he

completed the formalities regarding all the documents which

were required to be filed, on 21.4.1997. The evidence of

complainant shows that, after he submitted all the necessary

documents on 21.4.1997, the accused demanded Rs.150/- for

the Shifaras Patra. The complainant deposed that, he told the

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accused that he will make the payment on the next day. The

evidence is that, the accused told the complainant that he will be

able to obtain the certificate on payment of the amount. Thus,

this is the evidence regarding the initial demand.

9. The evidence of P.W.2 Angad read with the evidence

of Dy. S.P. Bhaurao Chavan (P.W.5) shows that the complainant

went to the A.C.B. on 22.4.1997 and reported his grievance

relating to the demand made. The evidence of Dy. S.P. shows

that he got the oral complaint made by the complainant typed

and the complainant signed the same. The document has been

proved as Exh.65. The evidence of complainant as well as Dy.

S.P. shows that the presence of two panchas was then made

available. The evidence of P.W.1 panch Jayant, P.W.2

complainant Angad and P.W.5 Dy. S.P. shows that after the

panchas were called, the complainant informed the panchas

regarding the demand which had been made and the complaint

was shown to the panchas. Thereafter, as per the instructions of

Dy. S.P., the panch Jayant and complainant Angad proceeded to

the office of the accused to verify the demand. The evidence is

that, the panch and complainant went to the concerned office.

Initially the accused was not present and both of them came

back to the A.C.B. Office. They again went at about 1.00 - 1.30

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p.m. At that time, the accused was seen in the office and the

complainant requested for the concerned certificate. Evidence is

that, the accused told that the work is not yet complete. The

evidence shows that, at such time, the complainant expressed to

the accused that he is a poor student and certificate may be

given to him. Accused told the complainant to pay the amount

and thereafter the work would be done. The panch appears to

have asked the accused as to how much amount is to be paid

and the accused told that the amount has already been stated to

the complainant. In presence of the accused, panch asked the

complainant as to what is the amount and the complainant said

that Rs.150/- has been settled. The accused told the

complainant to bring the amount on next day and he will get the

certificate. Both these witnesses then returned to the A.C.B.

Office and panchanama regarding the developments was

recorded vide Exh.24. Thus, this is the evidence regarding

accused making demand again when the Dy. S.P. sent forward

the complainant and panch to get verified if really demand was

there for illegal gratification.

10. The evidence of P.Ws.1, 2 and 5 then shows that, it

was decided to execute the trap on next day of 23.4.1997 and

these people assembled in the A.C.B. Office in the early morning.

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The evidence shows that, the complainant was asked to take out

his pocket contents and he produced Rs.172/-, as well as one

key of cycle lock and handkerchief etc. The Dy. S.P. separated

Rs.150/- and asked the complainant to keep Rs.22/- and other

articles with him. The complainant was asked to keep the

amount of Rs.22/- in his hip pocket. The handkerchief was asked

to be kept in left pocket of the pant. The cycle key was asked to

be kept in right pocket. ig The Dy. S.P. thereafter disclosed the

characteristic of anthracine powder and use of ultra violet lamp

to the panchas and complainant. Demonstration was carried out

as to how articles react to anthracine powder when seen in ultra

violet lamp. Head Constable Hajgude applied anthracine powder

to the amount of Rs.150/- (which were 3 currency notes of

Rs.50/- each). The numbers of the currency notes had already

been noted. After applying the powder, the notes were kept in

the left pocket of shirt of the complainant. The Dy. S.P. gave

necessary instructions to the panchas as to how the raid would

be executed. P.W.1 Jayant was to act as the shadow panch with

complainant while the other panch was to remain with remaining

raiding party. Pre-decided signal was fixed which the

complainant was to give if the amount is demanded and

accepted. After completing the necessary procedure regarding

administration of the anthracine powder, the panchanama Exh.25

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had been prepared. This is clear from the evidence of the above

three witnesses. The raiding party had then proceeded to the

office of the accused at about 11.45 a.m. It appears, panch

P.W.1 and complainant P.W.2 proceeded further while the

remaining raiding party stayed back at some distance in waiting.

11. The evidence of P.Ws.1 and 2 shows that they had

gone to the office of the Manjra project, which was on the first

floor. The room was closed. They came down and waited. They

had learnt that the accused had gone for tea. The evidence

shows that, after about 1 ¼ hour the accused along with one

unknown person got down from the first floor. The complainant

wished the accused and asked for the certificate. The accused

told the complainant and the panch to first come for a cup of tea.

The evidence shows that, the complainant, the panch, the

accused and the other unknown person then proceeded to one

Hotel Nayan, where they had tea. The complainant paid the bill

of the tea. Thereafter they returned to the office of the accused.

Then the said unknown person left. The evidence shows that,

thereafter the complainant demanded the certificate from the

accused and accused asked for Rs.200/-, saying that he will do

the work of the complainant for present as well as future also.

Complainant told the accused that, as per settlement, he had

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brought Rs.150/-. The accused demanded the same. The

evidence shows that, the complainant took out the amount by

right hand from his pocket and gave it to the accused. The

accused accepted the amount by his right hand and counted the

same with both hands and then kept the same in left pocket of

his shirt. The complainant told the accused that he has to watch

his vehicle which is outside and so saying, he came out and gave

the necessary signal. ig The evidence of P.Ws.1, 2 and 5 shows

that, on receiving signal, rest of the raiding party entered the

office of the accused and the hands of the accused were held.

When P.W.5 gave his identification to the accused, the accused

was frightened. When accused was asked if he has accepted any

amount of gratification, the accused could not speak. On

repeated asking, the accused accepted that he has received the

amount of gratification. When asked as to where he has kept the

amount, the accused gave indication with his eye and pointed

towards left pocket of his shirt. The complainant was then asked

to wait outside. The Dy. S.P. with the remaining raiding party

then carried out further procedure.

12. Thus, the above is the evidence regarding the

demand and acceptance of gratification by the accused at the

time of execution of trap.

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13. The evidence of the panch as well as the Dy. S.P.

shows that, the further procedure of verifying both the hands of

the accused in ultra violet lamp was carried out and it was seen

that there was blue shine. The same was the condition with

regard to the pocket of the shirt of the accused. The Dy. S.P.

verified the numbers of the currency notes also which had been

noted. In the search of the accused, in addition to the marked

currency notes of Rs.150/-, further note of Rs.50/- and two

currency notes of Rs.10/- each were also found. The additional

currency note of Rs.50/- which was found had shine of

anthracine powder from one side. Consequently, the Dy. S.P.

seized that note also. The complainant was thereafter called and

his hands and shirt was also checked and fingers of his right

hand and left pocket of his shirt showed the concerned sign of

anthracine powder. In the pocket of the complainant, Rs.11.50

were also found which were the balance after his making

payment for tea. The concerned procedure appears to have been

completed and detailed panchanama Exh.61 came to be drawn.

The prosecution has proved the verification panchanama Exh.24,

pre-trap panchanama Exh.25 as well as trap panchanama

Exh.61.

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14. In the cross-examination of panch Jayant, it was

suggested to him and he accepted that he had stated in his

police statement that during the visit of 22.4.1997, accused told

that complainant had not paid the amount and so his work

remained to be done. It was suggested to P.W.1 that this did not

reflect in the panchanama Exh.24. I do not find any substance in

this. It does not make any difference. Although the cross-

examiner led P.W.1 to depose that on 22.4.1997 they had gone

to the accused and accused had stated that his officer has gone

on visit and after his return, he will obtain signature and asked

the panch and complainant to come on next day to receive the

certificate, still the witness denied that the accused did not tell

the complainant to bring the amount to take the certificate. It

was suggested to P.W.1 that after the accused said that he will

take signature of the officer and they should come tomorrow,

thereafter there was no reason for them to enquire about the

amount. The witness accepted that this was true, but denied

that the accused did not tell them to bring the amount. It was

suggested to P.W.1 that he was office bearer of the Association

of Instructors. He accepted that he was only member of the said

association. P.W.1 denied the suggestion that the accused was

also member of the said association of State level. P.W.1 denied

that he was knowing the accused since before. Thus, although a

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defence has been taken that the accused and the panch P.W.1

both were members of such association, there is no admission by

P.W.1 and accused has not brought any other material to show

that there was any such earlier acquaintance.

15. It has been argued that, P.W.1 panch was under

pressure to depose for the A.C.B., being employee working at

I.T.I. Suggestion in this regard was denied by P.W.1.

ig The

suggestion put to P.W.1 that as the certificate was already

prepared with Outward Number, there was no reason for the

accused to claim the amount. The suggestion was accepted by

the witness. This, however, is argumentative. The substantive

evidence of the witness still remains that, although the certificate

had been kept ready and had been kept in Outward Register, still

the accused demanded the money and accepted the same. In

fact, the evidence shows that, after the accused was caught, and

the Dy. S.P. asked, the accused himself produced the Outward

Register with the certificate. There is nothing surprising if the

certificate is kept ready, but not delivered till the demand is met.

16. I have gone through the cross-examination of the

complainant also and although detailed cross-examination was

conducted, it does not appear that the complainant has been

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shattered in any manner.

17. If the judgment of the trial Court is perused, it can be

seen that the trial Court initially discussed the evidence of the

complainant with reference to the initial demand made by the

accused on 22.4.1997. Trial Court referred to the evidence of

P.Ws.1, 2 and 5 with reference to the evidence relating to

demand made at the time of verification and concluded (in para

17) that considering the evidence, prosecution proved the fact

that there was verification of the demand and in presence of

P.W.1 accused had demanded the amount of Rs.150/- from the

complainant to issue the certificate. Trial Court observed that,

there was same inconsistency among the evidence of P.Ws.1 and

2 in this regard, however, the evidence of P.Ws.1 and 2 when

read minutely, it did show that, at the time of verification, the

accused made demand of Rs.150/- to issue the certificate. The

trial Court, then discussed the evidence of witnesses with

reference to pre-trap preparations and found (in para 19) that

the panchanama Exh.25 has been duly proved by the

prosecution. Trial Court then discussed the evidence relating to

demand made and acceptance of the amount at the time of

execution of the trap. Trial Court compared the evidence of

P.Ws.1 and 2 and found that both the witnesses corroborated

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each other with reference to the details at the time of execution

of the trap panchanama. Trial Court discussed the evidence to

find that the evidence of these witnesses regarding the demand

and acceptance remained unshattered. Trial Court also discussed

the evidence relating to procedure followed after the accused was

caught, and concluded that the evidence of Dy. S.P. Bhaurao

Chavan was consistent with P.W.1 and there was full

corroboration with reference to the particulars recorded in the

trap panchanama Exh.61. It was argued before the trial Court

that the accused resisted the thrusting of currency notes and in

that process his hands may have come in contact with the

currency notes. Trial Court recorded that, it was not convinced.

Trial Court discussed the evidence to show that all fingers of both

the hands of the accused had the shine of anthracine powder and

had it been a fact that the accused resisted thrusting of the

currency, it would not be possible that all the fingers of both the

hands would come in contact. Trial Court did not find the

defence on this count to be probable and satisfactory. Trial Court

concluded that, it did not find any material inconsistency in

evidence. Trial Court discussed the evidence of Dy. S.P. P.W.5

Bhaurao Chavan that although the certificate was made ready, it

was kept by the accused with himself. The evidence of P.W.4

Bhanudas, the Sub-Divisional Engineer from the office of accused

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was discussed by trial Court to find that the accused was the

person who was responsible for dealing with the concerned file

and application dated 1.4.1997 which had been filed by the

complainant. Trial Court concluded in para 22 of its judgment

that the prosecution proved beyond reasonable doubt that the

accused had demanded and accepted Rs.150/- for issuing the

certificate Exh.35.

18.

I have gone through the defence statement which

was filed by the accused in the trial Court with his statement

under Section 313 of the Code of Criminal Procedure and which

has been referred to by the learned counsel for the appellant -

accused as his argument. I have already discussed that there is

no material to show acquaintance since before claimed by the

accused with P.W.1 Jayant. The defence taken in this written

statement that for two hours when they were together and gone

for tea on 23.4.1997, the accused had not made any demand,

has no substance. The evidence shows that, when P.Ws.1 and 2

had gone with the accused for tea as asked by the accused, there

was another unknown person with the accused and only after

that person left the accused made the demand. May be the

accused did not want to ask before that unknown person. Thus,

only because for the period they went for tea the accused did not

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ask for money does not mean that the accused was not making

any demand. He appears to have been waiting for that other

person to leave. The other defence taken in the written

statement that the amount was thrust in the pocket of the

accused also deserves to be ignored looking to the reasoning

already recorded by the trial Court on this count which I have

referred above. The defence that as the certificate was already

ready and even Outward Number had been put and so there was

no reason for the accused to make the demand on 23.4.1997 has

no substance. It happens that at times the documents are

prepared and still release is withheld till the demand is met. In

the cross-examination of Dy. S.P. P.W.5 Bhaurao, in para 10, he

accepted that, when the raiding party reached the office on

23.4.1997, the certificate was already having Outward Number.

The Dy. S.P. volunteered that the accused himself put the

Outward Number on the certificate and that it was kept in the

custody and the Outward Number was also in the handwriting of

the accused himself. Thus, it is clear that, the document though

was ready, was withheld as the demand was yet not met.

19. There is evidence of P.W.3 Ajinath Londhe, which

shows that, he is appointing authority of the accused. There is

no dispute regarding this. The evidence of P.W.4 Bhanudas,

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Sub-Divisional Engineer shows that the accused was the person

who was concerned with the handling of the application which

complainant had filed for project affected certificate and actually

the accused had handled and even prepared the certificate. The

evidence shows that, even the Outward number on certificate

had been given by the accused himself. The evidence of P.W.3

Ajinath shows that he had received file from the A.C.B. with

regard to the accused. The evidence is that, the witness found

that the file disclosed that the accused had been caught red-

handed in the trap. There was request to the witness to give

permission under Prevention of Corruption Act. The witness

deposed that he went through all the papers and accorded

permission to prosecute the accused. He proved the sanction

which is at Exh.68. His evidence is that, he accorded the

sanction after going through the rules. He deposed that, after

perusing the papers he did feel that the papers prepared by the

A.C.B. were proper.

I have gone through the cross-examination of this

witness also. This witness was deposing in 2004, for an incident

of 1997. In the memory test in cross-examination he stated that

he did not remember from which office he had received the

papers. He deposed that, on that day he could not say what was

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the description of the papers which he received from A.C.B.

Office. Although the accused is trying to argue that the witness

did not even remember the description of the papers which he

received, I find substance in the arguments of A.P.P. that an

unaccustomed Government servant working in the office of

Superintending Engineer may not be familiar with the terms like

the "complaint", "pre-trap panchanama", "trap panchanama" etc.

and only because he could not give the description, would not

mean that the witness is not reliable or that he has not examined

the papers which were put up to him or that he did not apply

mind. The trial Court has discussed the evidence of this witness

also and found that the sanction accorded was legal and valid

one. It rejected the arguments that the witness has not applied

his mind to the documents. I also do not find that it could be

held that the witness has given the sanction without examining

the documents. The sanction Exh.68 records the necessary

concerned details and it appears to have been duly given.

20. For reasons mentioned above, I do not find any

substance in the appeal. The evidence on record does establish

the offence of the accused and the trial Court has rightly

convicted and sentenced the accused.

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21. The appeal is dismissed. The accused shall surrender

to his bail bonds. Trial Court shall ensure execution of the

sentence.

(A.I.S. CHEEMA, J.)