Vinod Savalaram Kanadkhedkar vs The State Of Maharashtra
2016 Latest Caselaw 1046 Bom

                                           1
                                                                        CRI. APPEAL.128.04.odt


                   THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            BENCH AT AURANGABAD.




                                                                             
                         APPELLATE SIDE JURISDICTION




                                                     
                            CRIMINAL APPEAL NO. 128 OF 2004

    Vinod s/o Savalaram Kanadkhedkar,




                                                    
    Age : 46 years, Occu.: Government Service,
    At present working as Clerk with the 
    Office of Collector, Nanded, R/o : 84,
    'Tukai', Kousalya Nagar, Dhanegaon,
    Nanded.                                              ... APPELLANT




                                         
                                                        (Orig. Accused)

                      V E R S U S
                                 
    The State of Maharashtra,
                                
    through Police Station,
    Vazirabad, Nanded.                                   ... RESPONDENT
                                                        (Orig. Complainant)
      


                                       ...
    Mr. R. S. Deshmukh, Advocate for Appellant.
   



    Mrs. R. K. Ladda, APP for Respondent.
                                       ...





                                            CORAM  : INDIRA K. JAIN, J.

                                            DATE      : 31st March, 2016.





    ORAL JUDGMENT: 

     
    .                 This appeal takes an exception to the judgment and order 

dated 20th February, 2004 passed by the learned Special Judge,

Nanded in Special (ACB) Case No.2 of 1994 convicting the Appellant

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for the offences punishable Sections 7 and 13(2) of the Prevention of

Corruption Act, 1988 as under:

         Conviction under                              Sentence
             Section




                                                           
                    7             Simple Imprisonment for six months and fine of 

Rs.200/- in default Simple Imprisonment for fifteen days.

13 (2) Rigorous Imprisonment for one year and fine of

Rs.300/- in default Simple Imprisonment for one month.

2 Prosecution case in brief is as under :

On 12th September, 1993 Madhukar and Ramesh

brothers-in-law of Complainant Shivram Tukaram Kharde were

arrested by Shivajinagar Police Station, Nanded. They were taken to

Tahsil office in the evening. Accused was serving as junior clerk in

Tahsil office. He was to assist senior clerk PW-6 Padhye working in

the office of Executive Magistrate. Complainant was informed that his

brothers-in-law were arrested and so he rushed to Tahsil office. He

was told by Accused to come on next day as remand warrants were

already issued.

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3 On 13th September, 1993 Complainant Shivram with his

cousin Yadav had been to Tahsil office and submitted an application

for bail for Madhukar and Ramesh. They were asked to wait till

04:00 pm as learned Magistrate was busy in a meeting. It is alleged

that at 04:00 pm when Shivram met the Accused he demanded

Rs.300/- for releasing Madhukar and Ramesh on bail. Complainant

expressed his inability to pay the amount. He however paid Rs.100/-

to Accused. Madhukar was released on bail on that day. So far as

Ramesh was concerned it is further alleged that Accused insisted to

pay remaining amount of Rs.200/- and that time Complainant told him

that he had no money and he would come with Rs.100/- on next day.

4 On 14th September, 1993 Shivram approached A.C.B.

office and lodged report alleging therein that Accused demanded

money otherwise than for lawful purpose. On the basis of report trap

was arranged. It was successful and currency notes one of Rs.50/-,

two of Rs.20/- each and one of Rs.10/- denominations were found in

possession of Accused. Pre-trap Panchanama was prepared before

the actual trap. After trap was successful post-trap Panchanama was

drawn. Statements of witnesses were recorded. On completing

investigation papers were submitted to the competent authority for

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issuing sanction. Competent authority issued sanction to prosecute

the Accused. Thereafter charge-sheet was filed before the Special

Court.

5 Charge came to be framed against the Accused vide

Exhibit 13. He pleaded not guilty and claimed to be tried. Accused

submitted his written defence and also through cross-examination of

witnesses raised the defence that he accepted the amount for the

purpose of paying Advocate's fee for identifying surety, for fixing Court

fee stamp to bail bonds and stamps for affidavit. Accused submitted

that as per the instructions of his superior officer he was to assist the

litigants approaching the office for official work and there was no

motive to accept the amount as bribe as alleged by Complainant.

6 To substantiate alleged guilt of Accused prosecution

examined in all 6 witnesses viz. PW-1 Pandurang Ganpatrao

Wakadkar was a shadow Panch, PW-2 Shivram Complainant, PW-3

Yadav cousin of Complainant, PW-4 Investigating Officer Gopinath

Patil, PW-5 G.M. Madan sanctioning authority and PW-6 Vinayak

Padhye senior clerk in Tahsil office. Considering the evidence of

Complainant, his cousin and Investigating Officer Trial Court came to

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the conclusion that demand and acceptance was proved beyond

reasonable doubt. Regarding sanction evidence of PW-5 competent

authority was relied upon and sanction was held as legal and valid.

On the basis of evidence of above witnesses Trial Court held that

charge was proved beyond reasonable doubt and in consequence

thereof convicted the Accused. Hence this appeal.

7 Mr. Deshmukh, learned counsel for Appellant during the

course of arguments made the following submissions -

(a) Complainant Shivram had a reason to grind

an axe against Accused since his brothers-in-law

were not released on bail on the same day.

Learned counsel would submit that evidence of

Complainant was not corroborated by independent

witnesses but by his cousin PW-3 Yadav. It is

further submitted that shadow Panch PW-1

Pandurang turned hostile and he did not support

prosecution on material particulars. Learned

counsel submits that in this background reliance

could not have been placed on the interested

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witnesses.

(b) Commenting upon conduct of Complainant

learned counsel for Appellant submitted that

Complainant had been to Tahsil office but did not

inquire about the reason for arrest of Madhukar and

Ramesh. Madhukar gave Rs.100/- as stated in the

complaint but Complainant even did not bother to

inform Madhukar and Madhukar was not taken to

office of A.C.B. No where in the complaint it is

stated that amount was paid towards bribe. This

was a material omission which was ignored by the

Trial Court.

(c) According to learned counsel for Appellant

defence raised by Accused is most probable,

believable and acceptable in the circumstances in

which amount of Rs.100/- was accepted by

Accused. Accused came with a bold defence that

amount was required for the purpose of completing

formalities so that brothers-in-law of Complainant

would be released on bail. Learned counsel

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submits that Accused was duty bound to obey the

instructions of his superiors that no one attending

the office for official work should make any

grievance and the staff working should assist the

persons visiting the office for their work.

(d) Learned counsel submitted that on 13th

September, 1993 Madhukar was released on bail

after completing the formalities, but Ramesh could

not be released as formalities were not completed

on 13th September, 1993. Learned counsel

submitted that absolutely there is no iota of

evidence regarding demand and unless prosecution

proves demand, Accused cannot be convicted for

the offence alleged.

8 Per contra learned APP submitted that Complainant has

stated in complaint and also in evidence that Accused demanded the

amount towards bribe. She further submitted that trap was successful

and based on evidence Trial Court has rightly convicted the Accused.

9 On the basis of the material and submissions advanced

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on behalf of parties, following points arise for determination of this

Court.

(i) Whether prosecution has proved that on 13th

September, 1993 Appellant being a public servant had

demanded an amount of Rs.300/- as a remuneration

other than legal remuneration as a motive for releasing

brothers-in-law of Complainant on bail ?

(ii) Whether prosecution has further proved that

Appellant being public servant committed criminal

misconduct by securing amount of Rs.100/- by corrupt

and illegal means from Complainant by abusing his

position as public servant ?

(iii) Whether sanction to prosecute the Appellant

granted by PW-5 sanctioning authority Mr. Madan is legal

and valid ?

10 Findings to above points (i) to (iii) are in the negative for

the reasons to follow -

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REASONS

Most of the material facts are admitted in this case.

Accused does not dispute that at the relevant time he was attached to

Tahsil office as a junior clerk and he was a public servant. He did not

dispute that Complainant with his cousin Yadav had been to Tahsil

office on 12th September, 1993 and 13th September, 1993. He admits

that he accepted Rs.100/- from Complainant on 13th September, 1993.

In view of above admissions controversy would remain in

narrow compass and this Court has to consider the evidence of

Complainant, his cousin and Investigating Officer to find out whether

amount accepted by Accused was towards illegal gratification as

alleged by Complainant or towards completing legal formalities as

submitted by Accused.

12 It is stated by Complainant Shivram in his evidence that

on 12th September, 1993 after he came to know about arrest of

Madhukar and Ramesh his brothers-in-law he had been to Tahsil

office. He further stated that on 13th September, 1993 alongwith

Yadav he again attended the office and requested Accused to release

his brothers-in-law. It is further stated by Complainant that Accused

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demanded amount of Rs.300/-. He was unable to pay the same. He

paid Rs.100/-. Thereafter Accused prepared bail bonds for Madhukar

and his release order. He stated that for release of Ramesh, Accused

asked him to come with Rs.200/- on next day.

13 It further appears from the evidence of Complainant that

on 14th September, 1993 Complainant went to A.C.B. office and

lodged complaint against Accused. Complaint is proved at Exhibit 29.

This Court finds that evidence in respect of pre-trap and post-trap

Panchanamas would not be of much importance as Accused has

admitted that he accepted an amount of Rs.100/-. So far as demand

is concerned from the evidence of Complainant and report lodged by

him it is apparent that Complainant did not state before A.C.B. officer

that amount was demanded towards bribe by Accused. He admitted

in cross-examination that neither in the complaint nor in the statement

it is stated by him that Rs.100/- were demanded by Accused as bribe.

This omission is a material omission which shows that Complainant

made material improvement on demand of Rs.100/- as a bribe.

14 The defence could bring on record material contradiction

'A' which would indicate that he did not come before the Court with

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true facts and tried to play hide and seek.

15 Another witness PW-3 Yadav is cousin of Complainant.

He is an interested witness. PW-1 Pandurang shadow Panch was

declared hostile by prosecution and he did not support the

prosecution on demand and acceptance of alleged bribe. It appears

from record that PW-1 Pandurang was an independent witness.

Complainant and PW-3 his cousin had a grudge against Accused as

brothers-in-law of Complainant were not released on the same day on

bail. But PW-1 Pandurang had no reason to side the Accused or to

disown his role as Panch. If the evidence of PW-1 Pandurang is taken

into consideration, it is clear that he substantiates the defence of

Accused that amount was given for completing necessary legal

formalities as brothers-in-law of Complainant were to be released on

bail. Evidence of PW-1 Pandurang further makes the evidence of

Complainant and his cousin seriously doubtful.

16 Reverting to demand of alleged illegal gratification it would

not be out of place to mention here that law is well settled and

demand of illegal gratification is sine quo non for constituting offence

under the Act of 1988. Mere recovery of tainted money is not

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sufficient to convict the Accused when substantive evidence in the

case is not reliable unless there is evidence to prove payment of bribe

or to show that money was voluntarily accepted as a bribe. Even

mere receipt of amount by Accused is not sufficient to fasten the guilt

in the absence of evidence with regard to demand and acceptance of

amount as illegal gratification.

17 In the case on hand it can be seen from complaint Exhibit

29, evidence of Complainant, PW-3 Yadav and Investigating Officer

that Accused never made a demand as illegal gratification. Even

according to them demand was for getting Madhukar and Ramesh

released on bail. Investigating Officer admits in an unequivocal terms

that in all the documents he found that amount was asked for the work

of bail. Investigating Officer also admits that after payment of amount

Accused asked the Complainant to wait outside the office. It shows

the conduct of Accused. If at all he demanded and accepted the

amount towards bribe in natural course he would have asked the

Complainant to go away giving assurance that work would be done.

He did not do so. He asked Complainant to wait outside the office

that shows that defence raised by Accused that amount was asked for

completing the formalities of bail and as per the instructions of

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superior officers he was assisting the Complainant, appears to be

more probable, plausible, believable and acceptable.

18 Coming to sanction as required under Section 19 of the

Act of 1988, it appears from evidence of PW-5 sanctioning authority

Mr. Madan that documents which were submitted for according

sanction were the report of police and format of sanction order with

other documents. So far as other documents are concerned, neither

sanction order Exhibit 36 nor sanctioning authority had given

description of those documents.

19 Before considering the evidence of sanctioning authority it

is necessary to see the object of Section 19 of the Act. Under section

19, grant of sanction is a weapon to discourage vexatious prosecution

and it is a safeguard for the innocent, though not a shield for the guilty.

The essentials of a valid prosecution can be stated as under -

(i) The prosecution must send the entire relevant

record to the sanctioning authority including the

FIR, disclosure statements, statements of

witnesses, recovery memos, draft charge-sheet

and all other relevant material. The record so sent

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should also contain the material/document, if any,

which may tilt the balance in favour of the accused

and on the basis of which, the competent authority

may refuse sanction;

(ii) The authority itself has to do complete and

conscious scrutiny of the whole record so produced

by the prosecution independently applying its mind

and taking into consideration all the relevant facts

before grant of sanction;

(iii) The power to grant sanction is to be exercised

strictly keeping in mind the public interest and the

protection available to the accused against whom

the sanction is sought ;

(iv) The order of sanction should make it evident that

the authority had been aware of all relevant

facts/materials and had applied its mind to all the

relevant material.

(v) In every individual case, the prosecution has to

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establish and satisfy the court by leading evidence

that the entire relevant facts had been placed

before the sanctioning authority and the authority

had applied its mind on the same and that the

sanction had been granted in accordance with law.

20 In the above legal background evidence of PW-5

sanctioning authority is to be scrutinized. It is stated by PW-5

Mr.Madan that in 1993-94 he was Collector of District Nanded. It is

not in dispute that he was appointing and disciplinary authority of

Accused i.e. junior clerk. He states that in 1993, Accused was posted

as clerk in Tahsil Office, Nanded. He received documents from

Superintendent of Police (A.C.B.) as regards trap case against

Accused. The documents were containing a report of police, format

of sanction order and other documents. He studied those documents

and came to the conclusion that there was sufficient material against

Accused and passed sanction order to initiate prosecution against

Accused.

21 In the cross-examination sanctioning authority admitted

that in none of the documents it was mentioned that Accused

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demanded amount for his own use. Sanction order Exhibit 36 would

indicate that grievance of Complainant were reproduced in the

sanction order and then the sanctioning authority stated that upon

reading case papers of investigation in Crime No.212 of 1993 of Police

Station Vazirabad, Nanded, he was satisfied that Accused was to be

prosecuted for the offences under the Act of 1988. Neither the

sanctioning authority nor the sanction order refers to the description of

documents other than the complaint and format of sanction order

referred by sanctioning authority.

22 Needless to state that sanction order was not a mere

formality. It was for the sanctioning authority to apply its mind before

according sanction. Absence of description of documents referred by

sanctioning authority and only considering the grievances made by

Complainant would show lack of application of mind by competent

authority while according sanction. If at all the documents other than

complaint were taken into consideration those documents should

have been referred in the sanction order. This was not done and

therefore even the sanction accorded under Section 19 of the Act of

1988 by PW-5 Mr. Madan vide Exhibit 36 cannot be said to be legal

and valid.

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23 Apart from sanction, prosecution does not succeed for

want of trustworthy and reliable evidence on demand and acceptance.

In this premise impugned judgment and order of conviction and

sentence deserves to be interfered with. Hence the following order -

O R D E R

I. Criminal Appeal No.128 of 2004 is allowed.

II. The judgment and order dated 20th February, 2004,

passed by the learned Special Judge, Nanded, in

Special (ACB) Case No.2 of 1994, convicting and

sentencing Appellant Vinod s/o Savalaram

Kanadkhedkar for the offences punishable under

Sections 7 and 13(2) of the Prevention of

Corruption Act, 1988, is hereby set aside.

III. Instead Appellant Vinod s/o Savalaram

Kanadkhedkar is acquitted of the offences

punishable under Sections 7 and 13(2) of the

Prevention of Corruption Act, 1988.

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IV. Bail bonds of Appellant Vinod s/o Savalaram

Kanadkhedkar shall stand cancelled forthwith

V. Fine amount if deposited, shall be refunded to the

Appellant.

[ INDIRA K. JAIN, J. ] ndm