Bhaskar Vishwanath Thorat vs State Of Maha
2016 Latest Caselaw 465 Bom

                                            [1]      CR. APPEAL 697/2002 - JUDGMENT




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD




                                                                                  
                         CRIMINAL APPEAL NO. 697 OF 2002




                                                          
    Bhaskar Vishwanath Thorat,
    Age : 48 years, Occu.: Service,
    R/o Pavan Nagar, CIDCO,




                                                         
    Aurangabad, Dist. Aurangabad                               .. Appellant
                                                              (Orig. Accused)

       VERSUS




                                                 
    The State of Maharashtra                                   .. Respondent

                               ----
                                  
    Mr. M.A. Tandale, Advocate for the appellant
    Mr. N.T. Bhagat, A.P.P. for the respondent/State
                                 
                               ----

                                               CORAM    : M.T. JOSHI, J.
                                               RESERVED ON   : 11/02/2016
                                               PRONOUNCED ON : 09/03/2016
      
   



    JUDGMENT :

Heard both sides.

2. The present appellant was convicted by the

learned IIIrd Adhoc Additional Sessions Judge cum

Special Judge, Aurangabad for the offences

punishable under section 7, 13(1)(d) r/w. 13(2) of

the Prevention of Corruption Act vide judgment and

order dated 20/11/2002 passed in Special Case No. 10

[2] CR. APPEAL 697/2002 - JUDGMENT

of 1998. He was sentenced to suffer rigorous

imprisonment for 6 months and to pay a fine of

Rs.100/-, in default to suffer simple imprisonment

for 7 days and to suffer rigorous imprisonment for 1

year and to pay a fine of Rs.100/-, in default to

suffer simple imprisonment for 7 days, for the above

offences, respectively. Hence, the present appeal.

3. The prosecution case, in short is as

under:-

. That the appellant was working as a Senior

Clerk in the office of District Treasury, Aurangabad

when the incident has occurred. The father of the

complainant - PW1 - Mukesh Husharsing Lahare was to

receive GIS amount of Rs.18000/- from Medical

College and Hospital, Aurangabad. The bill of

Rs.18000/- was submitted to the Treasury office on

10/05/1997. According to the complainant, on

17/07/1997, he went to the Treasury office for grant

of bill of his father. He requested present

appellant for sanction of the bill. The appellant

[3] CR. APPEAL 697/2002 - JUDGMENT

made a demand of Rs.300/- as bribe. After

negotiation, as the complainant stated that he can

arrange only Rs.100/-, the appellant asked him to

bring that much amount on the very same day by 3.00

pm. Accordingly, on the very same day, complaint at

Exhibit 9 was filed.

. PW3 - Investigating Officer Police

Inspector - Daulat More conducted the investigation.

He collected two panch witnesses from the office of

Executive Engineer, Maharashtra State Electricity

Board, Aurangabad including PW2 - Shankar Rathod.

The contents of the complaint were read over to

them. Decoy money of Rs.100/- brought by the

complainant was smeared with anthracene powder. The

same was kept in the chest pocket of the

complainant. Thereafter, the raiding party reached

the treasury office.

. The complainant and the panch witness

Rathod went to the table of the appellant. Thereat,

the complainant again requested the appellant for

[4] CR. APPEAL 697/2002 - JUDGMENT

sanction of the bill at the earliest. Upon that,

the appellant took out the file from the cupboard

which contained the bill. The appellant therefore

enquired, as to whether the complainant has brought

the amount. The complainant told that as per the

direction of the appellant, the amount was brought.

The appellant therefore demanded the money. The

complainant therefore presented the decoy money.

The appellant accepted the same by his right hand

and placed it in his left side chest pocket. He

thereafter stated that the bill would be sanctioned

and on 21st of the same month, the cheque would be

issued in the Medical College and Hospital office.

Thereafter, the pre-determined signal was given by

the complainant.

. The Investigating Officer thereafter

apprehended the appellant and carried his

examination under the ultra-violet light which

proved the transfer of the money. Later-on the

complainant was also examined, which proved the

above fact.

[5] CR. APPEAL 697/2002 - JUDGMENT

. Thereupon, the Investigating Officer

conducted further investigation. He sought sanction

to prosecute the appellant from the Senior Treasury

Officer, Aurangabad. Upon according of the

sanction, the chargesheet came to be filed.

. During trial, initially, the appellant was

called upon to admit the sanction order. Defence

counsel denied the same. The learned Special Judge

however held that as the legality or genuineness of

the sanction order is not challenged, it should be

treated as admitted. It was clarified that the

appellant however would be entitled to cross-examine

the sanctioning authority on establishing any kind

of prejudice if brought on record during the cross-

examination of the Investigating Officer.

Accordingly, the sanction order was accepted at

Exhibit 10.

. The learned Special Judge recorded in his

judgment the statement of the defence counsel that

the appellant did not want to challenge the legality

[6] CR. APPEAL 697/2002 - JUDGMENT

of the sanction order.

4. Before the learned Special Judge, the

complainant was examined as PW1. PW2 - Shankar

Rathod was the shadow panch witness while PW3 is the

Investigating Officer. The learned Special Judge

came to the conclusion that the prosecution has

proved its case beyond reasonable doubt and,

therefore, the impugned order came to be passed.

5. Mr. Tandale, learned counsel for the

appellant submitted before me that the sanction

order was not proved. On fact, he submitted that

the complainant, during his cross-examination

admitted the entire defence case that in-fact the

amount of Rs.100/- was accepted by the present

appellant towards the repayment of Rs.100/- earlier

received by the complainant as an advance for supply

of the bricks. Therefore, he submits, as reasonable

doubt had arisen, the learned Special Judge ought to

have extended the benefit of reasonable doubt to the

appellant. He further submits that the prosecution

[7] CR. APPEAL 697/2002 - JUDGMENT

case would show that the staff members of the

treasury were present at the time of the trap,

however, none of them are examined. Further,

according to him, the deposition of PW2 - Shankar

Rathod would not show that the present appellant has

demanded any amount towards the bribe.

. In the circumstances, relying on the ratio

of "T. Subramanian Vs. State of T.N." (2006) 1

Supreme Court Cases 401 and "B. Jayaraj V. State of

A.P." AIR 2014 SC (Supp) 1837, he submits that the

appeal be allowed.

6. On the other hand, learned A.P.P. submits

that the defence counsel had accepted the validity

of the sanction. Even in the appeal memo, no ground

is raised regarding the legality of the sanction.

Therefore, when only during the oral arguments, the

said issue was raised, this Court was required to

ask the appellant to file affidavit in this regard.

Thereafter, only the affidavit is filed denying the

legality or validity of the sanction.

[8] CR. APPEAL 697/2002 - JUDGMENT

. In the circumstances, he submits that as

the defence is playing hide and seek game in this

regard, now it would not lie in the mouth of the

appellant, to say that the sanction is not valid.

. On merit, the learned A.P.P. submits that

the evidence on record would clearly show that the

complainant was won over by the appellant. During

examination-in-chief, the complainant completely

deposed on the line of the prosecution. During

cross-examination however, he answered every leading

question relating to the defence, in the

affirmative. Thereafter, the Court was required to

put him certain questions and during the Court

questions, he again deposed that the amount of

Rs.100/- was paid by him as bribe. Further, PW2 -

the independent shadow panch witness has deposed

that not only the appellant made the demand of

Rs.100/-, upon acceptance of the same, he told the

complainant that he would get the money from the

Medical College and Hospital on 21st of the month and

[9] CR. APPEAL 697/2002 - JUDGMENT

thereafter the agreed signal was given.

. In this state-of-affairs, the learned

A.P.P. submits that the learned Special Judge has

rightly came to the conclusion that the prosecution

has proved its case beyond reasonable doubt.

7. On the basis of this material, following

points arise for my determination:-

I) Whether the sanction to prosecute

the appellant granted by the sanctioning authority is legal and valid ?

II) Whether the prosecution has proved

that the present appellant made a demand of Rs.100/- as a gratification

other than the legal remuneration from the complainant on 17/07/1997 ?

III) Whether the prosecution has

further proved that on the very same day, the present appellant has again made the demand and accepted the said gratification ?

                     IV)     Whether   the   prosecution   has





                                            [10]    CR. APPEAL 697/2002 - JUDGMENT




                     further   proved   that   the   present

appellant has obtained the pecuniary

advantage by abusing his position as a public servant ?

My findings to all the above points are in the

affirmative. The appeal is therefore dismissed

for the reasons to follow.

ig R E A S O N S

8. As regards the validity of the sanction,

the checkered history, as detailed supra, would show

that the appellant is taking the stand which would

be suitable for him at a particular point of time.

Initially, he denied the validity of the sanction.

During arguments before the learned Special Judge,

however, the defence counsel has made a statement

that the legality or validity of the sanction is not

challenged. In the appeal memo, no ground is made

on this count and only during the oral arguments, it

was submitted that the sanction accorded is not

[11] CR. APPEAL 697/2002 - JUDGMENT

valid. All this material on record would show that

now it would not lie in the mouth of the appellant

that the sanction accorded is not legal.

. The ratio in the cases of "State of

Maharashtra Through C.B.I. Vs. Mahesh G. Jain" 2014

ALL SCR 177 and "Mohd. Iqbal Ahmed Vs. State of

A.P." AIR 1979 S.C. 677 relied on by Mr. Tandale,

learned counsel for the appellant, therefore, are

not relevant in this regard.

9. The complainant has deposed that on

17/07/1997, in the forenoon ,he visited the Treasury

office. At that time, the appellant met him there.

He initially made the demand of Rs.300/- and,

thereafter, agreed to accept an amount of Rs.100/-

on the same day. Therefore, the complaint was

filed. It is an admitted fact that during the trap,

the present appellant has accepted the decoy money.

The only issue, therefore, would be as to whether,

the said amount was accepted as the illegal

gratification or as the refund of certain amount

[12] CR. APPEAL 697/2002 - JUDGMENT

towards the supply of bricks.

10. The complainant during cross-examination

has accepted the entire defence case. He accepted

that he was supplying building material including

the bricks. He had earlier supplied 1000 bricks to

the appellant for Rs.900/-. He had however already

received an amount of Rs.1000/-. Additional bricks

were to be supplied. Due to financial problems, he

was unable to supply 1000 bricks additionally. He

was therefore to repay the balance amount of

Rs.100/- to the appellant, however, he was not able

to repay the same. In the circumstances, when in

connection with the sanction of the bill, he was

required to meet the appellant, the appellant

insisted for refund of the amount of Rs.100/-.

He however was got annoyed because of the said

demand and, therefore, he filed the complaint with

the Anti Corruption Bureau.

. When the Presiding Officer of the Court put

questions to him, he deposed that he had not

[13] CR. APPEAL 697/2002 - JUDGMENT

refunded the amount of advance of Rs.100/- received

by him but paid the said amount as bribe.

He however again resiled from the said statement by

saying that the contents of the complaint regarding

the transaction are incorrect. He was not

financially sound to pay bribe of Rs.100/- but he

thought that he would pay money so that the bill

would be passed.

11.

This evidence would show that the

complainant cannot be called as a reliable witness.

PW2 - the shadow panch witness - Shankar Rathod

however categorically deposed that during the

conversation, the appellant made demand of Rs.100/-.

Thereupon, the complainant handed over him the decoy

money. Upon that, the appellant told the

complainant that he would get the money for the bill

from the Medical College and Hospital Office on 21st

of the month. Thus, according to him, there was no

talk of repayment of any advance towards the supply

of bricks.

[14] CR. APPEAL 697/2002 - JUDGMENT

12. It has been admitted by the appellant that

he has received the decoy money during the

transaction. Shadow panch witness had clearly

deposed that upon acceptance of the amount, the

appellant promised that the complainant would

receive the amount under the bill by 21 st of the said

month. Due to the fact of acceptance of the money,

a presumption that the said money was accepted

towards the gratification other than the legal

remuneration will have to be drawn, according to the

provisions of section 20 of the Prevention of

Corruption Act, 1988. The issue therefore would be,

as to whether the said presumption is rebutted by

the defence.

13. We have the statement of the complainant

during cross-examination that he had long standing

financial transactions with the appellant and the

money was in-fact the refund of the advance is the

material. In my view, this material is not

sufficient to rebut the presumption. The answer of

the complainant to the Court questions would clearly

[15] CR. APPEAL 697/2002 - JUDGMENT

show that the decoy money was not paid towards the

refund of any advance.

14. In the circumstances, in my view, the

prosecution has proved beyond reasonable doubt that

the present appellant has demanded an amount of

Rs.100/- towards the gratification other than the

legal remuneration and accepted the same in presence

of the shadow panch witness.ig

15. Mr. Tandale, learned counsel for the

appellant relied on the ratio of "T. Subramanian"

and "B. Jayaraj" (cited supra). In the case of

"T. Subramanian", it was held that mere proof of

receipt of money by accused, in absence of proof of

demand and acceptance of money as illegal

gratification, would not be sufficient to establish

the guilt of the accused. In the present case,

however, we do not have merely the proof of receipt

of money but the evidence of the shadow panch

witness would show that the money was demanded and

accepted as illegal gratification. The ratio of the

[16] CR. APPEAL 697/2002 - JUDGMENT

above case, therefore, is not applicable in the

present case.

16. In the case of "B. Jayaraj" (cited supra),

the complainant has disowned to have made the

complaint to the Anti Corruption Bureau. No other

evidence was adduced by the prosecution to prove the

demand. It was therefore held that the demand of

gratification cannot be held to be proved only on

the basis of the complaint filed and evidence of the

panch witness.

. In the present case, however, we find that

the answer to the Court question givens by the

complainant would shatter his trick of waivering

during the cross-examination at the hands of the

defence. In that view of the matter, the following

order:-

17. Criminal Appeal is hereby dismissed. Bail

bonds of the present appellant shall stand

cancelled.

[17] CR. APPEAL 697/2002 - JUDGMENT

18. The learned Special Judge, Aurangabad is

directed to take steps for securing presence of the

present appellant for making him to serve the

remainder of the sentence.

[M.T. JOSHI]

JUDGE

arp/