Bombay High Court
Dadasaheb S/O Shankarrao Pathare vs The State Of Maharashtra on 14 March, 2016
Bench: M.T. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.491 OF 2002
Dadasaheb s/o. Shankarrao Pathare,
Age 44 years, Occ. Senior Grader,
Dist. Aurangabad ..Appellant
Versus
The State of Maharashtra ..Respondent
--
Mr.R.N.Dhorde, Senior Counsel with Mr.V.R.Dhorde,
advocate for appellant
Mr.N.T.Bhagat, A.P.P. for respondent - State
--
CORAM : M.T. JOSHI, J.
RESERVED ON : FEBRUARY 15, 2016
PRONOUNCED ON : MARCH 14, 2016
JUDGMENT :
Heard both sides.
2] Present appellant - original accused no.1 was
convicted by learned Special Judge, Aurangabad in
Special Case No.2 of 1996, vide impugned judgment
and order dated 17th August, 2002 for the offences
punishable under Section 7, 13(1)(d) read with
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Section 13(2) of the Prevention of Corruption Act.
He was sentenced to suffer rigorous imprisonment
for one year and to pay fine of Rs.2,000/- on each
count. Hence, the present appeal.
. The Co-accused no.2 - Suresh Gaikwad was
acquitted from the offence punishable under Section
12 of the Prevention of Corruption Act.
3] The prosecution case, in brief, is as under :-
. That, present appellant was serving as a
Grader in Cotton Federation Procurement Centre, at
Phulambri during the relevant period. On 28th April,
1995, complainant PW 1 - Shaikh Yakub and his
colleague Shaikh Ismail wanted to sell their 60
quintal of cotton of Nanded 44 variety. They,
therefore, brought the said raw cotton by a truck
to Aurangabad. However, there was rush at
Aurangabad centre, therefore, they were advised to
take the truck to Phulambri centre. They obtained
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gate pass and rushed in the said centre on 29th
April, 1995. However, their cotton could not be
weighed on that day. On the next day i.e. on 30 th
April, 1995, their cotton was taken for weighment.
. However, present appellant declared that the
cotton was of third grade. The complainant and his
colleague, however, insisted that the cotton was of
first grade. Ultimately, the appellant agreed to
grade the cotton as second grade cotton through
accused no.2 - Suresh Gaikwad, on the condition
that the complainant and his colleague would pay
him Rs.70/- per quintal as bribe. Reluctantly, both
of them agreed for the same. They, however, had no
money on that day.
. Therefore, though the appellant had got the
cotton weighed, the slip and folder was kept by
him. The appellant told them that upon payment of
Rs.4760/- at the rate of Rs.70/- per quintal for 68
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quintal, he would release the weighment slip and
the folder to the complainant. He asked them to
visit on 1st May, 1995 with money.
. On 1st May, 1995, the complainant and his
colleague met the appellant at about 5:00 pm. and
told that they were unable to pay Rs.4,760/-.
Ultimately, the appellant reduced his demand to
Rs.4500/- and asked them to bring said amount on 2nd
May, 1995 and to collect the documents. As
complainant PW 1 - Shaikh Yakub was not willing to
pay the said bribe amount, he filed complaint
(Exhibit 47) to the Anti Corruption Bureau,
Aurangabad.
4] PW 4 - Hanumant Kulkarni, Dy. Superintendent,
Anti Corruption Bureau, Aurangabad, conducted the
investigation. He decided to lay a trap on 2 nd May,
1995. On 2nd May, 1995, he collected two panch
witnesses from public offices including PW 2 -
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Chand khan Pathan, Steno-Typist, Maharashtra
Housing Development Corporation, Aurangabad. The
complaint was read over to them. They agreed to be
panch witnesses. Demonstration of anthracene
powder was given to the complainant as well as the
panch witnesses. The decoy money brought by the
complainant was smeared with anthracene powder.
The decoy money was kept in the pocket of the
complainant. The panchnama of all the activity was
recorded and thereafter, the raiding party
proceeded to Phulambri by two separate Jeeps.
5] While the complainant and his colleague as
well as the shadow panch witnesses PW 2 - Chand
Khan Pathan met the appellant, rest of the team
remained in the vicinity. The appellant inquired
with the complainant, as to whether money was
brought. The complainant answered in the
affirmative. Thereupon, the appellant called
accused no.2 - Suresh and directed the complainant
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to pay the money to him. He also instructed accused
no.2 - Suresh to hand over the weighment slip and
cheque to the complainant upon getting the bribe
amount. Thereupon, accused no.2 - Suresh led the
complainant, his colleague and the shadow panch
witness to the office. There, accused no.2 - Suresh
handed over the complainant and his colleague the
weighment slip with a folder and demanded the
money. The complainant gave the decoy money to
accused no.2 - Suresh. He counted the same and put
in the pocket of his Nehru shirt. The complainant,
thereafter, came out of the office and gave the
predetermined signal to the Investigating Officer
upon which, the raiding party rushed on the spot
and caught hold accused no.2 - Suresh. The decoy
money was recovered from him.
. The appellant was called at the spot. His
personal search was carried by another panch. One
diary, eight chits, certain amount of Rs.125/- and
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miscellaneous articles were found on his person.
The diary and the chits were seized. A folder of
the weighment slips were seized from the drawer of
one table. Over the folder, there was an
endorsement made by the appellant directing not to
make payment unless green cards are produced by the
complainant and his colleague.
.
After the trap was over, the Investigating
Officer directed Shri.Shejul, Officer of the
Agricultural Produce Marking Committee (for short
"APMC") to prepare cheque for payment towards the
raw cotton, as the complainant and his colleague
had produced the green cards.
. Thereafter, the Investigating Officer filed a
formal report (Exhibit 63) with Phulambri Police
Station. He recorded statements of the relevant
witnesses. He sought sanction to prosecute the
appellant from the Managing Director, Maharashtra
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State Cotton Federation, Nagpur. Eventually. PW 3
- Mr.Omprakash Jahratra, Managing Director,
Maharashtra State Cotton Federation, accorded the
sanction to prosecute the appellant vide letter at
Exhibit 61. Thereupon, the charge sheet came to be
filed.
6] According to the appellant on 30th April, 1995,
the complainant and his colleague managed to get
illegal entry of the truck in the centre with the
help of Officer of APMC - Shri. Shejul, though none
of them were holding any green card. The
complainant, thereafter, pressed the appellant for
grading the cotton by saying that he would bring
the green card within two days. The appellant told
the complainant that unless the green card is
brought, he would not issue the cheque from APMC.
. As there was a mob and disturbance was caused,
the appellant, under pressure, graded the cotton.
However, the complainant had raised a dispute
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regarding the gradation. The appellant told that as
per the rule, the complainant could take the
dispute to 'Vandha Committee' of the APMC.
Ultimately, the colleague of the Cotton Federation
weighed the cotton of the complainant and the
appellant signed over the folder. However, since
the green card was not produced by the complainant,
the appellant was unable to verify regarding the
cultivation of the cotton and therefore, he
endorsed that unless the green card is produced,
the payment shall not be made.
. The complainant and his colleague were
enraged. They complained to the APMC, Aurangabad
instead of making a proper complaint to the Cotton
Federation. In the complaint, it was alleged that
present appellant had mis-behaviored with them and
graded their cotton wrongly, as they were unable to
pay any bribe to the appellant. According to the
appellant, once the gradation is put on the folder,
he does not have any concern with the forwarding of
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the cheque. In the situation, on the day of the
trap i.e. on 2nd May, 1995, when the complainant was
seen in the crowd of the farmers making inquiry
regarding the folder and cheques, the appellant
told them that as per the procedure, the folder
would be with APMC and they should approach the
said office and get their work done. He was not
concerned with the payment of price of the cotton
in any way. However, he was falsely involved due
to dispute between him and Shri. Shejul, Officer of
the APMC. On 6th March, 1995 i.e. much earlier to
the present episode, he had complained about the
said dispute. Even said Shejul had also filed a
complaint with Phulambri Police Station and one
P.S.I. had even visited the appellant to make
inquiry.
. In the situation, according to the appellant,
said Shejul might have instigated the complainant
and his colleague to involve the appellant in a
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false case. Hence, the appellant wanted that he
should be acquitted.
7] The learned Special Judge, however, came to
the conclusion that not only the statement of the
complainant and the shadow panch witness, would
show that the present appellant had made demand of
illegal gratification and accepted it through
accused no.2 - Suresh, the diary and eight chits
which were seized the person of the appellant,
would also show that the appellant was regularly in
habit of grading the cotton as per his own
convenience in case illegal remuneration is paid to
him. In the circumstances, the appellant came to be
convicted.
8] Mr.Dhorde, learned Senior Counsel, submitted
before me that in fact, the appellant was not, in
any way, concerned with the payment of price of the
cotton.
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. The green card, which would show that the
farmer had grown the cotton and that the cotton
brought was not result of any commercial activity,
was necessary. However, the green card was not
produced by the complainant and his colleague. The
Investigating Officer had, eventually, made out a
case that the green card was produced by the
complainant and his colleague at the time of
passing of the cheque and the said green card was
even returned to them. In fact, no green card was
produced at any time by the complainant. He
submitted that if the green card was really
produced by the complainant or his colleague, the
Investigating Officer ought to have seized the
same.
. Mr.Dhorde further submitted that during the
cross-examination, it was brought on record that
the complainant had made complaint not only to the
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Anti Corruption Bureau, but even to the APMC.
Further, it was also proved that the present
appellant had already complained to his superior
about the conduct of said Shejul and about his
apprehension that said Shejul may involve him in
some false accusation.
. In the circumstances, Mr.Dhorde, taking me
through the record, submitted that the present
appeal may be allowed and the appellant may be
acquitted.
9] On the other hand, Mr.Bhagat, learned A.P.P.
for the respondent - State submitted that the
statement of the complainant coupled with
deposition of the shadow panch witness, are
fortified by the eight chits and the diary,
admittedly, seized from the person of the
appellant. It would clearly show that the
appellant, not only in the present episode had made
demand of illegal gratification, but was in habit
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of making such demands to various farmers. He,
therefore, submitted that the appeal may be
dismissed.
10] On the basis of this material, following
points arise for my determination :-
(I) ig Whether the prosecution has
proved that the present appellant has
attempted to obtain an amount of
Rs.4,760/- as a gratification for higher
gradation of the raw cotton of the
complainant and his colleague ?
(II) Whether the prosecution has
further proved that on 1st May, 1995, the
appellant has agreed to reduce the said
demand to Rs.4,500/- ?
(III) Whether the prosecution has
further proved that on 2nd May, 1995, the
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appellant has again made demand of illegal
gratification and obtained the same
through accused no.2 - Suresh ?
(IV) Whether the appellant has abused
his position as a public servant to obtain
the pecuniary advantage by corrupt or
illegal means ?
. My findings to all the points are in the
affirmative. The appeal is, therefore, dismissed,
for the reasons to follow.
R E A S O N S
11] The deposition of the complainant as well as
the shadow panch witness is on the line of the
prosecution case, as detailed supra. The deposition
of the Investigating Officer would also show
that the decoy money was found in possession
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of accused no.2 - Suresh. The appellant has also
admitted that he was called at the spot and from
his person inter-alia a diary and eight chits were
recovered.
12] Mr.Dhorde submitted that in fact, the
appellant was in cross terms with said Raosaheb
Shejul, the then Officer of the APMC at Phulambri.
Said Shejul had even filed a complaint with Taluka
Shetkari Sahakari Kharedi Vikri Sangh on 7th March,
1995 vide inward No.755/1995, which was annexed to
the affidavit of the appellant filed on 15th
February, 2016. He further submitted that during
trial, the complainant has admitted that he had
lodged a complaint (Exhibit 49) to the Chairman of
APMC regarding various illegal activities carried
on at the centre at Phulambri. He further submitted
that as per the admitted procedure, in case any
huge quantity of cotton was brought for sale,
then the farmer was required to produce the
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green card, as said green card would show that the
farmer had, in fact, cultivated the cotton in his
field that he was able to produce the cotton
himself. It would confirm that the farmer had not
brought the cotton by illegally procuring the same
from the farmers/market.
.
In the present case, the green card was not
admittedly produced by the complainant. Therefore,
the appellant had made endorsement on the folder
that the price be not paid till the green card is
not produced. This has naturally enraged the
complainant and his colleague. Therefore, they made
a false complaint against the appellant.
. Shri.Shejul, Officer of APMC already had
animus against the appellant.
. Considering all these facts, Mr.Dhorde
submitted that the learned Special Judge ought to
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have extended benefit of reasonable doubt to the
present appellant.
13] In the trial Court, the appellant has relied
over the complaint filed by complainant with the
Chairman of APMC on 1st May, 1995 (Exhibit 49).
Thereafter, on 2nd May, 1995, the complainant had
filed complaint with the Anti Corruption Bureau
(Exhibit 47).
. The complaint at Exhibit 49 would show that
the complainant had reported the Chairman of APMC
that though he and his colleague had produced the
cotton, it's payment was unnecessarily withheld.
Further, though the cotton was of superior quality,
it was graded as of medium quality and the Grader
has demanded bribe at the rate of Rs.70/- per
quintal. This complaint is dated 1st May, 1995.
It recites other facts as are reported in the
F.I.R. on the next date I.e. bringing
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cotton at Phulambri on 29th April, 1995, its
weighment on 30th April, 1995 etc.
. No connection between the appellant and said
Shejul could be shown by the appellant at any point
of time.
14] DW 1 - Jagdish Chillare, Deputy Manager of
Maharashtra Cotton Growers' Federation, Khamgaon
has deposed that while he was posted at Aurangabad
in the first week of 1995, he had received a
telephonic message that certain quarrel took place
between the appellant and said Shejul at Phulambri
centre. Therefore, he along with other officials
had reached Phulambri centre at about 4:00 pm. on
that day. The appellant had complained to him that
Shri.Shejul used to interfere in his work.
Thereat, the appellant gave a complaint in writing
against Shri.Shejul. DW 1 - Jagdish took the said
complaint to his office at Aurangabad. He had
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endorsed receipt of the same. Said complaint was
produced by him at Exhibit 77.
. This complaint at Exhibit 77 would show that
on 6th March, 1995, said Shejul had created certain
difficulties in purchase of cotton and tried to
stop purchase of the cotton. It is also complained
that said Shejul had threatened that he would see
that the appellant would be arrested by the
Officers of the Anti Corruption Bureau.
. This defence was brought on record on 5 th
August, 2002. When the Investigating Officer was
cross-examined, he was candid enough in admitting
that during investigation, he found that the
complainant and his colleague had filed complaint
also with the Chairman of APMC, though the
complainant had never disclosed it to him.
. Though, during the cross-examination, mention
of Shejul was made and the Investigating Officer
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has admitted that when he entered the office of
APMC where the appellant has accepted the bribe
amount said Shejul was present, it was neither
suggested to him that during investigation, he also
became aware of filing of any complaint to the
superior officer of said Shejul, nor there was any
suggestion to him that the appellant had narrated
to him that in fact, he was involved in a false
trap case by said Shejul and that the appellant had
already filed a written complaint with his superior
in this regard.
15] To repeat, the Investigating Officer was
candid enough in making statement in cross-
examination that when, during investigation, he
came to know of filing of the earlier complaint by
the complainant and his colleague to Chairman of
APMC, he made investigation in this regard and
attached the said complaint (Exhibit 49).
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. In the circumstances, had the present
appellant made a statement regarding the written
complaint already made by him against said Shejul
to his superior, the Investigating Officer would
not have failed in making investigation in that
direction and seizing the said complaint also.
.
In the circumstances, statement of D.W.1 that
the appellant had reported vide Exhibit-77, on 6th
of March, 1995 that Mr.Shejul had threatened that
the appellant would be implicated in corruption
case can not be relied.
16] It is the case of the prosecution that as
bribe amount was not paid on the day of weighment,
the appellant kept the folder with him by making
endorsement that the payment would not be made
unless the green card is produced. The complainant
as well as the shadow panch witness were definite
in stating that on the day of the trap, the
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appellant again made demand of bribe amount and
when the complainant stated the he had brought the
amount, then only he released the folder to accused
no.2.
17] As already pointed out, the appellant has
admitted seizure of one diary and eight chits from
his person when he was brought to the spot where,
the accused no.2 had accepted the decoy money.
Those chits are at Articles 1 to 8.
. Out of those chits, Article 1 to Article 3
would show that various persons known to the
appellant had requested by chits to the appellant
to help the person who had brought the tractor load
of raw cotton and that maker of the chit would meet
him in the evening. Article 3 would show that one
Darade requested the present appellant to help his
friend Isaq.
24 crappeal491-02.odt
. The chit admittedly seized from the appellant
at Article 4 to Article 6 would show that certain
amount was deposited and against the name of
various persons, some amount was shown. The
appellant, admittedly, was working as a Grader and
was not concerned with the payment and still those
chits were found on his person, which have been
rightly appreciated by the learned Special Judge.
. The learned Special Judge has, therefore,
rightly inferred that those admitted chits would
reveal that the appellant was indulging in awarding
suitable gradation of the cotton for some
extraneous consideration.
18] In the circumstances, in my view, the
prosecution has proved its case beyond the
reasonable doubt.
19] Hence, the following order :-
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A] The Criminal Appeal is hereby dismissed.
B] Bail bonds of the appellant shall stand
cancelled.
C] The learned Special Judge is directed to take
steps for securing presence of the appellant in the
Court in order to see that the appellant would
serve remainder of the sentences.
[M.T. JOSHI, J.]
kbp
