Rambhan Dashrath Kapkar vs State Of Maha
2016 Latest Caselaw 967 Bom

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                                           -1-




                                                                             
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                     
                            CRIMINAL APPEAL NO. 422 OF 2004

     Rambhan s/o Dashrath Kapkar,
     Age: 60 years, Occ: Retired,
     R/o. Nandanwan colony, Bhausingpura,




                                                    
     Aurangabad died through Smt. Sindubai
     w/o Ramchandra @ Rambhan Kapkar to
     continue the appeal as per Hon'ble Court's
     order dtd. 13/12/12 passed in
     C.A. No. 5359/12.                                        ...Appellant




                                        
              versus         
     The State of Maharashtra                                 ...Respondent

                                           .....
                            
              Mr. S.S. Jadhavar, Advocate for appellant
              Mr. R.V. Dasalkar, A.P.P. for respondent
                                          .....
      


                                             CORAM : N.W. SAMBRE, J.
   



                                             DATE : 29th MARCH, 2016

     JUDGMENT :

The present appeal is preferred by the accused against

the verdict of his conviction delivered by the Special Judge,

Aurangabad on 22/06/2004 in Special Case No. 05 of 2000 for the

offence punishable under Section 7 of the Prevention of Corruption

Act, whereby he was ordered to suffer rigorous imprisonment for a

period of six months and fine of Rs.150/-, in default to suffer simple

imprisonment for 15 days and for the offence punishable under

Section 13(1)(d) and 13(2) of Prevention of Corruption Act and

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sentenced to suffer rigorous imprisonment for one year with fine of

Rs.150/-, in default to suffer simple imprisonment for 15 days.

2. It is not in dispute that present appellant, a public

servant, has expired and his legal/sole widow is pursuing the present

appeal.

3. The facts, as are necessary for deciding the present

appeal, are as under :-

PW-4 Sanjiv Mendke has received a complaint from the

complainant Shaikh Osman Shaikh Sardar, Police Constable

B.No. 1030 against the appellant, who at the relevant time, was

working as junior clerk in the office of Police Commissioner,

Aurangabad vide Exhibit-22 alleging that one of his departmental

appeal, which was required to be processed and forwarded to the

Director General of Police, Maharashtra State, Mumbai, against the

punishment imposed upon him, through the Commissioner of Police,

Aurangabad was not forwarded by the appellant. Upon inquiry, the

appellant demanded bribe of Rs.300/- for forwarding the said

departmental appeal.

4. PW-4 having received the complaint, requisition two

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public servants, to act as panch witnesses, who were from the office

of Executive Engineer, B & C. Aurangabad. The pre-trap panchnama

was drawn at Exhibit-25 in the presence of complainant and panch

witnesses. It is then claimed that they went to the office of

Commissioner of Police, Aurangabad and complainant Shaikh

Osman and panch Gaikwad went to the office of appellant, who was

followed by the Investigating Officer, his team and other panch

witnesses. He then claimed that the complainant inquired with the

appellant about his work and the appellant then demanded the

amount, which was paid by the complainant was witnessed from the

distance by one panch witness. Staff member of the trap party

caught hold the accused and upon examination by the members of

the trap party in ultra violet rays, noted anthracine powder on the

hands of accused. The said amount was recovered from the left

pocket of safari wore by the appellant and after it was removed by

panch witness Sewalikar, the said amount was then seized and kept

in sealed envelope bearing signature of the panchas. His left pocket

of safari shirt also reflects the presence of anthracine powder. The

panchnama, accordingly, was drawn. He then having completed

various panchnamas such as Exhibit-26, articles at Exhibits-21/1 to

21/5, lodged report to the police station, City Chowk, Aurangabad,

resulting into registration of Crime No. 3072 of 1999 against

the present appellant i.e. Exhibit-31 and the appellant came to be

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arrested vide arrest panchnama at Exhibit-27 and unsealed

panchnama of muddemal at Exhibit-28. The statement of panch

witnesses were recorded on 03/12/1999 and on 06/12/1999 the

statement of Bharpure, Office Superintendent of Police

Commissioner Office, Aurangabad and Peon, Jamil Ahmed Khan.

The surveyor prepared the map of spot and submitted the same on

09/12/1999, which is Article-D. The statement of PSI Syed Amir,

which disclosed that the appeal memo of the complainant Shaikh

Osman was forwarded on 05/01/1999 and then he collected the

papers about appointment and posting of the appellant.

5. He then claimed that the charge sheet in the matter was

filed after getting sanction order on 05/05/2000 and then identified

the accused.

6. The charge was framed as against the accused at

Exhibit-6.

7. Exhibit-18 is the sanction order dated 05/05/2000 issued

by the Special Inspector General of Police. Aurangabad, who was

authorized to remove a person holding post of junior clerk in the

office of Police Commissioner.

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8. The prosecution, in support of its case, has examined in

all four witnesses namely PW-1 Sudhakar Suradkar, retired Special

Inspector General of Police, Aurangabad Range, Aurangabad,

sanctioning authority at Exhibit-17, PW-2 Shaikh Usman Shaikh

Sardar, complainant at Exhibit-20, PW-3 Chhagan Gaikwad, panch

witness at Exhibit-24 and PW-4 Sanjiv Mendke, Investigating Officer

at Exhibit-30.

9.

Complainant Shaikh Usman Shaikh Sardar, in his

examination-in-chief, has in clear terms, narrated that he went to the

office of Commissioner of Police, Aurangabad for inquiring status of

his appeal, which was to be forwarded to the office of D.I.G. Mumbai

in the matter of questioning legality of imposing punishment against

him and the present appellant demanded amount of Rs.300/- as

bribe, which he was not willing to pay and as such, lodged report on

02/12/1999.

10. In the above referred background, Mr. Jadhavar, learned

Counsel for the appellant would submit that the sanction order in the

present case issued by PW-1 is required to be discarded as the

same was passed without application of mind and without

considering the material on record. He would invite attention of this

Court in support of the said contention to the evidence of PW-1

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wherein PW-1, in categorical terms, has stated that he has not read

appeal memo of the complainant, which was to be forwarded to the

office of Director General of Police. He would then submit that the

complainant was annoyed with the present appellant as his appeal

proposal was not forwarded to the office of D.I.G. and as such, he

lodged false complaint. He would then submit that the work of the

present appellant was never pending with him and only information

that was sought by the complainant was already provided to him

which is in relation to the pendency of the proposal of the appellant in

the office of Commissioner of Police, Aurangabad. Mr. Jadhavar,

learned Counsel for the appellant would submit that the Court below

has failed to appreciate the same and in view of the fact that neither

the appellant was competent authority nor the work was pending with

him, the question of demand and acceptance is at all not proved. He

would then invite my attention to the fact that panch witness PW-3

was standing outside the hall and was not eye witness to the trap in

question and sought to rely upon the evidence of PW-3 for the said

purpose. According to him, learned Special Judge has not framed

the issue as regards the application of mind by sanctioning authority,

as such, according to him, the appeal needs to be allowed.

11. Learned A.P.P. while supporting the judgment of

conviction would submit that the case in question is a trap case

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wherein trap was successful as the currency notes which were

coated with anthracine powder were recovered from the appellant

and there are traces of anthracine powder on the pocket of his shirt

and also on his hand. Learned A.P.P. would submit that the sanction

order was issued without application of mind was not canvassed

during the trial but still according to him, upon perusal of the

evidence of PW-1, there is hardly any material to infer that PW-1

sanctioned authority either lack the competency to grant sanction or

has not applied its mind to that effect. He would submit that

sanctioning authority has rather deposed in examination in chief that

the sanction was granted after perusal of the entire record in relation

to the accused. According to him, PW-1 was eye witness to the

incident, standing at the distance of 7 to 8 feet and has heard

conversation and witnessed the incident. He would then submit that

the appeal be dismissed.

12. With the assistance, I have read and analyzed the

evidence of all four witnesses i.e. sanctioning authority, complainant,

panch witnesses and the Investigating Officer. Both the complaints

i.e. one by the complainant and another by the Investigating Officer

was very much proved along with pre-trap panchnama. The said

panchnama is at Exhibit-25, which is proved by the Investigating

Officer and panch witness. It is required to be noted that Exhibit-22

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is report lodged by the complainant. He, in clear terms stated that

the appellant has demanded amount, which he was unwilling to pay.

He then along with panch witness Gaikwad went to the office of the

Commissioner of Police, Aurangabad along with trap party and at

that place, the appellant demanded him amount, which he paid and

then trap party upon his signalling caught the appellant with the

amount. The appellant though had tried to canvass the case that the

complainant has taken handloan of Rs.500/- from other clerk Dande,

who is working in the same office of which Rs. 200/- was already paid

and Rs. 300/- was given to the complainant to be paid to Dande. It is

to be noted that said defence of the appellant will be of hardly any

consequence, as the said witness Dande is not examined by the

appellant-accused in his defence.

13. Apart from above, it is required to be noted that tainted

notes were recovered from the pocket of the shirt of present

appellant. PW-1 sanctioning authority, who is examined at Exhibit-17

has in clear terms deposed that he has studied all the papers,

applied his mind and then thought it necessary to accord sanction to

prosecute the present appellant. He has proved sanction order

which is at Exhibit-18. In his cross examination, he has admitted that

being Special Inspector General of Police, he is appointing authority

and has power of removal of the appellant. Though he admits that

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he has not seen appeal memo submitted by the complainant,

however, the same is of hardly any consequence or any help to the

accused person, particularly when the sanction is based on the entire

material on record.

14. PW-3 in his evidence in categorical terms has proved

pre-trap panchnama at Exhibit-25 and also narrated the entire

incident of demand and acceptance of bribe by the appellant.

Exhibits-21 and 22 are the photo copies of the documents of the

complainant Shaikh Usman which were pending with the appellant-

accused for processing. The other panchnama at Exhibit-28 of

anthracine bottle is also proved.

15. He has supported the prosecution case in its entirety.

16. From the above referred discussion, it could be easily

inferred that the sanctioning authority has granted sanction, who is

competent to do so for the purpose of prosecution of the accused.

The Special Judge has considered the material that was placed

before it. In my opinion, nothing could be elicited from testimony of

Sanctioning Authority so as to infer that sanctioning authority was not

competent to accord sanction or has not applied his mind before

passing sanction order. Hence, the said submission of the appellant

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is rejected.

17. The second submission of the appellant that he has no

authority to process the application of the complainant to be

forwarded to the office of D.I.G., and other information that was

sought by the complainant about status of his appeal was very much

provided. The complainant was informed that the appeal proposal

was not forwarded to the office of D.I.G. and as such, being annoyed,

the complainant has lodged false complaint. The said contention is

also required to be rejected for the following reasons.

18. Upon demand, the complainant has lodged independent

report and thereafter successful trap was led, in which the appellant

was caught red handed while accepting bribe. The fact remains that

Exhibits-19 and 20 are the documents which were seized from the

custody of the appellant, which were in relation to appeal memo of

the complainant pending for processing to be forwarded to the office

of D.I.G. In the above referred back ground, the claim that the

appellant is falsely implicated does not hold any substance in view of

the enough material available on record, as such, the said

contentions are also rejected.

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19. Having regard to the observations made herein above, in

my opinion, the order of conviction passed by learned Special Judge

does not call for interference, as no illegality could be noticed. As

such, present appeal against conviction fails, stands dismissed.

[ N.W. SAMBRE, J. ]

Tupe/-