State Thr.Dy.Supdt.Of Anti ... vs Bhaskar Amrutrao Ingole
2017 Latest Caselaw 1531 Bom

 CRI. APPEAL NO.35.02.odt                     1


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                     CRIMINAL APPEAL NO.35 OF 2002


 State of Maharashtra, through
 Deputy Superintendent of
 Anti-Corruption Bureau, Wardha.                   ..               APPELLANT

                               .. VERSUS ..


 Bhaskar s/o Amrutrao Ingole,
 Aged about 65 years,
 Occupation-Retired,
 R/o. Wardha, Tahsil and District-
 Wardha.                                           ..           RESPONDENT



                     ..........
 Shri I.J. Damle, APP for Appellant-State,
 Shri A.N. Ansari, Advocate for Respondent.
                     ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 07, 2017.

ORAL JUDGMENT

Being aggrieved by the judgment and order dated

3.8.2001 passed by the learned Additional Sessions Judge

and Special Judge, Wardha in Special Case No.4/1992

acquitting the sole accused of the offences punishable under

Sections 7, 13 (1)(d) and 13 (2) of the Prevention of

Corruption Act, 1988, original complainant-State of

Maharashtra has preferred this appeal.

2] Prosecution case which can be revealed from the

charge-sheet and connecting papers thereto may be stated

in brief is as under :

(a) In the year 1990, accused was serving as

Patwari in village Mandavgad.

Complainant Aswajit Naik was resident of

Mandavgad. He was intending to install a

brick-kiln in the agricultural land of Nana

Thavere. To install brick-kiln, he was in

need of no objection certificate.

(b) On 30.10.1990, complainant went to the

house of accused and asked him to supply

7/12 extract and map of nala and the field.

It is the case of complainant that accused

demanded Rs.108/- for the said work and

asked the complainant to come with

Rs.108/- on 31.10.1990 between 4 and 5

pm. He assured the complainant that map

and 7/12 extract would be kept ready.

Complainant was not willing to pay bribe

and so on 31.10.1990, he went to the

office of Anti-Corruption Bureau, Wardha

and lodged report.

(c) P.I. Prasad arranged for a trap. Panch

witnesses were called. Demonstration

was given and pre-trap panchanama was

recorded. On 31.10.1990 at around 4.00

pm, raiding party along with complainant

went to the house of accused.

Complainant told the accused that he had

brought Rs.108/- and kept the amount on

the table. He had given signal to the

raiding party and accordingly accused was

caught accepting the amount of Rs.108/-

which was kept on the table. PI Prasad

then prepared a written complaint and

forwarded the same to Wardha City Police

Station. Crime No.315/1990 was registered

against the accused for the offences

punishable under sections 7, 13 (1)(d) and

13 (2) of the Prevention of Corruption Act.

Investigation was taken over by Dy. S.P.

Shri Gautam. Seized muddemal was sent

to Chemical Analyser. Statements of

witnesses were recorded. Sanction to

prosecute the accused was obtained and

then charge-sheet was filed in the court.

3] Charge was framed against the accused vide

Exh.9. He pleaded not guilty and claimed to be tried. His

defence is of total denial and false implication. According to

accused, he initiated action for removal of encroachment

against the father of complainant and other villagers and to

wreak vengeance, he was falsely implicated.

4] In support of its case, prosecution examined in all

seven witnesses. Considering the evidence of prosecution

witnesses and submissions made on behalf of the parties,

Trial court came to the conclusion that charge against the

accused has not been proved beyond reasonable doubt and

in consequence thereof, accused was acquitted.

5] Heard Shri Damle, learned Additional Public

Prosecutor for appellant-State and Shri Ansari, learned

counsel for the respondent. With the assistance of the

learned counsel for the parties, this court has gone through

the evidence of prosecution witnesses.

6] On meticulous evaluations of evidence and taking

into consideration submissions made on behalf of the State

and the respondent, this court for the below mentioned

reasons finds that the reasonings recorded by the Trial court

are in accordance with the evidence on record and no

perversity can be seen from the findings recorded by the

Trial court. The view taken by the Trial court is a reasonable

and possible view and keeping in view the limited scope for

interference in appeal against acquittal, appeal deserves to

be dismissed.

7] The principal question in the case on hand relates

to sanction to prosecute under Section 19 of the Prevention

of Corruption act. Before adverting to the evidence, it is

essential to mention here the object and the scope of

Section 19 of the Act, 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 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 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.

8] In the present case, sanction order was issued by

Mr. A.D. Sane, Collector, Wardha, as sanctioning authority.

Prosecution examined PW-7 Dada Amnerkar, a dealing clerk

working in the office of Talathi establishment at Collectorate,

Wardha. PW-7 Dada states in his evidence that Mr. A.D.

Sane received papers of investigation in Crime No.315/1990

and after examining the papers, he issued the order. He

identified the signature of Mr. A.D. Sane on Exh.79 sanction

order.

9] In the cross-examination, it is admitted by dealing

clerk that Mr. Sane received a confidential envelope. The

said envelope was handed over to him directly. Except Mr.

Sane no one else was knowing about confidential

correspondence. He does not state that signature on Exh.79

was made by Mr. Sane in his presence.

10] From the evidence of PW-7 Dada, it is apparent

that he was not the official attached to sanctioning

authority. Prosecution ought to have examined the

competent witness who had taken the dictation of the

sanction order or the Stenographer/P.A. who was in a

position to identify the signature of the Collector. Non

examination of competent person, as a witness, is fatal to

the prosecution case and in this background, it cannot be

accepted that sanction order Exh.79 is duly and legally

proved by the prosecution.

11] The next moot question that arises is, whether

prosecution could succeed on merits of the case. At the

outset, it is to be stated here that complainant is hostile. He

does not support the prosecution case. He went on

changing his version in the cross-examination by the learned

APP. From his entire evidence, it is apparent that he has no

regards for the truth.

12] So far as panch witnesses are concerned, their

evidence is also not helpful to the prosecution. The amount

of Rs.108/-, which according to prosecution was a bribe

amount, was found lying on the table. As per panchanama,

the notes were seized from the custody of accused. There is

no consistency in the evidence of panch witnesses,

panchanama and the evidence of investigating officer, so far

as actual raid is concerned. Moreover, complainant had a

reason to grind an axe against the accused. Accused has

come with a specific defence that he initiated an action of

removal of encroachment against the father of complainant.

To substantiate his defence, he has produced several

documents on record which have not been seriously

challenged by the complainant.

13] In the above background, this court finds that the

view taken by the trial court is a reasonable and possible

view and there is no reason to take a view different than

taken by the trial court. No interference is warranted.

Hence, Criminal Appeal No.35/2002 stands dismissed.

No costs.

(Kum. Indira Jain, J.) Gulande, PA