Arun S/O Laxman Satokar vs State Of Mah. Thru. Dy. Suptd. Of ...
2017 Latest Caselaw 1804 Bom

 CRI. APPEAL NO.401.08.odt                    1


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

                    CRIMINAL APPEAL NO.401 OF 2008


 Arun s/o Laxman Satokar,
 Aged about 55 years,
 Occupation-Nazul Surveyor,
 T.I.L.R., Wani, Tahsil-Wani,
 District-Yavatmal.                                ..               APPELLANT

                               .. VERSUS ..


 The State of Maharashtra,
 Through its Deputy Superintendent
 of Police, Anti-Corruption Bureau,
 Yavatmal.                                         ..           RESPONDENT


                   ..........
 Shri Anil S. Mardikar, Senior Advocate a/w Shri Sumit G.
 Joshi, Advocate and Ms. Akshaya Kshirsagar, Advocate for
 Appellant,

 Shri I.J. Damle, Additional Public Prosecutor for Respondent-
 State.
                     ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 18, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 12.6.2008 passed by the learned Special

Judge, Pandharkawada in Special Case No.5/2004 convicting

the appellant for the offences under sections 7 and 13 (1)

(d) punishable under section 13 (2) of the Prevention of

Corruption Act, 1988 and sentencing him as under :

  Conviction under section                          Sentence
                      7              Rigorous imprisonment for one
                                     year and fine of Rs.2,000/-
                                     in-default rigorous Imprisonment
                                     for three months.
                 13 (2)              Rigorous imprisonment for one
                                     year and fine of Rs.1,000/-
                                     in-default rigorous imprisonment
                                     for one month.




 2]             Prosecution case which can be revealed from the

charge-sheet and connecting papers thereto may be stated,

in brief, as under :

(a) Complainant Ananta Wasekar is brother

of Surekha Chikate and brother-in-law of Shilatai

Bobade. They were residents of Wani. Accused

was serving as Nazul Surveyor. Surekha and

Shilatai purchased plot no.2/4 Sheet No.102

ad-measuring 2400 sq.ft. for the consideration of

Rs.1,20,000/- by two different sale deeds. As there

was no male member in the families of Surekha

and Shilatai, Ananta approached Nazul Survey

Department for mutation of plot in the name of

both the purchasers. Surekha and Shilatai had

also moved applications for mutation.

Complainant met the accused. Accused asked

complainant to get the plot measured and submit

receipt of measurement fees. On 1.6.2004,

complainant deposited Rs.1,500/- for

measurement. The plot was measured by

Surveyor Shri Kinake on 16.6.2004. Shri Kinake

supplied measurement sheet on 21.6.2004.

Complainant then met the accused. Accused told

him to bring photo copy of map and receipt

depositing measurement fees.

(b) On 7.8.2004, complainant approached

accused and enquired about mutation. According

to complainant, accused demanded Rs.2,000/-.

Complainant informed the accused that both the

ladies are poor and widow and, therefore, it was

not possible for them to pay Rs.2,000/-. Accused

brought down the demand to Rs.500/- and asked

complainant to come on 10.8.2004.

(c) Complainant was not willing to pay bribe.

He approached Anti-Corruption Bureau, Yavatmal

and lodged the report. Deputy Superintendent of

Police Shri Mairal reduced the complaint to writing.

On the same day, trap was arranged. It was

successful and five currency notes of denomination

of Rs.100/- each were found in possession of the

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 issuing sanction. PW-3

Pandit Kanekar was Deputy Director of Land

Records at Amravati. Being sanctioning authority,

he issued sanction to prosecute the accused.

Thereafter, charge-sheet was filed before the

Special Court.

3] Charge of the alleged offence came to be framed

against the accused vide Exh.3. He pleaded not guilty and

claimed to be tried. Accused raised specific defence that

Vijay Mate, close relative of then sitting MLA tried to kill the

son of accused. A report of the incident was lodged by

father of accused. Vijay Mate had strong political support

and at his instance, complainant attempted to implicate the

accused in a false trap. Another defence of the accused

appears to be that measurement fees which was required to

be paid by complainant was Rs.2,000/-. Complainant

deposited Rs.,1500/- on 1.6.2002. The amount of Rs.500/-

was the deficit fee which was required to be paid. Accused

processed the applications for mutation and he did his job.

Further action was required to be taken by T.I.L.R. and not by

him. Having completed the job at his end, there was no

need or occasion for the accused to make a demand and

accept the amount, as alleged by the complainant. In sum

and substance, defence is that to wreak vengeance at the

instance of Vijay Mate, a false case came to be filed against

him.

4] To substantiate the alleged guilt of the accused,

prosecution examined in all four witnesses viz. PW-1 Ananta

Wasekar (Exh.13), PW-2 Chandrajit Deviputra (Exh.22), PW-

3 Pandit Kanekar (Exh.35) and PW-4 Ashok Mairal,

Investigating Officer (Exh.38). Considering the evidence of

complainant, panch witnesses, sanctioning authority and

investigating officer, trial court came to the conclusion that

demand and acceptance were proved beyond reasonable

doubt. Regarding sanction, evidence of PW-3-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.

5] Shri Anil Mardikar, learned Senior Counsel for the

appellant vehemently submitted that accused had

processed the applications and his job was over. Further

action was to be taken by T.I.L.R. So question of demand,

as stated by complainant, would not arise. It is submitted

that mutation entry was entered in the register. The duty

of accused was only to enter mutation entry in the register.

So far as confirmation of the entry is concerned, it was to

be certified by T.I.L.R. Since accused performed his duty

before the date of alleged demand, there was no question

for asking illegal gratification from the complainant.

6] The next submission is that accused did not touch

the currency notes. The amount was not handed over to

him. The same was kept in paper box on the table. This

fortifies the contention of accused that money was planted

by the complainant at the instance of Vijay Mate, who had a

reason to grind an axe against the accused.

7] Regarding sanction, submission is that competent

authority has not taken into consideration the entire

material. It failed to record the subjective satisfaction.

Conviction is based on statutory presumption under Section

20 of the Prevention of Corruption Act, though evidence on

demand of money as a bribe is totally absent. In sum and

substance, it is submitted that prosecution failed to

establish the charge and trial court committed serious error

in recording the judgment and order of conviction and

sentence.

8] Per contra, Shri Damle, learned Additional Public

Prosecutor strongly supports the judgment and order of

conviction and sentence and submits that complainant has

stated in complaint and also in evidence that accused

demanded money towards bribe. He further submits that

trap was successful and currency notes were found from the

possession of the accused. Accused picked up the paper

box containing the currency notes and put it in the drawer of

his table. It is submitted that trap was successful and based

on evidence, trial court has rightly convicted the accused.

9] On the basis of the material placed on record and

submissions advanced on behalf of the parties, following

points arise for determination of this court :

(i) Whether prosecution has proved that on

7.8.2004, appellant-accused being a public

servant had demanded an amount of

Rs.500/- as a remuneration other than legal

remuneration as a motive or reward for

showing favour to complainant in exercise

of his duty in the matter of mutation entry

of plot purchased by relatives of

complainant and agreed to accept the

same on 10.8.2004 in the office at Wani

and on 10.8.2004, accused accepted

Rs.500/- as illegal gratification ?.

                 (ii)          Whether prosecution has further proved

                               that     appellant       being        public       servant

committed criminal misconduct by securing

amount of Rs.500/- by corrupt or illegal

means from complainant by abusing his

position as a public servant ?.

(iii) Whether sanction to prosecute the

appellant granted by PW-3 Sanctioning

Authority Shri Kanekar is legal and valid ?.

10] Findings to above points (i) and (ii) are in the

negative and point (iii) in the affirmative for the reasons to

follow.

REASONS

11] Following are the undisputed facts :

At the relevant time, accused was serving as a

Nasual Surveyor in the office of T.I.L.R., Wani, District-

Yavatmal. On 5.3.2003, Surekha Chikate and Shilatai

Bobade moved applications for mutation of plot no.2/4,

sheet no.102 purchased by them by two different sale

deeds. As there was no male member in their families,

Ananta, being their close relative, was pursuing the

mutation proceedings. Ananta approached the accused in

his office and enquired about mutation. Accused told the

complainant to get the land measured and submit the

receipt of measurement fees. On 1.6.2004, complainant

deposited Rs.1,500/- for measurement of plot. The said plot

was measured by Surveyor Shri Kinake on 16.6.2004 and

measurement sheet was issued by the Surveyor on

21.6.2004. Thereafter, complainant met the accused.

Accused asked the complainant to bring photo copy of map

and measurement fees. The total measurement fee to be

deposited was Rs.2,000/- and Rs.1,500/-, as stated above,

were deposited on 1.6.2004.

12] In view of above facts which are not in dispute, this

court has to consider the evidence of complainant and

panch witness to find out whether amount of Rs.500/- was

demanded and accepted by the accused as illegal

gratification, as alleged by the complainant.

13] PW-1 Ananta Wasekar states in his evidence that

he approached the accused on 7.8.2004 and accused

demanded Rs.2,000/-. Complainant told the accused that

both the ladies are poor and on that accused told him that

he had to pay at least Rs.500/-. Since complainant was not

willing to pay bribe, he approached the Anti-Corruption

Bureau office and reported the incident. The evidence of

complainant further indicates that trap was arranged on the

same day. He was introduced to both the panch witnesses

called by the officer of Anti-Corruption Bureau.

Demonstration of use of anthracene powder was given.

He had given five currency notes of denomination of

Rs.100/- each, pre-trap panchanama was drawn and then

raiding party proceeded to Wani in a vehicle. The vehicle

was stopped in front of Lokmanya Tilak Vidyalaya.

Complainant along with panch no.1 went to the office of

accused. Accused was standing near pan shop.

Complainant saluted him. Thereafter, complainant and one

unknown person sat in front of the accused and complainant

asked the accused whether work was completed.

Thereafter, the unknown person left the office. Accused

demanded Rs.500/-. Complainant took out currency notes

from his pocket and when he was about to give the same to

the accused, he was asked by the accused to keep the

currency notes in a paper box kept on the table. That time,

panch no.1 was sitting in the office of the accused.

Accordingly, currency notes were kept in the paper box on

the table. Accused picked up the paper box and put the

same inside the drawer. Signal was given to the raiding

party members. They rushed and accused was caught.

Currency notes were found in the drawer of table of the

accused. PW-4 API Mairal confirmed the demand and

acceptance of amount and drew post trap panchanama.

The evidence of complainant is supported by PW-2

Chandrajit Deviputra and PW-4 Investigating Officer Ashok

Mairal.

14] The moot question in the present case is, whether

an amount of Rs.500/- found in the drawer of table was

demanded and accepted as a bribe by the accused.

According to the prosecution, plot was purchased by

Surekha Chikate and Shilatai Bobade by two different sale

deeds. Both the ladies moved separate applications for

mutation. Complainant was asked by Surekha and Shilatai

to process their applications for mutation submitted to

T.I.L.R. office. Surekha and Shilatai have not been examined

as witnesses.

15] Another drawback in the case of prosecution is

that mutation was to be effected in respect of a plot

purchased by two purchasers by different sale deeds. On

1.6.2004, complainant deposited Rs.1,500/- towards the

measurement fees. The receipt is issued in the name of

Shilatai Bobade. It is not the case of prosecution that

complainant was following the mutation application of

Shilatai Bobade alone. In fact, there is no clarity in the case

of prosecution and the evidence of complainant is also silent

to the effect, whether application of Surekha Chikate was

also being processed by the complainant at the relevant

time. It appears from the receipt that Rs.1,500/-

measurement fee was deposited in respect of one plot. It is

not in dispute that measurement fee in all which was to be

deposited by the plot owner was Rs.2,000/-. It means

Rs.500/- were in deficit so far as measurement fee is

concerned.

16] It is the defence of accused that entire

measurement fee was not deposited by the complainant. If

at all accused was to make a demand and if according to the

complainant he was looking after both the applications for

mutation moved by two ladies, then alleged demand would

have been in respect of both the applications and not one,

as stated by the complainant. There is no whisper in the

evidence of complainant that demand was for mutation of

plot in the name of both the ladies or in respect of Shilatai

Bobade alone. The evidence of complainant on this aspect

is vague. It is not in serious dispute that recording entry in

the register for mutation was the job assigned to the

accused. So far as the confirmation of mutation entry is

concerned, it was for T.I.L.R. to look into the same.

17] In this connection, extract of mutation register has

been proved at Exh.17 and entries in register would indicate

that on 5.7.2003 entry no.4893 was entered in the register

in the name of Surekha Chikate and entry no.4894 was

entered in the name of Mangala @ Sushila Bobade. If on

5.7.2003, these entries were made in mutation register,

then job on the part of the accused was complete on that

day as confirmation of entry was not the duty assigned to

accused, but it was with T.I.L.R. If work was complete at the

end of the accused much before the complaint, then it is

doubtful whether accused made a demand of Rs.500/-, as

alleged by the complainant on 7.8.2004 and accepted the

same on 10.8.2004.

18] It is no where the case of complainant that entire

measurement fee of Rs.2,000/- was deposited and accused

demanded Rs.500/- as a bribe. The evidence of complainant

clearly shows that measurement fee of Rs.1,500/- was

deposited and Rs.500/- remained to be deposited. There is

unequivocal admission in the cross-examination of

complainant that accused had a right to direct them to

deposit Rs.500/- more. In view of this admission, it is

difficult to believe that accused demanded Rs.500/- as a

bribe as alleged by the complainant.

19] So far as acceptance is concerned, admittedly

tainted currency notes were not found in the hand of the

accused. Mere recovery of tainted money from the drawer

of the table is not enough to come to the conclusion that

money was recovered from the possession of the accused.

Who kept the paper box on the table is not known, who was

the unknown person who came with the complainant is a

mystery and investigating officer in his wisdom did not

investigate into this aspect and did not find out who was

that person. It appears from the evidence of complainant

that a lady also intervened at the relevant time. She went

out after keeping the files and after sometime, accused

asked the complainant to call that lady when the

complainant was to pay money. No investigation was made

in that direction and the concerned lady has not been

examined. These are the glaring infirmities left in the

prosecution case and the same would indicate that

somewhere something is being suppressed.

20] If the defence raised by the accused is looked into,

it appears to be more probable, plausible, believable and

acceptable. According to the accused, one Vijay Mate, a

close relative of sitting MLA that time, tried to kill the son of

accused. A report of the incident was lodged and to take

revenge, Vijay Mate used the complainant to implicate the

accused in a false trap case. Since beginning accused

raised this defence and the same is reiterated by him in his

statement under Section 313 of the Code of Criminal

Procedure. The defence raised by the accused cannot be

said to be without substance, particularly in the light of the

fact that on the date of alleged demand no work was

pending with him.

21] Coming to the sanction as required under section

19 of the Act of 1988, it appears from the evidence of PW-3

Kanekar that documents which were submitted for according

sanction were perused by him before granting sanction to

prosecute the accused. It is stated by Shri Kanekar, the

then Deputy Director of Land Records, Amravati that he

verified all the documents and, thereafter, came to the

conclusion that there was sufficient evidence to prosecute

the accused. Sanction order (Exh.36) clearly indicates that

all the material documents were looked into by the

sanctioning authority and subjective satisfaction recorded

by the sanctioning authority was based on the verification of

record. Nothing could be elicited in the cross-examination

of sanctioning authority to disbelieve his evidence. Trial

court has observed that sanction is legal and valid and this

court, placing reliance on the evidence of sanctioning

authority as well as the sanction order, does not find any

reason to take a view different than taken by the trial court

so far as legality and validity of sanction order is concerned.

22] However, on merits, prosecution does not succeed

for want of cogent, trustworthy and reliable evidence on

demand and acceptance of money as illegal gratification.

Impugned judgment and order of conviction and sentence

therefore deserves to be interfered with. In the result,

following order :

ORDER

(i) Criminal Appeal No.401 of 2008 is allowed.

(ii) Impugned judgment and order 12.6.2008 passed

by the learned Special Judge, Pandharkawada in Special

Case No.5/2004 convicting appellant Arun s/o Laxman

Satokar for the offences punishable under sections 7 and 13

(2) of the Prevention of Corruption Act, 1988 is hereby set

aside.

(iii) Appellant Arun s/o Laxman Satokar is acquitted of

the offences punishable under Sections 7 and 13 (2) of the

Prevention of Corruption Act, 1988.

(iv) Bail bonds of appellant Arun s/o Laxman Satokar

shall stand cancelled forthwith.

(v) Fine amount, if deposited, shall be refunded to the

appellant.

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