Bombay High Court
Dattatraya Laxman Bagdi vs State Of Maharashtra on 28 August, 2017
Bench: B. H. Dangre
902-apeal-576-01.doc
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 576 of 2001.
Dattatraya Laxman Bagdi, ] ..Appellant.
Age 31 years, Occupation-Service ]
Now residing at Mukkam Post ]
Harli Khurd, Taluka Gadhinlaj, ]
District Kolhapur. ]
V/s
State of Maharashtra, ]
(Inspector of Police ]
Anti Corruption Bureau, ]
Kolhapur.) ] ..Respondent.
Mr. B.R. Patil i/by Mr. Ganesh Gole for the appellant.
Mr. S.V. Gavand, APP for the State of Maharashtra.
------
CORAM :- SMT. BHARATI H.DANGRE J.
RESERVED ON :- 28 th July, 2017.
PRONOUNCED ON:- 28 th August, 2017.
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902-apeal-576-01.doc
JUDGMENT
1) The present appeal is filed by the appellant being
aggrieved by the judgment and order delivered by the Special
Judge, Gadhinglaj, District Kolhapur, in Special Case No.3 of
2000 (State of Maharashtra Vs. Dattatraya Laxman and one
Anr) thereby convicting the appellant/original accused no.1
for the offence punishable under Section 7 and 13 (2) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as
"the PC Act") and sentencing him to suffer rigorous
imprisonment for five years and six years respectively and
directing that the substantive sentences to run concurrently.
2) The case of the prosecution in nut-shell is narrated
in the subsequent paragraphs :-
(i) That the complaint was lodged by
Shri Sudhir Bhimgonda Patil to the Anti
Corruption Officer alleging that the appellant who
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was working as Talathi Dundage had demanded
an amount of Rs.1900/- from him for recording
his name in the 7/12 extract register in respect of
agriculture land Gat No.119 and 115 situated at
village Mouje Dundage which the complainant
had purchased from one Shiladevi Hiremath. It
was alleged by him that he had submitted an
application in the Talathi office Dundage for
recording his name on 29th August, 1999 along
with the necessary documents. It is alleged in the
complaint that the appellant was working as
Talathi in the said office and on 29th August,
1999 he demanded a sum of Rs.2,000 for
recording the mutation entry and for giving its
effect in the record of 7/12 extract and 8A
Extract of the purchased land. It is further
alleged in the complaint that since he did not pay
the amount, after two months when the
complainant met the Talathi and enquired about
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his work, he was told that it is in progress and it
would not be completed unless an amount of
Rs.2000/- is paid and on his inability to pay such
huge amount, the same was reduced to Rs.1900/-,
as he was warned that if the amount is not paid
the work would not be done. The complainant also
alleged that the appellant had threatened to
cancel the entry through the Circle Inspector, if
he would not collect the money by on 3rd
December, 1999. He was asked to bring the
amount on 3rd December, 1999 after 11:00 a.m.,
in the Talathi office.
(ii) On the report being lodged, the Anti
Corruption Officials arranged a trap at Talathi
office Dundage on 3rd December, 1999. In the
trap, two panchas accompanied the complainant
in the office of Talathi and on demand of bribe
amount by the appellant, the complainant handed
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over the tainted cash amount to one Shri
Satyappa Nayku Kokate who was present in the
Talathi office as per instructions of the appellant.
On receiving the signal from the complainant,
both the accused persons were rounded by the
Anti Corruption Officials and the amount of
tainted currency was recovered from the inner
pocket of the accused no.2. The remaining
procedure in respect of drawing panchnama,
comparison of the serial number of the currency
notes mentioned in the pre-trap panchnama and
another documents were seized from accused
no.1 and map of the scene of offence was also
obtained from the Taluka Inspector of Land
Records (T.I.L.R.) office. For the purpose of grant
of sanction copies of the relevant papers were
submitted to the Sub-Divisional Officer Shri
Sanjaysing Chavan (PW 2) who accorded sanction
for prosecution and thereafter charge-sheet was
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submitted against both the accused for the
offences punishable under Section 7, 12, 13 (1)
(d) read with section 13 (2) of the Prevention of
Corruption Act. Charge was framed against both
the accused who pleaded not guilty and claimed to
be tried.
(iii) Defence of accused is of total denial. In his
statement recorded under Section 313 of the Code
of Criminal Procedure, the accused No.1 admitted
visit of the complainant to his office on 3 rd
December, 1999 and supply of 7/12 extracts to
him. According to him, he was falsely implicated
since he belonged to opposite group in the village.
(iv) The Special Judge proceeded with the trial
and examined five prosecution witnesses in
support of the charge framed against the accused
persons. The Special Judge by the impugned
judgment, recorded a finding that the prosecution
has proved beyond doubt that the accused No.1
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demanded gratification other than legal
remuneration from the complainant as motive for
giving effect to mutation entry in record of right
and supply of 7/12 and 8A to him and on
3.12.1999 he accepted bribe through accused
No.2 of an amount of Rs. 1900/-.
(v) That the prosecution had established the
guilt of accused No.1 on the testimony of
Investigating Officer Shri Sudhir Ramchandra
Chougule (PW No.5) and the prosecution had
proved beyond reasonable doubt that there was a
demand made by accused No.1 for gratification
other than legal remuneration from the
complainant, as motive or reward for effecting
mutation entry and for giving effect to the
mutation entry in the record of right and for
supply of extract of 7/12 to the complainant,
while discharging his official duties. The learned
Special Judge also concluded that the prosecution
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has also proved beyond reasonable doubt that on
3rd December, 1999 the accused no.1 accepted
bribe through accused no.2 as gratification and
being public servant by corrupt and illegal means
obtained bribe of Rs.1900 and thus the charge
under section 7, 13 (1) (d) (i) read with section
13 (2) of the Prevention of Corruption Act, 1988
stands proved. For offence under Section 7 the
appellant was sentenced to suffer RI for five
years and fine of Rs.5000/- in default S.I. for three
months. For conviction under Section 13 (2) the
appellant was sentenced to undergo R.I. for six
years and fine of Rs.10,000/- in default of fine
amount simple imprisonment for six months. The
accused No.2 was acquitted of the offence
punishable under Section 12 of the P.C.Act. Being
aggrieved by the said judgment and order the
present appeal has been filed by the appellant.
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3) The appeal was admitted on 7th August, 2001 and
bail was granted to the appellant on the same terms and
conditions as imposed by the Trial Court and the substantive
sentence was suspended. The appellant was directed to pay the
amount of fine and it is informed that the said fine amount has
been paid by him.
4) I have heard the Counsel for the appellant Shri B.R.
Patil and Shri S.V. Gavand, Additional Public Prosecutor
representing the State of Maharashtra. The Counsel for the
appellant assailed the judgment on the following grounds which
were not duly appreciated by the Special Judge.
(a) That the sanction granted by prosecution
witness No.2 (PW No.2) was not proper since he was
not competent to grant the said sanction since he
was not the Authority Competent to remove the
appellant from the office as required under section
19 (1) (c) of the Prevention of Corruption Act;
(b) The Sanctioning Authority had mechanically
approved the draft sanction order which clearly
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exhibited non-application of mind;
(c) That the prosecution story was fallacious since
the work of mutation entries was already completed
on 3rd December, 1999 and hence there was no need
for making any demand of bribe since the work of
mutation entry was completed by the appellant in
the course of discharge of his duty as Talathi; and
(d) That no amount was found with the appellant
and it was accused No.2 who was found with the
money but he was acquitted by the learned trial
Judge.
4(A) In the light of the case of the prosecution, defence of
the accused, findings of the Trial Court and contentions
advanced in the appeal the following points arise for my
consideration:-
(a) Whether the prosecution of accused
No.1 (appellant) is lacked by a valid sanction at
the hands of PW 2 SDO?
(b) Whether the prosecution has proved
that that amount of illegal gratification was paid
by complainant in pursuance of a demand
raised?
(c) Whether the acceptance of amount of
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illegal gratification by accused No.2, which
amount was recovered from him was accepted
by Accused No.2 on the directions of Accused
No.1?
(d) Whether the sentence imposed by the
Special Judge, on conviction of Accused No.1 is
proportionate to the nature of crime?
5) The Counsel for the appellant has vehemently
argued that the appellant was working as Talathi and his
appointment was made on recommendation from the Regional
Staff Selection Board, Pune who had selected him. The Counsel
argued that in view of Section 19 (1) (c) there is a bar on the
Court taking cognizance of an offence punishable under Section
7 by a public servant, except with the previous sanction, in
case of any other person, of the authority competent to remove
him from his office.
It is argued by the learned Counsel that the Sub-
Divisional Officer (for short, the SDO) is not the appointing
Authority of the appellant and it was a Regional Selection
Committee who had selected and appointed the appellant and
therefore the SDO was not competent to remove him and in
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view of the said factual position PW No.2 who was working as
Sub-Divisional Officer, who had granted sanction for the
prosecution of the appellant, was not a sanction in the eyes of
law. The Counsel placed reliance on the recommendation by the
Regional Selection Board dated 5th May, 1997 addressed to the
S.D.O. Ichalkaranji forwarding the list of the selected
candidates to be appointed as Talathi. He also placed reliance
on the order dated 30th May, 1997 appointing several persons
as Talathi issued by the Sub-Divisional Officer which included
the name of the appellant at Serial No.3. He also relied upon
the posting orders of the appellant issued on 17th July, 1998
issued by the SDO Gadhinglaj.
6) I do not find much force in the contention raised by
the Counsel for the appellant for the reason elucidated.
Section 19 of the P.C. Act reads as below:-
Section 19 : - No court shall take cognizance
of an offence punishable under sections 7, 10, 11,
13 and 15 alleged to have been committed by a
public servant, except with the previous sanction,
--
(a) in the case of a person who is
employed in connection with the affairs
of the Union and is not removable from
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his office save by or with the sanction of
the Central Government, of that
Government;
(b) in the case of a person who is
employed in connection with the affairs
of a State and is not removable from his
office save by or with the sanction of the
State Government, of that Government;
(c) in the case of any other person, of the
authority competent to remove him from
his office.
7) Perusal of Section 19 (1) (a) & (b) reveals that in the
case of a person who is employed in connection with the affairs
of the Union and who is not removable from his office, except by
or with the sanction of the Central Government, the sanction, to
prosecute is required to be obtained of the Union Government
and in the case of a person who is employed in connection with
the affairs of a State and is not removable from his office save
by or with the sanction of the State Government, the previous
sanction of the State Government is required to prosecute a
public servant. However, perusal of clause (c) reveals that in
the case of any other person not covered by clause (a) or (b)
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the previous sanction is to be obtained of the authority
competent to remove him from his office.
8) At this stage, it is necessary to understand as to who
is the authority "competent to remove" a public servant from
his office. A public servant is governed by the rules framed in
relation to his conditions of service including appointment and
dismissal. The service rules governing terms and conditions of
service are framed in exercise of the powers flowing from
Article 309 and 311 of the Constitution of India. Article 311 of
the Constitution of India grants protection to holder of a civil
post under the Union or State that he shall not be dismissed or
removed by an authority subordinate to that by which he was
appointed. Thus, in terms of service jurisprudence the
appointing authority is the authority to remove a civil service.
9) Bearing this principle of service jurisprudence in
mind, I proceed to apply the same to the facts in hand. The
appellant was working as Tahsildar and he was appointed by an
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order of appointment signed by the Sub-Divisional Officer. His
order of appointment dated 30th May, 1997 mentions that on
recommendation of his name from the Regional Selection
Board, Pune, he is issued with the order of appointment. His
posting order is also signed by the SDO. Mere mentioning in the
order of appointment that the regional selection board has
recommended his name for appointment to the post of Talathi,
do not make the Regional Selection Board the appointing
authority. The contention of the Counsel for the appellant
therefore deserves to be rejected on the face of it. More so,
however, if the Sub-Divisional Officer is the appointing
authority, then, as a necessary corollary has the powers to
terminate as a public servant enjoys a protection flowing from
Article 311 (1) of the Constitution of India. The use of words
"authority competent to remove" in Section 19 (1) (c) thus
extends to an "authority competent to appoint".
The S.D.O. who has been examined as PW No.2 has
clearly stated that the SDO is empowered to appoint Talathi or
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to remove from service any Talathi. Further the Revenue and
Forest Department (Recruitment Rules of 1984) also reveal
that the SDO is the appointing authority for Talathi. Before the
Trial Court, the counsel for accused No.1 did not raise any
objection in respect of the proposition that the SDO has power
to appoint the Talathi. His objection was as to the relevant
powers of SDO to remove the Talathi. The Apex Court in the
case of P.L. Tatwal Vs. State of Madhya Pradesh, 2014 (II) SCC
431 dealing with the Section 19 (1) (c) has observed as under :-
7. "The appellant comes under Section 19(1)(c).
The competent authority to give previous
sanction is the authority competent to remove
one from service. No doubt the appointing
authority is the authority competent to remove
him from service. Under Section 58 of the
Municipal Corporation Act, 1956, the Standing
Committee is the competent authority for
appointment in any post in the municipality
having a salary for more than Rs.400/- per
month. For easy reference, we may extract the
relevant portion from the statement made on
behalf of the State Government on a specific query
from the court:-
"The Respondent most respectfully
submits that (sic) Section 45 and 48 of
the Municipal Corporation Act 1956
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empowers the Municipal Corporation to
establish the committees and through
Gazette Notification 1977 dated
21.03.1977 whereby Section 58 of the
Municipal Corporation Act was amended,
power was vested in the Standing
committee to appoint any persons on the
post of any such municipal post, which
has maximum salary of more than
Rs.400/-. ... xxx xxx xxx xxx The
Respondent most respectfully submits
that the above mentioned amendment
was made in 1977 and the Petitioner was
initially appointed in the Municipal
Corporation on 17.12.79 by the Standing
committee..."
10) In the said case, the contention of the appellant
before the Court was that he was appointed by an
Administrator and it was only the Administrator who could be
competent to take decision on the sanction for prosecution.
However, the Apex Court concluded that the Administrator
was only an ad hoc arrangement made by the Government,
when an elected committee was superseded or dissolved and
from the Statute it was clear that the authority competent to
remove an officer from service is the authority to give sanction
for prosecution and when the Standing Committee which gave
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the sanction for the prosecution. In the case of the appellant,
the Apex Court held that the trial Court and the High Court
cannot be faulted in taking the view that the order of sanction
for prosecution was by the competent authority.
11) Advocate for the appellant placed reliance on the two
judgments delivered by learned Single Judge of this Court. In
the case of Sakharam Trymbak Patil vs. State of
Maharashtra reported in 1993 Mh.L.J. 276 (Coram : Shri
B.V. Chavan,J) the Court was dealing with Section 6 (1) (c) of
the Prevention of Corruption Act, 1947. The learned Single
Judge held that the accused, a Patwari, was appointed by the
Collector but the sanction was accorded by the SDO who is
subordinate to the Collector. The Court held that the SDO being
subordinate to the Collector could not remove an Officer from
service who was appointed by the Collector as it would cause
violence to Article 311 (1) of the Constitution of India and in
this background sanction for prosecution granted by the SDO
was found bad in law.
12) In the case of Maruti Shinde Vs. State of
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Maharashtra reported in 2011 (1) Bom.C.R.(Cri) 751 ,
the learned Single Judge of this Court (V.M.Kanade,J) was
dealing with a case where the accused was working as Talathi
and the proposal for sanction to prosecute him was submitted
to the SDO who granted sanction. In the said case, the
Appointing Authority of the accused was the Assistant
Collector. Relying upon the judgment of Sakharam Trymbak
Patil, the learned Single Judge has held that in a case where the
Collector appoints the Talathi, the sanction given by the SDO to
prosecute is not valid. The learned APP relied upon a judgment
in case of Vikas Baburao Marathe Vs. State of
Maharashtra reported in 2015 (2) Bom.C.R. (Cri.) 439 ;
wherein the learned Single Judge after referring to all three
judgments mentioned supra had analyzed the provision of
Section 19 (1) (c) in the Act of 1988 and recorded a finding
that the SDO who accorded the sanction, had the power to
remove the appellant from service and therefore it cannot be
said that the sanction was not by a Competent Authority. The
case with which the Court was dealing was of a Talathi and the
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sanction to prosecute him was accorded by the SDO of the
Revenue Division where he was working.
13) In the light of the law referred to above, an
irresistible conclusion can be drawn that the power to remove
a person flows from the power to appoint and in order to
ascertain as to who has the power to remove Talathi to be seen
as to who has the power to appoint. In the present case, the
appellant was appointed by the SDO and it is the SDO or any
officer higher in rank than the SDO who has power to remove
him and therefore no fault can be found with the sanction order
granted by PW No.2.
14) The Counsel for the appellant argued that the
sanctioning officer has not applied his mind while granting the
sanction and he has not referred to the relevant material. It is
settled position that the grant of sanction is an administrative
function and it intended a protection to public servants against
frivolous and vexatious litigation. At the same time grant of
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sanction also ensures that the dishonest officer indulging
himself into an act of corruption by accepting an illegal
gratification is brought before law and is tried in accordance
with law. This authority granting sanction has to be appraised
of all the relevant materials and after applying his mind to the
material placed before him he has to take conscious decision as
to whether fact would reveal commission of an offence under
the relevant provisions. It is not necessary that an elaborate
discussion in that regard in the order is needed but the decision
making the relevant material should be reflected in the order
to arrive at a conclusion that the sanctioning authority has
examined the relevant material placed before him. In the
present case, the perusal of the evidence of PW 2 who accorded
sanction, in the capacity as a SDO, and perusal of the sanction
order reflects that the sanctioning authority has applied his
mind to the material placed before him and arrived at a
conscious decision to prosecute the appellant and it also cannot
be said that the draft sanction order was mechanically accepted
by the Sanctioning Authority, as has been attempted to be
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canvassed before me. The PW No.2 is a Law Graduate and in
the cross-examination he was extensively cross-examined to
reflect his non-application of mind but it is an attempt in vain.
The order granting sanction clearly reflects the material
considered by the sanctioning authority and his application of
mind. I therefore do not find substance in the said point raised
by the Counsel for the Appellant.
15) The Counsel for the appellant further argued that the
prosecution has grossly failed to establish the demand and
acceptance, the key ingredients for establishing an offence
under Section 7, 13 (2) of the P.C. Act. The Counsel argued that
the case of the prosecution that there was a demand on 28th
September, 1999 and again on 1st December, 1999 which was
the basis for lodging a complaint by the complainant with the
Anti Corruption Department, resulting into laying of a trap to
intercept the accused on 3rd December, 1999, is without any
substance since on 3rd December, 1999, the mutation entries
were already effected in respect of the complainant's property
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and therefore the theory of demand for effecting the mutation
entry is highly improbable. It was also argued on behalf of the
Counsel for the appellant that the evidence of PW 3 panch
witness was also found to be totally unreliable by the learned
trial Court and in the judgment the Trial Court had declared PW
3 as "untruthful" and has discarded his testimony in view of the
self-contradictory statements made by him. According to the
learned counsel, the panch witness was a key witness and if his
testimony suffers from any contradiction, the benefit must go
to the accused and the evidence cannot be analysed by putting
his testimony aside on the ground that it is untruthful. The
Counsel therefore argued that the prosecution has failed to
prove the demand and acceptance and moreover the amount
was found in the inside pocket of Bandi of accused No.2 and not
with his client and hence he could not have been convicted by
the trial Court, whereas the accused No.2 secured a clean
acquittal in spite of the smeared notes recovered on his body.
16) The learned APP, on the other hand, argued that on
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the basis of the complaint filed by the complainant, a trap was
laid by a team headed by PW 5 and the accused person was
clearly intercepted on 3rd December, 1999 and the ingredients
of the offence for acceptance of illegal gratification have been
completely satisfied by the prosecution by leading cogent and
reliable evidence.
17) From the evidence on record, it is seen that the
complainant, an agriculturist, had purchased a piece of land at
Mauje Dundage and submitted the application to the Talathi
office for recording mutation entry and for recording his name
in 7-12 extract and 8A record. According to the complainant,
when he approached the office with the said application on 28 th
September, 1999 the appellant demanded an amount of
Rs.2000/- towards the expenditure required for taking
mutation entry. The appellant is a public servant and being a
Talathi it was his duty to maintain record of mutation entry
and after its certification by proper authority gave its effect in
the record of rights and to supply a certified copy of 7/12
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extract and 8A extract. The said demand was reiterated by
the appellant when the complainant had reached his office and
enquired about progress of his work. There was some
negotiation on the amount and the appellant reduced the
amount by Rs.100/- and told the complainant to bring an
amount of Rs.1900/-. The complainant was given an impression
that his work would not be done without payment of money.
The complainant has also stated that on 1st December, 1999
when he was proceeding towards his field, the appellant Talathi
was standing outside his office and he called him and asked
about what he had done about the work which he was supposed
to do and he should tell him whether the amount can be
arranged by him, else he would tell the Circle Officer to cancel
the mutation entry. The complainant being an agriculturist
who had purchased land in his name was desperate to get the
record of rights corrected in his name along with the mutation
entries, he left with no other option, assured the appellant that
he would make arrangement of money and a date was given by
the appellant to visit the office along with money i.e. 3 rd
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December, 1999 at 11:00 a.m. Having understood, that work
cannot be done without the amount being offered as per
demand of the Talathi, the complainant approached the Anti
Corruption Department. After recording the statement of the
complainant, the Anti Corruption Department took preparatory
steps to lay a trap to intercept the accused and a trap was set
up with the assistance of the team constituting PW 5 Shri
Choughule and two shadow witnesses PW 3 and one Shri
Todkar. The currency notes handed over by the complainant to
PW 5 were smeared with anthracene powder and handed over
to the complainant to be delivered to the accused on demand.
Panchanama was drawn and on 03.12.1999. The complainant
along with the shadow witness i.e. PW-3 Gath went to office of
the Talathi.
As per the evidence adduced by PW-1, the
complainant, after entering in the office, specifically enquired
from the appellant as to what had happened to his work and he
was told by the appellant to bring Form of 7/12 extract and
Form 8-A from the shop situated opposite Talathi's office and
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accordingly he brought the said Forms. Evidence of PW-1
reveal that the appellant thereafter asked him (complainant)
whether he had brought the full amount and he was told that he
had brought the full amount. At that time, two other persons.
Shri. Kamble and Shri. Badakar were sitting in the office of the
appellant. The appellant asked the complainant to execute the
necessary formalities for paying the revenue amount and he
also paid flag fund for which he received receipts. According to
the evidence of PW-1, after Shri Kamble and Badakar went
outside the office of the Talathi, one Shri Kokate was present in
the office and the appellant directed the complainant to pay the
amount to Shri Kokate. At that time, Shri Kokate proceeded to
move outside Talathi's office and the complainant followed. As
per the directions of the Appellant, the amount demanded by
the appellant was handed over to Shri Kokate, who accepted
the same.
18) Evidence of PW-3 is un-impeached to the effect of
the demand of money by the appellant when he asked the
complainant, whether he had brought money as per his
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instructions and the complainant replied in the positive. The
evidence is corroborated by PW-3, who accompanied the
complainant in the office of the Talathi on the date on which
the amount was paid in pursuance of the demand. PW-3
categorically stated in his evidence that the appellant told the
complainant to pay the amount brought by him to the person
who was present there. The said witness also corroborated the
complainant on the point that he took the currency note from
his pocket and handed over to the person outside the office of
Talathi. The minor variation in the testimony of this witness
is of no consequence and do not alter the case of the
prosecution as regards demand made by the complainant and
acceptance of the amount in pursuance of the said demand.
The evidence adduced by the prosecution of demand and
acceptance of the amount is cogent and convincing to meet
essential ingredients of offence under section 7 and 13(2) of
the P.C. Act.
19) Counsel for the Appellant has vehemently argued
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that on the date on which the demand is alleged to have been
made and the amount is accepted, the mutation entries have
already been effected. The trial Court has rightly dealt with
the said issue and has observed that the complainant had no
knowledge about the mutation entry being effected in the
record of rights. The trial Court referred to section 150 of the
Maharashtra Land Revenue Code which casts a duty on Talathi
to take entry in the mutation register on every report made to
him under section 149 or any intimation of acquisition or
transfer under section 154 of the Act from any Collector and
after effecting such entry in the register of mutation. It is his
duty to post the complete copy of the entry on the conspicuous
place of Chowdy and give written intimation to the interested
persons. The entry in the register of mutation is not to be
transferred to the record of the rights until it has been duly
certified by the Circle Inspector. The trial Court is perfectly
justified in observing that merely because on 29.08.1999
intimation was given to the complainant, the process of
recording name in the record of rights was not complete. It
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can be seen from the complaint of the complainant that the
appellant also threatened that if the amount is not paid, he will
ask the Circle Inspector to withdraw the said entry. It can thus
be seen from the record which reveals that on 03.12.1999
copy of the 7/12 extract was not supplied to the complainant
and he was totally unaware of the certification of the
mutation entry of his purchased land for which the appellant
had demanded the money. Hence, I do not find substance in
the contention of the learned counsel for the appellant that
since the work of mutation was already done, there was no
occasion for the complainant to raise demand. On the other
hand it can be clearly seen that the appellant was duty
bound to effect mutation entry and record name of the
appellant in the record of rights. However, he attempted to
accept the amount for discharge of his duty, which is in the
form of illegal gratification and the complainant who was left
with no option and not in position to know the progress of his
application, requesting for mutation entry, was compelled to
meet illegal demand by the complainant. The prosecution has
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adduced sufficient evidence to prove demand and acceptance
of the amount by way of an illegal gratification in discharge of
his duty by the appellant who is a public servant and clearly
falls within the purview of section 7 of the P.C. Act. The said
argument of the counsel of the appellant, therefore, needs to be
rejected.
20) Section 20 of the PC Act creates a presumption that
the accused person has accepted gratification other than the
legal remuneration and once the act of acceptance of currency
notes is established by the prosecution, it is incumbent upon
the Court to draw a presumption and the onus is upon the
accused to rebut the said presumption or to demonstrate the
preponderance of probabilities to seek discharge / exoneration
from the charges levelled against him. The appellant has not
placed any material before the trial Court to rebut the
presumption except stating that the currency notes were not
recovered from him and there was no reason why he had raised
the demand when the work of the complainant was already
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done on the date of acceptance of money as alleged. It is the
case of the prosecution that the accused no.2 is the retired
Kotwal and there is no reason why he was present in the office
of the appellant on the given time and went out of the office of
Talathi on the instructions of the appellant. No explanation has
been offered by the appellant about his presence or as to how
the exact amount which was demanded by him, as alleged by
the complainant to effect the mutation entry was recovered
from the accused No.2. In the absence of rebuttal of
presumption by the appellant it can safely be inferred that the
prosecution has proved its case beyond reasonable doubt.
21) In view of the above, I hold that PW 2 was competent
to grant sanction to prosecute the appellant and according to
him, there is no infirmity in the sanction order passed by him
in the capacity as SDO. I also conclude that the appellant has
accepted the amount through accused No.2 as illegal
gratification from the complainant who was interested in
getting the mutation entries effected, though the appellant was
duty bound as a Talathi to effect such entries in due course of
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discharge of his duties. Coming to the point (d) which I have
formulated in the above paragraphs as to whether the sentence
imposed on the appellant is proportionate to the crime with
which the appellant is charged. It is settled proposition that
the punishment imposed should be fit the crime and this is one
of the main object of the sentencing policy. The sentence should
be adequately reasonable and proportionate to the nature of the
culpability involved. It is no doubt true that sentencing is a
matter of discretion of Trial Court and the High Court in an
appellate jurisdiction will only deal with the aspect whether the
said sentence imposed was proportionate or not. The act of the
appellant clearly amounts to corruption which is an evil which
paralises the economical growth of the country and causes
impediment in its progress. The need of the day is to strength
the fight against corruption so that the progress of the nation is
accelerated. In this backdrop, it is necessary to deal with the
offences of acceptance of illegal gratification by public servant
with stern hands and punish the offenders if they are found
guilty of such offence. Though in the present scenario the
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amount of Rs.1900/- which was demanded by the appellant
appears to be a meagre amount, considering the scenario in the
year 1999 when the offences committed, it was a substantial
amount, some 18 years back and looking it from the point of the
complainant who is agriculturist, the said amount undisputably
was the substantial one. In such circumstances, the penalty
imposed by the trial Court for conviction under section 7 of the
PC Act to suffer RI for five years and fine of Rs.5000/-, in
default SI for three months appears to be the proportionate
penalty. Further the imposition of penalty for conviction for the
offence under section 13 (2) for six years RI and fine of
Rs.10,000/- is according to me proportionate penalty since the
said amount was accepted for prosecuting a business which was
required to be discharged by the appellant in connection with
his official functions. The sentence imposed by the trial Court
under Section 7 and Section 13 (2) have been ordered to run
concurrently.
In my considered view, the sentence imposed by the Trial
Court takes into consideration the gravity of the offences and
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falls in line with the object of sentencing policy to create
deterrent on public servant who intend to indulge in such acts
of corruption to discharge their official duties.
22) The prosecution has proved the case against accused
No.1 (appellant) by cogent and reliable evidence and the guilt
of the accused No.1 is established beyond doubt and sentenced
him by the trial Court is proportionate to the nature of offence
committed by the appellant. The Trial Court has taken the
entire evidence on record and on consideration of the factual
and legal scenario in the said matter has recorded that the
appellant is guilty of the offences with which he is charged and
imposed penalty by the impugned judgment dated 30 th
July,2001 in special Case No.3 of 2000 which needs to be
upheld and the appeal filed by the present appellant deserves
to be rejected. Hence the following order:-
:ORDER:
(i) The appeal filed by the appellant/original
accused No.1 Dattatraya Laxman Bagdi is hereby
dismissed and the judgment and order dated 30 th
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July, 2001 passed by the Special Judge,
Gadhinglaj, District Kolhapur in Special Case No.3
of 2000 is upheld as it is;
(ii) The appellant Dattatraya Laxman Bagdi
to surrender before the Special Judge within 15
days from the date of this judgment and order;
(iii) The bail bonds/surety bonds furnished
pending this appeal by the appellant, shall stand
cancelled on expiry of the period of surrender;
(iv) Registry is directed to forward copy of
this judgment and order to the Special Judge,
Gadhinglaj, District Kolhapur and to the Police
Station, Gadhinglaj for necessary compliance; and
(v) An authenticated copy of this judgment
be supplied by the Facilitation Centre, High Court,
Appellate Side, Bombay to the appellant, Free of
Costs, forthwith.
(BHARATI H.DANGRE, J)
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As per order dated 21st August, 2017 passed by this Court,
the appellant is present before the Court. The judgment is
pronounced in the open Court. A copy of Judgment be supplied
to the appellant by the Facilitation Centre, High Court,
Appellate Side, Bombay to the appellant Free of Costs forthwith.
Certified copy expedited.
(Smt. Bharati H.Dangre,J)
Dated:- 28th August, 2017.
Mumbai.
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