Rajendra S/O Ramlal Mishra vs State Of Maharashtra
2017 Latest Caselaw 4529 Bom

 apeal.38.01 and 46.01                           1        

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

                     CRIMINAL   APPEAL NO.38 OF 2001


 Gajanan S/o Sitaram Hiralkar,
 Aged about 38 years,Occ-Service,
 In the office of S.D.M.Balapur,
 District-Akola, 
 R/o Balapur,District-Akola                                              ... APPELLANT

       ...V E R S U S...

 The State of Maharashtra.                                             ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri  R.M.Patwardhan,Advocate for appellant.
 Shri N.B.Jawade,A.P.P. for State-respondent.  
 ------------------------------------------------------------------------------------------

                     CRIMINAL   APPEAL NO.46 OF 2001

 Rajendra S/o Ramlal Mishra,
 Aged about 30 years,Occ-Jr.Clerk,
 S.D.M.Court, Balapur,
 Presently, Tahsil Court Risod,
 Taluka Risod,District-Washim.                                           ... APPELLANT

       ...V E R S U S...

 The State of Maharashtra.                                             ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri  R.M.Patwardhan,Advocate for appellant.
 Shri N.B.Jawade,A.P.P. for State-respondent.  
 ------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- JULY 14,2017

ORAL JUDGMENT

Both these appeals are decided and disposed of by this

common judgment since these appeals arise out of judgment and

order of conviction passed by learned Special Judge,Akola dated

8/2/2001 in Special Case No.10/1992 by which both the

appellants are convicted for the offence punishable under Section

7 of the Prevention of Corruption Act and were sentenced to suffer

R.I. for two years and to pay fine of RS. 500/- by each of them.

2] Heard Shri R.M.Patwardhan, learned counsel in both

these appeals and Shri N.B.Jawade, learned A.P.P. for

respondent-State.

3] The Criminal Appeal no.38/2001 is filed by original

accused no.2 Gajanan Sitaram Hiralkar and Criminal Appeal

No.46/2001 is filed by original accused no.1 Rajendra S/o Ramlal

Mishra.

4] At the relevant time, accused no.1 Rajndra was working

as Jr.Clerk in the Court of Sub-Divisional Magistrate,Balapur and

accused no.2 Gajanan was peon.

5] Both the accused were charged by the learned Special

Judge,Akola for the offence punishable under Section 7 of the

Prevention of Corruption Act, and also for the offence punishable

under Section 13(1)(d) read with Section 13(2) of the Prevention

of Corruption Act.

6] As per prosecution case, accused no.1 Rajendra, a

Jr.Clerk on 26/6/1991, demanded a bribe amount of Rs. 100/-

from Prabhakar Narayana Gadhe(PW1) for releasing him on bail

without insisting for any surety and solvent certificate and also for

helping him in disposal of criminal case. As per the prosecution

case, on 2/7/1991 at Balapur accused no.2 accepted an amount of

Rs. 100/- and thus he has abetted the offence committed by

accused no.1.

7] The complaint lodged with Anti Corruption Bureau by

Prabhakar(PW1) is at Exh.25. The said complaint is lodged on

1/7/1991. As per the said complaint Prabhakar (PW1) prepares

eatables in a hotel owned by his brother Sadashiv. Before 4-5

months when he was present in his house police personnel from

P.S.Balalpur came to his house and he was arrested. They also

arrested Rambhau Ingale, Jotising Babusing, Sk.Usman Sk.Baba

and other two persons to P.S.Balalpur. They were put behind the

bar by the police station authority,Balapur. Thereafter they were

produced in the Court of S.D.M.Balapur. The other persons

furnished sureties therefore they were released, however

complainant failed to furnish surety and therefore, he was sent to

Akola Jail. As per the complainant, the complainant was in Akola

Jail for 1 and ¾ month and thereafter his mother Shewantabai

furnished surety and he was released on bail. The complainant

further states that later on he came to knowledge that another

case under Section 110 of Code of Criminal Procedure, is filed

against him.

The complainant further states that on 25/6/1991 one

P.C.Hiwrale served a summons upon him from the Court of

S.D.M.Akola. Accordingly, on 26/6/1991 he went to S.D.M.Court

at Balapur and met accused no.1 Rajendra. He asked him to bring

surety and solvency for bail. Upon that, complainant informed that

he has furnished surety of his mother and therefore, why the

solvent surety is required. The complainant further states that

thereafter accused no.1 asked him not to bring solvent surety. He

gave next date as 2/7/1991 and asked him to bring an amount of

Rs.100/- on the said day. With this, the complaint was lodged.

8] The investigating officer Dy.S.P.Dashrath Dayaram

Gawande(PW9) after taking complaint decided to lay trap on

accused no.1 Rajendra. He called panch witnesses Bhimrao

Tulshiram Shengolkar(PW2) and Ravindra Dayanand Pawar

(PW6). The complaint was read over to them. Demonstration of

phenolphthalein powder was also given. The pre-trap panchnama

is at Exh.28.

9] As per the prosecution case, on 2/7/1991 raiding party

proceeded towards the Court of S.D.M.Balapur. Ravindra(PW6)

remained with raiding party whereas Bhimrao(PW2) acted as a

shadow panch. As per the prosecution case on the said day,

accused no.1 Rajendra demanded money and directed to pay the

same to accused no.2 Gajanan who accepted the phenolphthalein

powder smeared currency note. On getting the pre decided signal

the raiding party apprehended accused persons. That it was

pointed out that it is accused no.2 who has accepted the bribe

amount. His hands were washed with solution. The solution took

violate colour. The post trap panchnama is at Exh.34. Thereafter

A.S.I.Alasing Bhikaji Rathod(PW5) of P.S.Balapur registered an

offence vide Crime No.175/1991.

10] Merely because phenolphthalein powder smeared

currency note is found is not enough to convict the accused

persons.

11] Demand of bribe is a sine qua non for constituting an

offence. In the present case, both the appellant are acquitted of the

offence punishable under Section 13(1)(d) r/w Section 13(2) of

the Prevention of Corruption Act, and they are convicted only for

Section 7 of the Prevention of Corruption Act. Thus, it is for the

prosecution to prove the demand beyond reasonable doubt.

12] The evidence of Prabhakar(PW1) shows that on

26/6/1991 when he went to the Court of S.D.M.Balapur that time

accused no.1 Rajendra asked him to take bail. It is his evidence

that accused no.1 Rajendra said that he would dispose of the case

and for that he wants Rs. 100/- and he gave date as 2/7/1991.

13] It is not the case of the prosecution that, on 26/6/1991

accused no.2 Gajanan was present or that he was in know that

accused no.1 has demanded bribe amount from complainant.

During the course of investigation, the investigating officer has

seized roznama of Chapter case. The said roznama is available on

record at Exh.26. Roznama of 26/6/1991 shows that presence of

the complainant in the Court. Not only that, he was directed to

produce surety on 2/7/1991 and it is duly signed by

S.D.M.Balapur. Thus, it is hard to believe that on 26/6/1991

accused no.1 could demand an amount of Rs. 100/- for disposal of

the case on 2/7/1991, since the said date was fixed for production

of surety by the complainant.

The role of the complainant in prevention of

corruption cases are likely of accomplice. Corroboration to the

version of complainant is required. Except the bare words of the

complainant that on 26/6/1991 accused no.1 Rajendra demanded

Rs. 100/- for disposal of case on 2/7/1991, there is no other

material. Further, the contemporaneous document (Exh.26) belies

complainant that on 26/6/1991 accused no.1 Rajendra demanded

Rs. 100/- for disposal of the case and it was kept on 2/7/1991 for

the same. Exh.26, the order sheet dated 26/6/1991 shows that

next date was fixed on 2/7/1991 only for production of the surety

by the complainant.

14] In so far as the demand date of trap i.e. on 2/7/1991

the evidence of complainant Prabhakar(PW1) is as under:

"Myself and panch no.1 started going to the S.D.M.Court. The court is in Balalpur Fort. Accused no.1 Rajendra was present in Court. I met him. Panch no.1 was with me. Accused no.1 Rajendra asked me if I brought money. I said yes. Accused no.1 Rajendra has not accepted that amount. He told me to go away. He told me to give that amount to peon. The peon was outside the room. His name was Gajanan. Accused no.2 Gajanan before the Court is the same. Accused no.1 Rajendra before the Court is the same. I came out. Panch no.1 was with me. I met the peon accused no.2 Gajanan. I took out the money from pocket. I started to give money to accused no.2 Gajanan. I gave money to accused no.1 Gajanan. Accused no.2 Gajanan took money by right hand. I gave signal by scratching my head by hand. The amount was given in verandah".

However, Bhimrao(PW2),the panch gives following version in his

evidence, which is re-produced as under:

" Myself and PW-1 Prabhakar Gadhe went in the office of S.D.M. It was about 12.45 p.m. PW-1 Prabhakar saluted accused no.1 Rajendra by taking his name,

therefore, I came to know that the accused no.1 Rajendra was the same person. PW-1 Prabhakar asked accused no.1 Rajendra to take out his case. The accused no.1 Rajendra asked PW1 Prabhakar who I was and how I accompanied with him. The complainant PW-1 Prabhakar told accused no.1 Rajendra that I was his relative. Accused no.1 Rajendra asked PW-1 Prabhakar if he has brought the solvency and other documents. Accused no.1 Rajendra said if he has brought Rs.100/-,PW-1 Prabhakar said yes. Accused no.1 Rajendra asked us to stay outside for sometime and he would call us lateron. Accordingly we stayed outside. After 15 to 20 minutes, we again went inside the office. Accused no.1 Rajendra took out the case of PW-1 Prabhakar,and asked me to go out. I was leaving the room. By that time, SDM came in the office. Till then, he was not in the office. On his arrival, we both were asked to go out and come after some time. We saw one person wearing pyjama and shirt near the door of the office. We were standing near him. 15 to 20 minutes thereafter, accused no.1 Rajendra came out of the room. He told the peon who was there to take money from PW-1 Prabhakar. The name of that peon was Hiralkar. The person who was wearing pyjama and shirt was the same peon Hiralkar. Accused no.1 Rajendra told the peon Hiralkar that he should take the money from PW1-Prabhakar similar to Muley. The accused no.1 Rajendra went in another room.

Thereafter PW1 Prabhakar took out 100 rupees note by his right hand from his right pocket and gave it in the right hand of peon Hiralkar. I was near PW-1 Prabhakar then. PW-1 Prabhakar then gave signal to other raiding party by scratching his head by left hand."

Thus, reading of the relevant portions of the evidence from these two witnesses (PW1) and (PW2) clearly show that they are at variance on all material aspects. They are not corroborating with each other on the material aspects.

15] Further, in the cross-examination of complainant(PW1)

it is brought on record that when firstly he was detained in jail

that time accused no.1 Rajendra was clerk in the said Court and

when he was released on bail that time also accused no.1 Rajendra

was clerk in the Court. It is also brought on record in first case in

which complainant was released on bail was disposed of by

S.D.M.

16] It is also brought on record that after the first case was

disposed of the complainant received summons for the proceeding

under Section 110 of Code of Criminal Procedure after 5-6 months

and when he went to S.D.M. Court on 26/6/1991 no surety was

with him. In the cross-examination, complainant has specifically

admitted that it is the S.D.M. who ordered him for bringing the

surety on 2/7/1991. Not only that the S.D.M. obtained his

signature on the proceeding. As per the evidence of complainant

therefore, he was annoyed and he felt that he would be required

to remain in jail if the bail is not given. It is also brought on record

in the cross-examination of the complainant that he was annoyed

and feared and therefore he went to the office of A.C.B. and filed

the complaint.

17] From the evidence of the complainant it is crystally

clear that the prosecution has completely failed to prove the

demand of 26/6/1991, when the veracity of the evidence of the

complainant was tested in the cross-examination. It is also

brought on record that the date was not given by accused no.1

Rajendra but the S.D.M. himself gave next date as 2/7/1991. Not

only that S.D.M. himself has directed the complainant for surety

and he was asked that surety should remain present on 2/7/1991.

In view of th above, it is crystally clear that the complainant was

feared and was annoyed as accepted by him and therefore, he

lodged the report with A.C.B.

18] Merely, because the prosecution witnesses are coming

and are stating that by itself is not sufficient to hold that there was

a demand on the day of the trap as claimed by the prosecution.

The Court is required to scrutinise the entire evidence of the

prosecution as a whole. Since, the S.D.M. kept the matter on

2/7/1991 for producing the surety on behalf of the complainant

and even as per the evidence of Bhimrao (PW2) S.D.M. was

present in the Court it is difficult to accept the versions of the

prosecution witnesses that on the said day there was a demand of

Rs. 100/- in presence of S.D.M.

19] The standard of proof as required under Section 20 of

the Prevention of Corruption Act, is not proved beyond all

reasonable doubt. The Court has to consider preponderance of

probability is the law laid down by Hon'ble Apex Court in the case

of State of Punjab..vs..Madan Mohan Lal Verma,

2013(4)Crimes 41(SC). Further, it is not even the prosecution

case that accused no.2 Gajanan was knowing that the accused

no.1 Rajendra has demanded Rs. 100/-. Further, even according

to the prosecution, the tainted amount was accepted by accused

no.2 Gajanan in verandah. It is brought on record through the

prosecution witnesses that other litigants were present in the

verandah. However, none of such independent witness is

examined by the prosecution.

20] On reappreciation of the prosecution case, I am of the

view that prosecution has failed to prove its case beyond

reasonable doubt. Hence, both the appeals are required to be

allowed. Hence, the order.

ORDER

I) The Criminal Appeal Nos.38/2001 and 46/2001 are allowed.

II) The judgment and order passed by learned Special Judge, Akola dated 8/2/2001 in Special Case No.10/1992 convicting the appellants is hereby quashed and set aside.

III) The appellants Gajanan Sitaram Hiralkar and Rajendra Ramlal Mishra are acquitted of the offence punishable under Section 7 of the Prevention of Corruption Act.

 IV)            Their bail bonds stand cancelled. 




                                                        JUDGE
 Kitey