Bombay High Court

State Of Mah.Thr.A.C.B.Buldhana vs Sakharam Banduji Jadhav on 19 July, 2017

Bench: V.M. Deshpande

Judgment

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

                   CRIMINAL APPEAL NO.326 OF 2003

The State of Maharashtra,
Through the A.C.B. Buldhana,
Taluka and District Buldhana.                       ..... Appellant.

                                 ::   VERSUS   ::

Sakharam Banduji Jadhav,
Aged about 42 years,
Occupation Head Constable, B.No.713,
P.S. Buldhana, Taluka & District Buldhana.  ..... Respondent.

================================================================
           Ms T.H. Udeshi, Addl.P.P. for the Appellant/State.
           Shri A.A. Gupta, Counsel for the Respondent.
================================================================


                           CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 19, 2017.



O R A L   J U D G M E N T

1. The present appeal is directed against judgment

and order of acquittal passed by learned Special Judge at

Buldana dated 28.2.2003 in Special Anti Corruption Case No.1

.....2/-

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of 1997 by which learned Special Judge acquitted the

respondent for the offences punishable under Sections 7 and

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

Corruption Act, 1988.

2. I have heard learned Additional Public Prosecutor

Ms T.H. Udeshi for the appellant/State and learned counsel

Shri A.A. Gupta for the respondent, in extenso. They took me,

in detail, through the record and proceedings so also notes of

evidence.

3. The respondent, at the relevant time, was working

as a Police Head Constable in Buldana District. He was

attached to Buldhana Police Station.

4. As per the charge, the respondent on 8.12.1995 and

12.12.1995 demanded and obtained gratification of Rs.400/-

from PW3 complainant Sudhakar Laxman Hivale for not

.....3/-

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taking any action against him on the basis of complaint

lodged by one Rukhminibai Baliram More.

The prosecution examined in all 7 witnesses.

5. PW1 Atulchandra Madhukarrao Kulkarni is the

Sanctioning Authority. Sanction order issued by him is at

Exhibit 17.

6. PW2 is Atmaram Pundlik Aarakh. According to

the prosecution, through him the respondent gave a message

to complainant Sudhakar Hivale, his mother, and his sister

and asked them to come to Buldhana.

7. PW3 Sudhakar Hivale is complainant who has

lodged complaint Exhibit 26 with the Anti Corruption Bureau.

8. PW4 Ramdas Pundlik Nimkarde, who was working

as Surveyor, was called by the officials of the Anti Corruption

Bureau at Buldana to act as pancha. He has proved Exhibit 28

.....4/-

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pre-trap panchanama and Exhibit 29 post-trap panchanama.

9. PW5 Indrabai Laxman Hivale is mother of

complainant Sudhakar Hivale. She has deposed that there

was a quarrel between her daughter Anita and Rukhminibai

More and, thereafter, Rukhminibai started alleging that

Indrabai's daughter Anita has stolen away her earring tops.

Thereafter, Rukhminibai lodged report against complainant

Sudhakar Hivale, Indrabai Hivale, and Anita.

10. PW6 Jamnaprasad Sattyanarayan Pande is the

Investigating Officer.

11. PW7 Anita w/o Ramesh Zine is sister of PW3

complainant Sudhakar Hivale. She is also examined on the

point that the respondent has called Sudhakar at Buldana.

12. The respondent also examined one witness

Hasanrao Keshavrao Ubarhande as DW1 to point out that the

.....5/-

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amount, which was accepted by the respondent, was not

towards illegal gratification. However, it was an amount of

settlement between Rukhminibai and Sudhakar.

13. The respondent is not disputing acceptance of

amount on 12.12.1995 through PW3 complainant Sudhakar

Hivale which was smeared with Phenolphthalein Powder.

There is no omission, contradiction, or variance on material

point of time in between evidences of PW3 complainant

Sudhakar Hivale and PW4 Ramdas Nimkarde.

14. Merely because smeared notes are found in

possession with the accused, that by itself is not sufficient to

hold the accused guilty for the offences under Section 13(1)(d)

read with Section 13(2) of the Prevention of Corruption Act,

1988 unless the prosecution successfully proves that there was

a demand for illegal gratification by a public servant. Useful

.....6/-

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reference can be made to an authoritative pronouncement of

the Honourable Apex Court in the case of B. Jayaraj ..vs..

State of Andhra Pradesh, reported at (2014)13 SCC 55.

Paragraph No.7 of the said judgment reads as under :

"In so far as the offence under Section 7

is concerned, it is a settled position in

law that demand of illegal gratification

is sine qua non to constitute the said

offence and mere recovery of currency

notes cannot constitute the offence

under Section 7 unless it is proved

beyond all reasonable doubt that the

accused voluntarily accepted the money

knowing it to be a bribe. The above

position has been succinctly laid down

in several judgments of this Court. By

way of illustration reference may be

made to the decision in C.M. Sharma

..vs.. State of A.P. and C.M. Girish

.....7/-

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Babu ..vs.. C.B.I."

The Honourable Apex Court in the case cited

supra noticed that since the prosecution was not able to

prove the demand, the only other material available is the

recovery of the tainted currency notes from the

possession of the accused therein. In fact, such

possession is admitted by the accused himself. The

Honourable Apex Court then observed that mere

possession and recovery of the currency notes from the

accused without proof of demand will not bring home

the offence under Section 7. The above also will be

conclusive insofar as the offence under Section 13(1)(d)

(i)(ii) is concerned as in the absence of any proof of

demand for illegal gratification, the use of corrupt or

illegal means or abuse of position as a public servant to

obtain any valuable thing or pecuniary advantage

.....8/-

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cannot be held to be established. The Honourable Apex

Court in the case cited supra also ruled that insofar as

the presumption permissible to be drawn under Section

20 of the Act is concerned, such presumption can only be

in respect of the offence under Section 7 and not the

offences under Section 13(1)(d)(i)(ii) of the Act.

15. It is to be noted that defence of the respondent,

that he accepted amount from PW3 complainant Sudhakar

Hivale by way of settlement amount in between Rukhminibai

More and complainant Sudhakar to the effect that the said

amount of Rs.400/- was towards the money of earring tops

which were taken away by PW7 Anita Zine, did not crop up at

eleventh hour during the course of Trial.

The respondent's statement by the investigating

officer was recorded on 16.12.1995. In said statement dated

.....9/-

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16.12.1995, the respondent pointed out that he took money

from Sudhakar Hivale since there was a settlement in

between Sudhakar and Rukhminibai More to give amount to

Rukhminibai. The said statement was part and parcel of

papers those were sent to PW1 Sanctioning Authority Shri

Atulchandra Kulkarni. Said Sanctioning Authority Shri

Atulchandra Kulkarni has also accepted in his cross-

examination that statement dated 16.12.1995 was before him

and which is having a reference of settlement between

Sudhakar and Rukhminibai about the amount.

16. Learned Judge of the Court below noticed that the

Sanctioning Authority did not apply its mind. Further, PW6

Investigating Officer Jamnaprasad Pande has also accepted in

his cross-examination that during the course of investigation

he has recorded statement of Hasanrao Ubarhande who was

examined as a defence witness. Though investigating officer

.....10/-

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recorded his statement, the investigating officer has stated

during the course of his cross-examination that since it was

not supportive to the prosecution, he chose not to file said

statement on record. In my view, learned Judge of the Court

below has rightly considered of non-placing statement of DW1

Hasanrao Ubarhande on record and non-examining him as

prosecution witness in its correct perspective.

Further, it would be useful to point out the

evidence of PW2 Atmaram Pundlik Aarakh. This witness was

not declared hostile by the prosecution and, therefore, what

this prosecution witness states is binding on the prosecution.

The relevant portion from his evidence is as under:

"It is true that Jadhav had said to me that I

should ask Sudhakar to come to Buldana on

next day to make the payment of their

settlement. Jadhav had also stated that

.....11/-

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Rukhminibai was insisting him that though

there was settlement between he and

Sudhakar, but she has not received the

settlement amount. When I gave message to

Sudhakar, he said that he will go

accordingly."

From the aforesaid evidence also it is clear that

learned Judge of the Court below was right that on

preponderance of probabilities the defence of the respondent

was probable one and, therefore, merely because tainted notes