Vijaykumar Kashinath Nafde vs The State Of Mah.(Anti Corruption ...
2017 Latest Caselaw 4760 Bom

 apeal.275                                       1        

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

                  CRIMINAL   APPEAL NO. 275  OF  2001


 Vijay Kumar S/o Kashinath Nafde,
 Aged about 62 years,
 Occupation- Retired Govt. Servant,
 R/o Vimal Nagar, C.T.Road,Amravati.         ..... APPELLANT

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

  
 State of Maharashtra,
 Through Anti Corruption Bureau
 Chandrapur.                                                        ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri  Chaitanya Barve ,Advocate for appellant.
 Shri   Indranil Damle,A.P.P. for State. 
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- JULY 20 ,2017

ORAL JUDGMENT

The present appeal is directed against the judgment and

order of conviction dated 7/9/2001 in Special Case No.2/1993 by

learned Special Judge,Chandrapur.

By the impugned judgment and order of conviction the

appellant is convicted for the offence punishable under Section 161

of the Indian Penal Code( Section 7 of the Prevention of Corruption

Act,1988) and sentenced to undergo R.I. for six months and to pay a

fine of Rs.500/- and in default of payment of fine amount to undergo

R.I. for one month. He is also convicted for the offence punishable

under Section 5(2) of the Prevention of Corruption Act, 1947

(Section13(2) of the Prevention of Corruption Act,1988) and

sentenced to undergo R.I. for one year and to pay a fine of Rs.

1000/- and in default of payment of fine to undergo R.I. for two

months.

2. Before adverting to the merits of the case, it would be

useful to note that along with Special Case No.2/1993 , Special

Case No.1/1993 was also conducted before Special Judge,

Chandrapur. The trap in question of these two special cases was one

and the same. Special Case No.2/1993 was against the present

appellant and also against one Vasant Laxmanrao Bhivapurkar. In

Special Case No.1/1993 Vasant Laxamanrao Bhivapurkar is also co-

accused with the appellant.

By the impugned judgment in Special Case No.2/1993

the learned Court below acquitted Vasant Laxmanrao Bhivapurkar.

Special Case No.1/1993 was also decided on 7/9/2001

itself and in that learned Special Judge, Chandrapur acquitted the

present appellant,however convicted Vasant Laxmanrao Bhivapurkar.

Appeal was also carried by convicted accused before this Court

bearing Criminal Appeal No.276/2001. However, during the

pendency of the said appeal Vasant Laxmanrao Bhivapurkar expired

and therefore vide order dated 8/5/2017 the appeal stands abated

against him.

3. Present appeal arises out of Special Case No.2/1993. The

record of Special Case No.2/1993 shows that application (Exh.52)

was moved by learned A.P.P. incharge of both those special cases to

the effect that the evidence of all witnesses except the evidence of

complainant in Special Case No.1/1993 should be considered while

deciding Special Case No.2/1993 and the evidence in Special Case

No.1/1993 be read in Special Case No.2/1993. The learned Judge

looking to the fact that both the special cases were arising from the

same trap allowed the application(Exh.52).

4. Now reverting back to the merits of the present case , it

can be seen that complainant Tukesh Patruji Wanode(PW1)

approached to ACB Office at Chandrapur on 24/2/1987. He lodged

his oral report(Exh.34). The report(Exh.34) states that complainant

Tukesh is studied upto 12th Standard and 28 acres of agricultural

land stands in the name of his father which is situated within the

boundary limit of village Karanji, Tahsil- Gondpipri,District-

Chandrapur. Complainant Tukesh was intending to start a video

centre at his residential house. According to complainant for

obtaining licence of video centre from Collector (Entertainment

Department),Chandrapur no objection certificate is required from

the office of Assistant Electrical Inspector,Sub-Division, Industry,

Energy and Labour Department,Chandrapur. Therefore, he

approached to the said office on 23/2/1987. For obtaining such

certificate he submitted an application with a clerk of the said office

Shri Nagpure. Shri Nagpure accepted the said application and

handed over the carbon copy of the same to the complainant. That

time, present appellant,Assistant Electrical Inspector and Senior

Clerk Shri Bhivapurkar (acquitted accused) were not present in the

office.

The complaint further proceeds that on 24/2/1987

complainant again went to the office of the Assistant Electrical

Inspector and met the appellant. He informed that on previous day

he has applied for obtaining no objection certificate to start video

centre. According to the complainant, thereafter appellant told him

that no objection certificate will be issued within a period of three

months on payment of fee of Rs. 50/- and that time he also

demanded Rs. 150/- by way of bribe. Thus,Rs.200/- were asked from

him for obtaining no objection certificate.

The complaint further proceeds that after meeting the

appellant when the complainant was coming out from his office he

met one person. His identity was disclosed as Wasudeo Balaji Tadas

(complainant in Special Case No.1/1993). He also disclosed to the

present complainant that when he had been to the present appellant

Rs.200/- were asked by the present appellant for issuance of no

objection certificate. Since both of them were not ready to give bribe

amount they decided to lodge the complaint against the present

appellant and Vasant Bhivapurkar. Both of them lodged the separate

complaints.

5] At the relevant time Mohd. Yasin was Dy.S.P. ACB.at

Chandrapur. After receipt of the complaint from complainant

Tukesh panch witnesses were called. The complaint was read over to

them. As it was decided to to lay trap, the formalities for laying a

trap were completed in the office of ACB Chandrapur by drawing

pre-trap panchnama(Exh.71).

6] Panch Shri Suresh Tiple was asked to remain with the

complainant. On 24/2/1987, the trap was laid and the tainted

amount was accepted by the appellant. A detailed panchnama

(Exh.79) was executed. Thereafter, Mohd. Yasin lodged a report with

P.S.Chandrapur. That time Vilas Madhukarrao Deshmukh (PW4) was

duty officer. He registered the offence vide Crime No.99/1987

against the appellant and Vasant Bhivapurkar.

7] After full fledge trial of the appellant in Special Case

No.2/1993 was convicted, though he was acquitted in Special Case

No.1/1993. Similarly, Vasant Bhivapurkar was acquitted in Special

Case No.2/1993 but he was convicted in Special Case No.1/1993.

8] Heard Shri Chaitanya Barve, learned counsel for the

appellant and Shri Indranil Damle, learned A.P.P. for State in

extenso.

9] Two submissions were made by learned counsel for

appellant. One that there is no valid sanction on record. He

submitted that previously on two occassions sanction to prosecute

the appellant was refused by the competent authority and without

there being any change the sanction in question was granted by

Shantaram Budhaji Thakur(PW3), a under Secretary to the

Government of Maharashtra of P.W.D. by signing the sanction order

(Exh.46). He relied on decision of Hon'ble Apex Court in the

reported case State of Himachal Pradesh..vs..Nishant Sareen,

(2010)14SCC 527 and made submission that in the absence of any

fresh material the subsequent sanction order is not valid sanction

order. He relied on the decision of Hon'ble Apex Court in the

reported case of Mohd. Iqbal Ahmed..vs..State of Andhra Pradesh,

(1979)4 SCC 172 and pointed out that if the prosecution is not

armed with the valid sanction then entire prosecution must fail and

appellant is entitled for acquittal. He also submitted that there is no

corroboration to the version of complainant in respect of demand of

24/2/1987 in the office of the appellant or even at the time of trap.

He therefore submitted that the appellant be acquitted.

10] Per contra, learned A.P.P. would submit that the Court

below has rightly considered the evidence of the complainant. He

submitted that in view of the evidence the learned Court below

recorded the findings of guilt against the present appellant.

11] In the cases arising out of the Prevention of Corruption

Act, the complainant to be regarded as an accomplice. The evidence

of the complainant requires corroboration in respect of the material

particulars before his testimony being relied upon is the settled

principle of law.

12] In the present case, both the panch witnesses could not

be examined by the prosecution in view of their demise before the

trial commenced.

13] According to complaint first visit of complainant Tukesh

to the office of the appellant was on 23/2/1987. On the said date,

admittedly, appellant or acquitted accused were not present in the

office. On the same day, an application was submitted by

complainant Tukesh for obtaining no objection certificate. The said

application was handed over to Shri Nagpure, a clerk of the office.

The evidence of Nagpure was recorded in Special Case No.1/1993.

He turned hostile. Apart from the said fact it is not the prosecution

case that on 23/2/1987 there was any demand to the complainant

either by the present appellant or even from his office.

On 24/2/1987, at about 11.30 hrs. in the morning is the

second visit of the complainant to the appellant's office. That time,

according to complainant he met appellant and informed that on

previous date he has filed an application for obtaining no objection

certificate and upon that appellant demanded Rs. 200/-. Out of that

Rs. 50/- was legal fee and Rs. 150/- was bribe amount. The

complaint and the evidence of the complainant is totally silent that

when this demand was made by appellant in any one's present.

14] It is the further case of the prosecution that after coming

out of the office of the appellant complainant met another

complainant Shri Tadas who also disclosed that he was also

demanded money by the office of the apepllant and therefore, both

of them approached to ACB Office.

15] As per the evidence of Tukesh(PW1) at 4.00 p.m. he and

other complainant Shri Tadas reached to the office of the

complainant, that time he, deceased panch Shri Tiple and another

complainant Shri Tadas entered the office. The other members of the

raiding party were waiting outside. As per evidence of complainant

Tukesh,he,Shri Tiple and Shri Tadas went to acquitted accused

Bhivapurkar. They asked him about the appellant, that time it was

informed that appellant had gone to M.I.D.C. and therefore he asked

them to wait till appellant reach the office. Therefore, they made a

wait upto 6.00 p.m. and at about 6.15 p.m. appellant came to the

office. Thereafter acquitted accused Vasant Bhivapurkar went to

appellant with a file. Thereafter Vasant Bhivapurkar issued two

receipts for that Shri Tadas paid Rs. 100/- to Shri Vasant

Bhivapurkar. Two receipts were required to be issued because

according to complainant Shri Tadas was intending to obtain two no

objection certificates. It is further evidence of Tukesh that after

making payment of Rs. 100/- acquitted accused Vasant Bhivapurkar

asked as to whether he has brought the remaining amount.

Thereupon, the currency notes were given to Vasant Bhivapurkr by

Shri Tadas. Thus, presence of complainant with Shri Tadas at the

time of handing over the amount is there.

According to further evidence, thereafter appellant

demanded amount which was paid. As per the Version of

complainant that time Shri Tadas was sitting with Vasant

Bhivapurkar in his room. This evidence in my view appears tobe

improbable since both Shri Tadas and complainant Tukesh made

complaint in the ACB Office. Not only that a trap was laid on their

complaint. Further, at the time of handing over the tainted money by

Shri Tadas appellant was present. Therefore, normally Shri Tadas

will not leave company of the complainant when the transaction

between him and the appellant took place, Thus, even at the time of

trap though Shri Tadas was present the complaint is not pointing out

his presence to prove that demand was made by appellant and on his

demand tainted amount, was given. Therefore, the alleged demand

at the time of trap as claimed by the complainant goes

uncorroborated.

16] No doubt,true that notes smeared with phenolphthalein

powder were found in possession of the appellant. It is a trait law

that mere recovery and possession of the tainted amount itself is not

sufficient to convict a public servant for the offence punishable under

Section 13(1)(d) of the Prevention of Corruption Act,unless the

prosecution clinchingly prove that there was a demand from a public

servant. In that behalf, useful reference can be made to the

authoritative pronouncement of the Hon'ble Apex Court in the case

of B.Jayraj..vs..State of Andhra Pradesh,(2014)13SCC 55.

17] In the present case, P.W.2 is one Shri Prabhakar Vitthal

Borkar,however his evidence is not useful for deciding the present

appeal since Shri Prabhakar Borkar was the sanctioning authority in

respect of acquitted accused Vasant Bhivapurkar.

18] Against the appellant, the sanction is given by Shri

Shantaram Budhaji Thakur(PW3). The sanction order is at Exh.46. In

the cross-examination Shri Shantaram Thakur(PW3) has deposed as

under:

" It is true that sanction order in this case was passed in cancellation of two earlier sanction orders dated 30/10/1991 and 26/5/1992. I have brought the xerox

copies of earlier sanction order issued in this case. Both the earlier sanction orders were sent to Anti-Corruption Department."

The sanction order (Exh.46)is dated 1/12/1992. As per the

aforesaid admission on two occasions on 30/10/1991 and

26/5/1992 sanction orders were given. What was the occasion for

issuance of third sanction order is not brought on record by the

prosecution. That requires to draw a presumption that either on

earlier two occassions sanction was granted by authority not

competent to grant or sanction authority found that the sanction

was defective.

19] There is no bar for issuance of valid sanction if the earlier

sanction orders were found to be defective by the sanctioning

authority itself. However, in view of law laid down by the Hon'ble

Apex Court in the case of State of Himachal Pradeesh..vs..Nishant

Sareen (cited supra) there should be fresh material placed before the

sanctioning authority. Paragraphs no.13 and 14 of the said judgment

are reproduced herein below:

" 13.In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been

collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course.

14. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/ or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent Order dated 15/3/2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible."

20] On the touchstone of the aforesaid law and in view of the

fact of the case that sanction order is totally silent that fresh material

was placed before the sanctioning authority at the time of issuance of

sanction order in question, I have no hesitation to record finding that

sanction order is not valid.

21] Further, if sanction is not valid or legal one then in view

of the decision of Mohd. Iqbal Ahmed..vs..State of Andhra

Pradesh (cited supra) the conviction of the appellant cannot stands

to the scrutiny of law.

22. Further, even according to the complainant he moved the

application for no objection certificate on 23/2/1987. According to

complainant on 24/2/1987 appellant demanded Rs.200/-. The

bifurcation of the said amount is Rs. 50/- towards legal fees and Rs.

150/- by way of illegal gratification. However, the sanction authority

(PW3) has stated in his cross-examination as under:

" At the time of signing the sanction order, I was aware of the fact that the licence fee for video centre was enhanced to Rs.300/- with effect from 12/1/1987."

If that be so, the fee was Rs.300/- and not Rs.50/- as claimed by the

complainant.

23. The evaluation of the evidence above shows that

prosecution has not proved its case in respect of the demand from

the complainant beyond reasonable doubt coupled with the fact that

sanction was also found to be defective. Therefore, the appellant

requires to be acquitted from the charge for which he is convicted.

Hence, following order.

                               ORDER

 I)             The appeal is allowed.



 II)            The judgment and order of conviction dated 7/9/2001 in 

Special Case No.2/1993 is hereby quashed and set aside.

III) The appellant is acquitted of the offence punishable under Sections 161 of the Indian Penal Code(Section 7 of the Prevention of Corruption Act,1988) and under Section 5(i)(d) punishable under Section 5(2) of Prevention of Corruption Act,1947(Section 13(2) of the Prevention of Corruption Act,1988).

 IV)            His bail bonds stand cancelled.




                                                       JUDGE

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