Md.Abdul Khaleq Md.Mirad vs The State Of Maharashtra
2017 Latest Caselaw 5113 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 307 OF 2001

Md.Abdul Khaleq s/o Md. Mirad,
Age : 58 years, Occu.: Nil,
R/o.: Aurangabad                                           APPELLANT

       VERSUS

The State of Maharashtra                                   RESPONDENT

                          ----
Mr. Abhaysing K. Bhosale, Advocate for the Appellant
Mr. P.N. Kutti, A.G.P. for respondent/State
                          ----

                                    CORAM :   SANGITRAO S. PATIL, J.

                           Reserved on  :     13th JULY, 2017
                           Pronounced on:     27th JULY, 2017

JUDGMENT : 

Heard learned counsel for the appellant and the

learned A.P.P.

2. The appellant has challenged his conviction and

sentence for the offences punishable under Sections

7 and 13 (2) read with Section 13 (1) (d) of the

Prevention of Corruption Act, 1988 ("the Act", for

short). He has been sentenced to suffer rigorous

imprisonment for 1 ½ year and fine of Rs.500/- for the

offence under Section 13(2) and rigorous imprisonment

for nine months and fine of Rs.500/- for the offence

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under Section 7 of the Act. He has deposited the fine

amount.

3. The complainant namely Mehmood Ainul Haq,

resident of Prabudhnagar, Panchakki Road, Aurangabad was

running a flour mill near his residential premises. He

was having two electric meters, one for domestic use and

another for industrial purpose. The appellant (original

accused No. 1) and one Shrirang Ashruba Pawar (original

accused No. 2) were working as line-foreman and lineman,

respectively with Maharashtra State Electricity Board

(MSEB), City Club Sub-Division-1, Aurangabad. There

were arrears of bill standing against the complainant in

respect of the meter of domestic use. Therefore, accused

No.2 removed that meter on 20 th June, 1994. The

complainant deposited the arrears and prayed for

restoration of the electric meter for his domestic use.

However, despite his taking repeated rounds to the

office of the MSEB, he could not get installed his

domestic meter. Eight days prior to 12 th December, 1994,

the appellant met the complainant and assured him to

instal meter immediately in case an amount of Rs. 235/-

was paid. The complainant showed him the receipts in

respect of clearing the arrears of bill and showed his

3 criapl307-2001

disinclination to pay the amount demanded by the

appellant. The complainant further met accused No. 2 to

enquire about the progress in the matter of installation

of the domestic meter. Accused No. 2 also suggested him

to give him money for getting his work done immediately.

After meeting accused No.2, the complainant started

going back. At that time, the appellant met him and

voluntarily offered him concession of Rs. 35/- and asked

him to pay Rs. 200/- for restoration of his domestic

electric meter. He told the complainant that without

paying that amount, his work will not be done.

Therefore, the complainant approached the office of Anti

Corruption Bureau (ACB) and lodged complaint against the

appellant and accused No.2.

4. The pre-trap panchanama was prepared.

Necessary instructions were given to the panchas and

the complainant. The currency notes of Rs. 200/-,

tainted with anthracene powder, were given to the

complainant. The trap could not be laid on 12th

December, 1994 and therefore, again pre-trap panchanama

was prepared on 13th December, 1994 and all instructions

were again given to the panchas and the complainant. On

that day, the raiding party went to the office of MSEB.

4 criapl307-2001

The appellant was not found in the Fuse Call Centre.

When the complainant was coming back to wireless tower,

the appellant met him. The complainant told the

appellant that he had become fed-up of making rounds

after rounds for getting the meter, whereon the

appellant reminded him of telling twice to pay money for

getting the work done. The complainant then told the

appellant that he had brought Rs. 200/- as demanded by

the appellant on the previous day. Thereon, the

appellant asked the complainant to pay the amount of Rs.

200/-. The complainant then took out the currency notes

of Rs. 200/- tainted with anthracene powder from his

right-side pocket of the shirt and held them before the

appellant. The appellant took those currency notes by

his right hand and kept them in the right side pocket of

his pant. The complainant then gave the predetermined

signal and the appellant was caught hold of with the

currency notes of Rs. 200/- tainted with anthracene

powder. After registering the crime and completing

further investigation, the appellant came to be

chargesheeted for the above mentioned offences.

5. Since there was reference of accused No. 2 in

the complaint about having demanded money, on the

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application of the appellant, accused No. 2 also was

added as a co-accused. However, the learned Trial Judge

acquitted accused No. 2 on the ground that there was no

previous sanction for his prosecution and further the

bribe money was not accepted by accused No. 2.

6. There is no dispute that the currency notes of

Rs. 200/- tainted with anthracene powder were recovered

from the appellant. Therefore, it is not necessary to

dilute the evidence in respect of pre-trap panchanama

and trap panchanama upto the stage of recovery of the

tainted currency notes from the appellant.

7. The learned counsel for the appellant submits

that, in fact the amount was demanded by accused No. 2.

The appellant received the amount of Rs. 200/- from the

complainant for being paid to accused No. 2. This fact

has been admitted by the complainant in his cross-

examination. There was no demand made by the appellant

on the day when the trap was laid. Therefore, mere

recovery of the tainted currency notes from the

appellant would not constitute the above mentioned

offences. In support of this contention, he relied on

the judgments in the cases of C.M. Girish Babu Vs. CBI,

Cochin, High Court of Kerala (2009) 3 SCC 779, State of

6 criapl307-2001

Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (2009)

15 SCC 200, P. Satyanarayana Murthy Vs. District

Inspector of Police, State of Andhra Pradesh and another

(2015) 10 SCC 152 and M.R. Purushotham Vs. State of

Karnataka (2015) 3 SCC 247. The learned counsel further

submits that the complainant as well as the trap

witnesses were tutored by the officials of the ACB. They

were asked to depose as per the statements recorded by

the officers of the ACB. Therefore, their evidence

cannot be relied on. He then submits that the sanction

for prosecution of the appellant also is not valid. He,

therefore, prays that the appellant may be acquitted of

both the offences.

8. As against this, the learned A.P.P. submits

that once it is proved that the appellant accepted the

currency notes tainted with anthracene powder, there

would be presumption under Section 20 of the Act that he

accepted that amount towards illegal gratification other

than the legal remuneration. The appellant failed to

rebut this presumption. He submits that there is

sufficient evidence on record to show that the appellant

also demanded the bribe amount of Rs. 200/- from the

complainant for restoration of his domestic electric

7 criapl307-2001

meter. The appellant consciously accepted the bribe

amount of Rs. 200/- from the complainant in pursuance of

his earlier demand for money. He submits that the Trial

Court has rightly appreciated the evidence and rightly

convicted the appellant for the above mentioned

offences.

9. The complainant in his deposition (Exh-7)

specifically states that when he went to the office of

MSEB on 12th December, 1994 to enquire about restoration

of his domestic meter, accused No. 2 asked him to pay

Rs. 200/- for restoration of the meter. He told accused

No. 2 that he had no money and left the office. He

further states that on the same day, the appellant met

him and told him that no work would be done unless money

was paid. He then states that the appellant had demanded

Rs. 235/- for restoration of the meter prior to 2 to 3

days of 12th December, 1994. However, on 12th December,

1994, the appellant demanded Rs. 200/- and gave

concession of Rs. 35/- in the presence of accused No. 2.

The complainant told the appellant that he had no money

and went away. At that time also, the appellant told the

complainant that unless the money was paid, no work

would be done. The complainant then lodged the complaint

8 criapl307-2001

(Exh-8) against the appellant and accused No. 2 as well.

The contents of the complaint (Exh-8) corroborated the

version of the complainant in this regard. From this

evidence, it is clear that the amount of Rs. 200/- was

demanded by the appellant from the complainant for

restoration of his domestic meter. Since the appellant

was working as a line-foreman, he was very much

connected with the work of restoration of the meter.

Moreover, on the face of accused No.2, the appellant was

making demand of Rs. 200/- by giving concession of Rs.

35/- to the complainant. From the evidence of the

complainant, it cannot be inferred that the appellant

was asking for Rs. 200/- from the complainant for being

paid to accused No. 2.

10. The trap was laid on 13th December, 1994. The

complainant states that on that day, as instructed by

the officers of ACB, he went to the office of MSEB

alongwith the panch Bhikan (PW2) (Exh-11). The appellant

and accused No. 2 were not present in that office.

Therefore, they went towards wireless tower. The

complainant saw the appellant near that tower. After

exchanging salutations, the complainant told the

appellant that he was tired of visiting the office of

9 criapl307-2001

MSEB. Thereafter, he gave the amount of Rs. 200/- to

the appellant and requested him to do his work. The

appellant accepted that amount and kept it in the pocket

of his pant. Thereafter, the complainant gave signal by

removing his cap and the raiding party caught hold of

the appellant. The tainted currency notes of Rs. 200/-

were recovered from the appellant.

11. Bhikan (PW2), the trap witness, states that

after the complainant met the appellant, there had been

exchange of salam between them. The complainant told

the appellant about his harassment, whereon the

appellant said that he had told him twice to give him

the money for getting his work done. Thereupon, the

complainant replied that as per the talks of the

previous day, he had brought Rs. 200/-. The appellant

said that he had asked for Rs. 235/-, but he (the

complainant) could give Rs. 200/-. Thereafter, the

complainant handed over the amount of Rs. 200/- to the

appellant, the appellant accepted that amount by his

right hand and kept it in the right side pocket of his

pant. This evidence of Bhikan (PW2) supports the

evidence of the complainant.

12. It has come in the cross-examination of Bhikan

10 criapl307-2001

(PW2) that he was standing by the side of the

complainant at the time of the trap. The learned

counsel for the appellant pointed out to the evidence of

the appellant where he states that Bhikan (PW2) was

standing behind him at the distance of 10 to 15 feet.

Even if this discrepancy is considered and it is

accepted that the panch Bhikan (PW2) was at the distance

of 10 to 15 feet from the complainant and the appellant,

it would not be difficult for him to see the transaction

between them as well as hear the conversation that was

going on.

13. It seems that the evidence of the complainant

has been recorded after about six years of the incident

in question. Naturally, some variation is bound to be

there in his statement before the Court and the factual

position that was recorded in his earlier statement as

well as the trap panchanama. Therefore, if he forgets

to state about the demand that was made by the appellant

at the time of the trap, which demand has been

specifically stated by panch Bhikan (PW2), it cannot be

said that the appellant paid the bribe amount of Rs.

200/- to the appellant without there being any demand

from his side. As stated earlier, there is specific

11 criapl307-2001

evidence of the complainant about the demand of money

made by the appellant 2 to 3 days prior to 12 th December,

1994 and also on 12th December, 1994.

14. It has come in the cross-examination of the

complainant that had accused No. 2 met him, he would

have given that bribe money to accused No. 2. It has

further come in his evidence that as accused No. 2 did

not meet him, he gave the bribe amount to the appellant.

Bhikan (PW2) also states that had accused No. 2 met the

complainant, the tainted money would have been given to

accused No. 2. These statements of the complainant and

Bhikan (PW2), in my view, would not ensure to the

benefit of the appellant to seek exoneration of the

charges levelled against him.

15. There is sufficient evidence on record to show

that it is not only accused No. 2 but the appellant also

had demanded bribe of Rs. 200/- from the complainant for

restoration of his domestic meter. The appellant had

gone one step ahead of accused No.2, given concession of

Rs. 35/- and asked the complainant to pay Rs. 200/-

only. It is not clarified by the appellant as to under

what authority, he gave concession of Rs. 35/- and

12 criapl307-2001

demanded Rs. 200/-, when according to the appellant, the

bribe amount was to be paid to accused No. 2. The

complainant had lodged the complaint against both, the

appellant and accused No. 2, for demanding bribe. It

was, therefore, natural on the part of these witnesses

to state that had accused No. 2 met them, the bribe

amount would have been paid to accused No.2. In the

circumstances, the above mentioned admissions of the

complainant and Bhikan (PW2) would be of no help to the

appellant to show his innocence.

16. The learned counsel for the appellant placed

emphasis on the evidence of the complainant and Bhikan

(PW2) wherein they stated that they were made to read

their statements to refresh their memories and

therefore, their evidence cannot be considered. I am

not inclined to accept this contention. There is

nothing in their cross-examination to establish that

they are deposing before the Court only because they

were tutored. The evidence of these witnesses is quite

natural. The minor discrepancies in their statements

lend assurance about the genuineness of their versions.

The evidence of these witnesses cannot be disbelieved

only because they were asked to refresh their memory by

13 criapl307-2001

reading their previous statements.

17. The evidence on record is sufficient to

establish that the appellant demanded Rs. 200/- from the

complainant for restoration of his domestic meter. The

said demand was made thrice i.e. 2 to 3 days prior to

12th December, 1994, on 12th December, 1994 and also on

the day when the trap was laid i.e. 13 th December, 1994.

The appellant consciously accepted the bribe amount of

Rs. 200/- from the complainant. The circumstances

disclosed from the evidence of the complainant and

Bhikan (PW2) do not indicate that the amount of Rs.

200/- was accepted by the appellant for and on behalf of

accused No.2. The appellant failed to rebut the

presumption laid down in Section 20 of the Act. Thus,

the prosecution has established the guilt of the

appellant for the offences punishable under Sections

7 and 13 (2) read with Section 13 (1) (d) of the Act.

18. Since the prosecution has established the

demand of bribe on the part of the appellant, the

judgments in the cases of C.M. Girish Babu (supra) and

State of Maharashtra Vs. Dnyaneshwar Laxmanrao Wankhede

(supra), cited by the learned counsel for the appellant,

14 criapl307-2001

would not be applicable to the facts of the present

case. In the case of M.R. Purushotham (supra), the

complainant himself had turned hostile and as such, the

demand was not proved, while in the case of P.

Satyanarayana Murthy (supra), the demand could not be

proved as the complainant himself had died before the

trial. In the present case, there is positive and

dependable evidence of the complainant about the demand

of bribe made by the appellant. Hence, this case would

not be helpful to the appellant.

19. The learned counsel for the appellant tried to

assail validity of the sanction order passed by Manik

Zarkar (PW3) (Exh-20), the Superintending Engineer of

MSEB. He states that he had gone through the case

papers received from the office of ACB, studied the case

papers, applied his mind thereto and after getting

satisfied that there was a prima facie case against the

appellant, passed sanction order (Exh-21) for

prosecution of the appellant. Here, reference may be

made to clause (a), sub-section (3) of Section 19 of the

Act wherein it is stated that notwithstanding anything

contained in the Code of Criminal Procedure, 1973, no

finding, sentence or order passed by a special Judge

15 criapl307-2001

shall be reversed or altered by a court in appeal,

confirmation or revision on the ground of the absence

of, or any error, omission or irregularity in, the

sanction required under sub-section (1), unless in the

opinion of that court, a failure of justice has in fact

been occasioned thereby. I have discussed the evidence

in respect of the present case and found that the

appellant demanded the bribe amount of Rs. 200/- from

the complainant and consciously accepted it as bribe.

No failure of justice can be said to have been caused by

the sanction order (Exh-21). In the circumstances, the

sanction order cannot be assailed by the appellant at

this stage.

20. The prosecution has established guilt of the

appellant for the above mentioned offences. The learned

Trial Judge has rightly considered the facts of the case

and rightly appreciated the evidence on record. The

learned Trial Judge rightly held the appellant guilty

for the above mentioned offences.

21. The learned counsel for the appellant relying

on the judgment in the case of V.K. Verma Vs. Central

Bureau of Investigation (2014) 3 SCC 485, submits that

the appellant is now aged about 80 years. Therefore, in

16 criapl307-2001

view of this judgment, instead of sending him behind the

bars, he may be sentenced to pay enhanced fine amount.

In the above cited case, the accused was convicted for

the offences punishable under Section 161 of the Indian

Penal Code and Section 5 (1) (d) of the Prevention of

Corruption Act, 1988. As per sub-section (2) of Section

5 of the Act, any public servant, who committed criminal

misconduct, was liable to be punished with imprisonment

for a term which should not be less than one year but

which might extend to seven years and should also be

liable to pay fine, provided that the court might, for

any special reasons recorded in writing, impose a

sentence of imprisonment of less than one year. Thus,

the discretion was vested in the court to reduce the

sentence of imprisonment less than the minimum

prescribed for that offence. No such discretion has

been given to the court under sections 7 and 13 (2) of

the Act of 1988. As such, the minimum sentence of

imprisonment for committing the offence under Section

13(2) is one year and for the offence under section 7,

six months. No discretion is vested in the court to

reduce it from one year and six months respectively.

Consequently, the above cited judgment would not be

helpful to the appellant to claim reduction in the

17 criapl307-2001

sentence of imprisonment less than minimum. However,

considering the old age of the appellant, I think fit to

show some leniency and reduce the sentence of

imprisonment of one and half years to the period of one

year for committing offence under section 13 (2) read

with section 13 (1) (d) of the Act. The conviction and

sentence of the appellant for the offence under section

7 of the Act needs no interference. However, both the

substantive sentences would run concurrently. In the

result, I pass the following order:-

O R D E R

(i) The appeal is partly allowed.

(ii) The conviction of the appellant for the

offences punishable under Sections 7 and 13 (2)

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

of Corruption Act, 1988, is confirmed.

(iii) The impugned order of sentence of imprisonment

passed against the appellant for the offence

under Section 13 (2) read with Section 13 (1)

(d) of the Prevention of Corruption Act, 1988

is modified and is reduced to rigorous

imprisonment for one year, but the sentence of

18 criapl307-2001

fine is maintained as it is.

(iv) The impugned order of sentence passed against

the appellant for the offence under Section 7

of the Prevention of Corruption Act, 1988, is

maintained as it is.

(v) The substantive sentences of imprisonment shall

run concurrently.

(vi) The appellant shall surrender to his bail bonds

and appear before the Trial Court on or before

3rd August, 2017 for suffering the sentence of

imprisonment.

(vii) In case the appellant fails to surrender as

stated above, the Trial Court shall issue

coercive process to secure his presence.

(viii) The Criminal Appeal is disposed of accordingly.

Sd/-

[SANGITRAO S. PATIL] JUDGE

npj/criapl307-2001