State Of ... vs Ashok Ramchandra Kshirsagar
2017 Latest Caselaw 2883 Bom

Judgment

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

                    CRIMINAL APPEAL NO.23 OF 2001

The State of Maharashtra,
Through Police Station Officer,
Lakadganj Police Station,
Anti Corruption Bureau,
Nagpur.                                                ..... Appellant.

                                  ::   VERSUS   ::

Ashok Ramchandra Kshirsagar,
Aged 29 years, Patwari Halka
No.10(A), Mouza Binaki, Nagpur.
Now P.H. No.41, Mouza Banwadi
Tahsil and District Nagpur (Rural).          ..... Respondent.

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


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JUNE 7, 2017.

ORAL JUDGMENT

1. Being aggrieved by judgment and order of

acquittal, passed by learned Special Judge on 30.11.2000, in

.....2/-

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Special Case No.25 of 1988, the State has preferred the present

appeal.

By the impugned judgment, the respondent was

acquitted for the offences punishable under Section 161 of the

Indian Penal Code corresponding to Section 7 of the

Prevention of Corruption Act, 1988 (for short, "the said Act")

and under Section 5(1)(d) read with Section 5(2) of the Old

Prevention of Corruption Act corresponding to Section 13(1)

(d) read with Section 13(2) of the said Act.

2. I have heard learned Additional Public Prosecutor

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

Shri S.A. Bramhe for the respondent. With their able

assistance, I have gone through the record and proceedings so

also the notes of evidences of the prosecutions witnesses.

3. According to learned Additional Public Prosecutor

.....3/-

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Ms T.H. Udeshi for the appellant/State, learned Judge of the

Court below committed a mistake in acquitting the

respondent. She submits that the prosecution has proved its

case with the help of the evidences of the prosecutions

witnesses.

4. Per contra, learned counsel Shri S.A. Bramhe for

the respondent submits that after proper evaluation and

appreciation of the entire prosecution, learned Judge of the

Court below, in his submissions, was right in acquitting the

respondent. He submits that the view taken by learned Judge

of the Court below is not perverse one. He also points out that

every piece of evidence, as brought on record during the

course of the Trial, was considered in its correct perspective

by learned Judge of the Court. Hence, prays for dismissal of

the appeal.

5. The facts, giving rise to the present appeal, are as

.....4/-

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under:

6. PW1 Krishna Ganpatrao Pathrabe approached to

the Anti Corruption Bureau on 18.11.1986. His complaint is at

Exhibit 17. The gist of the complaint is, that in the year 1980

his brother Shamraoji purchased a plot bearing No.3 from one

Shri Sai Seva Ashram Cooperative Housing Society Limited,

Nagpur for Rs.4,200/-. His brother purchased the said plot in

the name of his wife (sister-in-law of the complainant). The

said plot was not converted from agricultural to non-

agricultural use. Therefore, his sister-in-law received a Notice

in October 1986 from Naib Tahsildar, Nagpur by which the

demand of Rs.506.35 were made from his sister-in-law by way

of arrears of land revenue.

It is further stated in complaint Exhibit 17 that

since his brother was serving in Defence, his sister-in-law

Pushpa gave Rs.506.35 and Notice and asked him to deposit

.....5/-

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the same. Therefore, on 13th and 14th /11/1986 though he made

visits to the Tahsil Office, could not meet the concerned

Talathi (present respondent). Therefore, again on 17.11.1986

he went to the Tahsil Office and had a meeting with the

respondent. The complainant asked the respondent to accept

the amount and pass the receipt. However, as per the

complaint, the respondent after perusal of the Notice,

informed that the Notice is served 20.10.1986 and, therefore,

the amount, so demanded in the Notice, ought to have been

deposited on or before 27.10.1986. Thus, there is delay in

making the payment. Therefore, action can be taken against

Pushpa (sister-in-law of the complainant). Upon that, the

complainant pleaded that though it is his mistake, no action

should be taken. On that, as per the complaint, for avoiding

action, Rs.50/- should be paid extra besides the amount

mentioned in the Notice. Ultimately, as per the complaint, the

.....6/-

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respondent agreed to accept Rs.40/-. This fact was informed

by the complainant to his sister-in-law, who asked the

complainant not to pay excess amount and, therefore,

complaint with the Anti Corruption Bureau Exhibit 17 was

lodged.

7. After getting the complaint from PW1 Krishna,

PW5 Police Inspector Shri Mohd. Shabbir s/o Sk. Ismail Rizvi

called two panchas by issuing requisition. On their arrival,

they were informed about the complaint lodged by the

complainant. As per the prosecution case, necessary

demonstration of Anthracene powder was shown to the

panchas since the Anti Corruption Bureau decided to lay a

trap on the respondent. A pre-trap panchanama is available

on record at Exhibit 33.

8. It is the further case of the prosecution that the

trap party proceeded in a jeep to the Tahsil Office. However,

.....7/-

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the respondent was not present in the Office. As per the

prosecution, the complainant informed PW5 Police Inspector

Rizvi that the respondent must be in his house and, therefore,

the complainant requested PW5 Rizvi that the trap should be

arranged at the house of the respondent. Therefore, the

raidying party proceeded towards the house of the

respondent.

On reaching to the house of the respondent, the

complainant saluted him. After noticing pancha No.1, the

respondent demanded amount, which was paid to him and,

thereafter, agreed signal was given.

On receipt of agreed signal, raidying party

pounced upon the respondent. The amount was seized from

the respondent. The post-trap panchanama Exhibit 40 was

drawn. Thereafter, PW5 Police Inspector Rizvi prepared his

report Exhibit 47 and forwarded the same to the Lakadganj

.....8/-

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Police Station for registration of the offence. The various

documents were also seized.

9. Charge under Section 161 of the Indian Penal

Code corresponding to Section 7 of the said Act and under

Section 5(i)(d) read with Section 5(2) of the Old Prevention of

Corruption Act corresponding to Section 13(i)(d) read with

Section 13(2) of the said Act was framed against the

respondent. The respondent pleaded not guilty and claimed

for his Trial.

In order to prove its case, the prosecution

examined in all 5 witnesses. The statement of the respondent

was also recorded under Section 313 of the Code of Criminal

Procedure. The defence of the respondent was of total denial.

10. The evidence of PW1 Krishna Pathrabe shows that

his mother and sister-in-law have purchased a plot. The

.....9/-

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Notice for Tax was served against them and on 20.10.1986 he

went to the Tahsil Office to pay the Tax. He also states that on

11.11.1986 he has deposited Rs.614.30 Tax of his mother and

the respondent has issued receipt.

11. Perusal of complaint Exhibit 17 by PW1 Krishna

and his substantive evidence shows that there are material

omissions in his complaint and those material omissions are

proved by PW5 Police Inspector Shri Rizvi. PW5 Police

Inspector Shri Rizvi has stated at Exhibit 44 that:

"..... complainant has not stated before him that on 11.11.1986 in the evening his brother has given him Rs.506.35 to deposit the tax. The complainant did not state before him that he was not having a time for two days from 11.11.1986. Complainant did not state before him that if tax is not deposited fine would be imposed. Complainant did not state before him that he has given Rs.506.35 to the accused, accused has counted it as it as there was Rs.40/- rupees less therefore accused has returned to him. Complainant did not state before him when accused was not seen in

.....10/-

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Tahsil office he inquired with other persons, from other persons the complainant came to know that accused went to home.

Complainant has not stated that he has deposited the tax of the mother with accused on 11.11.86. Needless to say that these are material omissions which amounts to contradictions. Again PW5 Rizvi has proved contradictions from evidence of the complainant which has been right marked as portion mark A+B Exhs.56 & 56-A. ...."

12. As per the defence of the respondent, he has

accepted Rs.40/- not as a bribe but it was a balance amount of

the Tax which was remained to be paid by the complainant.

The complainant deposited the Tax in the name of his mother

on 11.11.1986. That delay, since the respondent was knowing

the complainant, he has accepted less amount of Rs.40/- as the

complainant has agreed to pay this balance amount when he

will deposit the Tax in the name of his sister-in-law. However,

the complainant did not deposit the Tax amount within time.

Therefore, the respondent scolded the complainant and,

.....11/-

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therefore, the false case was lodged against him at the

instance of PW2 Police Constable Bhaurao Namdeorao

Dukare, who was serving in the office of the Anti Corruption

Bureau. Thus, passing of tainted notes in the hand of the

respondent is not in dispute. Therefore, whether said was a

balance or Tax or bribe amount, therefore, in my view,

learned Judge of the Court below not attaching much

importance to the chemical analyzer's report is correct.

13. Cross-examination of PW1 Krishna Pathrabe

shows that his evidence is not free from doubts. He has

admitted that the anti corruption officials had been to his

house prior to recording of his evidence, not only that they

read over to him his report, panchanama and the statement.

Further, it is stated that he was instructed that he will have to

depose before the Court as per the written documents. This

shows that the complainant was a tutored witness. From the

.....12/-

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line of cross-examination of the prosecution witness it is a

defence of the respondent that the complaint is lodged against

him at the behest of PW2 Police Constable Bhaurao Dukare.

14. In cross-examination, PW2 Police Constable

Bhaurao Dukare has stated that it depends upon the officer

the amount of reward after the successful trap. This

prosecution witness was one of members of the trap party. At

the time of trap, he entered into the house of the respondent.

The evidence of PW5 Police Inspector Shri Rizvi

also corroborates that PW2 Police Constable Bhaurao Dukare

has taken an active participation and role in the trap.

It is also brought on record that the houses of

complainant, respondent, and PW2 Police Constable Bhaurao

Dukare are situated in the same locality. Therefore, in my

view, learned Judge of the Court below has rightly drawn an

.....13/-

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inference that it appears to be probable that the complainant

met PW2 Police Constable Bhaurao Dukare before lodging of

report.

15. The evidence of PW1 complainant Krishna shows

that he was in financial crunch at the time of incident.

However, while lodging report, he has taken extra amount to

the Office of the Anti Corruption Bureau. In that view of the

matter, the suggestion given to the complainant appears to be

probable that he came to know from PW2 Police Constable

Bhaurao Dukare that before going to the Office of the Anti

Corruption Bureau, he has to take Rs.40/- with him.

16. Learned Judge of the Court below has also

rightly noticed the changing version from-time-to-time.

Further, from the cross-examination of the complainant,

it is clear that the alleged incident does not seem to be

natural and probable because the complainant has

.....14/-

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stated that after depositing of the Tax amount, he got

his name entered into the register through the

respondent. That means, if the respondent would have

intended to take bribe from the complainant in the

ordinary course, he would not have taken entry in the

name of the complainant without accepting the bribe

amount. There was no demand on 11.11.1986, but it

discloses a natural conduct on the part of the

respondent and an unnatural conduct on the part of the

complainant. The complainant has admitted that on

11.11.1986 the respondent has got angry against him and

said that he has not deposited the amount within time.

The complainant has further admitted that he informed

the respondent that due to financial difficulty, he was

unable to deposit the Tax amount within time. Due to

this admitted position and suggestion, as noticed in the

.....15/-

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evidence, it appears probable that on 11.11.1986 the

respondent got angry against the complainant and,

therefore, false complaint was lodged against the

respondent to take revenge.

17. PW3 a pancha Gajanan Bisan has turned

hostile. In my view, learned Judge of the Court below

has correctly appreciated the evidence of PW3 Gajanan

though he was declared hostile to reach to the

conclusion that the defence of the respondent did not

crop up at the eleventh hour during the Trial, but he

opened his defence at the initial stage of the trap itself.

18. Learned Judge of the Court below, on

appreciation of the evidence, has, in my view, correctly

reached to the conclusion that the prosecution has

failed to prove that there was any demand on the part of

the respondent and in pursuance to the said demand,

.....16/-

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the respondent has accepted Rs.40/-. The demand and

acceptance are sine qua non for proving the case under

the provisions of the Prevention of Corruption Act.

Since the said was not found to be proved by learned

Judge of the Court below, on appreciation of the

evidence, which I notice cannot be disturbed since the

view of learned Judge of the Court below is based on the

correct appreciation of the evidence.

Hence, the criminal appeal fails and is dismissed.

JUDGE

!! BRW !!

...../-