The State Of Maharashtra vs Shivaji Khashaba Kamble
2017 Latest Caselaw 2429 Bom

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nsc.
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO.754 OF 2002

       The State of Maharashtra                                  ...Appellant
                                                                 (Orig. Complainant)
                Versus

       Shivaji Khashaba Kamble
       Electric Inspector,
       Piramal Nagar, Building No.II,
       Block No.D/14, S.V.Road,
       Goregaon (West),                                          ...Respondent
       Mumbai - 400 062.                                         (Orig. Accused)



       Mr.Y.M.Nakhwa, A.P.P. for the Appellant - State.

       None for the Respondent.

                                     CORAM : REVATI MOHITE DERE, J.

DATE : 9th MAY, 2017

ORAL JUDGMENT :

1. This appeal, preferred by the appellant - State of Maharashtra

is directed against the Judgment and Order dated 18 th March, 2002, passed

by the learned Special Judge, Greater Mumbai, in Special Case No.6 of

1990, acquitting the respondent-accused of the offences punishable under

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Section 161 of the Indian Penal Code and under Section 5(2) r/w Section

5(1)(d) of the Prevention of Corruption Act, 1947.

2. A few facts, as are necessary, to decide the appeal are as

under:-

The complainant - Hemant Bhikhubhai Dalal, was working as

an Electrical Contractor and was carrying on the business by the name and

style 'M/s.Hemant Electrical Enterprise'. Mr.Hukumsingh Verma had given

contract of electrical fittings of 3 buildings of Maharaja Surajmal Co-

operative Housing Society, Andheri, Mumbai and another contract for

building Rajiv Co-operative Housing Society, Bandra (East), Mumbai, to

the complainant. There was some dispute regarding payment between the

complainant - Hemant and Mr.Hukumsingh Verma. In view of the dispute,

the electrical contractor was changed for Rajiv Co-operative Housing

Society, however later on, the contract was again entrusted to the

complainant. After completion of the electrical work, test-report was to be

submitted for installation of electric meters at the building of Rajiv Co-

operative Housing Society, to BSES. The complainant did not give the said

report and hence Mr.Hukumsingh Verma appointed another contractor i.e.

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'M/s.Kirlokar Engineering'. When the complainant learnt about the said

development, he preferred an application (Exhibit - 14) to the respondent-

accused, who was then the Electrical Inspector, PWD, and prayed for stay.

The complainant sent another letter on 17th February, 1988 to the

respondent-accused (Exhibit-15) in respect of the aforesaid dispute and

requested that no other contractor be allowed to complete the work, till the

dispute regarding the payment was settled. On 18th February, 1988, the

respondent-accused alongwith his Assistant visited the site for inspection.

The respondent-accused is alleged to have demanded payment of Rs.100/-

for taxi fare. The respondent-accused is stated to have asked the

complainant to come to his office on 23rd February, 1988. Accordingly, the

complainant met the respondent-accused on 23rd February, 1988 at about

5.00 p.m. at his office. It is alleged that the respondent-accused suggested

that if the complainant wanted a favorable order to be passed, the

complainant should pay some amount. According to the complainant, he

offered to pay Rs.500/-, however, the respondent-accused declined to accept

the same. It is alleged by the complainant that he therefore kept Rs.1100/-

in Chitralekha Magazine and gave it to the respondent-accused. It is stated

that the respondent-accused addressed a letter dated 24 th February, 1988

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(Exhibit - 16) to the Chief Engineer (Commercial), Bombay Suburban

Electrical Company, Santacruz, Mumbai and intimated him, that the test-

report submitted by M/s.Hemant Electrical Enterprise should be accepted

and that the report regarding documents submitted in this behalf, should be

forwarded to him. It was also mentioned that the papers submitted by any

other Contractor should not be accepted till enquiry was complete. As a

result of the same, M/s.Kirlokar Engineering" withdrew the test-report

submitted by them vide letter dated 22nd March, 1988 (Exhibit - 17).

According to the complainant, he learnt subsequently that M/s.Kirlokar

Engineering had submitted another test-report to BSES and hence from 19 th

April, 1988, the complainant started contacting the respondent-accused at

his office. It is alleged by the complainant, that on 20th April, 1988, the

respondent-accused informed him, that Mr.Verma had lodged a complaint

against him and that unless a substantive amount was paid, the matter

would not be decided in his favour. On 10th May, 1988, the complainant

contacted the respondent-accused at his residence on telephone. It is alleged

that during the said conversation it is was decided that the complainant

should pay Rs.1100/- to the respondent-accused, on 11 th May, 1988, after

3.00 p.m. at his office. Pursuant thereto, the complainant lodged a report

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with ACB on 11th May, 1988, on the basis of which PW.9 - P.I Apraj

recorded the complaint / FIR of the complainant (Exhibit - 18), PW9-

Ghanshyam Apraj called 2 panchas i.e. Mr.Bajaj and Mr.Potnis and

anthracene powder was decided to be used for the purpose of trap and was

applied to the currency notes of Rs.1100/-, which were to be given to the

respondent-accused. After applying anthracene powder on the said

currency notes, the notes were kept by the constable in the shirt pocket of

the complainant. The complainant was instructed not to make payment

unless the bribe amount was demanded by the respondent-accused. It was

explained to the complainant that if there was demand and acceptance of

bribe, he should signal the raiding party by rolling his right shirt sleeve with

his left hand. PW2-Asudomal Bajaj (Panch) was to be remain present

with the complainant, during the trap and was directed to observe the

developments and listen to the conversation. The Investigating Officer

considered the possibility, that the panch may not be allowed to remain

present with the complainant and hence decided to use cassette tape

recorder. Accordingly, a micro cassette was played in the presence of both

the parties to ensure that the tape was blank. The details of procedure

followed for pre-trap was noted in the pre-trap panchanama (Exhibit - 24).

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After completing the pre-trap arrangements, the raiding party

proceeded to the office of the respondent-accused, which was situated on

the 2nd floor of Mohta Market. It is alleged by the complainant, that when he

reached the office of the respondent-accused, he told the respondent-

accused that he had come for the stay and that he had brought money, as

directed by him. He has stated that the respondent-accused enquired about

Mr.Bajaj (panch). Thereafter, after a little conversation, the complainant

was asked to leave and come after half an hour. Accordingly, the

complainant and Mr.Bajaj went on the ground floor and communicated the

said information to the Investigating Officer, PW9-Ghanshyam Apraj.

Thereafter, again the complainant went to the respondent's office and

informed him that he had brought money. It is alleged that the respondent-

accused asked Mr.Bajaj to wait outside and that after Mr.Bajaj left, the

complainant reminded the respondent-accused that he had earlier made

payment by keeping the money in Chitralekha Magazine, however on this

occasion he had not brought the money in the Magazine. It is alleged that he

asked the respondent-accused whether money would be accepted without a

Magazine and that the respondent-accused accepted the money and told the

complainant that his work would be done. It is alleged that the respondent-

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accused accepted the currency notes with his left hand and kept the same in

his bag. Pursuant thereto, the complainant came out of the office and

signaled the raiding party, pursuant to which, the raiding party entered the

office and apprehended the respondent-accused. On examining the

respondent-accused, it was found that there was anthracene powder on his

left hand fingers, thumb of left hand, on the left side of his face, near left

eyebrow and left side neck. The tape recorder was played and thereafter the

cassette was kept in a sealed envelope and taken in custody. Pursuant

thereto, post-trap panchanama (Exhibit - 25) was drawn. After

investigation the papers were sent to the PW3-Mrs.Nisha Choubal

Sanctioning Authority for obtaining sanction. After receipt of the

sanctioning order dated 26th December, 1989 (Exhibit - 28), charge-sheet

was filed against the respondent-accused, in the Court of the learned

Special Judge, Greater Mumbai and charge was framed.

3. The respondent-accused pleaded not guilty and claimed to be

tried. The prosecution in support of its case examined 9 witnesses, PW1-

Hemant Bhikhubhai Dalal (Complainant); PW2-Asudomal Namomal Bajaj,

panch to the pre-trap and post-trap panchanama; PW3-Mrs.Nisha Ramesh

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Choubal, Sanctioning Authority; PW4-Hukumsingh Chandrasingh Verma,

Building Contractor, where PW1-Hemant was doing electrical work ; PW5-

Shripad Vishnu Tamse, Superintendent Engineer (Electrical) at Bombay

Circle; PW6-Nandkumar Vishnu Damle, Assistant Engineer (BSES); PW7-

Kamlakar Ganesh Kulkarni, Senior Clerk of Electrical Department, BSES;

PW8-Deodatta Markand Bhoir, Cashier at the office of Electrical Inspector,

Santacruz and PW9-P.I., Ghanshyam Ganpat Apraj (Investigating Officer).

The defence of the respondent-accused was that the said amount was thrust

into his hands while he was writing with his right hand. According to the

respondent-accused, there is complete variance in the allegations made by

the complainant with regard to the demand and acceptance with the actual

transcript produced, inasmuch as, the transcript does not show any demand

or acceptance as alleged. It was contended that the said transcript was not

placed before the sanctioning authority, which shows that money was

neither demanded nor accepted by the respondent-accused, thus making the

sanctioning order vulnerable to challenge. After considering the evidence

and documents on record, the learned Judge was pleased to acquit the

respondent-accused of all the offences with which he was charged.

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4. Perused the documents as well as the impugned Judgment with

the assistance of the learned APP. It appears that the learned Judge has

acquitted the respondent-accused, as the prosecution had failed to adduce

credible evidence to show, that the respondent-accused had demanded and

accepted the illegal gratification for showing favour to the complainant -

Hemant Dalal, either on 23rd February, 1988 or on 11th May, 1988 at his

office. The learned Judge has minutely considered the evidence of the

complainant and other witnesses and has disbelieved the testimony of the

complainant, on the basis of the material and has on the contrary, accepted

the evidence on record which shows that the explanation offered by the

respondent-accused that the currency notes were thrust under the fingers of

his left hand, when he was writing, as probable. Admittedly, PW2-

Asudomal Bajaj (Panch) was not present in the office at the relevant time,

as according to the complainant, he was asked to leave on the day when the

trap was laid i.e. on 11th May, 1988. The learned Judge has rightly

observed that there are material contradictions in the allegations made by

the complainant in his complaint and oral testimony with regard to

demand and acceptance of money with the tape recorded conversation

(transcript) produced by the prosecution. The learned Judge after

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perusing the transcript has rightly observed that there is nothing in the

transcript, to show that there was any demand made by the respondent-

accused and acceptance. The learned Judge has observed that the defence

taken by the respondent-accused is probable, that the respondent-accused

was writing with his right hand and had kept his left hand on the left side of

the face while writing, when the complainant thrust the money between his

hair and fingers of left hand. The learned Judge, on the basis of the material

on record accepted the defence of the respondent-accused, that he felt, the

said amount was with respect to the fee to be paid and hence kept it in his

bag. The learned Judge has disbelieved the complainant. He has observed

that the respondent-accused, an Electrical Inspector had no power to grant

stay to the installation of electricity meters and that the power regarding

installation of electricity meters vested in the concerned authority of the

BSES. The learned Judge has rightly observed, that the duty of the

respondent-accused as an Electrical Inspector was only to find out, whether

the wiring was properly done or not and whether the test-report could be

accepted. According to the respondent-accused, he was falsely implicated

so that the installation of the meters at the building would be delayed and

that the complainant would get time to recover the dues to the extent of

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Rs.2,25,000/- from the builder. The learned Judge has rightly observed that

the conversation recorded in the cassette is in complete variance with the

conversation testified to by the complainant and that there is no reference to

acceptance and demand of money in the recorded conversation. In view of

the material contradictions in the evidence of the complainant and tape

recorded conversation, the learned Judge has rightly rejected the evidence

of the complainant with regard to demand and acceptance of illegal

gratification. The learned Judge has observed that the jurisdiction of the

respondent-accused was limited only to the verification of the fact that the

wiring is done properly and that the respondent-accused had no power to

interfere in a dispute between the electrical contractor and the builder

regarding payment of money. It was further observed, that the facts and

documents reveal, that the complainant was aware that the respondent-

accused could no longer delay the installation of meters, unless some

objection in respect of the defect in the wiring was raised. Infact, the

learned Judge has observed that the transcript of the conversation clearly

showed that the respondent-accused was persistently denying that he had

earlier extended any support to the complainant. Infact, the respondent-

accused had emphasized that he had no concern with the dispute between

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the complainant and the builder in categorical terms and had made it clear

that it was the problem of the complainant and had also refused to call the

builder. The learned Judge has rightly observed that apart from the oral

testimony of the complainant there was no corroboration to the said

evidence, regarding demand and acceptance and that there is no reference to

the Chitralekha Magazine in the transcript as alleged by the complainant in

his oral testimony. Admittedly, the panch was not present on the spot at the

relevant time. It is not the prosecution case that the respondent-accused

was a lefty and hence had accepted the money in his left hand. Infact, the

defence of the respondent-accused appears to be probable that the

respondent-accused was sitting and writing with his right hand and had kept

his left hand on his face and that the complainant had thrust the money in

his left hand fingers. The finding of the anthracene powder on his left side

of the neck and on hair lends credence to the defence theory, that money

was thrust in the respondent-accused's hands. The evidence of the

witnesses also shows that the said transcript does not disclose any demand

or acceptance. Thus, except the oral testimony of the complainant, there is

no corroboration to the same. The tape recorded conversation does not

support the complainant's case. There is no credible evidence to show that

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earlier demand of Rs.1100/- was made by the respondent-accused to the

complainant on 23rd February, 1988. Admittedly, the tape recorded

conversation was also not placed before the Sanctioning Authority,

however, the learned Judge has not gone into the said aspect and has

acquitted the respondent-accused, considering the absence of credible

evidence adduced by the prosecution with regard to demand and

acceptance of illegal gratification of the respondent-accused.

5. The impugned Judgment can neither be said to be perverse nor

unsustainable. Hence, no interference is warranted in the same.

6. Accordingly, the appeal is dismissed.

(REVATI MOHITE DERE, J.)