Rajvilas S/O Laxman Gajbhiye vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 2496 Bom

 CRI. APPEAL NO.442.14(VJ).odt                1
        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH : NAGPUR

                      CRIMINAL APPEAL NO.442 OF 2014


 Rajvilas s/o Laxman Gajbhiye,
 Aged about 49 years,
 Occupation-Service,
 R/o. Plot No.312, Nagar Vikas Society,
 Narendra Nagar,
 Nagpur-440 010.                        ..                          APPELLANT


                               .. VERSUS ..


 The State of Maharashtra,
 Through Dy. Superintendent of Police,
 A.C.P. Wardha, Police Station, Wardha City,
 Tahsil and District - Wardha.         ..                       RESPONDENT


                     ..........
 Shri P.S. Wathore, Advocate for Appellant,
 Mrs. M.H. Deshmukh, APP for Respondent-State.
                     ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : MAY 11, 2017.

ORAL JUDGMENT

This appeal is directed against the judgment and

order dated 12.8.2014 passed by the learned Additional

Sessions Judge, Wardha in Special (ACB) Case No.4/2006

thereby convicting the sole accused of the offences

punishable under sections 7, 13 (1)(d) and 13 (2) of the

Prevention of Corruption Act, 1988 and sentencing him as

under :

  Conviction under section                           Sentence
                      7              Rigorous imprisonment for two
                                     years and fine of Rs.15,000/-
                                     in-default simple imprisonment
                                     for six months.
      13 (1) (d) r/w 13 (2)          Rigorous imprisonment for three
                                     years and fine of Rs.15,000/-
                                     in-default simple imprisonment
                                     for six months.

Both the sentences were directed to run concurrently.

2] For the sake of convenience, appellant shall be

referred in his original status as an accused as he was

referred before the trial court.

3] Prosecution case which can be revealed from the

charge-sheet and connecting papers thereto may be stated

as under :

                (a)            Complainant       Ramkumar          Bardia         was

                resident of Wardha.          In the year 1999, he was

                allotted       government    land     situated         at    mouza

Kherda, Tahsil and District - Wardha on lease for

the purpose of mining. The lease was for three

years and expired in the year 2002. Complainant

moved an application to the office of Collector for

renewal of his lease. Shri Bade was working as

District Mining Officer that time. He was

transferred before any decision could be taken on

the application of complainant for renewal of

lease. Shri Ramteke substituted Shri Bade as a

District Mining Officer. In the year 2004, Shri

Ramteke was suspended, as he was involved in a

bribe case. Thereafter, post of District Mining

Officer was lying vacant for few months.

(b) In January-2005, accused was posted as

District Mining Officer at Wardha. Complainant

met him in connection with the renewal of his

mining lease. Accused told the complainant that

report from Tahsildar was required to process his

application. He prepared a letter addressing

Tahsildar and handed over the same to the

complainant. In turn, complainant submitted the

letter to Tahsildar.

(c) In the month of March-2005, complainant

collected the report personally from the office of

Tahsildar and handed it over to the accused. Even

after receipt of report, accused did not take any

step for renewal of mining lease of the

complainant. When complainant made an enquiry,

accused asked him to produce the old records

regarding his mining lease. Accordingly,

complainant produced the same.

(d) It is the case of complainant that in April-

2005, he met the accused and accused demanded

Rs.5000/- for submitting the proposal for renewal

of his mining lease. Complainant showed his

inability to pay the same. At the instance of the

accused, he paid him Rs.1000/- and assured to pay

balance later-on.

(e) On 2.5.2005, complainant had been to

the office of the accused. That time, accused

reiterated that he would get the lease renewed

only after he is paid Rs.4000/-. Complainant

informed the accused that he would pay Rs.2000/-

on the next day that is on 3.5.2005 and remaining

amount of Rs.2000/- would be paid by him after

the renewal of lease. Accused agreed for the

same.

(f) As complainant was not willing to pay

bribe, he visited the office of ACB, Wardha on

3.5.2005 at 9.00 am and lodged report. PW-4

Dy.S.P. Shri Mahale and two panchas from Taluka

Agricultural Office, Wardha, PW-2 Vasant and one

Gomase attended the office of ACB. They were

introduced to complainant and staff of ACB. They

agreed to act as panch witnesses. After verifying

the contents of the complaint, panch witnesses

also signed the same.

(g) As per the instructions of PW-4 Dy.S.P.

Shri Mahale, demonstration of phenolphthalein

powder was given to the panch witnesses and

members of raiding party. At around 12.40 pm,

complainant along with panchas and members of

raiding party including PW-4 Dy.S.P. Shri Mahale

proceeded towards Collector office, Wardha. At

12.50 pm, instructions were given to the

complainant and PW-2 Vasant to proceed towards

mining office and meet the accused. Dy.S.P. Shri

Mahale and other panch witnesses along with

members of raiding party following them took their

position. That time, accused came out of the

office along with two quarry owners and proceeded

towards neem tree near canteen in the premises of

office for having tea.

(h) After tea, complainant asked the accused

about his work. Accused demanded him money.

Complainant took out tainted currency notes of

Rs.2000/- from the pocket of his trouser and

handed over the same to the accused. Accused

accepted the same and kept in his pocket of pant.

Thereafter, complainant gave signal by moving his

cap. On receiving signal, PW-4 Dy.S.P. Shri Mahale

along with panch no.2 Gomase and other members

of raiding party reached the spot. On being

questioned by Dy.S.P. Shri Mahale, complainant

and panch no.1 informed that accused standing in

front of them, demanded and accepted bribe and

kept money in pocket of his pant. Personal search

of accused was taken and tainted currency notes

found in the pocket of his pant were seized.

Panchanama was accordingly drawn.

(i) PW-4 Dy.S.P. Shri Mahale then issued a

letter to Collector, Wardha for recording

explanation of the accused. Shri Bokare, District

Planning Officer was deputed for recording

explanation of the accused. After explanation was

recorded, complaint was lodged by Dy.S.P. Shri

Mahale. Crime No.3131/2005 was registered

against the accused for the offences punishable

under Sections 7, 13 (1)(d) r/w 13 (2) of the

Prevention of Corruption Act, 1988.

(j) During investigation, accused was

arrested. Map of the spot was prepared.

Statements of witnesses were recorded. All the

papers of investigation were forwarded to the

Sanctioning Authority PW-3 Vinesh Kumar Jairath

for issuing sanction. After sanction was accorded,

charge-sheet came to be filed before the Special

Court.

4] Charge was framed against the accused vide

Exh.9. He pleaded not guilty and claimed to be tried. The

defence of accused was of total denial and false implication.

According to accused, on 25.1.2005 he was given additional

charge of District Mining Officer, Wardha. The predecessor

of accused had pointed out some deficiencies in the matter

of renewal of lease of complainant. On 7.4.2005, a dealing

clerk Shri Salve placed the file before the accused. On going

through the file accused issued a letter to the complainant

for inspection of accounts regarding production and sale.

He also asked explanation of the dealing clerk for putting

remarks favourable to the complainant despite non

compliance of the deficiencies. As accused raised

objections, complainant felt that renewal of his mining lease

was being delayed by the accused.

5] Another defence raised by the accused is that on

2.5.2005, he was not at Wardha, as he had been to Nagpur

at around 10.00 am for official work. Accused was required

to make noting of his daily work and accordingly it was

noted in the daily diary that accused was at Nagpur on

2.5.2005 for official work. He had also claimed travelling

allowance for the same which was sanctioned by the office.

6] The third contention raised by the accused is that

on 3.5.2005 at around 12.30 pm, Manohar Kashiramji Naik

and Yogesh Gopalrao Kulkarni came to his office for renewal

of their mining lease. When they were talking, Manohar

Naik requested the accused to have a cup of tea and

accused along with Manohar Naik and Yogesh Kulkarni

proceeded towards canteen situated behind the office. That

time complainant met them. He was alone.

7] As complainant was known to Manohar Naik and

Yogesh Kulkarni and they were dealing in the same business,

complainant also accompanied for tea on the request of Shri

Naik. Four of them went to canteen. Many people were

present there. After having tea, complainant along with

accused went under a tree near canteen. When they were

talking, accused felt that complainant was putting

something with his right hand in the left side pocket of the

accused. Accused looked at the same and asked the

complainant to withdraw his hand immediately. At the same

time, officers of ACB rushed to the spot and asked the

accused whether he demanded and accepted bribe on which

he replied in the negative. Complainant told the officers

that tainted money was in the left pocket of the accused.

ACB officers asked the accused to remove all the articles

from his pocket. From the left pocket to his trouser tainted

money of Rs.2000/- came to be recovered. Accused told the

officers of ACB that currency notes did not belong to him

and complainant had forcibly planted the same in his pocket

with a view to falsely implicate him.

8] To substantiate the guilt of accused, prosecution

examined in all four witnesses. PW-1 is complainant

Ramkumar Bardia, PW-2 a shadow panch Vasant Uke, PW-3

Vinesh Jairath, Sanctioning Authority and PW-4 Dy.S.P.

Suresh Mahale is investigating officer and head of the

raiding party. Accused examined defence witness DW-1

Manohar Naik in support of his defence. Considering the

evidence of witnesses examined by the parties and

submissions made on behalf of the defence and the

prosecution, trial court came to the conclusion that charge

has been duly established against the accused and in

consequence thereof, convicted him as stated above.

9] Heard Shri Wathore, learned counsel for appellant

and Mrs. Deshmukh, learned Additional Public Prosecutor for

respondent-State.

10] The learned counsel for appellant submitted at the

outset that appellant does not press all other grounds as

stated in memo of appeal, except Ground no.VI which

relates to grant of sanction. Learned counsel submitted

that original sanction order has not been placed on record

and the trial court wrongly relied upon the photostat copy of

the sanction order only as the same was signed by the

sanctioning authority and having seal of the office. It is

further submitted that letter of concurrence of the Deputy

Chief Minister was not forwarded to ACB office and the

sanctioning authority did not look into the same.

A grievance is made that accused had submitted his

memorandum and put up a specific case but the case of

accused was not routed through the concerned department.

According to learned counsel, sanction order (Exh.50)

suffers from total lack of application of mind and prosecution

miserably failed to establish that it was a legal and valid

sanction order.

11] Per contra, Mrs. Deshmukh, learned Additional

Public Prosecutor for State strongly supports the judgment

and order of conviction and sentence and submits that there

is ample evidence to show that accused demanded and

accepted money towards bribe. She submits that accused

was found in possession of tainted currency notes. It was a

successful trap and based on the papers submitted to the

sanctioning authority, sanction order was issued, vide

Exh.50. According to learned Additional Public Prosecutor,

sanction order (Exh.50) bears original signature and seal

and there is no reason to doubt the truthfulness of the

contents of the same in view of the evidence of sanctioning

authority. She submits that there is no scope for

interference in the present appeal and appeal deserves to

be dismissed.

12] On hearing the learned counsel for the parties and

taking into consideration the rival submissions, solitary point

which arises for the consideration of this court is, whether

prosecution has proved that sanction to prosecute the

appellant granted by PW-3 Vinesh Jairath, Sanctioning

Authority, is legal and valid and to this finding of this court

is in the negative for the following reasons.

13] Before adverting to the evidence of PW-3 Vinesh

Jairath, it would be appropriate to mention here the object

and the scope of Section 19 of the Prevention of Corruption

Act, as under :

(i) The prosecution must send the entire relevant record to the sanctioning authority

including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction;

(ii) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction;

(iii) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought;

(iv) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(v) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the

same and that the sanction had been granted in accordance with law.

14] In the present case, sanction order was issued by

PW-3 Vinesh Jairam - Sanctioning Authority. He deposed

that in September-2005 he received proposal for sanction to

prosecute District Mining Officer, Wardha Shri R.L. Gajbhiye

through Additional Chief Secretary (Home), Government of

Maharashtra. The proposal contained report of Director

General, Anti Corruption Bureau and all papers concerning

the case. He states that case papers included complaint,

seizure memos, statements of witnesses and all the

proceedings in respect of anti-corruption trap. From the

papers, he found that District Mining Officer was caught

accepting bribe of Rs.2000/-. He had gone through the

departmental note-sheet, studied the case papers, applied

his mind and when he found that prima facie case is made

out for commission of offence, he accorded sanction to

prosecute the officer. He signed the file and forwarded the

same to Law Department for verifying the draft sanction

order. He states that before forwarding the draft sanction

order to Law Department, he had gone through the same

and found that the draft was in order. He received back the

file from Law Department with concurrence and, thereafter,

the same was forwarded to the Administrative Department

for concurrence of Deputy Chief Minister. After Deputy Chief

Minister concurred the same, he issued sanction order

(Exh.50).

15] It can be seen from the cross-examination of

Vinesh Jairath that a draft sanction order proposed by ACB

was also sent to him along with the proposal in a sealed

envelope. He admits that Exh.50 is not original sanction

order but the same bears his signature in original and seal

of the department. He also admits that pages 1, 2 and 3 of

sanction order do not bear his signature or initials. The

signature appears only on page no.4. There is an

unequivocal admission by the Sanctioning Authority that he

never dictated the contents of draft sanction order. He also

admitted that on last page date is written in hand and the

same is not in his handwriting. According to PW-3 Vinesh

Jairath, original sanction order was not received by the

investigating officer PW-4 Dy.S.P. Shri Mahale and as he had

requested for copy of the same, copy was forwarded to the

investigating agency by putting his signature, stamp and

seal. The existence of original sanction order is not in

dispute. It is not the case of prosecution that original

sanction order was lost or misplaced and the same was not

available at all. When the existence of original order is

apparent from the evidence of PW-3 Vinesh Jairath,

prosecution was duty bound to produce the same on record.

The contents of sanction order were required to be proved

only on the basis of original. If secondary evidence was

required to be admitted, that should have been only in

accordance with the provisions of the Indian Evidence Act.

Needless to state that the contents of the documents can be

proved only on the basis of original and not on the basis of

copy, unless all the hurdles in admitting the secondary

evidence are crossed by the prosecution. In this situation,

absence of original sanction order and non production of the

same is fatal to the prosecution case.

16] It is pertinent to note that on the same day

accused submitted his response and explanation to the

authority concerned and made a grievance that tainted

currency notes were actually planted in the pocket of his

trouser. The same was part of case papers forwarded to the

Sanctioning Authority by ACB. He admits that before

according sanction, he did not call original file of renewal of

lease of complainant. The entire controversy was revolving

round the renewal of lease of complainant. Sanctioning

Authority had totally ignored the same.

17] It is also interesting to note that draft sanction

order was received by sanctioning authority from ACB. The

said draft sanction order is not placed on record. As PW-3

Vinesh Jairath - Sanctioning Authority has admitted that he

has not dictated sanction order, possibility of putting

signature on the draft sanction order mechanically without

application of mind is not ruled out. It is thus crystal clear

from the facts elicited in the cross-examination of PW-3

Vinesh Jairath Sanctioning Authority that sanction order

(Exh.50) was issued without due application of mind. In the

absence of legal and valid sanction order, this court finds

that judgment and order of conviction and sentence

recorded by the trial court is unsustainable in law. Appeal

succeeds on this short ground. Hence, the following order :

ORDER

(i) Criminal Appeal No.442 of 2014 is allowed.

(ii) Impugned judgment and order dated 12.8.2014

passed by the learned Additional Sessions Judge, Wardha in

Special (ACB) Case No.4/2006 convicting appellant Rajvilas

s/o Laxman Gajbhiye for the offences punishable under

sections 7 and 13 (1) (d) r/w 13 (2) of the Prevention of

Corruption Act, 1988 is hereby set aside.

(iii) Appellant Rajvilas s/o Laxman Gajbhiye is

acquitted of the offences punishable under Sections 7 and

13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act,

1988.

(iv) Bail bonds of appellant Rajvilas s/o Laxman

Gajbhiye shall stand cancelled forthwith.

(v) Fine amount, if deposited, shall be refunded to the

appellant.

(vi) Criminal Application (APPA) No.213/2015 in

Criminal Appeal No.442/2014, being not pressed, stands

disposed of. No costs.

(Kum. Indira Jain, J.) Gulande, PA