The State Of Maharashtra vs Mahamadali Hidayat Rafai
2017 Latest Caselaw 2559 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION
                        CRIMINAL APPEAL NO. 684 OF 2002


      The State of Maharashtra      ...                             Appellant
            Vs.                                                 (Orig. Complainant)
      Mahamadali Hidayat Rafai,                )
      Junior Clerk, Tehsil Office,             )
      Hatkanangale                             )
      R/o. 1869, B Ward, Mangalwar Peth,       )
      Kolhapur.                                ) ...                     Respondent

      Mr. S.R.Agarkar,APP, for the State/Appellant.
      None for the respondent.

                                      CORAM: SMT.SADHANA S.JADHAV, J.

DATE : 17th May, 2017.

ORAL JUDGMENT ;

The State of Maharashtra, being aggrieved by the judgment

and order dated 16.1.2002 passed by the Special Judge, Kolhapur, in

Special Case No.11 of 1995, thereby acquitting the accused of the offences

punishable under Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 has filed the present appeal.

2. Such of the facts necessary for the decision of this appeal are

as under :-

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One Bhimrao Kundale had approached the Office of the Anti-

Corruption Bureau and had lodged a report alleging therein that he was in

possession of 3 Hectares and 44 Ares of is ancestral agricultural land at

Village Hingangaon. That he had two brothers, who did not agree for

partition and hence he was constrained to file Regular Civil Suit No.158 of

1995 against two brothers and a sister which was decreed in his favour on

13.6.1988. As a decree-holder, he had filed Execution proceedings which

were registered as 15/1988 in the Court at Vadgaon and had prayed for

execution of the decree. That since the suit property was an agricultural

land, the matter weas referred to the Collector. The Collector had then

referred the matter to the Tehsil Office as the suit lands were situated at

Village Hatkanangale. For the purpose of effecting partition, the lands had

to be measured and a draft partition had to be prepared by the District

Inspector of Land Records (DILR). The DILR had prepared a proposed

partition in 1993 and had sent it to the Office of Tehsil. The complainant

had learnt about the same in the year 1994.

3. The accused i.e. the present respondent was working as Junior Clerk

in the Tehsil office at Village Hatkanangale. In February, 1994, the

complainant had been to the Tehsil office along with his friends. He met

the accused-respondent who was working as Junior Clerk. That the accused

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had allegedly informed the complainant that he would have to pay some

amount for receiving the records. The complainant had immediately

handed over Rs.100/- to the accused which he promptly refused to accept.

The complainant had then revisited the office of Tehsil after a fortnight

along with his friend Tukaram and according to the complainant, the

accused had demanded an amount of Rs.1200/- and after negotiation, it was

agreed that the complainant shall pay an amount of Rs.1100/-. The

complainant had therefore agreed to give the alleged gratification. That on

31.3.1994, the complainant had again visited the office of Tehsildar and had

offered to pay Rs.500/- which the accused refused to accept and had

insisted upon a demand for Rs.1100/- in order to finalise the partition.

4. At that stage, the accused had informed the complainant that he

has issued notices to judgment debtors i.e. all the brothers and sisters of the

complainant and those notices were made returnable on 15.4.1994. Hence,

the complainant had approached the office of the ACB and lodged a report.

5. Accordingly, two public servants were called to act as panchas.

A pre-trap panchnama was prepared on 16.4.1994. The trap was arranged.

The complainant and his friend Tukaram had been to the office of the

accused. The accused had asked them to see him later on. The accused

proceeded to the hotel with his tiffin and at the relevant time, the accused

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had asked the complainant to bring the amount in an envelope. The

complainant had placed the envelope into the bag of the accused and had

given the predetermined signal. The tainted notes were recovered from the

bag of the accused. The post-trap panchnama was prepared. Dy. S.P. Patil

lodged an FIR on behalf of the State on the basis of which Crime No.51 of

1994 was registered against the accused-respondent.

6. The defence of the accused was that the complainant had made

persistent efforts to bribe the accused as he was insisting upon the accused

to finalise the partition without issuing notices to the brothers and sister.

The accused had followed the procedure and had issued the notices to the

judgment debtors and, therefore, he is falsely implicated by the complainant

by keeping the envelope in his bag without his knowledge when the

accused had left the table for washing his hands after lunch.

7. The case was registered as Special Case No.11 of 1995. The

prosecution has examined five witnesses to bring home the guilt of the

accused. The complainant has been examined as PW-1. There are inherent

inconsistencies in his substantive evidence. First and foremost, the

demand has not been proved. It simply appears that the complainant had

learnt from the accused that notices are issued to his brothers and sister.

The complainant has specifically admitted that he was quite sure that his

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brothers and sister would cause their appearance in the execution

proceedings and would file objections to execution and therefore, the

complainant was of the opinion that no notices be issued to his brothers and

sister. He had been informed by the accused that the notices are made

returnable on 15.4.1994 and therefore being annoyed with the same, he had

approached the office of the Anti-Corruption Bureau. It is a matter of

record that the accused was only working as Junior Clerk in the office of

Tehsildar. He was bound to follow the procedure. The accused has

admitted in his statement under Section 313 of Cr.P.C. that the partition

proceedings had been entrusted to him and therefore he had issued notices

to the judgment debtors. The accused had no authority to pass effective

order in the execution proceedings. The learned Special Judge has rightly

held that the accused has demonstrated the preponderance of probabilities

and had rebutted the presumption drawn under Section 20 of the Prevention

of Corruption Act, 1988. The learned Special Judge has assigned justifiable

reasons for acquitting the accused by appreciating the substantive evidence

of the witnesses in its proper perspective. The tainted notes were found in

the bag. It is pertinent to note that there is no cogent evidence to even

remotely indicate that the accused had directed the complainant to put the

tainted notes in his bag. It is a material omission in the evidence of the

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complainant as well as the panch witnesses.

8. Taking into consideration all the above aspects, the appeal

being sans merits, deserves to be dismissed.

(SMT. SADHANA S.JADHAV, J.)