State Of Maharashtra vs Gajanan Shankarrao Phalke And ...
2017 Latest Caselaw 2579 Bom

                                                     1                                      jg.apeal366.06.odt



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

                              Criminal Appeal No. 366 of 2006

State of Maharashtra 
Through the Dy. Superintendent of Police, 
(Anti-Corruption Bureau), Yavatmal, 
Dist. Yavatmal.                                                                                ..... Appellant

           // Versus // 

(1) Gajanan Shankarrao Phalke, 
      Aged about 41 years, 
      R/o. Pusad, Yavtmal. 

(2) Ramesh Pundlikrao Thakre, 
      Aged about 39 years, 
      R/o. Pusad, Yavtmal.                                               .... Respondents
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Ms. N. P. Mehta, A.P.P. for the State/appellant 
None for the respondents
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                                                                CORAM :  S. B. SHUKRE, J.

                                                             DATE    :   19/05/2017.
ORAL JUDGMENT

This is an appeal preferred against the judgment and

order dated 26-4-2006 delivered in Special Case No. 2/2002 by

Special Judge and Additional Sessions Judge, Pusad, District Yavatmal

thereby acquitting respondent no. 1 of the offences punishable under

Sections 7 and 13(i)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988 and respondent no. 2 of the offences punishable

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under Sections 7 read with Section 12 as well as Section 13(i)(d) read

with Section 13(2) of the Prevention of Corruption Act, 1988.

2. Both the respondents were tried for the afore stated

offences on the allegations that while working as Senior Clerk and

Junior Clerk respectively in the Court of Civil Judge Senior Division,

Pusad, District Yavatmal, respondent no. 1 demanded from the

complainant Virendra s/o Krushnarao Mandavkar an amount of Rs.

500/- for issuing succession certificate which was already directed to

be issued by the Court and the respondent no. 2 abetted the

commission of offence of bribery by respondent no. 1 by accepting

from respondent no. 1 the tainted currency notes of Rs. 500/- which

were handed over to him as bribe by the complainant. Such demand

and acceptance of bribe took place at the Court premises of Civil

Judge Senior Division, Pusad on 26-2-2001 though the demand of

bribe amount was actually made by respondent no. 1 four-five days

prior to it.

3. On merits of the case, learned Special Judge found that

the prosecution failed to prove its case beyond reasonable doubt

against the respondents and that the defence of respondent no. 1 that

what was actually received by him, that is, amount of Rs. 500/- was

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the money payable to him by the complainant on account of the

complainant having taken the said amount from the respondent

no. 1 as hand-loan was probabalized and thus, acquitted both the

respondents of the offences with which they were charged in the

present case.

4. I have heard Ms. Mehta, learned Additional Public

Prosecutor for the State. None is present for the respondents. I have

carefully gone through the record of the case including the impugned

judgment and order. It is the contention of learned Additional Public

Prosecutor that the learned Special Judge has given undue importance

to what happened at the office of A.C.B., Yavatmal on 23-2-2001 and

scoring of dates in the complaint vide Exhibit 38. She submits that it

was improbable for any court official to extend any amount as hand-

loan to a litigant. Therefore, she submits that the impugned judgment

and order are illegal and perverse.

5. Upon careful consideration of the record of the case,

particularly, evidence of P.W. 1 Virendra, P.W. 3 and P.W. 4, panch

witnesses and D.W. 1 Advocate Shri Malani, I find that the view taken

by the learned Special Judge is possible and that it is not an

impossible view. Therefore, I am of the opinion that this would be

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hardly a case wherein this Court can step forward and interfere with

the impugned judgment and order as sought by the learned Additional

Public Prosecutor.

6. Evidence of P.W. 1 Virendra indicates that the amount of

Rs. 500/- was demanded from him by respondent no. 1 on 22-2-2001,

but, I must state that he failed to specifically mention that it was

demanded as a bribe or by way of illegal gratification and, therefore,

it would be difficult to categorically hold that it was a demand made

for seeking illegal gratification from the complainant. His evidence

further shows that as he was unwilling to pay amount of Rs. 500/- to

the respondent no. 1 on 23-2-2001 i.e. the next day, he went to A.C.B.

office, Yavatmal carrying with him an amount of Rs. 500/-. But, he

further states that he was turned down by the officer there on the

ground that his mother in whose name, the succession certificate was

ordered to be granted, did not accompany him. It appears that

although the respondent no. 1 had specifically told the complainant

to come back to him along with his mother who was absent on

22-2-2001 and also with amount of Rs. 500/- on 26-2-2001, this fact

of the complainant being called once again on 26-2-2001 to the Court

appears to have not been disclosed to the Investigating Officer. But,

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P.W. 1 Virendra has stated that he was told by the officer present at

the A.C.B. office to bring his mother also on 26-2-2001 to the A.C.B.

office. If the Investigating Officer did not know anything about the

complainant being summoned to the Court along with his mother on

26-2-2001 by respondent no. 1, one does not understand as to why

the Investigating Officer told the complainant to come back with his

mother also on 26-2-2001 particularly and why not on 24-2-2001 or

25-2-2001. No explanation in this regard has been given by the

prosecution witnesses. This creates a doubt about prosecution case

and it is further deepened by one significant fact, the fact that on

23-2-2001, when the complainant visited the A.C.B. office, no

complaint was made by him against the respondent no. 1 regarding

demand of bribe of Rs. 500/- made by respondent no. 1 for issuance

of succession certificate. All these facts have been considered by the

learned Special Judge to find a doubt about the genuineness of the

complaint made against the respondents by the complainant

subsequently on 26-2-2001. I find myself in agreement with the

learned Special Judge, particularly, when one considers the way the

events have been narrated by P.W. 1 Virendra discussed just now.

7. The complaint lodged by P.W.1 Virendra is at Exhibit 38.

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It is replete with instances of overwriting of the dates. The figure of

"26" has been overwritten several times in order to change the date

written at different places in the complaint and it has been done

without any authentication or initials being made by the officer who

reduced the complaint into writing or even by the complainant

himself. No satisfactory explanation for this overwriting has come on

record and, therefore, as rightly held by the learned Special Judge, a

whole lot of doubt arises about the genuineness of the complaint

made by P.W. 1 Virendra against the respondents.

8. Even, the panch witness or shadow witness P.W. 3 does

not state that the respondent no. 1 made a demand of Rs. 500/- from

the complainant as a bribe. It is the case of prosecution that after

accepting tainted currency notes from the complainant, respondent

no. 1 handed them over to the respondent no. 2 on seeing the

members of the raiding party entering the room. Respondent no. 2

then ran away from that room and entered some other room where

Establishment Department of the Court was housed and from that

room, the respondent no. 2 threw out from the window those tainted

currency notes. The tainted currency notes were seized. However,

the place where those tainted currency notes were lying scattered and

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the circumstances in which those currency notes were seized by the

Investigating Officer have not been recorded in the form of

panchanama. On the contrary, it appears that the respondent no. 2

was directed by the Investigating Officer to go down stairs along with

panch no. 2 to the place where the currency notes were lying

scattered and pick them up and bring them back to the Investigating

Officer, which direction was followed by the respondent no. 2.

Thereafter, it is further seen that a show was created that the tainted

currency notes were recovered from the possession of the respondent

no. 2. These facts further thicken the suspicion already expressed

about the genuineness of prosecution case against the respondents.

9. In such a backdrop, the evidence of defence witness,

D.W.1 Advocate Shri Malani is required to be seen. According to

D.W. 1 Malani, P.W.1 Virendra and his mother were his clients and

that he had obtained order of the learned Civil Judge Senior Division

regarding issuance of succession certificate in the name of mother of

the complainant. He states that stamp duty of Rs. 7800/- was leviable

on the succession certificate and unless the stamp duty was paid, in no

way, the succession certificate could have been issued by the court

officials. He has further stated that he was told by the complainant

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and his mother about their poor financial condition to purchase the

stamp papers and subsequently, he was also informed by them that

the requisite funds were mobilized by them by obtaining a hand-loan

of Rs. 7,000/- from the friend of deceased Krushnarao, further hand-

loan of Rs. 500/- from respondent no. 1 and an amount of Rs. 300/-

from the home savings. Of course, the story of hand-loan has not

been accepted by the complainant. But, the standard of proof

required for accepting or rejecting the defence of accused is different

from the one applicable to the prosecution evidence. While the

prosecution evidence is required to be tested on the anvil of the

principle of 'beyond reasonable doubt', the defence evidence has to be

scrutinized by applying the principle of 'preponderance of

probabilities'. D.W. 1 Advocate Malani was the advocate of the

complainant and his mother. The poor financial condition of the

complainant and his mother was also evident from their inability to

purchase the stamp paper for a period of about one year after passing

of the order of issuing succession certificate. This evidence when

considered in the light of doubts expressed earlier about prosecution

evidence would enable this Court to take a view that defence taken by

the respondent no. 1 that what was returned to him was only the

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hand-loan obtained by the complainant from him is probabalized. If

this is so, one would have to say that the prosecution has failed to

prove it's case beyond reasonable doubt against the respondent no. 1.

Same conclusion would then be equally applicable also to prosecution

case against the respondent no. 2.

10. In the circumstances, I am of the view that this is not a fit

case to interfere with the judgment and order passed by the Court

below. The view taken by the Court below is not such an impossible

view as could be substituted by this Court just because another view is

possible. In any case, if two views are reasonably possible, one which

favours the accused must be adopted and that being so, I find no

merit in the appeal.

The appeal stands dismissed.

JUDGE

wasnik