The State Of Mah.Thr.Acb Nagpur vs Pradeep Puroshattam Mule
2017 Latest Caselaw 2580 Bom

                                                     1                                      jg.apeal571.04.odt



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

                              Criminal Appeal No. 571 of 2004

The State of Maharashtra 
Through Anti-Corruption Bureau, 
Nagpur.                                                                                        ..... Appellant

           // Versus // 

Pradeep s/o Puroshattam Mule, 
Aged about 34 years, Occ Service as
Jr. Enigneer in MSEB, 
R/o. Nandagomukh, Dist. Nagpur.                                              .... Respondent
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Ms. N. P. Mehta, A.P.P. for the State/appellant 
None for the respondent
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                                                                CORAM :  S. B. SHUKRE, J.

                                                             DATE    :   19/05/2017.
ORAL JUDGMENT

This appeal is preferred against the judgment and order

dated 9-6-2004 delivered in Special Case No. 15/1989 by Special

Judge, Nagpur thereby acquitting respondent of the offences

punishable under Section 161 of the Indian Penal Code and

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

Act, 1988.

2. This is a trap case which dates back to early part of the

year of 1988. In February, 1988, the respondent was working as

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Junior Engineer with Maharashtra State Electricity Board and his

office was situated at Nandagomukh. He was the Junior Engineer

having authority to sanction electric supply to farmers from Saoner

Region. The complainant Mangal Balaji Dhurve was one such farmer

who was interested in having an electric supply provided at his field in

order to energize the electric pump-set which he had fitted at a dug

well in the field. He had approached the respondent several times for

sanctioning the electric supply, but, according to him, the respondent

demanded bribe of Rs. 500/- from him for sanctioning the electric

supply.

3. Having been left with no option, the complainant Mangal

Dhurve decided to file a complaint against respondent with Anti

Corruption Bureau Office, Nagpur. On 4-2-1988, he lodged a report

against the respondent at Anti Corruption Bureau Office, Nagpur.

Personnel of Anti Corruption Bureau decided to entrap the respondent

while accepting the bribe amount. Necessary preparations were

accordingly made and trap was also set for that day, however, it was

unsuccessful as the respondent was busy attending one official

meeting. But, the respondent had made it sure to pass on the

message to the complainant of his being called by him with money

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on 9-2-1988. Again, necessary preparations were made and the trap

was set for 9-2-1988. This time, the trap was successful and the

respondent was caught red handed while accepting bribe amount.

Necessary panchanamas were made, statements of witnesses were

recorded and after completion of investigation, charge-sheet was filed.

4. The respondent was tried for the aforestated offences by

the learned Judge, Special Court under Prevention of Corruption Act,

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

prosecution proved its case that on 9-2-1988, the respondent accepted

the amount of Rs. 500/- from the complainant as illegal gratification

for performing his official duty and also abused his position as a

public servant. But, the learned Special Judge further found that

sanction given for prosecution of the respondent was invalid and

illegal and, therefore, acquitted the respondent of the said offences

by judgment rendered on 9-6-2004. It is the same judgment which is

under challenge in the present appeal.

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

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

carefully gone through the record of the case including the impugned

judgment and order.

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6. According to the learned Additional Public Prosecutor,

sanction order vide Exhibit 54 was issued by one Shri Ghisal who was

the Joint Secretary (Technical), M.S.E.B., Mumbai and the competent

authority to grant sanction for prosecution and as Shri Ghisal was not

available for deposition before the Court owing to his death, his role

was performed by P.W.4 Ravindra Bhalerao who was serving as

Personal Assistant to Shri Ghisal at the relevant time. She submits

that evidence of this witness has not been properly appreciated by the

learned Special Judge and, therefore, she submits that the impugned

judgment and order are illegal.

7. Upon going through the evidence available on record, I

do not think that the view taken by learned Special Judge could be

termed as hyper technical view or as not logically arising from the

evidence brought on record by the prosecution. The prosecution

consciously chose to produce evidence not only of the sanction order

(Exhibit 54) dated 28-2-1989 but also brought on record draft

sanction order (Exhibit 53) dated 16-9-1989. Both these orders,

according to P.W. 4 Ravindra, were signed by Joint Secretary

(Technical) i.e. Shri Ghisal, but, learned Special Judge found that

signatures appearing on both these orders did not tally with each

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other and that there was something highly suspicious about these two

different orders. I have gone through the prosecution evidence and

it can be inferred from the evidence of P.W. 4 Ravindra that draft

sanction order (Exhibit 53) dated 16-9-1989 was the order which was

signed first before the sanction order was issued. This inference, to

my mind, arises from the admission given by P.W.4 Ravindra Bhalerao

that there was an endorsement on the draft sanction order vide

Exhibit 53 regarding placing of the same before the competent

authority for approval. However, curiously enough, the sanction

order (Exhibit 54) dated 28-2-1989 came first even before the

approval was accorded and it seems to have been accorded by the

authority on 16-9-1989 when he signed the draft sanction order.

Prosecution has not explained as to how the sanction order dated

28-2-1989 came into existence even before approval was accorded by

the competent authority to the draft sanction order.

8. The suspicion so grown about giving of proper sanction

for prosecuting respondent has turned into a fact of invalidating of

sanction when one further considers the evidence of P.W. 4 Ravindra.

Nowhere in his evidence, P. W. 4 has stated that the case papers of

this case were placed before the competent authority Shri Ghisal.

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P.W. 4 has not stated anything about the production of record of this

case before the sanctioning authority. He has also not stated anything

about perusing of the relevant documents by the sanctioning authority

before he gave his approval for issuing sanction to prosecute the

respondent. This only shows that if at all there was any sanction, it

was without application of mind. Law in this regard is clear. It says

that sanction given without any application of mind to the record of

the case can not be considered to be a legal and valid sanction to

prosecute the accused in a graft case. This settled law as stated in the

case of Major Som Nath Vs. Union of India and anr. reported in AIR

1971 SC 1910, has been borne in mind by the learned Special Judge

when he recorded a finding that sanction was invalid and illegal and

rightly so. In these circumstances, I find that this is not a fit case for

making any interference with the impugned judgment and order. The

appeal deserves to be dismissed.

The appeal stands dismissed.

JUDGE

wasnik