Bombay High Court
State Of Mah. Thru. Dy. Suptd. Of ... vs Kailas Bhimrao Patil on 23 May, 2017
Bench: V.A. Naik
2605CRI.APL 635.08-Judgment 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 635 OF 2008
APPELLANT :- State of Maharashtra, Through Deputy
Superintendent of Police, (Anti Corruption
Bureau), Amravati.
...VERSUS...
RESPONDENT :- Kailas Bhimrao Patil, Aged 37 years, R/o
Mudliyar Nagar, Amravati, Tq. & Distt.
Amravati.
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Mr. K. R. Lule, Addl. Public Prosecutor for the appellant.
Mrs. S.S.Loney, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK, J.
DATED : 26.05.2017
O R A L J U D G M E N T
By this criminal appeal, the appellant-State of Maharashtra
challenges the judgment of the Sessions Judge, Amravati in Special Case
(ACB) No.7 of 1998, dated 15/07/2008 acquitting the respondent-
accused of the offences punishable under sections 7 and 13 (1) (d) read
with section 13 (2) of the Prevention of Corruption Act, 1988.
2. According to the prosecution case, accused-Kailas Patil
was working as a junior clerk in the confidential section of Amravati
2605CRI.APL 635.08-Judgment 2/11
University in the year 1997. The accused was also in-charge of the
examinations of one year B.P.Ed. course. Complainant Raghuvirprasad
Sharma had appeared for one year B.P.Ed. course from Amravati
University. However, in the mark-sheet that was received by the
complainant at his native place in Rajasthan, it was found that
wrongfully zero marks were shown to have been obtained by him in the
first paper of P.S.History, though he had solved all the five questions in
that paper. Complainant Raghuvirprasad applied to the university for
revaluation, but there was no change in the result. The complainant,
therefore, approached the controller of examinations, who in turn asked
him to see the accused. The complainant went to the accused on
26/11/1997 and the accused apprised him that his marks could not be
changed. When the complainant told his difficulties to the accused, the
accused told him that his work would be done, but he would be
required to pay a bribe of Rs.5,000/- to the accused. On the request of
the complainant, the accused agreed to receive a lesser amount of
Rs.3,000/- and it was agreed that the complainant should pay a sum of
Rs.1,500/- on 05/12/1997 and the remaining amount of Rs.1,500/- at
the time of receiving the fresh mark-sheet. The complainant did not
wish to pay the amount and therefore on 05/12/1997 he went to the
office of Anti Corruption Bureau, Amravati and his complaint was
recorded into writing. A trap was arranged and in the guest house near
2605CRI.APL 635.08-Judgment 3/11
the canteen in the campus of the Amravati University the complainant
gave the tainted amount to the accused, who accepted the same and
thereafter the trap procedure was completed. A F.I.R. was lodged after
the investigation was completed. The trial court framed the charges
against the accused. The prosecution examined the complainant
P.W.No.1, panch No.1-Upsen Rangari P.W.No.2, decoy witness
P.W.No.3-Ramesh Baitule, P.W.No.4-Vitthaldas Rathi, the deputy
registrar, P.W.No.5-Vandan Mohod, the sanctioning authority and
P.W.No.6-Arvind Pande, the investigating officer. On an appreciation of
the evidence on record, the trial court held that the prosecution had
failed to prove that the accused had demanded and accepted the
amount as gratification other than legal remuneration from the
complainant. The trial court therefore acquitted the accused of the
offences punishable under sections 7 and 13(1)(d) read with section
13(2) of the Act. The judgment of the trial court is challenged by the
State Government in this appeal.
3. Shri Lule, the learned Additional Public Prosecutor
appearing for the State Government, submitted that the trial court was
not justified in holding that the prosecution had not produced reliable
evidence on record to show that the accused had demanded and
accepted the tainted amount from the complainant. It is submitted that
2605CRI.APL 635.08-Judgment 4/11
merely because the complainant was declared to have passed in the
examination before he lodged the complaint, the trial court could not
have held that there was no reason for the complainant to lodge a
complaint against the accused. It is submitted that undue weightage is
given by the trial court to the evidence of the complainant, who
admitted in his cross-examination that he felt that the officials and the
employees of the university had deliberately played a mischief with him.
It is submitted that the trial court has erroneously held that the accused
was not working in the department where the marks could have been
awarded to the complainant and therefore the accused was not
competent to grant any favour or render any service to the complainant.
It is submitted that the trial court was not justified in holding that it was
not possible for the accused to do anything for the complainant in his
official capacity in respect of increasing his marks even at the stage of
revaluation. It is submitted that on the basis of the evidence of the
prosecution witnesses, it could be clearly said that the accused had
made the demand of Rs.3,000/- from the complainant as illegal
gratification and had accepted a sum of Rs.1,500/- at the time of trap.
4. On a perusal of the record and proceedings as also the
judgment of the trial court, it appears that the following points arise for
determination in this appeal:-
2605CRI.APL 635.08-Judgment 5/11
(I) Whether the trial court was justified in acquitting the
accused of the offences punishable under sections 7 and
13(1)(d) read with section 13(2) of the Prevention of
Corruption Act?
(II) What order?
5. On a reading of the evidence, it appears that the
complainant had appeared for the B.P.Ed. examination from Amravati
University and he had secured zero marks in the first paper of P.S.
History. The complainant is stated to have approached the controller of
examination, who in turn had asked the complainant to meet the
accused. On 26/11/1997, the complainant had met the accused and the
amount that was liable to be paid by the complainant to the accused as
the illegal gratification was agreed at Rs.3,000/-. The complainant was
not ready to pay the amount to the accused and therefore the
complainant lodged a complaint in the office of Anti Corruption Bureau,
Amravati on 05/12/1997. The trial court found and rightly so that
there was no reason for the complainant to have lodged the complaint
against the accused on 05/12/1997 when he had clearly admitted in his
cross-examination that before he lodged the complaint on 05/12/1997,
his result was declared and he had passed in the examination. Almost
2605CRI.APL 635.08-Judgment 6/11
all the witnesses had admitted in their cross-examination that before
the complaint was lodged by the accused on 05/12/1997, the
complainant was declared to have passed in the examination and that
he was aware that he had passed. The complainant admitted in his
cross-examination that the principal of HVPM College, Amravati had
informed him that he had passed in the examination, i.e. in the subject
of P.S. History and that he was aware about the passing in the
examination before lodging of the complaint. The trial court rightly
held that if it was known to the complainant and to all concerned that
the complainant had passed in the examination, there was no cause or
reason for the accused to make the illegal demand and there was no
cause or reason for the complainant to pay the amount demanded by
the accused, to him. The trial court rightly held that it was very difficult
to believe the case of the complainant that the accused had demanded
the amount as gratification for declaring the complainant to have
passed in the examination after the accused had passed in the
examination and was aware about it. The trial court held on the basis
of the cross-examination of the complainant that the complainant was
very annoyed with the university officials and the employees as the
complainant was declared to have failed with zero marks in one of the
subjects and that he and his companions had decided that something
should be done against the university to ensure that such things do not
2605CRI.APL 635.08-Judgment 7/11
happen in future. The trial court held that it was apparent from the
cross-examination of the complainant that the complainant was under a
belief that the university had deliberately played a mischief against him
by not awarding any marks to him in one of the subjects. The court
held on the basis of the cross-examination of the complainant that the
complainant intended to ensure that somebody from the university was
punished. The court held that if it was not so, the complainant would
not have lodged the complaint in the office of Anti Corruption Bureau,
Amravati on 05/12/1997 after knowing fully well that he had passed in
the examination.
6. Apart from the aforesaid, the court held that the accused
was a petty junior clerk, working in the confidential section in the
Amravati University and did not have the capacity to declare the
complainant to have passed in the subject in which he had secured zero
marks. The court held that it was surprising that the controller of
examinations of the university had referred the complainant to the
accused, who was a petty employee in the university and was not
competent to ensure that the complainant would get through the
examination. The court held that the case of the complainant that the
controller of examinations had referred the complainant to the accused
was not believable. P.W.No.4 had admitted in his cross-examination
2605CRI.APL 635.08-Judgment 8/11
that it was impossible for the accused to do anything in the matter of
increasing the marks of the complainant in the paper of P.S.History and
the accused could not have done anything in the process of revaluation.
P.W.No.4 had admitted that the answer papers were placed in the
custody of superintendent of stores and since the accused was not a
clerk under the superintendent of stores, he would not have had an
access to the answer papers. Though the answer papers could have
been sent to the chief central revaluation officer, the accused had no
concern with him. It was volunteered by P.W.No.4 in his cross-
examination that the tabulation was sent by the moderator to the
confidential section. However, the trial court disbelieved the said
evidence as the witness had made an improvement in his statement
before the police,in this regard. The trial court, on an appreciation of
the evidence tendered by the officials in the university i.e. P.W.No.4 and
P.W.No.5, held that the accused was not competent to declare the
complainant to have passed or failed, as he was merely working as a
junior clerk in the confidential section of the Amravati University, which
had no concern with the revaluation section or the other concerned
sections of the university.
7. After having held so, the trial court proceeded to accept
the submissions made on behalf of the accused that the prosecution had
2605CRI.APL 635.08-Judgment 9/11
not produced any cogent and reliable evidence for showing that the
accused had demanded and accepted the amount from the complainant.
The trial court held that if it was the case of the complainant that the
accused had called the complainant to the university on 05/12/1997
with the bribe amount, the complainant and his two friends would not
have searched for the accused for a long time in the university. The
trial court held that the accused as well as his two friends Ramjilal
Sharma and Rehan Naqvi were searching for the accused but the
accused was not to be found in the university campus for long. The
court found from the evidence on record that with great efforts the
accused could be traced by the complainant and his two companions.
The court held that if at all the accused had asked the complainant to
pay him the amount of Rs.1,500/- on 05/12/1997 as illegal
gratification, the accused would not have kept the complainant and his
companions waiting for long and the accused would not have remained
busy in his work elsewhere. The court held, on an appreciation of the
evidence on record that the complainant and his companions were keen
to ensure that the accused was booked and therefore they had made
ceaseless efforts to search for the accused, for a long time on
05/12/1997. The court found that in regard to the demand of
gratification at the time of the trap and the acceptance of the amount by
the accused, there were several improvements in the deposition of the
2605CRI.APL 635.08-Judgment 10/11
complainant and panch witness No.1. Though the complainant had
deposed that he had told the facts to the police, the investigating officer
had deposed that the facts were not stated by the complainant to him.
As far as panch No.1-P.W.No.2 is concerned, he had deposed that his
statement was never recorded by police and the statement made by him
before the court in his examination-in-chief was made by him for the
first time. The court found that though P.W.No.3-Ramesh and P.W.No.6
investigating officer had stated that P.W.No.2 panch No.1 had told them
that the accused had demanded the amount as gratification from the
complainant and the complainant had accepted the same, P.W.No.2-
panch No.1 had not deposed that he had made any such statement
either before P.W.No.3-Ramesh Baitule or P.W.No.6-investigating
officer. The trial court therefore held that there was a great variance in
the depositions of the material witnesses, i.e. the complainant,
P.W.No.2 panch No.1 and the investigating officer and it was difficult to
believe the case of the prosecution on the basis of the evidence of the
witnesses that the accused had demanded and accepted the amount of
Rs.1,500/- from the complainant on 05/12/1997. The court further
found that P.W.No.2-panch No.1 had admitted in his cross-examination
that before his evidence was recorded in the court, the ACB officers had
told him what he had to depose and accordingly he had deposed before
the court. Relying on the case law that is referred to in the judgment of
2605CRI.APL 635.08-Judgment 11/11
the trial court, the trial court held that the deposition of P.W.No.2-
panch No.1 was not worthy of credence and was required to be
overlooked as he was admittedly tutored by the officers of the ACB in
respect of his testimony. The findings recorded by the trial court are
based on a proper appreciation of the evidence on record. The trial
court rightly held that when the complainant had passed in the
examination, there was no occasion or reason for him to lodge a
complaint against the accused on 05/12/1997 and there was no reason
for him to pay the amount to the accused on his alleged demand. It is
well settled that in an appeal against acquittal, it would not be
permissible for the appellate court to interfere with the findings of facts
recorded by the trial court, unless the findings are perverse or are not
based on the correct position of law. Since such is not the case here,
the appeal needs to be dismissed.
The criminal appeal is therefore dismissed as such, with no
order as to costs.
JUDGE
KHUNTE
