State Of Mah. Thru Anti Corruption ... vs Narayan S/O Ramchandra Bhusari & ...
2017 Latest Caselaw 2634 Bom

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                                                      1

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

                               CRIMINAL APPEAL NO.420/2007

     APPELLANT:                 State of Maharashtra Through 
                                Anti Corruption Bureau, Wardha.

                                               ...VERSUS...

     RESPONDENTS :   1.  Narayan s/o Ramchandra Bhusari, 
                          Age about 54 years, Occ : Service, 
                          r/o Arvi, Tq. Arvi, Dist. Wardha. 

                                2.  Onkar s/o Sukhaji Sakhare, 
                                     Aged about 54 years, Occ : Service, 
                                     R/o Nachangaon, Tq. Deoli, Dist. Wardha.

     --------------------------------------------------------------------------------------------------
              Shri K.R. Lule, Additional Public Prosecutor for appellant
              Shri M.B. Naidu, Advocate for respondent no.1
              Shri Shriniwas Deshpande, Advocate for respondent no.2
     --------------------------------------------------------------------------------------------------

                                                    CORAM  :  SMT. VASANTI  A  NAIK, J.

                                                    DATE    :   25.05.2017 

     ORAL JUDGMENT  

By this criminal appeal, the State of Maharashtra challenges

the judgment of the trial Court dated 5.7.2007 in Special Case

No.6/2001, acquitting the respondents - accused of the offences

punishable under Sections 7, 12, 13 (1) (d) read with Section 13 (2) of

the Prevention of Corruption Act, 1988.

2. According to the prosecution case, complainant Dhanraj

Awajhekar was desirous of securing the measurement map of field Survey

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No.367 of Mouza Kachnoor as he had entered into an agreement with the

owner of the field, i.e., Vitthal Kadre for the purchase of teak-trees

standing thereon. The complainant first applied for measurement of the

field through its owner Vitthal Kadre on 4.12.2000. At the relevant time

accused no.1 - Narayan Bhusari was working as a Scrutiny Clerk in the

office of Taluka Inspector of Land Records, Arvi. The accused no.2- Onkar

was posted as a land measurer in the said office at the relevant time. An

amount of Rs.1,000/- was deposited towards the charges for the

measurement. On 14.12.2000 accused no.1 - Narayan demanded a sum of

Rs.500/- from the complainant and the said amount was paid by the

complainant to the accused and the accused accepted the same. The

accused no.2 - Onkar Sakhare measured the land after completing the

requisite formalities on 30.12.2000 and after the measurement,

demanded a sum of Rs.500/- as illegal gratification, for himself. The

complainant paid a sum of Rs.100/- to the accused no.2 - Onkar and he

accepted the same. The accused no.2 asked the complainant to pay the

balance amount of Rs.400/- to him either in his office if he was present or

to handover the same to the accused no.1 if he was not in the office. On

18.1.2001, the complainant went to the office of the accused no.1 and he

was asked to bring an amount of Rs.500/- on 25.1.2001. The complainant

was reluctant to oblige and he went to the office of the T.I.L.R. on

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23.1.2001 and informed the accused no.1 about his inability to arrange

the money. The accused however told the complainant to bring the

money on 23.1.2001 and since the complainant was reluctant to part with

the same, he approached the office of the Anti Corruption Bureau,

Wardha and lodged a complaint. The pre-trap proceedings were

explained to the accused and the trap was arranged. The trap-party left

for Arvi by a Government jeep and at 3:00 p.m. after reaching Arvi the

jeep was stopped near Vitthal Mandir. The complainant went to the office

of the T.I.L.R. with the Panch and after some time when the accused no.1

entered his office, the complainant greeted him and informed him about

the purpose of his visit. The accused no.1 opened the cupboard, took out

a bunch of papers and kept them on the table. The accused no.1 informed

the complainant that the map was ready but it was not signed by the

concerned officer. The complainant asked the accused no.1 about the

accused no.2 when the accused no.1 informed that the accused no.2 had

asked him to receive the amount of Rs.400/- that was payable to the

accused no.2. The complainant went to the left side of the accused no.1,

took out the currency notes from the right pocket of his full-pants, by his

right hand and the accused no.1 accepted the currency notes by his left

hand and after counting the notes with both the hands, kept them in a

register in the almirah. The complainant was not supplied the copy of the

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map and the complainant came out of the office and signalled to the

raiding party. The phenolphthalein test was conducted and after

completing the formalities, the accused no.1 was apprehended. The

investigation was completed and after the trial Court framed the charges

against the accused, both the accused pleaded not guilty. The prosecution

examined P.W.1 - Sanjay, the carrier of Muddemal property, P.W.2-

Vikas, Panch no.1, P.W.3- complainant Dhanraj Awajhekar, P.W.4 -

Kamlakar Bansod, the Police Officer that had recorded the F.I.R., P.W.5 -

Competent Authority, P.W.6 - Sk. Hafiz who was acquainted with the

complainant and P.W.7 - Mohd. Rizvi, the Investigating Officer. On an

appreciation of the evidence on record, the trial Court held that the

prosecution had not adduced reliable and creditworthy evidence to prove

the charges levelled against the accused. The trial Court held that the

evidence pertaining to demand and acceptance was unreliable and the

accused were entitled to be acquitted of the offences punishable under

Sections 7, 12, 13 (1) (d) read with Section 13 (2) of the Act. Being

aggrieved by the judgment of the trial Court, the State Government has

filed this appeal.

3. Shri Lule, the learned Additional Public Prosecutor

submitted that the trial Court was not justified in giving undue weightage

to the admissions of P.W.7 - P.I. Rizvi to hold that the complainant had

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no nexus with the measurement of the field of which Vitthal Kadre was

the owner. It is submitted that it is the prosecution case that the

complainant had desired to enter into an agreement with Vitthal Kadre

the owner of the field for purchase of teak-trees and hence, he was a

person interested in securing the measurement map. It is submitted that

the trial Court has erroneously given much weightage to the evidence of

P.W.7 - P.I. Rizvi in his cross-examination to hold that the prosecution

has failed to prove its case. It is submitted that the explanation offered by

the accused no.1 that the tainted currency notes were already planted by

the complainant and the raiding party in the register in his absence before

he entered in his office and that he could have touched those currency

notes when the register was removed from the almirah was probable. It is

submitted that the trial Court has erroneously held that the prosecution

case suffers from serious defects that are incurable. It is submitted that

the trial Court has wrongfully observed that it was difficult to believe that

after accepting a small portion of the bribe, the accused no.2 who had

demanded the sum of Rs.500/- after carrying out the measurement would

hand over the entire proceedings though a substantial portion of the bribe

was not received. It is submitted that the trial Court was not justified in

holding that the accused no.2 could not have made the demand.

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4. On a perusal of the original record and proceedings, it

appears that the following points arise for determination in this appeal.

(1) Whether the trial Court was justified in holding that the prosecution has failed to prove that the accused nos.1 and 2 were guilty of the offences punishable under Sections 7, 12, 13 (1) (d) read with Section 13 (2) of the Act ?

(2) Whether the judgment of the trial Court calls for interference ?

(3) What order ?

5. At the outset, it would be necessary to note that the

prosecution has not produced any material on record to show that the

complainant was in any manner concerned with the measurement of the

field property that was owned and possessed by Vitthal Kadre.

Admittedly, the application for measuring the field property was made by

Vitthal Kadre. Even according to the prosecution case, the complainant

had applied for measurement of the field through its owner Vitthal Kadre

on 4.12.2000. Though it is the prosecution case that the complainant had

entered into an agreement to purchase the teak-trees standing on the field

property of Vitthal Kadre, reliable evidence is not produced by the

prosecution in that regard. In his cross-examination P.W.7, Investigating

Officer - Mohd. Rizvy admitted that he did not collect any document to

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show that there was any agreement between the complainant and

Shri Vitthal Kadre in respect of purchase of teak-trees. In his cross-

examination P.W.7 - P.I. Rizvi had admitted that he was not able to tell

which documents he had perused on 24.1.2001 and he had further

admitted that on 25.1.2001 also, the complainant did not bring the

agreement with him. The Investigating Officer P.W.7 fairly admitted in his

cross-examination that the agreement between the complainant and Shri

Kadre was an important document for the purpose of this case. P.W.7

however had no plausible explanation as to why he did not secure the

important document, i.e., the agreement between the complainant and

Shri Kadre. In the absence of any evidence in regard to the connection of

the complainant with the work for which the bribe was sought by the

accused, the trial Court held that the complainant had no connection with

the measurement of the property. Not only was any document pertaining

to such agreement between Shri Kadre and the complainant secured by

the Investigating Officer but the prosecution further failed to examine

Shri Kadre who was the owner of the property and who could have

thrown some light on the alleged agreement. The trial Court held that

there did not appear to be any connection between the complainant and

the work that was sought to be done through the public servant, i.e.,

measurement of the field owned by Shri Vitthal Kadre. Apart from

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committing a serious error in not securing the necessary document, the

Investigating Officer had further admitted that he did not record the

statements of any of the employees sitting in the room where the accused

no.1 - Narayan Bhusari was sitting at the time of the trap. In the cross-

examination, P.W.7 - Investigating Officer had admitted that none of the

employees from the office of the accused had ever told him about the

complainant visiting their office on earlier occasion. Also, P.W.6 - Sk.

Hafiz had stated that he had accompanied the complainant to the office

but there was no evidence tendered by the prosecution in respect of the

said fact. From the evidence of the Investigating Officer and from the

statements of the Superintendent Ramdas Meshram who was working in

the T.I.L.R. office, the trial Court found that the complainant had not

visited the office of the T.I.L.R. prior to the trap as the application was

made by Shri Vitthal Kadre for measuring his field and during the

measurement also, the presence of Shri Kadre was proved and the

presence of the complainant was not. Apart from the aforesaid, the trial

Court noticed that there was a serious defect in the panchanama

inasmuch as page no.3 of the panchanama was numbered twice and both

the pages that were numbered as "3" were bearing different contents in

regard to the same act. Page no.3 of the panchanama was typed twice and

in both those pages, there were different contents in regard to the prior

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demand. The trial Court found that the panchanama was not prepared

correctly and mistakenly both the pages that were typed as page no.3

were retained in the panchanama without removing page no.3 that was

typed or prepared mistakenly. The trial Court considered the admission of

P.W.7 - Investigating Officer that though the list of articles found with the

complainant prior to the trap and after the trap was the same and it did

not bear the mention of the Chalan, according to the prosecution, the

complainant possessed the Chalan prior to the trap. The trial Court held

that if the demand of Rs.500/- was made by the accused no.2 after he

carried out the measurement and the amount was directed to be paid to

the accused no.1, the accused no.2 could not have handed over the

measurement map prepared by him to the T.I.L.R. office if only a sum of

Rs.100/- was received by him as illegal gratification against the demand

of Rs.500/-. Also, the trial Court found that if measurement of a field is to

be done on urgent basis, as was done in the case of the field of Mr. Kadre,

the fees of Rs.1,500/- would be required. It was however found that an

amount of only Rs.1,000/- was deposited as fees for the measurement of

the field. The trial Court found that when the complainant went to the

office of the accused no.1 at the time of the trap, the accused no.1 was

not in the office and the complainant and the Panch no.1 were all alone

in the office of the accused no.1 till he came to the office. The trial Court

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held that since it was an admitted position that the accused no.1 was not

in the office when the complainant and the Panch reached the office and

they were all alone in the office for some time, it was possible to believe

the explanation of the accused no.1 that the tainted currency notes were

already planted in the register in his absence and his hands could have

touched the currency notes when he gave the register to the raiding party

on their instructions. The trial Court held that the case of the prosecution

suffered from serious defects and lacunae that were incurable and on the

basis of the shaky and unreliable evidence tendered by the prosecution

the accused could not be convicted. The findings recorded by the trial

Court are based on a proper appreciation of the evidence on record. The

view expressed by the trial Court is a possible view and in view of the well

settled position of law that the findings of facts recorded in a judgment of

acquittal cannot be disturbed or interfered with, by the Appellate Court

merely because another view is possible, it would not be proper for this

Court to interfere with the findings recorded by the trial Court.

In the result, the criminal appeal fails and is dismissed with

no order as to costs.

JUDGE

Wadkar