Bombay High Court
State Of Maharashtra Thr. Anti ... vs Mukundrao S/O Vithobaji Ingole on 25 May, 2017
Bench: V.A. Naik
apeal428.06.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.428/2006
APPELLANT: State of Maharashtra through
Anti Corruption Bureau, Nagpur.
...VERSUS...
RESPONDENT : Mukundrao s/o Vithobaji Ingole,
Aged 63 years, Occ : Retired,
r/o 157, New Subhedar Layout, Nagpur.
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Shri M.M. Ekre, Additional Public Prosecutor for appellant
Ms. A.M. Kshirsagar, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, J.
DATE : 25.05.2017
ORAL JUDGMENT
By this criminal appeal, the State Government takes an
exception to the judgment of the Special Court designated under the
Prevention of Corruption Act, dated 9.5.2006, acquitting the respondent -
accused of the offences punishable under Sections 7, 13 (1) (d) read with
Section 13 (2) of the Prevention of Corruption Act, 1988.
2. As per the prosecution case, in January-February, 2001,
accused Mukundrao was working as a Taluka Inspector of Land Records
at Umrer. The complainant, Mohd. Umarkhan had made an application
for mutation of his name in the revenue records in the year 1999 after the
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death of his father. In January 2001 the complainant received a notice in
Form No.9 and on 16.1.2001 the notice in Form No.12 was also received.
When the complainant attended the office of the Taluka Inspector of Land
Records on 9.2.2001, accused Mukundrao told him that the concerned
clerk was on leave and that he should come to the office on 14.2.2001.
The complainant attended the office of the Taluka Inspector of Land
Records on 14.2.2001. The copying charges and the penalty required for
securing the copies of the Akhiv Patrika and map were deposited by the
complainant. On 14.2.2001, the accused asked the complainant to pay
him an amount of Rs.1,000/- if he wanted the documents and that the
said amount should be brought on 20.2.2001. On 20.2.2001, when the
complainant called the accused on telephone at about 1:00 p.m., the
accused told him that the property-card was ready and that the
complainant should give an amount of Rs.1,000/- till 4:00 p.m. After the
talk with the accused, the complainant received a message about the
death of his sister's daughter and therefore, he informed the accused that
he could not come to the office. The accused however told the
complainant that he would come to Nagpur between 6 to 7 p.m. and meet
the complainant at Nagpur. Since the complainant was not ready to part
with the amount of Rs.1,000/-, he made a report of the matter to the Anti
Corruption Bureau Office. The complainant was advised about the
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pre-trap proceedings and was also informed about the importance of the
phenolphthalein test. At about 6:00 p.m., the complainant, the Panchas
and the members of the trap party went in a Government vehicle and
stopped near a bus stop. At about 6:45 p.m. one person touched the
complainant's shoulder and the complainant noticed that it was the
accused. The accused asked the complainant whether he has just come
and the complainant said that he came late due to the death of his
relative. The complainant asked the accused whether he had brought the
map and property-card and the accused told him that he had brought the
documents. The complainant and the accused went to the nearby
restaurant for taking tea. The complainant called for Mirinda cold drink
and when the accused asked the complainant about the person (decoy
witness) who was accompanying him, the complainant told him that he
was his son. The complainant told the accused that his son was not
studying properly and the accused guided the complainant's son that he
should study or else he would not be employed. After coming to the hotel,
the complainant asked the accused whether he had brought the
documents and the accused told him that he had brought them and took
out a diary from his pocket. The accused asked the complainant whether
he had brought the amount and the complainant answered in the
affirmative. When the accused asked the complainant to part with the
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amount, the complainant took out the currency notes from the right side
chest pocket of his Safari and the accused asked the complainant to keep
the notes in the diary. The complainant kept the amount of Rs.1,000/- in
his diary. The accused kept the diary in his bag. The complainant gave the
agreed signal to the raiding party and the accused was apprehended. After
the registration of the First Information Report and the completion of the
investigation, the trial Court framed the charges against the accused. The
accused pleaded not guilty and submitted that he was falsely implicated
in the case by the complainant as the complainant was annoyed that the
accused could not correct the mutation record despite the lapse of time in
view of the proceedings pending between the parties. In support of its
case, the prosecution examined complainant Mohd. Umarkhan - P.W.1,
Shri Dhote the carrier of complaint and articles - P.W.2, Panch No.1
Rajendra Deshmukh - P.W.3, Krushnarao Barapatre working in the office
of the accused - P.W.4, the Investigating Officer Prakash Pawar - P.W.5,
Pandit Kanhekar as P.W.6 and closed the oral evidence on its side. The
accused did not examine any witness in support of his defence. On an
appreciation of the evidence on record, the trial Court held that the
accused was entitled to be acquitted of the offences under the provisions
of the Act of 1988 as the prosecution had not secured a valid sanction to
prosecute the accused and had further not proved that the accused had
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demanded and accepted the amount of Rs.1,000/- from the complainant
as illegal gratification for supplying the copies of the Akhiv Patrika and
map by using his authority as a public servant. Being aggrieved by the
judgment of the Special Court, the State has filed this appeal.
3. Shri Ekre, the learned Additional Public Prosecutor
appearing for the State Government submitted that the trial Court was not
justified in holding that in view of the provisions of Section 19 of the Act
of 1988, the Special Court could not have taken the cognizance of the
complaint against the accused who was permitted to continue as a
Government servant even after his superannuation, in the absence of the
sanction to prosecute him. It is submitted that the accused had attained
the age of superannuation on 30.6.2001 and the trial Court took the
cognizance of the matter by framing the charges on 2.9.2005. It is
submitted that it is well settled that it would not be necessary to secure
the sanction to prosecute a public servant who stands retired on the date
on which the Court takes the cognizance of the matter under the
provisions of the Act of 1988. It is submitted that the law laid down by the
Constitution Bench of the Hon'ble Supreme Court in the judgment,
reported in AIR 1984 SC 684 was not considered by the trial Court while
deciding the case. It is submitted that the Hon'ble Supreme Court has
recently reiterated the said legal statement in the judgment, reported in
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(2014) 16 SCC 807 and while doing so has relied on the judgments of
the Hon'ble Supreme Court, reported in (1991) 3 SCC 655, AIR 1958 SC
107, 1970 (3) SCC 537 and (1998) 6 SCC 411. It is submitted that the
trial Court erroneously relied on the judgment, reported in AIR 1996 SC
901 though it did not apply to the case in hand. It is submitted that the
trial Court misread the document at Exh.63 to hold that the accused was
continued in Government service even after the date of his
superannuation. It is submitted that on a reading of the order at Exh.63, it
is clear that by the said order, the right of the respondent - accused to
withdraw the regular pension was withheld under Rule 27 of the
Maharashtra Civil Services (Pension) Rules, 1982. It is submitted that by
no stretch of imagination, it could be said that in view of the order at
Exh.63, the accused continued to serve as a public servant even after his
superannuation on 30.6.2001. It is then submitted that the trial Court was
not justified in holding that the prosecution had failed to prove that the
accused had demanded and accepted a sum of Rs.1,000/- from the
complainant as illegal gratification. It is submitted that the evidence of the
complainant was corroborated by the evidence of the other prosecution
witnesses and the trial Court erroneously disbelieved the convincing
evidence tendered by the prosecution. It is submitted that the trial Court
has erroneously held that it was not possible to believe that the
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complainant would lodge a complaint in the Anti Corruption Bureau and
participate in the trap proceedings on 20.2.2001 instead of attending the
burial of his sister's daughter who died on the same day. It is submitted
that in the circumstances of the case, the judgment of the trial Court is
liable to be set aside.
4. Ms. Kshirsagar, the learned Counsel for the respondent
-accused has supported the judgment of the trial Court. The Counsel fairly
admitted that it would not be necessary to secure the sanction for
prosecuting a retired public servant. It is, however, submitted that in the
instant case, the respondent - accused was continued in service in view of
the order at Exh.63 and since he was continued after the date of his
superannuation, it could be said that he was a public servant on the date
on which the Court took the cognizance of the matter. It is submitted that
there is no infirmity in the findings of the trial Court in that regard. On
the merits of the matter, it is submitted that this Court may not be
empowered to set aside the findings of facts recorded by the trial Court
while considering an appeal against the judgment of acquittal. It is
submitted that the findings of facts recorded by the trial Court are based
on a proper appreciation of the evidence on record and the view
expressed by the trial Court is a possible view. The learned Counsel relied
on the judgments of the Hon'ble Supreme Court, reported in (2014) 5
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SCC 730 and (2009) 15 SCC 200 in this regard. It is submitted that the
trial Court has rightly held that on the day on which the accused allegedly
lodged the complaint and participated in the trap proceedings he had lost
his real niece and therefore, it was difficult to believe that instead of
attending the burial of his niece, he would spend the time in filing the
complaint against the accused in the Anti Corruption Bureau and
participate in the trap proceedings. It is submitted that the trial Court has
rightly noticed the discrepancies in the evidence of the complainant, the
decoy witness and the Investigating Officer to hold that the evidence of
the prosecution was shaky and unreliable. It is submitted that in the
circumstances of the case the appeal is liable to be dismissed.
5. On hearing the learned Counsel for the parties and on a
perusal of the record and proceedings and the judgment of the trial Court,
it appears that the following points arise for determination in this
appeal :-
(1) Whether the sanction to prosecute the
accused was necessary ?
(2) Whether the trial Court was justified in
acquitting the accused of the offences punishable under
Sections 7, 13 (1) (d) read with Section 13 (2) of the Act ?
(3) What order ?
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6. For answering first point for determination, it would be
necessary to consider that as per the prosecution story the raid was
conducted on 20.2.2001 and the accused allegedly demanded and
accepted the amount of Rs.1,000/- as illegal gratification from the
complainant. On 20.2.2001 admittedly the accused was serving as a
Taluka Inspector of Land Records and was a public servant. There is no
dispute about the fact that the accused attained the age of superannuation
while he was under suspension on 30.6.2001. It is the case of the accused
that he was continued in service in view of the order at Exh.63, even after
his date of retirement. I have perused Exh.63 minutely. Exh.63 is an order
passed by the State Government under the provisions of Rule 27 of the
Maharashtra Civil Services (Pension) Rules. Under Rule 27 of the Rules,
the Government is empowered to withhold or withdraw the pension of a
Government servant in part or in full whether permanently or for a
specified period and in the case of the Government servant who has
retired on attaining the age of superannuation or otherwise and against
whom any departmental or judicial proceedings are pending, provisional
pension as provided in Rule 130 could be sanctioned. On a reading of
Exh.63, it appears that by the said order the petitioner was informed that
he would not be given any DCRG even on a provisional basis and would
be given provisional pension till the finalization of the criminal
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proceedings pending against him. As rightly submitted on behalf of the
State Government, the order at Exh.63 cannot be said to be an order
extending the services of the respondent - accused or continuing him in
service even after the date of his retirement so as to hold that the accused
continued as a public servant even after his superannuation. Since
admittedly the charge-sheet was filed on 2.9.2005 and the accused had
retired on attaining the age of superannuation on 30.6.2001, the trial
Court was entitled to take the cognizance of the matter despite the
absence of sanction to prosecute the accused. It is well settled by the
judgments of the Hon'ble Supreme Court referred to herein above and
relied on by the learned Additional Public Prosecutor that the sanction to
prosecute a public servant is not necessary in the case of a person who has
ceased to be the public servant at the time the Court is asked to take the
cognizance of the matter. The law on this point is quite clear and well
settled and the sanction to prosecute the public servant for the offences
punishable under the Prevention of Corruption Act is not required if the
public servant has already retired before the date of cognizance by the
Court. Since the accused had retired on 30.6.2001 and the Court took the
cognizance on 2.9.2005, the trial Court was not justified in holding that in
the absence of sanction for prosecution of the accused, the prosecution of
the accused is vitiated, as he was continued in service vide order at
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Exh.63.
7. Though the trial Court was not justified in holding that the
prosecution of the accused was vitiated in the absence of sanction, the
trial Court appears to have been justified in holding that the prosecution
had failed to prove that the accused had demanded and accepted an
amount of Rs.1,000/- from the complainant as illegal gratification. It is
the case of the prosecution that the accused had asked the complainant to
shell out a sum of Rs.1,000/- for securing the copies of the Akhiv Patrika
and map on 14.2.2001. Though the accused had asked the complainant to
pay the amount of Rs.1,000/- on 14.2.2001, the complainant did not
lodge any complaint or report in that regard till 20.2.2001, when he
allegedly approached the Anti Corruption Bureau for filing the complaint.
Admittedly on 20.2.2001 the real niece of the complainant, i.e., his sister's
daughter had expired but instead of attending the burial of his niece, the
complainant allegedly went to the office of the Anti Corruption Bureau
and also participated in the trap proceedings on the said date. The trial
Court held that it was not possible to believe that the complainant who
had not made any complaint against the accused for more than six days
would file the complaint and also participate in the trap proceedings on
20.2.2001, though his niece had expired on the said day and the said fact
was informed by him to the accused. The trial Court rightly held that in
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the absence of any explanation as to why the complainant did not
immediately lodge the complaint against the accused on 14.2.2001 and
thereafter when the amount was demanded it was not possible to believe
that he would file the complaint and also participate in the trap
proceedings on the day on which his real niece has expired.
8. In respect of the demand and acceptance, the trial Court
held that the case of the prosecution that the accused had asked the
complainant to pay the amount on 20.2.2001 at Nagpur was not reliable
as the complainant had submitted complaints against the accused to the
Collector, Nagpur vide Exh.26 and 28 in November, 2000 and the copies
of the complaints were supplied to the accused. On 28.11.2000 the
complainant had written a letter to the accused complaining about the
conduct of the accused. In view of the complaints made by the
complainant against the accused to the Collector, Nagpur and to the
Deputy Director of Land Records, the copies of which were supplied to the
accused, the trial Court held that it was difficult to believe the case of the
prosecution that the accused had called the complainant to Nagpur and
had carried the documents for their delivery to the complainant only on
the basis of the telephonic conversation. The trial Court held that in the
backdrop of the complaints made against the accused by the complainant
and the fact that there was a death of the near relative of the complainant
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on the day on which he reported the matter to the Anti Corruption Bureau
and participated in the raid, the case of the prosecution could not be
believed. The trial Court further held that the evidence of the complainant
was not corroborated by the evidence of the Panch No.1 and the
Investigating Officer. It was found that P.W.3 - Panch No.1 had admitted
that he was a witness in three-four trap cases and though he was aware
about the procedure, the complaint, Exh.13 does not bear his signature.
P.W.3 - Panch No.1 admitted in his cross-examination that he did not
remember that the notes were kept in an envelope and that the envelope
was sealed at the police station. He admitted that the sealed packet
containing the diary, Article No.3 did not bear his signature. He also
admitted that he had not made an endorsement that purple colour or dots
appeared in the diary. The trial Court found that the evidence of Panch
No.1 - P.W.3 about the diary being sealed, suffered from omission. The
trial Court found that the evidence of P.W.5 - Investigating Officer was
not reliable. The Court found that P.W.5 - Investigating Officer was not
able to withstand the cross-examination. Apart from the aforesaid, it was
noticed by the trial Court that the omission in the evidence of the
complainant that he did not tell that the accused had asked him whether
he had brought an amount of Rs.1,000/- on 20.2.2001, was proved. The
complainant admitted that he was a complainant in three-four cases of
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trap and he was prosecuted for misappropriation of Rs.2,40,000/-. The
complainant admitted that there was a dispute in the family and
litigations were pending in the Civil Court pertaining to the title and
mutation of the property. He had admitted that he had submitted the
complaints against the accused at Exh.26 and 28. He further admitted
that the accused was not concerned with the copies that were required by
the complainant as the work of preparing the copies, receiving charges
and delivering the copies was entrusted to the Head Clerk in the office.
Since the evidence of the complainant and P.W.3 - Panch no.1 suffered
from omission about the demand of Rs.1,000/- by the accused on
20.2.2001, the trial Court held that the evidence of the complainant and
P.W.3 pertaining to the demand and acceptance of bribe was not reliable.
The trial Court observed that the complainant and P.W.3 were habitual
witnesses and their evidence suffered from omission on a material fact
pertaining to the demand of Rs.1,000/- on 20.2.2001. The trial Court
rightly held on a proper appreciation of the evidence on record that the
evidence of the complainant and P.W.3 was unworthy of credit. The view
expressed by the trial Court is a possible and reasonable view. It is well
settled that though the powers of the Appellate Court while deciding an
appeal against acquittal are extensive and similar to the powers of the
Appellate Court while deciding an appeal against conviction, the
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Appellate Court would not disturb the findings of facts recorded by the
trial Court merely because another view is possible. The findings of facts
recorded by the trial Court could be reversed only on very substantial or
compelling reasons. In the instant case, the trial Court has recorded the
findings in respect of the illegal demand and acceptance of the amount by
the accused as illegal gratification against the prosecution on a proper
appreciation of the evidence on record. By humbly following the
judgments, reported in AIR 1952 SC 52, AIR 1954 SC 1 and AIR 1954
SC 637 and relied on by the learned Counsel for the respondent - accused
it would be necessary to dismiss the appeal.
Hence, the criminal appeal is dismissed with no order as to
costs.
JUDGE
Wadkar
