Bombay High Court

Tukaram Ramdas Pawar vs State Of Mah.Thr.Pso Buldhana on 1 November, 2017

Bench: R. B. Deo

 apeal633of04.odt                          1




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

                     CRIMINAL APPEAL NO.633 OF 2004


          Tukaram s/o.Ramdas Pawar,
          Aged about 51 years,
          Occupation - Service,
          R/o.Deulgaonraja, District Buldhana                        .....APPELLANT


                                   ...V E R S U S...


          State of Maharashtra,
          through P.S.O. Police Station
          Deulgaonraja, District Buldhana &
          Anti Corruption Bureau Office 
          at Buldhana                                                ...RESPONDENT

 -------------------------------------------------------------------------------------------
          Mr. M.I. Dhatrak, counsel for the Appellant.
          Mr. A.V.Palshikar, Additional Public Prosecutor for 
          Respondent/State.
 -------------------------------------------------------------------------------------------

                                           CORAM:            ROHIT B. DEO, J. 


  DATE OF RESERVING THE JUDGMENT          
                                          : 30-10-2017
  DATE OF PRONOUNCING THE JUDGMENT        :  
                                              01-11
                                                   -201
                                                      7




 JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 29.9.2004 in Special Anti-corruption Case 5 of 1998

delivered by the Additional Sessions Judge / Special Judge,

Buldhana, by and under which, the appellant (hereinafter referred

to as "the accused) is convicted for offence punishable under

section 12 of Prevention of Corruption Act and is sentenced to

suffer rigorous imprisonment for one year and to payment of fine

of Rs. 1,000/-.

2 The gist of the prosecution case is that the accused,

who was then working as junior clerk in the Tahsil office,

Deulgaonraja, District Buldhana accepted an amount of Rs. 200/-

as illegal gratification from the complainant Dilip Khillare as

consideration for receiving licence to open a road side restaurant

(Dhaba).

3 The complainant Dilip Khillare is resident of

Deulgaonraja and is the owner of agricultural land admeasuring 5

acres or thereabout situated at Deulgaonmahi. Dilip Khillare

desired to open a Dhaba on the said land and to the said end to

obtain loan from District Industrial Center, Buldhana, one

condition for obtaining finance was that the Tahsil office should

issue no objection to start Dhaba. The complainant approached

the Tahsil office, Deulgaonraja, accused 1 Dhundu Bhopale who

expired prior to the commencement of trial was the senior clerk

and appellant / accused was the junior clerk in the said office. The

complainant met the appellant who directed the complainant to

meet one Chakurkar. The said Chakurkar made an endorsement

on the application that licence be issued on producing the

prescribed bond and other documents and referred the application

to appellant / accused. The complainant was asked to produce no

objection certificate of Grampanchayat, site map, Kisan Vikas Patra

of Rs. 500/- and 7/12 extract of the land.

The complainant met the appellant / accused 2 on

30.8.1997 alongwith necessary documents. The appellant /

accused annexed the documents to the application for licence and

directed the complainant to bring three blank challan forms. The

complainant brought the challan forms and again met accused 2

who asked the complainant to get the challan passed from accused

1. The complainant met accused 1 who passed the challan and the

amount of Rs. 200/- was deposited by the complainant in the bank

and one copy of the challan was given by the complainant to

accused 1. It was then that the accused 1 demanded illegal

gratification of Rs. 400/- from the complainant, the complainant

expressed inability to pay Rs. 400/-, the demand was scaled down

to Rs. 200/-. The complainant again visited the Tahsil office on

8.9.1997 and met accused 1, he was asked as to whether the

amount is brought, the complainant told accused 1 that he could

not arrange for the amount and that the amount will be brought

on coming Saturday. The accused 1, however, told the

complainant that since Saturday is holiday, the amount of Rs.

200/- be brought on Friday i.e. 12.9.1997.

The complainant was not willing to pay the bribe. He

lodged a report with the Anti-corruption Bureau, Buldhana ("ACB"

for short) at 8 a.m. on 12.9.1997 vide Exh. 32. The ACB made the

arrangements to trap accused 1. The panchas were summoned,

appropriate instructions were issued, the usual demonstrations

were given and it was decided to trap accused 1 at the office, in

the afternoon of 12.9.1997.

The raiding party reached Deulgaonraja at 3.00 p.m. The

complainant and the shadow panch entered the room of accused

1, they were told by accused 1 that the work of licence is complete

and only signature of the Tahsildar is to be obtained. Accused 1

asked the complainant to call accused 2. The complainant and the

shadow panch went to the room where accused 2 was sitting and

conveyed that accused 1 had called him. The complainant and the

shadow panch again returned to the room of accused 1. The

accused 2 came there, some talk ensued between accused 1 and

accused 2, they asked the complainant to have a cup of tea. After

having tea accused 1, the appellant - accused, complainant and

shadow panch returned to the office. Accused 1 asked the

complainant whether Rs. 200/- are brought, the complainant

replied in affirmative, accused 1 asked the complainant to pay the

said amount to accused 2, accordingly complainant handed over

currency notes to appellant - accused who accepted the same by

left hand and kept the same in the left side pocket of the trouser.

The complainant gave predetermined signal, the raiding party

rushed and apprehended the accused 1 and appellant - accused.

It is the case of the prosecution that the left hand fingers of the

accused were subjected to phenolphthalein sodium carbonate test

which proved positive. The left side pocket of accused 2 and the

trouser of appellant - accused and the currency notes allegedly

recovered from the said pocket, were subjected to the said test

which again was positive.

The investigation ensued and after obtaining the statutory

sanction, the chargesheet was filed in relation to offence

punishable under section 7/12/13(1)(d) read with section 13(2)

of the Prevention of Corruption Act.

4 The Special Judge, Buldhana framed charge vide

Exh.15, the accused abjured guilt and claimed to be tried. The

defence of the accused was that he innocently accepted the

amount from the complainant at the instance of accused 1 and

that he had no clue that the said amount was demanded by

accused 1 as illegal gratification.

5 Shri. M.I. Dhatrak, the learned counsel for the

appellant submits that conviction of the accused for offence

punishable under section 12 of the Prevention of Corruption Act, is

contrary to the weight of evidence on record and is unsustainable.

He submits that even according to the complainant, the accused

did not make any demand and indeed the complainant was not

even aware that on the date of the trap he would be interacting

with the accused. My attention is invited to the following portion

of paragraph 9, 10 & 11 of the cross-examination:-

Paragraph 9:

"I had no idea when I left A.C.B. office to go to Tahsil office that I would be required to meet accused no.2. Before I lodged a complaint to A.C.B. office vide Ex.32 the meeting between myself and accused no. 2 was not pre-arranged".

Paragraph 10:

"As the accused no. 1 directed me to pay the amount to accused no. 2 I paid the amount to the accused no. 2 and then the accused no. 2 had said to accused no. 1 to take his amount, however he said to accused no. 2 to keep the said

amount with him and he would accept the said amount after some time. As the accused no. 1 had said that he would take the amount after some time, the accused no.2 had kept the said amount in his pocket".

Paragraph 11:

"I have not heard personally what was the talk between accused no.1 and 2 before we proceed to take tea. I did not disclose at any time to A.C.B. officer what was the talk between accused no.1 and 2 before we proceeded to take tea".

In order to substantiate the contention that even if the

evidence is taken at face value, the appellant - accused can not be

charged much less convicted for abetment, my attention is drawn

to paragraph 12 of the cross-examination which reads thus:

"It is true to say that on 30.8.1997 when I met accused no. 2, he said me that his file has been sent to accused no. 1 and at the same time he also said me I would require to pay Rs. 200/- by challan for the licence. It is true to say that without demand of any amount and without any concern the accused no.2 has been involved in this matter".

6 I have given my anxious consideration to the entire

evidence on record. Concededly, the appellant - accused who was

working as junior clerk did not make any demand of illegal

gratification. The complainant did not have any occasion to

interact with appellant - accused prior to the date of the trap.

Both, the complainant and the shadow panch are consistent in

deposing that it was accused 1 who asked the complainant to hand

over the amount to the appellant - accused. In the teeth of the

admission of the complainant that the amount was accepted by the

appellant - accused 2 without knowing that the amount was

towards illegal gratification demanded by deceased accused 1, it is

difficult to uphold the finding that the appellant - accused abetted

the commission of offence punishable under section 7 of the

Prevention of Corruption Act.

7 Shri. M.I. Dhatrak, the learned counsel for the

appellant relies on the judgment of a learned Single Judge of this

Court in the case of Ulhas s/o. Upasrao Salame Vs. The State of

Maharashtra, 2015 ALL MR (Cri) 2259 and in particular on the

following observations therein:-

paragraph - 14 :

"Now, if we take a look at the prosecution evidence, we would find that nowhere it has appeared either in the evidence of the complainant P.W.-4 Rajesh or evidence of P.W. - 1 Mahendra that accused No. 2 was told by accused No.1 that the amount that he was directed to accept from the complainant was towards the bribe demanded by accused No.1. There is also no

other evidence brought on record by the prosecution from which an inference of sharing of same intention by accused No.2 as accused No.1 or same knowledge by accused No. 2 as accused No. 1 as regards the amount of Rs. 250/-, being the bribe amount can be drawn. When a person is charged with an offence of abetting commission of offence by means of intentionally aiding the main accused, the burden is upon the prosecution to prove that same intention was nurtured by the abettor as the main culprit himself. That evidence is absolutely lacking in this case. It is quite possible that a person who is accused of abetment of commission of offence may accept something for and on behalf of the main accused innocently and in good faith without doubting that the money that he is accepting is really a bribe. In other words, the intention of the abettor may be different from the intention of the main culprit. Therefore, it is necessary for the prosecution to establish that the abettor too had shared the same intention as the main accused. That is not the case here and, therefore, I am of the view, accused No. 2 deserves to be acquitted".

Paragraph 15 :

"Apart from the lack of evidence of sharing of the same intention of accused No.1, there is also evidence brought on record by accused No. 2 in support of his defence that the amount of Rs. 250/- accepted by him was towards liquidation of the debit balance standing in the account of accused No.1, which was opened by accused No.1 with accused No.2, a pan stall owner towards purchase of pan on credit by accused No.1

from accused No. 2. P.W. - 1 Mahendra has given a clearcut admission in this regard. He states that accused No. 1 was directed by accused No. 1 to accept the amount from the complainant and credit the same to his account maintained with him. It has also appeared through the evidence of P.W. -2 Ashok Kshirsagar, Clerk working in the office of accused No.1, from whom receipt book had been seized by police, that accused No. 2 was in the habit of supplying pan to various persons working in tahsil office. Of course, he has pleaded ignorance about supplying of pan on credit to accused No.1. But the fact remains that accused No. 2 was following the practice of supplying of pan to various employees of tahsil office, where accused No.1 was working as Naib Tahsildar, on credit and was also in the habit of maintaining accounts of the employees to whom he used to supply pan on credit. Therefore, it can be said that accused No. 2 has succeeded in establishing on record through the principle of preponderance of probabilities that the amount that was accepted by him from the complainant was believed by him bona-fide to be the payment by accused No.1 though the complainant towards liquidation of debit balance outstanding against him. Therefore, I find that accused No. 2 has successfully probabilised his defence in this case and the prosecution has not shown that the probability so reasonably brought on record by accused No. 2 has been ruled out by any other evidence available on record. Thus, I find that the prosecution has failed to establish beyond reasonable doubt it's charge that accused No.2 abetted the commission of offence of acceptance

of bribe by accused No.1, which is punishable under Section 12 of the Act".

Paragraph 16:-

"Learned Special Judge, as seen from the impugned judgment and order, has not considered the afore-stated material aspects of the case emerging from the evidence available on record and, therefore, I am of the view that the finding of guilt of accused No. 2 recorded by the trial Court for an offence punishable under Section 12 of the Act cannot be sustained in law"