Ashok S/O Vishwambhar Chawhan vs State Of Mah.Thr.Station House ...
2017 Latest Caselaw 8459 Bom

apeal.302.01.jud                           1



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

                    CRIMINAL APPEAL NO.302 OF 2001

Ashok s/o Vishwambhar Chawhan,
Aged about 38 years, Patwari,
R/o Phadke Nagar, Dabki Road,
Akola.                                                              .... Appellant

       -- Versus -

State of Maharashtra,
Through the Station House Officer,
Anti Corruption Department, Akola.                              .... Respondent

Shri M.B. Naidu, Advocate for the Appellant.
Shri S.D. Sirpurkar, A.P.P. for the Respondent .

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : NOVEMBER 6, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 06/10/2001 passed by the learned Special Judge,

Akola in Special Case No.1/1993 convicting the appellant of the

offences punishable under Sections 7, 13(1)(d) read with Section

13(2) of the Prevention of Corruption Act, 1988 (hereinafter

referred to as 'the Act' for short) as under :

 Conviction                                     Sentence
under Section

        7               Rigorous imprisonment for 6 months and fine of

Rs.500/-, in default rigorous imprisonment for 2 months

13(1)(d) r/w Rigorous imprisonment for 1 year and fine of Rs.500/-, 13(2) in default rigorous imprisonment for 2 months.

02] The prosecution case, in brief, is as under :

i. Accused was working as Patwari and was posted at

Babhulgaon (Halka) from June, 1991. Ashok

Vijayendra Shukla [PW-1] was resident of Akola. His

grandfather had agricultural lands at village

Gondhalkhed. After the death of grandfather, father

and uncles of PW-1 Ashok were cultivating lands. They

were intending to sell the agricultural lands.

Complainant and his cousin brothers were against the

sale. So complainant approached the accused for

7/12 extracts.

ii. On 03/04/1992, complainant met the accused and

moved an application for 7/12 extracts. Accused

asked him to come after 3-4 days.

iii. According to complainant, he had been to the Office

of accused on 10/04/992. That time accused

demanded Rs.700/- for issuance of 7/12 extracts.

After deliberations, amount was reduced to Rs.350/-.

Complainant told the accused that he would pay

Rs.200/-. Accused then called complainant to the

office on 23/04/1992.

iv. Complainant then went to the Office of Anti

Corruption Bureau, Akola on 22/04/1992 and lodged

complaint. It was reduced to writing by PW-9 Deputy

Superintendent of Police Pitambar Chaudhari. The

trap was arranged. It was successful. Pre-trap and

post-trap panchnamas were drawn. After completing

investigation, charge-sheet was submitted to the

Special Court.

v. Charge of the alleged offences came to be explained

to accused vide Exh.9. He pleaded not guilty and

claimed to be tried. Accused raised specific defence

that at the time of trap, agriculture census was going

on and all Talathis were required to take original

registers of 7/12 extracts, receipt books, village forms

to Tahsil Office. He had kept the record in Kothari

complex as the said premises was near Tahsil Office.

According to the accused, on 08/04/1992,

complainant met him and asked for 7/12 extracts.

Accused asked the complainant that on getting the

order from Tahsildar, on an application to be moved

by him, 7/12 extracts could be issued. Complainant

then submitted an application. On the same day, he

prepared 7/12 extracts and kept them ready. The

same could not be issued as land holder was in

arrears of land revenue. In the evening, complainant

approached the accused and got annoyed for not

mentioning his name in 7/12 extracts.

vi. Again on 10/04/1992, complainant approached the

accused and insisted him to show his name in 7/12

extracts. As accused had shown his inability to do so,

exchange of words took place between the duo. While

leaving, complainant threatened to see the accused.

vii. It is stated by accused that on 23/04/1992,

complainant came to him and told that he had

brought arrears of land revenue and 7/12 extracts be

issued to him. Accused submitted that complainant

paid arrears of land revenue and not bribe. He denied

demand and acceptance of amount towards bribe.

viii. Prosecution examined in all 10 witnesses to

substantiate the guilt of accused. Considering the

evidence of prosecution witnesses, trial Court came to

the conclusion that demand and acceptance of bribe

has been proved by the prosecution and accordingly

convicted the accused as stated hereinabove in

paragraph 1. Being aggrieved by the judgment and

order of conviction and sentence, accused has

preferred this appeal.

03] Heard Shri M.B. Naidu, learned Counsel for appellant

and Shri S.D. Sirpurkar, learned Additional Public Prosecutor for

the State.

04] Learned Counsel for appellant submitted that on

demand, absolutely there is no iota of evidence. Referring to the

points for determination in the judgment, it is submitted that no

point was formulated on alleged demand. Learned Counsel

submits that in the absence of proof of demand towards illegal

gratification, offence cannot be constituted under the Act.

05] In support of the submissions, learned Counsel placed

reliance on :

1. Balkrishna s/o Lakshmi hand Didwani vs. The State of Maharashtra, through A.C.B., Akola - [2014 ALL MR(Cri) 3182].

2. Balkrishna Bhau Desai vs. State of Maharashtra

- [2016(1) Mh.L.J.(Cri.)25].

3. Vyankat s/o Baburao Kailwad vs. State of Maharashtra - [2016(3) Mh.L.J. (Cri.) 578].

4. Vinod s/o Savalaram Kanadkhedkar vs. State of Maharashtra - [2016(4) Mh.L.J. (Cri.) 570].

5. State of Maharashtra vs. Ramlal Shriram Gajbhiye - [2017(3) Mh.L.J. (Cri.) 5691].

06] Per contra, learned A.P.P. for the State supports the

judgment and order of conviction and sentence. It is submitted

that acceptance of amount towards bribe has been duly proved

and the accused has been rightly convicted.

07] On the basis of material and submissions advanced

on behalf of the parties, following points would arise for

determination of this Court :

i. Whether prosecution could prove that on 23/04/1992,

accused/appellant being a public servant demanded

an amount of Rs.200/- as a remuneration other than

legal remuneration as a motive for issuing 7/12

extracts to complainant?

ii. Whether prosecution could prove that appellant being

a public servant committed criminal misconduct by

securing amount of Rs.200/- by corrupt and illegal

means from complainant by abusing his position as

public servant?.

08] Findings to above points (i) and (ii) are in the negative

for the reasons to follow :

REASONS

09] Accused does not dispute that at the relevant time, he

was working as Talathi and was posted at Babhulgaon (Halka). It

is also not in dispute that village Gondhalkhed was within the

jurisdiction of Babhulgaon (Halka). Accused did not dispute that

7/12 extracts were to be issued by him on receiving application

from complainant. He admits receipt of Rs.200/- from

complainant on 23/04/1992. Accused, however, denies demand

and acceptance of money towards illegal gratification as alleged

by complainant.

10] On careful scrutiny of the impugned judgment, it can

be seen that the trial Court did not formulate point for

determination on alleged demand. The points framed by the

trial Court are reproduced here for ready reference.

S.N.                            POINTS                               FINDINGS

 01] Does the prosecution prove valid sanction                            Yes
     to the prosecution ?

 02] Does the prosecution prove that the                                  Yes

accused accepted Rs.200/- from PW-1 Ashok as a gratification other than the legal remuneration ?

03] Does the prosecution prove that the Yes accused accepted the said gratification as a motive or reward for issuing copies of 7/12 extracts to PW-1 Ashok ?

04] Does the prosecution prove that the Yes accused by corrupt or illegal means obtained for himself a valuable things or pecuniary advantage ?

05] Does the prosecution prove that the Yes accused by abusing his position as a public servant obtained for himself any valuable thing or pecuniary advantage ?

 06] What order ?                                           As per final
                                                              order


11]             From the above, it is apparent that on demand of

alleged illegal gratification, there is no adjudication as no point

for determination has been framed. The law is well settled and

demand of illegal gratification is sine qua non for constituting an

offence under the Act. Mere acceptance in absence of demand is

not sufficient to convict the accused. Even mere receipt of

money by accused is not sufficient to fasten the guilt in the

absence of evidence with regard to demand of money as a bribe.

12] In the case on hand, there is no whisper in the

evidence of any witness that amount received by accused was

demanded towards illegal gratification. On the contrary,

evidence of PW-4 Jagannath Ingle clearly indicates that land

revenue in respect of the lands of which complainant had asked

for 7/12 extracts was due from cultivators. PW-4 was working as

Patwari of Babhulgaon (Halka) at the relevant time. According to

him, 7/12 extracts are issued on application of cultivators and on

payment of land revenue arrears. In cross-examination, certain

important admissions have been elicited, wherein this witness

states that amount of Rs.708/- is shown as land revenue on the

rear side of Exh.33.

13] It is the case of appellant that after handing over

amount and before receipt could be issued, seizure was effected

without giving him an opportunity to explain. So far as demand

is concerned, complainant admits in cross-examination that he

did not state this fact in complaint. It can be revealed from the

facts elicited in cross-examination of complainant that he was

not aware of land revenue due for the year 1991-1992 in respect

of the agricultural lands of which he had asked 7/12 extracts. He

admits that at the time of lodging complaint to ACB Officer about

demand of land revenue and he told them that he had not paid

the land revenue. This clearly indicates that seizure was

hurriedly effected without verifying the facts as to whether

amount was towards land revenue or illegal gratification as

alleged by complainant. The figure reflected on rear side of

Exh.33 is towards arrears of land revenue and this fact is not

denied by the complainant. There was no opportunity to the

accused to manipulate the record. The amount of land revenue

assessed by accused on application for 7/12 extracts moved by

complainant is almost same as mentioned in complaint lodged

by PW-1 Ashok to the Office of Anti Corruption Bureau.

14] It can be seen from the evidence of complainant,

panch and Investigating Officer that accused never made a

demand towards illegal gratification. If at all accused demanded

and accepted the amount, it was towards arrears of land revenue

for issuance of 7/12 extracts on an application moved by the

complainant. Accused has successfully rebutted the presumption

under Section 20 of the Act. The defence raised by accused

appears to be more probable, plausible, valuable and

acceptable.

15] In the light of above and particularly in absence of

specific allegations regarding demand of money towards illegal

gratification and also absence of point for determination in the

judgment of the trial Court, this Court finds that the impugned

judgment and order of conviction and sentence is unsustainable

in law. Hence, the following order:

ORDER

I. Criminal Appeal No.302/2001 is allowed.

II. Impugned judgment and order dated 06/10/2001

passed by the Special Judge, Akola in Special Case

No.1/1993 convicting and sentencing the appellant -

Ashok Vishwambhar Chavan is hereby quashed and

set aside.

III. Instead appellant is acquitted of the offences

punishable under Sections 7 and 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act,

1988.

IV. Bail bonds of the appellant shall stand cancelled

forthwith.

V. Fine amount, if deposited, shall be refunded to the

appellant.

*sdw                                       (Kum. Indira Jain, J)