Namdeo Gangaram Gawai vs State Of Mah.Thr.Anti Corruption ...
2017 Latest Caselaw 8901 Bom

 Cri. Appeal No.78.01.odt                      1


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


                     CRIMINAL APPEAL NO.78 OF 2001


 Namdeo s/o Gangaram Gawai,
 Aged about 58 years,
 Occupation-Naib Tahsildar,
 Tahsil Office Buldhana,
 Tahsil and District-Buldhana.                       ..               APPELLANT


                                .. VERSUS ..


 State of Maharashtra,
 through Anti-Corruption Bureau,
 Buldhana.                                           ..           RESPONDENT



                                ..........
 Shri Anil S. Mardikar, Senior Advocate with Shri Rishabh
 Khemukha, Advocate for Appellant,

 Mrs. H.N. Prabhu, Additional                      Public      Prosecutor            for
 Respondent-State.
                   ..........

                                CORAM : KUM. INDIRA JAIN, J.

DATED : NOVEMBER 21, 2017.

ORAL JUDGMENT

This appeal is directed against the judgment and

order dated 27.02.2001 passed by the learned Special

Judge, Buldhana in Special (Anti-Corruption) Case No.1/1992

thereby convicting original accused no.1 of the offences

punishable under sections 7 and 13 (1) (d) read with section

13 (2) of the Prevention of Corruption Act. The sentence

awarded by the trial court is as under :

       Sr.       Conviction         Punishment
       No.       under
                 section
       1.                  7        Rigorous imprisonment for one
                                    year and fine of Rs.1,000/- in-
                                    default rigorous imprisonment for
                                    three months.

2. 13 (1) (d) Rigorous imprisonment for one read with 13 year and fine of Rs.1,000/- in-

(2) default rigorous imprisonment for three months.

Both the sentences were directed to run concurrently.

2] For the sake of convenience, appellant shall be

referred in his original status as an accused as he was

referred before the trial court.

3] The prosecution case which can be disclosed from

the charge-sheet and connecting papers thereto may be

stated in brief as under :

(i) Complainant Dongarsingh Yedusingh

Devhane, a cultivator by occupation, was resident of

Chandol, Tahsil and District Buldhana. Accused no.1-

appellant was working as Naib Tahsildar in tahsil office

Buldhana in May 1991. Accused no.2, who has been

acquitted by the trial court, was a Patwari attached to the

same office.

(ii) On 9.5.1991, complainant had been to

tahsil office Buldhana and filed an application before

accused no.1 contending therein that one Sundarabai of his

village had applied for taking water to her land from river

Dhaman and she should be given permission from maximum

distance so that cultivation of his field is not affected.

Sundarabai had applied for permission to take river water to

her field and to lay down underground pipeline through the

field of Dongarsingh and others. Accused no.1 accepted

the application from the complainant and raised a query to

him, whether he had dug a well on the bank of river with the

permission. When complainant replied in the negative,

accused no.1 told him that a revenue case can be started

against him and he would be liable to pay fine. Accused

no.1 then asked the complainant to wait outside and called

Anis Babu, Clerk working in the same office to accompany

him for a cup of tea. Thereafter, accused no.1, Anis Babu

and complainant had been to Hotel Rajkamal.

(iii) According to complainant, accused no.1

told him that even difficult work can be done amicably.

They entered the Hotel. Accused no.1 demanded Rs.400/-

from complainant to attend his work. When complainant

expressed his inability to pay Rs.400/-, negotiations were

held and accused no.1 agreed to accept Rs.200/-.

Complainant told accused no.1 that he would bring money

on the next day. That time, accused no.1 stated that in case

he fails to bring money, he would initiate a revenue case

against him.

                 (iv)           On the next day i.e. on 10.5.1991

 complainant              Dongarsingh      approached           Anti-Corruption

 Bureau, Buldhana and lodged complaint.                       Police Inspector

More recorded the complaint. A trap was arranged. After

completing the formalities and demonstration to the panch

witnesses, complainant and panch no.1 went to Tahsil Office

at about 12.45 pm. Panch no.2 and other persons of

raiding party followed them.

(v) Complainant and panch no.1 went to the

chamber of accused no.1, who was busy in his work. On

seeing complainant, accused no.1 asked him to wait.

After sometime, he asked the complainant, whether he had

brought Shidory. Complainant answered in the affirmative.

Accused no.1 told the complainant to wait outside. At

2 O'clock, accused no.1 came outside. Then complainant,

accused no.1, panch no.1, accused no.2 and clerk in the

office went to Hotel Rajkamal. The order for eatables and

cold drink was placed by complainant at the instance of

accused no.1. After they had eatables cold drink, accused

no.1 asked Anis Babu to go and wait outside the cabin.

Then accused no.1 asked complainant, whether he has

brought money. Complainant answered in the affirmative,

took out the amount and shown it to accused no.1. Accused

no.1 asked accused no.2 to accept the same and keep it

with him. Accused no.2 accepted the amount by his right

hand and kept the said amount in the right pocket of his

payejama. Thereafter, they came outside the cabin and

went near a pan shop in front of the hotel. Complainant

gave a signal by rubbing his left hand on his head and

members of raiding party rushed to the spot. Complainant

informed the members of raiding party that he handed over

amount to accused no.2. The amount was recovered from

pocket of payejama of accused no.2. Post trap panchanama

was drawn. At the time of demonstration before trap, pre-

trap panchanama was recorded. The map of the scene of

offence was drawn. Police Inspector More seized relevant

record of Sundarabai's case from tahsil office and lodged a

formal complaint. Crime No.60/1991 came to be registered

in the Police Station, Buldhana. Police Inspector More

himself took over investigation. On completion of

investigation, papers were forwarded to the sanctioning

authority for seeking sanction to prosecute the accused.

The Divisional Commissioner, Amravati granted sanction to

prosecute accused no.1.

4] Charge-sheet came to be filed before the Special

Court. Charge was framed against the accused vide

Exh.27. Accused pleaded not guilty and claimed to be

tried. The defence of accused no.1 was of total denial. He

submitted that he never demanded any amount nor

accepted the same from complainant. Accused no.1

submitted that Sundarabai had applied for permission but

no consent was received from irrigation department. It is

submitted that due to some dispute between complainant

and Sundarabai and under a wrong belief that permission

was granted by accused no.1 to Sundarabai, false complaint

came to be lodged.

5] To bring home guilt of the accused, prosecution

examined in all five witnesses. PW-1 Mr. Nandlal Gupta,

Chief Secretary, Revenue and Forest Department,

Government of Maharashtra, is the then Sanctioning

Authority, PW-2 Complainant Dongarsingh Deohane, PW-3

Bhaurao Charate-panch no.1, PW-4 Syed Anis Syed Ahmad,

the panch and Clerk attached to the office of accused no.1

and PW-5 Police Inspector Daulat More, Investigating Officer

are the witnesses examined by the prosecution.

Considering the evidence of witnesses and submissions

made on behalf of parties, trial court came to the conclusion

that charge has been duly proved against accused no.1 but

not against accused no.2. In consequence thereof, accused

no.1 came to be convicted as stated hereinabove in para 1.

6] Heard Shri Anil S. Mardikar, learned Senior Counsel

with Shri Rishabh Khemukha, learned counsel for appellant

and Mrs. H.N. Prabhu, learned Additional Public Prosecutor

for Respondent-State.

7] The learned senior counsel submitted that

sanction issued by PW-1 Mr. Nandlal Gupta, the then

Divisional Commissioner is not a valid and legal sanction.

According to the learned senior counsel, sanction order

(Exh.39) suffers from lack of application of mind and

prosecution has miserably failed to prove sanction to

prosecute the accused. On sanction, learned senior counsel

relied upon the judgments of the Hon'ble Supreme Court in

State of Maharashtra .vs. Dnyaneshwar Laxman Rao

Wankhede [2010] 2 SCC (Cri) 385 and of this court in :

(i) Criminal Appeal No.401/2008 (Arun s/o Laxman Satokar .vs. The State of Maharashtra, dated 18.4.2017).

(ii) Criminal Appeal No.442/2014 (Rajvilas s/o Laxman Gajbhiye .vs. The State of Maharashtra, dated 11.5.2017).

(iii) Vinod s/o Savalaram Kanadkhedkar .vs.

The State of Maharashtra [2016 ALL MR

(Cri) 3697.

8] On merits, it is submitted by the learned senior

counsel that accused no.1 had no authority to issue

permission to take water from the river as consent from

irrigation department was never received and certificate

about sufficiency of water was not issued. Referring to the

testimony of complainant and the facts elicited in elaborate

cross-examination of complainant and panch witnesses,

learned senior counsel submitted that complainant is not a

reliable witness and contradictions in the testimonies of

witnesses would demonstrate that accused has been falsely

implicated. According to learned senior counsel, accused

no.2, who was found in possession of the tainted currency

notes, has been acquitted by the trial court. There was no

recovery of money from the possession of accused no.1. It

is submitted that without taking into consideration the fact

that if really appellant had demanded money and accused

no.2 had accepted on behalf of accused no.1, the demand

and acceptance would not have been in the open place

visible to public at large. The learned senior counsel

submits that presence of independent witnesses has been

admitted by the prosecution witnesses and none of those

witnesses could be examined by the prosecution.

Considering the admissions brought in the cross-

examination of complainant, his previous and post conduct

and antecedents, submission is that in the absence of

corroboration, trial court ought not to have relied upon the

sole testimony of complainant to base a conviction. It is

submitted that due to animosity between Sundarabai and

complainant and as accused no.1 had refused to help the

complainant, was dragged to a false prosecution.

9] Per contra, Mrs. Prabhu, learned Additional Public

Prosecutor for respondent-State, strongly supports the

judgment and order of conviction and sentence and submits

that there is ample evidence to show that accused no.1

demanded and accepted money through accused no.2

towards bribe. She submits that accused no.2 was found in

possession of tainted currency notes and it was a successful

trap clearly showing that amount was accepted by accused

no.2 for accused no.1.

10] Regarding sanction, learned APP placed reliance on

the evidence of PW-1 Mr. Nandlal Gupta, the then

Sanctioning Authority and submitted that the order was

issued after verifying and scrutinizing all the documents

submitted along with the proposal. She submits that there

is no scope for interference in the present appeal and prays

to dismiss the same.

11] On hearing the learned counsel for the parties and

taking into consideration the rival submissions, following

points would arise for determination of this court.

(i) Whether prosecution has proved that on 10.5.1991

appellant-accused no.1 being a public servant had demanded an amount of Rs.200/- as a remuneration other than legal remuneration as a motive or reward for not initiating any action against the complainant for digging a well without permission from the revenue authorities.?

(ii) Whether prosecution has further proved that appellant-accused no.1 being public servant committed criminal misconduct by securing an amount of Rs.200/- through accused no.2 by corrupt or illegal means from complainant by abusing his position as a public servant.?

(iii) Whether sanction to prosecute the appellant-

accused no.1 granted by PW-1 Nandlal Gupta, Sanctioning Authority is legal and valid.?

12] Findings to above points nos. (i) to (iii) are in the

negative for the reasons to follow :

REASONS

13] Following are the undisputed facts :

At the relevant time, accused no.1 was serving as

Naib Tahsildar at Buldhana. Acquitted accused no.2 was

attached to the office of accused no.1 as Talathi. On

9.5.1991 complainant moved an application to accused no.1

stating therein that permission to Sundarabai for taking

water to her land be granted from long distance.

Sundarabai had applied for permission to take water to her

field and by laying underground pipeline through the fields

of complainant and other cultivators. Accused no.1

accepted the application submitted by complainant.

Permission to take water was granted to Sundarabai.

14] In view of the above undisputed facts, this court

has to scrutinize the evidence of complainant and panch

witnesses to find out whether amount of Rs.200/- was

demanded by accused no.1 and accepted by accused no.2

for accused no.1 as illegal gratification as alleged by the

complainant.

15] PW-2 Dongarsingh is the complainant. He stated

in his evidence that he dug a well in his agricultural land in

the year 1988 and an electric motor was installed in the

well. The land of Sundarabai is intervening three fields from

the land of complainant. The evidence of Dongarsingh

shows that before about 1½ to 2 months of the incident,

Sukhlal Chanda had come to him. Sukhlal Chanda is son of

Sundarabai. He demanded his signature on paper saying

that he wanted to obtain permission for laying pipeline.

Complainant refused to sign the paper as asked by Sukhlal

Chanda. It is further stated that before 5-6 days of the

incident, Sukhlal and his men had come to the field for

digging a pit for laying pipeline. Complainant asked Sukhlal

to stop the work but Sukhlal told him that he has obtained

permission from Naib Tahsildar.

16] On 9.5.1991, complainant came to Buldhana and

had been to the office of accused no.1. He submitted an

application raising an objection to the work of laying pipeline

by Sukhlal Chanda. It is stated by complainant that Naib

Tahsildar read his application and asked him whether he had

obtained permission for well. When he expressed that he

did not obtain permission, accused no.1 told him that he

would initiate revenue proceedings against him and he

would be penalized for the same. It is stated by

complainant Dongarsing that accused no.1 initially

demanded Rs.400/- from him for not taking action and on

negotiation amount was brought down to Rs.200/- by

accused no.1. He agreed to pay Rs.200/- on the next day.

17] Being not desirous of paying a bribe, he had been

to the office of Anti-Corruption Bureau and lodged report.

The said report (Exh.56) is proved by the complainant.

Further evidence of Dongarsingh indicates that a trap was

arranged, demonstration of phenolphthalein and sodium

carbonate was made, pre-trap panchanama was drawn, trap

was successful, accused no.2 was found in possession of

tainted currency notes of Rs.200/- accepted on behalf of

accused no.1 and post trap panchanama was drawn.

18] It can be seen from cross-examination of the

complainant that on 7.5.1991 notice was issued by Naib

Tahsildar, Buldhana to complainant in connection with

creating obstruction on laying down pipeline. In pursuance

to the notice, complainant appeared before accused no.1

and his statement was recorded on 9.5.1991. In his

statement, complainant admitted that he is taking water

without permission from 1988 and violated the rule by

taking water without permission. He stated that he has no

objection if Sundarabai lays down pipeline but it would be

better if spot is inspected. Further affidavit (Exh.44) would

show that complainant and other cultivators had given no

objection before the competent authority for laying a

pipeline by Sundarabai through their lands.

19] According to complainant, Sukhlal, son of

Sundarabai, had forged his signature as he refused to sign

on the paper brought by him. Complainant could not prove

that signature was forged, as alleged. On the contrary,

voluminous evidence on record shows that complainant had

dug a well in his land without permission for which action

was initiated by accused no.1 before the alleged demand

and acceptance of bribe, as stated by complainant and

being aggrieved thereof, complainant filed a report to Anti-

Corruption Bureau just after two days of issuance of notice

by the office of Naib Tasildar.

20] It has come in the evidence of complainant and

panch witnesses that at the relevant time many other

persons were present in the office. PW-3 Bhaurao, though

attempted to support the testimony of complainant,

admitted in cross-examination that Dongarsing had not

made any signal from inside the hotel and accused nos.1

and 2 were standing near pan shop when raiding party

members came. According to PW-3-Bhaurao, Dongarasing

made signal after giving amount and that time no talk had

taken place in the presence of Jaiswal regarding the amount

given. He goes to the extent of saying that Jaiswal was not

aware what for amount was given.

21] PW-4 Sayyed Anis is another important witness

examined by the prosecution. At the time of incident he

was serving as Junior Clerk in Tahsil Office. According to

prosecution, the talk between accused no.1 and complainant

had taken place in the presence of this witness. If the

testimony of PW-4 Sayyed Anis is minutely looked into, it is

apparent that talk between accused no.1 and complainant

had not taken place in the presence of this witness. On

demand and acceptance evidence of PW-4 Sayyed Anis is

not at all helpful to the prosecution.

22] The moot question in the present case is whether

amount recovered from pocket of payejama of accused no.2

was demanded and accepted as bribe by accused no.1.

So far as acceptance for accused no.1 is concerned, as

mentioned above, there is no evidence. Accused no.2 has

been acquitted of the charge. On demand, evidence of

complainant, panch witness and PW-4 Sayeed Anis is not

consistent. The presence of independent witness is not

disputed. None of the independent witnesses could be

examined by the investigating agency. In the normal

course, corroboration to the testimony of complainant

would not have been insisted. But in the case on hand,

record reveals that before the date of alleged demand and

acceptance notice was issued by the office of accused no.1

to the complainant calling upon him to explain whether

permission to dig a well was granted to him. Instead of

replying the said notice, it appears that complainant rushed

to the office of Anti-Corruption Bureau and lodged report.

In this background, prosecution ought to have examined

independent witnesses to corroborate the testimony of

complainant.

23] Regarding sanction, it is stated by PW-1 Nandlal

Gupta that he received papers for sanction to prosecute

Namdeo Gawai and Jaiswal. He had gone through the

papers and came to the conclusion that prima facie case

exists against both the accused and accordingly after

applying his mind and analyzing the facts and

circumstances, accorded sanction vide Exh.39.

24] It appears from the facts elicited in the extensive

cross-examination of sanctioning authority that in all 286

documents/papers along with covering letter were received

by him. It is stated by PW-1 Nandlal Gupta in the cross-

examination that he perused most of the documents from

286 documents sent to him. The description of documents is

not given either in the evidence of PW-1 or reflected in the

sanction order though he states that he perused complaint

lodged to Anti-Corruption Bureau office and application

given by complainant to the office of Tahsildar. So far as the

scrutiny of the documents is concerned, evidence of PW-1

Nandlal Gupta is totally vague and one does not get from

the testimony of PW-1 Nandlal Gupta description of the

documents referred while according sanction.

25] So far as sanction to prosecute is concerned, it

would be appropriate to mention here the object and the

scope of Section 19 of the Prevention of Corruption Act as

under :

(i) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused

and on the basis of which, the competent authority may refuse sanction;

(ii) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction;

(iii) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought;

(iv) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(v) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

26] From the observations in paragraph 22 of

judgment of the trial court, it can be seen that the court had

observed about the attitude of PW-1 Mr. Nandlal Gupta, as

under :

"Though I accept his evidence that the sanction is not defective, but before parting with the case, I would like to comment on the attitude of this witness which was adopted by this witness while giving evidence in the Court. In evidence, it was his say that whatever documents were sent to him, he had gone through it. So whenever any question was asked to him, he used to answer that it is a matter of record and show me if it is there in the record, if it is there in the record. I have gone through it. If a Senior Officer like him adopts such mode of answering to the cross-examination, it will be difficult to ascertain whether he has really applied his mind to the facts and circumstances of the case or not before according the sanction. Everything cannot be presumed, that the sanctioning authority had applied its mind, otherwise there would have no necessity to examine the sanctioning authority in the Court to prove the application of mind and the sanction order. Anyway by refraining myself from commenting much upon his evidence, I say that the sanction accorded by him is not valid and it is free from infirmities".

27] It is significant to note that case regarding pipeline

was decided on 29.4.1991. Incident alleged by the

complainant is of 9.5.1991. The evidence of sanctioning

authority shows that the papers pertaining to the revenue

case were not at all considered by the sanctioning authority.

Even the notice issued by the office of Naib Tahsildar on

7.5.1991 that is just before two days of alleged incident was

ignored by the sanctioning authority.

28] Keeping in view scope and object of Section 19 of

the Act, as referred above and the facts elicited in the cross-

examination of PW-1 Mr. Nandlal Gupta, this court is of the

view that sanction order (Exh.39) issued by PW-1 Nandlal

Gupta was without due application of mind and without

considering all the documents/papers submitted to the

sanctioning authority for issuance of the order to prosecute

the accused.

29] In the above premise, it is apparent that

prosecution could not prove the guilt of the accused beyond

reasonable doubt. As such judgment and order of conviction

and sentence is unsustainable in law. Hence, the following

order :

ORDER

(i) Criminal Appeal No.78 of 2001 is allowed.

(ii) Impugned judgment and order dated 27.02.2001

passed by the learned Special Judge, Buldhana in Special

(Anti-Corruption) Case No.01/1992 convicting appellant

Namdeo s/o Gangaram Gawai for the offences punishable

under sections 7 and 13 (1) (d) read with section 13 (2) of

the Prevention of Corruption Act, 1988 is hereby set aside.

(iii) Appellant/accused no.1 Namdeo s/o Gangaram

Gawai 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 appellant Namdeo s/o Gangaram

Gawai shall stand cancelled forthwith

(v) Fine, if deposited, shall be refunded to the

appellant-accused no.1 Namdeo s/o Gangaram Gawai.

 (vi)           No costs.




                                          (Kum. Indira Jain, J.)
  
 Gulande, PA