Rameshwar S/O Bhimrao Wakhare ... vs State Of Mah. Thru. Dy. Suptd. Of ...
2017 Latest Caselaw 9130 Bom

 apeal72.08.J.odt                    1




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


                      CRIMINAL APPEAL NO.72 OF 2008

          Rameshwar s/o Bhimrao Wakhare,
          Age: 57 years, Occu: Service,
          R/o Gaura Nagar, Nandura Road,
          Khamgaon, Tal. Khamgaon,
          District Buldhana.

          Appellant through LRs.

 1]       Mandabai wd/o Rameshwar Wakhare,
          Aged about 57 years, Occu: Housewife.

 2]       Sandip s/o Rameshwar Wakhare,
          Aged about 32 years, Occu: Business.

 3]       Pradip s/o Rameshwar Wakhare,
          Aged about 29 years, Occu: Business.

 4]       Seema wd/o Sonerao Suryawanshi,
          Aged about 38 years, Occu: Household.

 5]       Swati w/o Ganeshrao Raut,
          Aged about 35 years, Occu: Household.

          All R/o Gaura Nagar, MIDC Road,
          Near Ganpati Mandir, Sutala (Bk),
          Tal. Khamgaon, Dist. Buldhana.           ....... APPELLANT

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

          The State of Maharashtra
          Through Deputy Superintendent of Police,
          A.C.B. Buldhana and P.S.O. Khamgaon (City),
          District Buldhana.                 ....... RESPONDENT



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 -------------------------------------------------------------------------------------------
          Shri A.J. Thakkar, Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            29    NOVEMBER, 2017.
                                                 


 ORAL JUDGMENT




 1]               The   legal   heirs   of   the   deceased-accused   are 

prosecuting the present appeal, which assails the judgment and

order dated 28.01.2008 passed by the Additional Sessions Judge,

Khamgaon in Special Anti Corruption Case 2/2004, by and under

which, the accused Rameshwar Wakhare is convicted for offence

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

of the Prevention of Corruption Act, 1988 ('Act' for short) and is

sentenced to suffer rigorous imprisonment for six months and to

payment of fine of Rs.1000/- for offence punishable under section

7 of the Act and to suffer rigorous imprisonment for one year and

to payment of fine of Rs.1000/- for offence punishable under

section 13 (2) of the Act.

2] Heard Shri A.J. Thakkar, the learned counsel for the

appellant and Shri A.V. Palshikar, the learned Additional Public

Prosecutor for the respondent/State.

3] Shri Thakkar, the learned counsel for the accused

submits that the prosecution has failed to establish the essential

ingredient of offence punishable under the provisions of the Act,

that it must be proved beyond reasonable doubt that the accused

made a decisive demand of illegal gratification. A decisive

demand, is the very sine qua non for constituting the offence

punishable under the provisions of the Act, is the submission.

Reliance is placed, amongst others, on the enunciation of the law

by the Apex Court in (i) Mukhtiar Singh (Since Deceased) through

his L.R. vs. State of Punjab, 2017(7) Scale 702

(ii) P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4

SCC 39 (iii) B. Jayaraj vs. State of A.P. 2014 All SCR 1619,

(iv) A. Subair vs. State of Kerala (2009) SCC Vol.6 587 and

(v) N. Sunkanna vs. State of Andhra Pradesh 2015 ALL MR (Cri)

4551 (S.C.).

4] The learned counsel for the accused would further

submit that, in the absence of clinching proof that the accused

demanded illegal gratification, the acceptance and recovery of the

tainted currency notes, would pale into insignificance. The further

submission of Shri Thakkar is that the acceptance and recovery of

the currency notes from the accused, even if accepted arguendo, is

duly explained by the accused and the defence that the currency

notes were not accepted as illegal gratification is more than

probablized on the touchstone of preponderance of probabilities.

5] The learned counsel for the accused would further

submit that after the introduction of section 165-A on the statute

book (IPC) the bribe giver is equally guilty. The evidence of the

bribe giver is no better than that of an accomplice and must be

tested with caution, is the submission. Reliance is placed, amongst

others, on the judgment of the Apex Court in Pannalal Damodar

Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121.

The further submission is that both the complainant and the panch

witnesses are interested witnesses who are vitally interested in

ensuring that the trap succeeds. The evidence of the complainant

and the shadow panch must be subjected to close scrutiny, and

should there be any doubt, the benefit thereof must necessarily go

to the accused, is the submission.

6] Per contra, Shri Palshikar, the learned A.P.P. would

support the judgment and order impugned, contending that the

prosecution has proved both the demand and acceptance of illegal

gratification.

7] I have given my anxious consideration to the evidence

on record, the submissions canvassed and the reasoning of the

learned Sessions Judge, and having done so, I am inclined to agree

with the learned counsel for the accused that the prosecution has

failed to prove that the accused demanded illegal gratification and

that the accused has more than probablized the defence on the

touchstone of preponderance of probabilities.

8] The accused faced trial on the charge that while

serving as Junior Accounts Officer of Panchayat Samiti,

Khamgaon, District Buldhana, at 13:35 hours on 17.12.2003 he

demanded and accepted Rs.200/- from the complainant Prakash

Kale as illegal gratification as a motive or reward for issuing

cheque of Rs.815/- of grant-in-aid for Gharkul Scheme and

thereby committed an offence punishable under section 7 and

13(1)(d) read with section 13(2) of the Act.

9] The gist of the prosecution case, as is unfolded in the

evidence of the complainant who is examined as P.W.1, is that the

complainant Prakash Kale is a beneficiary of the Indira Aawas

Yojana under which a person below poverty line is extended

financial assistance for construction of residential house.

The financial assistance is extended in installment corresponding

to the progress of the construction of the house. Concededly, the

complainant availed financial assistance of Rs.19,000/- in two

installment of Rs.8000/- and Rs.11,000/- by cheques, which were

issued and handed over by the accused without any hassle or

illegal demand. The last installment of Rs.815/- was receivable by

the complainant who approached the accused on 15.12.2002 and

was asked to pay Rs.200/- as illegal gratification for issuance of

the cheque.

10] The complainant approached the Anti Corruption

Bureau (ACB), Buldhana and lodged complaint Exh.12. Pursuant

to the said complaint, panchas were summoned, panchnama Exh.

15 was drawn, the usual demonstration of the phenolphthalein

powder and sodium carbonate solution test was given and the

standard protocol explained.

11] The complainant and the shadow panch went to the

office of the accused, the complainant asked the accused about the

cheque and the accused said that the cheque was ready and

whether the bribe amount is brought by the complainant.

The complainant handed over Rs.200/- to the accused, the

accused accepted the currency notes and put the said notes in his

shirt pocket, the predetermined signal was given and the accused

was apprehended.

12] Be it noted, that the complainant P.W.1 states in the

examination-in-chief that the accused immediately disclosed to the

Investigating Officer that he had not demanded illegal

gratification.

13] The cross-examination of P.W.1 may now be

considered in order to appreciate the contention of the learned

counsel for the accused, that the defence that the accused did not

demand illegal gratification is more than probablized on the

touchstone of preponderance of probabilities.

14] It is extracted in the cross-examination that Engineer

Ghive used to supervise the work of construction of houses under

the Indira Aawas Yojana and it was on his recommendation that

the accused used to issue cheque to the beneficiaries. P.W.1 admits

that the earlier installments were released by the accused without

demanding any amount. My attention is invited to certain vital

admissions extracted in the cross-examination of the complainant

P.W.1 and the relevant portion reads thus:

"It is true that accused asked me to collect smokeless hearth worth Rs.185/- from Khodke Babu and thereafter to collect the cheque of last instalment from him. Ghive engineer was present there who instructed me to handover Rs.200/- to the accused for collecting the cheque of last instalment from the accused. On that day I was not having Rs.200/- and therefore I gave complaint in ACB office against the accused. It is true that when I was interrogated by both the panchas in ACB office at that time I said to them that the bribe

amount was demanded to me by Ghive sahib. It is true that when I approached the accused in the office at Khamgaon he asked me whether I brought the amount as per the instructions of Ghive sahib, and I replied in affirmative. When accused was caught hold by the members of raiding party, at that time accused spoke that whether bribe amount was demanded by him. There was no dispute in between me and accused at any time in respect of demand of money. Accused had stated me on 15-12-03 that cheque of mine of Rs.815/- was ready with him. Engineer Ghive was not present in the office of panchayat samiti on 17.12.2003. It is true that I wanted to lodge complaint against Engineer Ghive. But since the amount was to be handedover to the accused therefore I lodged complaint against the accused."

15] Be it noted, that the admission extracted in the cross-

examination of P.W.1 are consistent with the contents of pre-trap

panchnama Exh.15. The relevant portion of the pre-trap

panchnama Exh.15 reads thus:

"I made enquiry from him in respect of the cheque of grant-in-aid of one thousand rupees of my Gharkul. Thereupon, Shri Wakhare sahib said to me, "one thousand rupees of your Gharkul is sanctioned". Then, he [i.e. Shri Wakhare] asked me to take away [purchase] from Shri Khodake Babu, one hearth worth Rs.185/- out of the said one thousand rupees."

16] The shadow panch who is examined as P.W.2 has

deposed thus:

"Accused was initially absent on his place of seating and later on he came there after half an hour. There was talk in between complainant Kale and complainant. I heard the talk. Accused asked complainant Prakash whether he brought the amount.

Thereafter complainant Prakash handedover the bribe amount to the accused and accused put the said amount in his left shirt pocket."

In the cross-examination, P.W.2 shadow panch deposes

thus:

"Accused asked complainant Prakash that "TIYANCHE PAISE AANLE KA" and then Prakash tendered the currency notes to the accused."

17] The accused has not seriously disputed the acceptance

of Rs.200/- on the day of the trap. The answer to question 5 in the

statement recorded under section 313 of the Code of Criminal

Procedure, 1973 would suggest that according to the accused, the

said amount was given by the complainant for the Engineer

Mr. Ghive and that the accused did not demand any illegal

gratification.

18] The submission of the learned counsel for the

accused, that the prosecution has not proved a decisive demand,

much less beyond reasonable doubt, deserves acceptance.

The admissions extracted in the cross-examination of the

complainant P.W.1 more than probablize the defence of the

accused that he did not demand illegal gratification.

The admission extracted in the cross-examination of the

complainant P.W.1 are more than corroborated by the admission

extracted in the cross-examination of the shadow panch P.W.2

who deposes that the accused asked the complainant Prakash

whether "Tiyanche Paise Aanle Ka". If the evidence is tested on the

anvil of the enunciation of law in the judgments cited supra, it

must be held that the prosecution has not conclusively established

a decisive demand. It is axiomatic, that in the absence of proof of a

decisive demand, the recovery of the tainted currency notes pales

into insignificance.

19] The judgment and order impugned is unsustainable in

law and is set aside. The accused is acquitted of offence

punishable under section 7 and 13 (2) of the Act.

20] The fine paid by the accused, if any, be refunded to

the appellants-legal heirs.

  21]              Appeal is allowed.




                                                    JUDGE


NSN