The State Of Mah. Thr. A.C.B. ... vs Ganpat Shioram Rakhunde
2017 Latest Caselaw 7810 Bom

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



                        Criminal Appeal No.697 of 2003

                                              ...



The State of Maharashtra,
through Deputy Superintendent of
Police, Anti Corruption Bureau,
Chandrapur.                                       ..             APPELLANT



                               .. Versus ..


Ganpat s/o Shioram Rakhunde,
Aged about 45 years,
Occupation: Service,
Head Accountant, Ekatmik Tribal
Development Project Officer,
Chandrapur.                                       ..          RESPONDENT



Shri Shyam Bissa, APP for Appellant-State.
Shri M.P. Khajanchi, Advocate for Respondent.

                               ....


              CORAM : KUM. INDIRA JAIN, J.

DATED : OCTOBER 05, 2017.

ORAL JUDGMENT

This appeal is directed against the judgment and

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order dated 19.08.2003 passed by the learned Special Judge,

Chandrapur in Special Case No.12/1994 thereby acquitting the

sole accused of the offences punishable under Sections 7 and

13 (2) read with Section 13 (1)(d) of the Prevention of

Corruption Act, 1988 .

2. Prosecution case, which can be disclosed from the

charge sheet and connecting papers thereto, may be stated in

brief as under:

(a) Accused was working as Head Accountant

with Integrated Tribal Development Project Office,

Chandrapur in June and July,1992. He was on

deputation from Finance Department. The Director of

Accounts and Treasury, State of Maharashtra, was the

appointing authority of the accused.

(b) The Project Office in which the accused was

posted used to supply food grains, vegetables and

other articles to various Ashram Schools located in

the district. For supplying the same, tenders were

invited and the lowest bid as per the procedure was

accepted.

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              (c)              Complainant Mahatma Bhaduji Masram was

              one of the contractors.             In response to the tender

notice, complainant submitted his tender for supply

of vegetables and grains etc. to Ashram Schools. On

16.06.1992 his tender being lowest was accepted

being lowest.

(d) He received information of acceptance of

tender from the Project Office. According to

complainant, accused being Head Accountant was

Member Secretary of the Purchase Committee of the

Office headed by Project Officer. Acceptance or

rejection of tenders was the sole responsibility of

Purchase Committee. Purchase Committee consisted

of Chairman, Secretary and three other members.

The decision about acceptance of tender of

complainant was taken by Purchase Committee and it

was informed to complainant accordingly. As per the

procedure and tender conditions, it was necessary for

the contractor whose tender was accepted to execute

an agreement in the prescribed proforma and comply

with certain conditions. Complainant executed an

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agreement in favour of the Project Office.

(e) On 25.06.1992, complainant met the

accused and inquired about execution of agreement

and issuance of supply order. Accused asked him to

verify from the dealing clerk. At the same time he

asked the complainant to pay Rs.500/- and 12

packets of edible oil to do his work. Thereafter from

02.07.1992 till 07.07.1992 many times complainant

inquired about execution of agreement and issuance

of supply order but accused reiterated demand of

Rs.500/- and 12 packets of edible oil. According to

complainant, accused also threatened him that in

case he does not meet the demand, he would see

that the contract is cancelled and in future bills are

rejected.

(f) On 20.07.1992 complainant again met the

accused and requested for two days time. In the

meanwhile, complainant submitted an application to

the Project Officer. As he was not ready and willing

to pay bribe, he approached the office of A.C.B.

Chandrapur and lodged oral report on 22.07.1992.

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              Two       panch      witnesses      were       called.          Trap           was

              arranged.           The demonstration of phenolphthalein

powder of sodium carbonate solution was given to

the panchas and complainant. Complainant

produced five currency notes of Rs.100/-

denomination each. Those were the tainted notes to

be used for the trap.

(g) Necessary instructions were imparted to the

panch witnesses and complainant. After demo as per

the instructions, complainant along with panch no.1

reached the office of accused. The other members of

raiding party followed them. Complainant and panch

no.1 went inside the office. They met the accused.

Accused demanded money. Complainant then

offered tainted notes to the accused. Accused asked

the complainant to keep those notes in a file.

Accordingly complainant put the tainted notes in a

file kept on the table. Thereafter complainant came

outside the office and gave a signal to the raiding

party as per the instructions. The members of the

raiding party rushed to the spot and recovered

tainted notes of Rs.500/- from the file which was kept

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on the table of the accused. Those notes were

seized. Seizure memo was drawn. Post trap

panchanama was recorded. The file in which tainted

notes were kept, was seized by a separate seizure

panchanama. Map of the spot of incident was

prepared. P.I. Zalke sent the complaint to Police

Station Ramnagar. Crime No. 212/1992 came to be

registered against the accused. During investigation

seized articles were sent to C.A. C.A. reports were

collected. Statements of witnesses were recorded.

The papers of investigation along with proposal were

sent for obtaining sanction to prosecute the accused.

After receiving sanction order and on completion of

investigation, charge sheet came to be filed before

the Special Court.

3. Charge of the alleged offences came to be framed

vide Exh.17. Accused pleaded not guilty and claimed to be

tried. His defence was of total denial and false implication. He

raised specific defence that after taking over as Head

Accountant in the Project Office, he noticed several

irregularities committed by various Officers of the Project

Office particularly in giving tenders for supply of articles to

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Ashram School. Therefore, he started meticulously examining

and taking objections wherever those irregularities were

noticed. The Officers who were indulged in such activities

found the accused as a hurdle and instigated the complainant

to lodge a false report. Accused pleaded innocence regarding

tainted notes and denied that he ever demanded money

towards illegal gratification as alleged by complainant.

4. To substantiate the guilt of accused, prosecution

examined in all six witnesses. Accused did not examine any

witness in support of his defence. Considering the evidence of

prosecution witnesses including sanctioning authority and

submissions made on behalf of the parties, Special Court came

to the conclusion that demand and acceptance of illegal

gratification have not been proved. Even sanctioning authority

did not apply its mind while issuing sanction order and in

consequence thereof accused was acquitted. Being aggrieved

with the order of acquittal, State has come up in this appeal.

5. With the assistance of the learned APP and the

learned counsel for respondent, this Court has gone through

the evidence of panch witness and sanctioning authority. It is

necessary to mention here at the threshold that complainant

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has not been examined in this case. The reason assigned by

the prosecution is that his whereabouts were not known.

Considering the accusations, non-examination of complainant

for any reason is fatal to the prosecution case.

6. It can be seen from the evidence of PW1 Wasudeo

Warkad that he acted as one of the panch witnesses for trap.

He did not support the prosecution and was declared hostile.

It is pertinent to note that prosecution did not choose to

examine another panch witness though PW1 Wasudeo did not

support. Another significant factor in the case on hand is that

tainted money was not recovered from the possession of the

accused. It was found lying in the file kept on the table.

7. So far as sanction is concerned before considering

the evidence of PW5 Krushnakumar Ramchandra Thamne, it is

necessary to see the object of Section 19 of the Act. Under

Section 19, grant of sanction is a weapon to discourage

vexatious prosecution and it is a safeguard for the innocent,

though not a shield for the guilty. The essentials of a valid

prosecution can be stated as under:

"i. The prosecution must send the entire

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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





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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."

8. PW5 Krushnakumar was Director of Accounts and

Treasury, Government of Maharashtra at the relevant time. He

was a sanctioning authority. He stated that a proposal for

granting sanction to launch prosecution against the accused

was received by him. He had received a letter and some

papers pertaining to the case. Initially the proposal was

received by his predecessor who had not accorded sanction.

Accordingly this was informed to the Government and on

receiving a letter from the Government, he accorded sanction

vide Exh. 68. The sanction order Exh.68 if looked into minutely

would indicate total non-application of mind on the part of the

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sanctioning authority. It is admitted by PW5 Krushnakumar

that on receiving a letter from the Government directing him to

accord sanction, he accorded the sanction. It appears from his

evidence that except report in Crime No. 212/1992 of Police

Station Ramnagar, Chandrapur, he did not peruse the other

papers. In examination-in-chief itself, he stated that he did not

recollect whether he had perused the documents received

along with the proposal. These material admissions on the part

of sanctioning authority would make it clear that mechanically

sanction order was issued as letter to accord sanction was

received. The trial Court, therefore, rightly held that sanction

order was not in accordance with the law and it was issued

without application of mind.

9. In the above premise and after considering the

evidence adduced by prosecution, this Court does not find any

perversity in the judgment and order of acquittal. The view

taken by the trial Court is a reasonable and possible view. As

such no interference is warranted in this appeal. Hence the

following order:

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                                     ORDER

Criminal Appeal No. 697 of 2003 stands dismissed.

No costs.

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

halwai/p.s.