Raosaheb Shrimantrao Gite vs The State Of Maharashtra
2018 Latest Caselaw 524 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO. 114 OF 2002


Raosaheb s/o Shrimantrao Gite,
Age : 35 years, Occu. Service,
R/o Khultabad, Taluka & District
Aurangabad, at present N-6, M-2,                          APPELLANT
346, Sinhagad, CIDCO, Aurangabad                       (Orig. Accused) 
 
     VERSUS

The State of Maharashtra                                 RESPONDENT
                                                       (Prosecution)

                         ----
Mr. V.D. Sapkal, Advocate holding for Miss R.V.
Daxini, Advocate for the appellant
Mr. S.M. Ganachari, A.P.P. for the respondent/ 
Prosecution
                         ----

                                     CORAM : SANGITRAO S. PATIL, J.

     JUDGMENT RESERVED ON                      : 19th DECEMBER, 2017
     JUDGMENT PRONOUNCED ON                    : 17th JANUARY, 2018


JUDGMENT :

The appellant has questioned the legality and

correctness of the judgment and order dated 24th

January, 2002, passed by the learned Special Judge,

Aurangabad in Special Case No. 6 of 1997, convicting

him for the offences punishable under Sections 7 and

13 (2) read with Sections 13 (1)(d)(ii) and 13 (1)(a)

2 criapl114-2002

of the Prevention of Corruption Act, 1988 ("the Act",

for short) and also under Section 465 of the Indian

Penal Code ("IPC", for short).

2. The appellant was serving as a Talathi of Sajja

Golegaon, Taluka Khultabad in the year 1996. The

complainant namely Vilas Anantrao Randive, his wife

namely Kanchan and their minor son namely Harshad, who

were residing at Aurangabad, were holding agricultural

lands situate within the local limits of village

Shankarpurwadi coming within Sajja Golegaon. The name

of Harshad was recorded to the land block No.20 to the

extent of 2 Hectares 60 Ares. The complainant wanted to

sell that land. Therefore, he wanted to record his name

as the guardian of his minor son Harshad in the record

of rights of the said land. He, therefore, approached

the appellant in the second week of August, 1996

alongwith one Prabhakar Kashinath Gore, residents of

Ghodegaon and Abbas Habib, resident of Shankarpurwadi

and handed over the 7/12 extract of the land block

No.20, the birth certificate of Harshad and other papers

to the appellant, for the purpose of recording his name

as the guardian of Harshad. At that time, the appellant

demanded bribe of Rs.2000/- for taking necessary

3 criapl114-2002

mutation entry in the record of rights. Despite the

requests made by the appellant to reduce that amount,

the appellant did not reduce it. Therefore, left with

no alternative, the complainant paid him Rs.500/-. He

went to one Manikrao Trimbak Jadhav, resident of

Ghodegaon alongwith Abbas Habib and borrowed Rs.1500/-

from him. He handed over that amount of Rs.1500/- to

Abbas Habib for being paid to the appellant. He came to

know on the next day that Abbas Habib paid that amount

to the appellant.

3. Then prior to about 20 to 21 days of the day on

which the complaint was lodged, the complainant went to

the office of the appellant and again requested him to

take necessary entry in the 7/12 extract of the land

block No.20 showing him as the guardian of his minor son

Harshad. At that time also, the appellant demanded

Rs.500/- from him. When the appellant told him that he

had already paid Rs.2000/- to him, the appellant replied

that he wanted Rs.500/- for being paid to his superior

officers. The complainant asked the appellant for 7/12

extracts of the lands block Nos.18, 20 and 22 for the

last three years whereon the appellant demanded

Rs.1000/- more for that purpose. When the complainant

4 criapl114-2002

expressed that the amount demanded was excessive, the

appellant scaled down his composite demand of Rs.1500/-

(Rs.500/- + Rs.1000/-) to Rs.1000/-. The complainant

assured the appellant that he would pay the said amount

lateron. The appellant asked him to pay the amount of

Rs.1000/- without fail. Thereafter, the appellant

prepared a 7/12 extract of the land block No.20 showing

the name of the complainant as the guardian of his minor

son Harshad and informed the complainant that it was a

kachha (unauthentic) 7/12 extract of which the entires

have not been taken in the record of rights and asked

the complainant not to use it for alienation of the said

land.

4. Then on 26th September, 1996 at abut 2.30 p.m.,

when the complainant was at his house at Aurangabad, one

Karbhari Shamrao Dale, resident of Shankarpurwadi and

Karbhari Manikrao Jadhav, resident of Ghodegaon came to

him in connection with alienation of the agricultural

land. After some time, the appellant also reached

there. The appellant demanded Rs.1000/- from the

complainant. However, the complainant expressed that

the said amount was not available with him. At that

time, the appellant asked him to pay minimum Rs.100/-

                                     5                          criapl114-2002

for   petrol.     The   complainant   paid   that   amount   of 

Rs.100/-   to   the   appellant   with   reluctance.     At   that 

time, the appellant received Rs.250/- from Karbhari

Shamrao Dale and Rs.500/- from Karbhari Manikrao Jadhav

also in connection with mutation entry in respect of the

agricultural land and asked them to pay the balance

amount as well.

5. On 27th September, 1996 at about 6.30 a.m., the

complainant went to the house of the appellant at

Khultabad and demanded authentic 7/12 extract in

respect of the land of his son Harshad. The appellant

told him that he was going to attend a Gramsabha at

village Golegaon and after attending the Gramsabha, he

would come to the house of the complainant himself

alongwith the entire record and would do the required

work. The appellant asked the complainant to inform

Karbhari Manikrao Jadhav as well, with whom the

appellant had proposed to go to the house of the

complainant. At that time also, the appellant took

Rs.100/- from the complainant for filling petrol in the

motorcycle. The complainant went to Ghodegaon and

informed Karbhari Manikrao Jadhav that the appellant had

proposed to visit his house at Aurangabad on that day at

6 criapl114-2002

about 12.00 noon to 1.00 p.m. and that he should

accompany the appellant.

6. Since the complainant was not inclined to pay

bribe to the appellant, he went to the office of Anti

Corruption Bureau (ACB) at Aurangabad and filed

complaint against the appellant in respect of his demand

for bribe.

7. Dy.S.P. (ACB), Aurangabad namely H.P. Kulkarni

got typed the complaint of the complainant as per his

say. He decided to lay trap against the appellant. He

summoned two witnesses from the office of the Assistant

Commissioner, Sales Tax, Aurangabad. Accordingly, one

Dadarao Tangade and Subhash Tondgire, the employees of

the said office appeared in the office of ACB and gave

consent to act as panch witnesses in the proposed trap.

They were introduced to the complainant. The contents of

the complaint were verified through the complainant in

their presence. The complainant produced ten currency

notes of Rs.100/- each for being paid to the appellant.

They were smeared with anthracene powder, after giving

demonstration before the panchas and the complainant

about the characteristics and use of anthracene powder.

7 criapl114-2002

The tainted currency notes were kept in the left side

chest pocket of the shirt of the complainant with the

instructions that he should take out those currency

notes by his right hand, only on being demanded by the

appellant and hand them over to the appellant. He was

further instructed to remove his specs by his left hand

and give signal of having handed over the bribe amount

to the appellant. The panch namely Dadarao Tangade was

instructed to be with the complainant and to watch the

activities and hear conversation between the complainant

and the appellant at the time of the trap. Necessary

instructions were given to the another panch and other

members of the raiding party. Accordingly, the raiding

party went to the house of the complainant and sat in

ambush as instructed by Dy.S.P. Kulkarni. However, on

that day, the appellant did not visit the house of the

complainant. Therefore, the trap was postponed. The

shirt of the complainant alongwith the tainted currency

notes was removed and kept in a sealed condition in the

office of the ACB.

8. Trap was arranged on 28th September, 1996 also

as the appellant had informed the complainant to visit

his house, however, it was postponed as the appellant

8 criapl114-2002

did not visit the house of the complainant on that day

because of his personal difficulties. The appellant had

informed the complainant through one Shankar Anna

Jadhav, who was the friend of the appellant, that he

would visit the house of the complainant in any case on

30th September, 1996 in the evening. The complainant

went to the office of ACB and informed that fact to

Dy.S.P. Kulkarni.

9. On 29th September, 1996 at about 6.00 p.m., the

appellant went to the house of the complainant alongwith

a policeman, who was in civil dress. He asked the

complainant whether he had received the message that was

given to him. The complainant answered in the

affirmative. The appellant demanded Rs.1000/- from the

complainant, but the complainant expressed his inability

to fulfil that demand for want of money. The appellant

then asked him to pay at least Rs.100/- for filling

petrol. The complainant unwillingly paid Rs.100/- to

the appellant.

10. Ultimately, on 30th September, 1996, the

complainant received a message from the appellant

through one Shankar Anna Jadhav that he would be

9 criapl114-2002

visiting the house of the complainant on 30 th September,

1996 after noon. Accordingly, the complainant approached

the Dy.S.P. (ACB) Kulkarni and informed that fact. All

the preparations for trap were made, necessary

instructions were given to the complainant, panchas and

other members of the raiding party. The complainant put

on the same shirt in which the tainted currency notes of

Rs.1000/- were kept in the left side chest pocket on 27 th

September, 1996.

11. The complainant and the panch Dadarao Tangade

were sitting in the living room on the ground floor of

the house of the complainant. One Uttam Rambhaji Jadhav

and Shankar Anna Jadhav came to the house of the

complainant at about 5.30 p.m. to 6.00 p.m. The

appellant and one more Talathi having surname Patekar

followed them. The appellant and the another Talathi sat

in the living room. The complainant asked the appellant

whether he was keeping fast whereon the appellant

answered in the affirmative. The complainant then paid

Rs.50/- to Shankar Anna Jadhav and asked him to bring

some eatables and sweets for the appellant. Accordingly,

Shankar Jadhav and Uttam Jadhav went away to bring

eatables. The appellant asked the complainant as to who

10 criapl114-2002

was the other person (i.e. panch Dadarao Tangade). The

complainant replied that he was the maternal uncle of

his son Harshad. The appellant then asked the panch

Tangade as to where he was residing, whereon the panch

Tangade replied that he was residing at Pune. On being

asked by the panch Tangade, the appellant replied that

he was working as Talathi, Sajja Golegaon. The appellant

then asked the complainant to produce the birth

certificate of Harshad on the say that it was required

to show it to his superior officer and that he would

return it within 2 to 3 days. The complainant brought

the birth certificate and handed it over to the

appellant. The appellant kept it in his bag. The

appellant then told that he had brought 7/12 extracts of

lands block Nos.18, 20 and 22. The complainant took

those 7/12 extracts and kept them in the left side

pocket of his pant. The appellant asked the complainant

by signs to accompany him for going out of the house.

Accordingly, the complainant went alongwith the

appellant outside the house. The panch Tangade also

went outside the house. The appellant told the

complainant that all of his agricultural lands were

recorded as Gairan lands whereon the complainant told

him that he had old record showing that they were

11 criapl114-2002

agricultural lands. The appellant then told that it was

the problem of the complainant and he should deal with

that. Thereafter, all of them came back inside the

house. The appellant with his right thumb and index

finger gave a signal demanding money. The complainant

told him that he had kept ready the amount of

Rs.1000/-. Thereafter, the appellant and the

complainant went towards the bedroom at the instance of

the appellant. The panch Tangade followed them. The

appellant asked the complainant to pay the cash amount

by making signs with his right thumb and index finger.

The complainant took out the tainted currency notes from

his shirt pocket and held them before the appellant.

The appellant took those currency notes by his right

hand and kept them into his right side pocket of the

pant. The appellant asked the complainant as to how-

much that amount was, whereon the complainant replied

that it was Rs.1000/- as demanded by him. The appellant

then uttered that it was his amount and asked the

complainant to pay Rs.700/- to Rs.800/- more for being

paid to Mr. Kapadne and Mr. Jadhav, the staff members of

Tahsil office. The complainant told him that he was not

having any more money with him. The appellant asked the

complainant to get that amount from his wife or his

12 criapl114-2002

relative i.e. the panch Tangade. On being asked by the

complainant for money, the panch Tangade replied that he

had no money. The wife of the complainant also told

that she had no money. Thereafter, the complainant, the

appellant and the panch Tangade occupied their seats.

Then the complainant gave the predetermined signal by

removing his specs. The other members of the raiding

party immediately reached there and caught hold of both

the hands of the appellant. The tainted currency notes

of Rs.1000/- were recovered from the right side pocket

of the pant of the appellant. All the necessary

formalities were completed. The panchanama in respect of

the tainted currency notes and about the events those

took place at the time of trap came to be prepared.

Copy thereof was given to the appellant.

12. Dy.S.P. Kulkarni then went to the office of ACB

and drafted first information report (FIR). It was sent

to Jawaharnagar Police Station. Crime No.II-44/1996 came

to be registered against the appellant for the offences

punishable under Sections 7 and 13 (2) read with Section

13(1)(d) of the Act.

13. The house of the appellant was searched by

13 criapl114-2002

Dy.S.P. Kulkarni in the presence of the panchas. Two

applications in the names of the complainant and his

wife, addressed to the Tahsildar, Khultabad, came to be

seized therefrom under a panchanama. The school leaving

certificate of Harshad, Nationality Certificate, a

panchanama made by the Talathi showing that the

complainant was the guardian of Harshad and birth

certificate of Harshad were seized therefrom under the

panchanama. Thereafter, the office of the appellant at

village Golegaon was searched from where a photocopy of

the sale deed of land block no.20, blank forms of

Village Form No.4, containing signatures of the wife of

the complainant, were seized under a panchanama.

14. The statement of witnesses were recorded. After

completion of investigation, all the papers of

investigation were sent to the Sanctioning Authority

through the Superintendent of Police (ACB), Aurangabad

for grant of sanction to prosecute the appellant. After

receiving the sanction order, the appellant came to be

chargesheeted for the above-mentioned offences.

15. The learned Special Judge framed charges

against the appellant vide Exh-12 for the above-

14 criapl114-2002

mentioned offences and explained the contents thereof to

him in vernacular. The appellant pleaded not guilty and

claimed to be tried. His defence is that of total denial

and false implication. He admitted receipt of the

amount of Rs.1000/- from the complainant. He, however,

explained that the complainant had given that amount to

him for being paid to Maink Trimbak Jadhav.

16. The prosecution examined six witnesses to prove

the charges levelled against the appellant. The

appellant examined two witnesses in defence. After

evaluating the evidence on record, the learned Special

Judge held that the prosecution failed to establish that

the appellant committed the offence of criminal

misconduct by obtaining for himself or for any other

person any valuable thing or pecuniary advantage by

corrupt or illegal means, made punishable under Section

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

However, the learned Special Judge found sufficient and

dependable evidence to prove beyond doubt that the

appellant committed the offences punishable under

Sections 7 and 13 (2) read with Section 13 (1)(d)(i) and

13 (1)(a) of the Act and also under Section 465 of the

IPC. The learned Special Judge, therefore, sentenced the

15 criapl114-2002

appellant for the offence under Section 7 of the Act -

with rigorous imprisonment for six months and a fine of

Rs.2000/-, for the offence punishable under Section

13(2) read with Section 13(1)(d)(ii) - with rigorous

imprisonment for two years and a fine of Rs.5000/-, for

the offence under Section 13(2) read with Section 13(1)

(a) of the Act - with rigorous imprisonment for one year

and a fine of Rs.2000/- and for the offence under

Section 465 of the IPC and rigorous imprisonment with a

fine of Rs.1000/-. The substantive sentences of

imprisonment were ordered to run concurrently. The

appellant deposited the fine amount of Rs.10,000/- in

the Trial Court.

17. There is no dispute that the tainted currency

notes of Rs.1000/- were accepted by the appellant from

the complainant at the house of the complainant on 30th

November, 1996. In view of this admitted fact, it is not

necessary to re-appreciate the evidence in respect of

the events recorded in pre-trap panchanama (Exh-38). It

is further not necessary to re-appreciate the evidence

in respect of the events which led to postponement of

the trap on 27th September, 1996, 28th September, 1996 and

29th September, 1996. Once it is established that the

16 criapl114-2002

appellant accepted the money from the complainant other

than legal remuneration, in view of Section 20 of the

Act, it has to be presumed, unless the contrary is

proved, that the appellant accepted that amount as a

motive or reward, such as is mentioned in Section 7 i.e.

forbearing or forgoing to do any official act, etc.

18. The complainant specifically deposes that the

appellant demanded Rs.2000/- from him for recording his

name as the guardian of his minor son Harshad in the

record of rights of the land Block No.20, which amount

was already paid by him to the appellant on the day on

which it was demanded to the extent of Rs.500/- and on

the next day to the extent of Rs.1500/-. He then deposes

that prior to 15 to 20 days after the first demand, he

again approached the appellant and asked for the

corrected 7/12 extracts of the lands Block No.18, 20 and

22 for the last three years whereon the appellant

demanded Rs.500/- and Rs.1000/- on these two counts

respectively and ultimately agreed to receive Rs.1000/-.

According to the prosecution this amount of Rs.1000/-,

as demanded by the appellant was handed over by the

complainant to the appellant on 30th September, 1996

which was accepted by the appellant and the fact of

17 criapl114-2002

acceptance of that amount has been admitted by the

appellant. The only defence of the appellant is that the

complainant had given that amount for being paid to one

Mr.Manik Trimbak Jadhav.

19. The learned counsel for the appellant submits

that mere recovery of money from the accused is not

culpable in the absence of any evidence to show that

there was demand of bribe from the side of the accused.

In support of this contention, he relied on the judgment

in the case of P.Satyanaraya Murthy Vs. District

Inspector of Police, State of Andhra Pradesh and another

(2015) 10 SCC 152. In that case the complainant could

not be examined since he had expired prior to

commencement of the trial. The prosecution had

acquiesced the acquittal of the accused for the offence

punishable under Section 7 of the Act. As such, there

was no positive and dependable evidence in respect of

the the demand of the bribe by the accused.

Consequently, the benefit of doubt was given to the

accused.

20. In the present case, the complainant has come

with a specific case that the appellant demanded bribe

18 criapl114-2002

from him on two counts, firstly for recording his name

as the guardian of his minor son Harshad in the record

of rights of land Block No.20 and also for issuance of

7/12 extracts of the lands Block Nos.18, 20 and 22 for a

period of three years. The documents seized from the

possession of the complainant i.e. six 7/12 extracts of

the lands Block Nos.18, 20 and 22 for the years 1989-90

to 1994-95, which according to him, were received by

him from the appellant at the time of trap, the

documents seized from the house of the appellant vide

panchanama (Exh-44) i.e. the applications of the

complainant and his wife addressed to the Tahsildar for

recording their names as guardian of their minor son

Harshad, a panchanama dated 30th September, 1996, the

blank papers bearing signature of Harshad, a copy of

school leaving certificate of Harshad and copy of the

birth certificate of Harshad and the documents seized

from the office of the appellant vide panchanama (Exh-

45) i.e. copy of the sale deed dated 9 th September, 1996

executed by the wife of the complainant in favour of one

Vimalbai Karbhari Dale in respect of the land

admeasuring 1 Hector 1 Are out of Block No.20 and two

blank Village Forms No.4, clearly show that the

appellant being the Talathi of Sajja Golegaon was

19 criapl114-2002

dealing with the proposal of the complainant and his

wife for recording their names as the guardians of their

minor son Harshad in the record of rights of the land

Block No.20 and that he had issued the 7/12 extracts of

the lands block Nos.18, 20 and 22 as demanded by the

complainant.

21. There is no independent corroboration to the

evidence of the complainant in respect of the demand of

Rs.2000/- and payment thereof to the appellant, and the

subsequent demands and payments of Rs.100/- each on 26 th,

27th and 29th September, 1996. The prosecution has not

examined any witness before whom those demands were made

and fulfilled. Now it will have to be seen whether the

amount of Rs.100/- accepted by the appellant at the time

of the trap was preceded by any demand.

22. The complainant deposes at Exh-20 that on 30 th

September, 1996, at about 5.30 p.m. to 6.00 p.m., one

Uttam Rambhaji Jadhav and Shankar Anna Jadhav came to

his house and Shankar Jadhav informed that the appellant

also had come. Then the appellant and Patekar (DW1), who

was then working as Talathi of Sajja Bhatji, entered

into the house of the complainant. Since the appellant

20 criapl114-2002

was keeping fast, the complainant gave Rs.50/- to

Shankar Jadhav and asked him to bring eatables for the

appellant. Then Shankar Jadhav and Uttam Jadhav went

away for brining eatables. The panch Tangade (PW4) was

with the complainant in the living room of the house.

The appellant enquired about Tangade (PW4) whereon the

complainant told that he was the maternal uncle of his

son Harshad. The complainant deposes that the appellant

asked him to produce the birth certificate of his son

Harshad on the say that it was required to be shown to

his superior officer. Accordingly, the complainant

brought the birth certificate and handed it over to the

appellant, which was kept by the appellant in his bag.

The appellant then told the complainant that he had

brought 7/12 extracts of the lands block Nos.18, 20 and

22 and took out the same from his bag. The complainant

received those 7/12 extracts and kept them in the left

side pocket of his pant. Then the appellant gave signal

so as to make the complainant to go out of the house

with the appellant. The complainant as well as Tangade

(PW4) went out of the house alongwith the appellant.

After having talks about the agricultural lands of the

complainant, which according to the appellant were shown

as Gairan lands, they came back into the living room.

21 criapl114-2002

The appellant then demanded money by making sign with

his right thumb and index finger. The complainant told

him that he had kept ready the amount of Rs.1000/-. Then

the complainant and the appellant went towards bedroom

at the instance of the appellant. Tangade (PW4) followed

them. The appellant demanded money by making sign with

his right thumb and index finger. The appellant then

took out the tainted currency notes from his shirt

pocket and held them before the appellant. The appellant

took those tainted currency notes and kept them in the

right side pocket of his pant.

23. Tangade (PW4) (Exh-37) supports the version of

the complainant in respect of the above mentioned demand

of Rs.1000/- made by the appellant and acceptance of

that amount in response to that demand in all material

particulars. The evidence of the complainant and

Tangade (PW4) is quite consistent in respect of the

demand of bribe and acceptance thereof by the appellant.

It is further consistent in respect of the further

demand of the appellant of Rs.700/- to Rs.800/- in the

name of his staff members. Both these witnesses state

that the appellant told the complainant that the amount

of Rs.1000/- that was received by him from the

22 criapl114-2002

complainant, was his amount and that the amount of

Rs.700/- to Rs.800/- would be required to be paid to the

staff members of the circle office. Both of them state

that the appellant asked the complainant to pay that

amount and when the complainant expressed his inability

to pay that amount, the appellant suggested the

complainant to get that amount either from his wife or

from Tangade (PW4), who was introduced to the appellant

as his relative. This further conversion fortifies the

earlier demand of bribe of Rs.1000/- made by the

appellant.

24. Nothing has been elicited in the cross-

examination of the complainant and Tangade (PW4) which

would create any doubt about the versions of these

witnesses in respect of demand of bribe made by the

appellant prior to acceptance of the bribe amount of

Rs.1000/- from the complainant. The prosecution has

proved beyond doubt the said demand of bribe by the

appellant as a reward for issuing corrected 7/12 extract

and the 7/12 extracts in respect of the lands block Nos.

18, 20 and 22 for three years, in the capacity of the

Talathi, a public servant, who was obliged in the

discharge of his official act to provide such documents.

23 criapl114-2002

It was not a legal remuneration to which the appellant

was entitled to receive from the complainant. In view

of these facts of the present case, the judgment in the

case of P. Satyanarayana Murthy (supra), wherein the

demand of bribe itself could not be proved for want of

evidence of the complainant and the acquittal of the

accused for the offence punishable under Section 7 of

the Act was not under challenge, would not be helpful to

the appellant to brush aside the case of the

prosecution.

25. Though independent evidence has not been

produced by the prosecution to corroborate the evidence

of the complainant in respect of the initial demand made

by the appellant, the contents of the complaint (Exh-21)

and subsequent conduct of the appellant fully

corroborate the version of the complainant in respect of

the initial demands. The demand of bribe of Rs.1000/-

at the time of trap made by the appellant certainly

finds genesis into those initial demands.

26. The learned counsel for the appellant submits

that though it has come in the evidence of the

complainant that the demand of bribe was made by the

24 criapl114-2002

appellant in the presence of one Prabhakar Gore, Abbas

Habib, Karbhari Shamrao Dale and Karbhari Manikrao

Jadhav, none of them has been examined by the

prosecution. According to him, non-examination of these

material witnesses would create strong doubt about the

case of the prosecution in respect of demand of bribe

made by the appellant. Therefore, mere recovery of the

tainted currency notes from the appellant would not be

sufficient to hold him guilty. In support of his

contention, he relied on the judgments in the cases of

Trimbak Lilaji Binnar Vs. State of Maharashtra 2002 (2)

Mh.L.J.293 and State of Maharashtra Vs. Gunwant patiram

Dhumbhare 2013 (1) Bom.C.R.(Cri.) 27. He further

submits that Patekar (DW1) (Exh-61), who was present in

the living room of the house of the complainant at the

time of the trap, does not state that the appellant had

demanded money from the complainant on any count. He

then submits that the evidence of Gorakhnath (PW2) (Exh-

32), who allegedly visted the house of the complainant

alongwith the appellant on 29th September, 1996, also

does not state about any demand allegedly made by the

appellant for money from the complainant. According to

him, the evidence of the complainant about the so called

demand of bribe of the appellant is thus suspicious and

25 criapl114-2002

unbelievable.

27. Here reference may conveniently be made to the

case of M.O. Shamsudhin Vs. State of Kerala (1995) 3 SCC

351 wherein the Hon'ble the Apex Court has explained the

position of the complainant in a bribery case and the

extent and nature of corroboration that may be needed to

his evidence, in the following paragraphs:-

"12. Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous test which are generally applied to a case of an approver. Though bribe givers are generally treated to be in the nature of accomplices but among them there are various types and gradation. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be -a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a

26 criapl114-2002

giving the trap cannot succeed. When there is such a demand by the public servant from person who is unwilling and if to do public good approaches the authorities and lodges complaint then in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of "accomplices" by reason of their being bribe givers, in the first instance the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances.

27 criapl114-2002

23. Now coming to the nature of corroborating evidence that is required, it is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribe- giver has to be scrutinised very carefully and

28 criapl114-2002

it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon or not in those given circumstances."

28. As stated above, there is independent

corroboration to the evidence of the complainant in

respect of the demand and acceptance of bribe amount of

Rs.1000/- on the day on which the trap was laid. Tangade

(PW4) is an independent witness. He had no axe to grind

against the appellant. There was no reason for him to

speak false against the appellant. He had no malice

prompting him to falsely implicate the appellant in the

offence of demanding and accepting bribe. The evidence

of Tangade (PW4) fully corroborates the evidence of the

complainant about the demand of bribe of Rs.1000/- made

by the appellant and acceptance of that amount by him,

it creates great confidence.

29. The evidence of the complainant supported by

the evidence of Tangade (PW4) clearly proves that the

appellant accepted Rs.1000/- as illegal gratification

other than legal remuneration. Therefore the presumption

laid down in Section 20 of the Act would come into play

and the appellant shall be presumed, unless the contrary

29 criapl114-2002

is proved that he accepted that gratification as motive

or reward such as mentioned in Section 7 of the Act.

30. The appellant has come with a case that the

complainant had paid him the amount of Rs.1000/- at the

time of the trap for being paid to Manik Trymbak Jadhav.

In support of his defence, he examined Patekar (DW1),

who was working as Talathi of Sajja Bhatji at the

relevant time. He deposes that he was suffering from

chest pains and wanted to go to Aurangabad to consult

Dr. Pargaonkar. He went to the appellant at about 3.00

p.m. to 3.30 p.m. and requested him to accompany him to

Aurangabad for going to Dr. Pargaonkar. Then the

appellant and himself left Golegaon on a motorcycle. On

the way, they halted at the house of the complainant.

The appellant asked the owner of that house to produce

the original documents. The owner gave those documents.

Then he went inside the house and gave some amount to

the appellant saying that it should be paid to some

other person. The appellant accepted it and kept it in

the pocket of his pant. All that happened in the living

room of that house. Thereafter, ACB personnel caught

hold of the appellant. In his cross-examination, he

admits that he is in friendly terms with the appellant.

30 criapl114-2002

He states that the appellant was not carrying any bag

with him on that day.

31. If the evidence of the complainant and Tangade

(PW4), coupled with the contents of pre-trap panchanama

(Exh-43) is considered, it would be clear that Patekar

(DW1) is trying to state something which is far from the

factual position. A handbag was found with the

appellant in which two registers of 7/12 in respect of

block Nos.1 to 28 of village Shankarpurwadi were found.

The said articles were seized at the time of the trap.

Patekar (DW1) does not state the name of the person to

whom the amount was to be paid, though he claims to be

the eye witness to the transaction of handing over the

currency notes by the complainant to the appellant.

Indisputably, Karbhari Manik Jadhav is the son of Manik

Trimbak Jadhav. The said Karbhari Manik Jadhav was very

much in contact with the complainant as well as the

appellant as seen from the evidence of the complainant.

If the complainant wanted to pay any amount to Manik

Trimbak Jadhav, he would have handed over that amount to

Karbhari Manik Jadhav and not to any third person much

less to the appellant who was working as a Talathi and

not as a postman. There was absolutely no reason for

31 criapl114-2002

the complainant to handover the amount of Rs.1000/- for

being paid to Manik Trimbak Jadhav, resident of village

Golegaon, more particularly when the appellant was going

to Aurangabad with Patekar (DW1). The evidence shows

that the appellant kept the amount received from the

complainant in the pocket of his pant without counting

the notes. Patekar (DW1) states that the appellant did

not ask the complainant as to quantum of the amount, nor

the complainant told him as to how-much amount that was.

This fact also rules out the possibility of receiving

the amount by the appellant from the complainant for

being paid to Manik Trimbak Jadhav. In the natural

course, the complainant would have informed the

appellant that it was a particular amount and the

appellant certainly would have counted it prior to

keeping it in the pocket of his pant, if the said amount

was to be paid to some other person. Nothing of that

sort had happened. On the contrary, there is consistent

evidence of the complainant and that of Tangade (PW4)

that the appellant claimed that it was his amount and

demanded Rs.700/- to Rs.800/- more for being paid to the

staff members of Circle Office. The defence, thus, is

not at all probable. The learned Special Judge has

rightly disbelieved the said defence by giving

32 criapl114-2002

appropriate reasons. I subscribe to those reasons.

32. The appellant has examined the then Circle

Inspector Sathe (DW2) (Exh-73) to show that the

complainant had cut down 62 fruit bearing trees from his

agricultural lands without permission from the land

block No. 22 of Shankarpurwadi. The appellant had

prepared the panchanama of those trees and made a report

to the Tahsildar for taking necessary action and seeking

permission to sell out the wood of the trees by public

auction. Therefore, according to the appellant, the

complainant had grudge against him and consequently, he

was falsely implicated by the complainant. This defence

also has been rightly disbelieved by the learned Trial

Judge giving quite acceptable reasons.

33. There is a letter (Exh-76) dated 16th January,

2002 addressed by the Sub-Divisional Officer, Vaijapur

to the Public Prosecutor attached to the District and

Sessions Court, Aurangabad, whereby it was informed

that no file was sent by the Tahsildar, Khultabad to him

in respect of cutting of trees without permission from

the land block No.22 of village Shankarpurwadi. This

fact itself creates doubt about genuineness of the

33 criapl114-2002

proceedings initiated in respect of unauthorised cutting

of trees from the land of the complainant. At the

instance of the appellant, the photocopy of the file in

respect of cutting of trees illegally from the land

block No.22 of Shankarpurwadi was produced by the

Tahsildar with letter dated 18th January, 2002. Sathe

(DW2) admits that the fruit bearing trees are invariably

mentioned in the other rights column of the 7/12

extract. He was shown the 7/12 extract of the land

block No.22. He admits that there is no mention of the

trees in other rights column thereof. One Yashodabai is

the co-owner of the said land. Two mango trees are

shown to be standing in that land. Therefore, it was

not clear as to whether 62 trees were actually standing

in that land and the said trees were belonging to the

complainant. Sathe (DW2) admits that he did not issue

notice either to the complainant or Yashodabai prior to

the drawing the panchanama of the trees which were cut

without permission. It is further clear from his

evidence that no action has been taken against the

complainant till the date his evidence was recorded

before the Trial Court. He states that usually within

one month, an action has to be taken against the person

who cuts the trees unauthorisedly. All these facts and

34 criapl114-2002

circumstances show that there was no reason for taking

action against the complainant for the alleged cutting

of trees. In the circumstances, the defence that

because the appellant made a report against the

complainant in respect of the alleged illicit cutting of

trees, he lodged false complaint to ACB, does not stand

to reason. Moreover, had there been a room for the

complainant for having grudge against the appellant just

prior to the day of the trap, the appellant himself

would not have gone to the house of the complainant and

the complainant also would not have entertained him. In

such circumstances, there was absolutely no possibility

of handing over the amount of Rs.1000/- by the

complainant to the appellant for being paid to a third

person.

34. As stated above, the prosecution has proved

beyond doubt that the appellant demanded Rs.1000/- for

issuing fresh 7/12 extract in respect of the land

standing in the name of the minor son of the complainant

namely Harshad and for issuing 7/12 extracts in respect

of the lands block nos.18, 20 and 22 for three years

prior to 30th September, 1996 and also on 30th September,

1996 when the trap was laid. He accepted an amount of

35 criapl114-2002

Rs.1000/- from the complainant as illegal gratification

for discharging his duty as a Talathi in respect of

issuing the documents demanded by the complainant. As

such, the prosecution proved the guilt of the appellant

for the offences punishable under Sections 7 and 13 (1)

(d) (ii) of the Act. However, for want of corroboration

to the evidence of the complainant, in respect of the

earlier acceptance of bribe of Rs.2000/- and Rs.100/-

for three times by the appellant prior to the day of the

trap being not corroborated by any evidence, benefit of

doubt will have to be given to the appellant. The

prosecution has failed to prove the guilt of the

appellant for the offence of habitually accepting

bribe, made punishable under Section 13 (2) read with

Section 13 (1) (a) of the Act.

35. The appellant has been convicted for the

offence punishable under Section 465 of the IPC on the

allegation that he made false entry in the 7/12 extract

of the land block No.20 showing the name of the

complainant as the guardian of his minor son Harshad.

As per Section 463 of the IPC, whoever makes any false

documents or false electronic record of part of a

document or electronic record, with intent to cause

36 criapl114-2002

damage or injury, to the public or to any person, or to

support any claim or title, or to cause any person to

part with property, or to enter into any express or

implied contract, or with intent to commit fraud or that

fraud may be committed, commits forgery. In the present

case, it is not even the case of the complainant that

the appellant prepared any false document with the above

mentioned intentions. There is no original 7/12 extract

on record, allegedly prepared by the appellant. There

is nothing on record to show that the appellant made any

false entry with intent to cause damage or commit fraud.

There is absolutely no evidence coming from the

complainant to prove the ingredients of the offence of

forgery defined in Section 463 of the IPC. The appellant

has been wrongly convicted by the learned Special judge

for the said offence. The conviction and sentence of the

appellant for the said offence is not at all

sustainable.

36. The learned counsel for the appellant has

challenged conviction and sentence of the appellant on

the ground that the sanction for prosecution of the

appellant was not valid. He submits that Shinde (PW3)

(Exh-33), who was working as the Sub-Divisional Officer

37 criapl114-2002

at Vaijapur, was not a competent authority to accord

sanction for prosecution of the appellant. He further

submits that the evidence of Shinde (PW3) does not show

that he applied mind to the facts of the case and then

accorded sanction for prosecution of the appellant.

According to the learned counsel of the appellant, the

prosecution has failed to prove as to what material was

produced before Shinde (PW3) while seeking sanction for

prosecution of the appellant. He submits that the

challenge as to validity of the sanction order can be

raised before the Appellate Court. According to him,

there is no valid sanction accorded by the competent

authority. The appellant has suffered substantial

injustice. In support of his challenge as to validity

of sanction, he cited certain judgments which would be

referred to a little later.

37. On the other hand, the learned A.P.P. submits

that Shinde (PW3) was the appointing authority of the

appellant being the Sub-Divisional Officer, Vaijapur.

He was empowered to remove the appellant from service.

The competency of Shinde (PW3) was never challenged by

the appellant. He submits that the sanction order (Exh-

36) and the evidence of Shinde (PW3) clearly show that

38 criapl114-2002

sanction was accorded by Shinde (PW3) after perusing all

the papers of investigation and after being satisfied

that sanction for prosecution of the appellant was

required to be given. Relying on the judgment in the

case of State of Madhya Pradesh Vs. Virendra Kumar

Tripathi 2009 (15) SCC 533, he submits that in the

absence of any plea that the appellant suffered

prejudice for want of valid sanction, the challenge as

to validity of the sanction order cannot be entertained

by the Appellate Court in view of sub-section (3) of

Section 19 of the Prevention of Corruption Act.

38. Dy.S.P. Kulkarni (PW6) deposes that after

completion of the investigation, he collected the

required documents regarding the appointment of the

appellant. He then sent the file and papers of

investigation to the Superintendent of Police (ACB),

Aurangabad with a request to obtain necessary sanction

for prosecution of the appellant. He then received

sanction for prosecution of the appellant on 15 th April,

1997. This evidence has not been challenged in the

cross-examination of Dy.S.P. Kulkarni (PW6).

39. Shinde (PW3) deposes that he received a letter

39 criapl114-2002

dated 20th January, 1997 from the office of ACB,

Aurangabad which was accompanied by a sealed envelope

and a file containing papers regarding the trap laid on

the appellant. The said file was containing panchanama,

etc. He perused all the papers and after being

satisfied that sanction for prosecution of the appellant

was required to be given, accorded sanction (Exh-36).

40. The sanction order (Exh-36) shows that the

record of investigation in Crime No.II-44/1996 of

Jawaharnagar Police Station, Aurangabad was read by

Shinde (PW3). The detailed allegations made against the

appellant are reproduced in the sanction order alongwith

the Sections of the Prevention of Corruption Act, 1988

in respect of the offences allegedly committed by the

appellant. It would be necessary to reproduce here

paragraph Nos.6 and 7 of the sanction order to indicate

that after considering the record produced before Shinde

(PW3), he was satisfied and then opined that it was

necessary to grant sanction for prosecution of the

appellant.

"6. AND WHEREAS, upon reading the papers of investigation in Jawaharnagar Police Station,

40 criapl114-2002

Aurangabad C.R.No.II-44/96 under Section 7, 13 (2) read with 13(1)(d), prevention of Corruption Act, 1988 (49 of 1988) I am satisifed and is of the opinion that the said Shri Raosaheb Shrimantrao Gite should be prosecuted for the offences constituted by the acts and punishable as stated hereinabove.

7. NOW, THEREFORE, I, D.M. Shinde, Sub-

Divisional Officer, Vaijapur, Dist. Aurangabad, being the appointing authority and competent to remove the saidShri Raosaheb Shrimantrao Gite from his post, do hereby, for the purposes of and as required by Section 19(1) (c), Prevention of Corruption Act, 1988 (49 of 1988) accord sanction to the prosecution of the said Shri Raosaheb Shrimantrao Gite for the offences constituted by the acts and punishable as stated hereinabove."

41. From the contents of the sanction order as well

as that of paragraph No.6 thereof, it is clear that all

the material connected with the case of the appellant

was produced before Shinde (PW3) and after going through

that record, he accorded sanction. It has come in his

cross-examination that he required two months to verify

the documents and take a decision to accord sanction for

prosecution. This positive statement brought on record

41 criapl114-2002

in the cross-examination of Shinde (PW3) also indicates

that he applied mind to the facts of the case and then

accorded sanction. Only because he deposes that a draft

sanction order was sent and he prepared the sanction

order as per the draft, it can not be said that there

was no application of mind to the facts of the case on

the part of Shinde (PW3). It is, thus, clear that the

sanction order (Exh-36) was passed by Shinde (PW3) after

considering all the material placed before him, after

applying his mind thereto and after being satisfied that

sanction was required to be granted.

42. The learned counsel for the appellant cited the

judgment in the case of P.L. Tatwal Vs. State of M.P.

2014 CRI.L.J.1880 (SC) wherein the sanction order was

reproduced in paragraph No.10 of the judgment and it was

observed in paragraph No. 11 that only the second

paragraph of the resolution was speaking about the

sanction and that was following the recommendation of

the Municipal Commissioner. It was not clear whether

that formed the part of the Government letter and even

the contents of the Government letter also were not

clear. In the circumstances, it was held that there was

no application of mind while according sanction for

42 criapl114-2002

prosecution of the accused - public servant.

43. In the case of State of Maharashtra through

C.B.I. Vs. Mahesh G. Jain 2013 AIR SCW 3174 (SC), cited

by the learned counsel for the appellant, it was held

that it is incumbent on the part of the prosecution to

prove that valid sanction has been granted by the

sanctioning authority after being satisfied that a case

for sanction has been made out. The prosecution may

prove by adducing the evidence that the material was

placed before the sanctioning authority and his

satisfaction was arrived at upon perusal of the material

placed before him.

44. In the case of State of Karnataka Vs. Ameer Jan

2008 CRI.L.J.347 (SC), from the perusal of the record,

it was found that except the report made by I.G.P., no

other record was made available before the sanctioning

authority. Therefore, it was held that the sanction

accorded merely on the basis of report made by the

I.G.P., was invalid.

45. In the present case, as stated above, all the

papers of investigation were placed before Shinde (PW3).

43 criapl114-2002

He states that he perused the papers of investigation

and after being satisfied, accorded sanction for

prosecution of the appellant. In view of these

distinguishing facts of the present case, the above

cited three rulings would not be applicable thereto.

46. Paragraph No.7 of the sanction order (Exh-36)

clearly indicates that Shinde (PW3) made a positive

statement that he being the appointing authority and

competent to remove the appellant from service, accorded

sanction for prosecution of the appellant under Section

19 (1) (c) of the Prevention of Corruption Act. The

competency of Shinde (PW3) to accord sanction for

prosecution of the appellant has not at all been

challenged in his cross-examination. It is not even

challenged on behalf of the appellant that Shinde (PW3)

was not the appointing authority of the appellant and

was not competent to remove the appellant from service.

The impugned judgment also does not disclose that even

at the time of final arguments, the learned counsel for

the appellant challenged validity of sanction on any

ground much less on the ground that Shinde (PW3) was not

the competent authority to accord sanction for

prosecution of the appellant. Thus, the evidence of

44 criapl114-2002

Shinde (PW3) in respect of the contents of paragraph

No.7 of the sanction order (Exh-36) has remained totally

unchallenged.

47. The appellant could have produced his

appointment order to establish contrary to what Shinde

(PW3) claimed. The appellant did not produce such

order. As per Illustration (e) under Section 114 of the

Indian Evidence Act, 1872, the Court may presume that

judicial and official acts have been regularly

performed. This presumption is rebutable. When Shinde

(PW3) claims himself to be the appointing authority of

the appellant as well as the authority competent to

accord sanction for his prosecution, this presumption

would come into play and it would be for the appellant

to rebut that presumption. The appellant has totally

failed to rebut that presumption.

48. It may be noted that the validity of sanction

order (Exh-36) as well as the competency of Shinde (PW3)

to accord sanction has not been challenged even in the

appeal memo. It is not even the case of the appellant

that he was appointed by some other authority, who was

superior to Shinde (PW3) and therefore, Shinde (PW3) was

45 criapl114-2002

not competent to accord sanction for his prosecution. In

the circumstances, the contention of the appellant that

Shinde (PW3) was not his appointing authority and as

such, was not competent to remove him from service and

therefore, sanction order (Exh-36) passed by him is not

valid, cannot be accepted. The contents of sanction

order (Exh-36), coupled with the evidence of Shinde

(PW3), make it clear that the said order has been passed

by Shinde (PW3) after perusing all the papers of

investigation and after applying his mind to the facts

of the case. Thus, the sanction order (Exh-36) cannot

be said to be invalid.

49. The learned counsel for the appellant submits

that the question of validity of sanction can be raised

even for the first time before the Appellate Court. In

support of this contention, he relied on the judgment in

the case of Nanjappa Vs. State of Karnataka AIR 2015 SC

3060. In that case, the accused was acquitted by the

trial Court for want of valid sanction. The High Court

reversed the judgment of acquittal and convicted the

accused holding that since the validity of sanction

order was not questioned at the appropriate stage, the

appellant was not entitled to raise the same at the

46 criapl114-2002

conclusion of the trial. The Hon'ble the Supreme Court

observed in paragraph No.20 of the judgment that the

High Court has not correctly appreciated the legal

position regarding the need for sanction or the effect

of its invalidity. It has simply glossed over the

subject by holding that the question should have been

raised at an earlier stage. The High Court did not, it

appears, realise that the issue was not being raised

before it for the first time but had been successfully

urged before the trial Court. In this context, the

Hon'ble the Supreme Court held that the question about

validity of any sanction order could be raised at the

stage of final arguments at the trial or even at the

appellate stage.

50. In the present case, the validity of sanction

order was not at all challenged before the trial Court.

No grievance has been made against the sanction order in

the appeal memo as well. The learned counsel for the

appellant for the first time raised the question of

validity of sanction order at the time of arguments.

Even if the said challenge is entertained at this stage,

in view of the earlier findings recorded by me that

Shinde (PW3) was competent to accord sanction for

47 criapl114-2002

prosecution of the appellant, the said challenge cannot

be attached with any importance.

51. The learned counsel for the appellant then

cited the judgment in the case of State of Goa Vs. Babu

Thomas AIR 2005 SC 3606 wherein the sanction order was

not passed by the competent authority. The sanction

order was challenged after framing of the charge. The

evidence was not recorded. In the circumstances, it was

held that the sanction order issued by the authority,

which was not competent to issue the same, would be bad

in law and it being a fundamental error would invalidate

the cognizance as without jurisdiction. Consequently,

the Hon'ble the Supreme Court permitted the competent

authority to issue fresh sanction by an authority

competent under the Rules and proceed afresh against the

accused from the stage of taking cognizance of the

offence and in accordance with law. In the present

case, as stated above, the sanction order (Exh-36) has

been issued by the competent authority. Therefore, this

ruling would be of no help to the appellant.

52. The learned counsel for the appellant cited the

judgments in the following four cases to show that

48 criapl114-2002

sanction order granted by the Sub-Divisional Officer for

prosecution of Talathi is not valid.

(i)              Bhaurao Marotrao Manekar Vs.
                 State of Maharashtra
                 1980 BCI 57 = 1980 Mh.L.J.445

(ii)             Suresh s/o Dasrao Bangale Vs. 
                 The State of Maharashtra

(Criminal Appeal No.226 of 1998, decided by this Court on 14th December,2010)

(iii) Maruti Subrao Shinde Vs. State of Maharashtra 2011 (2) Mh.L.J. (Cri.) 555

(iv) Sakharam Tryambak Patil Vs. State of Maharashtra 1993(1) Bom.C.R.134 = 1993 (1)Mh.L.J.276

53. In the first case, the accused Talathi was

admittedly appointed by the Collector. In the second

case, the accused, during the cross-examination of the

sanctioning authority, all along tried to suggest that

he was not the appointing authority and was not

empowered to pass sanction order for prosecution. The

tenor of the letters issued by the Collector clearly

indicated that it was the Collector of Aurangabad who

had appointed the accused Talathi as trainee Talathi.

Thus, the Sub-Divisional Officer was not found to be the

appointing authority of the accused Talathi. In the

third case, the accused Talathi was appointed by the

49 criapl114-2002

Assistant Collector, while the sanction order was passed

by the Sub-Divisional Officer. In the fourth case, the

accused Talathi was actually appointed by the Collector

while sanction for his prosecution was accorded by the

Sub-Divisional officer. In the circumstances, in the

above cited cases, it was held that the Sub-Divisional

Officer was not competent to accord sanction for

prosecution of the accused Talathi concerned. In the

present case, as stated above, Shinde (PW3) was the

appointing authority of the appellant and was competent

to remove him from service. The appellant has not

produced anything on record to show that the Sub-

Divisional Officer was not his appointing authority or

was not competent to remove him from service. In the

circumstances, the above cited four cases would be of no

assistance to the appellant.

54. It is well settled that sanction before

initiation of prosecution of a public servant is a

safeguard provided to him so as to save him from

unnecessary harassment of unwarranted prosecution. If

the merits of the case clearly indicate that the public

servant was involved in demanding and accepting illegal

gratification, he is not entitled to seek protection of

50 criapl114-2002

this safeguard before the Appellate Court in appeal

against his conviction. In such a situation, the

provisions of Sub-section (3) (a) of Section 19 of the

Act certainly would be applicable, which read as

under:-

19. Previous sanction necessary for prosecution -

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, -

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby."

55. In the case at hand, basically the sanction

order (Exh-36) is quite valid. On merits also, the

prosecution has established the offences alleged against

the appellant. There is absolutely no plea raised by the

appellant in the appeal memo that failure of justice has

been caused to him for want of valid sanction or because

of any error, omission or irregularity in the sanction.

In the circumstances, the prosecution launched against

the appellant would not suffer on the ground of any

infirmity in the sanction.

51 criapl114-2002

56. Considering the above facts and circumstances

of the case, I concur with the findings of the learned

Special Judge to the extent holding the appellant guilty

for the offences punishable under Sections 7 and 13 (2)

read with Section 13 (1)(d) of the Act. The impugned

judgment is supported by evidence on record and is quite

legal, proper and correct to that extent. The said

findings do not call for any interference. So far as

the offences under Section 13(1)(a) of the Act and under

Section 465 of the IPC are concerned, as stated above,

the prosecution has failed to produce sufficient and

dependable evidence to establish guilt of the appellant.

The learned Special Judge did not appreciate the

evidence properly and correctly in respect of these

offences and wrongly convicted the appellant of the said

offences. The conviction and sentence passed against

the appellant in respect of these two offences are

liable to be quashed and set aside. As such, the appeal

is liable to be allowed partly. The conviction recorded

against the appellant for the offences punishable under

Sections 7 and 13(2) read with Section 13(1)(d) of the

Act is liable to be maintained as it is. The maximum

sentence of imprisonment inflicted against the appellant

52 criapl114-2002

by the learned Special Judge is rigorous imprisonment

for two years. The learned Special Judge has already

shown sufficient leniency to the appellant in the matter

of inflicting punishment. The appellant does not

deserve for any more leniency considering the serious

nature of the offences established against him. In the

result, I pass the following order:-

O R D E R

(A) The Criminal Appeal is partly allowed.

(B) The appellant is acquitted of the offences

punishable under Section 465 of the Indian Penal Code

and under Section 13(2) read with Section 13(1)(a) of

the Prevention of Corruption Act, 1988.

(C ) The conviction and sentence of the appellant

for the offences punishable under Sections 7 and 13 (2)

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

Corruption Act, 1988 are maintained as they are.

(D) Fine amount of Rs. 3000/- be refunded to the

appellant.

                                       53                         criapl114-2002



(E)              Other   directions   given   in   the   impugned   order 

are maintained as they are.



(F)              The appellant shall surrender to his bail bonds 

by appearing before the trial Court within a period of

two weeks from today for suffering the sentence.

(G) In case the appellant fails to surrender before

the trial Court within the period of two weeks from

today, the trial Court shall issue coercive process

against him for securing his presence.

(H) Inform the trial Court accordingly.

(I) The appeal is accordingly disposed of.

Sd/-

[SANGITRAO S. PATIL] JUDGE

npj/criapl114-2002