Dr.Kiran Anant Deshpande vs State Of Maharashtra,Thr.Anti ...
2018 Latest Caselaw 741 Bom

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

                            CRIMINAL APPEAL NO. 705 OF 2002

Dr. Kiran Anant Deshpande,
Aged 51 years, Occupation 
Medical Practitioner, 
Resident of Laxminagar, Nagpur. 
Presently residing at Chandrapur.                                                               ... Appellant

             VERSUS

The State of Maharashtra, 
through Anti Corruption Bureau, 
Nagpur.                                                                                      ... Respondent
-------------------------------------------------------------------------------------------------
Shri Suyash Agrawal,  Advocate h/f Shri S. V. Sirpurkar, Advocate for 
the appellant
Shri Nikhil H. Joshi, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                        CORAM :  M. G. GIRATKAR, J.

DATE : 20-1-2018 ORAL JUDGMENT

Appellant assailed the judgment of conviction awarded by

the Special Judge, Nagpur in Special Case No. 3/91.

2. The case of the prosecution against the appellant in short is

as under.

(i)       Appellant was working as a Medical Officer at Mental Hospital,





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Nagpur. On 15-6-1989, complainant Amar Parchake approached to the

appellant and requested him to issue medical certificate of his brother

who was taking treatment in the Mental Hospital. Complainant

required that certificate because he was transferred to Gadchiroli and

he wanted to get his transfer cancelled on the medical ground of his

brother.

(ii) Complainant requested appellant to issue medical certificate. The

appellant told him to pay Rs. 100/-. The complainant was not ready to

give that amount as he thought it was a bribe amount. Therefore, he

approached the office of Anti Corruption Bureau, Nagpur and lodged

the report, Exhibit 44. As usual, pre-trap panchanama was prepared by

the Investigating Officer Shri Aziz. Panchas were called. Demonstration

about trap was given to the panch witnesses and complainant.

Thereafter trap was led at Mental Hospital, Nagpur. Complainant Amar

Parchake went to the office of appellant in the Mental Hospital.

Appellant demanded Rs. 100/-. He gave the same. Thereafter medical

certificate of his brother was issued by the appellant.

(iii) As decided at the time of pre-trap panchanama, appellant gave

signal to the trap party. Trap party approached to the office of appellant

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and apprehended him with bribe money of Rs. 100/-. Hands of

appellant were caught hold. Necessary formalities were carried out.

Thereafter post-trap panchanama was prepared. After complete

investigation, P.W. 1 lodged the report. Crime was registered. Sanction

was obtained from the sanctioning authority. Sanctioning authority

granted sanction to prosecute the appellant vide Exhibit 82. After

obtaining sanction order from the appointing authority, charge-sheet

came to be filed in the Special Court at Nagpur.

(iv) Charge was framed at Exhibit 11 for the offences punishable

under Sections 7, 13(i)(d) read with Section 13(2) of the Prevention of

Corruption Act. The contents of charge were readover and explained to

the accused. He pleaded not guilty and claimed to be tried. Defence

appears to be that he accepted Rs. 100/- as his outstanding fees and not

bribe.

(v) The prosecution has examined following witnesses.

(1) P.W. 1 Shri Gyanba Rajaram Pagire, PSI (Exhibit 33) (2) P.W. 2 Shri Amar Bajirao Parchake (Exhibit 42) (3) P.W. 3 Shri Anna Vitthalrao Dhabekar (Exhibit 56) (4) P.W. 4 Shri Babarao Dadarao Patil (Exhibit 65) (5) P.W. 5 Shri Suresh Santoshrao Lokhande (Exhibit 71)

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(6) P.W. 6 Ujjaykumar Krushnarao Wahane (Exhibit 72) (7) P.W. 7 Shri Mohd. Qamar Mohd. Takdir Quereshi (Exh. 75) (8) P.W. 8 Shri Mohd. Aziz Sheikh Mehboob (Exhibit 78) (9) P.W. 9 Shri Prabhakar Gemu Salve (Exhibit 81) and (10) P.W. 10 Shri Prabhakar Ramaji Coreshettiwar (Exhibit 96)

(vi) Statement of appellant was recorded under Section 313 of the

Code of Criminal Procedure. He has specifically stated that he

demanded Rs. 100/- from the complainant towards outstanding fees

because his brother was getting medical treatment in his private clinic.

He did not accept that amount as a bribe.

(vii) After hearing the prosecution and defence, learned Special Judge

convicted the appellant for the offences charged against him.

3. Heard learned counsel Shri Suyash Agrawal holding for

Shri S. V. Sirpurkar, learned counsel for the appellant and Shri Nikhil H.

Joshi, learned Additional Public Prosecutor for the State/respondent.

4. Perused the evidence on record. Evidence of complainant

itself shows that his brother was getting medical treatment in the private

clinic of appellant. As per the advice of appellant, he taken his brother

for treatment in the Mental Hospital, Nagpur. Appellant was Medical

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Officer at Mental Hospital, Nagpur. Complainant was transferred to

Gadchiroli from Nagpur. He wanted medical certificate of his brother to

cancel his transfer. Therefore, he approached the appellant and

requested him to issue medical certificate.

5. Complainant has specifically stated in his evidence that

appellant demanded Rs. 100/- towards his outstanding fees. The

specific defence of the appellant is that he has received Rs. 100/- from

the complainant towards his fees outstanding against him.

6. Complainant has fully supported the defence of appellant.

Other witnesses viz. P.W. 5 Suresh Lokhande, Attendant and P.W. 7

Mohd. Qamar, Medical Officer examined by prosecution have

specifically stated that appellant was working as Medical Officer in the

Mental Hospital at the time of incident. He was having private clinic at

Dharampeth, Nagpur.

7. There is no dispute that appellant has received the amount

of Rs. 100/- from the complainant. But that amount was for

outstanding fees. From perusal of evidence particularly, evidence of

Investigating Officer itself shows that he seized material documents

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from the private clinic of appellant i.e. diary and other documents but

those were not produced on record. His admission shows that seized

diary show the name of patients which were examined by the appellant.

As per the case of the appellant, amount of fees is also written in the

diary. Investigating Officer has specifically admitted that diary was

seized but not produced on record. Therefore, presumption can be

drawn under Section 114 of the Indian Evidence Act for not producing

the documents and those were suppressed from the Court. If those

documents were produced would have against the prosecution.

8. From the perusal of the evidence of all the witnesses, it is

clear that only panch witness has supported to the case of prosecution. It

is natural because he is a public servant, he has stated as per

panchanamas. Evidence of complainant himself and other witnesses

including Medical Officer and Attendant of Mental Hospital clearly

shows that appellant was working as Medical Officer in Mental Hospital

and also he was running a private clinic. There is no dispute that

appellant was permitted to do private practice. It is also brought on

record that appellant not claimed any non-practicing allowance from the

Government.

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9. Specific admission of the complainant himself that before

admitting his brother in Mental Hospital, his brother was getting

medical treatment from private clinic of appellant. Sometimes, he was

not having money and therefore, amount of Rs. 100/- was due against

him. He has specifically admitted that he went to demand medical

certificate and appellant has specifically asked him whether he brought

Rs. 100/- outstanding against him. Specific admission of complainant is

also corroborated by other evidence. Admission of complainant get

support from the evidence of Medical Officer, P.W. 7 and Attendant,

P.W. 5 who deposed that appellant was doing his private practice.

Therefore, it is clear that probable defence is proved by the

appellant/accused.

10. Now, it is well settled that prosecution has to prove the

guilt of accused beyond reasonable doubt. Burden of proof on

prosecution is heavy as compared to accused. Accused has to prove his

probable defence with preponderance of probabilities. Accused has

proved his probable defence that he demanded and accepted Rs. 100/-

as fee outstanding against the complainant for treatment of his brother

and it was not a bribe. This probable defence is not taken into

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consideration by the trial Court and wrongly convicted the appellant.

Hence, the impugned judgment of conviction is liable to be quashed

and set aside. Therefore, I proceed to pass the following order.

                                            ORDER


       (i)      The appeal is allowed.


       (ii)     The impugned judgment of conviction is hereby quashed and

       set aside.

(iii) Appellant Dr. Kiran Anant Deshpande is hereby acquitted of

the offences punishable under Sections 7, 13(i)(d) read with

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

(iv) Appellant is on bail. His bail bond stands cancelled.

       (v)      R & P be sent back to the trial Court.


       (vi)     Fine amount, if paid, be refunded to the appellant. 




                                                            JUDGE



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