Bombay High Court
The State Of Maharashtra vs Bapuso Satyappa Kamble And Anr on 2 December, 2021
Bench: C.V. Bhadang
8-apeal-43-2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.43 OF 2004
The State of Maharashtra ]..Appellant
Vs.
1. Shri.Bapuso Satyappa Kamble ]
R/o. Alte, Tal. Hatkangle, ]
District-Kolhapur. ]
2. Shri.Bhikaji pundlik Belekar ]
R/o. Daulatwadi Post, Murgad ]
District-Kolhapur. ]..Respondents
----
Mr.S.H. Yadav, APP for the Appellant-State.
None for Respondent No.1.
Mr.Ganesh Bhujbal for Respondent No.2.
----
CORAM : C.V. BHADANG, J.
DATE : 2 DECEMBER 2021
JUDGMENT :
. By this Appeal the Appellant-State is challenging the
acquittal of the Respondents from the offence punishable under
Section 7,12, 13(1)(d) read with under Section 13(2) of Prevention
of the Corruption Act, 1988.
2. The prosecution case may be briefly stated thus :-
The father of PW-1 Sattappa D. Mane had purchased a
portion of land Gut No.38 of Village-Daulatwadi under Registered
N.S. Kamble page 1 of 8
8-apeal-43-2004
Sale Deeds dated 18 June 1991 and 17 December 1996. The land
purchased are from Village-Murgad, District-Kolhapur
ad-measuring 3R and 2.5R respectively. An application for
mutation in the record of rights and 7/12 extracts was made vide
Application Exhibit-11 on 19 May 1997 to the concerned Talathi. It
appears that the then Talathi one Mr.Gongane, Chimagon Saja,
Taluka-Kagal, District-Kolhapur had recorded Mutation entry (ME)
Nos.212 and 214 and these entries were sent for certification to the
Circle Officer. The Circle Officer by endorsement 15 April 1997
cancelled both these Mutation Entries on the ground that the Sale
Deeds of the year 1991 and 1996 are hit by the provisions of the
Prevention of Fragmentation and Consolidation of Holdings Act. It
appears that after this the Talathi Mr.Gongane was transferred and
the Respondent No.1 Bapuso Kamble assumed office as a successor.
Respondent No.2 is a private person. It is the material case that the
Respondent No.1 (Accused No.1) had demanded an illegal
gratification of Rs.800/- (Rs.400/- for each entry) and the amount
was negotiated to Rs.600/- for showing the favour of effecting the
mutation. It is claimed that the Respondent No.1 agreed to accept
Rs.200/- and the balance in installments.
3. The complainant PW-1 feeling aggrieved, approached
the Anti Corruption Bureau ('ACB') and lodged a complaint. PW-4
PI Sudhir Chougule who is the Riding Officer called two pancahs
N.S. Kamble page 2 of 8
8-apeal-43-2004
including PW-2 Subhash Kate and after explaining them the
formalities a pre-trap panchnamma was drawn and the trap was laid
at the Office of the Respondent No.1 on 10 March 1999. According
to PW-1 when he accompanied by PW-2 went to the office of the
Respondent No.1 there were 4 to 5 persons sitting in the office and
the Respondent No.1 after finishing his works with those persons,
demanded the amount of Rs.200/- and asked PW-1 to pay that
amount to Respondent No.2 who was present there. Accordingly
the amount of Rs.200/- was paid to the Respondent No.2 after
which the pre-determined signal was given and other members of
the riding party came in. The tainted currency notes were recovered
from the Respondent No.2 and after completion of the formalities a
post trap panchnamma was drawn. The matter was sent to the PW-3
Mr.Sanjay Radkar who as the relevant time working as a Sub
Divisional Officer at Kolhapur for sanction. After grant of sanction
a charge-sheet came to be filed before the learned Special Judge.
4. The learned Special Judge framed charge for the offence
punishable under Section 7, 12, 13(1)(d) read with Section 13(2) of
the said act. The respondents pleaded not guilty and claimed to be
tried. The defence of respondents is of total denial and false
implication.
N.S. Kamble page 3 of 8
8-apeal-43-2004
5. At the trial the prosecution examined four witnesses
including PW-1 Satyappa Mane, PW-2 Subhash Kate, PW-3 Sanjay
Radkar and PW-4 PI Sudhir Chougule and produced the record of
the investigation. The respondent did not lead any evidence in
defence.
6. The learned Special Judge by the impugned judgment
and order dated 18 July 2003 in Special Case No.4 of 2000 has
acquitted the respondents inter alia on the ground that the
complainant was aware of the cancellation of the entries earlier made
by the Circle Officer and the Respondent No.1 in his capacity as a
Talathi was not Competent to correct those entries or to effect the
mutation.
7. I have heard Mr.Yadav, the learned Additional Public
Prosecutor and Mr.Ganesh Bhujbal, the learned counsel for the
Respondent No.2. There is no appearance on behalf of the
Respondent No.1. With the assistance of the learned counsel for the
parties, I have gone through the record.
8. It is submitted by the learned Additional Public
Prosecutor that the evidence of PW-1 and PW-2 is sufficient to show
that the Respondent No.2 had accepted the amount of Rs.200/- on
the direction of the Respondent No.1 by way of illegal gratification.
N.S. Kamble page 4 of 8
8-apeal-43-2004
It is submitted that this was inconsideration of the respondent No.1
showing the favour of effecting/correcting Mutation Entry in respect
of the two Sale Deeds. It is submitted that the recovery of the
tainted currency notes as well as the demand has been established
which is sufficient to raise a presumption under Section 20 of the
Prevention of Corruption Act, which has not been displaced by the
respondents.
9. It is submitted that the learned Special Judge was in
error in acquitting the respondents on the ground of certain
discrepancies in the evidence of PW-1 and PW-2. It is submitted
that some minor discrepancies are bound to occur particularly when
the witnesses are called to give evidence after a considerable time. In
the submission of the learned Additional Public Prosecutor, the
discrepancies as noticed by the learned Special Judge are not
sufficient to discard the evidence of PW-1 and PW-2 on the point of
the demand and acceptance of illegal gratification.
10. The learned counsel for Respondent No.2 has submitted
that the Respondent No.2 is not a public servant and has no concern
with the Office of the Respondent No.1. It is submitted that the
learned Special Judge has rightly found that the relation between the
Respondent No.1 and Respondent No.2 were cordial and the
Respondent No.2 had no reason to accept the amount of the illegal
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8-apeal-43-2004
gratification for and on behalf of the Respondent No.1. It is
submitted that in any event, the view taken by the learned Special
Judge is probable and no interference is called for.
11. I have carefully considered the rival circumstances and
the submissions made. It is not disputed that the two Sale Deeds
were in respect of a portion of land ad-measuring 3R and 2.5 R and
in the year 1997 an application for Mutation was made for mutation
of the name of the father of the complainant PW-1. It is also a
matter of record that the then Talathi Mr.Gongane had effected
Mutation Entry Nos.212 and 214 which are referred to as diary
entries and they were sent to the Circle Officer for certification. It is
further a matter of record that as per Exhibit-27 both these entries
were cancelled by the Circle Officer Mr.Bhosale on 15 April 1997.
The evidence of PW-1 clearly indicates that he was well aware of the
cancellation of the Mutation Entries. It appears that subsequently
again an attempt was made to effect the mutation in March 1999
after the transfer of Mr.Gogane and when the Respondent No.1 took
over the charge as a Talathi as a successor of Mr.Gogane.
12. The material allegation is that the Respondent No.1 had
demanded an amount of Rs.800/- for carrying out Mutation in
respect of the two Sale Deeds and the amount was reduced to
Rs.600/-. It is the material allegation that the Respondent No.1
N.S. Kamble page 6 of 8
8-apeal-43-2004
agreed to accept the amount of Rs.200/- and the remaining in
installments. On the day of the trap it was the Respondent No.1
who demanded the amount and directed it to be paid to Respondent
No.2. It is necessary to note that PW-1 was all along aware that the
two entries were cancelled by the Superior Officer (Circle Officer)
and therefore had no reason to believe that the Respondent No.1 is
his capacity as a Talathi would be able to carry out Mutation again in
supersession of the cancellation made by the Circle Officer. It has
clearly come on record that the Respondent No.2 who is a private
person was well acquainted with the complainant and they were
residing in the same locality and were on visiting terms with each
other. It has also come in the evidence of PW-1 that he had
discussed the matter with the Respondent No.2 sometime before the
trap. The learned counsel for Respondent No.2 is right in
contending that the Respondent No.2 is in capacity of a private
person had no concern with the Office of the Respondent No.1. It is
now well settled that mere recovery of the tainted currency notes is
not sufficient, unless and until the demand and acceptance by
and/or, on behalf of the Public servant concerned is established on
record. In the present case the tainted currency notes have been
allegedly recovered from the Respondent No.2 and not from
Respondent No.1. The evidence of demand and acceptance in such
cases has to be appreciated in the context of the power and the
N.S. Kamble page 7 of 8
8-apeal-43-2004
authority of the public servant concerned to do or to get done the
act and to show the favour which is promised.
13. In the present case as noticed earlier the Respondent
No.2 as a Talathi was not Competent to supersede the entries of
cancellation earlier made by the Circle Officer of which PW-1 was
aware. PW-1 has also admitted that he was annoyed by the
cancellation of entries earlier made. This is one of the reasons why
the learned Special Judge has found that the complainant had
animus to implicate the Respondent No.1.
14. Be that as it may after having gone through the
impugned judgment I find that the view taken by the learned
Special Judge on the basis of the evidence led is a plausible view. It
is well settled that in an appeal of the present nature this Court shall
not interfere when the view taken by the trial Court is either
perverse or is an impossible view. (See the decision of the Supreme
Court in Chandrappa & Ors. V/s. State of Karnataka 1). Applying
the principles, I do not find that the impugned judgment needs
interference. The appeal is without any merit and is accordingly
dismissed.
C.V. BHADANG, J.
Digitally signed
NILAM by NILAM
SANTOSH
SANTOSH KAMBLE
KAMBLE Date: 2021.12.02
17:09:06 +0530
1 (2007) 4 SCC 415
N.S. Kamble page 8 of 8
