Shivaji Dattatraya Davbhat vs The State Of Maharashtra
2021 Latest Caselaw 17713 Bom

                                             J-WP-1921-2021FINAL.DOC




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

          CRIMINAL WRIT PETITION NO. 1921 OF 2021

Shivaji Dattatraya Davbhat                         ...Petitioner

         Versus

The State of Maharashtra                           ...Respondent

                             ......
Mr.Shyam Dewani a/w. Mr. Pravin Bhai i/b. Sneha G. Sanap
for the Petitioner.
Mr. H.J. Dedhia, APP for the Respondent -State.
                             ......
                       CORAM       :   V.G.BISHT, J.
               RESERVED ON         :   6TH DECEMBER, 2021
               PRONOUNCED ON :         21ST DECEMBER, 2021
ORDER

1. Rule. Rule returnable forthwith.

2. The petitioner is seeking quashing of the order dated

23rd February, 2021 passed by learned Additional Sessions

Judge, Palghar whereby discharge application of the petitioner

was rejected.

3. In nutshell, the prosecution case is as under :

(a) According to complainant, Appeal Nos. 32 of

2016, 33 of 2016, 34 of 2016 and 35 of 2016 regarding

Trupti 1/27 J-WP-1921-2021FINAL.DOC

mutation entries of complainant's father's properties

were pending before the petitioner, who was at the

relevant time was Sub- Divisional Officer, Palghar.

Prosecution alleges that the petitioner and other

accused, namely, Satish Maniwade, Nayab Tahsildar of

Sub Divisional Office, Palghar demanded Rs. 50 lakhs to

pass the orders in favour of the complainant. Since

complainant was averse to pay the bribe, he approached

the office of Anti Corruption Bureau (ACB) on 26 th

August, 2016 and lodged the complaint.

(b) Prosecution next contends that the office of ACB

with the help of complainant set up first trap on 29 th

August, 2016. However, since verification of the

demand could not be done, trap was postponed.

Thereafter, again on 20th September, 2016, the second

trap was arranged when despite the complainant met

petitioner and as there was no demand of any bribe

amount, again there was no verification of the demand

from the office of petitioner. Lastly, third trap on 24 th

Trupti 2/27 J-WP-1921-2021FINAL.DOC

November, 2016 was laid. It is alleged that on that day,

the complainant met petitioner in his cabin and asked

for exchange of 22 -25 new notes saying " fol iapohl

Ik;Zar Eg.kts dk;?, " "Bhd vkgs rqEgh clk."

(c) It is further alleged that as per above discussion,

the complainant prepared dummy notes of Rs. 1000/- of

which 50 bundles were made ready. The complainant

had Rs. 3 lakhs in old notes i.e. denomination of

Rs.1000/-. On the said notes anthracene powder was

applied and were kept in one blue coloured cloth bag.

(d) It then appears that another trap was set up by

putting the voice recorder on the complainant and he

was sent along with other Panchas with the bag of

moneys. In the passage of office of the petitioner,

accused No.3, namely, Jayesh Patil, driver of the

petitioner met complainant and received Rs. 50 lakhs

and kept the money in record room. Thereafter, as per

trap, the complainant went to the office of accused No.2

Satish Maniwade and informed him that the money has

Trupti 3/27 J-WP-1921-2021FINAL.DOC

been given to accused No. 3. Afterwards, the

complainant gave signal to the Panchas, who were

standing outside the office and accused No.3 was caught

red handed. The money was recovered from accused

No.3, who was sitting in the office of petitioner.

Accordingly the First Information Report came to be

filed.

4. Mr. Dewani, learned Counsel for the petitioner, submits

that there is no direct evidence or material on record to show

that at any point of time the petitioner had any discussion

with complainant about the matter, leave apart making any

demand. Even there is no material to show that the petitioner

in any manner had instructed any of the two accused to take

any bribe on his behalf for doing any favour to the

complainant. Rather, the conversation dated 20th September,

2016 relied upon by the prosecution would show that the

petitioner was totally unaware of the matter and what was

allegedly transpiring between the complainant and other

accused persons.

Trupti 4/27 J-WP-1921-2021FINAL.DOC

5. According to learned Counsel, the ingredients of

Sections 7, 8, 12, 13 (1) (d) read with 13 (2) of The

Prevention of Corruption Act, 1988 (fort short, "the said Act")

are totally missing. Since there was no demand of illegal

gratification by the petitioner from complainant, the alleged

offences therefore must fail.

6. Learned counsel also invited my attention to various

transcriptions of conversations recorded during all the three

traps and would forcefully submit that the learned Sessions

Court failed to take into consideration the proper import of

those transcriptions. According to learned Counsel, the

prosecution is only relying on conversation between the

petitioner and complainant which does not in any manner

connect the petitioner to the alleged offence. For all these

reasons, the Petition needs to be allowed by setting aside the

impugned order of the Sessions Court, argued learned

Counsel. He also placed reliance in case of Niranjan Singh

Karam Singh Punjabi, Advocate Versus Jitendra Bhimraj

Trupti 5/27 J-WP-1921-2021FINAL.DOC

Bijjaya and Others1 and in case of P. Satyanarayana Murthy

Versus District Inspector of Police, State of Andhra Pradesh

and Another. 2 ..

7. Per contra, Mr.Dedhia, learned APP, vehemently opposes

the submissions by submitting that at the relevant time the

petitioner was working as Sub Divisional Officer, Palghar.

Learned APP invited my attention to the transcriptions of

various conversations recorded during the traps and would

submit that all three accused in collusion with each other took

bribe or illegal gratification from the complainant. According

to learned APP, accused No.3 had received the bribe amount

on behalf of petitioner, which came to be seized from the office

of latter. Learned APP also invited my attention to the Result

of Analysis i.e. the auditory analysis of the voice samples of

petitioner and other accused and submitted that the petitioner

can prove his innocence at the time of trial.

1        (1990) 4 Supreme Court Cases 76
2        (2015) 10 Supreme Court Cases 152




Trupti                                                                 6/27
                                            J-WP-1921-2021FINAL.DOC

8. By way of reply, learned Counsel for the petitioner

submits that if the petitioner's subordinates had done

anything wrong then he cannot be held responsible. Since,

prima facie, there is no involvement of the petitioner, the

entire conversation has to be read in a proper perspective.

9. For the purpose of present matter, I would like to refer

Section 227 of the Code of Criminal Procedure, 1973 (for

short, "the Cr.PC") and then Sections 7 and 13 of the said Act.

10. Section 227 of the Cr.PC reads as under:

"Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing".

11. In Union of India Versus Prafulla Kumar Samal and

Another3, the Hon'ble Apex Court after considering the scope

3 (1979) 3 Supreme Court Cases 4

Trupti 7/27 J-WP-1921-2021FINAL.DOC

of Section 227 of the Cr.PC observed that the words 'no

sufficient ground for proceeding against the accused' clearly

show that the Judge is not merely a post office to frame the

charge at the behest of the prosecution but has to exercise his

judicial mind to the facts of the case in order to determine

that a case for trial has been made out by the prosecution. In

assessing this fact, it is not necessary for the court to enter

into the pros and cons of the matter or into a weighing and

balancing of evidence and probabilities but he may evaluate

the material to find out if the facts emerging therefrom taken

at their face value establish the ingredients constituting the

said offence. After considering the case law on the subject,

the Hon'ble Court deduced as under :

"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

Trupti 8/27 J-WP-1921-2021FINAL.DOC

(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a

Trupti 9/27 J-WP-1921-2021FINAL.DOC

roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial".

12. After considering Union of India (supra), the Hon'ble

Apex Court in case of Stree Atyachar Virodhi Parishad's versus

Dilip Nathumal Chordia & Anr4 case has held as under :

"14..... In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into".

4        (1989) 1 SCC 715




Trupti                                                                 10/27
                                         J-WP-1921-2021FINAL.DOC

13. In Niranjan Singh Karam Singh Punjabi, Advocate

(supra), the Hon'ble Apex Court held that under Section 227

Cr.PC, a duty is cast on the judge to apply his mind to the

material on record and if on examination of the record he

does not find sufficient ground for proceeding against the

accused, he must discharge him. On the other hand if after

such consideration and hearing he is satisfied that a prima

facie case is made out against the accused, he must proceed to

frame a charge as required by Section 228 of the Code. At the

Sections 227-228 stage the court is required to evaluate the

material and documents on record with a view to finding out

if the facts emerging therefrom taken at their face value

disclose the existence of all the ingredients constituting the

alleged offence. The court may for this limited purpose sift

the evidence.

14. From the above discussion, it seems that while

considering the discharge application under Section 227 of

the Cr.PC, it is not for the Magistrate or the Judge concerned

Trupti 11/27 J-WP-1921-2021FINAL.DOC

to analyze all materials including pron and cons, reliability or

acceptability etc. It is only at the trial, the Court has to

appreciate their evidentiary value, credibility or otherwise of

the statement, truthfulness of documents and then take an

appropriate decision.

15. It is expedient at this juncture to set out the relevant

extract of Sections 7 and 13 of the said Act under which the

petitioner has been charged.

"7. Public servant taking gratification other than legal remuneration in respect of an official act.--

Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central

Trupti 12/27 J-WP-1921-2021FINAL.DOC

Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine".

"13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,--

(a)...........

(b) ..........

(c) ..........

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;"

Trupti 13/27 J-WP-1921-2021FINAL.DOC

16. The Hon'ble Apex Court in A. Subair v. State of Kerala5,

while dwelling on the purport of Sections 7 and 13 (1) (d) of

the said Act ruled that the prosecution has to prove the charge

thereunder beyond reasonable doubt like any other criminal

offence and that the accused should be considered to be

innocent till it is established otherwise by proper proof of

demand and acceptance of illegal gratification, which are vital

ingredients, which are necessary to be proved to record a

conviction.

17. In State of Kerala v. C.P. Rao6, this Court reiterating its

earlier dictum vis-a-vis the same offences held that mere

recovery by itself would not prove the charge against accused

and in absence of any demand to prove payment of bribe or to

show that the accused had voluntarily accepted the money

knowing it to be bribe, conviction cannot be sustained.

5        (2009) 6 SCC 587
6        (2011) 6 SCC 450




Trupti                                                                 14/27
                                              J-WP-1921-2021FINAL.DOC




18.      Similarly,   in    order   to   discern   the   imperative

prerequisites of Sections 7 and 13 of the said Act, in B. Jayaraj

v. State of Andhra Pradesh7, it has been underlined in

unequivocal terms that mere possession and recovery of

currency notes from an accused without proof of demand

would not establish an offence under Section 7 as well as

Section 13 (1) (d) (i) and (ii) of the said Act. The proof of

demand, thus, has been held to be an indispensable

essentially and of permeating mandate for an offence under

Sections 7 and 13 of the said Act.

19. In P. Satyanarayana Murthy (supra), the Hon'ble Apex

Court has held and reiterated that mere acceptance of any

amount allegedly by way of illegal gratification or recovery

thereof, dehors the proof of demand, ipso facto, would not be

sufficient to bring home the charge under Sections 7 and 13 of

the said Act.

7        (2014) 13 SCC 55




Trupti                                                                 15/27
                                           J-WP-1921-2021FINAL.DOC

20. In the light of above, the proof of demand of illegal

gratification thus is the gravamen of the offence under

Sections 7 and 13 (1) (d) (i) and (ii) of the said Act and in

absence thereof unmistakably the charge therefore would fail.

21. Keeping in mind the above principles, let me go through

the investigation papers.

22. The prosecution case stems from the complaint lodged

by one Yohan Ardeshar Mubarki to ACP, Thane alleging that

the petitioner, who at the relevant time was SDO, Palghar and

SDM, had demanded Rs. 50 lakhs by way of illegal

gratification and acting on the complaint, a case was

registered. It seems that in all three traps were laid.

23. First trap was laid on 29th August, 2016 to verify the

demand of bribe from the petitioner. Excerpts of relevant

conversation dated 29th August, 2016 between accused No.2

Satish Maniwade and complainant are available on record.

Accused No.2 Satish Maniwade takes responsibility of the

Trupti 16/27 J-WP-1921-2021FINAL.DOC

work of complainant when the complainant says amount of

Rs.50 lakhs is too much. Accused No.2 replied that there are

5 cases and petitioner will not agree to less amount as he is

very mad for monies.

24. It further seems that complainant suggested to accused

No.2 Satish Maniwade if opposite party has given offer then

he will pay the double of that amount but it should not go

above 40. The complainant then requests accused No.2 Satish

Maniwade to arrange a meeting with petitioner but accused

No.2 Satish Maniwade takes responsibility and gives

confirmation that work will be done.

25. Accused No. 2 Satish Maniwade further assures that he

will write suitably and take care of law of limitation so that

there will be no adverse effect even if opposite party goes in

appeal. Lastly, complainant again requests accused No.2

Satish Maniwade to see that a meeting is arranged with

petitioner (but there is neither commitment nor a positive

Trupti 17/27 J-WP-1921-2021FINAL.DOC

assurance to that effect).

26. It is apparent from panchnama dated 29th August, 2016

that no demand could be verified from the petitioner as he

was not present in the office.

27. If the above quoted excerpts from conversation are to be

seen in its entirety, then it will emerge that the whole

conversation was between the complainant and accused No. 2

Satish Maniwade and it also appears that the complainant was

aware of the fact that opposite party had also approached and

therefore, he showed his readiness to pay the double amount

which the opposite party may offer to the petitioner.

28. What is interesting to note is that accused No.2 Satish

Maniwade assured complainant and took responsibility that

the work will be done. He nowhere says that the petitioner

had agreed to do his work for certain amount and the said

amount shall not be less than the amount which have been

Trupti 18/27 J-WP-1921-2021FINAL.DOC

offered to him by the opposite party.

29. It is also interesting to note from the said conversation

that accused No. 2 Satish Maniwade made a commitment that

he will write the judgment in such a way and will take care of

law of limitation so that there will be no adverse effect even if

the opposite party goes in appeal. This also goes to show

prima facie that accused No.2 Satish Maniwade had decided

to do everything possible so as to favour complainant but for

demand.

30. I now come to second trap laid on 20 th September, 2016.

In the conversation, all the three accused viz. petitioner (A-1),

Satish Maniwade (A-2) and Jayesh Patil, driver of the

petitioner (A-3) participated. Transcription of conversation is

on record.

Trupti 19/27 J-WP-1921-2021FINAL.DOC

31. A plain and simple reading of the transcription would

show that the complainant greets petitioner and thanks for

the work done by him. Petitioner then enquires as to which

work he (complainant) was referring to. The complainant

then says about four cases and then asks if accused No. 2

Satish Maniwade had not told him about those cases. The

petitioner then said that he would verify from accused No.2

Satish Maniwade, however, he had not seen any matter.

Complainant then requests that he (petitioner) should see

those matters and petitioner answers in affirmative and

further contends unless he sees matters, he would not

comment.

32. It seems that again demand could not be verified.

Panchnama dated 20th September, 2016 to above effect is on

record. Learned APP, during the course of argument, point

out certain portion wherein driver of petitioner, i.e. accused

No.3 asked complainant whether money is brought by him.

Trupti 20/27 J-WP-1921-2021FINAL.DOC

33. I may point it out here that during the above

conversation, accused No.2 Satish Maniwade was also very

much there. Had the petitioner wanted to do the work of

complainant in lieu of favour or gratification, he could not

have feigned ignorance when he was asked by complainant

whether accused No. 2 Satish Maniwade had briefed him

about those files. Moreover, what is relevant to note here is

that despite having an opportunity that is to say when the

complainant and petitioner were conversating, the petitioner

could have directly demanded or suggested about gratification

in lieu of work sought to be done by complainant but that was

not done.

34. According to learned counsel for petitioner, which is

seen from the pleadings, in the meanwhile, on 8th November,

2016, the Government of India announced the

demonetization of all 500 and 1000 banknotes. On 24 th

November, 2016, accused No.2 Satish Maniwade approached

the petitioner alone and enquired if the petitioner has any old

Trupti 21/27 J-WP-1921-2021FINAL.DOC

notes and whether he is interested in exchanging, as his friend

has come from Pune. Thereafter, complainant came to the

cabin of petitioner with accused No.2 Satish Maniwade with

the offer of exchange of demonetized (old) notes. This is

referred by prosecution as third trap to verify the demand of

bribe from petitioner.

35. Before that I may note that the pleading aspect of the

petitioner is nowhere assailed or tested by learned APP during

the course of argument. Relevant conversation relied upon by

the prosecution is at page Nos. 119 to 120 to the effect that

complainant suggested "v/ksZ ikghts rj acnyh d#u nsrks-" to which

petitioner allegedly replied "gk ex rs rl jkgy rj rs cj jkghy uk

tjk". Immediately thereafter complainant allegedly said "

vWDpqyh fol iapohl Ik;Zar eh uksVk cnyh d# 'kdrks---- ckdhp ex dl

djk;p--- eyk VkbZe ykxsy rs iSls cnyh djk;yk ---" Again petitioner

enquired " fol iapohl Ik;Zar Eg.kts?" To which complainant

replied "fol fol Eg.kts ... vka fol Eg.kts R;kpk v/kkZ eh d# 'kdrks-"

Upon this petitioner then allegedly told him "Bhd vkgs rqEgh

clk]"

Trupti 22/27 J-WP-1921-2021FINAL.DOC

36. This is the only conversation which prosecution is

heavily relying upon. There is no other material relied upon

by prosecution against petitioner. From the above

conversation also, it does not clearly and unequivocally

establish that there was any demand put forth by petitioner

for acceptance of any gratification other than legal

remuneration of an official act. The whole conversation does

not even remotely suggests that there was very clear and

specific demand from the side of petitioner in lieu of proposed

work of the complainant. There is no material on record to

show at any point of time the petitioner instructed any of the

other accused to take any bribe on his behalf for doing any

favour to complainant.

37. On the contrary, from the conversation dated 20th

September, 2016 relied upon by prosecution, it is clear that

the petitioner was totally unaware of the matter as to what

was transpiring between complainant and other accused

persons.

Trupti 23/27 J-WP-1921-2021FINAL.DOC

38. From the material on record, I gather impression that

the prosecution on the basis of conversation has drawn

inferential deduction as to the culpability of the petitioner,

which is impermissible in law. Suspicion, however grave,

cannot take the place of proof and the prosecution cannot be

complacent to rest its case in the realm of "may be" true but

has to rank it in the domain of "must be" true in order to steer

clear of any possible surmise or conjecture.

39. It seems that prosecution proposes to prove the guilt of

petitioner on the basis of said conversation which I have

referred to here-in-above. I am of the opinion that even if

that conversation is fully accepted before it is tested by cross-

examination or rebutted by the defence evidence, if any, even

then it show that the accused had indulged in demand of

gratification.

40. I have extensively referred excerpts from the transcripts

filed on record which nowhere makes out an offence against

Trupti 24/27 J-WP-1921-2021FINAL.DOC

the petitioner with respect to accepting, obtaining, agreeing to

accept or attempting to obtain from complainant or any other

person any amount towards gratification for doing or

forbearing to do any official act or any other act in exercise of

his official functions or even otherwise. Neither the said

transcripts show any abetment on part of the petitioner to

induce any person to obtain any valuable thing from any other

person including the complainant.

41. Reverting back to the first trap and second trap, the

complainant never had any communication in those traps.

Further, the third trap makes it abundantly clear that the

petitioner had denied any knowledge of the matter or any

alleged talks of the complainant with other accused persons.

42. It is also to be noted that the bribe amount was handed

over to accused No.3 and was also report at his instance. All

this material aspects were simply given go-bye by learned

Sessions Judge.

Trupti 25/27 J-WP-1921-2021FINAL.DOC

43. The material on record when judged on the touchstone

of the legal principles adumbrated here-in-above, leave no

manner of doubt that the prosecution has failed, prima facie,

to prove any demand and establish the vitally essential

ingredient of the offence both under Sections 7 and 13 (1) (d)

(i) and (ii) of the said Act. The learned Additional Session

Judge has committed a manifest error in coming to the

conclusion that there is sufficient material to frame charges

against the petitioner. The ingredients are conspicuously

absent. The learned Additional Session Judge lost sight that

the prosecution has not come with a case that there was a

meeting in between the complainant and petitioner and

demand of gratification was raised by petitioner.

44. Similarly for proving an offence under Section 12 of the

said Act, it is necessary for the alleged abettor must have

intentionally aided or facilitated the commission of a crime, or

the alleged abettor must have engaged in some conspiracy

with one or more other person or persons for the commission

Trupti 26/27 J-WP-1921-2021FINAL.DOC

of an offence. It thus contemplates existence of some nexus

between the acts of the alleged abettor and the act of offence

abetted. In the entire charge-sheet that element is missing

and therefore, there are no requisites of Section 12 of the said

Act as well.

45. For the reasons aforesaid, I am constrained to allow the

Petition. Consequently, the impugned order dated 23rd

February, 2021 passed by learned Additional Sessions Judge,

Palghar is set aside and the petitioner is discharged from the

charges levelled against him in the charge-sheet.

46. Rule is made absolute accordingly.

(V.G.BISHT, J.)

Digitally signed by TRUPTI TRUPTI SADANAND SADANAND BAMNE BAMNE Date:

2021.12.22 21:53:36 +0530

Trupti 27/27