State Of Maharashtra vs Bhimrao Nagrajrao Balajirao And ...
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                                                                              J-Apeal-478-2000.doc




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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION


                                 CRIMINAL APPEAL NO.478 OF 2000


          The State of Maharashtra                      ]        ..      Appellant
                           vs.
          Bhimrao Nagrajrao Balajirao & Ors. ]                   ...       Respondents
                                        ----------------------

          Ms.P.P. Shinde, APP for State/Appellant.
          Mr.M.S. Patankar, for Respondent No.2.
          Mr.Siddhesh Pilankar i/b Dr.Uday Warunjikar, for Respondent No.3.

                                    CORAM : SMT.SADHANA S. JADHAV &
                                            N.R.BORKAR, JJ.

RESERVED ON : 20th JANUARY,2021.

PRONOUNCED ON : 28th JANUARY,2021.

JUDGMENT : (PER : N.R.BORKAR, J)

1] This appeal, at the instance of State, challenges the

Judgment and order dated 23rd March, 2000 passed by the learned

Special Judge, Ratnagiri in Special Case No.9 of 1992.

2] By the impugned Judgment and order, the Respondent

Nos.1 to 3 who were accused Nos.1 to 3 before the trial Court have

been acquitted for the offences punishable under Section 420, 467,

J-Apeal-478-2000.doc

468, 471 r/w 34 of the Indian Penal Code and Section 5(1)(c)(d) r/w

5(2) of the Prevention of Corruption Act, 1947.

3] The accused No.1 died during the pendency of present

Appeal. The Appeal, thus, stands abated against the accused No.1.

4] It is the case of the prosecution that on 5th August, 1981,

one Dharma Padyal, resident of Village Tavsal, made an application to

Tahsildar, Guhagar stating that his house is located at the sea shore

and due to soil erosion during high tide, his house is getting damaged.

He, therefore, requested in his application either to provide him

financial assistance as he is poor to construct retaining wall to avoid

soil erosion, or the concerned authorities be directed to construct

retaining wall.

5] Application of the said Dharma Padyal was forwarded to

the office of Harbour Engineer, Ratnagiri by the Office of Tahsildar, for

necessary action. That application was favourably considered by the

Harbour Engineer and permission was accorded to construct retaining

wall. The Assistant Engineer, Harbour Sub-Division, Dapoli, was then

instructed to float a tender and to invite bids for construction of the

retaining wall. The Assistant Harbour Engineer, accordingly, floated

J-Apeal-478-2000.doc

tender on 21th September, 1983. After usual tender process, the bid of

Accused No.3 was accepted and work order was issued on 26 th

October, 1983 .

6] It is alleged that accused No.3 in collusion with accused

nos.1 and 2, who at the relevant time were working as Assistant

Harbour Engineer and Junior Engineer respectively, submitted false

documents to the office of the Harbour Engineer about the completion

of retaining wall though in fact it was not at all constructed. It is alleged

that on the basis of said false documents, amount of Rs.15,960/- was

paid to the accused No.3.

7] On transpiring of the said fact the matter was reported to

the office of Anti Corruption Bureau, Ratnagiri, who after conducting

open enquiry lodged the report against the accused Nos.1 to 3 with the

concerned Police Station, which registered crime against them for the

offences punishable under Section 120B, 420, 467, 468, 471 r/w 34 of

the Indian Penal Code and under Section 5(1)(c)(d) r/w 5(2) of the

Prevention of Corruption Act.

8] On completion of investigation and after obtaining

necessary sanction to prosecute accused No.2 who was only then in

J-Apeal-478-2000.doc

service, charge-sheet was filed against accused Nos.1 to 3 before the

learned trial court.

9] The charges were framed by the learned trial Court against

accused Nos.1 to 3 for the offences punishable under Section 420,

467, 468, 471 r/w 34 of the Indian Penal Code and under Section 5(1)

(c)(d) r/w 5(2) of the Prevention of Corruption Act, 1947. By the

impugned Judgment and order, the learned trail Court acquitted all the

accused

10] We have heard the learned APP for the State and the

learned counsel for accused Nos.2 and 3.

11] The fact that work of construction of retaining wall in

question was allotted to the accused No.3 is not in dispute. The

allegations against accused Nos.1 to 3 are that, they submitted false

documents to the office of Harbour Engineer about completion of the

retaining wall though in fact the work of the retaining wall was not at all

done.

12] It is submitted on behalf of the Appellant/State that the

learned trial Court acquitted the accused persons in spite of there being

J-Apeal-478-2000.doc

evidence to show that accused Nos.1 to 3 had submitted false

documents in relation to completion of retaining wall. It is submitted

that on the basis of the said false documents submitted by accused

Nos.1 to 3, an amount of Rs.15,960/- was paid to the accused No.3. It

is submitted that the impugned Judgment and order of the learned trial

court needs to be set aside and accused Nos.1 to 3 need to be

convicted.

13] On the other hand, it is submitted on behalf of accused

Nos.2 and 3 that the learned trial Court has rightly acquitted all the

accused. It is submitted that view taken by the trial Court is possible

view and thus interference in the Judgment of acquittal is not

permissible just because the other view is possible.

14] PW 1 Appasaheb Pawar, who has been examined to prove

the allegations against the accused, has deposed that in March, 1986

he took over charge of Dapoli Sub Division and Harbour Engineer

directed him to inquire into the complaint of one Dharma Padyal as

according to him, the work of retaining wall was not done. In the

month of November, 1986 he inspected the site and at that time he was

accompanied by Junior Engineer Darwaskar. He deposed that in the

inspection he found that the retaining wall was not built at the site and

J-Apeal-478-2000.doc

only construction material was stored about 1 km. away from the site.

He, therefore, recorded the statements of local residents including

Dharma Padyal and submitted report to Harbour Engineer.

15] PW 1 has further deposed that after few months, Padyal

again made a complaint that the accused No.3 has commenced the

work of retaining wall, but the said work is not being done properly. The

said complaint was again referred to him by Harbour Engineer.

Thereafter, he alongwith Junior Engineer Shinde again inspected the

site and it was revealed that the retaining wall was under construction

and it was constructed to the extent of 70 meters.

16] The defence of the accused is that retaining wall was

constructed. PW 1 in his cross-examination has admitted that till

March, 1986 there was no complaint about the disputed retaining wall.

He further admitted that at the site, percentage of sinkage was above

the usual percentage. He further admitted that when he visited the

site four monsoon seasons were already over. He further admitted

that the Harbour Engineer supervises all the work in his division and in

the present case bill of accused No.3 was certified by Harbour

Engineer to the effect that the work was completed on 15th March,

1984.

J-Apeal-478-2000.doc

17] The Hon'ble Supreme Court in the case of Harijana

Thirupala and others v. Public Prosecutor, High Court of A.P.,

Hyderabad, reported in AIR 2002 SC 2821, has observed :

" 12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a Court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial Court would have proceeded to record a conviction. A duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial Court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity."

18] In the present matter, the learned trial Court has held that

in view of admission given by the PW 1 in his cross-examination, it

would not be safe to hold that prosecution has proved it's case against

the accused Nos.1 to 3 beyond reasonable doubt. We do not see any

perversity in the finding recorded by the trial Court. Apart from it in the

facts and circumstances of the present case, in our view Dharma

Padyal was material witness. However, he has not been examined.

PW 1 has admitted in his evidence that no Panchanama of the site

inspected by him was prepared. In absence of such evidence, no case

is made out to interfere with the judgment and order of acquittal. In the

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result, following order is passed :

ORDER

i] Appeal is dismissed.

ii] The Judgment and order dated 23rd March, 2000, in

Special Case No.9 of 1992 passed by the learned Special Judge,

Ratnaigiri, is confirmed.

     [N.R.BORKAR, J]                     [SMT.SADHANA S. JADHAV, J]