Bombay High Court

The State Of Maharashtra vs Shailaja Kusaram Sarda on 6 January, 2021

Bench: K.R. Sriram

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO. 506 OF 2008

The State of Maharashtra                              ....Appellant
                                                      (Orig. Complainant)
                  V/s.

Shailaja Kusaram Sarda,
Age : 35 years,
Occu. : Service,
Residing at : New Era Society,
Plot No.2, Market Yard, Pune.                         ....Respondent
                                                      (Orig. Accused)
                                   ----
Ms. Anamika Malhotra, APP for State.
None for Respondent.
                                   ----

                                         CORAM : K.R.SHRIRAM, J.

DATED : 21st DECEMBER 2020.

ORAL JUDGMENT :

1. This is an appeal impugning an order and judgment dated 30 th

July, 2004 passed by the Special Judge, Pune acquitting respondent

(hereinafter referred as accused) of offence punishable under Section 7

(Public servant taking gratification other than legal remuneration in respect

of an official act), Section 13 (1) (d) r/w 13 (2) of the Prevention of

Corruption Act, 1988.

2. It is the case of prosecution that accused was working as

Additional Registrar Co-operative Society (Milk), Pune. The complainant

P.W. 1 and 52 others from village Malwadi, Taluka Baramati, District Pune

decided to form a Co-operative Society under the name "Trimurti Shelya

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Mendya Sahakari Sanstha" with an object to maintain sheeps and goats and

sell their milk. They wanted the society to be registered and for that P.W. 1,

on 02/05/1997, went to the office of accused and met accused. Further he

gave details regarding the society to be formed and the objects of the

society. Certain forms were given to P.W. 1 for opening a bank account.

Accused tick marked the documents required for registering the society and

asked P.W. 1 to do the needful. On 06/05/1997, P.W. 1 met accused and

submitted all the documents. Accused perused the documents and asked

complainant P.W. 1 to come after 10 days. P.W. 1 requested accused to give

permission to open the bank account and after 10 days he will come to

of Rs.1,500/- as illegal gratification alongwith documents to be submitted.

When P.W. 1 asked accused reason for the payment, accused told P.W. 1 that

unless the amount of Rs.1,500/- is paid, society will not be registered. The

complainant informed accused that the payment of Rs.1,500/- was very

high as members of the society were poor farmers and requested accused to

reduce the amount. But accused refused to reduce the amount and said that

unless the amount is paid society will not be registered. P.W. 1 therefore

agreed to pay the amount of Rs.1,500/- and requested accused to grant

permission to open the bank account.

Accused addressed a letter to Deputy Chairman, Sheep Farm,

Gokhale Nagar, Pune and asked P.W. 1 to submit the letter to the office of

Deputy Chairman and get a certificate from there, after which permission

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will be granted to open the bank account. As concerned officer there was

on leave, P.W. 1 went again on 14/05/1997 and met clerk Mr. Shetty who

caused the certificate to be issued. P.W. 1 on 15/07/1997, at 11.00 a.m.,

went to meet accused with the certificate given by Mr. Shetty. In the office

of accused, he met clerk Mr. Shinde who informed him that accused had

gone for a meeting and then spoke to accused on telephone and informed

about P.W. 1's presence in the office. Mr. Shinde handed over telephone to

P.W. 1 and P.W. 1 spoke to accused. Accused informed P.W. 1 to hand over

the certificate to Mr. Shinde and said that Mr. Shinde will give him

application for opening bank account and he should bring that form to her

and she will sign the form and address where she could be found was with

Mr. Shinde. The complainant P.W. 1 handed over telephone to Mr. Shinde

who after speaking to accused collected the certificate from P.W. 1 and gave

him two bank account opening forms and a letter addressed to Pune District

Central Co.operative Bank Ltd. P.W. 1 was advised to obtain signature of

accused and then submit the same to the bank.

The complainant went to Common Wealth Building, Laxmi

Road, Pune on ground floor, office of the Regional Deputy Registrar Co.

operative Society (Milk) Pune. When he reached, he was informed that

accused was busy in a meeting and he waited till 1.15 p.m. When accused

came out from meeting, accused asked P.W. 1 whether he has brought the

forms and after signing the forms handed it back to complainant. P.W. 1 was

also advised to bring bank pass book on 29/05/1997 at 3.00 p.m. at which

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time he shall give Rs.1,500/- bribe as agreed and then accused will register

the society. After saying that accused went back to the meeting. After

opening the bank account and depositing a sum, a doubt came in the mind

of the complainant as to whether accused will issue registration certificate

of the society without paying bribe amount. Therefore, complainant

consulted the others who were with him to form a society, and based on

collective decision taken went to the office of Anti Corruption Bureau and

lodged the complaint. Strangely nobody accompanied him to the office of

Anti Corruption Bureau. Pre-trap procedures were followed and

panchanama was prepared and it was decided to lay a trap on 29/05/1997.

3. P.W. 1 complainant with shadow panch Jagdish Damodar Kande

went to the office of accused while others in the raiding party waited

outside. P.W. 1 and P.W. 2 meet the clerk Mr. Shinde (who has not been

examined) who took them to accused and when complainant submitted the

form accused asked the complainant as to whether he has brought the

amount. Then, after signing the documents, accused asked P.W. 1 to get it

entered in the outward register and accordingly he went to meet the

concerned clerk and deposited Rs.25/- as fees. After preparing the

certificate P.W. 1 was directed to go back to accused where he met accused

in her office. After signing the certificate accused demanded bribe amount

from P.W. 1. P.W. 1 was taking out the bribe amount from his pocket.

Accused placed an envelope in front of P.W. 1 on the table and asked P.W. 1

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to place the bribe amount in the envelope. P.W. 1 did so as instructed.

Accused took the envelope by her right hand and kept it in the drawer of

her table. The complainant went out to give signal at which time accused

took out money by her right hand and dropped it in her carry bag which

was on right side of her chair by lifting the bag by her left hand. After

complainant gave the signal, raiding party came in, caught hold both hands

of accused and when checked under ultra violet light anthracene powder

was found on the tips of thumb of accused and the adjoining fingers of her

right hand. The envelope containing the bribe amount was found in the

carry bag kept on the right hand side of her chair. The envelope was seized.

After completing post-trap formalities, report was filed and after obtaining

sanction, charge-sheet was filed. Accused pleaded not guilty and claimed to

be tried.

4. As it appears from the suggestions made in the cross-

examination and in the statement of defence filed by accused, the defence is

of total denial and false implication because P.W. 1 was annoyed with

accused. The reason being accused had granted permission for registration

of another society in the village of P.W. 1. Against that permission being

granted complainant preferred an appeal but the appeal came to be

dismissed. Revision Application has been filed before the Joint Registrar

Co-operative Society (Milk) which is pending since 1997. It is also the case

of defence that the application for opening account submitted by P.W. 1 was

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filed in the office only on 06/05/1997 and the application with a report was

sent to Deputy Director Animal Husbandry for his views. The reply was

received on 14/05/1997 and thereafter on 15/05/1997 accused granted

permission for opening account. It is also contended by defence that until

29/05/1997 the application for registration of co-operative society was not

filed as it was received only on 29/05/1997. Mr. Shinde who has not been

examined, scrutinize the application and after compliance Mr. Shinde

prepared the registration certificate and took it to accused who signed the

certificate. Mr. Shinde took that certificate out of cabin of accused and

thereafter accused does not know what happened. Accused has denied that

she ever demanded any bribe or that she kept envelope on the table or the

envelope containing bribe amount was kept in her carry bag. Moreover,

accused has even denied that the carry bag belonged to her.

5. To bring home the charge, accused led evidence of only four

witnesses namely Sanjay Maruti Danawale, Complainant as P.W. 1; Jagdish

Damodar Kande, Panch Witness as P.W. 2; Umeshchandra Balkrishna

Sarangi, Commissioner, Co-operative Societies Pune as P.W. 3; and Satish

Hiralal Ahir, Investigating Officer as P.W.4.

6. The trial court after considering the evidence held accused not

guilty by observing that there were number of omissions and contradictions.

I am in agreement with the conclusions arrived at by the trial court. The

reasons are many but some of them I list below.

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7. The complainant has stated in his complaint that the demands

were first made on 06/05/1997 by accused in her office and the second

demand was made by accused in the office of the Regional Deputy Registrar

Co. operative Society (Milk) Pune, Common Wealth Building, Laxmi Road,

Pune. P.W. 1, however, has not stated about this or the date on which the

alleged demands were made in his evidence. Even if we give the benefit of

doubt to P.W. 1 that he may not have remembered the dates exactly still he

could have stated in the evidence that he had gone to Common Wealth

Building where the second demand was allegedly made by accused. This is

a very material omission.

As per the case of prosecution, complainant met accused four

times, i.e., 02/05/1997, 06/05/1997, 15/05/1997 and lastly on

29/05/1997 when the trap was laid. According to complainant, the first

demand was on 06/05/1997 which means before the demand was made

accused met the complainant only once, i.e., on 02/05/1997. But there is

no mention in the complaint that he met accused repeatedly because in the

deposition P.W. 1 says accused asked him to come again and again and when

P.W. 1 asked accused as to why they were required to come again and again

when all documents had been filed, accused made demand of Rs.1,500/-.

But if the first demand itself has been made on 06/05/1997 and before that

P.W. 1 has met accused on 02/05/1997, I do not understand how P.W. 1 says

that accused made him come again and again and on 06/05/1997 made the

illegal demand.


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8. As noted earlier, in the complaint there is no mention about

accused calling P.W. 1 again and again to her office and then made the

demand.

9. Another omission is P.W. 1 in his deposition states that when

accused informed P.W. 1 that he has to pay illegal gratification of Rs.1,500/-

P.W. 1 told accused that he will have to consult with other members of the

society. P.W. 1 further states that after consulting with the members they

decided to approach the Anti Corruption Bureau office. All these material

facts of consulting other members and the decision taken by them to

approach Anti Corruption Bureau office is not mentioned in the complaint.

So there is material improvement in that respect in the evidence of P.W. 1.

Even if P.W. 1 has consulted the other members of the society and the

decision was taken to approach Anti Corruption Bureau office, why none of

the other members have stepped forward to give evidence to corroborate

what P.W. 1 has stated. They have not even accompanied P.W. 1 to lodge the

complaint.

10. In the cross-examination P.W. 1 admits that he filled Form

Exh.27 on 29/05/1997 after opening bank account on 15/05/1997.

Admittedly, this form Exh.27 was given to P.W. 1 on 02/05/1997 and he

submitted it on 29/05/1997. Even from the evidence of Investigating

Officer P.W. 4 it appears that the complainant had with him form Exh.27 for

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registration of society when he went to the office of Anti Corruption Bureau.

This means that until 29/05/1997 P.W. 1 has not submitted the application

form Exh.27 for registration of the society and for issuance of certificate.

Therefore, the contention about demand of bribe for issuance of certificate

even before filing and submitting the application form itself is questionable.

11. P.W. 1 in his cross-examination, however, states that application

form Exh.27 was filed in the office of accused before filing the complaint in

the Anti Corruption Bureau office. But as noted earlier, his evidence is

falsified by the Investigating Officer who says that P.W. 1 had the form of

registration of society with him when he lodged the complaint.

12. The amount was not found or recovered from the person of the

accused but found in the carry bag kept on the floor by the right hand side

of the chair of accused. Prosecution says the carry bag was on the right

hand side of accused who lifted the bag with her left hand put the envelope

inside with her right hand. That defies sense because, if the carry bag was

on the right side of accused, accused will pick it up with right hand not left

hand. This raises a doubt on the veracity of prosecution's case. As per

prosecution, it was accused who kept the money in the carry bag and before

keeping it in the carry bag, as per evidence of P.W. 1, accused took out

envelope from her drawer and placed it before P.W. 1 who kept the amount

in the envelope and pushed the currency notes into the envelope and kept

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the envelope in the carry bag. But the panch witness does not say about

accused pushing the currency notes into the envelope. Panch witness does

not state that accused kept envelope in her drawer and when the

complainant went to give signal, she picked up the envelope from the

drawer and placed it in the carry bag. This is a major contradiction. If

according to panch witness, accused placed the envelope in the carry bag

after complainant went out, I ask myself, how does P.W.1 say that accused

put the envelope in her carry bag.

13. The trial court has also mentioned about various other

omissions and contradictions from paragraph no.25 onward with which I

totally agree. It is also to be noted that even the carry bag in which the

envelope was found was not seized. P.W. 1 says accused pushed currency

notes inside the envelope but the post trap panchanama does not mention

about that. In this case, the amount is not recovered from the person of

accused but was found in a carry bag which was lying on the floor.

Therefore, issue of acceptance or recovery of amount from possession of

accused also cannot be said to have been proved beyond reasonable doubt.

14. The Apex Court in Ghurey Lal V/s. State of U.P. 1 has formulated

the factors to be kept in mind by the Appellate Court while hearing an

appeal against acquittal. Paragraph Nos.72 and 73 of the said judgment read

as under:

1   (2008) 10 SCC 450

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72. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Section 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.



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3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

15. The Apex Court in many other judgments including Murlidhar

& Ors. V/s. State of Karnataka 2 has held that unless the conclusions reached

by the trial court are found to be palpably wrong or based on erroneous

view of the law or if such conclusions are allowed to stand they are likely to

result in grave injustice Appellate Court should not interfere with the

conclusions of the Trial Court. Apex Court also held that merely because the

appellate court on re-appreciation and re-evaluation of the evidence is

inclined to take a different view, interference with the judgment of acquittal

is not justified if the view taken by the trial court is a possible view.

We must also keep in mind that there is a presumption of

innocence in favour of respondent and such presumption is strengthened by

the order of acquittal passed in his favour by the Trial Court.

16. The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat3

has held that if the Appellate Court holds, for reasons to be recorded that

the order of acquittal cannot at all be sustained because Appellate Court

finds the order to be palpably wrong, manifestly erroneous or demonstrably

unsustainable, Appellate Court can reappraise the evidence to arrive at its

own conclusions. In other words, if Appellate Court finds that there was

2 (2014) 5 SCC 730 3 1996 SCC (Cri) 972

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nothing wrong or manifestly erroneous with the order of the Trial Court, the

Appeal Court need not even re-appraise the evidence and arrive at its own

conclusions.

17. I have perused the impugned judgment, considered the

evidence, also heard Ms. Malhotra, learned APP. I do not find anything

palpably wrong, manifestly erroneous or demonstrably unsustainable in the

impugned judgment. From the evidence available on record, there is

nothing to substantiate the charge leveled against accused.

18. There is an acquittal and therefore, there is double presumption

in favour of accused. Firstly, the presumption of innocence available to

accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by

a competent court of law. Secondly, accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

strengthened by the Trial Court. For acquitting accused, the Trial Court

rightly observed that the prosecution had failed to prove its case.

19. In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

acquittal, in my view, need not be interfered with.




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20.               Appeal dismissed.

21. The Government/Appropriate Authority shall pay over to

respondent, within a period of 30 days from the date of receiving a copy of

this order, all pensionary or other benefits/dues stalled, in view of pendency

of this appeal. If during the service, in view of this matter, the promotions or

increments of accused have been affected, the concerned Authority/

Department will pay, proceed and calculate on the basis that there was no

such matter ever on record against respondent and will factor in all

promotions and increments that respondent would have been entitled to

and all the amounts shall be accordingly paid within 30 days.

After 30 days interest at 12% p.a. will have to be paid by

Government/Appropriate Authority to respondent.

No authority shall demand certified copy for reimbursing the