The State Of Maharashtra vs Dnyandeo Vithal Lakade And Ors
2021 Latest Caselaw 8603 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO. 733 OF 2004

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

1. Dnyandeo Vithal Lakade
Age : 54 years,
Occup.: Service
2. Minakshi Dnyandeo Lakade
Age : 49 years,
Occup.: Household
3. Amol Dnyandeo Lakade
Age : 28 years,
Occup.: Education
4. Sangram Dnyandeo Lakade
Age : 27 years,
Occup.: Education
5. Sagar Dnyandeo Lakade
Age : 24 years,
Occup.: Education
All R/at Nira, Taluka - Purandar,
District - Pune.                                       ....Respondents
                                                       (Orig. Accused)

                                            ----
Ms. M.M. Deshmukh, APP for State.
Ms. Heena Suvarnakar i/b Mr. K.S. Patil for Respondent Nos.1 to 5.
                                   ----

                                         CORAM : K.R.SHRIRAM, J.

DATED : 30th JUNE, 2021.

ORAL JUDGMENT :

1. This is an appeal impugning an order and judgment dated 31 st

May, 2003 passed by the Special Judge, Baramati at Baramati acquitting the

respondents (hereinafter referred as accused) of offence punishable under

Section 13 (2) (Criminal misconduct by a public servant ), r/w Section 13 (1) (e) Purti Parab

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of the Prevention of Corruption Act, 1988 and under Section 109

(Punishment of abetment if the act abetted is committed in consequence and where no

express provision is made for its punishment) of the Indian Penal Code.

2. This is a case where the state should not have even approached

the court by way of this appeal. Having perused the evidence and the

impugned judgment with the assistance of learned Addl. P.P. and

Ms.Suvarnakar for respondents, I would agree with the observations of the

trial court that this is an example of the worst investigation and a deliberate

harassment to all accused. If one considers the examination-in-chief of the

prosecution and for a moment not look at the cross-examination, still

absolutely no offence is made out against accused.

3. It is the case of prosecution that Accused No.1 who has since

expired joined as Junior Engineer in Irrigation Department in the year 1973.

In the year 1980 he was promoted as Deputy Engineer at Takli Sikandar,

Bhima Patbandhare, Up-Vibhag, District Solapur. He was Class II

Government Servant. Accused No.2 is wife of Accused No.1 and Accused

Nos.3, 4 and 5 are sons of Accused Nos.1 and 2. It has come on record that

when the FIR was lodged Accused No.3 Amol had already completed his

Diploma in Engineering and was doing some construction business and

Accused No.5 Sagar had completed his course in engineering. It appears

Accused No.4 Sangram was studying M.B.B.S.

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4. It is the case of prosecution that Accused No.1 for the period

1973 to 1995 had a total income of Rs.12,86,009/- from all sources. The

total expenditure of the family of accused was Rs.18,60,490/- for the said

period and therefore the expenditure of the family was more than the total

income to the extent of Rs.5,74,481/-. It is also alleged that the total assets

and property of accused is Rs.20,20,889/- and that would mean that

accused had accumulated assets and property disproportionate to the

income of the family by a sum of Rs.25,95,370/-. It is alleged that Accused

Nos.2 to 5 have abeted Accused No.1 to accumulate the said property and

assets.

5. P.W. 1 Dy. S.P. Ramchandra Awade of A.C.B. Pune therefore

drew such an inference and lodged FIR at Baramati City Police Station on

29/12/1998. Accordingly a crime was registered and investigation was

commenced by P.W. 1 himself at the initial stage. It is also alleged by

prosecution that before lodging FIR by P.W. 1 a preliminary inquiry was

made by two other police inspectors of A.C.B. Pune and the FIR is based on

the report of that preliminary inquiry. Admittedly, preliminary inquiry

report is not brought on record. After completing investigation, charge-

sheet was filed and accused pleaded not guilty. According to accused, and

rightly so, the investigation was not done properly. Prosecution has not

taken into consideration all the figures of income and expenditure properly

and that they were called by the Investigating Officer P.W. 4 Suresh

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Deshpande on several occasions and illegal demand of money was made to

them by P.W. 4 Deshpande. As they did not pay amount this false charge-

sheet has been filed only to harass them.

6. To bring home the charge, prosecution has examined four

witnesses viz., Ramchandra Raghunath Awade, Dy. S.P., Complainant as P.W.

1, Dnyaneshwr Rajaram Shinde, Agricultural Officer as P.W. 2, Jyo Sebastian

D'souza, Ex-Principal of Shivaji Preparatory Military School, Pune as P.W. 3

and PI Suresh Sudhakar Deshpande, Investigating Officer as P.W. 4.

7. P.W. 1 Ramchandra Raghunath Awade has admitted that papers

of preliminary inquiry based on which he drew an inference against accused

and the FIR was lodged has not been produced on record. He does not

know where those papers are. Therefore, the entire foundation of the case

is itself lost.

P.W. 1 also admits in his deposition that he simply lodged FIR on

29/12/1998 and on the next date, i.e., on 30/12/1998 he was transferred

and he does not know anything about further investigation. He also says

that he has not personally gone through the record of the dairy business of

accused and other business and he did not go through the receipts of those

income of accused or that he never called upon accused to submit receipts

or papers of the total income and expenditure before lodging FIR. P.W. 1 has

lodged FIR purely on the basis of letters that he received from his superior

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officer and he has no personal knowledge.

P.W. 1 says after he received letter from his superior officer he

gave directions to the officers of Pune and Satara A.C.B. to visit other

houses and property of accused and to do the needful. If he himself was the

Investigating Officer of the crime, there is no explanation as to why he did

not go personally to Pune and Satara to investigate and how could he

delegate the job to somebody who had no concern with the investigation.

8. P.W. 1 says that one Police Inspector Atmacharan Shinde and

another Police Inspector Kohinkar have conducted preliminary inquiry. Not

only their report is not on record even these persons have not been called to

testify. Perhaps these two persons in their preliminary report have opined

that there was no disproportionate income of accused otherwise why would

the preliminary report of these two person has been kept away from the

court. The complainant has admitted that in the FIR expenditures have

been repeated. It has not been mentioned in which year the expenditures

were incurred and that certain properties were jointly in the name of

Accused No.2 and brother of Accused No.1. But the expenditure on these

properties have been added to the expenditure of Accused No.1. P.W. 1 has

admitted that one of the property Amol Bunglow which stood in the name

of Accused No.2 and brother of Accused No.1 has been shown as that of

Accused No.2 and he says that he mentioned total figure because it was

mentioned in the preliminary inquiry report. That itself shows non

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application mind of P.W. 1 and perhaps it was another reason for not

producing report of preliminary inquiry.

9. P.W. 1 says that chart of income and expenditure etc., was

prepared by one PI Mane who is not a witness. P.W. 1 says that in the FIR he

has shown total income of Rs.12,86,000/-, total expenditure of

Rs.18,60,490/- and the value of total assets is shown as Rs.20,20,889/-. But

he admits that in the chart prepared by PI Mane which is at Exh.171, the

total assets is shown as Rs.11,41,997/-. He further admits that total income

shown by him in the chart is Rs.25,96,440/- and the total expenditure is

Rs.20,14,725/- but he does not know how the difference has arisen. There

are many such defects.

P.W. 1 says he does not know that father of Accused No.1 is

having ancestral property and he does not know if they had different

business of trucks, tractors etc., even though in the FIR, it is mentioned that

Accused No.1 has ancestral land and huge ancestral agricultural land at

different places in Pune and Satara district. Still the complainant has not

taken into consideration income of these agricultural lands in proper

perspective. P.W. 1 admits that total income for 20 years, he has taken from

agricultural land was Rs.2,80,000/- only but is unable to answer can such

large parcels of ancestral land amount as mentioned in the FIR fetch only

this much amount in 20 years.

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10. There are many such other defects in the evidence of P.W. 1

noted by the Trial Court.

11. P.W. 2 Dnyaneshwr Rajaram Shinde is an Agricultural Officer of

Pune and he says at the material time one Takalkar was working as

Statistician and Takalkar has sent some letters to A.C.B. Pune. P.W. 2 says he

has no personal knowledge about the assessment made by Takalkar and

Takalkar is not a witness.

12. P.W. 3 Jyo Sebastian D'souza states that the information

regarding fees of Accused No.3 and Accused No.4 was prepared by clerk and

not by him and the concerned clerk has not been examined. P.W. 3 also says

that there is no record to show that Accused No.3 and Accused No.4 were

studying in their school in the year 1980 to 1984.

13. P.W. 4 PI Suresh Sudhakar Deshpande says that he took search

of flat and prepared panchanama though these flats were not in the

jurisdiction of his police station. In his cross-examination P.W. 4 admits that

he has not shown any income or expenditure for the period 1996, 1997 and

1998 or made any inquiry. P.W. 4 says that prior to him one Kohinkar made

inquiry in this matter and he has not seen all the papers of that inquiry

conducted by Kohinkar.

P.W. 4 says that there is Gift Deed on record of a land worth

Rs.4,00,000/- but that has not been considered.

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14. Therefore, in view of the number of mistakes in the figures of

income and expenditure and the fact that various other income have not

been correctly considered and the fact that figures of income and

expenditure shown by complainant were based on incorrect preliminary

inquiry report, the Trial Court has rightly concluded that the prosecution has

miserably failed to prove the charge against accused. Though sons of

Accused No.1 and Accused No.2 were already doing business, their income

have not added in the preliminary inquiry report.

15. In the circumstances, conclusion arrived at by the Trial Court

cannot be faulted and no interference is called for.

16. The Apex Court in Ghurey Lal Vs. State of U.P.1 has culled out

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:

72. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under sections 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.

1     (2008) 10 SCC 450

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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.

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.

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17. The Apex Court in many other judgments including Murlidhar

& Ors. Vs. State of Karnataka2 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.

18. The Apex Court in Ramesh Babulal Doshi Vs. State of Gujarat 3

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

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.

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

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19. I have perused the impugned judgment, considered the

evidence, also heard Ms. Deshmukh, learned APP and Ms. Heena

Suvarnakar. 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.

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

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

the accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless they are 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 Sessions Court

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

21. 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.

22. Appeal dismissed.

23. The Government/Appropriate Authority shall pay over to

Respondent Nos.2 to 5, within a period of 30 days from the date of receiving

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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 No.1 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 Accused No.1

and will factor in all promotions and increments that Accused No.1 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 Nos.2 to 5.

No authority shall demand certified copy for reimbursing the

benefits/dues as directed above. All to act on authenticated copy of this

order. Certified copy expedited.

(K.R. SHRIRAM, J.)

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