Nitin Nathu Wadile vs The State Of Maharashtra
2021 Latest Caselaw 7140 Bom

                                                               5-Cr.appeal-475 of 2013.doc




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO. 475 OF 2013

 Nitin Nathu Wadile
 Age : 34 Yrs. Occ : Service,
 R/o. : Medha Taluka : Roha,
 Dist. Raighdh,
 Original R/o : Dondaicha
 Taluka : Sindhkhed, Dist. Dhule.
 (At present In Kolhapur Jail)                            ... Appellant

           Versus


 State of Maharashtra                                     ... Respondent
                               .....
 Mr. Prashant M. Nagargoje i/b Mr. Sunil S. Gosavi, Advocate for
 the Appellant.
 Mr. A. R. Kapadnis, APP for Respondent - State.
                               .....

                           CORAM             :   PRAKASH D. NAIK, J.
                           RESERVED ON       :   9th DECEMBER, 2020.
                           PRONOUNCED ON :       5th MAY, 2021.


 JUDGMENT :

1. This appeal preferred under Section 374 of Code of

Criminal Procedure is directed against the impugned Judgment

and order dated 18th April, 2013 passed by the learned

Additional Sessions Judge & the Special Judge Mangaon -

Sajakali Jamadar 1 of 37

5-Cr.appeal-475 of 2013.doc

Raigad in Special Case (A.C.B.) No.1 of 2009. The appellant is

convicted for the offences punishable under Sections 7, 13(1)

(d) r/w Section 13(2) of Prevention of Corruption Act, 1988

(for short "PC Act") and sentenced to suffer rigorous

imprisonment for four years and to pay fine of Rs.1,000/- for

the offence under Section 7 of PC Act. The appellant is directed

to suffer rigorous imprisonment for five years and to pay fine of

Rs. 1,000/- for the offence punishable under Section 13(1)(d)

r/w Section 13(2) of the PC Act.

2. The prosecution case in short is as follows:

a) Complainant Harishchandra Ushirkar is the resident

of village Bhatsai, Taluka: Roha, Dist.Raigad. House No.185

situated at Village Bhatsai is owned by his wife Pramila

Ushirkar. The house was in dilapidated condition and it was

decided to reconstruct the house.

b) The complainant filed an application in the office of

Range Forest Officer, Roha (for short "RFO") with request to

conduct panchnama in respect to wood utilized in the old

house. In November, 2007 after demolishing the old house he

Sajakali Jamadar 2 of 37

5-Cr.appeal-475 of 2013.doc

kept the wood used in the old house in a heap and started

construction of the house which was completed up to plinth

area.

c) In December, 2007 accused Nos.1 and 2 visited his

house and conducted panchmana of the old wood in the house

and obtained signature of his wife. At that time the complainant

asked them whether he can start the brick work and at that time

the accused No.1 told the complainant to meet officer in the

office. The complainant was also informed that they accept

Rs.1,500/- for such work. While the brick work was in progress,

accused Nos.1 & 2 along with another employee visited the

house of complainant on 24th January, 2008 and questioned him

as to how the construction work was started without obtaining

permission. Accused No.1 told complainant to meet the officer

in the office and hush up the matter. The complainant met

accused No.2 in the forest office at Medha on 26 th January, 2008

along with his son Rajesh and made inquiry about permission.

At that time accused No.2 demanded Rs.1,500/-. The

complainant told that he will make arrangement within two

days. Accused No.1 told the complainant that he will send

Sajakali Jamadar 3 of 37

5-Cr.appeal-475 of 2013.doc

accused No.1 to accept the money and also informed him that

accused No.1 will give permission letter to him. The

complainant realized that the accused would not do the work of

panchnama unless bribe amount of Rs.1,500/- was paid to

them. Hence, he went to office of Anti Corruption Bureau (for

short "ACB") and lodged the complaint on 29th January, 2008.

d) The complaint was reduced into writing. It was

decided to lay trap. Panch witnesses were called. They reached

the office of ACB. They were told to visit the office of ACB on

29th January, 2008. The complainant and others reached the rest

house at Roha on 29th January, 2008 at 9.30 a.m. Demand was

verified. The accused reduced the amount of Rs.1,000/- and

told the complainant to give the amount to accused No.1 by

visiting his house or in his absence to his wife. Complainant

informed accused No.2 that forest guard Patil was not in his

house. Accused No.1 and his wife were not in his house and

amount could not be tendered. Accused No.2 informed the

complainant that he will send accused No.1 to his house.

e) Preparation was made for conducting trap and

anthracene powder was applied to the currency notes.

Sajakali Jamadar 4 of 37

5-Cr.appeal-475 of 2013.doc

Instructions were given to the complainant and panch

witnesses. Pre-trap panchnama was recorded. The raiding party

went to the house of complainant. Both the accused came to the

house of complainant on motorcycle. The complainant had talk

with accused No.2. As per demand of accused No.2, he tendered

bribe amount which he accepted. Signal was given to raiding

party and both the accused were arrested. Trap panchnama was

prepared. Statements of witnesses were recorded. Sanction was

obtained.

f) Charge was framed vide order dated 19th August,

2011 for the offences under Sections 7, 12, 13(1)(d) r/w

Section 13(2) of PC Act.

3. The prosecution examined PW-1 Harishchandra

Ushirkar (complainant). PW-2 Vaibhav Pandurang Kadam

(Panch witness). PW-3 Kesarinath Vinayak Godbole, Range

Forest Officer. PW-4 Chandrakant Thakaji Kende, panch witness

for voice sample of accused No.2. PW-5 Bhagwan, Chief

Conservator of Forest, Thane (Sanctioning Authority). PW-6 -

Dy.S.P. Chandrakant Ghodke. PW-7 Police Inspector, Prabhakar

Bhagwat- Investigating Officer.

Sajakali Jamadar 5 of 37

5-Cr.appeal-475 of 2013.doc

4. Statement of the accused was recorded under

Section 313 of Cr.P.C. The defence of the accused was denial.

The trial Court convicted the appellant for the aforesaid

offences, whereas accused No.1 Bhaskar Patil was acquitted.

5. The submissions of learned advocate for the

appellant can be summarized as follows :-

i) The appellant has been falsely implicated in this

case. The demand and acceptance of the bribe amount is not

proved beyond reasonable doubt.

ii) The evidence of PW-1 suffers from material

contradictions as well as improvements. PW-1 admitted that

there was no demand of bribe from the accused till the

panchnama of old wood was carried out. PW-1 has not

specifically mentioned as to who made the demand of

Rs.1,500/-.

iii) According to complainant he met appellant with his

son to request him to reduce the bribe amount. However,

evidence of PW-3 discloses that the accused was present at Roha

Forest Office for function. PW-1 has not stated at what time he

Sajakali Jamadar 6 of 37

5-Cr.appeal-475 of 2013.doc

met the appellant at his house for negotiation of the amount of

bribe.

iv) The complainant was aware that the appellant had

no authority to grant permission. Complainant was aware that

prior permission of department is necessary for construction of

house. He admitted that the accused can prepare panchanama

which is to be submitted in Roha office and the Range Forest

Officer was authorized to give permission.

v) Accused No.1 has been acquitted on the basis of

same evidence on which the appellant has been convicted. The

appellant is entitled for benefit of acquittal awarded to co-

accused. The testimony of witnesses which was inseparable and

indivisible was disbelieved in respect to some accused and used

to convict the appellant. The charges against both the accused

were identical. No appeal challenging acquittal is preferred by

the state.

vi) Demand prior to trap was not proved. There is no

independent corroboration. Presumption under Section 20 of

the PC Act cannot be invoked.

 Sajakali Jamadar                 7 of 37



                                                             5-Cr.appeal-475 of 2013.doc




           vii)     Complainant is an accomplice. His testimony cannot

be believed without material corroboration.

viii) To draw the presumption under Section 20 of PC

Act, the prosecution should prove foundational facts.

ix) The recorder was not produced before the Court.

Contents of C.D. were not proved. Sanction was accorded

without application of mind. PW-5 has admitted that he

received draft proforma. There are mistakes about date on

which Sanction Officer found it necessary to correct. Sanction

Officer did not call for information about work pending before

the appellant.

x) The complainant had started construction without

prior permission of forest department. To avoid prosecution he

has falsely implicated the appellant in this case.

xi) Demand of bribe has to be proved beyond

reasonable doubt. Mere recovery of the amount is not sufficient

to convict the accused in the absence of proof of demand.

xii) No work was pending with the appellant. PW-3 has

stated that the accused submitted his report after drawing

Sajakali Jamadar 8 of 37

5-Cr.appeal-475 of 2013.doc

panchanama. PW-1 has admitted that Range Forest Officer was

authorized to give permission. Hence, the question of

demanding the bribe amount with the complainant does not

arise. C.D. was not exhibited in evidence. Report of Forensic

Science Laboratory (for short "FSL") is not on record. Material

witnesses were not examined. Conversation does not disclose

that there was reduction of amount of bribe.

6. Learned counsel for the appellant relied upon

following decisions :

i) Dashrathsingh Chavan V/s CBI, (2019) 17 SCC 509.

ii) Suraj Mal V/s State (Delhi Administration),(1979) 4 SCC

725.

iii) Kashinath Ahire V/s State of Maharashtra 2019 SCC online Bombay 5982.

iv) Pratap M. Ghadge V/s The State of Maharashtra, (Unreported Judgment) in Criminal appeal No.898 of 2012.

v) Subhash Pandurang Jadhav V/s State of Maharashtra (Unreported Judgment) in Criminal appeal No.690 of 2015.

vi) Panalal Damodar Rathi V/s State of Maharashtra, (1979) 4 SCC 526.

Sajakali Jamadar 9 of 37

5-Cr.appeal-475 of 2013.doc

vii) Yuvraj C/o Chintaman Selokar V/s The State of Maharashtra 2012 SCC online Bombay 1110.

viii) State of Maharashtra V/s Dnyaneshwar Rao Wankhede, 2009 15 SCC 200.

ix) G.V. Nangundiah V/s State of Maharashtra, 1987 Supp. SCC 266.

x) V. Venkata Subbharao V/s State, (2006) 13, SCC 305.

xi) Mukhtiar Sing V/s State of Punjab, (2017) 8 SCC 136.

xii) Devidas V/s State of Maharashtra 2020 SCC online Bombay 1041.

xiii) Rakesh Kapoor V/s State of Himachal Pradesh (2012) 13 SCC 552.

xiv) Anuradha Anant Shitkande And Anr. V/s State of Maharashtra 2016(2) Bom. C.R. (Cri.) 168.

xv) State of Maharashtra V/s Gopal Ambadas Gawali 2020 SCC online Bombay 165.

7. Learned APP submitted that the demand and

acceptance of bribe amount is proved. There is sufficient

evidence to support the prosecution case. PW-1 and PW-2

corroborated each other. The accused have not explained as to

how tainted amount came into his possession except denial of

Sajakali Jamadar 10 of 37

5-Cr.appeal-475 of 2013.doc

charge. There is no explanation to rebut the presumption under

Section 20 of the PC Act. No question was put to the witnesses

suggested thrusting of bribe amount. The benefit of acquittal to

the co-accused cannot be given to the appellant. There was no

evidence that he demanded money. He had not accepted the

money. The recorded conversation about demand was between

complainant and the appellant. Benefit of doubt was given to

accused No.1 considering that he was merely present with the

appellant. Shadow witness was present with the complainant.

He has corroborated version of complainant. Sanction is proper.

Law does not prescribed any format for granting sanction. Work

was pending with the accused. The prosecution has established

foundational facts and hence the presumption under Section 20

of PC Act can be invoked in the present case. The accused have

failed to rebut it. The decisions relied upon by the learned

counsel for the appellant are not applicable in the present case.

8. The evidence of the witnesses and the documentary

evidence on record is required to be assessed to ascertain

whether the prosecution has established the offences against the

appellant beyond reasonable doubt. I have scrutinized the

Sajakali Jamadar 11 of 37

5-Cr.appeal-475 of 2013.doc

evidence on record.

9. PW-1 Harishchandra Ushirkar is the complainant.

According to him his house at Bhatsai is in the name of his wife.

It was in dilapidated condition and hence it was decided to

demolish it and reconstruct it at the same place. The

complainant applied for permission from forest department. He

demolished the house. The wooden poles were kept at the place

of work. Accused visited the site in 2008. They had visited one

month after the date of the application submitted by the

complainant. Appellant and the staff members visited the site

for preparing panchanama. They took measurement of wooden

poles. They permitted the complainant to start the construction

work. Both the accused arrived at the spot and demanded

Rs.1,500/- after questioning the complainant about

commencement of reconstruction. The complainant went to

Medha on 26th January, 2008 to meet accused No.2 (Appellant).

Complainant told him that he is unable to fulfill the demand

and requested for reduction the amount. The appellant insisted

that he will have have to pay Rs. 1500/- The complainant

replied that he will manage within 2/3 days. The complainant

Sajakali Jamadar 12 of 37

5-Cr.appeal-475 of 2013.doc

approached ACB and lodged the complaint (Exh.22). He was

instructed to visit office of ACB on the next day. He was

requested to visit Roha rest house on the next day. The

complainant reached rest house on 29th January, 2008 at about

9.30 a.m. Panchas were introduced to him. For verification of

demand it was decided to contact accused No.2 from cellphone.

D.V.R. was attached to the instrument. PW-1 contacted accused

No.2 on cell phone and requested to reduce the amount. After

negotiation the demand was reduced to Rs.1,000/-. He was told

that the amount be paid to accused No.1. The conversation was

recorded in D.V.R. He went to the house of accused No.1. It was

closed. In the afternoon he again contacted accused No.2 on cell

phone and told him that house of accused No.1 is closed. The

accused No.2 told him that he would come in the evening.

D.V.R. was kept on. Arrangement was made for trap. Anthracene

powder was applied to the currency notes. Instructions were

given to the panch witnesses. All of them went to the house of

complainant. At about 6.50 p.m., both the accused came on

motorcycle. The complainant requested the accused to reduce

the amount. Accused No.2 was reluctant to reduce. He

Sajakali Jamadar 13 of 37

5-Cr.appeal-475 of 2013.doc

demanded the amount. The tainted currency notes were handed

over to accused No.2 which was accepted by him by his right

hand and kept in the shirt pocket. Signal was given to raiding

party. Both the accused were apprehended. Amount was

recovered from Accused No.2 . Panchanama was recorded.

10. In the cross examination PW-1 has stated that the

application was submitted by his wife. After submitting the

application, old house was demolished. Two months thereafter

both the accused came for drawing panchanama. The

application was made in Range Forest Office, Roha. For

reconstruction of house in forest area, the department has to

prepare panchanama first and without permission

reconstruction cannot be started. He preferred application in

October, 2007 and started construction work. The application is

to be filed in the office of Roha and then forwarded to the office

of accused at Medha. The accused were empowered to prepare

panchanama and submit it to Roha office and the Range Forest

Officer was authorized to grant permission. The accused had

visited the site in December, 2007, when the work of plinth was

going on. After preparing panchanama accused was permitted

Sajakali Jamadar 14 of 37

5-Cr.appeal-475 of 2013.doc

to carry out construction, on condition that the complainant

shall pay Rs.1,500/-. Till completion of panchanama there was

no talk of money. On 21 st January, 2008 accused No.2 asked the

complainant as to why he started work without permission. The

complainant was told to visit office at Medha. On 26 th January,

2008 he visited office at Medha in the afternoon and offered

Rs.500/- to accused No.2. The accused refused to accept the

amount and demanded to Rs.1,500/- on 28 th January, 2008. He

lodged the complaint to ACB. Accused No.2 contacted twice on

phone. He admitted that he has not received permission till

today.

11. PW-2 Vaibhav Pandurang Kadam is panch witness.

According to him on 28th January, 2008 he visited office of ACB

and contacted Mr. Ghodke along with another panch Mr. Gurav.

They were instructed to visit on the next day. On 29th January,

2008 they visited rest house at Roha. Mr. Ghodke was present.

Complainant was present. They verified the complaint and

signed the same. Complainant was instructed to call accused

No.2 on his cell phone to verify demand. Complainant had

conversation with accused No.2. Speaker was kept on. They

Sajakali Jamadar 15 of 37

5-Cr.appeal-475 of 2013.doc

heard the conversation. There was talk regarding money. The

amount was negotiated to Rs.1,000/-. Thereafter, the recorded

conversation was reviewed in the presence of panch witnesses.

They came to known that, accused No.2 had demanded

Rs.1,000/-. The appellant instructed complainant to pay the

amount to accused No.1. Complainant again contacted accused

No.2 (appellant) and told him that accused No.1 is not at home.

The complainant requested him to collect money from his home.

The conversation was recorded with the speaker of cell phone

with the help of recorder. After heaing conversation, it was

decided that accused No.2 will sent accused No.1 to collect

money at the place of complainant. Trap was arranged.

Currency notes were kept with complainant. He was instructed

to complainant to accompany him. They reached Bhatsai at 6.00

p.m. He went to the house of complainant. Others waited in

front of the house of complainant. Both the accused came at the

house of complainant. The accused No.2 was requested to

reduce the amount by complainant. The accused No.2 was

reluctant to reduce. The complainant was told to collect the

documents on the next day and to pay the amount on that day.

Sajakali Jamadar 16 of 37

5-Cr.appeal-475 of 2013.doc

The complainant offered Rs.1,000/- which was accepted by

accused No.2 in his right hand and kept it in the shirt pocket.

Signal was given to raiding party and both the accused were

apprehended. Gurav took currency notes from the pocket of

accused No.2. The right hand fingers of the accused No.2 were

checked. They were having shining effect. On 30 th January, 2008

he went to the office of ACB. He was shown panchanama.

Digital voice recorder was viewed in connection with

conversation between accused and complainant. It was recorded

on C.D. with the help of computer. C.D. was sealed in envelop

and signature was obtained. Panchanama was prepared. In the

cross examination he stated that, on 29th January, 2008 he

reached Roha rest house. Complainant met Mr. Ghodke. Till

occupying chair accused did not make any demand of money.

He do not remember whose hands were checked first under

ultra violate rays. Dy.S.P. Mr. Ghodake prepared panchanama of

voice recorder. The verification panchanama was marked as

Exh.25. It contains the script of conversation between

complainant and accused No.2. The pre-trap panchanama was

marked as Exh.26. It also contains the script of conversation

Sajakali Jamadar 17 of 37

5-Cr.appeal-475 of 2013.doc

between complainant and accused No.2. The trap panchanama

was marked as Exh.27. The script of conversation is recorded in

the said panchanama. The panchanama relating to opening of

envelope containing voice recorder were marked as Exh.29.

12. PW-3 Kesrinath Godbole is the Forest Officer. He

stated that accused No.2 was forester and accused No.1 was

forest guard. Village Bhatsai is within his jurisdiction. Accused

No.2. being round officer of Medha and Bhatsai comes under his

jurisdiction. If the wood in the existing house on its demolition

is reused in the reconstruction prior permission from the Forest

Officer is must. The owner has to seek permission from the

forester through Range Forest Officer and then it is forwarded

to forester for inquiry. During inquiry, forester has to see that

the owner is using old wooden logs at the time of reconstruction

of premises. He has to measure width and length of the logs and

to ascertain whether new wooden log is included. Application

of Pramila was received by the office. Inquiry was given to

accused No.2. He has perused the panchanama prepared by

accused No.2. It was not signed by him. There was no date

mentioned by him on it. He recorded statement of Smt.

Sajakali Jamadar 18 of 37

5-Cr.appeal-475 of 2013.doc

Ushirkar. It was not signed by him and no date was mentioned.

Forester has enclosed the certificate along with papers that new

wooden logs are not included therein. No date was mentioned

in the certificate. He found some short falls and hence

forwarded to forester to comply them. He made endorsement

about shortfalls on the report forwarded by accused No.2 dated

16th January, 2008. Documents were exhibited as Exh.35 to 44.

On 29th January, 2008 Mr. Ghodke informed him that the

accused were taken in custody. As permission was not granted

by him, the proposal was pending with accused No.2. Accused

No.1 is expected to help accused No.2 being guard. In his cross

examination he deposed that, RFO is empowered to grant

permission. Forester is expected to present the report. Applicant

came personally in the office with application on 15 th November,

2008. Acknowledgment was given by office. After submitting

report the work was not pending with him. He had informed the

Investigating Officer that till the date of trap the proceedings

were pending in the office, though it was given to the forest

guard. The proceedings were handed over to forest guard for

sending it to accused No.2. Till the trap it was not forwarded to

Sajakali Jamadar 19 of 37

5-Cr.appeal-475 of 2013.doc

him. On 26th January, 2008 there was flag hoisting and it was

public holiday. Both the accused were present at Roha Forest

Office for flag hoisting. As the office had received the report of

forester, work was not pending with him. On 29 th January, 2008

for some time the acused was present in the office of Roha. He

visited the office. It is not true that accused was not entrusted

with the work to prepare panchanama.

13. PW-4 Chandrakant Kende was called for

panchanama in ACB office on 5th March, 2008. According to him

accused No.2 was present when he went to office. Dy.S.P.

Ghodke viewed the digital voice recorder. He had gone through

the contents of panchanama. Voice sample of accused No.2 was

recorded. With the help of computer, C.D. was prepared. C.D

was viewed. In the cross examination he stated that, there were

four persons in the room. After completing panchanama, Dy.S.P.

obtained his signature. He was unable to tell how many

windows were situated in the room. Recording was done with

the help of computer. There may be computer or laptop for

recording C.D. At the time of recording accused was present.

C.D. was viewed in their presence. Panchanama was signed by

Sajakali Jamadar 20 of 37

5-Cr.appeal-475 of 2013.doc

them. The voice sample panchanama was marked as Exh.46.

14. PW-5 Shri. Bhagwan was the Chief Conservator of

Forest, Thane. He stated that the accused were serving as forest

guard and forester in Medha circle of Roha office. He has

powers to remove forester and forest guard from services. He

received case papers on 12th January, 2009 from ACB. He stated

that he had gone through FIR, verification Panchanama, script

of the conversation between complainant and accused, pre-trap

and post-trap panchana, statement of witnesses and other

documents. He was satisfied that there is sufficient material

against both the accused. He issued sanction order dated 3 rd

March, 2009. In the cross examination he deposed that he had

received draft proforma of sanction order. Range Forest Officer

is expected to grant permission after receiving panchanama

from forester. He received papers from ACB Thane on 10th

January, 2009. He did not call for papers from DFO. He called

his report. The owner of the house has to file his application for

seeking permission. He did not go through the panchanama of

old used wood. On perusal of documents it is transpired that

there is no motive behind crime. Sanction can be refused. He

Sajakali Jamadar 21 of 37

5-Cr.appeal-475 of 2013.doc

had not collected information whether any offences are pending

against complainant about theft of forest wood. In case of

construction without permission of forest the owner can be

prosecuted for offences under Sections 41, 45, 46, 47, 48 & 49

of Forest Act. In the first report submitted by him to RFO, there

was no signature. He has not verified whether the report was

reported to accused No.1 or not. Before granting sanction he

had gone through copy of FIR, panchanama and other papers of

investigation. On page of sanction date is mentioned as 3 rd

February, 2009 which was corrected by him as 3 rd March, 2009.

On the last page of sanction order he has not mentioned place

where signature was made. He did not put date below his

signature. He did not make any inquiry whether work was

pending with forester on the day of trap. He called report of

DFO. He did not call report of RFO before according sanction.

The sanction order is marked as Exh.50.

15. PW-6 Chandrakant Ghodke was Dy.S.P. ACB, Raigad.

He narrated the incident right from inception. He referred to the

complaint of PW-1. Arrangement of trap, verification

panchanama, pre-trap panchanama etc. He also referred to

Sajakali Jamadar 22 of 37

5-Cr.appeal-475 of 2013.doc

recording in digital voice recorder. The execution of trap and

recovery of tainted money from the accused, traces of

anthracene powder were seen on the right palm and left shirt

pocket of accused No.2. The panch No.2 was asked to take out

the bribe amount from the pocket of accused No.2. The amount

was examined in the ultra violet rays and shining was seen.

Anthracene powder was noticed on the right palm and fingers

of accused. On inquiry, accused No.2 stated that the papers

relating to work of complainant were kept in office of Medha.

All of them went to Medha by Jeep. He filed report with police

station. Investigation proceeded. The D.V.R. was taken out and

data was transmitted to C.D. with the help of computer. C.D. It

was shown to panch witnesses. C.D. was played before the

panch witnesses. C.D. was sealed. The data in the D.V.R. was

deleted. The panchanama of preparation of C.D. was marked as

Exh.29. On 15th January, 2008 the pending work of complainant

was sent to R.F.O. Roha. The report was marked after

completing work of complainant. He did not make any inquiry

about complaint made by accused against complainant

regarding theft of forest teak wood. During investigation it was

Sajakali Jamadar 23 of 37

5-Cr.appeal-475 of 2013.doc

revealed that, accused No.2 had sent the work of complainant

to R.F.O. He did not verify the register of R.F.O. as to whether he

had sent the permission of complainant to the office of accused.

He did not make inquiry with R.F.O. regarding pendency of

permission of complainant. He did not receive copy of C.D.R.

from the office of BSNL. The C.D. in respect of transcript is

produced along with charge-sheet in the Court. From the

evidence of this witnesses it can be seen that there was not

defence of thrusting currency notes, put to this witnesses.

16. PW-7 Prabhakar Bhagwat was attached to ACB,

Raigad in 2008. He received pre-trap panchanama, complaint,

post-trap panchanama, verification panchanama and other

documents. He recorded statement of complainant and panch

witnesses. He recorded statements of Police officers in raiding

team. On 5th March, 2008 he called panch witnesses from

collector office for collecting voice sample of accused No.2. The

script recorded on 29th January, 2008 was given to accused No.2

for reading. Accused No.2 read over the script in the presence of

panch witnesses and the voice of accused was recorded in D.V.R.

with the help of computer, C.D. was prepared about voice

Sajakali Jamadar 24 of 37

5-Cr.appeal-475 of 2013.doc

sample from D.V.R. It was verified that in the C.D. the voice

sample was recorded. Signatures of panch witnesses and

accused No.2 were obtained. C.D. was sealed in envelope and

signatures of panch witnesses were obtained. On the script

signatures of panch witnesses were obtained. The data in D.V.R.

was deleted. Panchanama of voice sample was prepared. On 27 th

March, 2008 C.D. was sent to FSL kalina. Papers were sent to

Chief Conservator of Forest for sanction. On 17th February, 2009

sanction was received. Charge-sheet was filed. He recorded

statement of R.F.O. Shri. Godbole. He seized the documents

Exh.35 to 44 from Shri. Godbole. The report in respect to voice

recording and C.D. is not received from FSL Kalina, Mumbai. In

the cross examination he stated that he did not obtain

permission of the Court while recording voice sample of accused

No.2. The C.D. was in his custody till it was sent to FSL Kalina.

No expert was called while obtaining voice sample. Mr. Ghodke

handed over investigation to him. He did not record statements

of neighbours of complainant. R.F.O. Godbole had sent back the

proposal of complainant since some documents were lacking.

He did not verify how many times work of complainant were

Sajakali Jamadar 25 of 37

5-Cr.appeal-475 of 2013.doc

sent back to the office of accused. He did not investigate as to

where the proposal of complainant was pending on 30th

January, 2008. The log book of jeep and the record of rest house

was not seized. No C.D.R. was called from BSNL.

17. On the basis of the evidence adduced by the

prosecution, the appellant/accused No.2 was convicted and

accused No.1 was acquitted. In paragraph-27 of the Judgment

it was observed that the accused No.2 being the forester and

public servant, so as to complete the work of preparation of

panchanama and submission of report to the office of R.F.O.

demanded and accepted bribe amount of Rs.1,000/- from

complainant. However, accused No.1 cannot be said to have

committed the offence under Section 12 of P.C. Act.

18. The scrutiny of evidence of PW-1 (complainant)

reveals that, according to him his house bearing No.185 was in

dilapidated condition and he decided to reconstruct the same.

The house stands the name of his wife. He intended to use the

old teak wood used in the house for the purpose of

reconstruction and for that it was necessary to obtain

permission from Range Forest Officer, Roha. Accordingly

Sajakali Jamadar 26 of 37

5-Cr.appeal-475 of 2013.doc

application was submitted by complainant's wife on 23rd

November, 2007. The Range Forest Officer forwarded

application to accused No.2 (appellant) on 26 th November,

2007. The evidence of PW-3 shows that the work in respect of

preparation of panchanama of accused No.2, who is the forester

and on receipt of report of forester, the Range Forest Officer is

expected to issue the permission for reuse of the old wood.

Although the deposition of complainant would indicate that,

permission required for reconstruction of the house the primary

issue was with regards to the permission for reuse of the old

wood utilized in the house and it is reused for constructing new

house.

19. The evidence on record discloses that, after

submission of application for reuse of the wood, the appellant

and the co-accused had been to the house of the complainant

for taking measurement of old wood and obtained signature of

his wife. According to complainant, he was allowed to start the

construction work. According to him the accused again visited

his house and questioned him as to how he started construction

of house and demanded amount of Rs.1,500/-. On 26 th January,

Sajakali Jamadar 27 of 37

5-Cr.appeal-475 of 2013.doc

2008 the complainant went to Medha to meet appellant. At that

time he had discussion with the accused and that accused had

demanded Rs.1,500/- as bribe for completion of work. The

complainant realized that accused would not do his work and

hence, lodged this complaint to ACB. PW-6 recorded his

complaint on 28th January, 2008. The complainant was called on

29th January, 2008 at the rest house. The complainant visited

the rest house. He contacted accused No.2 on cell phone.

Amount was reduced to Rs.1,000/-. The amount was to be paid

to accused No.1 in the evening. The said conversation was tape

recorded. The complainant went to house of accused No.1. He

found that the door was closed. He contacted accused No.2 and

informed about it. He was informed by accused No.2 that he

would come in the evening. Accused Nos.1 & 2 came on

motorcycle on 29th January, 2008 at about 6.50 p.m. The

amount was accepted by the accused No.2 (appellant). He kept

it in the shirt pocket. He was caught by the raiding party and

taken to guest house. Further, procedure was followed. Pre-trap

& post-trap panchanama are on record. The cross examination

of complainant does not affect the core of his testimony about

Sajakali Jamadar 28 of 37

5-Cr.appeal-475 of 2013.doc

demand and acceptance of bribe amount.

20. PW2- Vaibhav Kadam acted as panch witness. He has

referred to the complaint, verification of demand and trap. He

also stated that the conversation between accused and

complainant was on record. It was heard. The voice recorder

was viewed on 30th January, 2008. Conversation was

transmitted into C.D. and it was sealed. Panchanama Exh.29

was prepared. The shadow panch witness was cross examined.

He has corroborated the testimony of PW-1. The bribe amount

was accepted in his presence. Although he was cross examined,

there is nothing on record to doubt his testimony. The demand

and acceptance of bribe amount is corroborated through his

evidence.

21. PW-3 Kesarinath Godbole is the RFO. His evidence

discloses that the permission is required for re-using the wood

from old house. The application is forwarded to forester for

inquiry. The forester has to see that the owner is using old wood

in reconstruction and is required to ascertain if new wood is

used. In that regard inquiry was conducted by the appellant and

panchanama was prepared by him. The defence has strenuously

Sajakali Jamadar 29 of 37

5-Cr.appeal-475 of 2013.doc

urged that no work was pending with the appellant and thus the

question of demanding bribe amount from the complainant does

not arise. The accused had already performed his duty by

recording statement of the owner of the house, issuing

certificate, recording panchanama of used wood and submitted

the report to Range Forest Officer. Hence, no work was pending

from the side of the appellant. It is also contended by the

accused that PW-3 has admitted that no work was pending with

appellant. The motive for falsely implicating the accused is that

the complainant was apprehending action of law for

commencement of reconstruction of house without permission.

The defence has not established such motive.

22. It is pertinent to note that, Exh.35 to 44 are relating

to the application of complainant's wife, inquiry conducted by

the appellant and the report submitted to Range Forest Officer.

Those documents were admitted by the accused and adduced in

evidence as Exh.35 to 44. It is pertinent to note that, the

evidence discloses that Range Forest Officer is authorized to

issue permission for reuse of teak wood but for that purpose it is

necessary that there should be report and the panchanama

Sajakali Jamadar 30 of 37

5-Cr.appeal-475 of 2013.doc

submitted to him by forester working under him and only after

receipt of the papers to that effect Range Forest Officer is in

position to issue permission. Undisputedly, the appellant was

working as forester with PW-3 and he was entrusted with the

work of preparation of panchanama about the old wood and

submission of the report to that effect. The wife of complainant

Pramila submitted application on 23rd November, 2007 to PW-3

for permission to reuse the wood in reconstruction of the house.

In view of order Exh.36 dated 26th November, 2007 Range

Forest Officer directed the forester (appellant) to effect the

inquiry about the old wood and prepare panchanama about the

same and submit the report to that effect. In pursuant to that,

appellant prepared panchanama and also measured the wood

and recorded statement of Pramila Ushirkar and issued

certificate. On 15th January, 2008 the appellant forwarded the

above documents to PW-3 for issuing permission. On the report

Exh.35, PW-3 endorsed remarks and re-forwarded the

documents to appellant for necessary compliance since there

was no date on panchanama, no date on the statement of

Pramila and he did not put his signature to show that statement

Sajakali Jamadar 31 of 37

5-Cr.appeal-475 of 2013.doc

was recorded in his presence. Certificate did not contained date.

Thus, there were short falls as deposed by PW-3. The evidence

of PW-3 in examination-in-chief categorically depicts that he

had made endorsement about short falls on the report

submitted by the appellant. The endorsement was made on 16 th

January, 2008. In the cross examination he admitted that Range

Forest Officer is empowered to grant permission and forester is

expected to present the report. Exh.35 is signed by appellant.

However, PW-3 in his cross examination has stated that after

submitting the report, the work was not pending with him.

He had stated to Investigating Officer that till the date of trap

the proceedings were pending in the office though it was given

to forest guard. The proceeding is handed over to forest guard

for sending it to accused No.2. Till trap it was not forwarded to

him. The trial court aptly described the conduct of PW-3. From

the examination-in-chief of said witness it is clear that, on 16 th

January, 2008 he had noted short falls in the report submitted

by the appellant and it was to be complied by the appellant.

However, in the cross examination he stated that the work was

not pending with the appellant. In paragraph-19 of the

Sajakali Jamadar 32 of 37

5-Cr.appeal-475 of 2013.doc

impugned Judgment of the trial Court has observed that PW-3

has wrongly admitted in cross that the office has not received

the report, no work was pending qua forester. This admission

was given by PW-3 to save the appellant. The evidence and

noting by Range Forest Officer on the report (Exh.35) submitted

by accused-appellant indicate that there are reasons to believe

that the work with regards to preparation of panchanama and

submission of the report was pending with accused. I have

perused the note dated 16 th January, 2008 which mentions that

the panchanama does not contain the date, there is no

endorsement on the statement by the accused that it is recorded

in his presence and that on completing the inquiry the same

may be placed for granting approval.

23. The prosecution is relying on the conversation

between the accused and complainant. The voice samples of the

accused were obtained and CD was prepared. This is evident

from the deposition of PW-4. The evidence of PW-3 also

discloses that voice recorded was viewed on 30 th January, 2008

and the conversation was recorded on C.D. which was sealed.

The documents such as complaint, pre-trap & post-trap

Sajakali Jamadar 33 of 37

5-Cr.appeal-475 of 2013.doc

panchanama, panchanama relating voice samples of the accused

were proved in evidence. It is contended that C.D. was not

played in Court. PW Nos.6 & 7 discloses that the voice samples

of the accused was collected. CD was sent to FSL. PW-7 has

stated that the report was not received. Thus, FSL report do not

support the prosecution case. However, only on that ground the

prosecution cannot be discarded. Demand and acceptance of

bribe amount has been proved beyond all reasonable doubt. The

appellant has not been able to rebut the presumption under

Section 20 of the PC Act.

24. The defence of the appellant is that the amount was

thrusted on his person. It is pertinent to note that such

suggestion is not given to any of the witnesses during their cross

examination at the instance of accused. While answering the

questions put to the accused under Section 313, it was not

stated by appellant that the amount was thrusted on his person.

For the first time while tendering the written notes of arguments

by the appellant it was contended that the amount was thrusted

on his person. The defence of the accused is not plausible and

cannot be accepted.

Sajakali Jamadar 34 of 37

5-Cr.appeal-475 of 2013.doc

25. It is the case of the accused that since the permission

to reconstruct was not granted and without such permission the

complainant has reconstructed the house, he was apprehending

action from the accused and falsely implicated him in the crime.

There is nothing on record to show that any action regarding

reconstruction was initiated by the accused or Range Forest

Officer. There is no motive for the complainant to falsely

implicate the accused. The accused gave suggestion that he

came to inform complainant that they had come to the

complainant to take permission from Range Forest Officer.

Therefore, the accused admitted their visit on the day of trap.

There is nothing on record to show that the permission is

required for reconstruction and forest department is concerned

about it. It is pertinent to note that the application was for reuse

of old wood and to ascertain whether new wood is used.

26. It is also contended that the co-accused was

prosecuted on the basis of the same evidence was acquitted by

the trial Court and hence the benefit be given to the appellant.

The court has disbelieved the evidence of witnesses qua acquittd

accused. However, the benefit of doubt is given to the co-

 Sajakali Jamadar                  35 of 37



                                                                 5-Cr.appeal-475 of 2013.doc




 accused.           The    prosecution   has   established       demand             and

acceptance of the bribe amount qua the appellant. The

conversation with regards to demand is between complainant

and the appellant. The amount was accepted by the appellant.

The amount with anthracene powder was recovered from the

appellant. Hence, the said submission is devoid of merits.

27. Learned counsel for the appellant relied upon

several decisions. I have perused the said decisions. The same

are not applicable in the present case. The facts of this case are

different.

28. It is also submitted that, sanction granted for

prosecution is invalid. I have perused the evidence of

sanctioning authority and the sanction order. Except minor

discrepancy, I do not find that there was non application of

mind on the part of the sanctioning authority. No fault can be

found with the sanction order.

29. In view of the above observations, I do not find that

the trial Court has committed an error in convicting the

appellant. The prosecution has established its case beyond all

Sajakali Jamadar 36 of 37

5-Cr.appeal-475 of 2013.doc

reasonable doubt. Hence, the appeal is devoid of merits and

deserves to be dismissed.

ORDER

i) Criminal Appeal No.475 of 2013 is dismissed.

ii) The impugned Judgment and order 18th April, 2013 passed by the learned Additional Sessions Judge & the Special Judge Mangaon - Raigad in Special Case (A.C.B.) No.1 of 2009 for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 is confirmed.

iii) The appellant is granted time of twelve weeks to surrender before the trial Court.

iv) Appeal stands disposed of accordingly.

                                                (PRAKASH D. NAIK, J.)




 Sajakali Jamadar                  37 of 37