Bombay High Court
Vishwas Hanumantrao Gurav vs The State Of Maharashtra on 28 April, 2022
Bench: R. G. Avachat
Cri. Appeal Nos.321 of 327 of 2010.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.321 OF 2010
Sanjay Mansaram Meshram,
Age:42 years, Occ. Service,
r/o. 95-B, New Shantiniketan Colony,
Behind Akashwani, Aurangabad ..Appellant
(Orig. Accused no.1)
Vs.
The State of Maharashtra ..Respondent
AND
CRIMINAL APPEAL NO.327 OF 2010
Vishwas s/o. Hanumantrao Gurav,
Age:35 years, Occ. Labour,
r/o. Mangrul, Tq. Tuljapur,
Dist. Osmanabad ..Appellant
(Orig. Accused no.2)
Vs.
The State of Maharashtra ..Respondent
----
Mr.S.N.Patil, Advocate for appellant in Cri. Appeal No.327 of 2010
Mr.Joydeep Chatterji, Advocate for appellant in Cri. Appeal No.321 of
2010
Mr.G.O.Wattamwar, APP for respondent
----
CORAM : R.G. AVACHAT, J.
DATE : APRIL 28, 2022
JUDGMENT :-
Both these appeals are decided by this common
judgment and order since the challenge therein is to one and the
same judgment and order dated 04.08.2010 passed by learned
Special Judge, Osmanabad, in Special Case (AC) No.5 of 2008.
Vide impugned judgment and order, the appellants herein have been
convicted for the offences under Sections 7, 13(1)(d) and 13(2) of
the Prevention of Corruption Act, 1988 ("the Act", for short) and
therefore, sentenced to suffer rigorous imprisonment for one year
and to pay a fine of Rs.1,000/- and for two years and to pay a fine
of Rs.2,000/-, respectively. In default of payment of fine, they have
been directed to suffer rigorous imprisonment for three months.
2. For the sake of convenience, the appellants herein are
referred to as per their status before the trial Court.
3. The facts, giving rise to the present appeal, are
as follows:-
PW 1 - Arun Bhange (complainant) was resident of
village, Dudhalwadi, Tq. Kallam, Dist. Osmanabad. He would do the
work of erecting electrical poles, setting overhead electricity
transmission wires and installation of distribution panel (D.P.) as
well. The Maharashtra State Electricity Board (M.S.E.B.)(now
M.S.E.D.L.) had sanctioned installation of D.P. in the field of one
Ramhari Munde. Said Ramhari and six-seven farmers were going to
be benefited thereby. All the articles and instruments required for
installation of the D.P. were to be supplied by Sanjay Meshram
(accused no.1/appellant in Criminal Appeal No.321 of 2010). The
complainant had, therefore, paid accused no.1 Rs.12,500/- as bribe.
Said amount was contributed by the farmers to be benefited. The
complainant had installed a transformer at the site on 22.12.2006.
The D.P., however, could not be made functional for want of cable.
The complainant had, therefore, requested accused no.1 to supply
him the required cable. Accused no.1 made him demand of
Rs.3,000/- as a bribe and asked him to come his home with money
next day before 9.00 in the morning.
4. Since the complainant did not wish to pay accused no.1
the bribe, he approached Anti Corruption Bureau (A.C.B.),
Osmanabad. The Deputy Superintendent of Police - Shaikh
recorded the complainant's statement-cum-complaint (Exh.44).
The Dy.S.P. decided to lay a trap. He, therefore, secured presence of
two Government officials to work as panch witnesses. The Dy.S.P.
gave requisite instructions to the complainant and both the panch
witnesses. A pre-trap panchnama (Exh.40) was prepared. It was
specifically instructed to the complainant not to pay the bribe money
unless and until demand was made therefor. Then, the raiding party
set out for a trap.
5. The complainant accompanied by PW 2 - Ashok (shadow
witness) went to the house of accused no.1 early in the morning.
Since he (accused no.1) was fast asleep, they went back and again
came to accused no.1's house after an our. That time, Vishwas
Gurav (accused no.2/appellant in Criminal Appeal No.327 of 2010)
was present at accused no.1's house. The complainant asked
accused no.1 to give him cable. Accused no.1, in turn, informed him
to have instructed accused no.2 to do the needful and he should
meet accused no.2 in the store room/godown at Yermala road.
Accordingly, the complainant along with the PW 2 - shadow witness
and others in the raiding party went towards the store room/godown
at Yermala road, near M.S.E.B. Sub-Station. It was about 10.30
a.m., accused no.2 came there. The complainant asked him to give
him cable. Accused no.2, thereupon, asked him as to whether he
had brought Rs.3,000/-, as was directed by accused no.1. The
complainant replied in the affirmative and paid him the bribe money,
smeared with anthracene powder. In response to a predetermined
signal, Dy.S.P. - Shaikh and others in the raiding team came there.
The bribe money came to be seized from accused no.2. Post trap
panchnama (Exh.51) was drawn. Dy. S.P. - Shaikh lodged the FIR
on behalf of the State. After completion of the investigation, all the
police papers were forwarded to the competent authority for
obtaining sanction for prosecution of both the accused. PW 3 -
Narayan accorded sanction (Exh.54). Both the accused, thereafter,
came to be proceeded against by filing the charge sheet.
6. Learned Judge framed Charge (Exh.63.). The accused
pleaded not guilty. They claimed to have been falsely implicated. It
is the defence of accused no.2 (Gurav) that he was unaware of the
transaction between accused no.1 (Meshram) and the complainant,
while the stand of accused no.1 was that the employees of M.S.E.B.
had formed a group of making agitation against his behaviour. Since
he was exonerated in an enquiry held pursuant to such grievance, he
has been falsely trapped.
7. The prosecution examined eleven witnesses to bring
home the Charge. A number of documents were produced in
evidence. The trial Court, on appreciation of the evidence in the
case, convicted and sentenced both the accused, as stated above.
8. Heard learned counsel appearing for the parties.
9. Learned counsel representing the respective accused
would submit that no valid sanction was accorded for prosecution of
the accused. According to them, a draft sanction was supplied by
the Investigating Officer along with the police papers. The
sanctioning authority (PW 3) did not go through the the police
papers. It was his Assistant, who prepared the draft sanction and
the sanctioning authority signed on the dotted lines. According to
learned counsel for accused no.1 (Meshram), there was no
verification of the demand, while learned counsel for accused no.2
(Gurav) would submit that accused no.2 was not in the know as to
the amount was to be paid to accused no.1 as bribe. Both learned
counsel, ultimately, urged for allowing the appeals.
10. Learned APP would, on the other hand, submit that the
trial Court has passed a well-reasoned order. Since accord of
sanction for prosecution is not usual work of the Officer concerned,
the Investigating Officer forwards draft sanction along with the
police papers. It has now become such practice. The sanctioning
authority, after going through the police papers, has accorded
sanction. Application of mind is evident from the very recitals in the
sanction. According to learned APP, both the complainant and the
shadow witness stood the ground. Both the accused did not have
authority to give cable (wire) to the complainant. Learned APP took
me through the relevant evidence of both the witnesses to ultimately
urge for upholding the impugned judgment.
11. Considered the submissions advanced. Perused the
evidence and the documents relied on. It is not known as to why
eleven witnesses have been examined before the trial Court. The
evidence of only three witnesses was referred to during hearing of
this appeal, and rightly so. Let us appreciate the evidence relied on.
12. The complainant testified that he would do the work of
erecting electrical poles, setting overhead electrical transmission
wires and installation of distribution panel, etc. It is in his evidence
that the office of M.S.E.B. (now M.S.E.D.C.L.) had sanctioned the
work of installation of D.P. in the land of Ramhari Munde. Ramhari
had engaged him for installation work. Ramhari and six-seven
other farmers were going to be benefited by installation of the
D.P. Accused no.1 was the Asst. Engineer, M.S.E.B., at Kallam.
The complainant had paid accused no.1 Rs.12,500/- as bribe
for supply of electrical material for installation of D.P.
Accordingly, the D.P. was installed on 22.12.2016. It,
however, could not be made functional for want of cable. He
had, therefore, been to accused no.1 and requested him to give
the cable (wire). Accused no.1 asked him to pay Rs.3,000/- as
bribe. Accused no.1 also asked him to come his home early in
the morning next day and on receipt of money, he would give
him the cable. Since the complainant did not wish to pay the
bribe amount, he approached Anti Corruption Bureau,
Osmanabad. His statement-cum-complaint was recorded vide
Exh.44.
13. Dy.S.P. - Shaikh attached to A.C.B., Osmanabad,
decided to lay a trap. He, therefore, secured presence of two
Government officials to act as panch witnesses. He asked the
complainant to come to A.C.B. office early in the morning next
day. It is further in his evidence that the complainant,
accordingly, went there. Pre-trap panchnama (Exh.40) was
drawn. The complaint lodged by him was verified by the
panchas. Dy.S.P. - Shaikh gave them necessary instructions.
Accordingly, both complainant and PW 2 - shadow witness
went to the house of accused no.1 at 6:30 a.m. Since he was
fast asleep, they came back and again went to his house after
an hour. That time, accused no.2 was there at the house of
accused no.1. The complainant asked accused no.1 to give
him the cable. Accused no.1, in turn, told him to have
instructed accused no.2 to do the needful and accused no.2 will
meet them at store (godown). Accordingly, both the
complainant and the shadow witness went to M.S.E.B. Sub-
station on Yermala road. It was 10.30 a.m. Accused no.2
came there. Both the complainant and the shadow witness
met him. Accused no.2 asked the complainant as to whether
he had brought Rs.3,000/- as was directed by accused no.1.
The complainant told him to have come with the money.
Accused no.2 told them to give money. He prepared gate pass.
The complainant then held money (currency notes) before
accused no.2. He received the same. After the pre-
determined signal was given, the members of the raiding party
arrived. A sum of Rs.3,000/- came to be seized from accused
no.2. The post trap panchnama (Exh.51) was drawn.
14. On somewhat same lines is the evidence of PW 2,
shadow witness - Ashok. It is in his evidence that he had
accompanied the complainant all along first to the house of
accused no.1 and then to the store of M.S.E.B. at Yermala
road. It is in his evidence that at the house of accused no.1,
the complainant asked him to give the cable. Accused no.1, in
turn, told them to have instructed accused no.2 to do the
needful. Accused no.2, in turn, asked them to come to the
godown near the Sub-Station. Accordingly, they went there. It
was about 10.00 a.m. Accused no.2 came there. The
complainant requested him to give the cable. Accused no.2,
thereupon, asked him whether he had brought Rs.3,000/- as
was told by accused no.1. The complainant told him to have
come with the money and paid him as well. Soon thereafter,
the raiding team arrived there. A sum of Rs.3,000/- was seized
from accused no.2.
15. Both complainant and PW 2 - Ashok were subjected
to searching cross-examination. The complainant admitted to
have specifically been instructed by the Dy. S.P. -Shaikh to pay
money to accused no.1 only on his demand. He further
admitted that accused no.2 was not aware of the nature of
transaction between the complainant and accused no.1. He did
not have any complaint against accused no.2. Accused no.2
did not make any demand of money. PW 2 - Ashok testified in
his cross-examination that the panchnama was prepared by
Dy.SP. - Shaikh the way he wanted. He had signed the
panchnama without going through the entire details therein.
16. On appreciation of the evidence of both these
witnesses, it leads me to observe that the complainant had met
accused no.1 on 27.12.2006. Accused no.1 had made demand
of Rs.3,000/- from him that time. Accused no.2 was not
present during the meeting between the complainant and
accused no.1. Thus, the demand of Rs.3,000/- has not been
verified. Accused no.1 had asked the complainant to come his
residence early in the morning and to pay him bribe.
Accordingly, both the complainant and the shadow witness
went to the residence of accused no.1. Accused no.2 was
present at the house of accused no.1. The complainant asked
accused no.1 to give him cable. Accused no.1, in turn, told to
have instructed accused no.2 to do the needful and they should
meet accused no.2 in the store room/godown. As such, the
evidence of both complainant and shadow witness,
undoubtedly, indicate that when they had been to the house of
accused no.1 to pay him bribe, accused no.1 did not make
demand of bribe money. He simply asked them to meet
accused no.2 as he had instructed accused no.2 to do the
needful. It is not the case of the prosecution that accused
no.1 had asked accused no.2 in the presence of the
complainant and the shadow witness, to receive on his behalf
Rs.3,000/- and then give cable to the complainant. True, as
directed by accused no.1, both complainant and shadow
witness went to the store room/godown near M.S.E.B. Sub-
Station at Yermala road. Accused no.2 came there and
inquired with the complainant as to whether he had brought
Rs.3000/- as was directed to be brought by accused no.1.
Close scrutiny of evidence of both these witnesses would
indicate that there is nothing to infer that accused no.2 was in
the know of the transaction between accused no.1 and the
complainant. The fact that accused no.2 inquired with the
complainant as to whether he had come with Rs.3000/- as was
asked by accused no.1, would, in noway, be presumed to be
the amount of bribe. It is reiterated that the complainant has
categorically admitted that accused no.2 was not in the know
of the transaction between him and accused no.1. There is
also no evidence to indicate that accused no.1 had asked
accused no.2 to receive amount of Rs.3,000/- for him from the
complainant as illegal gratification. As such, evidence of both
these witnesses indicate that accused no.1 had not made any
demand of illegal gratification when both of them had been to
his residence with bribe money on the day of trap.
17. There is another aspect of the matter. The sanction
for prosecution of both the accused is found to be not valid
one.
18. PW 3 - Narayan was serving as Chief General
Manager, Technical Establishment, Mumbai, at the relevant
time. It is not in dispute that he was the competent authority
to accord sanction for prosecution of both the accused. It is in
his evidence that he had received all the papers of
investigation. After having gone through those papers, he
accorded sanction for prosecution vide Exh.54.
19. If one goes through the sanction (Exh.54), it may
appear to have been issued after having gone through all the
papers of investigation. It has, however, come on record
during the cross-examination of PW 3 (sanctioning authority),
that he had received the draft sanction along with the police
papers. It is further in his evidence that the Asst. Manager -
Changdeo had prepared the draft sanction and placed it before
him. The draft sanction prepared by said Changdeo was
tendered in evidence during cross-examination of this witness.
The draft sanction prepared by Changdeo came to be admitted
in evidence vide Exh.56. The sanction for prosecution (Exh.54)
accorded by PW 3 is nothing but a mirror copy of the sanction
prepared by the Asst. Manager, Changdeo. Same indicates that
the sanctioning authority had not applied its mind before
accord of sanction for prosecution. When both the accused
were to be prosecuted for the offences punishable under the
Prevention of Corruption Act only, the draft sanction (Exh.56)
and the sanction (Exh.54) find mention therein about sanction
for prosecution of the accused for the offences punishable
under Sections 420, 467, 468 and 471 of Indian Penal Code. It
is not known as to why the provisions of Indian Penal Code
were sought to be invoked against the accused. Admittedly, no
crime was registered against both or any of the accused for the
offences punishable under Indian Penal Code. Mention of
Sections under Indian Penal Code in the sanction order,
reinforces the claim of the accused persons that the sanction
has been accorded without application of mind. Learned
counsel for the accused have every reason to contend that the
sanction was prepared by the Asst. Manager and the
sanctioning authority had simply signed on the dotted lines.
This Court has, therefore, every reason to hold the sanction
(Exh.54) to have not been valid one.
20. Based on such quality of evidence, the trial Court
ought not to have held the charge against both the accused to
have been proved. This Court is, therefore, not at one with the
impugned judgment of conviction and resultant order of
sentence. The appeal, therefore, succeeds.
21. Hence the following order:-
(i) Both the appeals are allowed.
(ii) The impugned judgment and order dated 04.08.2010
passed by learned Special Judge, Osmanabad, in Special
Case (AC) No.5 of 2008, is set aside.
(iii) The appellants are acquitted of the offences punishable
under Section 7, Section 13(1)(d) and Section 13(2) of
the Prevention of Corruption Act, 1988.
(iv) Their bail bonds stand cancelled.
(v) Fine amount deposited by the appellants, if any, be
refunded to them.
[R.G. AVACHAT, J.]
KBP
