The State Of Maharashtra vs Ashok Ramdas Patil And Anr
2022 Latest Caselaw 197 Bom

                                                           29. Apeal-1046-2007.doc




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.1046 OF 2007

The State of Maharashtra                                ...Appellant
            Versus
1. Ashok Ramdas Patil
Age about 61 years, Occu : Retired
R/o Apte Road, Pune

2. Ramchandra Devchand Mali
Age about 63 years, Occu : Retired
R/o. Karve Road, Pune.                                  ...Respondents

Mr. S. H. Yadav, APP for the Appellant - State.

Mr. Vijay Killedar, Advocate for the Respondent No.1.


                         CORAM      :       PRAKASH D. NAIK, J.

                         DATE       :       6th JANUARY, 2022.

ORAL JUDGMENT :

1. This appeal is preferred by the State of Maharashtra

under Section 378 (3) of the Code of Criminal Procedure, 1973

(for short "Cr.P.C.") challenging the judgment and order dated

27th September, 2005 acquitting the respondent - accused for the

offences under Sections 7 and 13(1)(d) r/w Section 13(2) and

Section 12 of the Prevention of Corruption Act, 1988 (for short

"PC Act").

2. During the pendency of this appeal, the respondent

No.2 has expired. The death certificate of respondent No.2 has

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been produced by the learned counsel for the appellant which

indicate that the respondent No.2 has expired on 22 nd August,

2021. The photo copy of the death certificate is taken on record

and marked as 'X' for identification. In view of the aforesaid

circumstance, the appeal against the respondent No.2 stands

abated.

3. The case of the prosecution is as under :-

(a) The accused No.1, Ashok Ramdas Patil was working

as Chief Engineer and the accused No.2 was Executive

Engineer. It is alleged that, being a public servant the accused

No.1 had accepted the amount of Rs.1,00,000/- from the

complainant as a gratification other than legal remuneration

for supplying copies of contract drawings, working drawings

and lay out plans to the complainant in respect of work allotted

to him on accepting his tender and thus obtained pecuniary

benefit of Rs.1,00,000/- from the complainant by corrupt or

illegal means or otherwise abusing his position as a public

servant and thereby committed for offence under Sections 7,

13(1)(d) punishable under Section 13(2) of PC Act. Accused

No.2 was charged on the accusation that while acting as a

public servant in the office of Pimpalgaon Joge Dam Division,

Narayangaon, Dist. Pune, abetted the commission of offence

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under Section 7 of the PC Act by accused No.1 and thereby

committed offence under Section 12 of the PC Act.

(b) Public notice calling tenders for carrying out the

work of canal at Pimpalgaon Joge was published. The

complainant submitted tender for the said work of

Rs.92,46,384/-. Being lowest rate, the tender was accepted on

17-10-1997. Subsequently, the Executive Engineer, (accused

No.2) had issued the work order to the complainant in respect

of that work. The complainant then met accused No.2 on

26-12-1997 and 01-01-1998 for supply of certified copies of

tender along with lay out plan, drawings of the work. The

accused No.2 suggested the complainant to pay 1% of the total

amount of accepted tender to the Chief Engineer (accused

No.1) for supplying lay out plan and drawings.

(c) On the suggestion of accused No.2, the complainant

met the Chief Engineer on 09-01-1998. He demanded 1%

amount of total value of tender and agreed to accept

Rs.1,00,000/- from the complainant for that purpose on 10-01-

1998 in his office or residence.

(d) The complainant approached A.C.B. Office on 10-01-

1998 and lodged the complaint. On 10-01-1998, the A.C.B.

Officers made arrangement for telephonic talks between

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accused No.1 and the complainant for verification of complaint.

For that purpose they went to hotel situated at Apate Road,

Pune and occupied room No.305. In the presence of panch

witnesses, the complainant had a conversation with accused

No.1. It was recorded on Audio tape and it was decided to send

Mr. Kamble, Engineer working with the complainant for paying

the bribe amount to the accused.

(e) On 11-01-1998, the complainant, panch witnesses,

A.C.B. Officers, and Mr. Kamble gathered at Hotel Shreyas. The

complainant had arranged the amount of Rs.1,00,000/- which

was to be paid to the accused No.1 as bribe. Anthracene powder

was applied to the currency notes. Necessary instructions

were given to Mr. Kamble and panch witnesses. Polythene bag

containing the bribe amount was given to Mr. Kamble for

handing it over to accused No.1 on demand of bribe. Panch

No.1 Asawale was instructed to accompany Mr. Kamble while

visiting the house of accused No.1 and to stay outside and

directed Mr. Kamble to enter into the house of accused and on

demand to pay the bribe amount to him. Tape recorder with

blank tape was arranged for recording conversation between

them and it was kept with Mr. Kamble.

  (f)              The members of the raiding party approached the



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house of accused. The complainant was not with them. The

flower basket was purchased for presenting it to the accused.

Other members of the raiding party stayed outside the

courtyard. Complainant, panch - Asawale entered into the

house of the accused No.1. The panch - Asawale stayed outside

the verandah. Mr. Kamble along with the bribe amount and

flower basket entered into the house of the accused. He met

accused No.1 and on demand of bribe amount by the accused,

Mr. Kamble handed over the polythene bag containing bribe

amount to accused No.1. He accepted the amount. The panch -

Asawale while standing near the window in the verandah saw

what was going on inside the room. After handing over the

amount to accused Mr. Kamble came out and informed the

raiding party that the accused have demanded and accepted

the amount.

(g) The members of raiding party entered into the house

of the accused. The house was searched. In the office room

situated at residence of accused, brief-case was found. It was

having number lock. It was opened by adjusting number by the

accused. It was found containing bribe amount. The

photographs were taken. The house of the accused was

searched. Inventories of articles were prepared and trap

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panchanama was executed. The polythene bag containing the

bribe amount was seized. Investigation proceeded on the basis

of the report filed by the A.C.B. After obtaining the sanction for

prosecution, the charge-sheet came to be filed against the

accused.

4. Charge was framed against both the accused vide

order dated 16th September, 2003 for the aforesaid offences.

5. The prosecution had examined six witnesses in

support of the prosecution case. The defence of the accused No.1

is that he was working as Chief Engineer at Krishna Khore Vikas

Mahamandal. Non-official members were interfering with the

work of allotment of public tender showing their personal

interest and political influence used to be there. But it was not

possible for the accused to by-pass normal procedure. Hence, the

accused No.1 was implicated in false case.

6. The evidence of witnesses was recorded. Statement

of the accused was recorded under Section 313 of Cr.P.C. The

trial Court has acquitted both the accused.

7. The State of Maharashtra is aggrieved by the

impugned judgment and order passed by the learned Special

Court acquitting the accused.

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8. Learned App appearing for the appellant - State of

Maharashtra has submitted that the trial Court has committed

an error in acquitting the respondents-accused. Although there

was sufficient evidence to establish the demand and acceptance,

the learned Special Judge acquitted the accused. The

presumption under Section 20 of the PC Act, was not rebutted by

accused in any manner. Minor discrepancies could have been

overlooked. The demand and acceptance of illegal gratification

has been established by evidence. The findings of the trial Court

are contrary to the evidence on record. The accused No.1 was

the Chief Engineer, while the accused No.2 was the Executive

Engineer. The accused No.1 had demanded the bribe of

Rs.1,00,000/- for providing requisite documents to the

complainant in relation to the acceptance of his tender. There

was demand by accused No.1 There was abetment by accused

No.2. The demand was followed by acceptance. The prosecution

has examined independent witnesses in the form of the panch

witness, who has supported the prosecution case. At the time

when the demand and acceptance was made, the accused No.1

and the witness were present in the premises, the panch witness

was waiting outside the room, but he could see what was

happening inside through the window. The panch witness could

hear the sound of opening and closing the brief-case. The amount

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was found in the brief-case. Traces of anthracene powder were

noticed in the bag. The amount of Rs,1,00,000/- was lying in the

brief-case. There are strong circumstance to infer that the

accused No.1 has demanded and accepted the bribe amount. The

initial demand was verified by the investigating agency in the

presence of the panch witnesses. Telephonic talk was arranged

between the complainant and the accused No.1 The accused No.2

had suggested that the complainant shall approach the accused

No.1 and one percent of the tender amount towards bribe

amount. The amount was found in the custody of the accused.

The presumption under Section 20 of the PC Act was invoked. It

was the duty of the accused to rebut the same by adducing the

evidence. However, there was no such rebuttal. There was no

reason to doubt the veracity of the evidence of the witnesses.

The complainant has deposed before the Court and proved the

demand and acceptance. The panch witness has corroborated

the prosecution case relating to demand and acceptance.

Conversation was established between the accused No.1 and

complainant. Merely on the ground that PW-2 has not fully

supported the other evidence adduced by the prosecution could

not be discarded by the trial Court. The reasons and the findings

assigned by the trial Court are contrary to the evidence on

record. Minor discrepancies in the evidence can be ignored.

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Huge bribe of Rs.1,00,000/- was demanded by the accused. The

judgment of the trial Court perverse and it requires interference.

9. Learned Advocate Mr. Killedar representing the

respondent - accused No.1 has submitted that the powers of the

Appellate Court adjudicating appeal against acquittal are

explained in various decisions. The judgment of acquittal could

be interfered only in exceptional circumstances, viz. the

judgment is contrary to evidence on record it is perverse, it is

contrary to the provisions of law and suffers from miscarriage of

justice. In the present case, the trial Court has appreciated the

evidence on record and came to the conclusion that the

prosecution has failed to establish the case beyond doubt. The

trial Court has assigned detail reasons while acquitting the

accused. The findings of the trial Court are in consonance with

the evidence on record. The prosecution has failed to establish

that there was demand of bribe by accused No.1 which is sine-

qua-non to convict the accused for the offences with which he is

charged. Neither the demand nor the acceptance has been

established beyond doubt. The complainant was present at the

time of the alleged demand or acceptance of bribe. The

complainant had allegedly arranged another person Mr. Kamble

for parting the bribe amount. The accused cannot be convicted

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on the basis of inferences. Merely on account of the fact that the

panch witness could here the sound of opening the bag and

closing it, it cannot be accepted that there was demand and

acceptance of the bribe by the accused. Undisputedly, the panch

witness was not present when the witness Mr. Kamble had

entered into the room premises. Panch witness was waiting

outside. He did not hear the conversation between PW-1 and

accused No.1. Thus, there is no independent evidence to

establish that there was demand of illegal gratification by

accused No.1 and acceptance by him. Assuming that the amount

was found in the house of the accused No.1 that would not be

sufficient to convict the accused in the absence of proof of

demand. The conversation was not proved. The script of

conversation incorporated in the panchanama does not reflect

demand. There is no experts evidence to establish the identity of

the voice of the persons, who had conversation in respect to the

demand of the bribe amount. Thus, the prosecution has failed to

establish the charges against the accused No.1. The judgment

and order of the trial Court does not warrant interference.

10. Learned Advocate Mr. Killedar has placed reliance on

the following decisions :-

a) V. Venkata Subbarao V/s. State Represented by

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Inspector of Police, A.P. (2006) 13 SCC 305.

b) B. Jayraj V/s. State of Andhra Pradesh (2014) 13 SCC 55.

c) P. Satyanarayana Murthy V/s. Dist. Inspector of Police and Anr. 2015 (4) Bom. C.R. (Cri.) 523

d) Decision of this Court delivered in the case of Anil Krishnarao Apashingkar V/s. State of Maharashtra 2021(3) Bom. C.R. (Cri.)51.

11. On perusal of the evidence on record and Judgment of

trial Court , I do not find any reasons to deviate from the findings

arrived at by the trial Court. The law relating to the demand and

acceptance is well settled. The demand of bribe is sine-qua-non.

Mere acceptance of bribe amount is not sufficient to prove the

charges under Sections 7 & 13(1)(d) of the PC Act. The

prosecution has to establish its case beyond all reasonable doubt.

The accused cannot be convicted on surmises and conjectures.

The demand and acceptance cannot be inferred and there has to

be cogent evidence. The presumption under Section 20 of the PC

Act cannot be invoked mechanically. The foundation supported

by the cogent evidence must be established to invoke the said

presumption. The burden to rebut the presumption under the

said provisions is based on preponderance of probability and it

cannot be equated with the burden lying on the prosecution to

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establish its case.

12. The case of prosecution is that the accused No.1 was

the Chief Engineer and accused No.2 was the Executive Engineer.

It is not disputed that they were public servants. According to

the complainant, in 1997 tender notice of work of Krishna Khore

Project was published in the newspaper. It was pertaining to

work of canal. He applied for getting tender of work. His tender

was accepted and work was allotted to him. The order was issued

by accused No.2. He received work order. Mr. Milind Kamble

was assisting him in his work. He was deputed to look after work

of complainant. PW-1 met accused No.2 for having drawing of

construction. Accused No.2 told him to pay Rs.1,00,000/- to Chief

Engineer. The complainant then approached complainant and

spoke to him. Chief Engineer demanded 1% of total amount. He

approached ACB and filed complaint. He talked to Chief Engineer

on telephone. Accused No.1 told him to come on next day at his

house. He told accused that he would send Mr. Kamble.

Conversation was recorded by officer. Trap was arranged.

Amount provided by PW-1 for trap.

13. Mr. Kamble was examined as PW-2. He was

introduced to accused No.2. Along with the tender, company had

received maps and drawings of work. He stated that complainant

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told him to wait outside. He do not know what had transpired in

cabin of accused No.2 Complainant told him to meet Patil and

give gift. He do not know what was the gift. He was handed over

gift and told to give it to Patil. He went to residence of Mr. Patil

(Accused No.1). He kept plastic bag containing gift on table. He

returned home. He do not know about talk between accused No.2

and PW-1. Since he did not support prosecution, learned APP

sought permission to cross examine this witness. He was cross

examined. PW-3 Vasant Asawale acted as Pancha. He deposed

that complainant had talk with accused No.1 He was told by

accused that he had no time. It was decided to go to accused on

next day. The talk between complainant and accused was

recorded. Trap was arranged. Mr. Kamble (PW-2) was

instructed not to touch currency notes unless, the accused

demands bribe. Microphone was attached to the bag for

recording talk before proceeding for trap. PW-3 was instructed to

accompany PW-2 upto bungalow of accused, and to stay outside,

while PW-2 would enter the house. He could see from window.

PW-2 entered the bungalow. PW-2 put on the microphone. PW-3

could see through window what was going on inside the room. He

could hear the talk between them. Exhibit- 53 is trap

panchanama. PW-2 offered bouquet of flowers. Than PW-3 could

not see what was going on there, when PW-2 was standing. He

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could hear the sound of opening bag and closing it. Raiding party

entered bungalow. Bag was opened by accused. It was containing

amount. Cassette was seized from Mr. Kamble. Contents were

heard. Panchanama prepared (Exhibit-53). Cassette was played.

Panchanama prepared. It was seized. The amount was brought

from bag. The said bag was not seized by ACB. There is no

mention of brief case in the schedule of articles found in the office

room of the house of accused. Panchanama Exhibit-50 was

recorded on 10th January, 1998. The said panchanama refers to

conversation between complainant and accused No.1 which was

recorded by tape recorder. The script has been reproduced. The

said conversation does not refer to demand of bribe. The

complainant spoke to accused No.1 asking him whether he can

meet him now or in the evening evening at home. The accused

told him to come in the morning. He was told to come on next

day in the morning. There is no corroboration by independent

evidence to the fact that there was demand and the accused had

accepted the amount except the inferences drawn by the

prosecution. PW-3 waited outside the office of accused. On

reading the evidence of PW-3, it can be seen that, except stating

that he heard the sound of opening the bag and closing it and he

did not hear the conversation between PW-1 and accused No.2.

He did not hear any demand made by accused No.1, nor

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acceptance by him. Assuming that the amount was found in the

office. Only on the basis of belief that there was demand and

acceptance, accused cannot be convicted. Thus, there was no

cogent evidence before the trial Court to establish the demand of

the bribe amount by accused No.1. Findings of the trial Court

acquitting the accused are supported by reasons.

14. Exhibit-53 panchanama refers to script of

conversation recorded on the day of trap between accused No.1

and Mr. Kamble (PW-2). The script reproduced in panchanama

does not refer to any demand of bribe by accused No.1. PW-2 has

not supported prosecution. PW-4 Shrinivas Shintre was Deputy

Secretary in Irrigation Department. He accorded sanction to

prosecute accused. He admitted that heading of Exhibit - 65 is

'draft sanction' and not sanction order and claimed it to be typing

mistake. It is pertinent to note that Exhibit - 65 is purportedly

sanction order dated 12th January, 1999. PW-5 Kanhayalal

Sarvayya accorded sanction to prosecute accused No.2 PW-6

Vasant Ingawale is investigating officer. He admitted that, there

is no mention in Panchanama Exhibit-50 that, before recording

conversation it was verified that the cassette was blank. There is

no mention in panchanama Exhibit-56 that peon Tote has

identified the voice of accused No.1 Voice samples were not

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obtained. Thus, expert opinion regarding identification of voice

of accused and complainant is not on record.

15. In the case of V. Venkata Subbarao (Supra), the apex

Court had observed that the presumption under Section 20 of the

PC Act cannot be raised when demand by accused is not proved.

In B. Jayraj (Supra), the apex Court has observed that so far as

for the offence under Section 7 is concerned, it is settled position

in law that demand of illegal gratification is sine-qua-non to

constitute the said offence and mere recovery of currency notes

cannot constitute the offence under Section 7, unless it is proved

beyond doubt that the accused voluntarily accepted the money

knowing it to be the bribe. In the case of P. Satyanarayana

Murthy (Supra), the Apex Court as made similar observations.

In Paragraph-21 of the said decision it was observed that the

proof of demand of illegal gratification is an gravamen of offence

under Sections 7 and 13(1)(d)(i)(ii) of the Act and in the absence

thereof the charge must fail. Mere acceptance of any amount

allegedly by way of illegally gratification or recovery thereof

dehors. Demand ipso-facto would not be sufficient to bring home

the charge under the aforesaid provisions. In the decision of this

Court delivered in the case of Anil Krishnarao Apashingkar V/s.

State of Maharashtra, (Supra), this Court had considered the

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settled principals of law laid down in the aforesaid decision and

set aside the demand of conviction under the similar provisions.

16. Applying the principles enunciated in the aforesaid

decisions to the facts and the evidence adduced by the

prosecution in the present case, I am of the opinion that, no case

is made out to set aside the judgment of acquittal. The learned

trial judge has carefully scrutinized the evidence. The trial Court

has observed that, PW-2 has not stated about any suggestion by

accused No.2 about payment of bribe amount to accused No.1. He

was asked to wait outside. He does not know what happened

inside the cabin of accused No.2. There is no corroboration to the

evidence of complainant in respect of suggestion given by

accused No.2 The complainant has admitted that his tender was

accepted and in notification all details of work were displayed on

notice board in office of Executive Engineer, Narayangaon. He

had been to the office of Executive Engineer for collecting forms

for filling tender. Two volumes of tender were supplied to him.

Documents are on record. The Executive Engineer did not accept

the amount. PW-2 has not stated that he went to office of Chief

Engineer with PW-1 and met accused No.1 and there was demand

of his presence. The conversation dated 10 th January, 1998 do

not refer to any demand. It only refers to giving appointment to

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complainant. The conversation was arranged to verify demand.

The reason for choosing hotel for verification of demand was to

maintain secrecy, but that becomes doubtful since telephones

were in ACB office, house of complainant and in normal course

demand could have been verified by talking to accused from office

of ACB. Maps for which demand was allegedly made were already

supplied and additional copy of documents could have been

obtained by depositing amount of Rs.1,500/-. The evidence of

earlier demand does not inspire confidence. The motive for

demand itself appears to be doubtful. PW-2 Mr. Kamble has not

supported the case of prosecution. Panch was not knowing what

was the gift given by PW-1. He was not present inside the room.

The notes were kept in polythene bag after applying anthracene

powder. The accused did not accept the amount in his hand. The

purpose of applying powder was not known. Digital number of

bag was 000. After purchasing bag the purchaser chooses his

number for opening bag. No other papers were found in bag. If

brief case was in use by the accused, some papers belonging to

accused would have found therein and finding of amount in

empty brief case creates doubt. Nothing was brought on record

to show that the bag belongs to accused. It was not seized. It is

relevant to note that the demand and acceptance of bribe is not

proved. Invoking presumption under Section 20 of PC Act would

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not help prosecution. No case is made out to interfere in the

judgment of trial Court.

17. Hence, I pass the following order :-

ORDER

Criminal Appeal No. 1046 of 2007 is dismissed and

stands disposed of accordingly.

(PRAKASH D. NAIK, J.)

Digitally signed by SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR JAMADAR Date:

2022.01.14 15:47:58 +0530

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