Dagadu Paku Dhebe (Since Deceased ... vs The State Of Maharashtra
2022 Latest Caselaw 5089 Bom

                      rpa                             1/27                 cri 761 of 1998.doc


                              9IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION


                                      CRIMINAL APPEAL NO.761 OF 1998

                      Dagadu Paku Dhebe                                ]
                      (Since deceased through LR's)                    ]
                      1)    Smt.Bhagabai Dagadu Dhebe,                 ]
                            Aged 65 years, Occu.: Household;           ]

                      2)    Suresh Dagadu Dhebe                        ]
                            Aged 49 years, Occu. : Agriculture,        ]
                            Both R/at.Bondarwadi,                      ]
                            (Dhangarwadi), Tal.Hahabaleshwar,          ]
                            District - Satara;                         ]

                      3)    Sangita Waman Hirve,                       ]
                            Aged 47 years, Occu.: Household.           ]
                            R/at. 80, More Colony, Satara;             ]

                      4)    Alka Sadashiv Gore,                        ]
                            Aged 45 years, Occu.: Household,           ]
                            R/at.Medha, Tal. Jaolil,                   ]
                            District - Satara                          ] .. Appellants

                            Versus
                      State of Maharashtra                             ]
                      (To be served through the                        ]
                      Learned Public Prosecutor,                       ]
                      High Court, Appellate Side, Mumbai.              ] .. Respondent

                                                       ......
                      Mr.Nagesh Y. Chavan and Mr.Rahul B. Khot, Advocate for the
                      Appellant.
                      Mr.Y.Y. Dabake, APP for the Respondent - State.
                                                       ......
                                                     CORAM :     PRAKASH D. NAIK, J.

         Digitally
                      JUDGMENT RESERVED ON                        : AUGUST 12th, 2021.
         signed by
         RAJESHRI
RAJESHRI PRAKASH
                      FOR DIRECTIONS AND CLARIFICATIONS           : APRIL 29th, 2022.
PRAKASH AHER
AHER     Date:
         2022.06.07
                      JUDGMENT PRONOUNCED ON                      : JUNE 7th, 2022.
         17:27:18
         +0530
 rpa                              2/27                     cri 761 of 1998.doc



JUDGMENT :

The appellant is convicted for the offences punishable

under sections 7 and 13(1)(d), 13(2) of Prevention of Corruption Act

("P.C. Act", for short), vide judgment and order dated 22 nd September,

1998, passed by the Special Judge, Satara, in Special Case No.16 of

1992. The applicant has been sentenced to suffer imprisonment for six

months and to pay fne of Rs.2,000/-, for conviction under Section 7 of

P.C. Act, and, sentenced to suffer imprisonment of one year and fne of

Rs.3,000/-, for conviction under Section 13(1)(d), 13(2) of the P.C.

Act. After the Appeal was closed for judgment, it was listed for

clarifcations on 29th April, and closed for orders.

2 During the pendency of Appeal, the original

appellant/accused had expired. His legal heirs preferred criminal

application No.665 of 2019, for bringing them on record and seeking

permission to pursue Appeal. The said application was allowed vide

order dated 2nd May, 2019.

3 The case of the prosecution is that the accused was

working as Gav Kamgar Talathi of Sajja Khinghar, Taluka

Mahabaleshwar. The complainant is resident of village Khinghar. His

grand father died on 14th February, 1992. He had executed Will and rpa 3/27 cri 761 of 1998.doc

bequeathed his property at village Damil, Taluka Poladpur, District-

Raigad, to his sons Nivrutti and Ramchandra, and, the property at

Khinghar was bequeathed to his son Sitaram and grand sons Santosh

and Sandeep. On 26th April, 1992, the complainant approached the

accused at his offce and requested to enter their names. The accused

told him that it was diffcult task and it cannot be done abruptly. The

complainant was told to see him in his offce at Panchgani on 1 st May,

1992. The complainant and his relative Anand Bhilare visited offce of

the accused at Panchgani on 1st May, 1992. The accused demanded

Rs.1,000/- for the work. The complainant and Anand Bhilare again

approached the appellant at his residence at Bonderwadi and inquired

about work. The accused asked the complainant about money. The

complainant gave Rs.100/- to accused. On 10th May, 1992, the

complainant again met the accused at his offce at Panchgani. The

accused inquired about money. The complainant gave Rs.400/- to the

accused. On 11th May, 1992, the complainant approached ACB at

Satara. He lodged complaint against the accused. It was recorded.

Arrangements were made for trap of accused. Pre trap panchanama

was recorded. The complainant and others went towards the house of

the accused. The bribe amount was accepted by the accused. He was

caught by the raiding party. On completing investigation, charge -

sheet was fled.

rpa 4/27 cri 761 of 1998.doc

4 Charge was framed on 17th June, 1996. The prosecution

examined 12 witnesses. Statement of the accused was recorded under

Section 313 of Cr.P.C. Vide judgment and order dated 22 nd September,

1998, the appellant was convicted.

5 Learned advocate for the appellant submitted that the

prosecution case suffer from serious discrepancies. The demand and

acceptance of bribe amount has not been proved beyond doubt.

Appellant has been falsely implicated in this case. There are

contradictions in the evidence of P.W.1, P.W.2 and P.W.3. The alleged

demand of bribe amount and its acceptance by the accused, is not

supported by independent evidence. The demand dated 1st May, 1992,

acceptance dated 7th May, 1992 and 10th May, 1992, is not supported

by independent witness. The appellant had informed complainant that

it is diffcult to grant application preferred by him and since the

appellant was not granting request of complainant, the appellant has

been falsely implicated in this case. The complainant was desperate to

involve the appellant in the trap case. The evidence of complainant,

his relative Ananda Bhilare, panch witness P.W.2 and the

investigating offcer is contradictory to each other. The accused had

not invited the complainant st his residence. The complainant is

apparently chasing the accused to part the amount. The complainant rpa 5/27 cri 761 of 1998.doc

had allegedly parted an amount of Rs.100/- and Rs.400/-, towards

bribe. The version of the complainant appears to be doubtful and

conviction cannot be based on such version. The beneft of doubt ought

to have been given to the accused. The demand and acceptance of

bribe is required to be proved beyond doubt.

6 Learned advocate for the appellant relied upon the

following decisions:

(i) P.Satyanarayan Murthy Vs. District Inspector of Police and Ors.1;

(ii) Panalal Damodar Rathi Vs. State of Maharashtra2;

(iii) State of Punjab Vs. Madan Mohan Lal Verma3;

(iv) Uttam S/o. Ramaji Shere Vs. State of Maharashtra4;

(v) Satish Ganpatrao Suryavanshi Vs. State of Maharashtra, delivered in Criminal Appeal No.453 of 2021.

7 Learned APP submitted that the prosecution has proved

its case beyond doubt. The accused was concerned with the work of

the complainant. Complainant had approached him on 26th April,

1992, for his work. He was told by accused to visit on 1 st May, 1992.

The complainant went to the offce of the accused at Panchgani on

1st May, 1992. The accused made a demand of Rs.1,000/-, for

performing the work. The complainant informed the accused that he 1 2015(4)Bom.C.R. (Cri.)523;

2     (1979) 4 SCC 526;
3     2013 CRI.L.J.4050;
4     2018 All MR. (Cri) 2393;
 rpa                            6/27                  cri 761 of 1998.doc

would make arrangement for money. On 7th May, 1992, the

complainant again visited the accused at his residence and paid an

amount of Rs.100/-, on demand. On 10th May, 1992, the complainant

met the accused near his offce and inquired about the work. The

accused demanded money. Complainant paid an amount of Rs.400/- to

the accused. The complainant then lodged the complaint. Accused was

caught accepting Rs.500/-, from complainant. The version of

complainant is corroborated by P..W.3 Ananda Bhilare, who was

accompanying him. The demand and acceptance dated 11th May, 1992,

is supported by independent evidence of panch witness P.W.2. The

evidence of all the other witnesses supports prosecution case. Pre trap

and post trap panchanama were recorded by ACB. Second panch was

examined by prosecution as P.W.4. The tainted amount was found in

possession of the accused. Documentary evidence such as pre trap,

post trap panchanma was proved in evidence. Sanction was granted

for prosecution. The accused has not rebutted the presumption under

Section 20 of the P.C. Act. There is no explanation for fnding of

currency notes in his possession by accused. There is no motive for

false implication. The Appeal is devoid of merits and deserves to be

dismissed.

8            I have scrutinized the evidence on record. The alleged
 rpa                            7/27                  cri 761 of 1998.doc

demand of Rs.1,000/-, was purportedly made by the accused on 1 st

May, 1992. Complainant did not approach the ACB immediately after

said demand. According to complainant, he paid an amount of

Rs.100/-, to accused and told him that he would make an arrangement

for further payment. According to complainant, the amount of

Rs.400/-, was made to the accused on 10th May, 1992. The incidents

dated 26th April, 1992, 1st May, 1992, 7th May, 1991 and 10th May,

1992, had occurred prior to the complaint of P.W.1 with ACB.

According to complainant, the incidents dated 1st May, 1992 and 7th

May, 1992 had occurred when he was accompanied by Ananda

Bhilare, who is relative of the complainant. He is obviously the

interested witness. Thus, the alleged demand and acceptance prior to

11th May, 1992, is based on the version of P.W.1 and P.W.3. The case of

the complainant is that the frst demand was made on 1 st May, 1992,

followed by 7th May, 1992 and 10th May, 1992. Complainant parted an

amount of Rs.500/-, to the accused and then lodged the complaint.

There was no reason for the complainant to wait till 11 th May, 1992 to

lodge the complaint. It is apparent that he had made alleged payment

of Rs.500/-. If he was not interested in complying alleged demand by

accused, there was no reason for him to part half of the amount and

than approach ACB.

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9           According to complainant (P.W.1) he is the resident of

village Khingar, Taluka Mahabaleshwar. Ganpati Bhilare was his

grandfather. He expired on 14th February, 1992. His grandfather had

executed Will in respect of feld at Khingar in his favour and in favour

of his brother. The accused was working as Talathi at Rajpuri Sajja. On

26th April, 1992, he approached the accused at his residence at

Bondarwadi with 7 x 12 extract, death extract of his grandfather and

Will, and, showed those documents to accused, and, requested him to

enter their names to the record of rights of the property bequeathed

by his grandfather. The accused told him that it was very diffcult task

and told him to see him on 1st May, 1992 in Talathi offce at Panchgani.

First of all it is not clear as to why the complainant had approached

the accused for his offcial work at his residence. It is also noted that

on 26th April, 1992, there was no demand of bribe by accused. P.W.1

further stated that he went to the offce of the accused at Panchgani

on 1st May, 1992. The accused told him that it is very diffcult task,

and, for that Rs.1,000/-, was required. The accused told him to submit

the application in writing for entering their names. P.W.1 told accused

that he cannot write the application. Therefore accused told some

person working under him to write the application. The said person

wrote the application. It was signed by the complainant. The

complainant and Ananda Bhilare returned to their village. Thus, the rpa 9/27 cri 761 of 1998.doc

demand of Rs.1,000/-, was allegedly made on 1st May, 1992. According

to complainant, accused assisted complainant by directing person

under him to write application on behalf of complainant. The

assistance was rendered without accepting bribe. The complainant did

not approach ACB after the alleged demand dated 1st May, 1992. The

evidence also makes it clear that the accused had informed the

complainant that it is a diffcult task to allow the request of the

complainant. The complainant than stated that on 7th May, 1992, he

visited the house of accused at Bonderwadi alongwith Ananda Bhilare.

The accused was not in the house. He learnt that the accused had been

to the house of his brother. They went there. Accused was present. The

complainant inquired about the progress in his matter. The accused

asked whether he had brought money. The complainant told him that

he is having Rs.100/-. The accused told him to give the said amount.

Accordingly, complainant gave Rs.100/- to accused. They returned

home. It is pertinent to note that although application was for

entering names in records of rights was submitted in the offce of

Talathi at Panchgani, there was no reason for complainant to

approach the accused at his residence. When he found that the

accused is not available at his residence, he followed him at the house

of his brother, and, allegedly paid an amount of Rs.100/-. The accused

had never called the complainant at his residence. On 1st May, 1992, rpa 10/27 cri 761 of 1998.doc

the complainant had visited the offce of Talathi at Panchgani. It is not

clear as to what compelled the complainant to approach the accused

at his residence on 7th May, 1992. Accused did not call complainant on

7th May, 1992. The complainant was desperately chasing the accused.

The complainant further stated that on 10th May, 1992, he visited the

offce of Talathi at Panchgani alongwith Ananda Bhilare and Ravindra

Dudhane. The accused was present in offce. Ravindra Dudhane went

out. Complainant and Ananda met accused. He was asked about

progress of work. The accused told that, unless he is given money, the

work would not be done. He told that he was required to pay some

amount to his superior offcer, and, he would keep some amount for

himself. The complainant gave Rs.400/- to accused. Thus, instead of

approaching ACB, the complainant had paid Rs.400/- on 10th May,

1992. There is no independent witness to fortify the incidents dated

1st May, 1992, 7th May, 1992, 10th May, 1992 and 24th June, 1992.

Ananda Bhilare is the close relative of the complainant. Ravindra

Dudhane is not party to alleged conversation between P.W.1 and

accused. On 11th May, 1992, complainant approached ACB and lodged

the complaint. He was called on 12 th May, 1992. On the next day i.e.

12th May, 1992, the complainant approached the ACB offce. Panchas

were called at the ACB offce. The complainant provided currency

notes for trap. Instructions were given to panch witnesses and the rpa 11/27 cri 761 of 1998.doc

complainant. Panchanama was recorded. All of them left the ACB

offce on 12th May, 1992, for Panchgani. Initially they went to the offce

of accused at Panchgani. It was not open. Thus, all of them proceeded

to Panchgani by tempo. Initially they went to the offce of the accused

at Panchgani. It was not opened. Than they proceeded to Bondarwadi.

Complainant and the pancha witness Chavan proceeded towards the

house of the accused. The other members of raiding party dispersed

near the trees and houses. They saw accused coming towards their

direction. The complainant asked the accused whether he was

proceeding towards Panchgani. The accused told that he is proceeded

to Mahabaleshwar and that he has holding the additional charge of

Mahabaleshwar. The accused inquired whether he had managed about

money. The complainant told him that he had brought the money. The

accused took them in his house for tea. The accused told the

complainant to handover the amount, if brought by him as he is in

need of money. The complainant gave money. Accused counted the

notes and kept it in left pocket of Bandi. Signal was given to raiding

party and the accused was apprehended. Currency notes were

recovered from him. From the evidence of P.W.1, it is evident that he

visited the residence of the accused. Firstly they went to Panchgani

and since the offce was not opened and Talathi was not available, they

proceeded to residence of the accused. The accused had not told rpa 12/27 cri 761 of 1998.doc

complainant to come with money at his residence. It was surprise visit

jof complainant at Bonderwadi on 12th May, 1992. The complainant

was not told to come with money on any particular day.

10 In the cross-examination, P.W.1 has stated that the

application for entering his name was written by the accused. In

examination-in-chief he stated that the application was written by

some other person on directions of accused. In cross-examination he

changed his version, and, stated that the application was written by

some person working with accused. It was written as per his

instructions. Subsequently, he stated that the application was written

by Bajirao Ambrale, resident of Khingar. Bajirao was aware that his

father was alive. The presence of Bajirao Ambrale was referred to by

the complainant for the frst time in the cross-examination. He has

given contradictory versions about the person who has written the

application on his behalf. He further deposed that Ananda Bhilare was

accompanied with him on 26th April, 1992. In the examination-in-

chief he has not referred to the presence of Ananda Bhilare (P.W.3) on

26th April, 1992. He told the accused that he would be able to get loan,

and, therefore, asked him to record their names to record of rights.

The accused told him that it was a diffcult task. He told the accused

as to what should be done, and, the accused advised him to submit rpa 13/27 cri 761 of 1998.doc

application. He admitted that the accused did not tell him to see him

on particular date. He did not asked accused as to on what date he

should meet him. The complainant intended that his name should be

entered early. He admitted that he went to the house of the accused at

Bondarwadi on 7th May, 1992 at his own accord. The conduct of the

complainant would reveal that he was desperate to get his name

entered in the record of rights expeditiously. While he had been to the

accused on 7th May, 1992, he had not made any arrangement of

Rs.1,000/-. On 7th May, 1992, there were house warming ceremony of

the brother of the accused. There were several person. He asked the

accused about his work in the house of his brother by taking him

aside. The accused demanded Rs.900/-, after accepting Rs.100/-. On

10th May, 1992, when he visited the accused, he did not make

arrangement of Rs.900/-. The accused had told him that notices were

required to be issued to concerned persons. He do not remember

whether the accused had told that his name could be entered only

after services of notices. He do not remember whether the accused

had told him that his name could not be entered on the basis of

application and the Will. He requested accused to enter their names

and the accused told him that it is a diffcult task. He requested the

accused to enter their name anyhow and the accused told him that he

was unable to enter their names. Complainant and Ananda went out.

rpa 14/27 cri 761 of 1998.doc

After reaching village on 10th May, 1992, he decided to lodge

complaint with ACB. It is clear that he approached the ACB only when

the accused told him that it is diffcult to enter their names. If the

accuswed had indicated inability to enter names, the question of

making demand and further handing over Rs.,500/-, as bribe did not

arise. The complainant was aware that notices were required to be

issued to concerned parties. It seems without following procedure, he

wanted to record names, immediately. The accused did not tell him to

come with Rs.500/-, on particular date at particular place. Until he

lodged the complaint, he was visiting the appellant/accused on his

own and wherever the accused was available, which indicate his

desperation to get the work done anyhow. No credence can be given to

deposition of such witness. In the cross-examination, he further

stated that they did not go to the offce of Talathi at Panchgani and

again stated that they had been there. They reached the offce of

Talathi at Panchgani at 08:00 a.m. The offce was closed and Talathi

was not available. It was decided that they should see the accused

initially in his offce, and, if he is not available in the Bazar and if he is

not available there too, they should see him at his residence. He had

searched the accused in the Bazar. At that time, panchas and other

members of the raiding party were in the vehicle. As the accused was

not available in the Bazar, they went to his residence. The distance rpa 15/27 cri 761 of 1998.doc

between Panchgani to Bondarwadi is 7 to 8 kilometers. There were

about 14 to 15 persons in the raiding party. Version of the

complainant is not fortifed or corroborated by other witnesses. The

version depicts that although the accused had not told him to

approach him either at his residence or in the offce on 12 th May, 1992,

with bribe amount, the complainant was desperate to follow him

everywhere.

11 P.W.2 Suryakant Panditrao Chavan is the panch witness.

He has deposed that he visited ACB offce on 12th May, 1992 along with

another panch Mr.Ghodake. Complainant was present. Complaint was

read over to pancha witnesses. They were told about the raid to be

conducted. Appropriate instructions were given to the complainant

and the panch witnesses. Currency notes were arranged by the

complainant. Anthracen powder was sprinkled on notes. Panchama

was recorded. The complainant, panch witnesses and the members of

raiding party proceeded by private vehicle from Satara viz. Wai,

Panchgani and Bondarwadi. P.W.2 and complainant proceeded

towards the house of the accused. The other persons accompanying

were standing near tempo. The accused was coming from opposite

direction towards them. Complainant asked the accused as to where

he was going. Accused replied that he was going to Mahabaleshwar.

rpa 16/27 cri 761 of 1998.doc

The complainant inquired about his work. The accused told him that

he was holding two charges, and, therefore, the work could not be

done earlier. He offered them cup of tea and took them to his

residence. While proceeding the complainant told accused that he had

brought the balance amount of Rs.500/-, complainant also told

accused that as per his demand of Rs.1,000/-, he has already paid

Rs.100/- and Rs.400/- earlier. All of them entered house of accused.

Accused told complainant that he has to pay balance amount of

Rs.500/-. Accused served tea to them. Accused told complainant to

hand over balance amount of Rs.500/-, complainant gave the amount

to accused. Complainant gave signal to the raiding party and the

accused was caught. According to P.W.1, the amount was demanded by

the accused when he met him on the road on 12 th May, 1992. From the

evidence of P.W.2, it can be seen that they met the accused on the road

accidentally. Although the complainant enquired about work, the

accused did not demand money on the road. He took them to his

house. Before accused could demand money, the complainant told him

that he has brought balance amount of Rs.500/-. The complainant took

panch and raiding party towards the house of accused, although

complainant was not called at residence or offce by accused. P.W.2

has not stated that they frst went to the offce of the accused at

Panchgani, and, since he was not there, they went to his house. P.W.2 rpa 17/27 cri 761 of 1998.doc

did not state that it was decided to frst go to the offce of the accused

and if he is not there, then to Bazar and then to the residence of the

accused. P.W.2 did not state that after visiting the offce of the

accused, the complainant tried to fnd the whereabouts of the accused

in the Bazar, and, thereafter they went to the house of the accused.

Thus, there are major contradictions in the evidence of P.W.1 and

P.W.2.

12 In the cross-examination, P.W.2 has stated that he was

not shown any complaint or other documents on 11 th May, 1992,

pertaining to present case. There was no talk between both panchas

and complainant after they read complaint and signed it. They left

Satara at 06:00 a.m. While leaving Satara, they were aware that they

were proceeding to Bonderwadi. The instructions were given to effect

raid on Talathi wherever he would found whether in the

market(bazar), offce or residence at Bonderwadi. They did not go to

Talathi's offce at Panchgani or in the market in search of Dhebe

Talathi. The version of this witness runs counter to the version of

P.W.1. According to P.W.1, they went to offce at Panchgani, than to

Bazar and lastly to residence of accused. He did not state that

instructions were to effect raid whenever, accused is found. It is also

diffcult to accept that 14 to 15 members of the raiding party who had rpa 18/27 cri 761 of 1998.doc

visited village Bondarwadi towards the residence of the accused could

not be seen by the accused or any other person on the day of raid. The

witness, however, deposed that they were hiding themselves behind

the trees. P.W.2 has further deposed that when the complainant

inquired about his work, the accused told him that the work was

diffcult and the notices are required to be issued to interested

persons.

13 P.W.3 Anand Bhilare is relative of complainant (P.W.1).

According to him, on 7th May, 1992, P.W. 1 went to the offce of Talathi

at Panchgani. He met accused alongwith documents, and requested to

enter the name of his father to the record of rights. He was

accompanying him. The accused prepared the application and

obtained signature of the complainant on the same. The accused

demanded Rs.1,000/-, for mutating the name of father of P.W.1.

Complainant gave Rs.100/-, to accused. According to P.W.1, he had

visited the offce of the accused with P.W.3 on 1 st May, 1992. The

version of P.W.3 is that he visited the offce of the accused alongwith

complainant on 7th May, 1992. According to complainant, on 7 th May,

1992, he had visited the house of the accused along with P.W. 3. Thus,

P.W.3 has not referred to an incident dated 1st May, 1992. P.W.1 had

approached accused with documents on 26th April, 1992 and not on 7th rpa 19/27 cri 761 of 1998.doc

May, 1992. As per version of P.W.1, his name and the name of his

brother were to be entered in record and not the name of father of

P.W.1, as stated by P.W.3. He further stated that on 10 th May, 1992, he

along-with P.W. 1 went to the offce at Panchgani. Ravindra Dudhane

was with them. He waited out of Talathi offce. The accused asked

P.W.1 whether he brought money demanded by him. Complainant

handed over Rs.400/-. Accused told P.W.1 that unless he pays balance

amount, he woulod not do the work. P.W.3 is close relative of P.W.1.

His version has to be scrutinized cautiously. He has contradicted

P.W.1. In the cross-examination he stated that it requires about one

hour to reach Satara from Panchgani by S.T. bus. The offce of Talathi

is at Panchgani. P.W.1 had told him that he wanted to enter the name

of legal heir to the land of his grand father and such an application

was pending before Talathi. P.W.3 has stated that application was

written by accused while P.W.1 has given confusing versions about

who wrote the application. P.W.3 did not see any such application in

the offce of Talathi. The talk of demand of Rs.1,000/-, had taken place

in the offce of Talathi on 7 th May, 1992. Whereas, according to

complainant, on 7th May, 1992, they went to the house of the accused

and since he was not present at his residence, they went to the house

of his brother where he was available and paid an amount of Rs.100/-.

The demand of Rs.1,000/-, was made on 1st May, 1992 at the offce of rpa 20/27 cri 761 of 1998.doc

the accused. In the light of nature of contradictions between P.W.1 and

P.W.3, it would be diffcult to accept their version, which is full of

doubt.

14 P.W.4 Sambhaji Ghodake acted as a panch witness.

According to him, he was called at offce of ACB at Satara. On 12th May,

1992, he went to offce of ACB at Satara. Other pancha (P.W.2) also

visited offce of ACB. They were introduced to complainant. Complaint

was narrated to them. Arrangement was made to conduct trap. He

was instructed to be with raiding party. They proceeded by private

vehicle. They went to Bonderwadi. Thus P.W.4 has not referred to the

visit of raiding party and others at the offce of the accused at

Panchgani. Complainant and P.W.2 proceeded towards house of

accused while others scattered around house of accused. Complainant

gave signal. Accused was caught. Tainted notes were recovered.

Further procedure was completed. Since crowd had gathered, the

accused was taken to Tahsil offce at Panchgani. Documents seized

from offce. In cross-examination, he stated that, while they

proceeded to Bonderwadi from Satara on 12 th May, 1992, on the way

they did not go to offce of Talathi at Panchgani. Initially before they

left offce of ACB, Dy. S.P. Pandhare had instructed them that they

should go to Panchgani and than to Bonderwadi. Thus, according to rpa 21/27 cri 761 of 1998.doc

this witness, the raiding party or complainant did not go to Panchgani

offce. He further stated that Dy.S.P. Mr.Pandhare did not make

enquiry in transit whether accused is available at Panchgani or not. If

one walks half of distance from the house of accused, his house isi

seen. There are no houses near house of accused. Member of raiding

party were hiding themselves behind the tress for about 15 minutes.

The panchanama of seizure of currency notes, clothes and other

articles was made at Panchgani. On perusal of panchanama Exhibit-

17 it is not stated that accused was taken to Tahsil offce since people

had gathered near house of accused. According this witness

panchanama of seizure was recorded at panchgani. The other witness

had not corroborated this version.

15 P.W.5 Ashok Salagare is the panch witness for seizure of

diary produced by accused. On 19th May, 1992, the diary produced by

the accused was seized. There is no incriminating against the accused

in his evidence. He was not cross-examined. P.W.6 Laxman Sawant

was working as Tahasildar at Mahabaleshwar. He had referred to the

procedure for mutation entries. He was shown mutation register of

Khingar. The entry since 26th April, 1991 in the register are in

handwriting of accused. There are signatures of accused. Entries in

Varas Register are in handwriting of accused. P.W.7 Tukaram rpa 22/27 cri 761 of 1998.doc

Dudhane knows Sitaram Bhilare. Sitaram is no more. He was having

his property at village Dabhil, Taluka Poladpur. Santosh is son of

Sitaram. Ganpti was having agricultural land. P.W.8 Dagadu Rajpure is

agriculturist. According to him, he knows the accused. He had

purchased grass from him. The evidence of this witness is not

relevant. Evidence of P.W.Nos.5, 6, 7 and 8 does not disclose anything

incriminating against the appellant to support the charge. P.W.9

Bajirao Shadge was working as Revenue Circle Inspector at

Panchgani, Mahabaleshwar. He was asked to verify the accounts with

accused on 12th May, 1992. He verifed the account and reported that

all the dues recovered by the accused were deposited with

Government. He submitted written report to Tahasildar. The last

payment was made by him at State Bank, Mahabaleshwar on 5 th

March,1992. According lto him he worked as Revenue Circle Offcer

for seven years. If application is submitted to Talathi, he is required to

make inquiry within 30 days and to make entry accordingly. If the

concerned person does not come on oral summons, he is issued notice

in writing. Accused was working under him. P.W.10 Ravindra Dudhane

stated that on 10th May, 1992 he alongwith Santosh Bhilare and

Anand Bhilare had been to Talathi's offce at Panchgani. He waited

outside the offce of Talathi. P.W.1 and P..W.3 entered offce of Talathi.

They returned after 15 minutes. They told him that P.W.1 has paid rpa 23/27 cri 761 of 1998.doc

Rs.400/- to accused. P.W.11 Rajaram Mane was Sub Divisional Offcer

at Wai. He received letter from ACB about raid effected on the accused.

He was appointing authority and was requested to grant sanction for

prosecution. He accorded sanction. He was working as Deputy

Collector since 13 years. He worked as SDO. He stated that if an

application is submitted for mutation in the revenue record, notices

are issued to interested persons and 15 days time is given for return

of such notices. If no objection is lodged, mutation is certifed. It is

pertinent to note that the accused had told the complainant that such

notices are required to be issued. However, it seems that complainant

wanted immediate action and entry of his name in the record of

rights. P.W.11 further stated that he did not ask the ACB for

furnishing the complaint or panchanama for statement recorded

during trap. He dictated the sanctioned order to his clerk. It is

apparent that he did not call for any documents. There was no draft of

sanction order. The relevant documents, such as, panchanama and

statements recorded during trap were not placed before him. It

appears that the sanction was accorded without perusing relevant

documents.

16 P.W.12 Baburao Pandhare, is the police inspector. He

conducted investigation. He deposed that, P.W.1 approached his offce rpa 24/27 cri 761 of 1998.doc

on 11th May, 1992. He gave complaint of demand of bribe by accused.

The complainant and panchas were called on 12th May, 1992. The

complainant and panchas visited offce of ACB on 12th May, 1992. Pre-

trap preparation were made. Instructions were given to P..W.1, P.W.2

and P.W.4. Pre-trap panchanama was recorded. All the members of

the raiding party proceeded to Panchgani and Bonderwadi.

Complainant and panchas went to house of accused. Other waited for

signal. Complainant gave signal. Accursed was caught. Amount was

recovered. It was seized. Documents recovered. Investigation was

conducted. Sanction was obtained. Charge-sheet was fled. He

admitted that, on 12th May, 1992, initially they had not been to offce

of Talathi at Panchgani or in the Bazar. He did not give instructions to

panchas that they should initially go to the offce of Talathi at

Panchgani and if he is not available, go to Bazar and than S.T. stand

etc. The evidence of other witnesses is contrary to this aspect. They

did not go to offce of accused on 12 th may, 1992. Except P.W.1, none

had supported the fact that all of them went to offce of Talathi and to

Bazar.

17 Thus, the entire case of the prosecution speaks volume of

doubt and in such eventuality, the beneft of doubt must be given to

the accused. The prosecution has to establish its case beyond all rpa 25/27 cri 761 of 1998.doc

reasonable doubt. Demand and acceptance of bribe has not been

established. It is dangerous to accept the version of complainant and

other witnesses. In the case of Sujit Biswan Vs. State of Assam5, it is

held that, suspicion, however grave, cannot take the place of proof and

the prosecution cannot afford to rest it case in the realm of "must be"

true, but, has to upgrade its in the domain of "must be true", in order

to steer clear of any possible surmise or conjecture. The Court must

ensure that miscarriage of justice is avoided and if in the facts and

circumstances, two views are plausible, then the beneft of doubt must

be given to the accused. In A. Submir Vs. State of Kerala6, it is ruled

that the prosecution has ot prove the charge beyond reasonable doubt

like any other criminal offce and that the accused should be

considered innocent till it is established otherwise by proper proof of

demand and acceptance of illegal gratifcation, which are vital

ingredients necessary tobe proved to record conviction. In B. Jayraj

Vs. State of Andhra Pradesh7., it was observed that, mere possession

and recovery of currency notes from accused without proof of demand

would not establish offence under Section 7 as well as 13(1) (d) of the

Act. In the case of P. Satyanarayan Murthy (Supra) it is held that, the

proof of demand of illegal gratifcation is the gravamen of offence

under Sections 7, 3(1)(d) of the act. Mere acceptance of any amount

5 2013(3) BOM CR (Cri) 352 6 (2009) 6 SCC 587 7 (2014) 13 SCC 55 rpa 26/27 cri 761 of 1998.doc

as illegal gratifcation or recovery, dehors. The proof of demand would

not be suffcient to bring home charge. Similar view was adopted in

the case of State of Punjab Vs. Madan Mohan Lal Verma (Supra). This

Court in the case of Uttam Shere (Supra) has held that, when there

exists plausible explanation from accused, merely because tainted

currency notes found in possession of accused, statutory presumption

as envisaged under Section 20 cannot be drawn against accused. It is

settled law that before the accused is called upon to explain how the

amount in question was found in his possession, the foundational facts

must be established by prosecution.

18 Considering the nature of evidence on record, I am of the

opinion that the prosecution has failed to prove its case beyond

reasonable doubt. The conviction of the accused, therefore, required to

be set aside. Hence, I pass the following order:

:: O R D E R ::

(i) Criminal Appeal No.761 of 1998, is allowed;

(ii) The impugned judgment and order dated 22 nd

September, 1998, passed by learned Special Judge,

Satara in Special Case No.16 of 1992, convicting the rpa 27/27 cri 761 of 1998.doc

appellant, is set aside and the appellant is acquitted of

all the charges;

(iii) Criminal Appeal No.761 of 1998, stands disposed of

accordingly.

(PRAKASH D. NAIK, J.)