Uttam Mohan Khajekar vs State Of Maha
2022 Latest Caselaw 11598 Bom

                                                                    Cri. Appeal No.465 of 2004.odt


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO.465 OF 2004

Uttam s/o. Mohan Khajekar,
Age: 52 years, Occ. Service,
r/o. Khultabad, Dist. Aurangabad                                         ..Appellant
               Vs.

The State of Maharashtra                                                 ..Respondent

                                 ----
Mr.C.P.Sengaonkar, Advocate for appellant
Mr.S.P.Sonpawale, APP for respondent
                                 ----

                                             CORAM : R.G. AVACHAT, J.

RESERVED ON : APRIL 29, 2022 PRONOUNCED ON : NOVEMBER 15, 2022

JUDGMENT :-

The challenge in this appeal is to judgment dated

14.07.2004 passed by learned Special Judge, Aurangabad, in Special

Case No.7 of 2001. Vide the impugned judgment, the appellant has

been convicted for the offences punishable under Sections 7

and 13(1)(d) and (2) of the Prevention of Corruption Act, 1988 ("P.C.

Act", for short) and therefore, sentenced to suffer rigorous

imprisonment for six months and to pay a fine of Rs.200/-; and to

suffer rigorous imprisonment for one year and to pay a fine of

Rs.200/-, respectively.

2. The Facts, giving rise to the present appeal, are as

follows:-

PW 2 - Ambadas (complainant) was resident of village

Mohamadpur. He had purchased 19 R land in Gut No.26 from his

brother - Sarjerao for Rs.14,000/- on 27.04.2000. Fifteen days

after execution of the sale deed, he met the appellant, then Talathi

of village, and requested him to record his name in 7/12 extract of

the land purchased. The appellant asked him to come with a copy

of the sale deed, form no.4 duly signed by the vendor and a sum of

Rs.400/-. Since the complainant did not wish to pay the appellant

bribe, he approached the office of Anti Corruption Bureau (A.C.B.),

Aurangabad, on 23.05.2000 and lodged the complaint (Exh.15).

3. PW 4 - Narayan Tandale, Police Inspector, A.C.B.,

decided to lay a trap. He, therefore, secured presence of two State

Government employees to act as panch witnesses. A pre-trap

panchnama (Exh.17) was drawn. He then asked the complainant

and panchas to come to the office of A.C.B. on the following

morning. They, accordingly, came there. The A.C.B. officials along

with the complainant and the panchas proceeded to the office of the

appellant, at Khultabad. The complainant and PW 3 - shadow

witness went ahead. They were duly instructed. The complainant

met the appellant in his office on 24.05.2000. The appellant made a

demand of Rs.400/- for taking mutation entry and issued 7/12

extract. The complainant, in turn, held the bribe money of Rs.400/-.

The appellant received the same. The complainant then gave a pre-

determined signal. The A.C.B. officials arrived. The bribe money

came to be seized from the appellant. The trap panchnama

(Exh.18) was drawn. Post trap panchnama was also drawn vide

Exh.20.

4. PW 4 - Tandale recorded the statements of the persons

acquainted with the facts and circumstances of the case. He then

sent the papers of investigation to PW 1 - Mohan Katte, Sub-

Divisional Officer, Vaijapur, who, in turn, accorded sanction (Exh.10)

to prosecute the appellant. The appellant, thereafter, came to be

proceeded against by filing charge sheet.

5. The trial Court framed Charge (Exh.7). The appellant

pleaded not guilty. His defence was of false implication. The

appellant admitted receipt of sum of Rs.400/-. It is, however, his

case that a sum of Rs.550/- was due towards the land revenue from

the complainant's brother - Deorao. He had issued 7/12 extract in

the name of Deorao to the complainant, on receipt of Rs.400/-

towards the land revenue. A receipt was also prepared in that

regard. The receipt was required to be prepared in triplicate. The

Investigating Officer took one part of the receipt. He, however, did

not place it on record of the trial Court.

6. On appreciation of the evidence in the case, the trial

Court convicted the appellant and sentenced to imprisonment, as

stated above.

7. Heard learned counsel for the parties.

8. Mr.C.P.Sengaonkar, learned counsel for the appellant,

would submit that the complainant tried to run with the hare and

hunt with the hounds. He gave vital admissions in his cross-

examination. The complainant almost went back on his complaint.

The trial Court ought not to have convicted the appellant in such a

scenario. A moral conviction has no place in the criminal

jurisprudence. He, therefore, urged for allowing the appeal.

9. Learned APP would, on the other hand, submit that the

appellant admitted to have received the bribe money. The

complainant's evidence is consistent with his complaint (Exh.15).

The evidence of PW 3 - shadow witness reinforces the prosecution

case. The appellant did not offer explanation of having received the

amount towards the land revenue cess immediately after he was

trapped. As such, whatever defence he has come with, is

afterthought. The land revenue receipt was in the name of the

complainant's brother. The mutation entry was to be taken in the

name of the complainant. The demand of illegal gratification was in

that regard. The evidence of the Investigating Officer reinforces the

prosecution case about seizure of the bribe money from the

appellant. Learned APP, therefore, urged for dismissal of the appeal.

10. Considered the submissions advanced. Perused the

evidence relied on.

11. Admittedly, the complainant had purchased 19 R of land

in gut no.26 from his brother, Sarjerao, for Rs.14,000/- on

27.04.2000. It is in his evidence that 15 days after execution of the

sale deed, he had met the appellant, who was then Talathi of village

Sajja, Khultabad. The complainant requested the appellant to

record his name in the revenue record of the land purchased. The

appellant, in turn, asked him to come with a copy of the sale deed,

form no.4 duly signed by the vendor and a sum of Rs.400/-. The

complainant agreed to meet him after a while. It is further in his

evidence that on 23.05.2000, he was present at bus stand of village

Sultanpur. His friends - Dadarao Malkar and Vithal Jadhav were with

him. He saw the appellant proceeding on a motorbike towards

Khultabad. It was 10.00 in the morning. He stopped the appellant

and told that he would be visiting him on the next day with requisite

documents. The appellant also asked him to come with Rs.400/-. It

is further in his evidence that as he did not wish to pay the appellant

bribe, he approached the office of A.C.B., Aurangabad. PW 4 -

Tandale recorded the complaint (Exh.15). PW 4 - Tandale asked him

to come on the following day. The complainant, accordingly, went to

the office of A.C.B. on 24.05.2000. One Shrihari Mundhe and Mohd.

Saleem were present to act as panch witness. They went through

the written complaint lodged by the complainant. PW 4 - Tandale

gave all of them due instructions. The sum of Rs.400/- in the

currency notes of Rs.100/- denomination were applied with

anthracene powder. Pre-trap panchbnama (Exh.17) was prepared.

12. It is further in the evidence of the complainant that he

along with PW 3 - shadow witness proceeded ahead for the

appellant's office. The trap party headed by PW 4 - Tandale followed

them. The complainant and PW 3 - shadow witness entered the

appellant's office. It was 11.00 in the morning. A copy of the sale

deed, duly filled in form no.4 along with the application for mutation

entry were given to the appellant. The appellant made some entry

in the register. The complainant asked him to give 7/12 extract. He

gave him 7/12 extract of the land of his brother - Deorao. The

appellant then made mutation entry. He then made demand for

money for mutation entry. The complainant held the bribe money

before the appellant, who, in turn, received the same and placed it

in his shirt pocket. The complainant then went out of the office and

gave the pre-determined signal. Rest followed, i.e. the trap party

arrived, the appellant was over powered and the bribe money came

to be seized from him. The spot/trap panchnama (Exh.18) was

drawn.

13. PW 3 - Mundhe, shadow witness, gave evidence

consistent with the evidence of the complainant. Same is, therefore,

not reproduced in extenso. It is in his evidence that he accompanied

the complainant as a shadow witness. Both went to the office of the

appellant. The appellant made demand of Rs.400/- for mutation

entry. The complainant then held the amount before the appellant,

who, in turn, received the same. It is further in his evidence that

the trap-panchnama (Exh.18) was drawn in his presence. This

witness also gave evidence as regards pre-trap panchnama.

(Exh.17.).

14. Both complainant and PW 3 - shadow witness were

subjected to searching cross-examination. It is in response to the

questions put to him during the cross-examination, the complainant

deposed that Sarjerao and Deorao were his brothers. The trio

owned lands in various block numbers. The land gut no.26 belonged

to the complainant. He had sold it to Sarjerao. His field in gut

no.44 was in possession of Sarjerao. Sarjerao did not repay him the

full money but executed sale deed in his favour on 27.04.2000. He

thought that the mutation of the land gut no.26 was not recorded.

He also felt that the appellant made mutation entry in favour of his

brother - Sarjerao. There was some discontentment with him. He

also wanted to obtain 7/12 extract of the land of his brother -

Deorao. He had therefore, met the appellant many a time. The

complainant went on to state that the appellant had asked him to

come with the amount, which was outstanding towards the revenue

of the land in the name of his brother - Deorao. The complainant

was not willing to pay the amount to the appellant. His friends -

Dadarao Malkar and Vitthal Jadhav had brought him to the office of

A.C.B. The appellant had only inquired with the complainant, as to

whether he had brought the money. The complainant, however,

denied that the appellant then prepared a receipt and delivered to

him. It is further in his evidence that he had no good relation with

his brother - Sarjerao. The appellant was on good terms with

Sarjerao. He, therefore, felt that the appellant may delete his name

from the revenue record on account of the appellant's good relations

with Sarjerao.

15. PW 4 - Tandale, Investigating Officer, testified that the

appellant gave his statement vide Exh.23, soon after the bribe

money came to be seized from him. If one goes through the said

statement, it would be evident therefrom that the complainant and

his two friends had met the appellant. The complainant asked for

7/12 extract of the land of his brother - Deorao. He told the

complainant that unless the arrears of the land revenue of Rs.550/-

was paid, no 7/12 extract in the name of Deorao could be issued.

The amount of Rs.400/- that was paid by the complainant to the

appellant as bribe money, was, in fact, towards arrears of the land

revenue. The statement further recites that the appellant prepared a

receipt in that regard. While he was writing the counter part of the

receipt, the Investigating Officer seized Rs.400/- from him. The

counter part of the receipt remained to be prepared.

16. The appellant also placed on record of the trial Court a

communication made by the Tahsildar, Khultabad, on 22.02.2004. It

has been stated therein that a sum of Rs.550/- was outstanding

from Deorao towards the land revenue for the year 1999-2000. The

receipt, which was being prepared by the appellant at the relevant

time, has also been placed on record. There is also material to

indicate that the mutation entry about the land purchased by the

complainant, had already been made by the appellant.

17. The sanction (Exh.10) for prosecution of the appellant

has not been taken exception to before this Court. Although the

complainant lodged the complaint, alleging the appellant to have

made demand of illegal gratification of Rs.400/- for recording the

complainant's name in the revenue record of the land purchased by

him from his brother, the complainant, during his cross-examination,

testified that he had three brothers and all the three brothers owned

lands in various gut numbers. He wanted to have 7/12 extract of

the land in the name of his brother - Deorao. The appellant told him

that Deorao was in arrears of land revenue of Rs.550/- and unless

the same is cleared, no 7/12 extract could be issued. It is further in

his evidence that his friends - Dadarao Malkar and Vithal Jadhav

took him to the office of A.C.B. The same indicates that the

complainant was not willing to lodge the complaint.

18. There is evidence to indicate that Deorao was in arrears

of the land revenue amounting to Rs.550/-. No sooner the appellant

was trapped, he offered the explanation (Exh.23), reiterating his

case that he had asked the complainant first to clear the outstanding

of the land revenue. The amount received by him was towards the

land revenue. He had prepared a receipt to be issued to the

complainant. The receipt was to be issued in triplicate. While he

was about to prepare the counter part of the receipt, he was

trapped and the amount came to be recovered. The explanation

offered by the appellant was prompt and very first in point of time

no sooner he was overpowered. The explanation, therefore, stands

on higher pedestal. Same cannot be termed as an afterthought

defence.

19. True, it might be a case of the complainant to have

lateron been won over by the appellant. The fact, however, remains

that the evidence of the complainant in the examination-in-chief,

having been altogether diluted accepting the case of the appellant

that the demand was towards the land revenue, the same leads this

Court to observe that the trial Court ought not to have convicted the

appellant in the facts and circumstances of the case.

20. In view of the above, interference with the impugned

judgment is warranted. The appeal, thus succeeds.

21. Hence, the following order:-

(i)                The appeal is allowed.


(ii)               The impugned judgment of conviction and order of

sentence dated 14.07.2004 passed by learned Special Judge, Aurangabad, in Special Case No.7 of 2001, is set aside.

(iii) The appellant is acquitted of the offences punishable under Sections 7 and 13(1)(d) and (2) of the Prevention of Corruption Act, 1988.

(iv)            His bail bonds stand cancelled.


(v)             Fine amount deposited by the appellant, if any, be
                refunded to him.




                                             [R.G. AVACHAT, J.]

KBP