Nanasaheb Dhondiram Godse vs The State Of Mah
2022 Latest Caselaw 9714 Bom

                                                  Criminal Appeal No.650/2004
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.650 OF 2004


 Nanasaheb s/o Dhondiram Godse
 Age 36 years, Occu. Service,
 (Asstt. to Junior Engineer)
 Panchayat Samiti, Gangakhed,
 Presently at Panchayat Samiti,
 Sailu, Tq. Sailu, Dist. Parbhani                    ... APPELLANT

          VERSUS

 The State of Maharashtra
 through : Manik s/o Shivram Perake
 Anti Corruption Bureau, Parbhani,
 District Parbhani                                   ... RESPONDENT

                                .......
 Shri S.B. Bhapkar, Advocate for appellant
 shri R.B. Bagul, A.P.P. for respondent
                                .......

                                  CORAM :       R. G. AVACHAT, J.


          Date of reserving judgment : 28th March, 2022
          Date of pronouncing judgment : 23rd September, 2022


 JUDGMENT:

This appeal is directed against the order of

conviction and sentence dated 30/9/2004, passed by Special

Judge, Parbhani in Special Case No.4/2001. Vide impugned

order, the appellant herein has been convicted for the offence

punishable under Sections 7, 13(2) read with Section 13(1)(d)

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of the Prevention of Corruption Act (P.C. Act for short) and

sentenced to suffer rigorous imprisonment for one year on

both counts and to pay fine of Rs.500/- and Rs.1000/-

respectively, in default to suffer rigorous imprisonment for one

month and two months respectively. Both the substantive

sentences have been directed to run concurrently.

2. The facts in brief, giving rise to the prosecution

case are as follows :

P.W.1 Uttam (complainant) belongs to Scheduled

Caste. His financial status was below poverty line. The

Panchayat Samiti, Gangakhed had, therefore, sanctioned him

Rs.28,500/- for construction of house under "Indira Avas

Yojana". The appellant herein was serving as Assistant to

Junior Engineer. He came to the village of the complainant,

marked the lay-out of the proposed construction. The

complainant gave construction work to local mason. The

appellant would visit the site time to time to see the progress

of construction for release of the amount periodically. On

each occasion of release of funds, the appellant had made a

demand of bribe. The complainant paid him Rs.5000/- first.

Then paid Rs.3000/-. Again the appellant was paid a sum of

Rs.2000/-. While the final payment was to be released, the

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appellant made a demand of Rs.500/-. Since the complainant

did not wish to pay any more money to the appellant, he

approached the Anti-Corruption Bureau (A.C.B.), Parbhani and

lodged the complaint (Exh.10).

3. The Deputy Superintendent of Police, A.C.B.,

Parbhani, P.W.3 Manik Perke recorded the complaint on

9/2/2001. Since the appellant had asked the complainant to

pay him the money on 9th February itself, P.W.3 Manik Perke

secured presence of two Government officials to act as panch

witnesses. The complainant and panch witnesses were given

due instructions. Pre-trap panchanama was drawn. All of

them then set out for effecting a trap.

4. The complainant, accompanied by P.W.2 Vithal

Sukalkar, shadow witness, went to the office of the appellant.

On appellant's demand, the complainant paid him Rs.500/-

smeared with anthracine powder. He then came out of the

office and gave a pre-determined signal. The trap party

arrived. The bribe money (marked currency notes) came to

be seized from the appellant under the panchanama (Exh.20).

P.W.3 Manik Perke then lodged the F.I.R. He did investigation

thereof. All the papers of investigation were submitted to

P.W.4 Harshdeep Kamble, the then Chief Executive Officer,

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Zilla Parishad, Parbhani for obtaining his sanction for

appellant's prosecution. He, in turn, granted the same. The

appellant thus came to be proceeded against by filing the

charge sheet.

5. The trial Court framed the charge (Exh.4). The

appellant pleaded not guilty. His defence is of false

implication. According to him, authority to issue final bill did

vest with the Deputy Engineer. The appellant was no way

concerned with preparing final bill. One Bharat Swami, a son

of Panchayat Samiti Member - Smt. Saraswatibai Mala

Jangam had made a demand of Rs.5000/- as ransom. The

appellant refused to pay him money. The complainant,

therefore, lodged a false complaint at the behest of Bharat

Swami.

6. The trial Court, on appreciation of evidence in the

case, convicted and sentenced the appellant as stated above.

7. Heard. Learned counsel for the appellant would

submit that, the charge was defective. The appellant was not

serving as Assistant Junior Engineer. He was an Assistant to

Junior Engineer. In the charge, he has been described to have

held the post of Assistant Junior Engineer. He would further

submit that, there was no demand verification. The appellant

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had paid visit to the site many a time. The complainant

raised construction of his house in breach of rules and

conditions of the Scheme, "Indira Aavas Yojana". The

authority to draw final bill did vest with the Deputy Engineer.

The panch witnesses were not independent persons. Both of

them were serving with Police Hospital. The bribe money was

thrusted into the pocket of the appellant. On the question of

sanction for prosecution, learned counsel would submit that,

the authority concerned has not applied its mind before grant

of sanction (Exh.39). The same is evident from the sanction

order itself and the oral evidence of P.W.4 - sanctioning

authority. According to learned counsel, the trial Court ought

not to have convicted the appellant based on such evidence.

He, therefore, urged for allowing the appeal.

8. The learned A.P.P. would, on the other hand,

submit that, admittedly, the complainant was granted a sum

of Rs.28,500/- for construction of house under Indira Avas

Yojana. Admittedly, the appellant had paid visit to the site

many a time and cleared the bills by installments. The same

indicates the appellant to have had authority to make

measurements and clear the bills. The appellant, therefore,

could not be heard to say to have had no authority to make a

final bill. According to learned A.P.P., the oral evidence of the

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complainant and that of the shadow witness undoubtedly

make out a case of demand of illegal gratification and receipt

of the same by the appellant. Both these witnesses did not

have enmity to give evidence against the appellant. The

panchanama drawn soon after the trap has not been taken

exception to. The contents thereof reinforce the prosecution.

The sanctioning authority gave his evidence on oath. It is in

his evidence that, after having gone through all the papers of

investigation, the sanction (Exh.39) came to be accorded.

Tainted currency notes have been recovered from the

appellant. Presumption under Section 20 of the P.C. Act,

therefore, gets invoked. The learned A.P.P. ultimately urged

for dismissal of the appeal.

9. Considered the submissions advanced. Perused

the evidence in the case. To establish the charge, the

prosecution examined 4 witnesses and produced in evidence

certain documents. Let us appreciate the evidence in the case

and analyse the same as well.

10. The complainant belongs to Scheduled Caste. His

financial position was below poverty line. He was, therefore,

sanctioned subsidy under Indira Aaas Yojana. The subsidy

was for Rs.28,500/-. It is in his evidence that, the appellant

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had come to his village. He marked out the location. The

complainant constructed the basement. The appellant

threatened him to stop his further construction as the

basement was made in mud. It is further in his evidence,

after the work of basement was over, he received a cheque of

Rs.5000/-. The appellant demanded that much amount. He

threatened the complainant to make a report to stop further

construction. The complainant, therefore, paid the appellant

Rs.5000/-. After making further construction, the appellant

had again visited the site. He took measurement. On his

demand, the complainant paid him Rs.3000/- for release of

further funds. The complainant was short of funds. He,

therefore, sold his goats. After brick work was over, he placed

tin sheets thereon as a roof. Since he did not have money to

buy new tin sheets, he used old one. The appellant,

therefore, again threatened him to make a report in that

regard and made the complainant pay him Rs.2000/-.

11. It is further in the evidence of the complainant

that, after all the work was over, he met the appellant in his

office on 8/2/2001 and requested to release the remaining

amount of subsidy. The appellant again asked him to pay

Rs.500/- on the following day. Since he did not want to pay

the appellant bribe, he approached the A.C.B. It is further in

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his evidence that, he accompanied by shadow witness went to

the office of the appellant. The appellant met them at the

entrance of the Panchayat Samiti Office. Exchange of

greetings took place between the two. The appellant asked

him to come to his office. He went there. The appellant

enquired with him whether he has brought the money. The

appellant even asked him to pay the money and then only he

would prepare the final bill. The complainant, therefore, paid

the appellant a sum of Rs.500/-. He then came out of the

office and gave pre-determined signal. The trap party

arrived. The bribe money came to be recovered from the

appellant.

12. On the same lines is the evidence of the shadow

witness P.W.2 Vithal Sukalkar. The evidence of this witness is

relevant on the point of the appellant having met them at the

entrance gate of the Panchayat Samiti Office. He asked them

to come to his Chamber. The appellant there made a demand

of money. The complainant, in turn, paid him the amount.

The appellant kept the same in his trouser pocket.

13. Both these witnesses were subjected to a

searching cross-examination. Both of them did not give in. It

may, therefore, be said that, the factum of demand of bribe

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and acceptance thereof is proved by the evidence of these

witnesses. The evidence, however, indicates that, the

complainant is not a witness of truth. It is he who claims to

have paid the appellant illegal gratification. First Rs.5000/-,

then Rs.3000/- and afterwards Rs.2000/-. It is also in his

evidence that, if the construction was to be made through a

Contractor, the complainant was to receive a sum of

Rs.5000/- less. Admittedly, he had given a contract of

construction to a local Mason. In the official record, however,

it was shown that the construction was made by him through

labours. There is also evidence to indicate that, when the

construction was to be made of certain material, he

constructed the basement in mud. That was against the rules

and the terms of the Scheme. The complainant was expected

to use new tin sheets. Instead, he put old tin sheets on the

brick work, as a roof. This Court has, therefore, hesitation to

believe the evidence of the complainant.

14. It is true that, the shadow witness gave evidence

consistent with the prosecution case. Learned counsel for the

appellant has, however, reason to contend that, the shadow

witness was not an independent witness. Admittedly, P.W.2

was employee working with Police Hospital. The investigating

officer was in the cadre of Dy. Superintendent of Police. The

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learned counsel for the appellant has, therefore, reason to

contend that the shadow witness was bound to give evidence

as was expected by the prosecution agency.

15. There is another aspect of the matter. On

investigation, all the police papers along with the forwarding

letter were submitted to the Chief Executive Officer for

obtaining his sanction. A communication in that regard made

to the sanctioning authority is on record. The sanctioning

authority was requested to give sanction in his own words.

The said communication is at Exh.29. The relevant paragraph

reads as below :-

"आररपप लरकससवक शप. ननननसनहसब धधडपरनम गरडसस, सहनययक कननष अनभययतन, पयचनयत सनमतप, गयगनखसड यनयनन कनढढ न टनकणसस आपण सकम अधधकनरप (competent authority) आहनत अशप आमचप धनरणन आहस. आमचप धनरणन बररबर असलयनचप ककपयन खनतप करनवप.

६) जर आमचप धनरणन बररबर अससल तर आपण यन सरबत पनठनवणसत यसत असलसलयन तपनसनचस कनगदपतनयचयन छनयनयनकत पतपचयन सयचनचन अभयनस करनवन व जजवहन आपण वर नमढद आररपप लरकससवकननवरद अनभयरग लनवणयनचप परवननगप दसणसचयन ननणर यनस यनल तजवहन यन सरबत जरडलसलस बयद पनककट उघडढ न तयनत असलसलयन मयजजरप मसजदनपमनणस (Draft Sanction Order) तयनतपल तपनशलनचयन अचढकपणनबनबतचप सवतत खनतप करन अनभयरगनचप मयजढर पत आपलस सवततचस

Criminal Appeal No.650/2004 :: 11 ::

शबदनत आपलयन कनयनरलयपन टयकलसखन ययतनवर पजनहन वसगळयन कनगदनवर तपन पतपत नवयननस टयकधलखपत करन तयनवर शनईचप सहप तनरखससह करन आपलयन कनयनरलयनचन गरल नशककन मनरन पजढपल ररतसर कनयदसशपर कनयर वनहप करणससनठप यन कनयनरलयनस हस पत पनप झनलयनपनसढन ७ नदवसनचस आत (एक आठवडनचस आत) वन ततपढवर न चजकतन पनठवनवस , हप नवनयतप."

16. Admittedly, two draft sanctions were supplied to

the sanctioning authority P.W.4 Harshdeep Kamble along with

the said communication. P.W.4 Harshdeep Kamble has

admitted in no uncertain terms that, he prepared the sanction

order (Exh.39) on the basis of draft sanction order. True, it is

in his evidence that, he had gone through all the police papers

before according the sanction. He, however, went on to admit

that the sanction order (Exh.39) and the draft sanction order

supplied to him were same in verbatim. The sanction order

(Exh.39) accorded by him even did not bear Outward Number.

It is also silent to state or refer to the document perused by

him before grant of sanction. The learned counsel for the

appellant is, therefore, justified in contending that the

sanctioning authority appears to have not applied mind for

grant of sanction. It is true that, this Court is dealing with an

appeal. The sanction had, however, been taken exception to

before the trial Court itself. It was within the powers of the

sanctioning authority as to whether to accord the same or

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not. The learned counsel for the appellant has reason to

contend that, had P.W.4 Harshdeep Kamble really applied his

mind, even he might have refused to accord such sanction.

As such, the issue of exception to validity of sanction goes to

the root of the matter.

17. In view of this Court, the trial Court, in the facts

and circumstances of the case, erred in convicting the

appellant. This Court is not at one with the findings recorded

by the trial Court. In short, the evidence of the complainant

does not inspire confidence. The panch witness was an

employee of the Police Department (Police Hospital). The

sanctioning authority appears to have accorded the sanction

mechanically. These factors lead this Court to allow the

appeal. Hence the order :

ORDER

(i) The Criminal Appeal is allowed.

(ii) The order of conviction and sentence dated 30/9/2004,

passed by Special Judge, Parbhani in Special Case No.4/2001

is set aside. The appellant is acquitted of the offences

punishable under Sections 7, 13(2) read with Section 13(1)(d)

of the Prevention of Corruption Act. Fine amount, if paid, be

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refunded to the appellant.

(iii) Bail bonds of the appellant are cancelled.

( R. G. AVACHAT ) JUDGE

fmp/-