Ghanashyam Hari Pagare vs State Of Maharashtra
2023 Latest Caselaw 921 Bom

                                                   1 / 25                 223-APEAL-651-01.odt

                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                           CRIMINAL APPEAL NO.651 OF 2001

                       Ghanshyam Hari Pagare
                       Age : 52 years, Occ : Talathi,
                       Samnera, Tal. Igatpuri,
                       Dist. Nashik                                    .... Appellant

                                        versus

                       The State of Maharashtra
                       (At the instance of
                       Anti Corruption Bureau, Nashik)                 .... Respondent
                                                     .......

                       •       Mr. Jagdish G. Aradwad (Reddy) a/w Ashwini Jadhav,
                               Advocate for Appellant.
                       •       Mr. S. R. Agarkar, APP for the State/Respondent.

                                                  CORAM      : SARANG V. KOTWAL, J.
                                                  DATE       : 30th JANUARY, 2023

                       JUDGMENT :

1. The Appellant has challenged the Judgment and Order

dated 10/08/2001 passed by the Special Judge, Nashik, in

Special Case No.4 of 1993. He was convicted and sentenced as

Digitally follows :

          signed by
          MANUSHREE
MANUSHREE V
V         NESARIKAR
NESARIKAR Date:
          2023.02.03
          17:28:50
          +0530

(a) The Appellant was convicted for commission of

Nesarikar 2 / 25 223-APEAL-651-01.odt

offence punishable u/s 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act') and was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.500/- and in default of payment of fine to suffer rigorous imprisonment for three months.

(b) He was also convicted for commission of offence punishable u/s 13(1)(d) r/w 13(2) of the PC Act and was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer rigorous imprisonment for six months.

(c) Both the sentences were directed to run concurrently.

2. Besides the Appellant, there was one more accused i.e.

accused No.2 Vishnu Dagdu Gaikar. He was acquitted from the

charges of commission of offence punishable u/s 7 and 12 of the

PC Act. He was completely acquitted. He was not charged for any

other offence.

3. Heard Mr. Jagdish G. Aradwad (Reddy), learned 3 / 25 223-APEAL-651-01.odt

counsel for the Appellant and Mr. S. R. Agarkar, learned APP for

the State.

4. The prosecution case is that the complainant, Ashok

Jadhav had an ancestral land at village Samnera, Taluka Igatpuri,

District Nashik. After death of his father on 08/05/1991 he had

made an application for transferring the land in his own name. It

is alleged that on 12/11/1991, the complainant met the Appellant

in his office. It is alleged that the Appellant demanded Rs.400/- for

doing his work. On 17/11/1991 the Appellant had gone to his

village. Even on that day again, he repeated the demand. The

complainant did not want to make the payment. Therefore he

approached the ACB ofifce at Nashik and gave his complaint. The

officer arranged for two Panchas, preparation was made to

conduct the raid and on 19/11/1991 in the morning, the raiding

party along with the Panchas and the complainant went to the

office of the Appellant. Initially the Appellant handed over one

extract of the piece of land to the complainant and he asked the

complainant to come back after 15 minutes. The complainant and

the Pancha again went to the office of the Appellant. But at that 4 / 25 223-APEAL-651-01.odt

time, he was not in the office. He had gone in the village. The

complainant and the Pancha went in search of him. They met him.

The Appellant, the Pancha and the complainant then went to a

hotel to have tea. In the meantime, the accused No.2 came there.

It is the prosecution case that the accused No.1 told the accused

No.2 to accept the money from the complainant and then he left

for his office. The complainant handed over Rs.400/- to the

accused No.2 and gave the prearranged signal to the raiding party.

The accused No.2 was caught. His hands and the currency notes

were checked under the ultra violet lamp. The prosecution case is

that the accused No.2 had accepted the amount on behalf of the

accused No.1. The raiding party went to the office of the accused

No.1. In the office, another extract was seized. The ACB officer

then lodged his FIR at Ghoti police station at C.R.No.24/1991. The

investigation was carried out and the sanctions were obtained.

Both the accused were working in different capacities as public

servants. Therefore sanctions were obtained from their superiors.

The charge-sheet was filed. The case was tried before the Special

Judge as mentioned earlier.

5 / 25 223-APEAL-651-01.odt

5. During trial, the prosecution examined six witnesses

including the complainant, the Pancha, the Investigating Officer

and the two sanctioning authorities. The defence of the accused

was of total denial. In addition, the Appellant gave his written

statement and also stated in the answer to the question put to him

that he had exchange of words with the complainant during the

Appellant's election duty. The complainant had abused him and

had threatened the Appellant. He further stated that the

complainant was a Sarpanch of the village Samnera, Taluka

Igatpuri. In 1990 the Appellant was on election duty in village

Malunje. There was quarrel between the workers of two political

parties. They had entered the area of 100 mtrs from the election

booth. The Appellant had cautioned the complainant who had

taken offence to this warning. Apart from that, one Laxman Ugale

was the complainant's relative and there was a case pending in

respect of Gat No.207. It was decided against Laxman Ugale.

Therefore, the complainant and Laxman were holding grudge

against the Appellant. Third reason given by the Appellant was 6 / 25 223-APEAL-651-01.odt

that there was a case of misappropriation against the complainant.

There were allegations of misappropriation to the tune of

Rs.65,000/-. The complainant was pressuring the Appellant to

help him, but since the Appellant did not co-operate, the

complainant threatened him and lodged this false case. The

Appellant then produced some certificates for his satisfactory

work. They are produced on record at Ex.53.

6. The complainant Ashok Jadhav is examined as P.W.3. He

has deposed that he owned an ancestral land at Samnera. His

father passed away on 08/05/1991. P.W.3 collected the death

extract and approached the Appellant for making entry in the

records. He made an application. P.W.3 was the Sarpanch at that

time. For that purpose, he visited the Talathi's office on many

occasions. The Appellant was the Talathi of that village. On

12/11/1991, P.W.1 went to Talathi's office. He was accompanied

by one Laxman Ugale. P.W.3 asked the Appellant to give the

extract. P.W.3 has deposed that the Appellant told him that he

would not take money from him, but he was required to pay the 7 / 25 223-APEAL-651-01.odt

amount to his superiors and therefore some amount was necessary.

P.W.3 then asked him how much amount was to be paid. The

Appellant told him that he had to pay Rs.400/-. P.W.3 told the

Appellant that he would come on the next Tuesday along with the

amount. It is his case that the Appellant told him that unless the

amount was paid, P.W.3 would not get the extract.

7. On 17/11/1991, the Appellant came to the village of

P.W.3 and met him on the way in the evening. At that time also,

P.W.3 asked him to give the extract. Again the Appellant demanded

money. He asked P.W.3 to meet him on 19/11/1991 between 10.00

a.m. to 11.00 a.m. with the amount and then collect the extract.

8. On 18/11/1991 P.W.3 went to the office of ACB and

lodged the complaint. The complaint is produced on record at

Ex.30. The ACB officer called him on 19/11/1991 at 07.00 a.m.

He went to the office at that time accordingly. The Panchas were

present in the office. The Panchas signed the complaint given by

him. The pre-trap Panchanama was prepared. It is produced on

record at Ex.22.

8 / 25 223-APEAL-651-01.odt

9. All of them went to Ghoti. They reached the Appellant's

office at about 10.15 a.m. P.W.3 asked the Appellant to give him

the extract. The Appellant told him that there was crowd. P.W.3

told him that he wanted to go to hospital. After that, the Appellant

gave him the extract in respect of Gat No.187. P.W.3 told the

Appellant to take the amount and to give all the extracts. The

Appellant told him to come back at around 11.00 a.m.

10. P.W.3 and the Pancha Ghote then went to the village and

returned after 15 minutes. The Appellant was not in the office.

Both of them came to the ground floor. They saw that the

Appellant was standing near a hotel. They went there. P.W.3 told

the Appellant to accept the amount and that he wanted to go to

hospital. Then they had milk. After that, the accused No.2 Gaikar

came to the hotel. The Appellant told P.W.3 to pay the amount to

the accused No.2 Gaikar. P.W.3 paid the bill for the milk and all of

them started going toward's Talathi's office. P.W.3 has further

deposed that he paid amount to the accused No.2 on the road 9 / 25 223-APEAL-651-01.odt

adjoining the office. He took out the tainted amount with his right

hand from the left side chest pocket of his shirt. The accused No.2

Gaikar accepted that amount with his right hand. He counted the

money with his both hands and then asked P.W.3 for what purpose

that amount was given. P.W.3 told the accused No.2 Gaikar that he

was instructed to pay that amount by accused No.1 i.e. Appellant.

The Appellant proceeded further to his office. The others i.e. P.W.3

the Pancha and the accused No.2 followed him. P.W.3 gave the

signal. The raiding party members came there and caught the

accused No.2. Then they entered the Talathi's office on the first

floor. P.W.3 was asked to wait outside. He was called inside after 15

minutes. One extract was found with him. His shirt pocket was

showing shining spots under the UV light. The extract was seized

from him. It is produced on record at Ex.31. His statement was

recorded on 22/11/1991.

In the cross-examination he deposed that the Talathi

used to visit different villages. The Appellant was having

jurisdiction over village Malunje, Samnera, Mogare and Ghoti. On 10 / 25 223-APEAL-651-01.odt

Tuesday and Saturdays he used visit Ghoti. He admitted that the

Appellant had made enquiry and had sent the matter to the Circle

Officer. He also admitted that Laxman was his relative and that

there was dispute between Laxman Ugale and Bala Jadhav in

respect of Gat No.205 and the decision went against Laxman

Ugale. He denied other suggestions about his deposition being

false. However, he admitted that he had not mentioned in the

complaint given to the ACB Officer that the Appellant demanded

the amount on the pretext of making payment to his superior. He

had not stated that he had asked the Appellant how much was to

be paid and then the Appellant had answered that he had to pay

Rs.400/-. P.W.3 could not assign any reason as to why these facts

were not mentioned in his complaint at Ex.30 and in his other

statement. These omissions are important in this context of the

case. He then denied the suggestion which were put to him in

consonance with the Appellant's defence regarding the quarrel

during the election period and other reasons. The cross-

examination on behalf of the accused No.2 was quite effective. He

admitted that the accused No.2 had no concern with P.W.3's 11 / 25 223-APEAL-651-01.odt

matter. The accused No.2 had no concern with the Talathi's office.

When P.W.3 was about to pay the bill for milk, the accused No.2

told the Appellant that the Appellant should give his extracts

immediately as he wanted to go back to Mumbai. The Appellant

asked the accused No.2 to come to Talathi's office and that he

would give him the extracts. After that, the accused No.2 came out

of the hotel and started going towards the office. P.W.3 has

importantly admitted that he paid the tainted amount to the

accused No.2 because it was already with P.W.3 and he wanted to

pay atleast to somebody. He further admitted that the accused

No.2 Gaikar was not ready to accept that amount. P.W.3 then

further admitted that he paid the amount in the hand of accused

No.2 saying that the Appellant had given such instructions to

P.W.3. All these admissions are important to show that the amount

was thrust by P.W.3 in the hand of the accused No.2, who did not

know for what purpose the amount was being thrust in his hand.

11. P.W.4 Yuvraj Ghote was a Pancha who had accompanied

P.W.3 at the time of trap. He has deposed that he and the other 12 / 25 223-APEAL-651-01.odt

Pancha Pardeshi were serving in Adivasi Vikas Directorate Nashik.

On 18/11/1991 they had gone to ACB Office as per the

instructions given by their superior officer. They agreed to act as

Panchas. They were called on the next day i.e. on 19/11/1991. On

that day they reached the ACB office at 09.00 a.m. They met the

complainant. They verified the complaint which is at Ex.30. They

signed it. Thereafter pre-trap Panchanama was prepared. It is

produced on record at Ex.22. The raiding party proceeded towards

Ghoti. P.W.4 himself accompanied P.W.3 to the office of Talathi.

Others followed them by keeping some distance. They reached the

Talathi's office at 10.00 a.m. The Appellant was sitting there. P.W.3

demanded the extract. The Appellant gave him extract of Gat

No.187 (Ex.31). He then told P.W.3 to come back at 11.00 a.m. as

there was crowd. P.W.3 and P.W.4 then came to the ground floor.

They met PI Datar. The complainant showed the extract Ex.31 to

him. At 11.00 a.m. P.W.3 and P.W.4 went to the Talathi's office. The

Appellant was not there. Therefore both of them went in search of

the Appellant. They saw the Appellant in front of a restaurant.

P.W.3 invited the Appellant to that restaurant to have milk. They 13 / 25 223-APEAL-651-01.odt

had milk. P.W.3 told the Appellant that he wanted to go to the

hospital and that he wanted the extracts and that he had brought

the amount. The Appellant told P.W.3 to pay the amount. P.W.3 put

his hand in his pocket, but by that time accused No.2 came there.

The Appellant told P.W.3 to wait for some time. All of them started

going out of the hotel. When P.W.3 was paying the bill, the

Appellant instructed the accused No.2 accept whatever P.W.3 was

paying. The Appellant then told the complainant to pay the

amount to the accused No.2. The accused No.2 told the Appellant

that he wanted to go to Mumbai and that he wanted his extract.

The Appellant told the accused No.2 to come to his office and that

he would be given those extracts. Saying this, the Appellant went

to his office. The accused No.2 started following him. P.W.3 and

P.W.4 also followed the accused No.2. When they reached Talathi's

office, P.W.3 asked the accused No.2 to accept the amount. P.W.3

took out notes with his right hand from his left side pocket of his

shirt. The accused No.2 accepted that amount in his right hand.

P.W.3 gave the prearranged signal. The other raiding party

members immediately came there with the other Pancha. They 14 / 25 223-APEAL-651-01.odt

caught the accused No.2. The accused No.2 told them that he had

accepted the amount as per the instructions of the Appellant. The

Appellant denied that immediately. Then further procedure was

completed. The Anthracene powder was seen on both hands of the

accused No.2. The number on the notes were tallied with the pre-

trap Panchanama. The office of the Appellant was searched. Some

documents were seized which are produced at Ex.32, 33, 34 and

36. Those are the documents about various applications made by

P.W.3 and Ex.36 is the extract in respect of Gat No.46 showing the

name of P.W.3. It was mentioned that it was prepared on

19/11/1991 itself. The complainant's hand was seen under the UV

light. His right hand and the chest pocket of the shirt showed

presence of Anthracene powder. The post-trap Panchanama was

prepared, which is produced on record at Ex.37.

The cross-examination of this witness is largely about the

suggestions which he had denied.

12. P.I. Ganesh Datar was examined as P.W.5. He was the first

Investigating Officer. He was attached to ACB, Nashik. He has 15 / 25 223-APEAL-651-01.odt

deposed that on 18/11/1991, P.W.3 approached their office and

lodged the complaint, which is produced on record at Ex.30. P.W.5

then arranged for two Panchas and made preparation to conduct

the raid on 19/11/1991. He then prepared the pre-trap

Panchanama, which is produced at Ex.22 and then left ACB's office

at 09.00 a.m. for proceeding to Ghoti. He has then described the

incident of trap as was seen by him. He was at some distance and

he could see the incident from the point when a constable rushed

to accused No.2 Gaikar and caught his hand after P.W.3 had given

the prearranged signal. He then described the procedure of

checking the hands of the accused No.2 and the complainant. He

lodged his complaint at Ghoti police station vide C.R.No.24/1991.

He conducted the investigation.

In the cross-examination he admitted that the heirship

entry was made in the record in August 1991 itself.

13. P.W.2 PI Nitin Mitkar was working as PI, ACB, Nashik. He

took over the investigation on 24/06/1992. He obtained the

sanction orders and submitted the charge-sheet on 22/07/1993.

16 / 25 223-APEAL-651-01.odt

14. P.W.1 Vikas Deshmukh was the Sub Divisional Officer in

Nashik Division at the relevant time. He was the Sanctioning

Authority empowered to accord sanction against the Appellant. He

received the papers of investigation in this case on 15/05/1993

and he accorded the sanction on 17/05/1993. It is produced on

record at Ex.26.

In the cross-examination he admitted that the draft

sanction was sent to him. But from the cross-examination of this

witness, there is nothing to indicate that he had not applied his

mind while according the sanction or that he was not competent

to accord the sanction. Therefore, the Appellant cannot take any

advantage from his evidence for challenging the sanction to

prosecute the Appellant.

15. P.W.6 Pradipkumar Garg was the Divisional Engineer,

Central Railway in Mumbai, in 1993. Accused No.2 Gaikar was

working under him. This witness has given the sanction to 17 / 25 223-APEAL-651-01.odt

prosecute the accused No.2. That sanction is produced on record

at Ex.49. Since the accused No.2 is already acquitted and there is

no challenge to that acquittal, his evidence is not material in this

case.

This, in short, is the evidence led by the prosecution.

16. As mentioned earlier, the Appellant has given certain

reasons, as to why according to him, he was falsely implicated.

17. Learned counsel for Appellant submitted that, the

prosecution has failed to prove its case against the Appellant.

There were too many contradictions in the evidence of the

prosecution witnesses. The prosecution has failed to prove

exactly for what purpose, the amount was demanded. It is not

clear whether the demand was made to give 7/12 extract or to

bring the heirs on the revenue record. The important witness

Laxman Ugale was not examined. According to P.W.3, Laxman

Ugale had accompanied P.W.3, when the Appellant had made the

first demand. Learned counsel Mr. Reddy then relied heavily on 18 / 25 223-APEAL-651-01.odt

the admission given by the P.W.3 that, he had to somehow pay

that money to somebody since he had brought that amount. He

also attacked the sanction on the ground that the draft sanction

was already given to the sanctioning authority.

18. Learned APP opposed these submissions. He submitted

that the demand made by the Appellant is corroborated by the

subsequent event that the accused No.2 was caught having

accepting the same amount. There is no major contradictions

between the evidence of P.W.3 and P.W.4. In fact, their evidence

is consistent; which is corroborated by the evidence of the

Investigating Officer. He submitted that, since the prosecution

has led sufficient evidence in the form of evidence of P.W.3, P.W.4

and P.W.5 there was no necessity to add to the number of the

prosecution witnesses by examining Laxman Ugale or other

witnesses.

19. I have considered these submissions. As far as the

sanction is concerned, as observed earlier, I do not find any 19 / 25 223-APEAL-651-01.odt

infirmity in the sanction order or the procedure adopted by the

sanctioning authority in according the sanction. The cross-

examination of P.W.1 does not indicate in any manner that there

was non-application of mind on his part in according the

sanction.

20. The main question involved in this case is about the

demand and acceptance. It is also important to consider as to

what was the exact purpose for demanding the bribe amount. In

that behalf, the prosecution has not led consistent or reliable

evidence. In the deposition, P.W.3 has stated that the Appellant

had told him that, he did not want the amount for himself, but

he had to pay his superior and for that purpose Rs.400/- were

required. However, it was not the case of P.W.3 in his complaint

which he had given to the ACB, at Nashik. He has admitted that

he has not mentioned so in his complaint. In fact, his case was

specific that the Appellant demanded that money for himself for

doing P.W.3's work.

20 / 25 223-APEAL-651-01.odt

21. The Investigating Officer has admitted that the revenue

record was already modified and the P.W.3's name was included

in the month of August 1991 itself. The prosecution case is that

the Appellant was demanding money for giving extracts and also

for correcting the revenue record by adding names of the heirs

of P.W.3's father. That demand was made in November 1991

much after the names of the complainant was brought on the

revenue record.

22. P.W.3 has deposed that when he went to the Appellant's

office on 19/11/1991, at the first instance, the Appellant had

given the extract in respect of Gat No.187 and for the other

extracts he was asked to come back after 15 minutes. When the

Appellant's office was searched after the trap, the extract in

respect of Gat No.46, which is produced on record at Ex.36; was

seized. That extract shows that it was prepared on 19/11/1991.

It is significant that, after the accused No.2 was caught and the

Appellant was also confronted, he had no occasion to go to his

office, to prepare this extract. This would only indicate that this 21 / 25 223-APEAL-651-01.odt

extract was already prepared by the Appellant and it was available

in his office. As mentioned earlier, the Investigating Officer has

admitted that names of all the heirs including the P.W.3 were

already introduced in the revenue record in August 1991 itself.

23. The entire procedure even before going for the trap is

not clearly deposed by other witnesses i.e. the P.W.3, P.W.4 and

P.W.5. None of them has described the procedure of applying

Anthracene powder on the currency notes before leaving for

laying the trap. Though there is mention in the pre-trap

Panchanama of applying of Anthracene powder, there is no

substantive evidence in the form of deposition of these witnesses

about applying Anthracene powder on these notes. Thus, the

substantive evidence on this important aspect is lacking. The

defence of the accused No.2 was that the notes were thrust in

his hand. But even then the prosecution witnesses were required

to establish that the important procedural steps were taken and

that there were no suspicious circumstances in their procedure.

This was required to be proved through substantive evidence.

22 / 25 223-APEAL-651-01.odt

24. There is no clear evidence about the demand made by

the Appellant on the date of trap. At the first instance, in the

morning the Appellant had given one extract to the P.W.3 and

had asked him to come back after 15 minutes. At that point of

time, he had not made any demand. Therefore, it is important to

analyse as to at what point of time, he had directed P.W.3 to

make the payment to the accused No.2. P.W.3 has deposed that

when he was paying the bill for the milk, the Appellant had told

P.W.3 to pay the amount to the accused No.2. He has not

deposed that the accused No.1 had instructed the accused No.2

to accept the amount which was to be paid by P.W.3. In fact,

P.W.3 has further deposed that, the accused No.2 accepted that

amount and then asked P.W.3 for what purpose that amount was

given. At that time, the P.W.3 had told the accused No.2 that the

Appellant had instructed P.W.3 to pay that amount to the

accused No.2. The accused No.2 was not even aware that the

P.W.3 was to make him some payment or that he was to accept

that amount. This is directly contrary to the evidence of P.W.4, 23 / 25 223-APEAL-651-01.odt

who has deposed that the Appellant had instructed the accused

No.2 to accept whatever amount P.W.3 was paying. P.W.3's

evidence clearly shows that the accused No.2 was not aware that

the Appellant had instructed him to accept the amount. This is

further clarified in the cross-examination of P.W.3 where he has

accepted that the accused No.2 Gaikar was not ready to accept

the amount. Thus, the prosecution case is contradictory and

hence is extremely doubtful regarding the instructions given by

the accused No.1 purportedly for handing over the amount of

Rs.400/-. Hence, even the demand on the date of trap is not

proved with clear and reliable evidence by the prosecution.

25. The matter becomes even more doubtful against the

prosecution case, because of the admissions given by P.W.3. He

has categorically admitted that he had paid the tainted notes to

the accused No.2 because it was already with him and he

wanted to pay it alteast to somebody. He further deposed that

the accused No.2 Gaikar was not ready to receive the amount

and that P.W.3 put the amount in the hand of the accused No.2 24 / 25 223-APEAL-651-01.odt

by telling him that the Appellant had given him such

instructions. All this shows that the accused No.2 had not

accepted the amount. The P.W.3 had thrust that amount in his

hand. The accused No.2 had no idea why that amount was being

thrust. He was not instructed to accept that amount by the

Appellant. Both these aspects throw serious doubt about the

entire prosecution story.

26. Thus, it can be seen that the prosecution has failed to

prove the basic ingredients of the offence and therefore

presumption under the PC Act cannot be invoked against the

Appellant. I do not feel it safe to accept the finding of learned

Judge regarding the conviction against the Appellant.

27. Based on the above discussion, I am of the opinion that

the prosecution has failed to prove its case against the

Appellant. The Appellant deserves to be acquitted.

                    25 / 25                   223-APEAL-651-01.odt

28.   Hence, the following order :


                          ORDER


      (i)    The Appeal is allowed.

(ii) The Judgment and Order dated 10/08/2001 passed by the Special Judge, Nashik, in Special Case No.4 of 1993, recording conviction and sentence against the Appellant, is set aside.

(iii) The Appellant is acquitted of all the charges in this case.

(iv) The Appellant shall execute bond u/s 437-A of Cr.P.C. to the satisfaction of the Trial Court, within a period of one month from today.

      (v)    The Appeal is disposed of.




                                      (SARANG V. KOTWAL, J.)