Bombay High Court
Deelip Kishanrao Dhutmal vs State Of Mah on 7 August, 2024
2024:BHC-AUG:18101
(1) 922criapl358.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
922 CRIMINAL APPEAL NO.358 OF 2005
Shri Deelip S/o. Kishanrao Dhutmal, ...APPELLANT
Age-43 years, Occu-Service,
Junior Clerk, Tahasil Office, Jintur,
Dist. Parbhani
VERSUS
The State of Maharashtra ...RESPONDENT
Mr. V. D. Sapkal, Senior Advocate i/b Mr. S. R. Sapkal, Advocate
a/w Mr. Ajit B. Chormal, Advocate for the appellant
Mr. S. K. Shirse, APP for the respondents/State
CORAM : KISHORE C. SANT, J.
DATE : 07th AUGUST, 2024
JUDGMENT
1. This appeal arises out of judgment and order dated
06-05-2005 passed by the learned Special Judge Parbhani in
Special Case No. 6/2004. The learned trail court by way of
impugned judgment and order held the present appellant guilty
of the offences punishable under Sections 7, 13 (1) (d) read
with Section 13(2) of the Prevention of Corruption Act. The
accused is sentenced to suffer rigorous imprisonment for two
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years and to pay fine of Rs.1500/- in default to suffer RI for two
months for the offences punishable under Section 7 and for the
offences punishable under Sections 13(i)(d) read with section
13(2) he is directed to suffer rigorous imprisonment for one year
and to pay fine of Rs.1000/- in default to suffer rigorous
imprisonment for one month.
2. The prosecution story in short is that De-facto
complainant was having a dispute with one Phulchand Rathod a
neighboring land owner on account of cultivation of the land
and revenue entries. Such disputes were going on before
Tahasildar. There was also a case under Section 145 of the Cr. P.
C. going on in respect of land of the complainant before the
executive Magistrate, Jintur. For geetting the work done at the
earliest original complainant PW-2 Syed Akhtar Syed Nabi from
village Mohadi, Tq. Jintur approached the Anti Corruption
Bureau, Parbhani. It is informed that the present accused who
was working as Incharge of ROR Section in Tahasil Office, Tq.
Jintur demanded an amount of Rs.500/- towards bribe from the
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complainant. The alleged bribe was demanded for issuing of
notice to the respondents in the matter pending before the
Tahasildar in respect of revenue entries. First demand was
allegedly made on 06-02-2004 for issuing notice of spot
inspection by Tahasildar. He approached the ACB, Parbhani on
07-02-2004 and filed a complaint. ACB authority called panchas
and fixed a trap by following usual procedure. Trap was decided
to be laid on the same day. Panchas were called. They were
informed about the procedure of the trap.
3. After informing the panchas about the procedure to
be followed for the trap the raiding party including the
complainant, panchas and police proceeded to Jintur by police
jeep. As decided the complainant and one panch Syed Iqbal
went to the Tahasil office and approached the accused and at
that time raiding party stayed at some distance. About actual
incident it is stated that PW-2 complainant waitted in the office
of the accused and offered Namaskar. On that accused asked as
to whether amount is brought. The complainant told that he has
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brought an amount. They both alongwith panch after some
formal talks about issuance of notice started towards a photo
copy centre for taking a photo copy of the notice. At that place
the accused accepted the amount from the complainant and the
trap was successful. Other formalities of drawing panchanama
and etc were completed in the office of the Tahasildar. After
completion of the investigation and after obtaining the sanction
charge-sheet came to be filed and case was tried.
4. Learned trial court on recoding evidence and on the
basis of document proved that the prosecution has established a
case and imposed sentence by convicting the accused. Hence,
this appeal before this court.
5. The appeal is argued vehemently by the learned
senior counsel Mr. V. D. Sapkal. His submissions, in short, are
that in the present case no demand of the bribe amount is
proved. There is no corroboration to the demand on 06-02-
2004. The prosecution has not proved that the amount which
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was allegedly given was a bribe amount. The sanctioning
authority has not applied its mind to the case and has
mechanically granted sanction. He submits that in the office of
Tahasildar at the time of alleged demand, there were other
persons present still not a single person is examined by the
prosecution which leads to inference of suppression of evidence
by the prosecution. He makes further submission that it is highly
improbable that bribe would be demanded in presence of other
persons in the office. He submits that prior to this complaint,
complainant had lodged a one complaint against Nayab-
Tahasildar but in that case trap had failed. The complainant is a
habitual complainant. His evidence thus can not be believed. He
thus prays for allowing the appeal by quashing and setting aside
the impugned judgment and order.
6. Learned APP on the other hand had submits that in
this case demand is specifically proved by the prosecution. The
complainant PW-2 was accompanied by a panch witness PW-1
who, in clear terms, has stated that there was a specific demand
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of bribe by the accused. He further submits that there is no
suggestion put to the witnesses that the accused was not
concerned with the work for which alleged bribe amount was
demanded. The learned trial court has rightly appreciated the
evidence. So far as sanction is concerned, he submits that
sanction order itself is self explanatory which shows the
application of mind while according sanction. There is no
dispute that amount is found in possession of the accused. He
submits that discrepancies in the evidence are not such to
discard the version of the prosecution. He thus, prays for
dismissal of the appeal.
7. This court has considered the arguments. PW-2 is the
complainant and therefore, his evidence is discussed first. The
complainant in his evidence stated about the demand on 06-02-
2004 when he visited the office of the accused. He thereafter
lodged the complaint on 07-02-2004. In his evidence he deposed
that the accused was entrusted with the work of issuance of
notice for spot panchanama as he happened to be Incharge of
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ROR section in the office of Tahasildar. He deposed that at the
time of incident on 07-02-2024 he went into the room of the
accused alongwith PW-1. He offered Namaskar. The complainant
made an enquiry with the accused about issuance of notice. The
accused told him that he has prepared a notice for 27-02-2004,
but the signature of the Tahsildar is not obtained on it. On that
the complainant requested the accused to obtain the signature
and at that time there was a demand of amount. On that
accused took out a notice from the file and asked the
complainant to accompany him for taking out photo copies of
the notice. While going towards the photo copy centre, accused
asked as to whether the complainant has brought the amount.
The complainant answered in affirmative. On that accused asked
to pay the amount. The complainant took out the amount from
his right side arm pocket of his shirt and with his right hand
gave it to the accused. The accused accepted the amount and
kept the same in his left side chest pocket of shirt. After giving
the amount, he gave signal to the Police Patil. The Police Patil
immediately came and made an enquiry with PW-2 as to
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whether accused demanded an amount. Panch replied in
affirmative. Police thereafter, caught hold the hands of the
accused and on that accused removed the amount from his
pocket. The accused was taken to Tahasil office. The police
asked the complainant to go out of the room and after sometime
again called him and checked the inner-side of the shirt pocket
under the ultra violate lamp and found greenish. His hands also
found shining greenish.
8. In the cross-examination this witness accepted that
there was a long history of litigation between the parties and in
pursuance to the orders by superior officer entries were taken in
7/12 extract for the year 2002-2003 after spot inspection. He
accepted that there was a chapter case bearing No.1/2003
registered by Bamni Police Station against himself and his
brother and Rathod his opponent in the litigation. He accepted
that on 21-02-2003 Tahasildar had passed an order for
attachment of the land and crop in the disputed land. He
received the notice in the chapter case directing him to appear
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before the Tahasildar on 29-03-2003. He was attending the
Tahasildar's Office since 1997 in respect of ROR entries. He had
seen the Tahasildar on 06-02-2004 at 03.00 pm. Tahasildar had
again called accused in his chamber and directed to put up file
before him. He could not tell the exact time. He did not make
any complaint to Nayab-Tahasildar or Tahasildar. Talk between
accused and the complainant took place in normal voice. When
talk took place some persons were present nearby where the
incident took place. The police had examined his hands before
asking him to go outside the room. Importantly he accepted. He
had filed one complaint against Nayab-Tahasildar, Jintur alleging
that he had demanded bribe amount of Rs.2500/- but in that
case trap had failed as the Nayab-Tahasildar did not accept the
amount.
9. Panch was examined as PW-1 about exact incident.
He deposed that after going to the office of the accused, the
complainant made an enquiry about his work. The accused told
him to provide photo copy of the order to the complainant by
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asking as to whether the complainant had brought an amount.
The complainant replied that he has brought amount. Thereafter
complainant and the accused went out of the room to take photo
copy of the order. This witness followed them. While walking,
the accused demanded the amount from the complainant. The
complainant took the amount of Rs.500/- from his pocket and
gave it to the accused. The accused collected the amount with
his right hand and kept the same in his left chest pocket of the
shirt. After giving a signal police party arrived. This witness told
the PI as to where the amount is kept. On that PI caught hold
the hands of the accused and took him to Tahasil Office. The
complainant was told to stop out side the room. The police
examined hands of the accused under the light of ultra violate
lamp. His hands were found greenish under the ultra violate
lamp. Hands of the panch Mahajan were also found shining
under the ultra violate lamp. Thereafter the complainant was
called in the room. His fingers were also found greenish under
the ultra violate lamp. There another panch Mahajan removed
the amount from the pocket of the accused.
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10. In the cross-examination he accepted the
panchanama Exh.21 was already typed before panchas reached
the office of ACB. Paper was in possession of PI Jadhav. When
they left the Parbhani for Jintur at 1.00 pm, he accepted that
there are two doors to the Tahsil Office one of the doors is facing
towards South and another door is facing towards North. Some
other employees were working in the said room. 4-5 persons
were standing in front of the table of the accused. It is panch
Mahajan who was holding the notes collected from the accused.
A Pen and diary was also found in his left chest pocket.
However, said were not examined by the police under the ultra
violate lamp. He denied the suggestion that trap was arranged
for Tahasildar. He also denied that the complainant thrusted the
notes in the pocket of the accused as the Tahasildar was not
present in the office at that time.
11. PW-3 is the sanctioning authority i.e. Collector,
Parbhani. In his evidence he stated that he received the
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documents and proposal for sanction and after going through
the documents, he accorded sanction for prosecution. In the
cross-examination this witness accepted that he had received a
draft sanction order alongwith letter from the ACB, Nanded. He
denied the suggestion that he forwarded the letter and
documents to RDC for preparing order of sanction. He stated
that he scrutinized the documents after receiving the same from
the SP, ACB, Nanded and forwarded it to RDC to put up the
matter before him alongwith his notice. He accepted that RDC
prepared a note and after going through the said note he
approved it. Notes were regarding the facts as reveals from the
documents placed for consideration. He also accepted that he
directed the RDC to prepare a sanction order. He denied
suggestion that RDC prepared a draft sanction order. He denied
that contents of draft sanction order are in verbatim same.
However, he had not brought office record in respect of sanction
order. He denied suggestion that he has not mentioned the
grounds for his satisfaction while according sanction.
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12. PW-4 is the Investigating Officer who prepared
panchanama Exh.21. He stated that same was prepared after
panchas arrived in the office. About the demand he stated that
he had not verified earlier demand and no demand verification
panchanama was prepared. After the trap he made an enquiry
with PW-1 as to who demanded and accepted the amount. It
was replied by PW-1 that person standing before them wearing a
blue shirt had demanded and accepted the amount. On that this
witness and Police Constable Wakode caught hold the hands of
that person by disclosing their identity. He offered personal
search. However, accused declined to take personal search.
Thereafter, they examined the hands of the panchs and members
of the raiding party under ultra violate lamp. No shining was
found on their hands. It is, thereafter, he directed panch
Mahajan to remove the amount from the left chest pocket of
shirt of the accused on that panch Mahajan removed the amount
from the pocket of accused. A copy of application dated 06-02-
2004 filed by the complainant was produced by Peshkar namely
Shri Paikrao from the cupboard of inward section and the same
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was attached.
13. In the cross-examination he accepted that he did not
feel it necessary to verify the correctness of the contents of the
complaint. He also did not make an enquiry as to whether
Tahasildar was present in the office. He accepted that pen and
telephone diary were found in the pocket of shirt of the accused.
He examined diary and pen under the ultra violate lamp.
However, no further question was asked as to whether it was
found greenish shining or not. He accepted that he did not
record the evidence of Tahasildar at the time of incident. He
denied that it transpired during the investigation that the
complainant himself had thrusted the amount in the pocket of
the shirt of the accused and the accused was returning the said
amount by saying no. He accepted that he did not ask for
explanation from the accused in writing. He accepted that he
had asked panch Mahajan to remove the amount from the left
chest pocket of the shirt of the accused.
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14. In the argument learned Senior Counsel Mr. Sapkal
submits that there are three versions about demand and
acceptance of the amount and it is clear case that the amount
was thrusted in the pocket of the accused. There was no demand
of bribe amount.
15. So far as legal position he relied upon the judgments
which are discussed below. In the judgment reported in 2011(1)
AIR Bom R 479 in the case of Bhagwan Mahadeo Sathe Vs State
of Maharashtra and another. The question was about application
of mind while according sanction to the prosecution. This court
considered that sanction was not given after proper application
of mind by discussing the purpose of obtaining sanction under
Section 19 of the Act by relying upon the judgment reported in
AIR 1979 SC 677 in the case of Mohd. Iqbal Ahmed Vs State of
Andhra Pradesh. In the said case, draft sanction order was
received by sanctioning authority. When a draft sanction letter
was forwarded to the sanctioning authority. Actual sanction
which was granted by the verbatim of the draft sanction. The
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court thus held that it clearly disclosed that there was non-
application of mind while granting sanction to prosecute.
Second judgment on the point of sanction cited is the judgment
reported in 2021 (3) ABR (Cri) 792 in the case of Anand
Murlidhar Salvi Vs State of Maharashtra. In the said case it was
apparent on the record that sanction was mechanically granted
without application of mind. The authority had received a draft
sanction order brought with clerical mistake and without
perusing the investigation papers sanctioning authority merely
singed the order by correcting grammatically mistakes. It was
admitted by the sanctioning authority that it had received the
draft sanction order prepared by administrative officer. He relied
upon two more judgments on the point of sanction i.e. reported
in 2017 ALL MR (Cri) 4184 in the case of Dattatraya Rajaram
Thaokar Vs State of Maharashtra and 2010 Cri L. J. (NOC) 544
in the case of the State of Maharashtra Vs Kashinath Shridar
Wani.
16. On the point of demand he relied upon the judgment
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in the case of Dattatraya Rajaram Thaokar (supra). In the said
case demand was made in simple words as to have you brought
money. To this question, the complainant answered yes and
handed over the money. This court held that such wording
would not decisively and conclusively prove a demand of illegal
gratification. The court had relied upon the judgment in the case
of P. Satyanarayana Murthy Vs District Inspector of Police, State
of Andhra Pradesh and another reported in 2015 10 SCC 152.
17. Thus, coming to the facts of this case in the light of
above judgment, this court finds that in the present case,
sanctioning authority has clearly accepted that it had received
draft sanction order. After the papers were received alongwith
draft sanction order, he directed the RDC to prepare a note. It is
not the case that sanction order was dictated by the sanctioning
authority or that he had prepared a note on his own. Sanction
order though reflects wording that sanctioning authority has
gone through the papers, however, it is not reflected as to what
made him to form an opinion that a case is made out to accord
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sanction for prosecution. This coupled with an admission in the
cross-examination that sanctioning authority had given papers
and draft sanction order to his subordinate officer to prepare
note. A doubt is certainly created about application of mind by
the sanctioning authority.
18. While scrutinizing the evidence of PW-2 and PW-1
with evidence of PW-4 it is clear that there are three different
versions about the demand and acceptance of the amount and
actually handing over of the amount by the accused persons.
There is also contradiction in respect of collecting the amount
from the pocket of accused. The accused took out the notes from
his pocket. PW-1 i.e. panch witness has stated that amount was
taken out by another panch Mahajan from the pocket of the
accused, whereas the Investigating Officer also stated that the
amount was taken out by another panch Mahajan. Thus, there is
contradiction apparent on the record.
19. So far as preparation of panchanama dated 07-02-
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2004 also panch witness has clearly stated that when he went to
ACB office panchama was already prepared, whereas in the
evidence of Investigating Officer PW-4 it has come that
panchanama was prepared after panch were called to the office.
20. Thus, there is variance in the evidence of the witness
on the material point i.e. preparation of panchanama Exh.21
and secondly about taking out of notes from the pocket of the
accused. Another basic question is as to whether merely
utterance the words that have your brought the amount whether
is sufficient to hold that it was amount of bribe. The answer in
view of the judgment in the case of Dattatraya (supra) is 'no'. So
far as the sanction in view of the judgment this court is also
persuaded to hold that sanction is without application of mind.
On this count, this court finds that prosecution has failed to
prove the case beyond reasonable doubts. This court thus finds
that the impugned judgment and order dated 06-05-2005
deserves to be quashed and set aside by acquitting the accused
of the charges. Hence, the following order:-
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ORDER
a] The appeal stands allowed.
b] The impugned judgment and order dated 06-
05-2005 passed by learned Special Judge, Parbhani
in Special Case No. 6/2004 is quashed and set aside.
c] The accused-appellant stands acquitted of the
charges under Section 7, 13 (1)(d) read with Section
13 (2) of the Prevention of Corruption Act.
d] Necessary consequences to follow.
e] Appeal stands disposed off.
[KISHORE C. SANT, J.]
VishalK/922criapl358.05
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