Bombay High Court
Sonuji @ Sonuba Chimaji Garodi vs State Of Mah on 11 November, 2024
2024:BHC-AUG:26806
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 808 OF 2004
Jagannath Dadarao Thorat .. Appellant
[Original appellant] died through LRs. [original
accused No.1]
1-A. Bijubai w/o. Jagannath Thorat
Age. 59 years, Occ. Housewife.
1-B. Ranjit s/o. Jagannath Thorat
Age. 38 years, Occ. Service,
1-C. Swapna d/o. Jagannath Thorat
Age. 35 years, Occ. Household,
All R/o. N-11/L, Plot No. 63,
Hudco, Aurangabad.
VERSUS
The State of Maharashtra .. Respondent
WITH
CRIMINAL APPEAL NO. 825 OF 2004
Sonuji alias Sonuba s/o. Chimaji Garodi .. Appellant
died through LRs. [original
accused No.2]
1A] Yogesh Sonuba Garodi,
Age. 34 years, Occ. Business
R/o. Harsul, Plot No. 73, 166/1,
Bharalsingh Nagar,
Aurangabad.
VERSUS
The State of Maharashtra .. Respondent
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Mr.Joydeep Chatterji, Advocate for the appellant in Cr. Appeal No. 808 of
2004.
Mr.V.D. Sapkal, Sr. Advocate i/b. Mr. S.R. Sapkal, Advocate for the
appellant in Cr. Appeal No. 825 of 2004.
Mr. S.K. Shirse, AGP for the respondent-State.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 23.08.2024
PRONOUNCED ON : 11.11.2024
J U D G M E N T :
-
01. Both these appeals are arising out of the same judgment and
order passed by the learned Special Judge, Aurangabad dated
26.11.2004, in Special Case No. 16 of 2001. The appeals are therefore
heard and being decided together.
02. Criminal Appeal No. 808 of 2004 is filed by accused No.1 -
Jagannath, who is held guilty for the offences punishable under sections
7 and 13 (1)(d) and 13(2) of the Prevention of Corruption Act [for short
"said Act"]. He is sentenced to suffer rigorous imprisonment for six
months with fine of Rs.1000/-, in default, to suffer rimple imprisonment
for one month and to suffer rigorous imprisonment for one year with fine
of Rs.1000/-, in default to suffer simple imprisonment for one month,
respectively.
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03. Appellant in Criminal Appeal No. 825 of 2004 - Sonuji
Chimaji, accused no.2 is convicted for the offence punishable under
section 12 of the said Act. He he sentenced to suffer rigorous
imprisonment for a period of six months with fine of Rs.1000/-, in
default, to suffer simple imprisonment for one months. The sentences
are directed to run concurrently.
04. The prosecution story in short is that one Ambadas Shukla, a
retired Tahsildar had made an application to the Municipal Corporation,
Aurangabad, seeking permission to construct two rooms in the house.
Since, there was no communication from the Corporation, he assumed
that there is deemed permission granted for construction and he started
construction on 05.11.2000. Both these accused persons were working
as Building Inspector in the Municipal Corporation, Aurangabad. Accused
No.1 was having jurisdiction over the area, where said Shukla had
started construction. Accused No.1 visited construction site on
14.11.2000 and asked as to whether there is permission obtained from
the Corporation and asked him to see him in the office on the same day.
Shukla could not go to the office on that day. Therefore, again on
15.11.2000 at 11.00 a.m. accused No.1 paid a visit and seized building
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material and moved it to the Corporation. Malati - wife of said Shuka
reported this to her brother Rajendra - de-facto complainant. Rajendra
met accused No.1 in the office where accused demanded an amount of
Rs.10,000/- to allow him to take back the material that was seized. On
this said Rajendra lodged a report with the Anti-Corruption Bureau [for
short "ACB"]. On receipt of the report, the ACB decided to lay a trap. It
is the case that the raid was conducted successfully. At the time of raid,
accused No.1 asked Rajendra to hand over the amount of bribe to
accused No.2. It is alleged that accused No.2 accepted the amount for
and on behalf of accused No.1. The prosecution, thus, came to be
launched against both the appellants.
05. The defence of the accused persons is that the action was
taken by accused No.1 for illegal construction carried out by said Shukla.
The amount was towards fine, whereas it is case of accused No.2 that he
has not accepted the amount as a bribe. He was not aware of any of the
talks between complainant - Rajendra and accused No.1. There is no
question of his having knowledge of amount of bribe. Accused No.2 has
not abetted any offence.
06. The Trial Court on recording the evidence and holding the
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Trial, held accused No.1 guilty of the offences punishable under sections
7 and 13 (1)(d) r/w 13(2) of the said Act. Accused No.2 is held guilty for
abettment punishable under section 12 of the Act. Thus the accused -
present appellants are before this Court. Both the accused, thus, prayed
for acquittal submitting that the Trial Court has wrongly held the accused
persons guilty without sufficient material on record.
07. To prove the offence, the prosecution has examined five
witnesses, namely, PW-1 complainant - Rajendra Kulkarni, PW-2 Panch -
Shankar Rane, PW-3 - Malati Shukla, PW-4 - Investigating Officer Sanjiv
Mendke abd PW-5 Shaileshkumar Sharma - Commissioner, Municipal
Corporation, Aurangabad - sanctioning authority.
08. PW-1-Rajendra Sadashiv Kulkarni in his deposition stated
that he happens to be brother of Malti, wife of Ambadas Shukla. She
told him that on 13 and 14 th November, 2000, one Building Inspector
(accused No.1) met her husband and asked about building permission.
On answering, he was called to the office of accused No.1 on next day.
This witness, therefore, met accused No.1 on 15.11.2000 in the Office of
Corporation. Accused No.1 in the said meeting demanded amount of
Rs.10,000/-. Said amount of Rs. 10,000/- was reduced to Rs.7000/-.
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Accused No.1 introduced him to accused no.2, who was in the office and
told to pay the amount to accused No.2, when accused No.1 would not
be there around. The complainant, therefore, went outside, lodged
complaint with the ACB. In the office of the ACB, it was decided to lay a
trap. The panchas were called in the office of the ACB. As decided raid
was conducted. The panch witness - Rathod and complaint Rajendra
went in the Encroachment Removal section. Accused No.1 was not
present there. Accused No.2 was present. Rajendra wished accused
no.2 and asked as to where is accused No.1. He was told to wait, stating
that accused No.1 would come soon. He asked as to what was the work
with accused No.1. P.W.-1 told that he had met accused No.1 the day
before in presence of accused No.2. He than asked as to whether
amount is brought as settled. This witness said yes and therefore he
said that he wanted to see accused No.1. As accused No.1 was not
there, he came out of the room. Within 2-3 minutes accused No.1 came
on motor-cycle. Both wished each other. On that, this witness on his
own told him that he has brought money as settled. While talking they
came to the office, where accused no.1 told him to give money to
accused No.2, telling accused No.2 to collect money from Rajendra. It is
on this PW-1 took out the amount and handed it over to accused No.2.
Accused No.2 Collected the amount by right hand and kept the said
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amount in the right pocket of his pant. Accused No.2 on that told to
make application to collect the material that was seized. On that PW-1
Rajendra came out and gave signal to the raiding party. This happened
between 15.30 p.m. to 15.45 p.m. The members of the raiding party
came there, asking PW-1 to stay out of the room and was called after
some time for examination of hand under ultraviolet lamp. The fingers of
his hand and some portion of pocket of his shirt reflected blue shine
under the ultraviolet lamp.
. In the cross-examination, this witness identified notice
received by Shukla dated 19.09.2000 issued by the Corporation
(Exh.19). On 06.11.2000 Shukla had submitted application for
permission. By letter dated 15.11.2000 the Corporation had sought
some compliance. Certified copy of that application is also exhibited. As
per letter dated 21.09.2000 and 15.11.2000, there was no presumption
of permission available on those dates. He accepted that on 14.11.2000
accused No.1 had appraised all these facts to Shukla and had also asked
to stop the construction work. It was Shukla who was insisting to
complete the construction work and on that count there was some
dispute between accused No.1 and Shukla. On that accused No.1 had
asked said Shukla to come to office and make an application. However,
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inspite of that Shukla did not go to Municipal Coproation on that day. On
15.11.2000, he learnt that accused No.1 was In-charge of Shreyanagar
area. At 4.00 p.m. he submitted application for returning the material.
On that accused No.1 told that he will have to pay amount of Rs.10,000/-
to get the material back. He accepted that he did not pay that amount
as there was deficit of Rs.3000/- and agreed to pay the amount on the
next day. He also accepted that it was not true that accused No.1 asked
him to see accused No.2 to know the procedure. He also accepted that
on 16.11.2000 i.e. at the time of incident, accused No.2 did not demand
money. He referred to accused no.2. Accused No.1 was in-fact about to
leave the office when the ACB team came in.
. Accused No.2 in his cross taken from this witness that
accused no.1 had never appraised accused No.2 that this witness
happens to be brother-in-law of Shukla and had come to collect the
material. It is also taken that accused No.2 was not aware of the details
of the money and he never had told accused No.2 having come to collect
building material. It is also taken that accused No.2 was not knowing as
to for what money was paid. PW-1 told this accused No.2 that accused
No.1 had directed him to pay the amount to accused No.2. It is also
taken that this witness immediately told the ACB police that accused
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No.2 is not involved.
09. So far as P.W. No.2-Shankar Mangu Rathod, who acted as
panch is concerned, he stated about formality in the ACB Office. About
actual incident, he stated that he and PW-1 went to office of
Administrative Officer from Encroachment Removal Department at 4.00
p.m. PW-1 wished one person by name Garodi (accused No.2). Accused
No.2 told that accused No.1 has not yet come and and whether he has
brought money. On that PW-1 told that he has brought money and
wanted to see accused No.1. On that accused No.2 asked both these
witnesses to stay outside. Within few minutes one person came and
parked his bike. PW-1 told that he is accused No.1. Thus two witnesses
went with him in his office and stood near his table, having phone.
Accused No.1 asked PW-1 as to whether he has brought the amount as
told. On saying yes, accused No.1 told him to meet accused no.1 and to
pay him the money. Accused No.1 did not speak to accused No.2 in his
presence. PW-1 told accused No.2 that accused No.1 has instructed him
to pay money to accused No.2. On that he took out tainted notes and
held before accused no.2, who collected the notes by his right hand and
kept in right pocket of his pant and asked PW-1 to submit application.
Thereafter, PW-1 went outside and gave signal. On receiving signal, the
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raiding party immediately came to the office. On asking this witness, he
told that the amount is paid to accused No.2. On examination, currency
notes of accused No.2 were found showing blueish shining under
ultraviolet lamp. Nobody else's hands were seen with anthracene
powder, except accused No.2. Even right side pocket of pant of accused
No.2 was showing blueish glitterence. He produced currency notes from
his pocket. The currency notes were also found with anthracene powder.
Thereafter, he stated about drawing of panchanama.
. In the cross-examination by accused No.1, omission is taken
on record that PW-1 told accused No.2 - Garodi that he was told by
accused no.1 to give him money. It is further taken in the cross that at
the time of alleged incident there were 7-8 clerks working in the office
and 10-12 other persons were also there in the office. Accused No.2 was
sitting 10-15 feet away from accused No.1. Accused No.1 was talking
on phone till raiding party came in the office. There was no incriminating
document found on the table of accused No.1.
. In the cross-examination by accused No.2, PW-2 accepted
that he was given two photocopies of panchanama with summons. He
stated that accused No.2 was doing his work on his table. There was no
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talk about money between accused No.1 and accused No.2. PW-1 had
talked to accused No.2 in low voice as to where is accused No.1. There
were 1 or 2 persons between PW-1 and accused No.2. Therefore, talk
was going on. These two persons were also talking to accused No.2.
10. PW-3 Malati Ambadas Shukla stated that her husband had
submitted an application in the Corporation seeking permission to
construct rooms and thereafter started construction of two rooms on
05.11.2000. The rooms were to be constructed to run STD booth,
adjoining the house. On 14.11.2000 when she was present with her
husband at home, accused No.1 had been to the house and asked as to
whether there is permission obtained to construct two rooms. On that
Shuka had told him that he has already submitted application for
permission. On that accused No.1 seized and carried building material
and asked to stop construction and left the spot. Shukla, however, did
not go to office of Corporation on that day. Thereafter, she told about this
incident to PW-1.
. In the cross-examination, she accepted that she cannot
identify the person to whom she had seen three years back. She had no
talk with accused No.1. On 15.11.2000 accused No.1 had come along
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with other persons on vehicle and also with police.
11. PW-4 - Sanjiv Vasantrao Mendke is the Investigating Officer.
He deposed about receiving of compliant from PW-1, deciding to conduct
raid, carrying out of the investigation, seeking sanction etc.
. In the cross-examination, he stated that he did not conduct
identification of accused No.1 from Shukla or his wife Malati. He
accepted that the Encroachment Removal Staff is provided a police
security. He did not record statement of any of the members of
Encroachment Removal squad. He could not know that the Corporation
has raised any objection during the stipulated period and under such
circumstances, deemed permission cannot be presumed. He accepted
that the Corporation had raised objection vide Exhs. 19 and 21. He did
not find any entry in the name of accused No.1 of having attached the
building material.
. In the cross by accused No.2, he accepted that accused No.2
told him that he did not know the complainant nor he was concerned
with any amount.
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12. So far as PW-5 - Shaileshkumar Sharma, Sanctioning
Authority is concerned, he stated about grant of sanction and that he was
an authority to appoint and remove the person to the post of building
inspector. He stated about going through investigation papers and and
grating sanction.
. In the cross-examination, nothing is taken. In cross by
accused No.2, he stated that he had gone through the statements of
both the accused before according sanction and sanction was not granted
mechanically.
13. On this evidence, the learned Trial Court proceeded and
found the accused persons guilty as stated above. The learned Senior
Advocate Mr. Rajendra Deshmukh for accused No.2 vehemently argued
that the prosecution case even if taken as it is, the allegations are only
against accused No.1. There is no allegation and evidence that at any
point of time accused No.2, demanded the amount. Further allegation
only shows that accused No.2 only accepted the amount given to him by
PW-1. PW-1 himself has stated that he has given the amount for
accused No.2, without telling as to what for the amount is being paid.
He thus submits that there is no question of accused No.2 having any
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knowledge of the alleged demand by accused No.1. In any case, he
submits, there is no abettment at the hands of accused No.2. To show
that there was abettment, it was necessary for the prosecution to show
that it is accused No.2 who aided, assisted or instigated accused No.1 to
accept the bribe. There is no talk between accused No.1 and accused
No.2 about any bribe amount. There is specific admission by PW-1 that
accused No.2 was not involved in the whole transaction. He thus prays
for acquittal of accused No.2.
14. So far as accused No.1 - appellant in Criminal Appeal No.
808 of 2004 is concerned, learned Advocate Mr. Chatterji submits that
the amount is not given to accused No.1. There is nothing to show that
there was any demand by accused No.1. There is no earlier talk between
the parties, in presence of panchas. On record, there is material to
show that accused No.1 had raised objection and had issued notices to
said Shukla, which are at Exhs.19 and 21. The application for permission
was filed on 19.08.2000, assuming that there was deemed permission, if
there is no communication between the three months. However, said
period of three months was yet to over and construction was started
even before expiry of such period. This construction was carried out
without any permission and it is for this reason the building material was
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seized by accused No.1. It is because of this action of accused No.1 he is
falsely implicated. The prosecution has utterly failed to prove prior
demand, demand at the time of incident and acceptance pursuant to
demand. All these three material things are lacking still the Trial Court
has wrongly held accused No.1 guilty of the offence. He thus submits
that the conviction and sentence of accused deserves to be quashed and
set aside by acquitting accused No.1.
15. The learned APP Mr. Shirse strongly opposed the appeals. He
submits that there was motive to ask for bribe, as accused No.1 had
seized the material. PW-1 wanted the material back and therefore there
was talk of settlement of the amount. PW-1 was specifically told to give
money only on demand by the accused. It is thus clear that the amount
was given only on demand. From the evidence of PW-1 that it is only on
handing over tainted notes to accused No.2, accused No.2 asked PW-1 to
submit an application and collect the material. This clearly shows that
accused No.2 had the knowledge of the alleged demand by accused No.1.
He submits that when the knowledge is shown to accused No.2, this
acceptance of the amount raises presumption. Though the deemed
permission was there, still the material was seized which shows that
accused No.1 wanted some amount from Shukla. About sanction, he
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submits that the sanctioning authority has rightly granted sanction and
nothing is brought on record that the order was mechanically passed
without application of mind. He submits that the panchanamas are duly
proved. Anthracene powder on the tip of the fingers and pocket of the
pant of accused No.2 was also found showing blueish glitterance under
ultraviolet lamp. Thus, he prays for rejection of the appeals.
16. The learned Sr. Advocate for the appellant in Criminal Appeal
No. 825 of 2004 has relied upon following judgments, which are
discussed in foregoing paragraphs.
17. In the case of Sharad Namdeorao Shirbhate Vs. State of
Maharashtra, reported in 2007 All MR (Cri) 352, this Court was
considering offence under section 5(1)(d) & 2 of the Prevention of
Corruption Act. The Court found that the demand of illegal gratification
for work which was already done was unbelievable. The Court had also
considered question of power of the sanctioning authority.
18. In the case of Ramdas Waman Tadge Vs. State of
Maharashtra, 2019 All M.R. (Cri) 1833, this Court held that to prove
offence under sections 7, 12 and 13(1)(d) and (2), it is must for the
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prosecution to prove demand and acceptance. In the said case, it was
found that the Junior Clerk had accepted bribe amount on behalf of his
Senior Officer. There it had come on record that the Junior Clerk had
accepted the amount on instruction of his senior. Said person had no
knowledge as to for what the amount is to be accepted. It was held that
in such circumstances, offence under section 12 of the PC Act cannot be
said to have been proved.
19. In the case of Mahadeo s/o. Sawalaram Tingre Vs.State
of Maharashtra, reported in 2024 DGLS (Bom.) 1400, there was
allegation that the accused working as Talathi, had obtained signatures of
the complainant on blank paper and demanded amount. When the
amount was to be paid, the complainant met accused No.1. Accused
No.1 in that case told that the amount be paid to accused No.2, a hotel
owner. Accused No.2 accepted the amount. It was shown that accused
No.2 was not aware about the alleged demand by accused No.1. He was
also not aware of the previous talks between the complainant and
accused No.1. It was held that in such circumstances, no offence would
be proved under section 12 against accused No.2. The conviction under
section 12 was set aside and accused No.2 was acquitted.
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20. In the case of Abdul Mannan Mohd. Yusuf Vs. State of
Maharashtra, through ACB, reported in 2019 SCC OnLine Bom
824, this Court considered the case under section 12 of the PC Act. The
allegation was that he accepted the amount for the main accused. There
was talk between complainant and accused No.1 and after that the
accused No.1 told the complainant to give an amount to the accused
No.2, who was owner of a pan shop. Thus the amount was paid to
accused No.2. In that case this Court held that the prosecution has
failed to prove that there was knowledge to accused No.2 and that he
abetted the crime and acquitted accused No.2 therein.
21. In the case of Sadashiv Mahadeo Yavaluje and Gajanan
Shripatrao Salokhe Vs. State of Maharashtra reported in (1990) 1
SCC 299, it is seen that this case was under old act. There also
allegations were made against respondent No.2 of abettment. There the
allegation was that accused No.1 and accused No.2 who were Head
Constable and Constable respectively in the same police station. A
statement of the complainant was recorded by accused No.1. Accused
No.1 asked the complainant to go. While going out the complainant
asked accused No.2, as to whether he can go. It is alleged that
thereafter accused No.2 told the complainant that he can go, however,
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told that accused No.1 is demanding Rs.200/- to compromise the matter
and to file application to see accused No.1 settles the matter with him.
Thereafter, it is alleged that there was no corroborative evidence to the
testimony of the complainant. Accused No.2 had told that accused No.1
has demanded the amount. On that accused No.2 was entrusted with
the amount to pass it on to accused No.1. It is held that merely giving
amount to accused No.2 for handing over to accused No.1 is not
sufficient to hold accused No.2 guilty of an offence. It was not
established that accused No.2 was also a party to the arrangement. It is
held that it was necessary to prove that accused No.2 also was sharing
intention with accused No.1. In that case accused No.2 was acquitted by
the Hon'ble Apex Court.
22. Considering all these judgments and from the evidence it is
clear that the prosecution has not brought anything on record to show
that accused No.2 was a party to the conspiracy or he was sharing the
common intention. The prosecution has even failed to show that accused
No.2 had any knowledge about the alleged demand by accused No.1.
23. So far as accused No.1 is concerned, it is clear that there is
no direct acceptance by accused No.1 of the alleged bribe amount. It
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has come on record that accused No.1 had taken action against Shukla -
brother-in-law of PW-1. Said Shukla had started construction without
any permission, though it is stated that there was deemed permission.
However, it has come on record that accused No.1 had raised objection
and had sent notices to said Shukla (Exhs.19 and 21). This fact is not
denied. It has also come on record from the evidence of PW-1 that when
he met accused No.1 at the time of incident, it is PW-1 who on his own
told accused No.1 that he has brought amount and there is no demand
by accused No.1. It is also brought on record that PW-1 has further
accepted in the cross that he told raiding party that accused No.1 is not
involved.
24. When accused No.1 had taken action, there was every reason
for PW-1 and Shukla to implicate accused in the offence. Considering all
above facts there is certainly lack of evidence to prove the guilt of the
accused persons. This Court, therefore, holds that the conviction of both
the accused persons is without sufficient evidence. From the impugned
judgment, it is seen that the learned Court below has held the accused
guilty by imagination. It needs to be kept in mind that it is for the
prosecution to prove guilt beyond reasonable doubt. The Court cannot
fill up gaps or lacuna of prosecution case by imagination presuming
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certain facts.
25. For all these reasons recorded above and since there is no
sufficient evidence, this Court holds that the impugned judgment and
order deserves to be quashed and set aside by acquitting both the
accused-appellants of all the charges levelled against them. Hence,
following order :-
ORDER
(i) Both the Criminal Appeals are allowed.
(ii) The judgment and order dated 26.11.2004, passed by
the Special Judge, Aurangabad, in Special Case No. 16 of
2001 is quashed and set aside.
(iii) Appellant - Accused - Jagannath Dadarao Thorat is
acquitted of the offences punishable under sections 7, 13 (1)
(d) and 13 (2) of the Prevention of Corruption Act.
(iv) Appellant - Accused - Sonuji Chimaji Garodi is
acquitted of the offences punishable under section 12 of the
Prevention of Corruption Act.
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(v) Fine amount, if paid, shall be refunded to the
appellants.
(vi) Bail bonds of the appellants stand discharged.
[KISHORE C. SANT, J.]
snk/2024/oct24/crap808.04
