Bombay High Court
Narayan Ambadas Lokhande vs State Of Mah on 4 October, 2024
2024:BHC-AUG:23727
{1} CRI APPEAL 282 OF 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 282 OF 2005
Narayan S/o Ambadas Lokhande
Age: 53 years, Occu.: Service,
R/o. Salunke Nagar, Bembli Road,
Osmanabad, Taluka and
District Osmanabad. ..Appellant
(Original Accused)
Versus
The State of Maharashtra ..Respondent
...
Advocate for Appellant : Mr.N.K.Kakade h/f. Mr.V.G.Sakolkar
APP for Respondent : Mr.N.B.Patil
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 30 SEPTEMBER, 2024
PRONOUNCED ON : 04 OCTOBER, 2024
JUDGMENT :
-
1. Convict appellant Narayan is challenging judgment and order
passed by the Special Judge, Osmanabad, dated 11-04-2005 in
Special Case No.6 of 2001 recording guilt of appellant for offence
under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption
Act.
FACTS LEADING TO THE TRIAL
2. Complainant PW1 Suresh, who was a beneficiary of award on
account of acquisition of his land, was due to receive cheque. To
complete the formalities, he approached Treasury Office. Appellant,
{2} CRI APPEAL 282 OF 2005
a clerk, posted therein was approached on 09-02-2001 by
complainant and requested to issue necessary certificate for
encashment of cheque. Complainant conveyed urgency. However,
appellant, to do it with priority, demanded Rs.500/-. Complainant
himself, being a Police Officer, was against giving bribe and therefore,
he approached Anti Corruption Bureau (ACB) authorities and lodged
report exh.14.
PW4 Kalidas Shankarrao Suryawanshi (Dy.S.P.), ACB Officer,
noted the report, planned trap by engaging panchas. Entire
procedure was explained and demonstrated with specific instructions
to complainant to pay amount on demand. Accordingly, on
09-02-2001, at around 04:00 p.m., when complainant was
accompanied by PW3 Ram Mahadeo Narule, accused put up demand
and accepted tainted currency. Necessary signal was relayed by
complainant and raid was executed.
After investigation, appellant was tried by Special Judge,
Osmanabad vide Special Case No.6 of 2001 and guilt was recorded
for aforesaid offence by rendering judgment. Hence, instant appeal.
SUBMISSIONS
On behalf of appellant :
3. Learned Counsel for appellant criticized and questioned the
{3} CRI APPEAL 282 OF 2005
impugned judgment by submitting that prosecution has miserably
failed to prove the charges beyond reasonable doubt. He took this
Court through the evidence of PW1 Suresh, complainant and
emphasized that there is deliberate entrapment because ego of
complainant was hurt while interacting with appellant. Learned
Counsel emphasized that in this case, complaint is not noted by PW4
Investigating Officer, rather admittedly it is recorded by subordinate
of the Investigating Officer namely Mane (PHC), but such person is
not examined and therefore, learned Counsel questions the
authenticity and credibility of accusations. That evidence of
complainant itself demonstrates his such attitude.
4. He pointed out that, it is fairly settled law that in cases of such
nature, complainant being interested witness, law requires sufficient
corroboration before or accepting complainant's version. Learned
Counsel emphatically submitted that in the case in hand,
complainant was accompanied by his nephew Dhananjay during visit
to the Office of appellant. However, such important witness has not
been examined by prosecution to support complainant's version.
Therefore, it is his submission that sole testimony of complainant
regarding demand of gratification cannot be straightaway accepted.
{4} CRI APPEAL 282 OF 2005
On this count, learned Counsel seeks reliance on the case of B.
Jayaraj v. State of AP [(2014) 4 S.C.R. 554].
5. Learned Counsel for the appellant submitted that even
otherwise there is no direct demand of illegal gratification and there
is mere allegation of conversation as to whether amount is brought.
According to learned Counsel, such version is ambiguous in nature
and no specific meaning could be attributed to such version. That
moreover, testimony of complainant is not fully supported by PW3
shadow pancha as according to learned Counsel, he was not present
when there were talks going on between complainant and accused in
the passage, outside the cabin of Treasury Officer. He further
elaborated that complainant in cross-examination himself admitted in
paragraph 23 that there were no talks between himself and accused.
Thus, according to learned Counsel, evidence of complainant itself is
unworthy of credence. On this point, he seeks reliance on the case of
Ashok Kumar Bhagchand Wardhani v. State of Maharashtra, 2003
ALL MR (Cri) 88 (Nagpur Bench), wherein ruling of Hon'ble Apex
court in the case of Jaswant Singh v. State of Punjab AIR 1973 SC
707 has been taken recourse to.
6. He pointed out that, it is a case of thrusting money for
{5} CRI APPEAL 282 OF 2005
deliberate implication. That amount was thrown after appellant
realized it being thrusted forcibly. Learned Counsel submitted that,
independent witness DW1 Shrihari Rangnath Akoskar on behalf of
appellant has been examined, but according to him, unfortunately
such testimony has not been appreciated by learned trial Judge. On
this count, he seeks reliance on the ruling of the Hon'ble Apex Court
in the case of Babu Lal Bajpai v. State of U.P., AIR 1994 SC 1538.
7. Next attack of learned Counsel is on the aspect of validity of
sanction accorded by PW2 Narayan Bhaskar Ringne. Learned
Counsel submitted that in this case, such authority was not
authorized to accord sanction as he had not appointed appellant.
Learned Counsel pointed out that appointment of appellant was by
Collector. Therefore, Collector being appointing authority, was only
competent to remove or accord sanction. Therefore, sanction is not
valid. He also criticized the evidence of PW2 Ringne by pointing out
that there is total non-application of mind before according sanction.
Learned Counsel submitted that his cross-examination shows that he
has not studied the papers and has not applied mind and has not
assigned reasons and grounds for granting sanction. Learned Counsel
pointed out that it has also emerged from the evidence of this witness
{6} CRI APPEAL 282 OF 2005
that draft sanction has been used without independent application of
mind by this authority and so learned Counsel questions the sanction
itself. On this count, he seeks reliance on ruling of this Court in the
case of Vinod s/o. Savalaram Kanadkhedkar v. The State of
Maharashtra, 2016 ALL MR (Cri.) 3697 and judgment of Hon'ble
Apex court in the case of C.B.I. v. Ashok Kumar Aggarwal, AIR 2014
SC 827.
8. Learned Counsel would strenuously submit that the
complainant was himself a superior Police Officer. Investigating
Officer is also his old acquaintance and colleague. That entire
investigation was under influence of such relation with sole intention
to implicate appellant. In support of above submission and
contentions, learned counsel took this court through the evidence of
both PW1 complainant and PW4 Investigating Officer and answers
given by them in cross-examination. Learned Counsel also pointed
out that in this case, PW4 Investigating Officer has not placed on
record any written communication to seek engagement of Pancha
witnesses. That there is admission to that extent and therefore,
learned Counsel submits that there is every reason to doubt
participation of independent shadow pancha witness.
{7} CRI APPEAL 282 OF 2005
9. Lastly, concluding and summing up his arguments, learned
Counsel submits that case is not proved beyond reasonable doubt.
That there are several infirmities and lapses coupled with non-
examination of material witnesses. That defence witnesses version is
not taken into account by learned trial Judge and therefore, he seeks
indulgence at the hands of this Court by allowing the appeal.
On behalf of State :
10. In answer to above, learned APP submitted that there is clear
demand. That PW1 complainant has deposed to that extent in
substantive evidence paragraph 5 and 6. That there was prompt
lodgment of complaint. That there is again demand and acceptance
in presence of PW3 shadow panch. Leaned APP submitted that
evidence of complainant finds complete support from independent
witness shadow pancha. He also submitted that PW2 Sanctioning
Authority was authorized to appoint appellant. Therefore, he was
equally competent to accord sanction. That this witness has studied
the file and thereafter accorded sanction. Consequently, learned APP
submitted that there is convincing and cogent evidence of
complainant supported by evidence of shadow pancha and therefore,
according him, learned trial Court committed no error in recording
{8} CRI APPEAL 282 OF 2005
guilt and he prays to dismiss the appeal.
EVIDENCE IN TRIAL COURT
In support of its case, prosecution has adduced evidence of in
all four witnesses. Sum and substance of their evidence is as under :
11. PW1 Suresh Baliram Kandle, complainant, who deposed about
approaching appellant for issuing certificate for encashment of
cheque received towards acquisition of his land. That appellant, a
clerk at Treasury Office, demanded illegal gratification of Rs.500/-
for expeditiously doing the necessary work. As he was not willing to
pay bribe, he lodged report with ACB, who planned and laid trap.
That in presence of PW3 shadow pancha, accused demanded money
and amount on being tendered was accepted and accused was
trapped for accepting bribe.
Relevant cross-examination of above witness is as under :
That he retired as Assistant Commissioner of Police and he
admitted about lodging another case in ACB and the same to be sub
judice. He admitted that he is well acquainted with the Investigating
Officer. He admitted that he received first installment of
compensation to the tune of Rs.1,10,000/- in 1999 and at that time,
no one demanded gratification for issuing cheque. He admitted that
{9} CRI APPEAL 282 OF 2005
he was aware of the procedure regarding collection of cheque of
compensation. He admitted that further enquiry regarding passing of
cheque was required to be made at the counter itself by returning
token as per the procedure and he also admitted that it was not
expected from him to contact accused for his work. He admitted that
he was anxious to collect the cheque early and therefore, in anxiety
he contacted accused. He admitted introducing himself to the
accused. He answered that when accused demanded Rs.500/-, he
did not feel it necessary to make complaint to the next superior but
he made up mind to approach ACB and lodge complaint against
accused. He admitted that he was knowing well that giving bribe and
accepting bribe, both are offences. He admitted that accused was not
competent authority to pass cheque and that it was not within the
powers and means of accused either to pass or refuse to pass the
cheque. He also admitted that perhaps in normal course, if he would
have met Treasury Officer with a request for passing cheque by
disclosing identity then cheque would have been passed. He
answered that after he lodged complaint, PW4 Investigating Officer
took decision within half an hour to hold the trap against accused. In
paragraph 18 he admitted that complaint is not in his own
handwriting. He admitted that usually date and time of receiving
{10} CRI APPEAL 282 OF 2005
complaint is required to be mentioned by Police Officer after
recording the complaint and he also admitted that time of lodging
complaint is not noted in exh.14. He admitted that several other
persons were present in the office at the time of trap. He admitted
that he contacted accused only to see that he gets the cheque after
passing it immediately. In paragraph 23, he answered that after
entering the Treasury Office, he first alone proceeded towards the
accused whereas shadow pancha stood at a distance of 2-3 feet away
from him. He admitted that no talks took place between him and
accused. He denied that when accused was peeping in the chamber
of Treasury Officer, he inserted amount in the pocket of accused from
back side.
12. PW2 Narayan Bhaskar Ringne is Sanctioning Authority, who
claims to have received file and papers from ACB and after going
through the same, according sanction exh.31 to prosecute. That
accused was on surrender leave, however, he attended duty on the
date of trap in the office.
In cross-examination, he admitted that it was not duty of
accused to pass cheque for payment. He answered that once cheque
is issued by Land Acquisition Officer in the name of any person, then
{11} CRI APPEAL 282 OF 2005
said person has to present the cheque at counter for passing and
collect the token. He admitted that from the muster roll, presence of
accused cannot be seen to be on duty. He admitted about receiving
draft sanction and that after going through it, he came to know about
relevant sections. He admitted about not receiving original file from
ACB, but received xerox copies. He admitted that he had no legal
knowledge about provisions of Prevention of Corruption Act. He
admitted about not mentioning grounds of satisfaction for according
sanction for prosecution. He also did not mention about papers
received in the file, which were perused, while issuing sanction. He
admitted that he perused the draft sanction order and after making
little modification therein, he issued sanction. He admitted that
accused was appointed on recommendation of Collector and that
interview call was issued by Collector. He also admitted that one
Shri Kavathekar, Assistant Account Officer typed the sanction order in
the computer and typing work was done by referring draft sanction
order.
13. PW3 Ram Mahadeo Narule is the shadow pancha. According
to him, he was called to ACB office, introduced to complainant, going
through the complaint, being apprised about the proposed trap, its
{12} CRI APPEAL 282 OF 2005
procedure, pre-trap panchanama being drawn. He deposed that he
accompanied complainant to the Treasury Office and in his presence,
accused demanded and accepted money, after which complainant
relayed predetermined signal and trap being successfully carried out
by catching hold of appellant.
He admitted that he received mere oral instructions to attend
ACB office and did not receive written order. He answered that PW4
Investigating Officer (Dy.S.P.) compelled him to act as pancha and
after receiving witness summons, complainant told him to give
evidence properly and he fairly admitted that in case if he did not
give proper evidence, complainant told him that he would be
proceeded against and that Dy.S.P. told him that trap must be
successful and that his superior asked him to do as instructed by
Police Officer. He admitted that he did not ascertain contents of the
complaint. In paragraph 11, he answered that they entered Treasury
Office at 4.05 p.m. He admitted that no talk took place near the
table of accused. He denied the suggestion that complainant inserted
amount in the pocket of accused. Rest are all denial.
14. PW4 Kalidas Shankarrao Suryawanshi is Investigating Officer,
who narrated all events since receipt of complaint, till he himself
{13} CRI APPEAL 282 OF 2005
laying down trap, executing it, apprehending accused, lodging
complaint, investigating the same and chargesheeting accused.
15. Defence has adduced evidence of two witnesses i.e. DW1
Shrihari Rangnath Akoskar and DW2 Satwaji Piraji Shinde.
ANALYSIS
16. The first and fundamental challenge is that here there is no
demand and there is no corroboration to testimony of complainant as
both witnesses admit that previous to trap, there were no talks
between accused and complainant.
In the background of above submission, if PW1 complainant's
evidence first put to minute scrutiny, though he in paragraph 9
deposed that after reaching Treasury Office and approaching
accused, he told that within 2-3 minutes he would come out of the
office and then he came and told to come out of the office, they came
in the passage of the office and when no one was present there, when
accused was asked whether cheque is ready, accused answered that it
was ready and further asked complainant whether he brought the
amount and then asked him to pay the amount.
PW3 Ram, shadow pancha, in para 4 of examination-in-chief
itself deposed that seeing complainant, accused got up from his chair
{14} CRI APPEAL 282 OF 2005
and thereafter, complainant and accused began to proceed from
western side door of the Treasury Office and stood in some space
near the cabin of Treasury Officer and at that time, he stood 5-6 feet
away from them and thereafter, "some talk" took place between
complainant and accused. Thereafter, complainant took out cash and
gave it to accused. Thus, as pointed out by learned Counsel for
appellant, PW3 shadow pancha has not deposed about hearing talks
taking place between complainant and accused while only they two
were outside the chamber of the Treasury Officer. This shadow
pancha, who is independent witness, in paragraph 11 of the cross-
examination has already admitted that no talks took place near the
table of accused. Therefore, as pointed out, there is no material
suggesting demand of bribe at the time of visit of complainant and
shadow pancha at around 04.00 p.m.
It is fairly settled and there are catena fo judgments that
demand is sine qua non in cases of such nature. But above discussed
material creates doubt about demand. Another distinct feature of
this case is that there is no demand verification got done by PW4
Investigating Officer, which is also held to be necessary and
mandatory. Therefore, aspect of demand, for above reasons, comes
under shadow of doubt.
{15} CRI APPEAL 282 OF 2005
17. The manner of answers given by PW1 complainant, a retired
Assistant Commissioner of Police, shows that he has admitted
acquaintance with Police Officer. PW3 shadow pancha in cross-
examination has admitted that he was pressurized to depose in the
manner in which Police Officer told him and he was even threatened
to see that trap is successful and on its failure, he would be
proceeded against and even his immediate superior asked him to do
whatever Police Officer asks him to do so. Such answers show that
this witness has not deposed voluntarily or independently, on the
contrary, he is shown to be under control of PW1 complainant, PW4
Investigating Officer as well as his own Boss.
18. Learned Counsel for the appellant also submitted that material
witnesses are not examined i.e. very nephew of complainant, who
was party to the first demand. That even panch, who allegedly took
out tainted currency is also not examined. Indeed here it is noticed
that so called nephew of complainant namely Dhananjay, who was
party to first visit during which there was said to be demand of
Rs.500/-, is not made a witness. Similarly, pancha, who took out
currency from the pant pocket of accused has not been examined.
Reason for not examining them are also not assigned by prosecution.
{16} CRI APPEAL 282 OF 2005
19. Another attack is on the ground that, there is invalid sanction
as PW2 Sanctioning Authority was not competent to accord sanction
and moreover, there is non-application of mind by this authority
while issuing exh.31.
On above lines, if evidence of PW2 Sanctioning Authority is
visited, it is noticed that he is Treasury Officer. In paragraph 3 of
cross-examination, he admitted that it was not duty of accused to
pass cheque for payment. In paragraph 5, he admitted that accused
was appointed on the recommendation of Collector, but interview
call of the accused was issued by Collector. Apparently, there is no
appointment letter under the signature of this witness.
Recommendation is admitted by him, which is given by Collector
therefore, it is doubtful whether this witness was the appointing
authority, more particularly, when there is no specific appointment
letter of accused under his signature.
Another ground of attack on above witness is that there is
mechanical sanction. In view of such objection, if cross-examination
of this witness, more particularly paragraph 4 is visited, we find him
answering that he did not go through original file. He is handed over
mere xerox copies. He has also candidly admitted about receipt of
draft sanction and using the same by making little modification. In
{17} CRI APPEAL 282 OF 2005
paragraph 5, he has admitted that he did not mention grounds of
satisfaction and documents referred by him before issuing sanction
order. Rather subordinate officer, at his instance, by referring draft
sanction, typed the sanction order. His such answers further creates
doubt as to whether really before according sanction, there is due
satisfaction or subjective satisfaction upon application of mind.
Therefore, there is force in the submission of learned Counsel for
appellant that in mechanical manner, sanction has been accorded.
There are series of judgments of the Hon'ble Apex Court insisting for
according sanction only after due satisfaction and in absence of same,
sanction cannot be said to be valid.
20. Specific defence of accused is that complainant was expecting
special treatment being retired Senior Police Officer while he had
approached accused for immediate release of certification for cheque
and he has orchestraized the trap. That money was deliberately
inserted in his pocket. DW1 Shrihari Rangnath Akoskar, who is also
a staff of the same office, is examined by accused and he deposed
about seeing unknown person inserting money and accused throwing
it on the floor. His evidence to such extent has not been rendered
doubtful in cross-examination at the hands of learned APP.
{18} CRI APPEAL 282 OF 2005
Consequently, defence so taken has been probabilized and that is all
accused is expected to do as per settled law.
SUMMATION
21. To sum up, here there is weak evidence about demand. PW3
Shadow panch witness is not party to the actual demand. Therefore,
there is no corroboration on the point of demand. Material witnesses
are not examined. There is no verification panchanama prior to trap.
PW3 Shadow pancha has acted and deposed at the instance of PW1
complainant, PW4 Investigating Officer and his own superior Officer.
Sanction is not free from doubt. Therefore, it is a case of benefit of
doubt.
22. Perused the judgment challenged here. Learned trial Judge
has failed to notice above aspects. Mere substantive evidence of PW1
complainant and PW4 Investigating Officer seems to have taken into
consideration. Answers given by them in cross-examination and
more particularly, aspect of validity of sanction are not correctly
appreciated necessitating interference at the hands of this Court.
Accordingly, I proceed to pass following order.
{19} CRI APPEAL 282 OF 2005
ORDER
I) Criminal Appeal No.282 of 2005 is allowed.
II) The conviction awarded to appellant - Narayan S/o
Ambadas Lokhande for the offence punishable under Sections 7,
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, by the learned Special Judge, Osmanabad on
11-04-2005 in Special Case No.6 of 2001, stands quashed and
set aside.
III) The appellant stands acquitted of the offence punishable
under Sections 7, 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act.
IV) The bail bonds of appellant stand cancelled.
V) The fine amount deposited, if any, be refunded to the
appellant after the statutory period.
VI) It is clarified that there is no change as regards the order in
respect of disposal of muddemal.
( ABHAY S. WAGHWASE )
JUDGE
SPT
