Bombay High Court
Haridas Mahadev Chavan vs State Of Maha on 8 October, 2024
2024:BHC-AUG:24096
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 485 OF 2004
Haridas S/o. Mahadev Chavan,
Age : 53 years, Occu. : Retired,
Junior Auditor,
R/o. K-31/11, N-11, Navjeevan Colony,
HUDCO, Aurangabad, Tq. & Dist. Aurangabad. ... Appellant
(Orig. Accused)
Versus
The State of Maharashtra ... Respondent.
...
Mr. R. N. Dhorde, Senior Counsel i/b. Mr. Vikram R. Dhorde a/w.
Mr. S. P. Nimbalkar.
Mr. K. K. Naik, APP for Respondent - State.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 30 SEPTEMBER, 2024
PRONOUNCED ON : 08 OCTOBER, 2024
JUDGMENT :
1. In this appeal there is challenge by the convict to the
judgment and order dated 09.07.2004 passed by learned Special
Judge at Aurangabad in Special Case No.18 of 2001 holding him
guilty for offence punishable under sections 7 and 13(1)(d) read
with section 13(2) of Prevention of Corruption Act, 1988.
2. In short case of prosecution is that, PW1 Charias
husband of Kamalbai Abhayankar approached office of Education
Department with papers of his wife to receive second installment of
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arrears towards 5th Pay Commission. Present appellant working as
an Assistant Auditor was approached with request to do the
needful. Appellant put up demand of Rs.200/- to release the
arrears and also threatened that work would not be done if amount
was not be paid. Therefore, informant PW1 approached ACB
authorities, lodged report Exh.17. On the strength of which, ACB
authorities planned trap in presence of pancha. Necessary
instructions were given and trap was executed after accused
demanded and accepted the bribe amount. He was duly charge-
sheeted, tried and finally held guilty. Hence, instant appeal.
SUBMISSIONS
On behalf of Appellant :-
3. Learned Senior Counsel Shri R. N. Dhorde would
submit that there is false implication. According to him,
complainant had no work at all in the office of appellant. That,
work was of his wife and her documents were to be submitted to
receive arrears. That, said wife never approached and even she is
not examined. That, there was quarrel between complainant and
appellant as appellant insisted presence of wife of complainant,
who was actual beneficiary. Out of annoyance for insisting, false
report is lodged. That, there was no demand as alleged. He further
submitted that, complaint was of same day and even trap was
executed on the same day. That, evidence shows that panchas were
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already available prior to visit of complainant.
4. Learned Senior Counsel further pointed out that,
alleged report which is treated as complaint and would submit that
it does not carry timing. That, there is admission to that extent by
both, complainant as well as Investigating Officer, and therefore,
according to learned Senior Counsel, very story of prosecution
about receipt of complaint comes under shadow of doubt and there
is every possibility of drawing report as per conveniance of
complainant at subsequent point of time.
5. Learned Senior Counsel took this court through the
evidence of shadow pancha and would submit that his evidence
shows that two other independent persons were present at the
time of visit of complainant, but they too are not examined.
Learned Senior Counsel strenuously submitted that, going by the
hand sketch map which is part of record, there is every possibility
of bribe amount thrusted in the drawer to falsely implicate. He also
pointed out that, another pancha, who was said to be party to the
raid, has not been examined.
6. That, witnesses are quoting different time of raid and
such crucial aspect creates serious doubt about prosecution
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version also. Lastly, learned Senior Counsel took this court
through the evidence of Investigating Officer, more particularly his
cross and submitted that there is serious doubt about the actual
raid because Investigating Officer has admitted that there were no
communication to the panchas to come an act as pancha.
Learned Senior Counsel in support of his submissions
seeks reliance on following rulings :-
(i) Subhash Parbat Sunvane v. State of Gujarat,
AIR 2003 SC 2169;
(ii) M. R. Purushotham v. State of Karnataka,
(2015) 3 SCC 247;
(iii) Prabhat Kumar Gupta v. State of Jharkhand and Anr.
(2014) 14 SCC 516;
(iv) State of Kerala and Anr. v. C.P. Rao, (2011) 6 SCC 450;
(v) Ganapathi Sanya Naik v. State of Karnataka,
AIR 2007 SC 3213;
(vi) M. K. Harshan v. State of Kerala, AIR 1995 SC 2178;
(vii) Sita Ram v. The State of Rajasthan, AIR 1975 SC 1432;
(viii) Salimkhan Sardarkhan v. State of Gujarat,
AIR 1986 SC 307;
(ix) Mukhtiar Singh (since deceased) Through His Legal
Representative v. State of Punjab, (2017) 8 SCC 136;
(x) V. Venkata Subbarao v. State represented by Inspector
of Police, A.P. (2006) 13 SCC 305;
(xi) Darshan Lal v. The Delhi Administration,
(1974) 3 SCC 595;
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(xii) Prakash Bhaskarrao Patil v. State of Maharashtra,
2022 (3) ABR (CRI) 27 (Bombay High Court).
On behalf of Respondent - State :
7. In answer to above, learned APP supported the
judgment and would submit that, there is clear, cogent and
convincing evidence. That, there was demand of illegal gratification
for releasing arrears of wife of complainant. That, there is prompt
complaint. According to him, ACB authorities acted swiftly,
planned and arranged trap. That, complainant was accompanied
by independent pancha witness. That, they both are corroborating
each other. That, there is demand as well as acceptance. According
to him, going by the map there is no possibility at all of deliberate
thrusting currency in the drawer. Such defence is not acceptable.
Therefore, according to him, as all ingredients to attract the
charges were available, he prays to uphold the conviction by
dismissing the appeal.
EVIDENCE ON RECORD
8. PW1 Charias is complainant. Sum and substance of his
evidence that, he approached accused an Assistant Auditor with
papers of his wife, who was a teacher, for receiving arrears
towards 5th Pay Commission. That, for doing such official work,
appellant demanded bribe. Complainant was not willing to pay
bribe, therefore he lodged report and acted as per instructions of
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ACB Officer and while in company of PW3 Sk Chiraguddin, after
demand bribe amount was paid. It was accepted and he relayed
necessary signal, after which trap was executed.
PW2 Pralhad, Sanctioning Authority, who claims to
have studied the papers and file received from ACB authorities and
granted sanction.
PW3 Sk. Chiraguddin, shadow pancha, deposed that he
was asked to visit ACB office, introduced to complainant and
complaint. He agreed to act as pancha. Procedure of application of
anthracene powder to the currency handed by complainant was
demonstrated. He accompanied complainant to the office of
accused. In his presence, there was demand as well as acceptance.
PW4 P.I. Tandale, ACB is the Investigating Officer.
ANALYSIS
9. The fundamental grounds of challenge are that, firstly,
there was no demand of illegal gratification and there is no
corroboration to the version of complainant about demand. That,
merely because appellant insisted presence of wife of complainant,
who was actual beneficiary of arrears, complainant who is ex-
armyman got annoyed and he lodged report. Secondly, evidence of
complainant and pancha witness is not consistent regarding the
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time of actual raid. Thirdly, there is no timing over report.
Fourthly, there is no documentary evidence regarding summoning
panchas and fifthly, sanction is without application of mind and
rather is in mechanical manner.
10. In the light of above objections and after hearing both
sides, carefully analyzed the substantive evidence of PW1
complainant and PW3 shadow pancha. Visited the cross faced by
them. It is emerging therein that, complainant approached office of
Education Department, Aurangabad on 16.01.2001 with papers of
his wife working as a teacher, was entitled for arrears towards 5 th
Pay Commission. It has come in his evidence that, as she was not
keeping good health, instead of her, he had come. However, there
was demand of Rs.200/- to do the needful by the appellant. So
much part of testimony has virtually remained unchallenged in
cross examination. Witness has flatly denied in cross that, as
appellant asked to produce his wife, there is false implication. It is
true that, witness is unable to give time of lodging report, but it is
to be noticed that his testimony is recorded in 2004 i.e. after three
years of the alleged incident and therefore his mere inability to
give exact time will not render his other version doubtful.
On comparing evidence of shadow pancha, who is
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examined as PW3 has also narrated about initially being
summoned to ACB office, about being introduced to complainant
and complaint and that he and complainant both were explained
procedure of raid and with clear instructions to complainant to pay
on demand and panchanama to be drawn. He deposed about
visiting office of appellant. In paragraph no.4, he narrated the
events taking place at the office of appellant is very categorical
about conversation between complainant and accused. According
to him, appellant told that his work is almost over and mere
signature of Superior Officer has remained and then asked
complainant to pay Rs.200/- and that he would seek signature and
asked complainant to come on next day. Complainant held tainted
currency and accused accepted it with right hand and kept it in left
drawer. Signal was given by complainant and raid was carried out.
His cross which commences from paragraph no.9. He has indeed
given different timing, but again merely on such count his above
version would not entire come under shadow of doubt. He has
withstood the remaining cross without getting shaken on crucial
aspect of demand and acceptance.
Consequently, testimonies of PW1 and PW3 are
consistent and they are lending support to each other.
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11. As regards to testimony of PW2 Pralhad, Sanctioning
authority is concerned, he has testified about receiving ACB file,
studying the papers, applying mind and then according sanction.
There is very little or no cross of such witness.
12. Investigating Officer has also deposed and narrated all
events since receipt of complaint, planning trap, giving necessary
instruction, demonstration and apprehending accused after
receiving signal from complainant. Again, failure to note timing of
complaint cannot be said to be a serious infraction. It could at the
most be lapse on the part of Investigating Officer in not noting
timing, but no benefit could be derived by accused merely on such
count.
13. To sum up, there is convincing evidence of both
demand as well as acceptance. There is no previous enmity to
falsely implicate. Even the submission about implication due to
quarrel for insisting presence of wife, also is not a convincing
ground to overlook or discard the other aspects of demand and
acceptance. There is no plausible explanation from accused.
Submission that, going by the location of site of office and sitting
arrangement, as is reflected in the map, it is possible to thrust, also
cannot be given much undue significance. There is anthracene
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powder to the fingers which is a conclusive proof of acceptance.
Resultantly, no good ground being raised on merits, there is no
substance in the appeal. Hence, the following order :-
ORDER
The criminal appeal stands dismissed.
(ABHAY S. WAGHWASE, J.)
14. On pronouncement of this judgment, learned Senior
counsel for the appellant prays for six weeks time to surrender so
as to enable him to approach the Hon'ble Apex Court.
15. Learned APP strongly opposes the same.
16. Considering the above request made by learned Senior
counsel for the appellant, six weeks time is granted for the
appellant to surrender.
(ABHAY S. WAGHWASE, J.)
Tandale
