Bombay High Court
Sheshrao Sopanrao Dhondge vs State Of Maha on 14 October, 2024
2024:BHC-AUG:24827
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 257 OF 2004
Sheshrao s/o Sopanrao Dhondge,
Age; 61 yeas, Occ; Pensioner,
R/o; "Laxmi Nivas", Yogeshwar Colony,
Gangakhed, Taluka Gangakhed, ...APPELLANT
District; Parbhani. (Orig. Accused)
VERSUS
The State of Maharashtra
...RESPONDENT.
(Orig. Complainant)
..........................................
Advocate for the appellant : Mr.S.P. Chapalgaonkar
A.G.P. for the Respondent/State : Mr. S.K.Shirse
.............................................
CORAM : KISHORE C. SANT, J.
Date of Reservation : 16.08.2024
Date of Pronouncement : 14.10.2024
JUDGMENT
1. Being aggrieved by the judgment and order passed by
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the learned Special Judge, Parbhani in Special Case No. 15 of 2000
dated 31.03.2004, the appellant original accused has approached
this Court. He is held guilty of & convicted for the offences
punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the
Prevention of Corruption Act, 1988. He is sentenced to suffer R.I.
for 1 year and to pay find of Rs. 1,000/-, I.D. to under go R.I. for 3
months for each of the offences. Sentences are directed to run
concurrently.
2. The prosecution was initiated on a complaint filed by
one Manik Shivram Perke PW-4 by Dy. S.P. (ACB) Parbhani
prosecution case is that PW-1 Devidas Dukare, a defacto
Complainant was working as Primary Teacher, he had approached
the accused, Block Education Officer for his pay fixation. On
29.01.2000 he met the accused. On that day when requested, the
accused told him that though on earlier occasion he had
transferred the complainant as per his request still he has not given
anything to the accused. If Complainant wants that his pay should
be fixed as per 5th Pay Commission then he has to pay Rs. 1,000/-,
otherwise the work would be done in routine manner. The
Complainant, on that, requested to reduce the said amount.
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Accused told him to come on 31.01.2000 with Rs. 500/- and told to
pay remaining amount of Rs. 500/- after the pay fixation is done.
On this the Complainant lodged a complaint with Anti Corruption
Bureau on 31.01.2000. The Dy. S.P. ACB, on such complaint
decided to lay a trap on 31.01.2000. The further case of the
prosecution is that the trap became successful. The accused is
caught red handed alongwith the amount of bribe. After obtaining
sanction, the charge-sheet came to be filed and the accused was
tried.
3. Learned Special Judge on trial held the accused guilty of
the aforesaid offences and passed the judgment.
4. The prosecution in support of its case examined four
witnesses. PW-1, de-facto Complainant, in his evidence stated
about the earlier demand, laying of trap etc. About the actual
incident he stated that he went in the office of accused alongwith
pancha PW-2. He asked one lady sitting outside the room of the
accused as to whether the accused is in the office. On making
inquiry they both went in the room of the accused with his Service
Book. Before going to the room he had asked another employee
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whether his pay fixation is done, on that it was informed that the
said work is not done. On going in the room of the accused he
asked as to whether his work is done, on that the accused asked as
to whether the amount is brought as agreed. On saying that the
Complainant has brought the amount, the accused asked as to
whether the Complainant has paid the amount to one Katarde. The
Complainant told that he has not paid the amount to Katarde but
he would pay the amount directly to the accused. On that the
accused demanded the amount of Rs. 500/-. The accused took the
amount in his hand asking as to how much is the amount and
counted the amount by both the hands and kept the same in left
pocket of his pant and asked the Complainant to wait outside
telling that he would come out of the room. The panch, however,
stayed in the room of the accused. After coming out of the room
this witness gave signal to the raiding party, on that the raiding
party came in the room. After some time this Complainant was
called inside the room. Pocket of his pant was examined under the
ultra violate lamp, which shown traces of anthracene powder. On
the hands of the Complainant also traces of powder were seen. He
proved the complaint lodged by him on 31.01.2000.
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5. In the cross-examination it was suggested that this
witness was working as a Chairman of one association of the
primary School of Teachers, which he denied and volunteered that
he became the Chairman after the incident. He accepted that the
clerk Katarde had told that the necessary entry for correct fixation
is made in the service book, therefore, the Complainant need not
see the accused. It is taken that there is annual gathering held
every year which is being attended by all the primary teachers
under the control of central primary school. He denied that such
gathering was held at village on 29.01.2000 village Sayala, where
the accused and other three officers were present in between 2.00
p.m. to 5.00 p.m. It was answered that it being Saturday, such
gathering was over at 1.00 p.m. only. He denied suggestion that
the amount of Rs. 500/- was inserted in the pocket of the accused.
6. PW-2 is the Sanctioning authority who was working as
Secretary, Public Health Department, Bombay. At the relevant time
he was working as Secretary in the School Education Department,
Government of Maharashtra. He stated that he received the papers
through the Home Department, those papers were wrongly sent to
Rural Development Department earlier. He stated that he studied
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all the papers and after applying mind he accorded sanction to
prosecute the accused. He proved the sanction order dated
27.11.2000. He also stated that the authority to appoint the
applicant Education Officer is with the Government and stated that
the power is exercised with the approval of the State Government by
the Head of the Department i.e. the Secretary. He was the Secretary
at the relevant time and therefore, was having authority to accord
the sanction.
7. In the cross-examination he could not tell as to whether
a note was prepared by his subordinate for sanction but he stated
that he followed the routine procedure while issuing sanction. He
explained that the procedure in the cross-examination. However,
he stated that he did not find it necessary to reproduce the said
procedure in the sanctioning order itself. It is also taken in the
cross-examination that he had sought the approval of the Minister
of Education before according sanction being Head of the
Department. He accepted that the draft sanction order was
prepared by the ACB and was received in the papers, however, he
denied that he granted the sanction mechanically.
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8. PW-3 is the panch witness namely Dattatraya Kide, who
was working as Assistant Professor at Agricultural College,
Parbhani. He stated that on 31.01.2000 he was sent by the
Principal of the said College along with one other his colleague to
the office of ACB, Parbhani. He stated about going to the office of
ACB, conducting of demonstration of the anthracene powder, the
procedure of laying of trap etc. He thereafter deposed about going
to the office of the accused along with the Complainant. On going
to the office of the Block Development Officer, the Complainant
contacted the concerned clerk and requested him for information
about matter of re-fixation of his pay. It was informed that entry of
re-fixation of pay is already taken in the service book, however, only
signature of the Block Development Officer was yet to be made.
The entry was shown to the Complainant in the service book of re-
fixation of pay. The Complainant took the said service book and
papers on telling by the Clerk that he would himself obtain
signature of the accused. When they came near the Chamber of the
Education Officer, a lady peon sitting outside, told them to wait
outside as some persons were in the chamber. After those persons
came out, the Complainant entered the chamber and this witness
followed the Complainant. The Complainant went at the table of
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the accused and asked him as to whether a signature on pay
fixation is made. The accused asked as to whether he has brought
the amount and on answering in affirmative the Complainant
placed the papers and the service book on the table of the accused.
The said person thereafter demanded the amount. The Complainant
took out the amount kept in his left chest pocket of the shirt and
give it to the officer. The officer took the amount in his right hand,
counted the same and kept it in the left side pocket of his pant with
his left hand and after accepting the amount he told the
Complainant that his work would be done. On this, the
Complainant left the chamber this witness sat in the chamber of
the accused. The other members of the raiding party immediately
entered the chamber. On asking by PW-4 as to who demanded the
amount and received the same, this witness told that the amount is
demanded and accepted by the accused. He further stated about
the procedure followed thereafter of checking of hands of accused
under the ultra violate lamp and on checking of both hands of the
accused it shows blue shining under the ultra violate lamp. The
pant pocket of the accused also shown blue shining of anthracene
powder. Even inner side of the pocket shown blue shining. The
notes were recovered. This witness proved the panchanama.
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9. In the cross-examination it is brought on record that
this witness was standing inside of the door of the Chamber of the
accused, nothing much is taken in the cross-examination.
10. As regards PW-4, in investigating officer, who was
working as Dy. Superintendent of Police, Parbhani at the relevant
time. He deposed about recording of the complaint, calling of the
pancha witnesses and obtaining of the sanction etc.
11. From his cross-examination, nothing much is taken.
This witness has proved the complaint, forwarding of letter along
with proposal for sanction etc.
12. The defence has also examined one witness namely
Vitthal Lad, who was working as Headmaster of a School at Sayala.
He deposed that on the date of incident a function was held at
Primary School, Sayala in two sessions i.e. first session between
10.00 a.m. to 1.00 p.m. and the second Session from 2.00 p.m. to
5.00 p.m. In the said programme the certificates to the students
for their performances were to be distributed. The accused was
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present in the said function. He further stated that no photographs
were taken in the first Session of the function. The photographs
were taken only in the second session. He exhibited those
photographs wherein the accused is shown to be present. He also
proved the register kept for visitors.
13. In the cross-examination he stated that no invitation
cards were printed of the function. The programme list was
prepared, but the same was not available. In his photographs the
timing of the sessions was not marked. From the photographs it
could not be stated as to whether they are of the first session or the
second session. A suggestion was given that his statement about
the presence of the accused from 10.00 a.m. to 5.00 p.m. was false,
the said is denied. He accepted that no panel for the function was
prepared. The written invitations were given to the visitors of the
Sayala village and teachers of the primary school coming within the
jurisdiction of Central Primary School Lohgaon. He stated that
there is no record to show that the function of distribution of
certificates to the students was held in between 2.00 p.m. to 5.00
p.m. He accepted that the time of function was at 2.00 p.m. 5.00
p.m. as mentioned in Exh. 55 only on the basis of his memory and
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there is no record to that effect. He also stated that there is no
record maintained to show that he was present in the function and
that function was continued till 5.00 p.m. Exhibit 55 is the only
letter addressed stating that the function of distribution of
certificates' was arranged from 2.00 p.m. to 5.00 p.m.
14. On the basis of this evidence the learned trial Court
came to conclusion that the prosecution has proved the guilt of the
accused beyond reasonable doubt and held him guilty and thus
the appellant is before this Court.
15. Learned Advocate for the appellant argued for quite
some time. He submits that the prosecution has not proved the
guilt of the accused beyond reasonable doubt. PW-1 had stated in
his evidence that the accused asked him as to whether he has paid
the amount to one Katarde and he told that he had not paid the
amount to him. This material part is absent in the evidence of PW-
3 a pancha witness. The story of the prosecution thus becomes
doubtful. In the evidence of PW-3 it has come that immediately
after giving amount to the accused, the informant left the chamber
and immediately thereafter one person came in the Chamber,
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however, that person is not examined by the prosecution. This is a
serious infirmity in the evidence of the prosecution. So far as the
sanction is concerned he submits that the sanctioning authority
has accepted in his evidence in the cross-examination that he had
received a draft sanction order. In his submission it shows that the
sanctioning authority had granted sanction in a mechanical
manner. The proof of demand and acceptance taken is also not
satisfactory which is sine-qua-non to prove the case. He further
submits that the incident is reported to have taken place between
between 3.30 p.m. to 4.00 p.m. In the defence evidence it is
brought on record that at the same time the accused was present
in the gathering arranged by the school at Sayala, which is at the
distance of 25 to 30 k.m. away from the office of the accused. He
thus submits that there are serious loopholes in the case of
prosecution and prayed for acquittal of the accused.
16. Learned APP vehemently opposes the case. He submits
that the prosecution has specifically proved its case by establishing
proof of demand of the amount and acceptance pursuant to the
demand. Both witnesses i.e. the Complainant and pancha are
consistent with each other on material particulars. Mere non
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stating that the accused asked as to whether the Complainant gave
the amount to Katarde is not material aspect. He further submits
that the sanction authority has clearly deposed about the
procedure as to how the sanction was granted. Nothing is brought
on record to show that the sanction order suffers from non
application of mind. By inviting attention to the answers to question
Nos. 39 and 40 he submits that accused accepted that after the
incident under the ultra violate lamp blue shining of anthracene
powder was found in nis hands. He also accepted that the pocket of
his pant was also showing glittering under the ultra violate lamp.
He thus submits that acceptance in is clearly proved. The distance
between Sayala and Parbhani is only 9 k.m. At the time of incident
it was Saturday and therefore, the school was closed at 1.00 p.m.
He submits that nothing is brought in the cross-examination by the
defence. About the defence witness he submits that his evidence is
not sufficient to show that the accused was at the school at Sayala
at the time of incident. He relied upon the judgment in Neeraj Dutta
Vs. State (Government of NCT of Delhi) reported in (2023) 4 SCC
731 in support of the prosecution.
17. After hearing the submissions and material things it
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needs to be considered as to whether the prosecution has proved
the demand and acceptance by the accused on the basis of evidence
laid before the Court and that further question is as to whether the
sanction is proper.
18. So far as the demand and acceptance is concerned, the
defacto Complainant and the pancha witnesses are consistent in all
material particulars except asking by the accused as to whether the
amount is paid to one Katarde. This inconsistency is clearly not
material. The Complainant and pancha witnesses went to the office
of the accused is clearly established. Thereafter they went in the
Chamber, whereby the accused demanded the amount is also duly
proved and there is nothing to disbelieve the said story. The
acceptance and counting of the amount is duly proved. After
counting of notes the accused kept the amount in the pocket is also
duly proved as the evidence is totally corroborated. In 313
statement there is no denial of the fact that the anthracene powder
was seen to the hands of the accused and at the pocket of the pant.
A lame defence is tried to be taken of function at School at Sayala.
Another defence tried to be put in cross examination of PW 1 that
amount was inserted in the pocket is clearly denied. The defence
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further could not give details when the photographs were taken
showing the accused was present in the gathering. He could not
show any invitation card of the function except stating vaguely that
the function was held till 5.00 O'Clock, he could not satisfactorily
proved the presence of the accused at Sayala. Assuming that there
was function at School at Sayala, the distance between the
Parbhani and Sayala is hardly 9 k.m., which hardly take 15 to 20
minutes to reach. In the cross-examination of the sanctioning
authority, nothing could be brought on record to show that the
sanctioning authority had not applied its mind. The proper
authority is not questioned. In the case of Neeraj Dutta (supra) the
Hon'ble Apex Court has categorically held that the proof of demand
and acceptance is Sine-Qua-Non. It is further held that the
prosecution has to first prove the demand and illegal gratification
and subsequent acceptance as a matter of fact. This can be proved
either by direct evidence or can be in the nature of oral or
documentary evidence. The said also can be proved by
circumstantial evidence in absence of direct or oral or documentary
evidence to offence under Section 13 (1) (d) (i) (ii) of the Act.
19. In the present case, it is seen that the prosecution has
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proved all material facts. The defence could not bring on record
anything in support of its case. This Court is thus has no
hesitation in holding that the prosecution has proved its case
beyond reasonable doubts. The learned trial Court has rightly
appreciated the evidence and no perversity or illegality is found in
the judgment. For all these reasons recorded, this Court does not
find any substance calling for any interference in the impugned
judgment and order. The appeal is thus, liable to be dismissed
and the same is dismissed. The bail bonds stand cancelled. The
appellant to surrender within six weeks from today. Consequences
to follow.
( KISHORE C. SANT )
JUDGE
mahajansb/
