Bombay High Court
Shrirang Dhondiba Ghule vs State Of Maha on 30 September, 2024
2024:BHC-AUG:23436
1 crappeal561.24 judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 561 OF 2003
Shrirang s/o Dhondiba Ghule,
Age; 50 years, Occ; Service,
R/o; N-11, K-1, Navjeevan Colony,
Hudco, Aurangabad.
... APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...............................................
Advocate for the Appellant : Mrs. Rekha Chaudhary h/f Mr. S.S.
Chaudhary
A.G.P. for the Respondent/State : Mr.S.M.Ganachari
................................................
CORAM : KISHORE C. SANT, J.
Date of Reservation : 12.08.2024
Date of Pronouncement : 30.09.2024
JUDGMENT
1. This appeal arises out of the judgment and order passed
by the learned Special Judge, Aurangabad dated 30.07.2003, in
2 crappeal561.24 judgment
Special Case No. 24 of 1998.
2. The present appellant is held guilty of the offences
punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the
Prevention of Corruption Act, 1988, (hereinafter referred to as the
'Act'). Accused is sentenced to suffer simple imprisonment for 6
months with fine of Rs. 500/-, in default, to undergo simple
imprisonment for 15 days. He is further sentenced to suffer simple
imprisonment for one year with fine of Rs. 500/-, in default, to
undergo simple imprisonment for 15 days for the offence
punishable under Section 13 (1) (d) with Section 13 (2).
3. The case of the prosecution in short is that one Shaikh
Gayas Shaikh Issak, was owner of 10 Acres of land however he was
in actual possession of 4 Acres of land only. The remaining 6 Acres
of the land was in possession of one Rukhamabai Devrao and Anna
Sakharam. He therefore, called the informant Shaikh Munir Shaikh
Kadar, brother of his daughter-in-law for measurement purpose.
For this purpose at the request of Sk. Gayas informant met the
accused who was working as Surveyor in the Office of T.I.L.R.
Khultabad. The informant went along with Shaikh Gayas on
3 crappeal561.24 judgment
27.11.1997 and filed an application for measurement of the field
and paid Rs. 800/- and requested for urgent measurement.
Pursuant to the filing of an application, the accused Ghule did
carry measurement of the land. On carrying out measurement, he
prepared a map and put boundary marks. However, he did not give
a copy of the same to the informant.
4. The informant therefore, went to the office of the
accused on 05.01.1998. On asking for copy of map, the accused
demanded Rs. 3,000/- from the informant. He also threatened him
that if no amount is paid as per the demand, he would give
incorrect map. On that the informant agreed to pay the amount.
The accused asked him to come to his office on 06.01.1998 at
11.00 hrs. On this, the complainant approached the office of the
Anti Corruption Bureau, Aurangabad and lodged a report. He was
called on 06.01.1998 in the office of ACB, Aurangabad. The office
of the ACB sent a requisition to arrange for two panchas for the
purpose of laying trap. The panchas were called on 06.01.1998. On
that day after taking complaint in hand writing and after giving
necessary instructions to the panchas, the Dy. S.P. (ACB) decided
to lay a trap. It is the case of the prosecution that the trap was
4 crappeal561.24 judgment
successful. The accused was found accepting the amount of bribe.
The learned trial Court on trial, held the appellant guilty of the
offences punishable under Sections 7, 13 (1) (d) r/w 13 (2) of the
P.C. Act.
5. To prove its case the prosecution examined four
witnesses. Pandit Ramji Kanekar as a PW-1, the sanctioning
authority, Shaikh Munir Shaikh Kadar as PW-2, a de-facto
Complainant informant, Sitaram Gopalrao Sonwane as PW-3, a
pancha witness and Daulat Mahadeo More as PW- 4, the
Investigating Officer.
6. This Court has gone through the oral and documentary
evidence on record with the assistance of the learned Advocate for
the appellant and the learned APP for the Respondent/State.
7. Kanekar, PW-1, the Sanction Authority, in his evidence
deposed that he was working as Dy. Director of the Land Records,
Aurangabad. He was having authority to appoint and remove the
persons to the post of Surveyor and Peon, in view of Section 9 (1) of
the Maharashtra Land Revenue Code and vide notification dated
5 crappeal561.24 judgment
19.06.1997. He received the investigation papers from ACB
alongwith requisition to accord a sanction to prosecute the accused.
On studying the papers, he found that a case is made out to accord
sanction and accordingly granted sanction on 22.06.1998. He
proved the sanction order Exh. 13.
8. In the cross-examination he gave details about the
procedure for making application for measurement and carrying
out the measurement. It is stated that the Surveyor does not issue
copy of measurement and the same is to be issued by the office. He
could not state as to whether in the file there were documents of
the land to be measured alongwith the map. In his sanction order
he made a reference to land Gut No. 30 of village Malkapur. He
accepted that the draft sanction order was complete except his
name. He denied the suggestion that the sanction was
mechanically granted.
9. The Complainant PW-2 deposed in his evidence that on
22.12.1997 the accused had measured the land and fixed the
boundary marks. He had deposited Rs. 800/- for measurement by
challan. The accused demanded Rs. 3,000/- in addition to official
6 crappeal561.24 judgment
charges as a bribe amount and threatened that in case the amount
is not paid, he will issue incorrect map and called this witness on
06.01.1998 with the bribe amount. PW-2 therefore, went to the
ACB Office, met Mr. More PW-4. On 06.01.1998 he went to the ACB
Office at 6 to 6.30 a.m. and lodged a report. His report was
reduced into writing by ACB Officer. He further stated about the
demonstration of anthracene powder and the procedure of the
laying trap.
10. It has further come in his evidence that at around 10.55
a.m. accused and shadow pancha reached on the road near Bhadra
Maruti Temple at Khultabad. PW-2 and PW-3 thereafter, went to
the office of T.I.L.R. by walk. He found the accused in a room. He
requested for a copy of the map to the accused, on which, the
accused told him that he need to take signature of the superior
officer on the order and it will take some time. The accused also
asked as to whether the Complainant has brought the money. The
Complainant replied in affirmative. The accused thereafter told him
to order for a cup of tea. The Complainant went outside to place
the order and after sometime tea was served to accused in his
office. The Complainant paid the charges for a cup of tea. One
7 crappeal561.24 judgment
Rajjak came and asked the Complainant about the work, that time
the accused was doing his work. The accused thereafter, went out
side of the office. PW- 2 and 3 followed the accused. Said Rajjak
told the Complainant that his superior namely Siddiqui, who was to
sign the map had gone out and will come late. Upon this the
Complainant and panch witness went out and found that the
accused was standing on the road. The accused asked about PW-3
to them. The accused thereafter, asked the Complainant as to
whether he had brought the amount of Rs. 3,000/-. The
Complainant requested to bring down the amount, however,
accused did not reduce the amount. All three persons came back
to the office. Accused called file from front room and asked PW
Nos. 1 and 2 to come in back room. On going to that room they
found one lady in the room. Accused asked said lady to bring tea.
On that the accused demanded the amount from the Complainant.
The Complainant took out tainted notes. The accused took out one
envelope & and asked the Complainant to put the notes in that
envelope & to put a pin over that envelope. Thereafter, the accused
opened a drawer and asked the Complainant to put the envelope in
the drawer. After envelope was placed in the drawer the accused
took out a file and put a signature on it.
8 crappeal561.24 judgment
11. The Complainant came out of the office and gave signal
to the raiding party. On receiving signal, the raiding party
immediately came into the room and asked PW-2 as to whether the
amount is accepted, PW-2 pointed out towards the accused. Two
Constables caught hold the accused, the Complainant was asked to
go out of the room. After some time, the Complainant was asked to
come in the room. There upon the hands of the Complainant were
checked under the ultraviolet lamp and blue shining of the
anthracene power was found to his hands. He has proved the
complaint dated 06.01.1998.
12. In the cross-examination, he accepted that when he had
been to the office of the accused on 05.01.1998, at that time Shaikh
Gayas was also present alongwith him. This witness stated that he
went to the office of Land Records for the first time on 05.01.1998.
He accepted that one Siddiqui was entrusted with the work of giving
copies of measurement and Mr. Rajjak was his assistant. When the
Complainant met Rajjak even at that time Gayas was with him.
Rajjak told him that he would give a copy as Siddiqui has already
put his signature, however, he had gone out. He could not tell as
to whether the file was with Rajjak or Siddiqui. Siddiqui and Rajjak
9 crappeal561.24 judgment
were seated in one hall and accused seated in another room. He
had no dispute about the measurement carried by the accused on
30.12.1997. He also accepted that Mr. Siddiqui was present on the
day of trap. The decision of lodging report was of Shaikh Gayas
and not of the Complainant. The report was lodged at the instance
of Shaikh Gayas. He was not aware whether the map was ready.
In his own case he had received a copy of map through post. Before
giving signal to the raiding party he had a talk with Rajjak who told
him that the copy was ready. He got the copy after Siddiqui came
to office. He had no talk with accused after depositing of the
measurement charges. At the time of measurement there was no
talk about the copy of the map.
13. Sitaram Gopalrao Sonwane PW-3 is the panch who
deposed about the procedure of the trap and demonstration of the
anthracene powder etc. About actual trap he stated that he went
alongwith PW-1 to the office of accused. Since PW-1 introduced
him with accused and thus he got knowledge that he is the
accused. PW-1 asked the accused about copy of the map. Accused
told that the copy was ready but was not signed by Siddiqui. PW-1
told him that let the work be done at the earliest. On that accused
10 crappeal561.24 judgment
asked PW-1 as to whether he has brought money, on that PW-1 told
that he has brought money when this talk was going on 4 to 5
persons were sitting in the room. PW-1 ordered tea for him and paid
the charges. Accused thereafter went out of the office. These
witnesses were still sitting there. When they were sitting one person
came and asked PW-1 about his work. On telling as to why they
are seating the persons told that the copies are sent to get
signatures of Siddiqui on the map as told by the accused. On that
these two witnesses came out of the office and found the accused
standing on the road. They went to him. Thereafter they went to
nearby hotel and sat on one bench. After they sat in the hotel PW-1
requested accused to bring down the amount of demand. The
accused however, refused to do so. These witnesses then came back
and the accused came back to office. The accused on reaching
back to the office took out a file from front room and signaled these
witnesses to come in the back side room. In the said room accused
told one lady to order tea for him. Thereupon, accused told PW-1 to
give the amount. By taking one envelope with pin and gave it to
PW-1 and asked him to put envelope in the drawer of table. PW-1
took out tainted notes and put the pocket in a drawer. On that the
accused closed the drawer. Thereafter, PW-1 came out and gave
11 crappeal561.24 judgment
signal to the raiding party and thereafter the procedure was
followed by checking fingers of the accused and the Complainant
under the ultraviolet lamp to which the blue shining of anthracene
powder was seen.
14. In the cross-examination this witness stated that there
was an old man present there. From the gestures of the
Complainant he could gather that there was demand of money for
supply of copy of the map. Mohd. Gayas had not come to them and
he had also never gone to the office of TILR. In the office he learnt
that the file was with Mr. Siddiqui for his signature and for
issuance of copies of the map. It was further revealed by Mr. Rajjak
that he accepted that till trap the employees were sitting in that
room but this witness never gone to the cabin of Siddiqui. He could
not tell how many persons were sitting in the hotel where he
himself, PW-1 and accused had gone. Accused had also told that
only Siddiqui's signature is remained.
15. Mr. Daulat Mahadeo More PW-4 is the Investigating
Officer, who was serving as Police Inspector at ACB, Aurangabad.
He deposed about receiving of the complaint from PW-1, requisition
12 crappeal561.24 judgment
for the panchas, explaining the panchas about procedure of trap
and showing them a demonstration of the anthracene powder. He
further deposed about investigation. He proved report Exh. 26. on
the basis of which. crime came to be registered. He proved the
statement Exh. 23, panchanama etc. He deposed about getting of
sanction and handing over further investigation to one Shri Joshi.
16. In his cross-examination he deposed that the table
where the accused was sitting was in the cabin of Siddiqui and the
accused was not sitting in the room of Siddiqui. On the date of
incident Siddiqui had not come to office. He denied the suggestion
that he has falsely implicated the accused.
17. On reading the evidence the learned Advocate for the
appellant submits that the work of measurement was already done
on 22.12.1997 and thereafter no work was remained with the
accused. The map was already drawn and the same was ready.
Only work of issuance of copy of the map and report was remained
and the same was with one Siddiqui. Mr. Siddiqui had not put his
signature till that time as he was out of station. Siddiqui was not
in the office when the trap was laid. It has come on record that
13 crappeal561.24 judgment
such maps are sent through post to the concerned persons. The
sanctioning authority did not apply its mind and prepared sanction
order as per draft sanction order that was received by it. The
measurement was of land Gut No. 38 and not of land Gut No. 30 as
mentioned in sanction order. These factors show non application of
mind. From the evidence PW-3 it is submitted that the demand
and acceptance is not at all proved. There is no utterance of word
bribe from any of the witness. PW-2 in his evidence has clearly
accepted that the complaint was lodged at the instance of Shaikh
Gayas i.e. the father-in-law of sister of this witness, who is the
owner of the land. The owner of the land however is not examined.
It has also come on record that though the copy was ready for
delivey. When PW Nos. 2 and 3 went to the office the accused, he
was not present in the office therefore, they went to the hotel to see
the accused. He thus submits that the guilt of the accused is not
beyond reasonable doubt. Evidence is much short to convict the
accused and prays for setting aside the judgment of conviction.
18. Learned Advocate for the appellant relied upon the
following judgments :
(i) 2023 ALL MR (Cri) 2905 - Govind Yeshwant
14 crappeal561.24 judgment
Adsule Vs. State of Maharashtra,
(ii) 2023 SCC OnLine SC 320 - Jagtar Singh Vs.
State of Punjab,
(iii) 2022 SCC Online Kar 1834 - P. Manjunath Vs.
State by Karnataka Lokayuktha Police, represented
by Inspector of Police and Others.
(iv) 2022 All MR (Cri.) 1577- Rustum Narayanrao
Jadhav Vs. State of Maharashtra.
(v) 2021 ALL MR (Cri) 3983 - Satish Murlidhar
Magar Vs. The State of Maharashtra.
(vi) (2009) 15 SCC 200 -State of Maharashtra vs.
Dnyaneshwar Laxman Rao Wankhede.
(vii) (2014) 14 SCC 516 - Prabhat Kumar Gupta Vs.
State of Jharkhand and Another.
(viii) (2002) 5 SCC 86 - Subhash Paarbat Sonwane
Vs. State of Gujarat.
19. Learned APP submits that the evidence of de-facto
Complainant PW-2 is duly corroborated by the shadow pancha, PW-
3. The accused at the time of trap demanded amount and also
accepted the same by asking de-facto Complainant to put amount
15 crappeal561.24 judgment
in an envelope. He also directed the Complainant to put a pin to
that envelope and put it in the drawer of the table. This fact shows
that he has accepted the amount and also shows that he is very
cleaver to avoid accepting the tainted notes by hands. This conduct
of the accused shows that he is a habitual person. This conduct of
the accused also shows culpable state of mind. There was no
sufficient time for demand verification. The superior officer Siddiqui
had signed the relevant papers and therefore, the map could have
been simply handed over to the de-facto Complainant. However,
still the map was not sent to Complainant. After the raiding party
entered in the room it is the accused on his own informed that the
amount is kept in the drawer. When the amount was found in the
drawer in the table of the accused it was for the accused to explain
as to how the envelope was in the drawer. In support of its case the
prosecution relied upon the following judgments :
(i) AIR 2004 SC 2042 :: 2004 AIR SCW 2192 -
State of A.P. Vs. Uma Maheswara Rao and another.
(ii) 1995 Cri.L.J. 3656 -Ramesh Kumar Gupta v.
State of M.P.
20. In the case of Jagtar Singh (supra) the Hon'ble Supreme
16 crappeal561.24 judgment
Court considered the judgment of the Constitution Bench in the
case of Neeraj Datta wherein it is held that to prove the demand
and acceptance as illegal gratification is sine-qua-non to establish
the guilt under Section 7 and 13 (1) (d) (i) and (ii). The prosecution
has to first prove the demand and illegal gratification and
subsequent acceptance as a matter of fact. It is further held that
the demand and acceptance can also be proved by circumstantial
evidence. When accused accepts the amount without previous
demand it is a case of acceptance under Section 7 of the Act and in
such cases no prior demand by the public servant is necessary. It a
case when there is demand by a public servant pursuant to that
there is acceptance of the amount then it would be an offence
under Section 13 (1) (d) (i) and (ii) of the Act. In such cases the
prosecution has to prove both the facts as fact in issue. In that
case the Complainant and a shadow pancha witness both had
turned hostile and in view of that it was held that there was no
evidence on record to prove the demand of illegal gratification.
There was no circumstantial evidence also to prove the demand in
that view the appeal was allowed and the accused was acquitted.
21. In the case of Manjunath (supra) it was the case of
17 crappeal561.24 judgment
quashing of the FIR/complaint. There was no full fledged trial, with
the facts of the case the proceedings were quashed.
22. So far as the judgment in the case of State of
Maharashtra vs. Mangala Shankar Chinchawade- Criminal Appeal
No. 154 of 2009 decided on 12.02.2021 (Bom.), is concerned, in the
said case initial demand itself was not proved. The evidence in
respect of demand and acceptance on the date of trial was also not
reliable and in that view the appeal of the State against acquittal
was dismissed. It was the case that the accused had asked the
Complainant to put the amount in her purse. The button of the
purse was not examined under the ultra violate lamp and thus the
prosecution could not prove that the purse was opened by the
Complainant and that the amount was put in it.
23. In the case of Rustum Jadhav (supra), in this case the
Court acquitted the accused on the ground that the sanctioning
authority had no authority and the demand verification
panchanama was not carried out. On such ground the appeal was
allowed setting aside conviction.
18 crappeal561.24 judgment
24. In the case of Satish Magar (supra) the Complainant
admitted in the cross-examination that when he went to pay the
amount 3 to 4 persons were sitting in front of the accused. This
fact is also admitted by the panch witness and the independent
witness. Though the independent witnesses were present, no
efforts were taken by the Investigating Officer to examine those
persons. The Court noted several discrepancies in the evidence of
the prosecution which created doubt about the authenticity of the
prosecution case. The Complainant had admitted that his mother
was in arrears of the tax and the appellant demanded the amount
of tax from him. The complainant also asked for the receipt from
the accused. The Court thus, held that the amount was towards
the payment of arrears of taxes and in that view, the accused was
acquitted.
25. In the case of Govind Adsul (supra) the evidence of
Complainant and Panch witness was contradictory. In that view an
acquittal was recorded by this Court.
26. In the case of Subhash Pabar Sonvane (supra), the Apex
Court held that expression "Obtains pecuniary advantage",
19 crappeal561.24 judgment
Contemplates an element of effort or initiative on the part of the
receiver of the advantage. In that case the Complainant had not
supported the prosecution case and failed to prove the ingredients
of demand and acceptance and therefore he was declared hostile.
In the cross-examination he did not support the case of the
prosecution on the point of demand and acceptance. Such
ingredients were absent even in the evidence of pancha witness. In
that view the Court acquitted the accused.
27. In the case of Prabhat Kumkar Gupta (supra) in that
case also the prosecution had failed to prove the demand and thus
there was acquittal.
28. In the case of Dnyaneshwar Wankhede (supra) the
Hon'ble Apex Court reiterated that to prove the offence, the demand
of illegal gratification is sine-qua-non. The prosecution has to prove
the demand and acceptance and the recovery of amount of illegal
gratification. The Court took into consideration the facts and
circumstances brought on record in their entirety. It is observed
that to raise presumption under Section 20 the foundational facts
must be established by the prosecution. Pancha witness died
20 crappeal561.24 judgment
during the pendency of the matter and thus there was no evidence
of demand in that case. The Hon'ble Apex Court therefore, held
that the demand and acceptance is not proved.
29. So far as the judgment relied upon by the learned APP in
the case of Ramesh Kumar Gupta (supra) in that case the Hon'ble
Apex Court held that the corroboration need not be direct and it
can be by way of circumstantial evidence also. Considering over all
ascertaining circumstances the Court found that sufficient
corroboration to the evidence of PW-1 regarding the demand and
acceptance of bribe was there and dismissed the appeal of the
accused.
30. In the case of Uma Maheshwar Rao (supra) it is held
that the presumption as to the acceptance of bribe under Section
20 has import compulsion. In that case the prosecution had proved
the demand and acceptance. There was also recovery of the
amount. Thus, when the foundational facts are proved it is held
that the Court shall presume that the amount was towards illegal
gratification.
31. Considering over all circumstances this Court finds that
21 crappeal561.24 judgment
in the present case the evidence is corroborated by respondent No.
3. It has come on record that it is the accused who himself gave an
envelope to the complainant and asked him to put the notes in the
said envelope. He even gave pin to close the envelope and thereafter
directed the complainant to put the envelope in the drawer. There
is nothing to indicate that the said envelope was placed in the
drawer in absence of the accused. Thus, this is fatal evidence
against the accused.
32. The defence of the accused that the complaint is lodged
at the instance of Mohd. Gayas is without merit. It is also not the
case of the defence that Mohd. Gayas had any animosity against
the accused person. About a submission that no work was pending
with the accused, it has come on record till going to the office of the
accused there was no knowledge to the complainant that it is the
Mohd. Siddiqui and Mr. Rajjak who were infact to give the map to
the Complainant. So far as judgments relied upon by the accused
are concerned, those are already discussed. This Court is of the
view that the said judgments are not applicable to the present case.
33. This Court finds merit in the submissions of the learned
22 crappeal561.24 judgment
APP that in this case, the prosecution has rightly invoked the
presumption under Section 20 by proving foundational facts. He
also shown that the sanctioning authority has granted the sanction
by applying its mind. The pancha and other documents are also
proved.
34. Considering the above, this Court finds that no case is
made out calling for interference in the findings recorded by the
trial Court and hence no case is made out to set aside the
conviction of the accused.
35. Hence the Criminal Appeal deserves to be dismissed and
is hereby dismissed. Consequences to follow.
( KISHORE C. SANT )
JUDGE
mahajansb/
36. At the request of learned Advocate for the appellant 12
weeks time is granted to surrender.
( KISHORE C. SANT )
JUDGE
mahajansb/
