Bombay High Court
Trishok Gomaji Wakle vs State Of Maha on 3 January, 2025
2025:BHC-AUG:45
-1- Cri Appeal No. 174.2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 174 OF 2004
Trishok S/o. Gomaji Wakle,
Age : 48 Years, Occu. : Service,
R/o. Vikas Nagar (West), Parbhani,
Tq. Parbhani, Dist. Parbhani. ..... Appellant
(Ori. Accused No.1)
Versus
The State of Maharashtra ..... Respondent
.....
Advocate for Appellant : Mr. Ashwin Sakolkar h/f Mr. V.G. Sakolkar.
APP for Respondent-State : Mr. D.R. Korade
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 09 December, 2024
PRONOUNCED ON : 03 January, 2025
JUDGMENT :
1. Instant appeal arises out of judgment and order dated
25.02.2004, passed by learned Special Judge, Parbhani, in Special
Case No.03/2001, recording guilt of the present appellant for offences
under Sections 7 and 13(1)(d) r/w. 13(2) of the Prevention of
Corruption Act, 1988.
-2- Cri Appeal No. 174.2004
IN NUTSHELL, CASE OF THE PROSECUTION IS AS UNDER :
2. Above sessions case was tried by learned Special Judge,
Parbhani, against the present appellant, on being charge-sheeted on
the premises that, he was working as a Talathi. That, PW1 Atmaram
Waywal i.e. complainant, after demise of his father, approached the
appellant to effect the names of himself, his mother, brothers and
sisters, with regard to land, situated at Village Suki. That, application
was tendered for drawing 7/12 extract. However, the appellant put
up demand of Rs.500/- to do the needful. The complainant managed
to pay Rs.250/- and agreed to pay remaining amount after 7/12
extract was issued. However, the complainant approached Anti
Corruption Bureau Authority and lodged report at Exh.34.
3. On the basis of report, PW4 Police Inspector, Anti
Corruption Bureau, Parbhani arranged and planned trap. Panchas
were summoned. PW1 complainant and PW2 Pratap Rathod i.e.
shadow panch were given necessary instructions and thereafter, they
both were sent to the appellant to pay bribe on demand and to give
signal. Accordingly, the complainant and shadow panch both
approached the appellant at his residence. There, according to
prosecution, on instructions of the appellant, bribe amount was kept
-3- Cri Appeal No. 174.2004
on the mat laid on cot and later on, bribe amount was collected by the
appellant, after which predetermined signal was given, on which,
raiding party arrived and apprehended both the accused.
4. PW4 Police Inspector lodged report at Exh.54, carried out
investigation and charge-sheeted the appellant for above offences.
Learned trial court, who conducted the special case, reached at
conclusion that the prosecution succeeded in proving charge only
against the present appellant and acquitted accused No.2, on the
ground that, he had no knowledge that the amount accepted by him
was towards bribe amount.
5. It is the above judgment which is now questioned before
this court by filing instant appeal.
SUBMISSIONS
ON BEHALF OF THE APPELLANT :
6. Learned counsel for the appellant would point out that,
there is false implication and moreover, erroneous appreciation of the
material available before it by the learned trial court. He would
further point out that, there is no convincing and legally acceptable
-4- Cri Appeal No. 174.2004
evidence about demand of money. He emphasized that, from the
prosecution evidence itself, it transpires that, appellant had not
accepted any currency, rather the complainant himself speaks of
currency kept on the mat. Therefore, according to learned counsel,
there is no acceptance of currency.
7. Learned counsel pointed out that, law is fairly settled that
mere demand is not sufficient and even prosecution has to further
prove that there is acceptance by way of bribe also. According to him,
evidence to that regard is patently missing. He further pointed out
that, witnesses i.e. PW1 complainant and PW2 shadow panch are not
consistent. According to him, there are variances and discrepancies on
material counts and in support of such contention, learned counsel
took this court through the substantive evidence of PW1 complainant
as well as PW2 shadow panch.
8. Learned counsel also pointed out that, from the evidence
of PW1 complainant, it also emerges that, couple of times, attempt
was made to pay bribe amount, but appellant had not accepted. Thus,
according to him, this itself indicates that, there were desperate and
repeated attempts to implicate the appellant. He also pointed out
that, there are variances in the evidence of PW3 Sanctioning
-5- Cri Appeal No. 174.2004
Authority as well as PW4 Investigating Officer, on the numbers and
denomination of the currencies. He also pointed out that,
complainant after keeping the amount on mat, allegedly left and as
such there is no evidence to show that amount was picked up or
accepted by the appellant. Therefore, for all above reasons, according
to learned counsel, case of prosecution is not fully proved beyond
reasonable doubt.
9. Learned counsel further pointed out that, here, even
sanction is invalid as evidence of sanctioning authority does not show
that there is application of mind while according the sanction.
According to him, invalid sanction also is a ground for rejecting the
prosecution case.
10. In support of above submissions, learned counsel seeks
reliance on the judgments of the Hon'ble Supreme Court in following
cases, on the point of no evidence about prior demand.
i) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh,
reported in (1979) 4 SCC 172.
ii) Hari Dev Sharma Vs. State (Delhi Administration),
reported in (1977) 3 SCC 352.
-6- Cri Appeal No. 174.2004
ON BEHALF OF THE RESPONDENT-STATE :
11. In answer to above, learned APP for the Respondent-
State pointed out that, the appellant was working as a Talathi. That,
the complainant had approached him for issuing 7/12 extract, but the
appellant demanded Rs.500/-. Complainant had initially paid
Rs.250/- and subsequently, remaining amount of Rs.250/- was agreed
to be paid on issuance of 7/12 extract. However, as the complainant
was not willing to pay bribe, he lodged report with PW4 ACB Officer.
That, said ACB officer planned and arranged trap by summoning
panchas. That, verification panchanama was drawn. That, trap was
laid and it was successful. That, the complainant was accompanied by
PW2 shadow panch. That, both of them have narrated the events,
which took place at the house of appellant regarding demand as well
as acceptance.
12. Learned APP further pointed out that, immediately after
trap, anthracene traces were found even on the hands of appellant as
well as accused No.2. Thus, according to him, acceptance is
substantiated and proved. As regards to sanction is concerned, learned
APP pointed out that, after studying the papers, on due application of
mind, sanction has been accorded and hence, it is his submission that,
learned special court committed no error in recording the guilt of the
appellant. So, he prays to dismiss the appeal.
-7- Cri Appeal No. 174.2004
ANALYSIS
13. In the light of above submissions, evidence adduced by
prosecution is put to minute scrutiny. Here, PW1 seems to be
complainant, PW2 seems to be shadow panch, PW3 is the sanctioning
authority and PW4 is the Investigating Officer. Defence side has also
adduced evidence of one witness i.e. DW1 Ganpati Randive.
14. Visited the evidence of PW1 Atmaram i.e. complainant at
Exh.33. The sum and substance of his testimony is that, after demise
of his father, he approached to the present appellant, who was Talathi
of Village Suki, to effect the names of heirs i.e. himself, his mother
and siblings. The complainant has categorically stated that, he also
tendered application, but the appellant told him that he would have
to pay some amount and then, demanded Rs.500/-. The complainant
stated that, he expressed his inability to pay the amount because of
poor financial condition, but appellant insisted for the same and
therefore, during second visit, complainant paid Rs.250/-. He deposed
that, remaining amount of Rs.250/- was decided to be paid after work
was done. However, he has lodged report which he identified at
Exhibit 34.
-8- Cri Appeal No. 174.2004
15. PW1 complainant further deposed that, on his report,
PW4 Investigating Officer/ACB Officer arranged and planned trap.
Independent panchas were called and they were all instructed about
procedure of payment of bribe on demand. The complainant in para 3
of his evidence deposed that, he and PW2 shadow panch together
visited the house of appellant. The appellant told them to sit on cot
and when the complainant asked him about 7/12 extract, the
appellant questioned him whether he has brought the remaining
amount. The complainant confirmed about bringing it and when he
took out the currency to hand over, it is the case of complainant that,
appellant directed him to keep it on the mat. Accordingly, said
currency was kept there and thereafter, complainant went to give
signal followed by trap executed by raiding party, who were waiting
in lay.
Complainant is subjected to extensive cross-examination.
However, the above evidence has not been disturbed or shaken.
16. Another crucial witness is PW2 Pratap Rathod i.e.
shadow panch. He also in his substantive evidence at Exh.37 narrated
that, he was called by ACB Office, introduced to the complainant,
who lodged report against the appellant, was apprised of the
complainant's case and he put signature over the complaint. He
-9- Cri Appeal No. 174.2004
further stated about ACB officer giving them instruction,
demonstrating application of anthracene powder to the currency and
giving specific instructions to pay amount on demand. In para 5 of his
evidence, he stated that, he accompanied the complainant to the
house of appellant. Thereafter, he also deposed, as like the
complainant, about accused initially came and called them inside the
house and made them sit on cot and conversation took place between
complainant and accused. PW2 shadow panch categorically stated
that, when complainant asked about his work, appellant counter-
questioned him about money, upon which complainant took out the
currency and while he was about to hand it over, appellant instructed
the complainant to keep it on the mat.
17. Thereafter, PW2 Pratap stated that, when complainant
went out to give signal, he himself continued to sit there and he has
deposed about the amount being taken by accused No.2 and after
arrival of raiding party, when hands of both, accused No.1-appellant
and accused No.2 were subjected to examination under UV light,
there were anthracene traces even to the hands of appellant.
18. Therefore, PW2 Pratap is independent witness. He has
seen appellant accepting the currency, though it was subsequently
-10- Cri Appeal No. 174.2004
passed to accused No.2. Even there is nothing adverse in his cross-
examination. In spite of cross-examining him to larger extent, the
crucial aspect of demand as well as acceptance, which is sine qua
non, is also available in his evidence and he also supports PW1
complainant as regards to demand and acceptance is concerned.
19. Consequently, PW1 complainant and PW2 shadow panch
both are corroborating each other and lending support to each other
on the required aspects of demand and acceptance. Though learned
counsel for the appellant pointed out that, witnesses are not
consistent entirely and there are material variances on the aspects
pointed out, in the considered opinion of this Court, these are not
material variances. Only those variances are material which are core
case of the prosecution i.e. demand and acceptance. However such
aspect has remained undisturbed.
20. On visiting the evidence of PW3 sanctioning authority,
even this court is of considered view that, there is no force in the
submission that, there is no application of mind. Witness has stated
about studying the papers and according sanction. Therefore, sanction
cannot be said to be invalid.
-11- Cri Appeal No. 174.2004
21. Therefore, on complete re-appreciation of the evidence of
PW1, PW2, PW3 and PW4, there is no hesitation to hold that the view
taken by the learned trial court is the possible view that could emerge
on appreciation of the available evidence. No case being made out for
interference, I pass following order.
ORDER
The criminal appeal is hereby dismissed.
[ABHAY S. WAGHWASE, J.]
22. On pronouncement of this Judgment, learned counsel for
the appellant prays for four weeks time to surrender so as to enable
him to approach the Hon'ble Apex Court.
23. Learned APP strongly opposes the same.
24. Considering the above request made by learned counsel
for the appellant, four weeks time is granted to the appellant to
surrender.
[ABHAY S. WAGHWASE, J.]
ASD
