Vikas s/o. Baburao Marathe vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Bom) 362

IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
T.V. NALAWADE, J.
Vikas s/o. Baburao Marathe – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL NO.387 OF 2000 & CRIMINAL APPLICATION NO.502 OF 2015
Decided on: 05/03/2015

Advocates:
Advocate Appeared
Mr. N.K. Kakade, Advocate for appellant.
Mr. A.V. Deshmukh, APP for State.

Headnote:Prevention of Corruption Act, 1988 - Sections 7, 13(1)(d) and 13(2) Bribe Demand and acceptance of. Whether an accused demanded bribe from any person and accepted same or not, could be merely proved on basis of evidence by trial Court. The counsel for appellant has placed reliance on Harshan v. State of Kerala, 1995 Cri LJ 3978 for taking benefit of the circumstance that amount was found under the register and not on the person of the accused. In view of the facts of that case, the Hon’ble Apex Court gave benefit of doubt and held that it was not possible to hold that accused tacitly accepted illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the PC Act, 1947 (old Act). The facts and circumstances of each and every case are always different.
       There can be direct evidence on the demand of illegal gratification and acceptance of it by the accused. Different tactics are played by the persons, demanding and accepting the illegal gratification and it is the duty of the Court to ascertain from the evidence as to whether the evidence is sufficient to prove the demand and acceptance of illegal gratification. Only because the amount was not found on the person of the accused, inference cannot be drawn that there was no demand or there was no acceptance.
       Prevention of Corruption Act, 1988 - Sections 7, 13(1)(d) and 13(2) Demand of bribe Lenient view. Where question relating to follow leniency view in cases of bribe’s demand and acceptance arises, Court cannot follow lenient view because cases of corruption are increasing day by day.
       Prevention of Corruption Act, 1988 - Sections 19, 7, 13(1)(d) and 13(2) Demand of bribe Necessity of sanction. In the present case relating to demand of bribe, it as given finding that the Sub-Divisional Officer who accorded sanction, had power to remove the applicant from service and thus it could not be said that sanction was not given by competent authority. The Sub-Divisional Officer who accorded sanction in the present case had the power to remove the appellant from the service and so, it cannot be said that the sanction was not given by the competent authority. The provision of Section 19 (3) (a) further shows that setting aside of the conviction at the appellate stage on such ground is not possible. Nothing is shown as to how prejudice has been caused. Further, this defence was not taken in trial Court.
       The relevant material is considered by the sanctioning authority and there was the application of mind. Nothing is brought during the cross-examination of the sanctioning authority to create probability that there was no record shown to him or there was non-application of mind. Thus, there is no force in the submissions made by the counsel for the appellant to challenge the sanction accorded against the appellant. In view of these circumstances and position of law, the Court holds that there is no possibility of interference in the decision of conviction given by the Trial Court. On the point of penalty, it can be said that imprisonment of only three years is given. It can be said that in very rare cases, the poor persons who are harassed, approach ACB. Conviction rate in such case is also surprisingly very low for the reasons which the Court is avoiding to quote. Due to these circumstances, the corruption is increasing. No lenient view can be taken in such a cases. Thus, there is no possibility of interference on the point of sentence, penalty also.

JUDGMENT

1) The appeal is filed against judgment and order of Special Case No. 6/1995 which was pending in the Court of Special Judge, (Additional Sessions Judge) Jalgaon. The appellant is convicted and sentenced for the offences punishable under sections 7 and 13 (1) (d) r/w. 13 (2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act' for short). The maximum sentence of imprisonment of three years is given for the offence punishable under section 13 (2) of the PC Act and fine is also imposed. The substantive sentences are made to run concurrently. The application is filed by the appellant for permission to produce some record like copy of his appointment order. Both the sides are heard.

2) The original complainant Pandharinath Choudhary was a retired clerk of Municipality Jalgaon. Land admeasuring 2.85 Hectors from Gat No. 118 situated at village Paldhi was standing in the name of his wife, Durgabai Mahajan. They were in need of money and so, they wanted to sell the land. In the revenue record of this land, some encumbrances in respect of Government charges were shown and those entries were coming in the way of transfer of the land. Complainant Pandharinath approached Tahsildar for deleting the entry in respect of Tagai and by order dated 17.2.1995 Talathi was directed to delete that entry. There was one more encumbrance in respect of Bunding work. The complainant paid the charges in respect of Bunding work in the treasury and so, the direction was given to delete that entry also.

3) As per the procedure, Talathi of the concerned village viz. Paldhi is expected to delete the entries and issue 7/12 extract showing that there is no encumbrance on the land. The complainant produced copies of aforesaid two orders along with application before Talathi and requested him to delete the entries and issue the 7/12 extract. He approached Talathi on 1.3.1995. Talathi, the accused/appellant asked him to come after one month. The complainant approached Talathi on 18.3.1995 and on that day, Talathi again asked the complainant to come after 15 days and he refused to give 7/12 extract. In view of this conduct and approach of Talathi, the complainant went to residential place of Talathi on 23.3.1995 at about 7.15 a.m. The house is named as 'Madhav Sadan' and situated at Tagor Nagar, Jalgaon. When the complainant requested Talathi to issue 7/12 extract as he wanted to sell the property, Talathi/accused asked the complainant to give illegal gratification of Rs. 800/- for doing this work. The complainant then approached Anti-Corruption Bureau (hereinafter referred to as 'ACB' for short) on 23.3.1995. Talathi had asked the complainant to come to his office on 24.3.1995 with the money.

4) Deputy Superintendent of Police Shri. Prakash Rade was attached to ACB Office. After receipt of complaint, he made inquiry with the complainant to ascertain that there were no malafides on the part of complainant. He then took steps for collecting two independent witnesses and asked the complainant to come to the office on the morning of 24.3.1995. Two employees of Zilla Parishad were collected as panch witnesses.

5) When panch witnesses and complainant came to ACB Office at 8.00 a.m., the complainant was introduced to the panchas and the action which was to be taken during trap was explained to them. The demonstration of use of anthracene powder was given to them. From the complainant amount of Rs. 800/- was collected which consisted of currency notes of Rs.100/- denomination each. The tainted money was kept in the pocket of shirt of complainant. He was to hand over the money to accused only after making of demand by the accused. Murlidhar Koli, first panch witness, was to remain in the company of the complainant to witness the incident. After acceptance of the money by the accused, signal was to be given by the complainant and after that, the remaining members of trap team were to come forward to take further action. Pre-trap panchanama was

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2015 Supreme(Bom) 362

IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD T.V. NALAWADE, J. Vikas s/o. Baburao Marathe – AppellantVersus The State of Maharashtra – RespondentCRIMINAL APPEAL NO.387 OF 2000 & CRIMINAL APPLICATION NO.502 OF 2015 Decided on: 05/03/2015

Cases Referred (1)

Judicial Analysis

IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
T.V. NALAWADE, J.
Vikas s/o. Baburao Marathe – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL NO.387 OF 2000 & CRIMINAL APPLICATION NO.502 OF 2015
Decided on: 05/03/2015