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2015 Supreme(Bom) 2255
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
M.T. JOSHI, J.
Raju and Ors. – Appellants
Vs.
The State of Maharashtra – Respondent
Criminal Appeal Nos. 30 and 38 of 2014
Decided On : 10.09.2015
For the Appellant :R.N. Dhorde, Senior Advocate instructed by and V.R. Dhorde, Advocate
For the Respondents: M.S. Patni, A.P.P.
Headnote:Prevention of Corruption Act, 1988 - Sections 7 and 13 Illegal gratification Proof of. Though payment of donation is highly objectionable but same was not regarded as an offence punishable under Section 7 or under Section 13(1)(d) read with Section 13(2) of the Act. It is to be noted that the prosecution case is not at all that the appellant/accused No. 1 has pressurized the complainant for giving donation but for the remuneration other than the legal remuneration for which he is not entitled to. In the circumstances, suddenly during the judgment, without any charge being framed in this regard, it cannot be held that certain insistence towards payment of donation should be termed as bribe. No doubt, the Special Judge was indignant finding that the donation was sought from the needy people. This exercise of appellant may be found highly objectionable. However, the issue would be as to whether it would be an offence punishable under Section 7 or under Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act. The necessary answer to this question would be in the negative.
As regards accused No. 2, he was not a public servant. He was merely a caretaker of the Observation Home. On the direction of accused No. 1, he used to accept the donations. He cannot be thus said to have abetted the offence of demand of money by the accused No. 1.
Prevention of Corruption Act, 1988 - Section 12 Abetment of illegal gratification Conviction. Where accused No. 2 was merely a caretaker of observation home and not a public servant and on the direction of accused No. 1, he used to accept the donations; it was held that accused No. 2 did not abet the offence of demand of money by accused No. 1 and hence his conviction was liable to be set aside.
M.T. Joshi, J.
1. The original accused No. 1 before the learned Special Judge, Latur in Special Case (A.C.B.) No. 3 of 2010 was convicted, vide judgement and order dated 3rd January, 2014, for the offence punishable under section 7 and for the offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. He was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/- for his conviction for the offence punishable under section 7 of the Prevention of Corruption Act. He was sentenced to undergo imprisonment for one year and to pay fine of Rs. 500/- for the conviction for the offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act.
Aggrieved by the said order of conviction and sentence, the original accused No. 1 Raju Narayan Bodhale has filed Criminal Appeal No. 30 of 2014.
2. Besides the accused No. 1 Raju, the original accused No. 2 was convicted by the learned Special Judge, vide the above referred judgment and order, in Special Case No. 3 of 2010, for the offence punishable under section 12 of the Prevention of Corruption Act i.e. for abetting the commission of the offence of original accused No. 1 Raju. This accused No. 2 Madan was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/-.
Aggrieved by the said order of conviction and sentence, the original accused No. 2 Madan Bappasaheb Shinde has filed Criminal Appeal No. 38 of 2014.
3. The prosecution case, in short, is as under:--
"That, in the year 2009, the present appellant - Raju (in Cri. Appeal No. 30/2014) was serving as Superintendent of the Observation Home at Latur. The accused No. 2 Madan i.e. appellant in Criminal Appeal No. 38/2014 was the caretaker of the said Observation Home. The complainant - Prakash Rambhau Sonkamble, resident of village Longaon was intending to admit his nieces, namely, Poonam and Vidya in Government Girls Hostel, Murud. Therefore, on 6th July, 2009, he met the present appellant - Raju. At that time, this appellant told that the girls first will have to be admitted to the hostel at Latur and thereafter, the procedure for transfer them to the hostel at Murud will have to be carried. At that time, appellant Raju demanded an amount of Rs. 2,000/- from the complainant. The complainant accordingly paid an amount of Rs. 800/-. Thereafter, he paid an amount of Rs. 1200/- on 10th July, 2009 and the girls were admitted in the Girls Hostel at Latur.
Next of the procedure was for transfer of the girls from hostel at Latur to hostel at Murud. In the circumstances, on 13th July, 2009, the complainant made a phone call to the appellant - Raju and requested him to do the needful. At that time, this appellant again made a demand of Rs. 2,000/-. In the circumstances, the complainant met appellant Raju in person on 14th July, 2009 and 16th July, 2009. He requested appellant Raju to reduce the amount. However, appellant Raju refused for the same. In the circumstances, the complainant lodged the complaint on 17th July, 2009 with Anti Corruption Bureau, Latur."
4. During investigation, Mr. K.N. Supekar, Deputy Superintendent of Police attached to Anti Corruption Bureau, Latur requisitioned two panch witnesses from the office of P.W.D., Latur on 17th July, 2009. Out of them, panch witness No. 2 Walmik Upade and the complainant were sent to appellant Raju for verification of demand of money. At the time of verification, appellant Raju directed both of them to go to the accused No. 2 i.e. appellant Madan. Appellant Madan had also insisted the complainant to deposit Rs. 2,000/-. The complainant and the panch witness Walmik thereafter went to the office of Anti Corruption Bureau. The demand verification panchanama was thereafter prepared. In the circumstances, it was decided to lay trap on 18th July, 2009.
On 18th July, 2009, the panchas and the complainant had gathered in the office of Anti Corruption Bureau. The decoy
