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2018 Supreme(Bom) 1290
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
K.L. Wadane, J.
Nivrutti s/o Ganpati Sadekar – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 286 of 2005
Decided On : 09-10-2018
For the Appellant :V.D. Sapkal h/for Mr. P.R. Bhumkar, Advocate
For the Respondent: Y.G. Gujrathi, APP
Headnote:
Prevention of Corruption Act, 1988 - Section 7, 13(2), 13(1) (d) - Challenged order of his conviction - Rigorous imprisonment for two years - Recovery of the currency - Appellant was serving as Junior Assistant in Class III cadre in the Education Department - Complainant Balaji Sable was working as Junior Clerk in Arts College - He was assigned duty to prepare Economically Backward Class Students Concession Bill and submit it to Education Department for approval - Complainant Balaja Sable submitted various bills to Education Department which were signed by Principal of college - Appellant was looking after section pertaining to approval of EBC Bills - Complainant personally met to appellant and made enquiry - According to complainant, bills were not being sanctioned and appellant informed complainant that there is no point in visiting office repeatedly and he demanded Rs.3000/-Complainant felt that it is an illegal demand and as per instructions of Principal he visited Anti Corruption Bureau and lodged his complaint - PW-4 by taking steps, arranged for trap - Complainant, alognwith PW-3 Panch Witness went to office of accused along with amount - According to prosecution, accused demanded bribe amount and same was accepted from complainant in presence of panch witness PW-3 - After acceptance of amount of bribe, pre determined signal was conveyed to panch and raiding party - After signal, all of them entered into offence of appellant and amount was recovered from possession of appellant - Hands of the complainant as well as appellant were examined in ultraviolet lamp and on such examination, traces of anthracene powder were seen on tip of fingers of complainant as well as appellant - Investigating Officer PW4, prepared Spot Panchanama in detail - Accused was arrested - After trap statement of accused was recorded vide Exh. 68 in which he admitted acceptance of bribe - Investigation officer sent papers of investigation to PW-2 for obtaining sanction to prosecute appellant - PW-2 on scrutiny of papers of investigation, and other material on record and after application of mind, accorded sanction to persecute appellant - Investigating officer submitted charge sheet against appellant in court - Held, Complainant did not support prosecution case insofar as demand by accused is concerned - Prosecution has not examined any other witness, present at time when money was allegedly handed over to accused by complainant, to prove that same was pursuant to any demand made by accused. when the complainant himself had disowned what he had stated in the initial complaint (Exh.P11) before LW9, and there is no other evidence to prove that accused had made by demand, evidence of PW-1 and contents of Exhibit P11 cannot be relied upon to come to conclusion that above material furnishes proof of demand allegedly made by accused - Court inclined to hold that learned trial Court as well as High Court was not correct in holding demand alleged to be made by accused is proved, only other material available is recovery of rained currency notes from possession of accused – Court have gone through reasons recorded by trial court and found that trial court has failed to assess evidence correctly on record and has wrongly convicted accused person - On independent and in-depth scrutiny of entire evidence, Court of opinion that trial Court has failed to consider admissions given by witnesses on record during cross examinations and findings recorded are not consonance with evidence on record - Impugned judgment and order dated convicting appellant for offence under section 7, and under section 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988 is quashed and set aside - Criminal appeal is disposed of.
1. The appellant has challenged the order of his conviction passed by the learned Special Judge, Osmanabad in Special Case No. 12 of 2001 dated 15th April, 2005, by which the appellant is convicted for the offence under section 7 of the Prevention of Corruption Act (P. C. Act) and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/-. The appellant is further convicted for the offence punishable under section 13(1)(d) read with section 13(2) of the P. C. Act and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.2000/-. Substantive sentences are to run concurrently.
2. Brief facts of the case may be stated as follows:
(i). The appellant was serving as Junior Assistant in Class III cadre in the Education Department (Secondary), Zilla Parishad, Aurangabad since November, 1993. Complainant Balaji Sable was working as Junior Clerk in Arts College at Dhoki, District Osmanabad since July, 2000. He was assigned the duty to prepare Economically Backward Class Students Concession Bill (in short EBC Bills) and submit it to the Education Department for approval.
(ii). On 16.11.2000, complainant Balaja Sable submitted various bills to the Education Department, Z.P. which were signed by the Principal of the college. The appellant was looking after the section pertaining to approval of EBC Bills. The complainant personally met to the appellant and made enquiry. According to the complainant, the bills were not being sanctioned and the appellant informed the complainant that there is no point in visiting the office repeatedly and he demanded Rs.3000/-.
(iii). On 21.04.2001, the complainant felt that it is an illegal demand and as per instructions of Principal he visited the Anti Corruption Bureau on 23.04.2001 and lodged his complaint. After the complaint, PW-4 Suryawanshi, by taking steps, arranged for the trap. Then the complainant, alognwith PW-3 Panch Witness went to the office of the accused alongwith amount of Rs.1500/-.
(iv). According to the prosecution, accused demanded bribe amount of Rs.1500/- and the same was accepted from the complainant on 23.04.2001 in presence of panch witness PW-3 Nandkumar Shinde. After acceptance of the amount of bribe, pre determined signal was conveyed to the panch and raiding party. After the signal, all of them entered into the offence of the appellant and amount of Rs.1500/- was recovered from the possession of the appellant. Hands of the complainant as well as appellant were examined in ultraviolet lamp and on such examination, traces of anthracene powder were seen on the tip of fingers of the complainant as well as appellant.
(v). Investigating Officer PW4, Dy.S.P. Suryawanshi prepared Spot/Trap Panchanama in detail. Thereafter, the accused was arrested. After the trap statement of the accused was recorded vide Exh. 68 in which he admitted the acceptance of bribe. After carrying as usual investigation, the investigation officer sent papers of investigation to PW-2 Mr. Wankhede for obtaining sanction to prosecute the appellant.
(vi). On 15.07.200, PW-2 Mr. Bhaskar Wankhede, CEO, ZP, on scrutiny of the papers of investigation, and other material on record and after application of mind, accorded sanction to persecute the appellant. The investigating officer submitted the charge sheet against the appellant in the court of Special Judge, Osmanabad.
(vii). In order to establish the charges levelled against the appellant, the prosecution has examined in all four witness as under:
(1) PW-1 Balaji Ramkrishna Sable complainant.
(2) PW-2 Bhaskar Yadavrao Wankhede, Chief Executive officer, Osmanabad (who accorded sanction to prosecute the appellant).
(3) PW-3 Nandkishor Shinde, a Panch Witness (who was accompanied the complainant at the time of incident on 23.04.2001).
(4) PW-4 K. S. Suryawanshi, Dy. S.P. and Investigating Officer.
Besides the oral evidence of the aforesaid witnesses, prosecution has produced and relied upon various documents, those were seize
