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2019 Supreme(Bom) 357
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADHANA S JADHAV, J.
RAMDAS WAMAN TADGE - Appellant
Vs.
STATE OF MAHARASHTRA - Respondent
Criminal Appeal No. 497 of 2014
Decided on : 22-02-2019
Advocate Appeared:
Shradha Sawant, Adv., S.S. Pednekar, Adv.
Headnote:
Prevention of Corruption Act, 1988 - section 13 – Appeal against conviction – Anticipatory Bail - Acquitted - meanwhile Accused present Appellant had been to office complainant to hand over said amount to Appellant - Appellant had accepted said amount retained it and placed it in his hip pocket of pant - Soon thereafter complainant had given pre-determined signal - Raiding party had apprehended both accused persons - Statement of pinch was recorded - Post trap was prepared and thereafter had lodged a report on behalf of State - On basis of said report was registered at police station - After investigation and after receipt he sanction to prosecute by appropriate authority charge-sheet was filed - Prosecution examined six witnesses to bring home the guilt of the accused – Held, Upon appraisal of the records and proceedings and upon perusing the statement of Accused given to Investigating Officer at threshold soon after trap shows that had asked him to accept report of pinch committee and amount for depositing audit fees - That after counting money accused had informed superior officer that amount was not being fully paid for satisfying audit fees - In that eventuality accused had asked accused not to accept amount unless whole of audit fees is deposited - At that juncture complainant had coaxed Accused have a cup of tea and was insisting upon him to accept amount and help him - It was at that juncture that raiding party had apprehended accused evidence of has to be read in light of these circumstances where he has stated that he had actually seen a person wearing checks shirt accepting amount - In eventuality that amount was paid in cabin of accused there was no occasion for raiding party to see act of acceptance - In light of this reason for cross examining witnesses on point of scene of offence at length would assume importance - In light of these circumstances prosecution has not been able to establish as to whether amount has been accepted by Accused in cabin of accused or on road - This fact would assume significance - It is clear that demand of audit fees was to tune of complainant had brought - towards audit fees - presumption as far as Accused stands rebutted by itself in absence of any demand by Accused complainant had also filed a report only against Original Accused demand was made by him and according to complainant was to pay said amount to Accused raiding party was also not aware that money would be accepted by accused and be recovered from him - It is incumbent upon prosecution to prove demand and acceptance - Acceptance devoid of any demand would be of no significance - Especially when he accused has rebutted presumption by demonstrating preponderance of probabilities - It is clear from evidence of complainant that appellant had received amount upon instructions of co-accused - de-facto complainant has no grievance against present appellant at all - Appeal is allowed
Sadhana S. Jadhav, J.
1. Heard. The Appellant herein is convicted vide judgment and order dated 27-5-2014 passed by the Additional Sessions Judge, Malegaon, Dist. Nashik in Special (A.C.B.) Case No. 01 of 2008 for the offence punishable under section 7, 12 of the Prevention of Corruption Act, 1988 and sentenced to suffer R.I. for two years and to pay fine of Rs.2,000/- in default, to suffer R.I. for two months. He is also convicted for the offence punishable under section 13(1) (d) r/w. 13(2) of the Prevention of Corruption Act, 1988 and sentenced to suffer R.I. for two years and to pay fine of Rs.2,000/-, in default, to suffer R.I. for two months. Such of the facts necessary for the decision of this appeal are as under.
2. The Appellant herein was working as a clerk in the office of District Sub- Auditor and in the year 2006, he holding charge as Auditor and Senior Clerk at the office of Co-operative Society at Malegaon. That on 25.7.2006, one Mr. Sunil Govind Bankar, who was serving with Sonaj Vividh Karyakari Seva Sahakari Society Ltd., situated at Malegaon, lodged a report with the Anti Corruption Bureau at Nashik (for short 'the ACB') contending therein that the accounts of his office were being audited.
3. The ACB had decided to lay a trap and had called upon two public servants to act as panchas at the time of trap. A pre-trap panchnama was conducted. The raiding party had been to the office. On 25th July, 2006, the complainant Mr. Bankar along with a panch Mr. Saundane had been to the office premises of the auditor which was situated at Market Yard. They had been to the office of Accused No.1 Mr. Kasar. The complainant had requested the auditor to prepare the audit report properly. Thereafter, Mr. Kasar had questioned as to whether he is ready to fulfill the demand. He had received the answer in the affirmative. In the meanwhile, Accused No.2 i.e. the present Appellant had been to the office. Mr. Kasar had informed the complainant to hand over the said amount to the Appellant. The Appellant had accepted the said amount, retained it and placed it in his hip pocket of the pant. Soon thereafter, the complainant had given the pre-determined signal. The raiding party had apprehended both the accused persons. The statement of the panch was recorded. The post trap panchnama was prepared and, thereafter, PW5 had lodged a report on behalf of the State. On the basis of the said report, Crime No. 3043 of 2006 was registered at the police station. After investigation and after receipt of the sanction to prosecute by the appropriate authority, the charge-sheet was filed. The prosecution examined six witnesses to bring home the guilt of the accused.
4. PW1 Sunil Bankar is the Complainant. In his cross examination- in- chief, he has deposed in consonance with the report which he had filed with the ACB prior to the laying of the trap. It would be necessary to mention at this stage, in the present case, the defence of Accused No.2 is that he was the junior clerk, he had no authority to prepare the audit report. He had not demanded the money in the form of bribe or gratification from the complainant and he had only obeyed his senior officer i.e. Original Accused No.1. He had accepted the amount from the complainant as he was requested to do so by the Original Accused No.1. In the present case, on this limited point, it would be necessary to appreciate on the basis of the evidence led by the prosecution as to whether the Appellant herein has committed an offence punishable under section 7,12, or 13 (1) (d) Law. section 13(2) of the Prevention of Corruption Act, 1988.
5. PW1 has stated before the Court that on 30th June, 2006, Accused No.2 i.e. the present Appellant had taken the official records to Malegaon for auditing and thereafter, for the first time, he met him on 25th July, 2006. It is the case of Accused No.1 that the amount, which was being paid by the complainant on 25th July, 2006, was not towards a bribe, gratification or
