1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 645 OF 1995 Namdeo Ramrao Wagh Additional Health Officer Zilla Parishad, Sub Division, Phaltan District Satara .. Appellant (Original Accused ) Versus The State of Maharashtra .. Respondent Mrs. Vrishali R. Raje for the Appellant Mr. J. P. Kharge, APP for the State CORAM : R. C. CHAVAN, J. CLOSED FOR ORDER ON : 13th October, 2011 PRONOUNCED ON : 15th November, 2011 JUDGMENT 1. This appeal is directed against appellant's conviction by the learned Special Judge Satara for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ( for short called as "P.C. Act") and sentence of Rigorous Imprisonment for six months with fine of Rs.2,000/-or in default, Rigorous Imprisonment for one month and Rigorous Imprisonment for one year with fine of Rs.2,000/- or in default, Rigorous Imprisonment for one month, respectively, imposed upon the appellant for the two offences. 2 2. Facts which are material for deciding this appeal are as under: Appellant was working as Additional District Health Officer, Phaltan Sub division in Satara District. Complainant Nitin Bhosale was working under Dr. Chavan, Medical Officer, Public Health Centre, Giravi under the control of the appellant. Every employee was given a target of cases for family planning camp which was to be held on 31st March, 1990. Bhosale could not get any case. On appellant's orders, Bhosale's salary for March, 1990 was withheld. He approached the Medical Officer, who asked him to see the appellant at Phaltan. Bhosale saw appellant on 19th April, 1990 at Phaltan, when the appellant demanded Rs.3000/- from Bhosale, telling Bhosale that action would be taken within three days against Bhosale for absence from 22nd March, 1990 to 31st March, 1990. Bhosale borrowed Rs.1500/- from one Gulabbhai on 20th April, 1990 and then approached Anti Corruption Bureau and lodged complaint. A trap was arranged and the appellant was caught having accepted Rs.1500/- in his room on 20th April, 1990 at 9.20 p.m. After drawing up panchanamas, raiding officer registered an offence. On completion of investigation, papers were sent to competent authority for sanction and on receipt of sanction, charge sheet was sent to the Special Judge of Satara. 3 3. Charge of offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act was framed against the appellant. Since he pleaded not guilt, he was put on trial at which prosecution examined in all eight witnesses in its attempt to prove guilt of the appellant. The appellant denied that he had ordered stoppage of pay of the complainant or that he had threatened to take action against the complainant or that he had demanded bribe of Rs.3,000/- or that he received Rs.1500/-. He stated that he had merely asked the complainant about the complainant's absence and the complainant filed a false complaint to take revenge. After considering the prosecution evidence in the light of defence raised, the learned trial Judge convicted and sentenced the appellant as indicated earlier. Aggrieved thereby, the appellant has preferred this appeal. 4. I have heard the learned Counsel for the appellant and the learned Additional Public Prosecutor for the State and with the help of both the learned counsel have gone through the record. PW 1 Nitin Bhosale's monthly diary for March, 1990 (Exh. 12 and 25), order calling for complainant's explanation (Exhibit 13/26), orders about posting of the appellant (Exh. 21) and delegation of power (Exh.2), some panchanamas and other documents were admitted by defence. 4 PW-1 Nitin Bhosale stated about the demand of bribe, his complaint to ACB (Exh.28) and acceptance in presence of Panch. He also proved the explanation given by him to the appellant at Exh.27. PW2 Dhondiram-Panch stated of demand and acceptance of bribe by the appellant at the time of trap and proved pre-trap and post-trap panchanamas, and panchanamas about seizure of documents at Exhibits 32, 33, 16 and 17. PW3 Rohidas Gavali who was serving as District Health Officer, superior of the appellant- at the relevant time, stated that the appellant did not have the power to deduct pay of employee like complainant. However, in cross, he admitted that Medical Officer was competent to seek explanation of complainant and pay for period of absence could be kept in abeyance till decision by District Health Officer. PW-4 is an Extension Officer working under the appellant and states that the complainant had enquired of appellant with him on 19th April, 1990. PW5 Satish Babanrao was a Clerk working under the appellant and claimed to have typed letter calling explanation of the Complainant (Exh.26) on 31th March, 1990. He states having prepared six copies of letter, which remained with the appellant. In cross, he stated that on 19th April, 1990, the appellant left the office due to sickness. On the noon that day the complainant had came to the office and asked him if letter was prepared on which he replied affirmatively. PW-6 Hanumant was serving as a clerk in Public Health Centre 5 where the complainant worked, and stated that complainant's salary was not disbursed at the instance of the Medical Officer- Chavan ( M.O. Chavan is not examined). PW-7 Prakash Salve was working as under Secretary to the Government at the relevant time and deposed as to how he came to issue sanction order Exh.41. PW-8 P.I. Jadhav is the raiding Officer. 5. The learned counsel for the appellant submitted that the appellant was falsely implicated because he was to recommend action against the complainant. She submitted that Medical Officer Dr. Chavan on whose report action was contemplated was not examined. In fact the appellant did not have any personal grudge against the complainant. The learned APP rightly pointed out that the appellant had brought out in his own cross of PW3-Rohidas Gavali that the appellant could have ordered keeping part of salary in abeyance. Show cause notice Exh. 13/26 dated 31st March, 1990 is signed by the appellant, which was typed by PW5 Satish at appellant's instance. Thus, it was the appellant who had ordered withholding of pay. the learned APP submitted that just as complainant could have a motive to falsely trap the appellant because the complainant's pay was withheld, the appellant too could be said to have demanded bribe to stop further action. Therefore, the learned APP rightly submitted that merely because the appellant had issued Notice Exh. 13/26 it 6 cannot be inferred that the appellant was falsely trapped. Non examination of the Medical Officer is also irrelevant as rightly pointed out by the learned APP. In this context, the evidence of P.W-1 Nitin about first demand and insistence of appellant to pay amount demanded promptly has to be seen. 6. The learned counsel for the appellant relied on the judgments of the Supreme Court and this Court in Banarasi Das Vs. State of Harayana (2010) 4 Supreme Court Cases 450 and State of Maharashtra Vs. Dattatraya Shankar Diwakar and another 2008(2) Bom. C.R. (Cr.) 619 as regards proof of demand and acceptance. Both the judgments are based on appreciation of evidence in those cases. Though drawal of inferences may have to be avoided in such cases, it does not follow that even reliable evidence has to be discarded without regard to common course of human conduct. In this light the evidence of PW1 does not show any infirmity about demand by the appellant before PW-1 reported the matter to ACB. Even at the time of trap the appellant had irritatedly repeated the demand in presence of PW-2. Evidence of PW-1 is duly corroborated by that of PW-2 as regards this second demand and acceptance of Rs.1500/- by the appellant. 7. The learned counsel for the appellant rightly 7 submitted that mere recovery of money is not enough. But here recovery is proved to have been preceded by receipt of money which was preceded by repeated demand. The defence, that amount was slipped when the appellant had gone to toilet has to be rejected as the fingers of the appellant were tainted with anthracene powder. It is not that the appellant was asked to take out the money before hands of all including the appellant were examined. Evidence of PW-8 Investigating Officer Jadhav is duly corroborated in this behalf by that of PW-2 Panch Dhondiram. The evidence is foolproof and the learned trial Judge cannot be faulted for having held demand and acceptance of bribe proved. 8. The learned counsel for the appellant submitted that evidence of PW-7 Prabhakar Salve who issued sanction Exhibit 41 shows non application of mind. Salve issued the sanction after examining papers and putting them up to higher authorities right up to the Chief Minister. There is nothing in cross of this witness to show that the authorities in the Government, who were supposed to scrutinize the papers, had not applied their mind or that any crucial document was not considered. The objection to the appellant's conviction on this ground too cannot be sustained. 9. As far as sentence, though the case is about an 8 incident of 21 years old and appellant is living in the shadow of conviction for the last 16 years, the sentence of Rigorous Imprisonment for one year and six months with fine of Rs. 2,000/- on each of the two counts, imposed is just and does not call for any interference. Consequently the appeal is dismissed. The appellant shall surrender to his bail and if he does not so surrender within a period of four weeks, the Trial Judge shall have him arrested and committed to prison to serve the sentence. ( R. C. CHAVAN, J )