1 apeal 637 of 1993 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.637 OF 1993 Vasant Anandrao Turai (deceased) Through his legal heirs :- 1A. Malan Vasant Turai, 1B. Sunil Vasant Turai 1C. Sushma Vasant Turai, .. Appellant. -versus The State of Maharashtra and ors .. Respondent. Mr. Ranjit Bhonsale, Advocate for the Appellant. Mrs. A. A. Mane, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 13th September, 2011 Oral Judgment 1. This appeal is directed against conviction of the original appellant by the learned Special Judge, Sangli, for the offence punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, and sentence of R.I. for six months with fine of Rs.500/- or in default R.I. for month and R.I. for one year with fine of Rs.500/- or in default R.I. for one month, respectively on the two counts. 2 apeal 637 of 1993 2. The appellant expired during the pendency of the appeal and the appeal is being prosecuted by his legal representatives. 3. Facts which are material for deciding this appeal are as under:- One Kanchanmala gave a report to the police against the complainant in respect of some transaction for a sum of Rs.6,000/-. On the basis of Kanchanmala’s report an offence was registered against complainant and handed over for investigation to the accused Head Constable Turai. Complainant Laxmibai was arrested on 25th October, 1989 in that crime and had been eventually bailed out on 28th October, 1989, by the orders of Magistrate. Complainant was the President of Mahila Mandal and had some status in the society. The complainant Laxmibai is stated to have requested the appellant to help her in the said case. The appellant is alleged to have demanded a sum of Rs.500/- from the complainant to show her favour. The complainant claims to have paid a sum of Rs.100/- to the appellant at Islampur by taking it from one Mujawar i.e. her surety, who has been examined as P.W.5 but has not supported the case of prosecution. Since the appellant persisted with his demands, the complainant approached Anti Corruption Bureau and filed 3 apeal 637 of 1993 report. A.C.B. team had thereafter called panchas and on 4th November, 1989. The complainant Laxmibai accompanied by one of the panchas, went to the police station, Ismalpur, where the appellant was not found. One Rajiya Jamdar, who has been examined as P.W.3 and who too turned hostile, was supposed to have called the appellant. The complainant sought to pay amount to the appellant there, but the appellant gestured and stated that he would visit the house of the complainant. At about 7.30 p.m. the complainant was waiting with panch P.W.2 Kallappa at her house. The appellant came there and received tainted currency notes, (four notes of Rs. 50/- and five notes of Rs.20/-) and after counting, kept them in left pocket of his shirt. After the complainant gave signal, raiding party came and recovered the tainted notes from the pocket of the appellant. His hands and pocket glowed when examined in ultra violet lamp. A detailed panchnama was recorded. The Investigating Officer, then went back to the office and recorded a panchnama about anthracene powder bottle being safe. He then filed report on which an offence was registered. On completion of investigation, papers were sent to P.,W.7, Shri. Pol, who was then Superintendent of Police, Sangli. He accorded sanction for prosecution. On receipt of sanction, chargesheet was sent up. 4. Learned Special Judge charged the appellant for 4 apeal 637 of 1993 demanding a sum of Rs.500/- on 25th October, 1989 as gratification for not sending criminal case against complainant to the Court and accepting on 4th November, 1989 a sum of Rs.300/- towards that demand. Since the appellant pleaded not guilty. He was put on trial at which the prosecution examined as many as 7 witnesses in its attempt to bring home guilt of the appellant. Complainant P.W.1 Laxmibai herself supported the defence. Panch P.W.2 Kallappa supported the prosecution. P.W.-3, Rajiya, P.W.4 Police Constable Somaji Supnekar, P.W.5 Babasaheb Mujawar supported the defence. P.W.6- Police Inspector Shankar Patil, who was raiding officer, proved his report. P.W.7 Superintendent of Police Shri. Gulabrao Pol accorded sanction. 5. The defence of the appellant in the Statement under Section 313 of Code of Criminal Procedure, is that Kanchanmala told him that she would depose in favour of the complainant Laxmibai on payment of Rs.500/-. When the complainant visited the police station, appellant asked the complainant as to what happened about their compromise and where was Kanchamala. Thereupon complainant Laxmibai is supposed to have told the appellant that Kanchanmala was going to visit her house and asked the appellant to come to her house. Accordingly he claimed to have visited her house at 7.30 p.m. The complainant told 5 apeal 637 of 1993 appellant that she could not meet Kanchanmala and requested the appellant to hand over the amount of Rs.500/- to Kanchanmala and she then handed over the tainted money to the appellant, which appellant admits having kept in his left shirt pocket. After considering the prosecution evidence in the light of this defence, the learned Special Judge convicted and sentenced the appellant as already mentioned. Aggrieved thereby the appellant is before this Court. 6. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for State. Learned counsel for the appellant submitted that though the original appellant has expired, his heirs want to prosecute this appeal as they would suffer if the conviction is allowed to stand. He submitted that none of the prosecution witnesses had supported the prosecution case about the demand by the appellant and in fact had supported the defence that the amount which the appellant had allegedly received was supposed to be paid to Kanchanmala. Curiously, learned counsel for the appellant also argued on the basis of suggestion made to the complainant that as the complainant was aggrieved because she had been dishonoured by being arrested and paraded through the village by the appellant on the complaint of Kanchanmala, she wanted to teach a lesson to the appellant and therefore, the appellant was falsely 6 apeal 637 of 1993 trapped. 7. Learned Additional Public Prosecutor submitted that after admitting receipt of tainted money, it was for the appellant to show that he had justification for doing so and having failed to show any justification, was rightly convicted by the learned trial Judge. In order to examine these contentions with the help of both the learned counsel I have gone through the evidence on record. 8. P.W.1 Laxmibai sang in different tune through her examination in chief and in the cross examination by the defence and again when cross examined by the Additional Public Prosecutor upon being declared hostile. She supported the defence case that she was aggrieved by being arrested and also accepted defence suggestion that there was a settlement with Kanchanmala on paying her an amount of Rs. 400 to 500/-. It may be useful to note the suggestions made in course of cross examination on behalf of the appellant which were accepted by the witness-Laxmibai. She stated that after release on bail, she and her family members thought that somehow matter should be closed and therefore, she settled the matter with Kanchanmala. They had also decided to file compromise in police station itself so that there would be no case in the Court. They contacted Kanchanmala who stated 7 apeal 637 of 1993 that if amount of Rs.400/- to 500/- was paid to her, she would compromise the case. Laxmibai claimed to have gone with Kanchamala to police station, Islampur and requested the appellant to help them in compromising the matter. She claimed to have told the appellant that they had decided to settle the matter on payment of Rs.400/- to Rs.500/- so that the case could be compromised. The hesitance of the defence as visible from these admissions extracted from the evidence of complainant. Though the amount received by the appellant was Rs.300/-, yet there was no compunction in elucidating from the witness that amount to be paid to Kanchanmala was about Rs.400/- to Rs.500/-. If parties had reached a settlement, it is difficult to believe that they would still leave the amount uncertain. 9. The complainant claims to have met the appellant in a hotel near police station. In para 11 of the cross examination, the defence elucidated admission from the complainant that the appellant told the complainant to call Kanchanmala and to pay cash to her and not to him. Thus, it is clear that same afternoon the accused was certain that he was not going to receive cash on behalf of Kanchanmala. The complainant Laxmibai then stated in the next sentence that she told the appellant to bring Kanchanmala to her house and then proceeded to her house. This sentence elicited in the 8 apeal 637 of 1993 cross examination would make it clear that the appellant was to bring Kanchanmala to the house of complainant. In answer to question No.34 in the statement under Section 313 of Code of Criminal Procedure, the appellant had stated that the complainant told him that Kanchanmala was going to visit her house and therefore he should come to her house. In the evening when the appellant visited the house of the complainant, Kanchanmala was not there. The complainant is alleged to have requested appellant to receive cash and to hand it over the same to Kanchanmala. Appellant accordingly received cash and according to P.W.2 Kallappa, appellant accepted the cash by left hand, counted notes and kept them in his pocket. The fact of counting notes was proved by the fact that the fingers of both hands of the appellant were tainted when examined in ultra violate lamp. If at all the amount settled and to be paid to Kanchanmala was Rs.400 to 500/-, it is not clear as to what prompted the appellant to take only Rs.300/- which he counted, and that too by going to complainant’s house. Therefore, inspite of hostility of prosecution witness Laxmibai, P.W.3 Rajiya Jamdar, P.W.4 Somaji Supnekar and P.W.5- Babasaheb Mujawar, it cannot be said that the learned Judge erred in concluding that the appellant was proved to have received the sum of Rs.300/- from the complainant as a bribe. 9 apeal 637 of 1993 10. Learned counsel, for the appellant submitted that there would be no question of the appellant receiving any amount for showing any favour to the complainant because he had already arrested the complainant and also produced the complainant before Magistrate. He submitted that therefore, there was no question of the appellant being in a position to favour the complainant. Sending an accused for remand is not conclusive of the matter, since after investigation it would be open to Investigating Officer either to send a final report or a charge sheet against the appellant. Therefore, it cannot be said that the appellant was not in a position to show any favour to the complainant. Therefore, this argument would also not help the appellant. 11. Learned counsel for the appellant next submitted that sanction for prosecution against appellant issued by P.W. 7 Superintendent of Police Shri. Pol, shows non application of mind, since the Officer had issued another sanction which was similarly worded. The format of sanction order, may be the same, in order to avoid inaccuracies or incorrect use of expression, since a sanction is scrutinized meticulously. Cross examination of P.W.7 Shri. Pol, does not, however, show that there was any non application of mind on his part in regard to sanction to prosecute the appellant. In view of this, even on this count, it cannot be said that the learned Judge erred in 10 apeal 637 of 1993 concluding that the appellant was prosecuted after valid sanction. 12. To sum up, since in this case, appellant had admitted having received a sum of Rs. 300/- from the complainant and had failed to explain what prompted him to come to complainant’s house and receive a sum of Rs.300/- against alleged settlement with Kanchanmala for Rs.400/- to 500/-, the conviction of the appellant recorded by the learned trial Judge must be upheld. Since the appellant has expired during pendency of the appeal, there would be no question of suffering sentence now. In view of this, appeal is dismissed. (R. C. CHAVAN, J.)