1 Cri Appeal No. 155 of 2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 155 OF 2000 The State of Maharashtra Appellant V E R S U S 1. Vishnudas s/o Ramdas Bhagat, Aged 47 years, Occupation Aval Karkun, Tahsil Office, Bhoom, District Osmanabad. 2. Jagannath s/o Eknath Andhakar, Aged 48 years, Resident of Bhoom, District Osmanabad. Respondent Mr. T.S. Lodhe, APP for the appellant / State Mr. S.S. Choudhary, Advocate for the respondents CORAM : A.V. NIRGUDE, J. DATED : 10th December, 2010 ORAL JUDGMENT 1. The State of Maharashtra has filed this appeal against the Judgment and order passed by the learned Special Judge, Osmanabad, in Special Case No. 06 of 1995, dated 5th January, 2000 acquitting both the respondents. 2. The respondent No. 1 was working as Aval Karkun at Tahsil Office, Bhoom and the respondent No. 2 was working as a Clerk there. It is alleged that the respondent No. 1 demanded a bribe of Rs.3,000/- from the complainant for withdrawing a show-cause-notice, and at the time of trap, he received Rs.2,500/- and handed them over to the respondent No. 2. 3. The prosecution has examined in all six witnesses; out of which, prosecution witnesses No. 1, 2 and 6 are probably the most important ones. The prosecution witness No. 1 stated that he was allotted a plot at village Washi in 1978 for residential purpose, but, he said, he carried on business of Restaurant and Beer-Bar on the plot. He said, on 15th March, 1995, he received a show-cause-notice of Tahsildar which called upon him to show cause as to why the plot allotted to him should not be withdrawn for breach of condition that the plot should have been used for residential 2 Cri Appeal No. 155 of 2000 purpose. He said, on 26th March, 1995, he went to Tahsil Office, Bhoom and showed the notice to the respondent No. 1. He said, the respondent No. 1 demanded Rs.5,000/- to settle the matter. He said, after negotiations, the amount was agreed to be Rs.3,000/-. He said, at that time, he handed over Rs.500/- to the respondent No.1. He said, he agreed to pay the remaining amount of Rs.2500/- to the respondent No. 1 on the next day. He said, on the next day, he went to Anti Corruption Bureau Office and lodged his report. Initially this witness hesitated to state the case of the prosecution. He tried to narrate that when he and the shadow panch, as per the trap arrangement, went to see the respondent No.1, he (the respondent No.1) took him in a room. He said, the shadow panch was left behind. He said, while he and the respondent No. 1 were alone, the respondent No. 1 demanded and accepted the bribe. However, when the learned Judge rightly permitted the learned A.P.P. to cross-examine this witness, he narrated the prosecution case coherently. This time, he stated clearly that the respondent No. 1 accepted the bribe amount in presence of the shadow panch. Surprisingly in the cross-examination, conducted by the respondents’ Advocate, this witness did not give away his stand that the respondent No. 1 demanded and accepted the bribe and the shadow panch was also present when the amount was accepted etc. The shadow panch however narrated the incident as per the prosecution case. 4. The learned Judge of the trial Court held that the prosecution witness No. 1 (the complainant) is not a trustworthy witness, because he had given two versions of the incident and one of them could be false. The learned Judge of the trial Court also accepted the defence of the respondent No. 1 that he had received the amount as arrears of non- agricultural cess. It has come on record that prior to issuance of show- cause-notice dated 13th March, 1995, a mention of which is mentioned above, on 25th February, 1995, admittedly, the Tahsildar issued notices to the complainant and his family members demanding arrears of non- agricultural cess. It has also come on record that on 5th March, 1995, the Tahsildar personally went to the complainant’s house and recovered Rs. 527/- towards non-agricultural cess. Despite of this, the complainant 3 Cri Appeal No. 155 of 2000 admittedly remained in arrears for over Rs.2,000/- towards non- agricultural cess. It has also come in his evidence that the complainant initially did not even receive the demand notice of the non-agricultural cess. So, the defence tried to suggest that the complainant was under pressure from the Tahsildar for recovery of the non-agricultural cess. The defence thus suggested that in order to stop the recovery of non- agricultural cess proceeding, the complainant made this false complaint. The learned Judge even accepted it. However, after perusal of the Judgment, I found that the learned Judge practically ignored the show-cause-notice dated 13th March, 1995, a mention of which is made earlier. This notice is on record and is given Exh.15. The learned Judge of the trial Court even ignored another show- cause-notice (Exh.17) issued by the Tahsildar to the complainant asking him to show cause as to why the licence given to him to run the Restaurant should not be revoked. The learned trial Court Judge obviously ignored the threat which the complainant received through these notices. Even the complainant stated clearly that soon after he received the notice (Exh.15), he went to the respondent No.1. It is thus clear that the complainant was not at all bothered due to the recovery proceedings initially against him for arrears of non-agricultural cess. He was more concerned with the allotment of plot and licence for the restaurant etc. The learned Judge did not discuss this aspect at all, and so, I think, the learned Judge erroneously accepted a rather naive defence. I am not inclined to accept the defence of the respondents. I am neither inclined to disbelieve the complainant’s version of the demand made by the respondent No. 1 initially on 26th March, 1995, and the acceptance of the bribe which was seen by the shadow panch on 27th March, 1995, at the time of trap. The learned Judge of trial Court, in my view, committed serious error in appreciating the evidence, when he held that the complainant’s testimony was uncorroborated when he stated that the respondent No. 1 demanded Rs.3,000/- on 26th March, 1995 and received Rs.500/-. As said above, he ignored the threat notice (Exh.15). The existence of this notice was a strong circumstance, and so, it cannot be said that the complainant’s version was bald. I am also not inclined to 4 Cri Appeal No. 155 of 2000 accept the finding of the learned Judge of the trial Court that since the complainant gave two versions of the incident and since one of them could be false, his entire testimony should be discarded. Having gone through the entire deposition of this witness, I realized that this witness could not have been hostile to the prosecution case. He had no reason to be so. He had no reason to say that the respondent No. 1 accepted the bribe amount while he and the respondent No. 1 were all alone in the record room. Fortunately, he corrected himself in the subsequent part of his testimony, and thereafter, remained faithful to the prosecution case. Had he been hostile to the prosecution case, the respondents’ cross- examiner could have taken advantage of the same and could he extracted favourable admissions, but this did not happen, and therefore, I say that this witness was not hostile to the prosecution case, and, it seems, his earlier version was incorrect. 5. The question still remains, as to whether his (prosecution witness No.1) subsequent version is truthful. The answer has to be in the affirmative, because the shadow panch corroborated it. There is nothing on record to show as to why the shadow panch would unnecessarily supporting the prosecution case. The learned Judge of the trial Court committed another error by naively accepting the defence that the respondent No.1 after accepting the tainted currency notes, handed them over to the respondent No.2, because he was loaded with lots of amount, which he had recovered during the course of the day, and thereby accepting the suggestion that his pockets were so full with cash and that he had no space to accommodate the additional Rs.2,500/- which the complainant handed it over to him. Had this amount been recovered in routine course of his work, he would have certainly kept amount with him, because he had already recovered in similar fashion various amounts from other persons. It is more probable that because this amount was tainted, he thought it fit to immediately give it to his colleague – the respondent No.2. It seems, the respondent No. 2 had no knowledge as to for what, the amount was received by the respondent No. 1 and why he should keep it with him. But, since the respondent No. 1 handed over the amount to him, he obediently kept it in his watch-pocket. So, I am not 5 Cri Appeal No. 155 of 2000 inclined to accept the finding of the learned Judge of the trial Court that the prosecution has failed to prove his case as far as demand and acceptance of bribe is concerned. However, this case is proved only against the respondent No. 1 and not against the respondent No. 2. As mentioned above, there is no case at all against the respondent No.2. 6. However, the case of the prosecution would still fail, because the sanction granted by the prosecution witness No. 6 is grossly defective. The prosecution witness No. 6 at the relevant time was the Collector of Osmanabad. She admitted that she received the papers from the prosecution agency, perused the same and accorded the sanction. However, in the cross-examination, she admitted that she found three drafts of the sanction order amongst the papers sent by the Anti Corruption Bureau, and, she said, she put her signature on two of such formats. Both the formats are before the Court and are required to be exhibited (one of the formats signed by the witness has not been exhibited and is marked Article ‘C’ and same deserves to be exhibited and I exhibit it as Exh. 83-A). This witness thus admitted that she did not even prepare a separate sanction order at her office. It seems, she simply put her signatures on the previously prepared drafts. It seems, these drafts were prepared by the Anti Corruption Bureau Office. There appears signature on the draft of an unknown person. This witness did not know whose signature it was. The presence of this signature indicates that the draft was prepared by the person who had put his signature on it and such person could be someone from the Anti Corruption Bureau Office. The learned Judge of the trial Court rightly held that the prosecution witness No. 6 rather casually used the draft for the purpose of granting sanction. On the face of it, thus, the prosecution witness No. 6 did not apply her mind to the facts of the case and put her signature. It is also the non- application of the mind evident from the fact that there is practically no case against the respondent No.2 and this witness could have certainly questioned the propriety of the proposed action against the respondent No.2. This witness was duty bound to examine the strength of the allegations which were made against her own staff members and in appropriate case she could have refused sanction for prosecution. The 6 Cri Appeal No. 155 of 2000 very fact that she did not say a single word in respect of strength of the prosecution case as against the respondent No.2, indicates that she did not apply her mind to the facts of the case. The prosecution should therefore fail. The appeal should also fail. The appeal stands dismissed. ( A.V. NIRGUDE, J. ) SRM/criapl/155/00/10/12/10/ok