1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.70 OF 1998 The State of Maharashtra ... Appellant. Versus Radheshyam Gangaram Charkha, Age 45 years, Occ.Pvt.Medical Practice, Superintendent, Indira Gandhi Memorial Hospital, Cidco, Aurangabad. ... Respondent. ... Mrs.R.D.Reddy, A.P.P. for the State. Mr.Satyajit S.Bora, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 05.08.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment rendered by learned Special Judge, Aurangabad in Special Case No.5/1992, whereby and whereunder,the Respondent has been acquitted for offence punishable U/s 7, 13(1)(d), read with 2 Section 13(2) of the Prevention of Corruption Act, 1988 (for short, the P.C. Act). 2. Indisputably, the Respondent was attached to Indira Gandhi Memorial Hospital, which is a part of Shri Bhagwan Homoeopathy Medical College, Aurangabad. He was working as Superintendent of the Homoeopathy Medical College. P.W. Dr.Chakrawarti was the Principal of the said College. There is no dispute about the fact that complainant - P.W. 1 Vishnu Gholve, was admitted in the Homoeopathy College in the 2nd year. He was transferee student and had completed his first year in another College. He was given admission in the 2nd year in 1985-86. There is also no dispute about the fact that he completed the diploma course in Homoeopathy in or about May 1989. He was thereafter an internee at the College Hospital for period between October 1989 to March 1990. 3. Briefly stated, the prosecution case is that complainant - P.W. Vishnu Gholve, practiced with some private Medical Practitioner at Pune 3 for some period. He lateron decided to start his own practice in Homoeopathic medicines. He wanted to get the internship completion certificate for such purpose. So, on 30.11.1991, he approached P.W. Dr.Chakrawarti and requested for issuance of internship completion certificate. The Principal - P.W. Dr.Chakrawarti, instructed him to meet the Respondent for such purpose. He, therefore, went to office of the Respondent at about 5 p.m. and urged to issue the internship completion certificate in his favour. The Respondent then demanded Rs.2,000/- (Rupees two thousand) from him. The Respondent flatly told him that unless the said amount is paid, the certificate would not be issued. Though, he expressed financial difficulties and inability to pay the amount, yet, the Respondent did not give up the demand. He insisted for such payment before issuance of the certificate. Reluctantly, complainant P.W. Vishnu Gholve, agreed to pay the said amount. The Respondent then gave a draft of the certificate in his hand alongwith a blank paper of the letterhead used by the Homoeopathy 4 College. He instructed complainant P.W. Vishnu Gholve, to get the certificate typed on the letterhead and to visit his office on 2.12.1991, alongwith the demanded amount of Rs.2,000/- (Rupees two thousand). The digruntled complainant - P.W. Vishnu Gholve, went to house of his relative i.e. brother-in-law P.W.2 Ramdas Golhar. He borrowed Rs.2,000/- (Rupees two thousand) from P.W. Ramdas Golhar as hand loan. He had no intention to pay that amount to the Respondent. Consequently, on 2.12.1991, he approached the Dy.S.P. of the Anti Corruption Bureau at Aurangabad. He narrated details of the demand put forth by the Respondent and the manner in which the amount was contemplated to be paid to him. His complaint was reduced into writing by the Dy.S.P. The Dy.S.P. requisitioned presence of two panch witnesses from office of the Executive Engineer, Jayakwadi Canal Division. The panch witnesses were explained about the complaint of P.W. Vishnu Gholve. They were instructed as to how a trap would be laid. A pre-trap panchanama was drawn. The currency notes of Rs.2,000/- (Rupees two thousand) produced by complainant 5 P.W. Vishnu Gholve were smeared with anthracene powder. He and the panchas were informed as to how the anthracene powder is detected under ultra-violet rays. Thereafter, complainant P.W. Vishnu Gholve and Panch P.W. Gopinath Pawas, proceeded to the office of the Respondent in the noon time. They contacted the Respondent at about 2 p.m. The Respondent inquired whether typed certificate was prepared. He directed the complainant - P.W. Vishnu Gholve, to obtain a xerox copy of that certificate and again visit the office. Thereafter, complainant P.W. Vishnu Gholve, went outside and managed to get a xerox copy of that certificate. 4. The prosecution alleges that when the certificate and the xerox copy were submitted to the Respondent, the latter handed over a muster roll to P.W. Vishnu Gholve, for the purpose of his signatures. The attendance roll of internees was completed after P.W. Vishnu signed at the relevant blank spaces in the roll. The Respondent then inquired with the complainant - P.W. Vishnu as to whether amount of Rs.2,000/- 6 (Rupees two thousand) was brought by him. Then, P.W. Vishnu gave affirmative reply and handed over the tainted currency notes of Rs.2,000/- (Rupees two thousand) to the Respondent. The currency notes were kept by complainant P.W. Vishnu on a open register which the Respondent closed and took to the office of the Principal. The Respondent informed complainant P.W. Vishnu on the inquiry made by the latter, that signature of the Principal would be obtained and half of the said amount was to be paid to the Principal. The Respondent then went to the office of the Principal, whereas complainant P.W. Vishnu and panch Gopinath Pawas, remained outside that office. The Principal was not in the office at the material time. The complainant - P.W. Vishnu gave signal to the raiding party members. Soon thereafter, members of the raiding party rushed to the office of the Principal. The hands of the Respondent were caught hold of. By that time, the Principal also reached to the office. It was noticed that left hand fingers of the Respondent bore traces of anthracene powder. The tainted currency notes were recovered from pocket of his 7 shirt. A post-trap panchanama was drawn then and there. The Respondent was arrested. The Secretary of the Homoeopathy College lateron issued sanction order for prosecution of the Respondent. On the basis of material gathered during course of investigation, the Respondent was charge-sheeted for the offences U/s 7 read with Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act. 5. The defence of the Respondent was that there were grievances of the employees of the Homoeopathy College which were ventilated and also there was a strike of the employees against arbitrary working of the Secretary - PW. 5 Dr.Khedkar. Therefore, P.W.5 Khedkar, was bent upon to show exit to the employees. The Respondent asserted that he also had participated in such agitation and, therefore, false case was drawn against him to oust him from the service. According to him, he was not present in the office at Aurangabad on 30.11.1991 and there was no demand of the amount of Rs.2,000/- (Rupees two thousand) from the complainant - P.W. Vishnu 8 Gholve. He stated that on 2.12.1991, he went to the College and submitted bill for his travelling allowance and dearness allowance for his visit to Kopargaon between 29th and 30th November, 1991. He received a telephonic call from P.W. Dr.Khedkar, regarding issuance of internship certificate to P.W. Vishnu Gholve and further he was instructed to collect donation amount due from said ex-student. The defence of the Respondent was that the amount was paid by the complainant P.W. Vishnu by way of donation which had remained unpaid and was outstanding against him. 6. At the trial, the prosecution examined in all six (6) witnesses in support of its case. The learned Special Judge came to the conclusion that defence of the Respondent was probabilised due to attending circumstances. The learned Special Judge held that the prosecution could not establish demand for illegal gratification of Rs. 2,000/- (Rupees two thousand). It has been held that the amount could have been demanded as donation amount which had not been paid by the 9 complainant at the time of his admission in the 2nd year though the same was agreed to be paid. In keeping with such findings, the Respondent came to be acquitted for the offences with which he was charged. 7. Heard learned A.P.P. Smt.Reddy, for the State and Mr.S.S.Bora, learned advocate for the Respondent. 8. Before I proceed to scrutinise the evidence tendered by the prosecution, it may be mentioned that the Homoeopathy College was previously imparting only education in diploma course, namely D.H.M.S. Somewhere in 1986, Bachelor's course in Homoeopathy was started. The Respondent was admittedly working as an Administrator of Indira Gandhi Memorial Hospital attached to the said College. Though it was denied that the Respondent was working as a public servant, yet, such defence was not pressed into service. Section 2(c)(xii) of the P.C. Act, would make it amply6 clear that the employee of an Educational institution which is run on 10 Government aid basis can be termed as "public servant" for the purpose of the P.C. Act. The fact that the Homoeopathy College and Hospital were being run on Government aid basis is outside the realm of dispute. It is explicit, therefore, that the Respondent was working as a public servant at the material time. There is also no dispute about the fact that when the Respondent was present in his office on 2.12.1991 then the complainant - P.W. Vishnu Gholve, approached him for issuance of the internship completion certificate. There is also no dispute about the fact that the Respondent asked complainant P.W. Vishnu Gholve, as to whether amount of Rs.2,000/- (Rupees two thousand) was brought by him. 9. Learned A.P.P. Mrs.Reddy, took me through the versions of the prosecution witnesses. She contended that the version of P.W. Vishnu should have been accepted by the Special Court. She contended that though, the Respondent produced a copy of list containing names of some students, including complainant Vishnu Gholve, from whom donations had to be 11 recovered, yet, the version of Secretary belies such defence. It is argued that the plea of alibi as raised by the Respondent regarding his absence from the office on 30.11.1991, is not proved and as such the prior demand of Rs.2,000/- (Rupees two thousand) ought to be held as duly proved. The learned A.P.P. would submit that the acquittal of the Respondent is not based on sound reasoning. As against this, Mr.Bora, supports the impugned judgment. 10. The version of P.W.Vishnu Gholve, reveals that he had completed first year of the diploma course in Sonajirao Kshirsagar Homoeopathy College, at Beed. He admits that he was a transferee student. It is an admitted fact that he had not signed the attendance roll of the internees for period between February and March 1990. He was given the muster roll on 2.12.1991 by the Respondent for putting his signatures for the period between February and March 1990. The version of P.W. Vishnu reveals that he had not obtained the internship completion certificate immediately after completion of the internship, 12 while leaving the Homoeopathy College. The complaint does not indicate that reluctantly he agreed to pay the amount to the Respondent. His version reveals that he met Principal - P.W.Chakrawarti only on one occasion i.e. on 30.11.1991. The Principal did not demand the amount from him but directed him to go to the Respondent. Cross-examination of P.W.Vishnu reveals that he was unable to tell whether the Secretary of the Homoeopathy College told his brother-in-law that the amount of Rs.2,000/- (Rupees two thousand) towards donation was required for the purpose of his transfer from another College to Shri Bhagwan Homoeopathy Medical College,Aurangabad. He admits, unequivocally that for the purpose of admission to the 2nd year course, he had taken his brother- in-law P.W. Ramdas Golhar, with him to P.W.Dr.Khedkar, i.e. the Secretary of the Institution. Needless to say, the admission of complainant P.W. Vishnu was secured by P.W. Ramdas Golhar after his discussion and as per the talks with the Secretary i.e. P.W.5 Dr.Khedkar. It has come on the record that the complainant - 13 P.W. Vishnu Gholve, had collected the amount of Rs.2,000/- (Rupees two thousand) on 1.12.1991 from P.W. Ramdas Golhar for making the payment to the Respondent. Thus, role of P.W. Ramdas in the admission process of the complainant - P.W. Vishnu and the subsequent payment of Rs.2,000/- (Rupees two thousand) to the Respondent is of significance. 11. At this juncture, I shall advert to the testimony of P.W. Ramdas Golhar. He is a social worker. He is member of the organisation of Wanjara community of which P.W.5 Khedkar is also an active member. The version of P.W. Ramdas Golhar, would show that he had arranged for admission of the complainant to the Homoeopathy College due to his cordial and friendly relations with P.W.5 Khedkar. He states that amount of Rs. 2,000/- was agreed to be paid towards donation for the purpose of such admission of the complainant - P.W. Vishnu to the 2nd year course in Shri Bhagwan Homoeopathy Medical College,Aurangabad. Indeed, testimony of P.W. Ramdas gives a serious jolt to the case of the 14 prosecution. He corroborates the defence story. His version reveals that the donation amount was not paid until the complainant had visited his house on 1.12.1991. His version reveals that he had contacted P.W. Dr.Khedkar for the purpose of issuance of internship completion certificate in favour of the complainant, P.W.Vishnu. His version reveals that P.W.Dr.Khedkar, instructed him to contact the Respondent and ascertain from list as to how much donation amount was in balance against name of the complainant - P.W. Vishnu Gholve. He states that amount of Rs. 2,000/- (Rupees two thousand) was found due as per the entry in that list (Exh.51). 12. True, P.W. Ramdas Golhar, was lateron declared as hostile witness. It appears that he was won over by the defence. Be that may as it is, there are other attending circumstances to show that the defence story could be truth bearing. It has come in the evidence of P.W.Dr. Khedkar, that a couple of days before the trap, the Respondent had gone to Kopargaon, in order to attend the work of a Civil suit filed by one ex- 15 student by name Shri Pipada against himself and the Trustees as well as the Respondent. That suit was filed by the ex-student for refund of donation amount. It was the case of the said ex- student that illegally donation amount was recovered from him. Thus, one of the ex-student had made allegations in Civil Court against the Respondent, P.W. Dr.Khedkar and other Trustees of the Educational Institution that illegal donations were being collected for giving admission to the Educational Institution. This was prior to alleged demand put forth to the complainant P.W. Vishnu Gholve. Nextly, in his defence, the Respondent examined D.W.1 Dr.Rajesh and D.W.2 Pramod. Both of them narrated that at the time of obtaining completion certificate, they were asked by the Respondent to pay the balance amount of donation as per entries in the list (Exh.51). Their names appeared in the said list. They deposed that each of them paid Rs. 1,000/- (Rupees one thousand) by way of donation which was outstanding. Thus, there is material on record to infer that an unauthorised or a private list was drawn vide Exh.51, wherein names 16 of the students were recorded for the purpose of collecting donations which were found outstanding against them. 13. The testimony of P.W. Gopinath Pawas, who acted as panch witness, pertains to the payment of tainted currency notes of Rs.2,000/- (Rupees two thousand) to the Respondent in the noon of 2.12.1991. It has come on record that the Respondent asked the complainant - P.W. Vishnu whether he had brought Rs.2,000/- (Rupees two thousand). The latter gave affirmative reply. The complainant - P.W. Vishnu kept the currency notes on the Certificate which was placed in an open register (Exh.18) as per instructions of the Respondent. The Respondent closed that Register and went to the office of Principal alongwith the said Register. The version of the panch witness reveals that the Respondent told that 50% of the amount will have to be paid to the Principal before the latter would sign that certificate. He corroborated the post-trap panchanama. The Principal was not in his office when the trap was completed. The version of the panch witness 17 further shows that the muster roll of internees was signed by the complainant - P.W. Vishnu for the months of February and March 1990. 14. What emerges from the record is that when complainant - P.W. Vishnu left the Homoeopathy College after completion of internship, there were deficiencies in his actual claim about completion of the internship. He had not signed the muster roll for February and March 1990. On this ground, his internship could be extended. He was probably aware about the difficult situation. The brother-in-law of the complainant had secured admission and, therefore, he lent an amount of Rs.2,000/- (Rupees two thousand) knowing that it was to be paid towards donation which was agreed upon. There is evidence on record to show that practice was being adopted to seek donations from the students. It need not be reiterated that one of the ex-student had filed Civil suit for refund of the donation amount. The Respondent was not beneficiary of the donation amount. Perhaps, the Secretary was the beneficiary thereof. The 18 Secretary turned the table on the Respondent when the latter was caught in a precarious position, as a result of the trap. The complainant got the Muster Roll completed as a first measure before he paid the amount of Rs.2,000/- (Rupees two thousand) to the Respondent and thereby ensured that there will be no obstacle in his way to claim the completion certificate. Thus, the complainant is also not a very straight forward and clean student to place implicit reliance on his version. It is in view of these circumstances, that the impugned judgment of acquittal can not be regarded as unreasonable. 14. In "Jagan M.Seshadri Vs. State of Tamil Nadu" 2002 AIR SCW 2613 : 2002 AIR (SC) 2399, the Apex Court held that in appeal against order of acquittal interference is not proper only because another view is possible. The relevant observations may be usefully quoted as follows : "We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was 19 required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not been done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible that was not a ground sound enough to set aside an order of acquittal." 15. It is well settled that interference in judgment of acquittal is uncalled for unless such judgment is demonstratedly perverse, unfounded or rendered without considering material evidence or is shown to be patently erroneous or is 20 against the settled principles of law. In this view of the matter, I do not find any substance in the present appeal. 16. The appeal is, therefore, dismissed. The impugned judgment of acquittal is confirmed. (V.R.KINGAONKAR,J.) asp/office/Crappeal7098