1 crapl229.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.229 OF 1999. Manohar s/o Ravan Kamble, age 45 years, occu. Jr. Clerk, r/o Gaur, Tq. Nilanga, District Laltur, at present Vaijapur, Dist. Aurangabad. ...APPELLANT. (Ori. Accused). VERSUS The State of Maharashtra. ...RESPONDENT. ... Shri J.V. Deshpande, Advocate for appellant. Shri S.G. Nandedkar, A.P.P. for Respondent/State. ... CORAM: S.S. SHINDE,J. 23rd FEBRUARY, 2011. ORAL JUDGMENT: 1. This appeal is directed against the judgment and order dated 14th May, 1999 passed by the Special Judge, Aurangabad in Special Case No.8 of 1993 thereby convicting the appellant - original accused No.1 u/s 248(2) of Cr.P.C. for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo R.I. for six months and to pay a 2 crapl229.99 fine of Rs.1000/-, I/D to undergo further R.I. for three months. The appellant - accused No.1 was however, acquitted of the offence punishable under Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The original accused No.2 was acquitted of all the offences punishable under Sections 12 r/w 7 as also under Section 109 r/w sec.13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 2. The prosecutor case, in brief, is as follows: The complainant has got agricultural land at village Mahaboob Kheda bearing G.No.113 and G.No. 107. Both these fields are apart from each other. The complainant intended to take water pipeline from his land Gut No.113 to land Gut No. 107 and therefore, he had moved an application to Tahsil Office, Gangapur on 3rd May, 1993. According to the complainant when he had presented the application to accused No.1 for 3 crapl229.99 permission to lay pipeline, accused No.1 - present appellant told that the work was big and therefore, Rs.1500/- should be paid. Accordingly, complainant met accused 2 to 3 times and requested him to get the work done and lastly, the complainant met accused on 26.5.1993 in Tahsil Office at Gangapur. 3. It is the case of the prosecution that on 26th May, 1993 accused once again made demand of Rs.1500/- to which complainant reluctantly agreed to pay and thereafter on 28th May, 1993, complainant went to A.C.B. Office at Aurangabad at about 8 or 9 a.m. where he lodged his complaint, which came to be reduced into writing. 4. It is further case of the prosecution that Investigating Officer Mr. Jagtap, Dy. S.P. called for the panchas and appraised them about the complaint, so also they were shown the use of anthracene powder. Amount of Rs.1500/- was taken from the complainant and its numbers were noted down, anthracene powder was applied to those notes and accordingly, a detailed pre-raid panchanama was drawn. 4 crapl229.99 5. It is further case of prosecution the raiding party went to Gangapur old bus stop at about 1.30 to 1.45 p.m. where they had parked a vehicle. As per instruction, complainant and panch No.1 namely Mr. Jadhav proceeded further while other raiding members were behind them. The complainant and panch no.1 went to the table of accused No.1 at that time accused No.1 was not present. Therefore, both of them waited outside the office. At that time they saw accused No.1 coming. They went after him and met him at the table where the accused No.1 questioned if amount of Rs.1500/- was brought and told them to return after two days and he would obtain permission. 6. It is further case of the prosecution that complainant and panch no.1 and accused no.1 went to tea stall where they had tea. At that time accused No.1 became suspicious and started questioning about the panch Mr. Jadhav and started passing off time and went to different rooms. When panch no.1 was accompanying complainant throughout, accused no.1 told panch 5 crapl229.99 to wait away. As it was getting late, panch witness told complainant to get the work done. The accused no.1 told the complainant that they should go to his house and when they had come out at that time accused no.2 was coming. Accused No.1 told accused no.2 to take complainant to the hotel and accept the amount, while accused no.1 and the panch waited outside. At first, accused no.2 was reluctant to accept the amount, but on insistence of accused no.1, he was ready to go to the hotel and accept the amount. The accused No. 1 told the complainant that it was usually their habit not to accept the amount if there is any other person at the time of giving the amount. In the mean time, complainant had given the amount to accused no.2 and signaled the raiding party. 7. It is further case of prosecution that raiding party arrived and caught hold hands of accused no.2. At that time accused No.1 started running away. He was also caught hold. As people had assembled, both accused no1 and 2 were brought in Tahsil Office where their hands were 6 crapl229.99 checked under the rays of ultra violet lamp. The documents were recovered from accused No.1 and a detailed panchanama was drawn. Dy. S.P. Mr. Jagtap went to Gangapur Police Station where he lodged complaint on behalf of the State bearing Crime No.14/1993. Then the raiding party arrived at Aurangabad where unsealing panchama of anthracene bottle was drawn. On the next day, statements of witnesses were recorded, papers were forwarded and sanction order was obtained from Tahsildar as well as Collector to prosecute both the accused. Thereafter, charge-sheet came to be filed against the accused. The prosecution opened its case by submitting draft charge. The accused did not claim to be discharged. Hence, charge was framed against the accused, to which accused pleaded not guilty. 8. Thereafter, the prosecution examined complainant P.W.1 Krishna Kondiram Pure, P.W.2 Murlidhar Madhavrao Jadhav as panch witness, P.W. 3 Vithalrao Kisanrao Sonawane, Dy. Collector (who was Tahsildar at the relevant time), P.W.4 Pramod Annasaheb Mane, Joint Chief Executive Officer, 7 crapl229.99 M.I.D.C., Mumbai, P.W.5 Somnath s/o Eknath Jagtap, Police Inspector, Investigating Officer. After trial, the accused No.1 - present appellant came to be convicted as aforesaid and the accused No.2 was acquitted of the charges levelled against him. Hence, this appeal by the appellant - original accused No.1. 9. This appeal was admitted by this Court in the year, 1999 and the appellant was enlarged on bail. 10. The learned Counsel for the appellant submitted that the application dated 3rd May, 1993 filed by the complainant in the office was addressed to the Tahsildar. He invited my attention to the contents of the complaint dated 28th May, 1993 at Exh.34 and submitted that according to the complainant, he wanted to lay pipeline to fetch water from the well which is situated in Gut No.107 to Gut No.113. However, in between these two fields of the complainant, there were lands of other farmers and, therefore, complainant sought permission of the Tahsildar to 8 crapl229.99 lay pipeline through those fields. According to the learned Counsel for the appellant, though it is stated by the complainant in the complaint that there was demand of Rs.1500/- on 3rd May, 1993, the same version / statement of the complainant is not corroborated by an independent evidence. According to the Counsel, the appellant herein was no way concerned with the work of the complainant since one Mr. Gangawane, clerk in the Tahsil office was in-charge of the said work / section. He submitted that the application was handed over to the said clerk Mr. Gangawane by the complainant. Thereafter, the Revenue Inspector conducted panchanama and prepared map by visiting the field of the complainant on 7th May, 1993 and report was submitted to the Tahsildar on 10th May, 1993. However, on 24th May, 1993 one Mr. Anna Bajirao Kote, neighbour of the complainant objected from granting such permission for laying pipeline through his field. Hence, the Tahsildar issued notice on the application of said Anna Bajirao Kote and the complainant did receive the said notice and he was called by the Tahsildar. 9 crapl229.99 Therefore, according to the Counsel for the appellant, the appellant was no way connected or in-charge of the said file and, therefore, there was no occasion for the appellant to demand Rs. 1500/- as illegal gratification to favour the complainant in getting his file cleared from Tahsildar. In fact, the Tahsildar is the ultimate authority to take decision on the said file. The Counsel for the appellant invited my attention to the contents of the complaint and submitted that according to the complainant, he visited the office on one or two occasions after 3rd May, 1993 and thereafter, again visited the office on 26th May, 1993 when the appellant demanded an amount of Rs.1500/- to do the work. According to the Counsel for appellant, when the Tahsildar was seized with the matter and Tahsildar in his evidence before the Court has stated that on 24th May, 1993, he called the file and issued notices on the application filed by objector Anna Kote, there was no question of appellant demanding the amount as alleged. He further submitted that the appellant has not demanded Rs.1500/- on 3rd May, 1993 or 10 crapl229.99 thereafter, as alleged by the complainant in his complaint. The counsel invited my attention to the evidence of P.W.3 Vithalrao Sonwane, who was working as Tahsildar at the relevant time, and submitted that even Tahsildar in his evidence has stated that the said application given by the complainant was routed through Mr. Gangwane and thereafter, steps were taken by the officers to conduct panchanama and prepare map. The sum and substance of the argument of the Counsel for the appellant is that the appellant herein is in no way concerned with the application filed by the complainant since he is not in-charge of the said section which deals with granting permission for laying pipeline. The Counsel submitted that the contents of the complaint have not been proved by the prosecution. There is no corroboration to the alleged demand on 3rd May, 1993 or thereafter on 26th May, 1993. He invited my attention to the contents of the complaint in which the complainant has stated that he went to give application on 3rd May, 1993 in the Tahsil office with one Mr. Bandu Shivram Gaikwad. However, said Bandu Gaikwad is not examined by the 11 crapl229.99 prosecution. Therefore, according to the Counsel for appellant, Bandu should have been the best witness on the point of demand. He submitted that the contents of the complaint are not proved by the prosecution, there is no corroboration to the alleged demand of Rs.1500/- by the appellant from the complainant. The learned Counsel for appellant invited my attention to the evidence of P.W.1 Krishna Pure - complainant and submitted that the contention of the complainant that his file was withheld by the appellant is falsified by the evidence of the Tahsildar before the Court. P.W.3 Vithal Sonwane - Tahsildar in his evidence has specifically stated that one Mr. Gangawane was the concerned clerk looking after the application of the complainant. The Counsel submitted that the application for laying pipeline was not given by the complainant to the appellant herein. As it is evident from the evidence of the complainant in which he has stated that though the application of the complainant was accepted by the appellant, he did not give any receipt for 12 crapl229.99 the said application. There is no any corroboration to the version of the complainant that the said application was accepted by the appellant. The learned Counsel further submitted that there are material contradictions in the evidence of the P.W.1 complainant and the panch witness P.W.2 Murlidhar Jadhav - panch witness. The complainant in his evidence has stated that he did not disclosed that he has brought the amount of Rs.1500/- either in the office of the appellant on 28th May, 1993 or when they went to tea center to have a cup of tea. However, P.W.2 Jadhav in his evidence has stated that the complainant requested the appellant to accept the amount. However, he did not speak anything and after taking tea, got up. Therefore, according to the learned Counsel for the appellant, there are material contradictions and omissions in the evidence of P.Ws.1 and 2 and, therefore, their evidence becomes untrustworthy. He further submitted that it is admitted by the complainant in his examination-in-chief that accused No.2 was reluctantly ready to accept the amount from him. The Counsel also invited my attention to 13 crapl229.99 the cross-examination of the complainant and submitted that in cross-examination the complainant stated that when he visited Tahsil Office, he had not taken Mr. Bandu Gaikwad with him. This statement of the complainant in the cross-examination is contradictory to the contents of the complaint in which he has stated that he went to Tahsil office with Mr. Bandu Shivram Gaikwad. Therefore, according to the Counsel for appellant, if the evidence of the prosecution witnesses contradicts with each other, suffers from improvements, omissions which are of significant nature and when the appellant herein was in no way related or was not assigned the duty to look after the application of the complainant, in that case, the entire case of the prosecution that there was demand of Rs.1500/- to clear the application / file of the complainant is not correct. The complainant has taken different stands on different times and, therefore, the entire prosecution case is required to be rejected. The learned Counsel further submitted that 14 crapl229.99 the Collector is the authority to grant sanction for prosecution. In his cross-examination, the Collector admitted that he did not call the papers from Tahsil Office before granting sanction or he did not see the file from the Tahsil office for which complaint was lodged. Therefore, according to the Counsel for appellant, when there is no corroboration to the version of the complainant that there was demand, in that case, benefit of doubt should go to the appellant. He also invited my attention to the vital admission of the P.W.2 Murlidhar Jadhav - panch in the cross-examination wherein he has specifically admitted that it is true that accused No.1 did not demand amount in his presence. Therefore, the Counsel for appellant would submit that the appeal of the appellant deserves to be allowed. 11. On the other hand, the learned A.P.P. submitted that the application of the complainant was accepted by the appellant on 3rd May, 1993. He demanded Rs.1500/- as illegal gratification other than remuneration, he reiterated his demand 15 crapl229.99 on subsequent occasions and on 26th May, 1993 also. On 28th May, 1993, there is evidence of panch P.W.2 Jadhav that there was demand of Rs. 1500/- by the appellant. The accused No.2 was told to accept the amount of Rs.1500/- for accused no.1. Thereafter, the said amount was accepted by accused No.2 at the instance of accused no.1 in one hotel. P.W.2 Jadhav has witnessed the acceptance of amount of Rs.1500/- by the accused No.2 for accused No.1. The currency notes and also fingers of accused No.2 were examined in ultra violet lamp and there was shining on the fingers and the said currency notes of anthracene powder. The learned A.P.P. took me through the impugned judgment and submitted that the Special Court has taken into consideration the entire evidence and thereafter, convicted the appellant - accused. Therefore, this Court may not interfere with the impugned judgment and order. 12. I have given due consideration to the submissions made by the learned Counsel for the appellant as also the learned A.P.P. appearing 16 crapl229.99 for the State. With the able assistance of the learned Counsel for the parties, I have also perused the original record & proceedings and more particularly, the complainat, evidence of P.Ws.1, 2, 3 and 4 before the Court and also other documents which are brought on record by the prosecution and defence. 13. P.W.3 Vithalrao Kisanrao Sonwane, working as Tahsildar at the relevant time, in his examination-in-chief before the Court stated that he was working as Tahsildar, Gangapur from December, 1992 to March, 1994. Tahsildar is the appointing and removing authority of Kotawal. Kacharu Arjun Tupe was Kotwal who was working at village Bhendala Tq. Gangapur. At that time he was assigned the work of distribution of letters. He further stated that he had accorded the sanction to prosecute the accused. In his cross-examination on behalf of original accused No.1 - appellant herein, this witness has stated that Exh.33 is the application which was moved to the Tahsildar. It bears 17 crapl229.99 signature of Mr. Gangawane, Awal Karkun. (Emphasis supplied). When the document i.e. proceeding sheet was shown to P.W.3 before the Court, he admitted that it bears his signature of having received the file. He further states that on 24.5.1993 itself objection was raised by wife of Anna that no permission should be given for laying of pipeline. He further states that it is true that on the basis of said objection, he had issued notices to the parties calling upon objections and date was fixed for personal hearing and permission has been given to lay down the pipeline. The witness admits the file shown to him to be the same file from Tahsil Office, Gangapur. He further admits that permission was granted for laying the pipeline up to 2000 feet. He further stated, "It is true that permission was accorded by Tahsildar alone." (Emphasis supplied). Therefore, from the evidence of P.W.3, it is clear that Exh.33 - application, which was moved to the Tahsildar, bears signature of Mr. Gangawane, Awal Karkoon. Therefore, it is the 18 crapl229.99 contention of the Counsel for the appellant that the appellant was not the concerned clerk to look after Exh.33 - application filed by the complainant. It has also come in the evidence of P.W.3 Sonwane that the proceeding sheet bears his signature. He did issue notices after objection was raised by the wife of Anna for laying pipeline on 24th May, 1993 and the parties were called upon for personal hearing. He has also admitted in his cross-examination that permission was accorded by himself in the capacity of Tahsildar. Therefore, it appears that at the relevant time, the appellant herein was not in- charge of the file or assigned work to deal with Exh.33 - the said application of the complainant. From perusal of the panchanama, it appears that the Revenue Officer had conducted inquiry, prepared panchanama and report, and submitted it to the Tahsildar. The panchanama is part of the record. There is also report submitted by the Revenue Officer which indicates that he had made inquiry by visiting the spot and prepared panchanama and map and recommended that permission should be given to the complainant to 19 crapl229.99 lay down pipeline, as requested by the complainant. From perusal of the contents of the application dated 3rd May, 1993 at Exh.33 filed by the complainant to the Tahsildar, it clearly appears that the said application was addressed to the Tahsildar, Gangapur. The record shows that there was complaint in the form of an application by Anna to the Tahsildar objecting laying down pipeline from his field. The said application was received in the office of the Tahsildar on 24th May, 1993 and Tahsildar had issued notices to the parties. Therefore, the learned Counsel for the appellant rightly submitted that when the Tahsildar was seized with the matter and he had issued notices on 24th May, 1993, there was no question for the appellant to demand any amount as alleged by the complainant on 26th May, 1993. The complainant was fully aware that the Tahsildar has issued notices, his neighbour has objected for laying down pipeline from his field and therefore, at the relevant time, it was only the Tahsildar who was in full control of the said application / file of the complainant. 20 crapl229.99 14. Though the complainant has asserted in his complaint at Exh.34 dated 28th May, 1993 that he had given application on 3rd May, 1993 to the appellant herein, who was working as a clerk in the Tahsil office at the relevant time, on perusal of the application dated 3rd May, 1993, it is abundantly clear that the said application was received and forwarded by Mr. Gangawane and his signature is appearing on the said application. Therefore, on perusal of the record and the evidence of P.W.3, the assertion of the complainant that the application was handed over to the appellant herein, cannot be accepted. Even, according to the complainant, no any receipt was possessed by him showing therein that the appellant had received his application on 3rd May, 1993. The complainant in his complaint has stated that when he went to give application on 3rd May, 1993, one Mr. Bandu was accompanying him. However, in his cross-examination, he states that said Bandu was not accompanying him. This conduct of the complainant and contradictory statements of the complainant make his evidence 21 crapl229.99 doubtful. It is an admitted position that Bandu was not examined by the prosecution. Perhaps, he would have been the best witness on the point of alleged demand of illegal gratification of Rs. 1500/- by the appellant from the complainant to do his work favourably. It is an admitted position that so far as initial demand on 3rd May, 1993 is concerned, the version of the complainant is not corroborated by any independent evidence. So far as alleged demand on 3rd May, 1993 and on subsequent dates including 26th May, 1993 is concerned, except bare words of the complainant, there is no corroboration to the statement that there was illegal demand of Rs.1500/- by the appellant to decide complainant's application in his favour. Therefore, what has been stated by the complainant in the complaint has not been substantiated or corroborated by independent evidence. As stated earlier, another clerk was looking after the application at Exh.33 filed by the complainant. The Revenue Inspector inspected the spot, conducted inquiry, prepared map and thereafter submitted his report on 10th May, 22 crapl229.99 1993. The said report was favourable to the complainant. The evidence of the complainant before the Court is at Exh.22. In his statement before the Court, he has stated that there is no any receipt possessed by him showing that his application was received by the appellant. In his examination- in-chief, he has again reiterated that Bandu Shivram Gaikwad was with him. However, in his cross-examination, he stated, "It is not true to say that earlier when I had visited Tahsil Office I had taken Mr. Bandu Gaikwad." (emphasis supplied). Therefore, what the complainant had stated in the complaint and in examination-in- chief, is not maintained by him in his cross- examination and, therefore, the evidence of the complainant becomes doubtful and contradictory to his own statement in the complaint, examination- in-chief vis-a-vis in cross-examination. Though he has asserted that there was demand of Rs. 1500/- by the appellant on 3rd May, 1993 and thereafter he visited Tahsil office twice or thrice and also on 26th May, 1993 and he met the 23 crapl229.99 appellant / accused. However, the statement of the complainant that there was illegal demand of Rs.1500/- to decide his application favourably and grant permission to lay pipeline is not supported by any independent evidence. There is no any corroboration to the alleged demand by the appellant from the complainant. The complainant P.W.1 in his evidence has stated that he visited the office of the appellant on 26th May, 1993. He requested him to get his work done by granting permission to lay down pipeline. However, the appellant told him that he would do the work only if an amount of Rs.1500/- is paid and the complainant should not again visit the office without money. The complainant requested the appellant - accused to reduce the amount and accept less amount. However, the appellant refused the request and it is further stated that he agreed to pay the amount to the appellant