Gangadhar Tukaram Wadgave vs State Of Maharashtra

Convict in Special (ACB) Case No. 01 of 2014 for offence under Sections 7, 13(1)(2) and 13(2) of the Prevention of Corruption Act, 1988 (PC Act), hereby takes exception to the judgment and order of conviction dated 31.01.2017 passed by learned Additional Sessions Judge, Biloli in above Special Case.

The brief snapshot of prosecution story in trial court is that, on 05.05.2013, a loaded truck gave dash and caused damage to the DP and electricity poles at Patoda. MSEDCL authorities visited the spot, but the electricity supply, more particularly to the lane in which complainant Mohan Gaddamwar and nine other resided, was not restored and therefore visit was paid to the office by tendering application, and in that context accused Wadgave (present appellant) accompanied by two office associates namely More and Razak paid visit and accused Wadgave told complainant that Rs.700/- will have to be paid to restart the connection. As complainant was not willing to pay bribe, he approached ACB office, gave complaint Exhibit 10. This was followed by arrangement of trap by the ACB authorities, i.e. by engaging shadow pancha and making complainant and shadow pancha approach accused with voice recorded as well as tainted currency. Accused demanded bribe and after handing over the tainted currency and on relay of signal by complainant, raiding party apprehended accused, prosecution was launched against him and finally he was tried and also convicted by learned Sessions Court as above.

PW1 at Exhibit 9 deposed that, two months prior to 05.05.2013, the DP installed by MSEB got damaged due to dash given by a truck, as a result of which electric poles got uprooted and electricity supply was disrupted. MSEB authorities were approached and officer Gaikwad assured to send lineman to restart the electricity supply, and accordingly persons namely Wadgave (present appellant), More and Razak came. According to complainant, lineman Wadgave demanded Rs.700/- to restore the electricity supply. As he was not interested in paying bribe, he approached ACB authorities and gave complainant Exhibit 10, which was followed by planning of trap by engaging pancha, procedure of trap was explained and demonstrated to both of them and there were specific instructions to rely signal on demand and acceptance. In para 4 he stated that, he paid the amount to the accused, gave signal by dropping dasti and immediately Investigating Officer came with raiding party and caught accused red handed.

PW 2 Suryakant is the shadow pancha and he, in his deposition at Exhibit 19, stated that he was called at ACB office to act as pancha, he heard grievance of complainant, verified his complainant and appended his signature. Then he deposed about ACB officer recording voice sample of both, complainant and pancha and giving directions to approach accused and accordingly they reached the spot where complainant asked accused to start his connection and accused asked the complainant whether he brought amount of Rs.700/-, upon which accused was told by complainant to start the work of electricity connection and that he will come back with money. After such conversation, they returned back to spot where jeep was parked and Investigating Officer was appraised about the conversation and main trap being laid. In para 3 he deposed that accordingly, he and complainant reached the place of work of accused where accused demanded money from the complainant and accordingly amount was handed over and complainant relayed the signal. He also deposed that, accused made a statement in writing before the Sub-Station officer.

PW3 is the sanctioning authority who accorded sanction to prosecute vide Exhibit 28.

PW4 is the Investigating Officer who narrated all events since receipt of complaint till execution of main trap by apprehending the accused.

Learned counsel for the appellant would point out that in fact, in trial court, prosecution has miserably failed to substantiate that there was demand at the instance of the accused. On this count learned counsel took this Court through the examination-in-chief of complainant PW1, more particularly para 4, and would point out that, from his testimony it is emerging that, there was no demand and directly amount has been paid. He would strenuously submit that accused does not disown receiving the amount but the same was not illegal gratification or bribe amount as is posed by prosecution. Rather, it is submitted that, the amount was towards labour charges. Even the complainant has, while under cross, repeatedly admitted about he agreeing to pay the labour charges. Labours were also present at the spot and they are also named. However, the labour charges are misconstrued and misinterpreted as bribe amount and conviction has been rendered by the trial court.

Learned counsel pointed out that, there was overwhelming evidence in support of above defence of accused that the amount accepted was towards labour charges and not towards bribe. Learned counsel invited attention of the Court to the communication at the instance of complainant acknowledging readiness to pay the labour charges, which is marked at Exhibit 15.

Learned counsel also pointed out that, in the memorandum statement given at the spot, above stand of accused was made known to the Investigating Officer and he also took this Court through the said memorandum statement at page 58 of the appeal memo.

Learned counsel would also add that here, witnesses had opportunity to go through the investigation papers while deposing in the Court and no prior permission of the court was obtained to do so and therefore, in view of the judgment of this Court at Nagpur in Suresh s/o Purushottam Ashtankar v. The State of Maharashtra 2015 ALL MR (Cri) 4243, he urges to discard the testimony of complainant as well as shadow pancha.

He lastly pointed out that, there is script of conversation on record and the same also categorically shows that the conversation was on the point of labour charges and nothing beyond.

However according to learned counsel, above evidence has not been correctly appreciated by learned trial court and on assumptions and presumptions, conclusion has been drawn that the amount received was only and only bribe amount and not labour charges. For said incorrect appreciation, he urges to allow the appeal.

In answer to above, learned APP would support the judgment and order of conviction. According to him, MSEDCL is not expected to levy labour charges from customers for supply of essential services like electricity supply. He took this Court through the contents of complaint and would submit that, it is categorically stated therein that there was demand of bribe. According to him, though complainant admitted in cross that the amount paid was towards labour charges, there is no such provision to receive or pay labour charges to a Government undertaking. That, moreover, said witness in chief has supported prosecution and therefore so much part of his evidence can safely be relied, and was so rightly done by learned trial court. According to him, defence put forth is false and afterthought and was therefore rightly discarded by the trial court. For all above reasons he prays to not to disturb the sound and reasoned findings reached at by learned trial court.

The main ground on which thrust is heavily placed is that, complainant himself admitted about amount paid to be towards labour charges and not towards bribe amount. In the backdrop of such submissions, evidence of complainant is visited. As pointed out, in his testimony at Exhibit 9, firstly in paragraph 4 which pertains to the main trap, complainant has not deposed about demand being raised by accused, and what he states is about officer giving directions that after payment of amount, to give signal by dropping dasti from shoulder and that he paid the amount to the accused. Apparently, there is no whisper about any demand being put up by accused. No attempt is made by APP in the trial court to re-examine this witness on above point.

In cross para 8, there is clear admission by complainant that officers of MSEB had told him that, to fix the poles and wires, he had to pay the labour charges and he further admitted that, he knew prior to lodging complaint that he had to pay Rs.700/- as labour charges and that he had agreed to pay the same. He also admitted about sending a chit to the accused writing therein that he was ready to pay Rs.700/- while the work was in progress. He also admitted that, Shaikh Ramzan, Shaikh Kasim and three others were present as labourers and in his presence, as well as in presence of labourers, charges of Rs.700/- were fixed. He again admitted having paid Rs.700/- as labour charges.

Therefore, from above answers in cross, there seems to be clear admission by complainant regarding payment of Rs.700/- towards labour charges. Even names of the labourers are supplied by him.

Apart from above, as pointed out, Exhibit 15, which is got admitted through complainant regarding Rs.700/- being collected from others to be paid towards labour charges, is shown to be dated 03.04.2013 i.e. prior to complaint dated 05.05.2013.

Likewise, in cross of PW2 para 8, there is admission that one Shaikh Ramzan and two other labours were present along with the accused and at the time of spot panchana, complainant made a statement that the amount which he is going to be paid is labour charges and accused called labours to collect their money.

There is also a transcript of conversation between complainant and accused wherein there are talks of labour payment. Consequently, there is material to show that, demand was towards labour charges. Even names of the labours who were present there have come on record.

Learned trial court, in its judgment paragraph 13 has dealt and discussed the above cross of complainant, but in para 15, by taking into account the date of examination-in-chief and the date of his cross, has drawn inference that witnesses are won over and the time interval has been utilized for winning over the witnesses. However, this seems to be mere assumption drawn or surmise by trial court. Here, not only complainant has admitted about talks of labour charges, but even independent shadow pancha, in para 8 of his cross has admitted to the above extent. Coupled with it, there is Exhibit 15 at the instance of complainant acknowledging his readiness to bear labour charges of Rs.700/-. Such material cannot be brushed aside or overlooked.

Though learned APP would submit that there is no provision to levy charges for labour payment for a Government undertaking like MSEDCL and that amount demanded is bribe attracting Section 7 of the PC Act, here, names of very labours accompanying accused have come on record.

Therefore, for above reasons, appellant succeeds on three counts. Firstly, there to be no verification of demand got done prior to trap. Secondly, complainant failing to mention about demand raised and he directly speaks of handing over tainted currency. Even the person accompanying complainant namely, Sadashiv Gavle, who could have been the best witnesses on the point of demand, is not examined. Thirdly, there to be material suggesting demand made towards labour charges and not bribe. Hence, the following order :

I. The appeal is allowed.

II. The conviction awarded to the appellant Gangadhar Tukaram Wadgave by learned Additional Sessions Judge, Biloli, in Special (ACB) Case No. 01 of 2014 under Sections 7, 13(1)(2) and 13(2) of the PC Act on 31.01.2017 stands quashed and set aside.

III. The appellant Gangadhar Tukaram Wadgave stands acquitted of the offence punishable under Sections 7, 13(1)(2) and 13(2) of the PC Act.

IV. The bail bonds of the appellant stand cancelled.

V. Fine amount deposited, if any, be refunded to the appellant after the statutory period.

VI. It is clarified that there is no change as regards the order regarding disposal of muddemal.