The State Of Maharashtra vs Dipak

Vide instant appeal, State takes exception to judgment and order dated 27-12-2011 passed by learned Special Judge (ACB), Bhokar, District Nanded, in Special ACB Case No.1 of 2010 by which present respondent, who was prosecuted and tried for offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, came to be acquitted.

Prosecution case in nutshell is that, complainant had applied for a telephone connection. Complainant deposited Rs.2,000/- as directed by accused and handed over a xerox copy of receipt of payment with a further request to install new telephone connection. On 09-07-2002, a new telephone connection was installed, but it was not made functional. Message was left with wife of complainant that, he is called to meet accused for signing some documents. Hence, complainant accompanied with his friend Premsing Jadhav went to office of accused and there, accused asked him to throw a party and accordingly, complainant gave him tea party and at that time, accused asked complainant to pay Rs.1,000/- for installation of telephone. Complainant agreed to pay Rs.500/-, but as he was not willing to pay bribe, he approached Anti Corruption Bureau (ACB) with a complaint of demand of illegal gratification. Such complaint was entertained and ACB authorities planned trap in presence of shadow pancha. Tainted currency was carried by complainant accompanied by shadow pancha to the office of accused. On demand, tainted currency was paid, which accused accepted and kept it in his drawer of the table, which was followed by relay of predetermined signal and apprehension of accused and on completion of investigation, accused being chargesheeted and tried, but vide above judgment and order, accused came to be acquitted. Hence, the appeal by State.

Learned APP took this Court through length and breadth of the impugned judgment and would criticize the same by stating that, learned trial Court has failed to properly appreciate the factual foundation of the case and has not taken pains to reproduce the actual facts and by predetermined mode, has authored the judgment of acquittal. He would take this Court through the testimony of complainant, shadow pancha and would submit that, there is both demand as well as acceptance, but said crucial aspect has not been acknowledged by learned trial Court. That, entire judgment is based on assumptions, presumptions and surmises, and in deviation to the evidence on record. According to him, learned trial Court has missed the track of the evidence and misread the evidence in its entirety. That, there was sufficient corroboration to the complainant’s evidence, but the same has not been taken into account. Thus, according to him, the impugned judgment is perverse and illegal and cannot be allowed to be sustained.

In support of his above contentions, he seeks reliance on the Judgment of Gujarat High Court passed in Criminal Appeal No.2083 of 2008 on 14-02-2014, in the case of Tarjubhai Narsingbhai Rathwa v. State of Gujarat.

Learned Counsel for respondent/accused would support judgment and order of conviction. According to him, at the outset, accused has not authority or power to approve or install telephone connection in the house of accused and there is admission to that extent by very Sanctioning Authority as well as the Investigating Officer and consequently, he submits that, there is no question of demanding bribe. He pointed out that, shadow pancha has not supported complainant and as such, there is no corroboration to the testimony of complainant. He also pointed out that, witnesses were permitted to study the papers before deposing i.e. without permission of learned trial Court and in view of judgment of this Court in the case of Suresh s/o. Purushottam Ashtankar v. State of Maharashtra and Another, 2015 All MR (Cri) 4243, testimony of such witnesses loses credibility. He also pointed out that, moreover, here, sanction is by authority, who was not competent to accord sanction and on such account also prosecution story collapses. Lastly, he seeks dismissal of appeal for want of merits.

PW1 Bandusingh Ramu Pawar in his evidence at exh.34 deposed that, he was a Teacher, residing in a rented house, but he was in need of a telephone connection. That, after meeting accused on 25-06-2002, as asked, he deposited Rs.2,000/- in the Post Office on 27-06-2002 and thereafter, approached accused, who promised him installation of phone. He deposed that, on 09-07-2002, a new telephone connection was installed in his house, but was shortly removed by the employees of Telephone Department and therefore, he and his friend Premsing Jadhav went to Telephone Office to enquire with accused, who asked him to throw a party and accordingly, he took him to a hotel for tea and there, according to complainant, accused told him to pay Rs.1,000/- for installing telephone. When he expressed his inability, accused refused to install telephone. On 13-07-2002, two persons came to his house and installed telephone No.44184 and thereafter, they connected call to accused, who again asked him to pay Rs.1,000/-, but again complainant expressed his inability to pay the same and on negotiations, amount was brought down to Rs.500/-. As complainant was reluctant, he went to ACB and gave complaint exh.35. Regarding the main trap, he deposed that, when he and shadow pancha visited the office of accused, accused, who was sitting near the gate, took him to first floor, offered him a chair and then asked whether he brought the money and hence, after demand, it was paid, which accused accepted and kept it in the drawer of the table and thereafter, came out of the room and gave predetermined signal.

Relevant cross-examination is only dealt. In cross this witness admitted that, accused was Junior Telecom Officer at relevant time and he admitted that, Bashiroddin was the Sub-Divisional Engineer (SDE). But, he expressed his ignorance about the duty of accused to merely put up receipt of deposit of telephone connection charges before SDE, who has to further issue advise notice and he also expressed his ignorance whether accused has put up receipt of payment before SDE. He denied stating in complaint or to Police that accused had come to his house on 09-07-2002, but to further suggestion, he answered that in fact accused had come to his house on 09-07-2002 and he admitted portion marked “A” in the complaint. He admitted that, he was annoyed due to removal of telephone connection. Rest is all denial.

PW2 Hamid Khan, also worked in Telephone Office deposed at exh.40 that, complainant and one person came at 06:00 p.m. and asked for SDE i.e. Sub-Divisional Engineer and they were informed about his absence and thereafter, complainant and person accompanying him as well as accused going upstairs. But he deposed that, he did not see what happened thereafter between complainant and accused.

In cross-examination he admitted that there was quarrel between complainant and accused on account of removal of telephone connection and he admitted that, on the date incident, accused told complainant that advice note is not yet issued by SDE and witness also admitted that, when complainant was going back accused followed him.

PW3 Shankar Govindrao Gond, shadow pancha, who deposed at exh.42, in paragraph 2 of his examination-in-chief stated that, he and complainant walked to office of accused. That, after complainant wished accused, he responded and took them to the office on first floor. That, accused sat on his chair and these two occupies chairs opposite to him. According to him, accused asked complainant whether he has brought the money, complainant replied in affirmative and complainant gave Rs.500/- which accused accepted and kept in drawer of his table and then complainant came out and relayed predetermined signal.

While under cross-examination, above witness is unable to state how many drawers were at the table of accused and he admitted that drawer was already opened, but he answered that, he does not remember whether handle of drawer was checked. He admitted that, the Investigating Officer phoned SDE and he came at the spot after the events. He admitted that, contents of both panchanamas were read over to him prior to entering into witness box.

PW4 Keemtilal Chainlal Jain is the Sanctioning Authority and he deposed at exh.46 that, he was Advisor to HRD and that, he received papers from ACB Nanded, which he read and issued sanction, which he identified at exh.47. He deposed that, he was cadre controlling authority at the time of incident and had power to remove Junior Telecom officers.

While under cross-examination he admitted that he took help of a person knowing Marathi while issuing sanction order. He admitted that, according to the Rules, appointing authority was Director, Telecommunication and also admitted that, he was removing authority. He also admitted that, accused was not competent to issue advice note and that new telephone connection is provided only after issuance of advice note. Rest is all denial.

PW5 Sanjay Sopan Kendre (PI) is the Investigating Officer, who narrated all the facts since beginning till apprehension of accused.

Re-appreciated the entire evidence. PW1 complainant in his evidence at exh.34 has stated that, on 25-06-2002, he approached accused in his office, who gave him quotation and told him to deposit Rs.2,000/- in Post Office, which he duly deposited on 27-06-2002 and again approached accused and handed over him deposit receipt and accused promised him to install telephone in 7-8 days. On 09-07-2002, while accused was in his School, telephone bearing No.44184 was installed at his house, but immediately removed by some of the employees of Telephone Department. Therefore, he and his friend Premsing Jadhav visited office of accused at 05:30 p.m. and questioned accused about the installation and immediate removal of telephone, upon which accused told him to first give party and hence, complainant, his friend and accused went to have tea and there, witness states that accused told him to pay Rs.1,000/- for installing the telephone. Even in the complaint exh.35, one comes across such chronology of events taking place on 25-06-2002, 27-06-2002 and 09-07-2002. In paragraph 3 of examination-in-chief, complainant has deposed the events of main trap about approaching accused while he was accompanied by shadow pancha and accused, who was sitting at front gate, taking them to first floor and after occupying respective chairs, accused demanding money and complainant paying him Rs.500/- and accused accepting it and keeping it in the drawer of the table. So much of evidence of this witness is not disturbed in the cross-examination of this witness.

If we compare the above testimony with that of evidence of PW3 shadow pancha (exh.42), it appears that, in paragraph 2, he has stated that, when he accompanied complainant to the office of accused, after exchange of greetings, accused took them to the first floor of his office, and there, after sitting, accused asked complainant whether he has brought money, upon which complainant answered in affirmative, and complainant gave Rs.500/- and accused accepted it and kept in the drawer of his table.

Even in the cross-examination of PW3 shadow pancha, above evidence of this witness on the point of demand and acceptance has not been questioned and only he is asked how many drawers were there and whether drawer was already opened or closed. The aspects of demand and acceptance have not been touched in the cross-examination of above witness.

Consequently, here, on the point of demand and acceptance, both witnesses, PW1 complainant and PW3 shadow pancha are consistent and lending support to each other. Therefore, essential ingredients of demand and acceptance are very much available. Learned trial Court seems to have given undue importance to the aspect of no proof of installation of telephone, even when admittedly complainant himself has come with the case that initially telephone was installed, but subsequently it was removed and therefore, complainant had occasion to visit the office of accused in the evening to question the above act during which there was said to be first demand of party followed by demand of bribe of Rs.1,000/-. Resultantly, as pointed out by learned APP, learned trial Court has missed the above essential requirements emerging in the evidence of both PW1 complainant and PW3 shadow pancha and the same has not been correctly appreciated.

As regards to sanction is concerned, though, it is pointed out that, PW4 Sanctioning Authority, in cross-examination, has admitted that appointing authority was Director Telecommunication and witness was Advisor to HRD, in the examination-in-chief, this witness has also deposed that, he was Cadre Controlling Authority at the time of incident and he had power to remove Junior Telecom Officers and Group B officers of Telecom Department in the engineering cadre. Therefore, with such testimony of PW4 Sanctioning Authority, his stray admission in cross-examination that, as per Rules appointing authority was Director Telecommunication, itself would not be a good ground to question the competence of this witness to accord sanction. He has categorically stated that, he has received papers, which he read and accorded sanction. Hence, here, there is sanction also.

By taking recourse to the above referred Judgment of this Court in the case of Suresh s/o. Purushottam Ashtankar, it is tried to be submitted that as witnesses were confronted with the documentary evidence before stepping in the witness box, their testimony is unworthy of credence. However, though the view of this Court is reproduced in above judgment, here, merely on such count, the clinching evidence on the crucial aspects of demand and acceptance having been proved, the entire evidence of complainant and shadow pancha cannot be allowed to be eclipsed.

Perused the impugned judgment and order. As submitted, learned trial Court has given undue thrust on the failure of investigating machinery to bring on record evidence on the point of very installation of telephone at the house of complainant. Even the testimony of PW1 complainant and PW3 shadow pancha does not seem to have been properly comprehended and their testimony on the points of demand and acceptance has not been taken into account while recording the finding of acquittal. Therefore, apparently there is misreading and non-appreciation of relevant evidence necessitating indulgence at the hands of this Court. Accordingly, following order is passed :

I. The appeal is allowed.

II. The impugned judgment and order dated 27-12-2011 passed by learned Special Judge (ACB), Bhokar, in Special (ACB) Case No.1 of 2010 (Old Case No.10 of 2004) is hereby quashed and set aside.

III. The respondent/accused Dipak s/o Kishanrao Kamthekar is hereby convicted for offence punishable under Sections 7 as well as Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act (as it stood prior to amendment vide Amendment Act 01 of 2014).

IV. For offence under Section 7 of the Prevention of Corruption Act, the respondent/accused is sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 5000/- (Rupees Five Thousand only) and in case of default to pay the fine amount, to undergo further simple imprisonment for 15 days.

V. For offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, the respondent/accused is sentenced to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- (Rupees Ten Thousand Only) and in case of default to pay the fine amount, to undergo further simple imprisonment for 30 days.

VI. The respondent/accused shall undergo the substantive sentence of imprisonment concurrently.

VII. The respondent/accused is entitled to the benefit of set off under Section 428 Cr.P.C.

VIII. The respondent/accused shall surrender before the trial Court within a period of six weeks. Bail bond of the accused stands cancelled.