The State Of Maharashtra vs Ganesh Tukaram Pachpohe & Anr.

Vide instant appeal, State takes exception to judgment and order dated 25-03-2019 passed by learned Additional Sessions Judge, Jalgaon, in Special ACB Case No.9 of 2017 by which present respondents, who were 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.

In brief, story of prosecution in trial court was that, de facto complainant PW1 Suresh Wankhede, who was officiating as Additional Executive Engineer, in Maharashtra State Electricity Supply Company Limited., Amalner, was served with communication and show cause notice seeking explanation for not submitting information regarding beneficiaries of electricity supply under “Jawahar Vihir Yojana”, and further explanation was called as to why he failed to take efforts to bring down the loss of electricity up to 15%. De facto complainant tendered his explanation on 20-05-2016. As he was due for retirement on 31-05-2016, he approached accused no.1, Executive Engineer, with a request to dispose of his explanation letters so as to enable him to receive the gratuity amount. It is the case of prosecution that, to do so, accused no.1 demanded Rs.30,000/- and therefore, de facto complainant approached Anti Corruption Bureau (ACB) authorities and lodged complaint, which resulted into planning of trap, getting verification of demand done, drawing conversation panchanama, executing the trap during which accused no.2 accepted the bribe on behalf of accused no.1. PW4 Investigating Officer, who completed the trap, lodged the report, carried out investigation and finally, chargesheeted both accused for above charge.

At trial, prosecution adduced evidence of in all four witnesses i.e. de facto complainant PW1 Suresh Wankhede, shadow pancha PW2 Chetan Chaudhari, Sanctioning Authority PW3 Ankush Nale and Investigating Officer PW4 Bhima Narke. Various documentary evidence comprising of panchanamas and script was also relied by prosecution in support of its case.

On appreciation of the same, learned trial Court held that prosecution failed to prove its case beyond reasonable doubt and finally, acquitted both the accused persons from above charges. Hence, instant appeal by State.

Learned APP would point out that, there is no denial or dispute that accused persons as well as complainant are Government servants. That, for deciding and disposing of the explanation letters of complainant so as to qualify him to receive an amount of Rs.15,00,000/- towards gratuity, 2% amount i.e. Rs.30,000/- was demanded. That, complaint to that extent was received from PW1 complainant and PW4 Investigating Officer planned and executed trap, which was also successful. She pointed out that, prior to main trap, verification of demand was got done by sending complainant and shadow pancha with voice recorder wherein conversation between complainant and accused no.1 was captured. That, the script of the conversation was drawn and thereafter, main trap was laid. That, during it also, complainant was made to carry voice recorder as well as tainted currency. That, complainant has deposed about all the events that took place since demand verification till execution of main trap. That, throughout, PW2 shadow pancha was accompanying PW1 complainant and he too has consistently narrated all the events as stated by PW1 complainant and as such, there is corroboration to the testimony of PW1 complainant. She further pointed out that, though accused no.1 demanded the bribe, its acceptance was through accused no.2. That, accused no.2 was caught raid-handed. That, he has acted and accepted the bribe amount on behalf of accused no.1. Therefore, there is clinching evidence against both accused for putting up demand as well as acceptance respectively. However, learned trial Court has failed to appreciate and consider the same and has committed error in disbelieving the case of prosecution and further acquitting the accused. According to her, the Judgment and order is contrary to the oral and documentary evidence on record and cannot be allowed to be sustained.

She pointed out that, after completion of investigation and before filing chargesheet, as required, due sanction was obtained from higher authority of both the accused. That, after due application of mind, sanction has been accorded. That, said authority is also examined and therefore, according to her, all essential requirements and procedures for prosecuting the accused were completed, but trial Court failed to consider the same in its correct perspective.

Lastly, she submitted that, case of prosecution having been proved beyond reasonable doubt, the trial Court ought to have accepted prosecution story, but it having failed, she urges to set aside the said Judgment and order by allowing the appeal.

In answer to above, learned counsel for respondents/accused would point out that, prosecution has miserably failed to discharge its burden of proving the case beyond reasonable doubt. According to him, prosecution, at the outset, failed to substantiate initial or first demand and on this count, he pointed out that, complaint is silent about actual date of first demand and that no complaint being filed at that point of time and moreover, very Investigating Officer admitting that complaint is bereft of exact date of initial demand.

He next submitted that, here, complainant himself in cross-examination has admitted that, on the date of main trap, or even prior to it, during meeting between complainant and accused no.1, there was no direct demand by accused no.1. He pointed out that, even shadow pancha has admitted to that extent and therefore, he questions very implication and indictment of accused no.1 for want of any trustworthy and reliable evidence.

He next submitted that, case of prosecution in trial Court was that, accused no.2 accepted the tainted currency on behalf of accused no.1, but prosecution’s own evidence does not show that accused no.2 accepted the currency on behalf of or at the behest of accused no.1, as there is no evidence to show that, there was previous meeting of mind or contact between both accused and accused no.2 accepted bribe on behalf of accused no.1. He pointed out that, both complainant as well as shadow pancha have admitted that accused nos.1 and 2 were never together so as to draw inference that accused no.2 was to accept the bribe on behalf of accused no.1. He pointed out that, prosecution witnesses i.e. PW1 complainant and PW2 shadow pancha both admit that complainant had no work whatsoever with accused no.2 and therefore, he questions the very story developed by prosecution.

He further pointed out that, in the evidence of PW1 complainant, more particularly cross-examination, there is admission that accused no.1 demanded documents and not any bribe amount. Therefore, reference of accused no.1 was with regard to documents, which were pertaining to the disposal of the file of which printouts ought to have been obtained and complainant himself had taken responsibility of procuring the same and then approached accused no.1. That, even on the day of main trap, there was reference from accused no.1 about documents and complainant has admitted to that extent also and therefore, there was no question of demanding any bribe.

Learned counsel took this Court through the length and breadth of examination-in-chief of PW1 complainant and PW2 shadow pancha, as well as cross-examination faced by them and would submit that, there is no iota of evidence to show that accused nos.1 and 2 have acted in concert to demand or accept the bribe. That, prosecution has failed to place on record CDR and SDR even when prosecution claims that there were telephonic conversation between complainant and accused no.1 at Jalgaon Circle Office. He pointed out that, though alleged efforts were made to capture voice sample, there is no certificate under Section 65B of the Indian Evidence Act, to prove the same. That, even original script was not placed before the Court and all such crucial aspects went against the prosecution in the trial Court and therefore, according to him, no fault whatsoever can be found in the Judgment and order of trial Court and for want of merits, he prays to dismiss the appeal.

Re-appreciated the evidence, more particularly, that of PW1 complainant and PW2 shadow pancha.

Let us see whether aspect of demand, which is sine qua non, is at all proved by prosecution.

Evidence of PW1 complainant is at exh.11. He deposed that, he received two letters from Executive Engineer seeking information of beneficiaries of electricity supply under “Jawahar Vihir Yojana” and also explanation was called as to what efforts were made to make up the loss of electricity upto 15%. According to him, to above communications dated 24-02-2016, he offered explanation on 20-05-2016. He further claims that, as he was due for retirement on 31-05-2016, it was necessary to get his letters of explanation decided so as to become entitled for gratuity. According to him, Executive Engineer, Dharangaon i.e. accused no.1, did not dispose of the matter till 31-05-2016, but one week prior to his retirement, he claims to have approached accused no.1 personally with a request to dispose of the letters and to issue certificate after considering his explanation so that he would get gratuity amount.

From above testimony of complainant, it is emerging that one week prior to 31-05-2016 i.e. date of his retirement, he had allegedly approached accused no.1, but as pointed out, he has approached ACB authorities on 05-07-2016 i.e. after more than one month. Again as pointed out, though he claims that accused no.1 demanded Rs.30,000/-, when exactly demand was raised, is not stated in the complaint or even in his testimony at exh.11. When this witness was confronted with his complaints at Exhibits 12 and 13 dated 05-07-2016, he has admitted that, both complaints are silent on the point of he approaching accused one week prior to the date of his retirement. Therefore, aspect of date of initial demand is unclear.

On carefully going through testimony of PW1 complainant, it is emerging that, in paragraph 5 of his examination-in-chief, he has stated that, at the time of demand verification, when he and pancha witness entered the cabin of accused no.1, at that time, when he asked accused no.1 about his work, he immediately called accused no.2 inside the cabin, and he accordingly came in the cabin of accused no.1 and according to complainant, accused no.2 stated that he is going to get Rs.15,00,000/- and he has to pay 2% of it i.e. Rs.30,000/- and there were negotiations and amount was brought to Rs.25,000/-.

From above deposition, it is emerging that it was accused no.2 who said to complainant that he will have to pay 2% of gratuity amount. Consequently, there is no demand by accused no.1. Even in in para 67 of cross-examination of PW2 shadow pancha, this witness has admitted that accused no.1 had not made any demand of money nor had stated as to whom the amount is to be given.

As regards to main trap at Circle Office Jalgaon is concerned, PW1 complainant has deposed in paragraph 11 that, after he and shadow pancha reached Circle Office, he made a phone call to accused no.1 to seek his whereabouts and to inform that they have reached Circle Office. However, as stated, no CDR, SDR are placed before the Court to substantiate such calling on phone. Further, this witness deposed that, after the phone call, accused no.1 came and enquired with him as to whether he has brought the documents. Witness deposed that, at that time, he told that accused no.2 is bringing the documents. Therefore, in the second meeting at Circle Office also, there is no demand by accused no.1 and there is merely talk with reference to documents.

In paragraph 24 of the cross-examination, complainant has admitted that, after making phone call to accused no.1, and accused no.1 came, he asked whether he brought computer prints of order dated 04-07-2016.

In paragraph 20 of the cross-examination, complainant has admitted that, during his visit to cabin of accused no.1, at that time, accused no.1 called a Clerk by name Kulkarni in his cabin and he further admitted that, at that time, accused no.1 asked said Kulkarni whether he has taken out the computer print of order dated 04-07-2016 in respect of file disposed of. He has admitted that said Kulkarni stated that, as server was down, print out could not be taken from the computer and at that time, accused no.1 has told that, he has been called at Circle Office and that he has to go there. Therefore, such admission shows that, as regards to accused no.1 is concerned, there are talks about documents and even in the meeting at Circle Office, the only question accused no.1 allegedly asked whether documents are brought or not and there is no demand of any amount even when main trap was to be executed at Circle Office. Therefore, the above discussed material, as submitted by learned counsel for respondents, shows that, there is no material on the point of actual demand by accused no.1.

As regards to accused no.2 is concerned, he has allegedly accepted the bribe by stating that, accused no.1 had asked him to collect the amount, however, though accused nos.1 and 2 are said to be at Circle Office, Jalgaon, there is no distinct evidence to the above extent. Both have never come together and met complainant and shadow pancha and they come distinctly i.e. initially only accused no.1 comes, and have talk on documents and on being told by complainant that documents would be brought by accused no.2, after accused no.1 left, a short while thereafter, accused no.2 independently comes and merely states that accused no.1 has asked him to collect the amount. But, there is no evidence to show that accused no.2 was acting at the instance of accused no.1 nor there is evidence to show that accused no.2 was aware that the amount, which he has to collect, was bribe amount. There is no evidence to show they were acting in concert to accept bribe. PW1 complainant and PW2 shadow pancha have admitted that there was no work with accused no.2 of any nature. Even PW1 complainant has admitted in cross-examination that, accused no.2 had not made any initial demand of bribe. PW1 Complainant has admitted that accused no.2 was impleaded as an accused by ACB authorities after it realized that accused no.2 was Assisstant Engineer. This witness has deposed that ACB authorities directed him to handover the bribe amount to accused no.2 instead of accused no.1 and that, it was thought that he would be made witness later on and therefore, complainant handed over tainted currency to accused no.2. Therefore, there seems to be desperate attempt by investigating machinery to implicate both the accused by hook or crook. Thus, even aspect of acceptance comes under shadow of doubt.

As regards to motive of demand of illegal gratification is concerned, learned counsel for respondents pointed out that, complainant carried grudge for issuance of show cause notice and seeking explanation. That, there is admission by none other than complainant that, he was angry and he had grudge with accused no.1. To this extent, one finds answers given in cross-examination by PW1 complainant in paragraph nos.14, 15, 16 and 25. Therefore, possibility of filing complaint due to grudge cannot be ruled out.

Consequently, from above discussed material, it is emerging that, firstly, when exact initial demand was raised, has not come on record and secondly, complainant has admitted that accused no.1 personally did not put up any demand of Rs.30,000/-. He also admitted that, there was no demand by accused no.2. PW2 Shadow pancha has admitted that, accused no.1 had not made any demand in his presence. There are crucial and vital admissions by de facto complainant in his cross-examination on the aspect of demand. There is no material to show that accused nos.1 and 2 acted in concert and there is no further material to show that, accused no.2 accepted tainted currency on behalf of accused no.1. For above reasons, sine qua non like demand and acceptance have come under shadow of doubts.

Perused the judgment under challenge. It is noticed that learned trial Court has dealt with arguments advanced by each of the sides at considerable length and has appreciated the available evidence in its entirety and then has drawn conclusion, which has summed up in paragraph 49 of the judgment. The reasons assigned and findings arrived at are in consonance with the evidence on record. There is no perversity and illegality on the part of trial Court while appreciating evidence, so as to interfere. Therefore, appeal deserves to be dismissed. Accordingly, following order is passed :

Criminal Appeal stands dismissed.