The State of Maharashtra v. Baburao Tayappa Mhetre

(ii) Respondent No.1 came to the office at about 1.00 to 1.30

(iii) Complainant met accused No.1 and saluted him. There were 3-4 persons present and accused No.1 asked the complainant to wait outside.

(iv) Both of them waited under the tree and after one and half hour again met Accused No.1.

(v) Accused No.1 asked the complainant, whether he has brought the money. The complainant replied in affirmative.

(vi) Accused No.2 was present in office and Accused No.1

(vii) Accused No.2 called the complainant outside the office and at that juncture, the complainant gave amount of Rs.3,000/- and it was accepted by Respondent No.2accused.

(viii) At that juncture, the other raiding party members came and

Respondent No.2-accused was found with tainted currency notes of Rs.3,000/- and then post trap formalities were performed. Findings given by the Trial Court

8. On this background it will be material to consider the findings given by the Special Judge. About the background of the incident PW 1 is the relevant witness. He has produced electric bill and photographs of the meter. No doubt his connection was disconnected. He has not made complaint to MSEB of defective meter (para 28). The electric bill bears date of 11th September 2003, and last date of payment was 25th September 2003. He did not deposit the bill amount till 23rd September 2003. The electric meter was inside the workshop of the complainant whereas Accused No.1 produced a copy of application made to Valsang police station on 15th September 2003. They have asked for police protection. The staff of MSEB had undertaken initiative to find out the cases of electric theft. Due to election the police force could not be provided.

9. Manish Bhavsar, brother of the complainant is serving as a constable in Anti Corruption Bureau, Solapur and then in the year 2003, in local Crime Branch. His another brother Milind is also working in police department.

10. The Respondents placed reliance on above circumstances to raise doubt about the theory of demand. The trial Court observed that: “the material brought on record shows that there was strong motive for complainant Mahesh, son of Ashok Bhavsar to involve the accused in Anti Corruption case”. These are factual findings. Facts brought on record needs to be scrutinized by applying the test of prudent man and within the scope of interference by the Appellate Court.

11. This observation is supported on behalf of Respondents. It is contended that Respondent No.1 as part of his duty was going to file a case of theft against the complainant and hence in order to dissuade him, this false complaint is lodged. There are two aspects. One is Respondent No.1 by giving a threat of filing a theft case, can certainly ask for money. Secondly, for dissuading the Respondent No.1 from filing prosecution for violation of Electricity Act (then prevailing), complainant ought to have filed false complaint. This Court feels that complaint to ACB was not filed purposefully to dissuade Respondent No.1 from filing a case of theft against the complainant but in fact complaint is filed with ACB for the incident which has happened in reality. No doubt one of the brother of the complainant has worked in ACB and another brother in police department. But these facts by itself are not enough to draw an inference about motive as done by the trial Court. Except their relationship with the complainant, there is nothing on record to suggest that the complainant (at any time earlier to approaching ACB) has consulted them or taken them to the office of ACB. There has to be some material either in cross examination of the complainant or otherwise by way of suggestion to infer that really it has happened. You just cannot draw an inference just because two facts exist. You can draw an inference only when there is some connection in between these facts. This theory is based on the theory of ‘may presume’ as laid down in section 114 of the Evidence Act. So the trial court was wrong in drawing an inference about false accusation by the complainant. This court disagrees to it. Events that took place at the time of trap

12. On conjoint reading of evidence of complainant PW 1 and panch witness PW 3, we may find the following facts:- (a) Both visited the office of MSEB at 11.50 am, but at that time accused – Mhetre has not come. The complainant made enquiry and he was told that Respondent No.1 will come in the office at 1.30 pm. Both of them waited under the tree and entered the office at about 2.00 pm. (b) Mr.Bhavsar told panch that “he is Respondent No.1”. Bhavsar saluted him by saying “Namaskar”. There were 3 to 4 persons and Respondent No.1 asked the Bhavsar to wait.

(c) At 3.30 pm both of them entered the office. There was one person on the left side of Respondent No.1.

13. About he facts deposed about the events happened thereafter, there are certain variances in their testimonies as noticed by the trial Court and according to learned APP, they are minor variances. They are as follows:- Complainant said “I was about to talk with Respondent No.1, he asked me whether I had brought money and I answered in the affirmative”. (para 12) Whereas the panch witness deposed “Bhavsar requested accused – Mhetre to start electricity. Bhavsar said that “He was in trouble due to electricity. On this accused No.1- Mhetre asked to Bhavsar, whether he had brought amount as per direction. Complainant Bhavsar answered in the affirmative”. On above facts the trial Court observed “If really there was some talk between accused Mhetre and complainant, complainant Mahesh Bhavsar has no difficulty to state the conversation before the Court on oath (para 39)” The trial Court indirectly expressed doubt about conduct of the complainant in not stating the conversation before the Court as deposed by the panch witness. I do not agree to this observation. What the complaiant has said “He was about to talk with Respondent No.1”. Whereas the panch witness has said about the initial talks in between Bhavsar and Respondent No.1. At the most it can be said to be a minor variance in between these two witnesses. In fact, there is consistency in between both of them about an enquiry made by Respondent No.1 about bringing the amount. On the point of demand As said above both the witnesses have deposed about the demand made by Mr. Mehetre. Complainant said “I was about to talk with Respondent No.1, he asked me whether I had brought money and I answered in the affirmative”. (para 12) Whereas the panch witness deposed “Bhavsar requested accused – Mhetre to start electricity. Bhavsar said that “He was in trouble due to electricity. On this accused No.1- Mhetre asked to Bhavsar, whether he had brought amount as per direction. Complainant Bhavsar answered in the affirmative”. Furthermore respondent No.1 told complainant to give amount to Respondent No.2, is the case of prosecution. About this fact, Complainant Bhavsar said: “Accused No.2 was at office of accused No.1. Accused Mhetre directed complainant to give amount to Shaikh (para 12)”. On this point PW 3 panch “Accused – Mhetre said to give it to accused Shaikh. Accused Shaikh said to come outside.” (para 7). About above facts, there is consistency in between both of them. But the trial court has overlooked this fact. Rather than that, trial court has emphasized on one inconsistency in between these two witnesses as quoted above. As observed above, it does not touches aspect which is the requirement of the Section charged. It deals with the preliminary talks.

14. There is one more inconsistency noticed by the trial court. It is in respect of acquitance of complainant with Mr. Shaikh. About acquaintance with Respondent No.2 – Shaikh After waiting outside near tree, again at about 3.30 pm both of them entered the office. Further, panch has said “One person was on left side of Mhetre. Bhavsar saluted him by saying Namaskar Shaikh Saheb.” (para 7) This fact stated by panch witness was put to complainant during cross examination. He replied:-- “I have no acquaintance with accused No.2. I was not knowing him prior to trap”. (para 19) In respect of above facts the trial Court observed that: “Complainant Mahesh Bhavsar was not knowing accused No.2 Elahee Shaikh. During cross examination, Complainant-Bhavsar stated that he had no acquaintance with accused No.2. He was not knowing him prior to raid. If it is so then version of panch witness Vanzari that complainant had greeted accused Shaikh by saying Namaskar Shaikh saheb cannot be accepted. This fact find support from the version of Jaykumar Vanzari”. (para 40) I have read entire evidence of PW 3 Vanzari, panch witness and PW 1 – Bhavsar. There are two aspects. a. Evidence on the point of acquaintance of the Complainant with Mr.Shaikh and b. giving instructions by Mhetre to pay the amount to Mr. Shaikh. Trial court is partially right. Complainant Bhavsar was not knowing Mr. Shaikh. It is but natural that panch witness may also not knowing him. Hence question of offering namaskar to Mr. Shaikh by the complainant will not arise. To that extent the panch witness is not correct. That portion needs to be excluded from his testimony. But not entire evidence as done by the trial court. Other gestures offered by the Complainant.

15. When the evidence of complainant is perused, we may find that he has said about saluting Mehetre (para no.12). Whereas panch witness has also said about complainant saluting Mehetre by saying namaskar (para no.7). On this aspect there is consistency. But trial court has not considered this while appreciating their evidence. Finding out visiting card

16. There is one more area where the trial Court criticized. After offering money when Respondent No.2 was searched, apart from tainted notes, he was found with visiting card of complainant. Trial Court observed complainant could not give satisfactory explanation (para 44). It will be relevant to see the evidence of relevant witness: PW 1 – Complainant during cross examination said: “I have maintained visiting cards of my factory. On 24/9/2003 visiting card was not with me. It is true to say that when panch No.2 too counted amount from pocket of accused No.2, visiting card of his workshop was taken out” [para 19] Suggestion was put to him:- “It is not correct to say that visiting card was given to accused No.2 to show that payment was made by myself” (para no.19). PW 3 – Panch witness During cross examination suggestion was given to him on behalf of the accused and he admits it:- “It is true that Bhavsar gave visiting card to accused No.2 and said card was seized from accused No.2”(last paragraph). Further he says “It is correct to say that visiting card was given to accused Shaikh so that he should ascertain by whom the amount was paid”. It is very well true that when complainant has catagorically said that he has not brought visiting card on that day, from where Mr. Shaikh will get that visiting card. Up till this, accused could have stopped their cross examination. But cross examiner suggested both these witnesses that visiting card was given to ascertain by whom the amount is paid. In fact there was absolutely no necessity. In fact by doing that, the accused had given an opportunity to the prosectution to gain advantage. Trial Court has not considered this aspect and jumped to the conclusion that there is no explanation. It is factually incorrect. Acceptance of amount

17. Respondent No.2 was found with the amount. But whether he accepted on the directions of Respondent No.1, trial Court observed:- “But while adducing evidence on oath, panch No.2 does not state to raiding party that accused Shaikh had accepted amount of bribe on the direction of accused Mhetre. He simply told to raiding party that accused Shaikh had kept the amount of bribe in the pocket of his pant.” Learned APP invited my attention to facts stated by PW 3 para 8 and unnumbered para from para No.7 (above para 8). Panch said “On this accused No.1 – Mhetre asked to Bhausar whether he had brought amount as per direction. Complainant Bhausar answered in affirmative. Accused Mhetre said to give it to accused Shaikh”. It is true that the trial Court has totally overlooked this portion. What is there in the evidence, one cannot overlook and come to any conclusion. (In para 8) Panch witness said: “Raiding paty rushed on spot. I told to raiding party that accused Shaikh had kept amount of bribe in the pocket of pant.” Trial Court picked up this portion and arrived at conclusion and not considered about conversation in between PW 1 and Respondent No.1. Learned Advocate for Respondents laid emphasis on one answer given by panch witness. He said:- “In my presence accused Mhetre did not demand money for repair of electric meter”. This is about repair of meter and not towards illegal gratification. It also has no relevance.

18. If above circumstances are considered, I do not agree with the findings and observations of the trial Court except one (about panch said that complainant offered namaskar Shaikh saheb ). Rest of the observations were made without considering the evidence on the relevant fact or they deal with the aspects which are minor in nature and which may occur in usual course. Now it is important to see on the basis of evidence whether demand and acceptance is proved and by whom.

19. On this background if the evidence on the point of demand and acceptance is considered, I find it trustworthy and reliable against both the Respondents.

20. There was oral complaint made by the complainant about excessive billing. Not only lineman Shinde and Junior Engineer Mhetre - Respondent No.1 also visited the workshop, they found some wrong in the connection. They have taken an action of disconnection. Though police help was sought they could not get it due to election. This was part of their official duty.

21. However when the complainant met accused No.1 after disconnection, accused No.1 told complainant about possibility of action. At that point, he demanded initially Rs.5,000/- which was settled at Rs.3,000/-, why the complainant should not be believed. On this aspect, his version is as per complaint. There are no improvement and variance. I believe his testimony. This demand is for not initiating prosecution against the complainant. It is not a part of his duty. It falls within the purview of section 7 of the Prevention of Corruption Act.

22. I too find the evidence of PW 1 and PW 3 trustworthy. Only on one aspect there was variance. PW 1 complainant “only saluted accused No.1” and has not offered Namaskar to Shaikh accused No.2. Reason is obvious. He was not knowing Mr.Shaikh. But PW 3 said “Bhavsar PW 1 said Namaskar to accused No.1”. (para 7) and he further said “Bhavsar saluted Shaikh by saying Namaskar Shaikh Saheb”. (para 7). This second part is variance with evidence of PW 1. But if this part is excluded, rest of the portion is consistent with PW[1]. Ultimately, it is the job of the Court to scan the evidence and remove that part which can be segregated and consider the remaining. Instead of this exercise, trial Court totally discarded the evidence.

23. There is consistency in between PW 1, PW 3 and PW 4, on the point of formalities at the office prior to trap and at the time of trap. When accused No.2 was examined by Panch No.2 Mr.Kulkarni anthracene powder was found on right hand of Accused No.2. The currency notes also tallied. Sanction

24. P.W. No. 2 is sanctioning authority for Mr. Mehtre. Trial court has not noticed any illegality or incorrectness in the sanction order. Relevant findings find place in para no. 51 to 54. Mr. Shaikh is charged for commission of an offence under section 12 of Prevention of Corruption Act. As per section 19 of the said Act, there is no requirement to obtain sanction if there is prosecution for an offence under section 12 of said Act. However the sanctioning authority has mentioned section 12 in the draft sanction. Trial court observed that it cannot be branded as invalid (para no 53). I agree with those observations. There are two aspects. Sanction to prosecute for an offence of section 12 is not required. And if private person is to be prosecuted for an offence under that section, sanction is not at all required. Giving reference of said offence in the sanction order does not make any difference. This is not the sanction to prosecute Mr. Shaikh. If said could be true, it can be said that there is non application of mind on the part of sanctioning authority. Liability of accused no. 1.

25. Accused No.2 accepted the tainted notes as instructed by accused No.1 He is a private person. He cannot be prosecuted under section 7 and section 13 of the Prevention of Corruption Act. He can be prosecuted under section 12 of the Prevention of Corruption Act. A public servant who has not accepted illegal gratification himself but some one has accepted it on his instructions, such public servant cannot escape from the clutches of law. The word ‘himself’ appearing in section 13(1)(d)(i) has been interpreted by the Hon’ble Supreme Court in case of Shiv Nandan Dixit Vs. State of UP reported in (2003) 12 SCC 636. This was under the provisions of 1947 Act. Therein the word “for himself” appearing in section 5(1)(d) of PC Act was interpreted. Those provisions are similar to the provisions of section 13(1)(d) of 1988 Act. In that case there was an order passed by ITO Officer to return papers. While implementing that order, Clerk- Accused No.1 demanded bribe and it was accepted by Accused No.2 also a public servant. Even though Accused No.2 accepted bribe it was held that Accused no.1 has obtained it for himself.

26. There is difference in between wordings of Section 7 and Section 13(1)(d) of the provisions of Prevention of Corruption Act. For an act to fall under Section 13(1)(d), it is not the requirement that the public servant is entrusted particular duty and whether he accept or attempts to obtain. What is sufficient is valuable thing or pecuniary advantage is obtained and by using corrupt or illegal means. Whereas for an offence under section 7 you need to satisfy that the wrong doer is entrusted with some duty or there was some work pending or some action is likely to be intiated by the office. In this case the objectionable acts of respondent/accused no.1 falls within the purview of both the sections. Liability of Accused No.2

27. He was prosecuted for the offence punishable under section 12 of the PC Act. It reads thus: “Punishment for abetment of offences defined in section 7 or 11:- Whoever abets any offence punishable under section 7 or section 11, whether or not that offence is committed in consequence of that abetment, shall be punishable with the imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.” So abetting commission of offence under the provisions of PC Act itself is an offence. The expression ‘abetment’ is not defined under PC Act. So we have to consider its meaning given under section 107 of IPC. If consists of: (a) instigation (b) conspiring

(c) aiding

There is no evidence of entering into conspiracy or instigation. The act of accepting illegal gratification will fall within the plain meaning of ‘aiding’. It means to help or assist someone.

28. It is important to see the circumstances. As per PW 1:- “We went to office of M.S.E.B. Accused Mhetre was yet to come. I myself and Panch No.1 sat under the tree for about 1 hour. Accused Mhetre came to office at about 1.00 to 1.30 pm. I went to accused and saluted him. Panch No.1 was with me. 3 to 4 persons were sitting in front of accused Mhetre. Accused Mhetre directed me to wait. Again I myself and Panch No.1 came out and sat under tree. After ½ hour we went to office. I was about to talk with accused Mhetre. He asked me whether I had brought money. I answered in affirmative. Accused No.2 was at office of accused No.1. Accused Mhetre directed me to give amount to accused Shaikh. Accused Shaikh called me outside. I gave amount of Rs.3000/- to accused Shaikh. I paid amount to him by my right hand. Accused Shaikh accepted the amount, and kept in pocket of his pant. I gave signal to raiding party. Panch No.2 and raiding party came to spot.” (para no.12) The evidence of PW 3 is more or less similar. (para 7 page 88) So it indicates that when there was interaction in between PW 1 and accused No.1, accused No.2 was present there only. It means, he was aware of the demand. Then he went out of office and accepted tainted currency notes. It is not that when demand was made, he was outside the office. There is no cross examination on this aspect. So he cannot claim that he was ignorant of the nature of the amount as illegal gratification.

29. In a statement under section 313 of the Code of Criminal Procedure he has denied the allegations that he accepted the money on the instructions of respondent/accused no.1. He has clarified that “he was present in the courtyard of M.S.E.B. office on relevant date and complainant handed over some money and visiting card and asked him to pay to the respondent/accused no.1”. But this explanation was not put to the witnesses during cross examination. So it can be considered as afterthought.

30. For the above reasons, it can safely be said that Accused No.2 has abetted accused no.1 in committing an offence under section 7 and section 13 of the Prevention of Corruption Act. He is liable to be dealt with as per the provisions of Section 12. Sentence

31. After pronouncing the findings, I have heard learned APP and learned Advocate for Respondent Nos.[1] and 2.

32. Learned APP submitted that maximum punishment be imposed whereas learned Advocate for Respondent Nos.[1] and 2 prayed for leniency.

33. Accused No.1 has committed an offence under section 7 as well as under section 13(1)(d) of the Prevention of Corruption Act. Section 7 is punishable with minimum imprisonment for 6 months and maximum imprisonment for 5 years and also to fine (prevalent at that time). Whereas offence under section 13(1)(d)(i) is punishable under Section 13(2)(d)(i) of the PC Act to one year to seven years imprisonment for and fine (prevalent at that time). Whereas offence under Section 12 is punishable to 6 months to five years imprisonment for and fine (prevalent at that time).Considering the period already elapsed and respective age of the respondents, I am inclined to impose minimum punishment. Hence order:-- O R D E R

(i) Appeal is allowed.

(ii) The impugned judgment and order passed by the Special

(iii) Respondent/accused No.1-Baburao Tayappa Mhetre is convicted for the offences punishable under section 7 and 13(2) of the Prevention of Corruption Act.

(iv) For the offence under section 7 of the Prevention of

Corruption Act, Respondent No.1 is sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs. 5,000/- (Rupees Five Thousand only) and to undergo further imprisonment for 15 days in case of default to pay that fine amount.

(v) For the offence under section 13(2) of the Prevention of

Corruption Act, Respondent No.1 is sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 10,000/- (Rupees Ten Thousand only) and to undergo further imprisonment for 30 days in case of default to pay that fine amount.

(vi) Respondent No.1 shall undergo the substantive sentence of imprisonment concurrently.

(vii) Respondent No.1 is granted time to deposit amount of fine within 2 months from today.

(viii) Respondent/accused No.2-Elahee Badshah Shaikh is convicted for the offence punishable under section 12 of the Prevention of Corruption Act

(ix) For this offence, Respondent No.2 is sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs. 5,000/- (Rupees Five Thousand only) and to undergo further imprisonment for 15 days in case of default to pay that fine amount.

(x) Respondent No.2 is granted time to deposit amount of fine within 2 months from today. (S. M. MODAK, J.)