Manohar Sahadev Parab v. The State of Maharashtra

(xi) Trial Court framed charge below Exh-16. The contents of the same were read over and explained to the Appellant in vernacular language, to which he pleaded not guilty and claimed to be tried. In support of its case and to prove the guilt of Appellant, prosecution examined in all three witnesses namely (i) Mr. Suryakant Patil (PW-1), (ii) Mr. Sanjaysingh Chavan (PW-2) the SDO, Ichalkaranji, Division, Kolhapur and sanctioning Authority and; (iii) Mr. Dilip Katake (PW-3), Deputy Superintendent of Police, ACB Kolhapur and Investigating Officer.

(xii) After recording evidence, the Trial Court recorded statement of the Appellant as contemplated under Section 313 of the Code of Criminal Procedure (for short, “the Cr.P..C.”). Appellant was afforded an opportunity to explain the incriminating circumstances put forth against him. He denied all the incriminating circumstances and in addition, submitted memorandum of written arguments (Exh-62). Appellant also examined Mr. Deepak Patil (DW-1), an employee from Talathi office, Managaon in his defence. The trial Court has convicted and sentenced Appellant by the impugned Judgment and Order.

4 Mr. Joshi, learned Advocate for the Appellant submitted that before the trial began, the informant expired on 8th October, 2005 and therefore the alleged first demand of 17th February, 2003 made to him by the Appellant and its verification has not been proved by the prosecution. He submitted that, once the prior demand is not proved, the rest of the prosecution case regarding alleged subsequent demand by the Appellant will have to be construed with great caution and circumspection. That, on 30th April, 2003 i.e. the date of conducting trap/raid, no work was pending with the Appellant, as the papers of complainant were already sent to the office of the Tahasildar. That, as per the evidence of witnesses on record, independent witnesses were present in the office of the Appellant on the said date however, they have not been examined by the prosecution, which creates doubt about the prosecution case in the mind of the Court. He submitted that, tainted currency notes were found in the cupboard in the adjoining room which is accessible to others also. That, Appellant was not arrested immediately on the same day of trap i.e. on 30th April, 2003 but later on 2nd May, 2002. It show that, the investigating agency was not certain about the role of the Appellant in the present crime. He submitted that, the sole testimony of panch witness Mr. Suryakant Patil (PW-1)as to the demand allegedly made by the Appellant on 29th April, 2003 may not be relied upon. In support of his argument, Mr. Joshi for the Appellant relied on the following decisionsi) Avinash Sitaram Garware Vs. State of Maharashtra, reported in 2008 ALL MR (Cri) 15; ii) Suraj Mal Vs. State (Delhi Administration) reported in iii) Mr. Khushalchand Yashwant Gaikwad Vs. The State of Maharashtra, reported in 2018 SCC OnLine Bom 1073; iv) Anil Krishnarao Apashingkar Vs. The State of Maharashtra, reported in 2021 ALL MR (Cri) 2273; v) Dudh Nath Pandey Vs. State of Uttar Pradesh, reported in vi) Bismilakha s/o Salarkha Pathan Vs. State of Maharashtra, reported in 2004 ALL MR (Cri) 1341; vii) Suresh s/o. Purushottam Ashtankar Vs. The State of Maharashtra & Anr., reported in 2015 ALL MR (Cri) 4243; viii) Namdeo s/o. Bakaramji Pagare Vs. The State of Maharashtra, reported in 2018 ALL MR (Cri) 3294 and, ix) Jivandhar s/o. Govindrao Katke Vs. The State of Maharashtra, reported in 2015 ALL MR (Cri) 3589. He therefore prayed that, the impugned Judgment be quashed and set aside by allowing present Appeal.

5 Per contra, learned APP submitted that, the demand by Appellant on 29th April, 2003 has been proved by the prosecution through the evidence of Mr. Suryakant Patil (PW-1) an individual panch witness. He submitted that, the prosecution has successfully proved demand and acceptance by the Appellant. That, Mr. Deepak Patil (DW-1) examined by the Appellant in support of his defence is an interested witness. The said witness has admitted in his cross-examination that, the Appellant used to pay him Rs.50/- when no one turns to his office for doing copying work. He submitted that, the said witness was obliged by the Appellant and in return, he deposed in favour of the Appellant. He submitted that, the prosecution has proved its case beyond reasonable doubt and the Appeal may be dismissed.

6 At the outset, it is to be noted here that, Mr. Nitin Magadum (complainant) lodged his complaint (Exh-40) on 29th April, 2003 and in furtherance thereof a trap was laid on 30th April, 2003. Mr. Nitin Magadum passed away on 8th October, 2005. The trial of the present case began on 8th August, 2007 i.e. the charge against the Appellant was framed below Exh- 16 on the said date. As Mr. Nitin Magadum passed away prior to beginning of the trial, his evidence could not be recorded by the prosecution. The prosecution therefore could not establish first demand dated 17th February, 2003 made by the Appellant with the complainant. In view of the ratio laid down by this Court in the Case of Avinash Sitaram Garware (Supra), once the prior demand is not proved, rest of the prosecution case regarding money allegedly demanded by the Appellant will have to be read with great caution and circumspection.

7 In the present case, in the absence of original complainant who passed away on 8th October, 2005 i.e. prior to beginning of the present trial the testimony of independent witness Mr. Suryakant Patil (PW-1) assumes great importance.

8 Mr. Suryakant Patil (PW-1) in his testimony has deposed that, on 29th April, 2003 he was serving as a Junior Clerk in the office of Zilla Parishad Primary Education Department, Kolhapur. On that day, at about

4.00 p.m. he and other staff member of his office namely Mr. Tatyaso B. Nawale were directed by his superior officer to go to the office of Anti Corruption Bureau, Kolhapur at about 5.00 p.m.. A letter issued by Chief Executive Officer, Zilla Parishad Kolhapur written to Education Officer, Zilla Parishad Kolhapur was accordingly issued. As per the said directions, he along with Mr. Tatyaso B. Nawale went to the office of Anti Corruption Bureau, Kolhapur at about 5.00 p.m. and met PSI Mr. Bhosale. The said officer took them to Police Inspector Mr. Nikam. Mr. Nikam directed them to come again in Anti Corruption Bureau office on 30th April, 2003 at about

9.00 a.m. He along with Mr. Nawale went to the ACB Office, Kolhapur on 30th April, 2003 at about 9.00 a.m. P.I. Mr. Nikam asked them about their willingness to act as punch in a trap case. Both of them expressed their willingness to do so. One person was sitting in the office of Mr. Nikam. P.I. Mr. Nikam, asked them to hear the grievance of the said person. The said person told his name as Mr. Nitin N. Magadum (complainant), resident of Managaon. The complainant narrated his grievance to PW-1 and other panch witness and the illegal demand of amount by the Appellant for effecting mutation of names in the revenue record. PW-1 has deposed that, Mr. Nitin N. Magadum (complainant) further disclosed to them that, on 29th April, 2003, he had been to the office of Talathi of village Managaon and made inquiry to the Appellant about his work. The Appellant had questioned to him, whether the complainant had brought Rs.4,000/- as was directed by him. After bargaining, the amount was settled to Rs.2,000/-. Complainant had asked the Appellant to pay Rs.1,000/- before his work is done and Rs.1,000/- after his work is done. Appellant had asked complainant to come with the said amount on the next day in the noon and remaining amount be paid after 4 to 5 days. Mr. Nitin

9 Learned Advocate for the Appellant has cross examined PW-1, Mr. Patil at considerable length. In his cross-examination, vital admissions detrimental to the interest of Appellant have been brought on record by the defence. PW-1 in his cross-examination has admitted that, after their entry in Talathi office, the complainant by saluting Appellant stated that, “ueLdkj rykBh lkgsc” The Appellant looked at the complainant and said to him as for what purpose he had come? The complainant replied that, he had come to inquire for his work. Appellant asked complainant, ‘whether he had come with arrangement as directed by him yesterday’. Complainant replied that, he had come with by making arrangement of Rs.1,000/-. Complainant told Appellant whether he should hand over to him, but he did not touch his pocket. Complainant also did not touch currency notes. Appellant replied that, he should keep the said amount with him. Thereafter, the Appellant started telling complainant about his work. The said conversation was going on between them for about 5-10 minutes. Thereafter, Appellant and complainant went in another room. Both of them proceeded to said room by the side of woman staff member. At that time, PW-1 and complainant were standing in front of Appellant. The said room in Talathi office was at the distance of about 20 feet from the table of Appellant. Appellant and complainant entered the room and PW-1 followed them. While proceeding to the said room, there were no talks between Appellant and complainant. When Appellant asked PW-1 to go outside the room, he moved 4 feet from the entry of the said room. The suggestion that, nothing was visible what is happening inside from the outside, has been specifically denied by PW-1. He has further denied that, the conversation going on inside the room could not be heard from outside. He has denied that, he did not know what transpired in the room when he was standing outside.

10 Perusal of entire cross-examination indicates that, nothing beneficial to the Appellant has been brought on record by the defence as noted earlier. In fact, vital admissions which are detrimental to the interest of the Appellant as noted above have been brought on record. The material deposition of PW-1 in examination-in-chief, has not been shaken at all by the defence in his elaborate cross-examination.

11 Mr. Dilip Katake (PW-3) is the Investigating Officer of the present crime. He in his examination-in-chief has in detail narrated all the facts from the date of lodgment of the complaint till completion of raid. In his cross-examination, nothing beneficial to the Appellant, which will shake his credibility and of PW-1 has been brought on record. In the cross-examination of Mr. Katake (PW-3), further vital admissions detrimental to the interest of Appellant have been brought on record. PW-3 has denied that, the room (where currency notes were found) was also part of Grampanchayat office. He has denied that, the Revenue Department has nothing to do with possession of the said room. That, the place where the Appellant was sitting was adjoining to the western wall. He has denied that, the cupboard in that room was belonging to Police Patil, it was not in use and was containing the papers belonging to the Police Patil.

12 Mr. Sanjaysingh Chavan (PW-2) was Sub-Divisional Officer then serving at Ichalkaranji Division, Kolhapur and has accorded sanction to prosecute Appellant in the present crime. His evidence is formal in nature. Perusal of his evidence, indicate that after proper application of mind and reaching to the conclusion, he has accorded sanction to prosecute Appellant in the present crime.

13 Appellant has examined Mr. Deepak Patil (DW-1) as his defence witness. In his examination-in-chief, he has deposed that, he was doing work in the Talathi office to help the Appellant since when Mr. Salim Mujawar was Talathi. He used to assist the persons who applied for 7/12 extracts and such persons used to pay him Rs.[5] to 10 per copy. That, on the date of incident at about 12.00 to 12.30 p.m., 5 to 6 persons entered the office and informed that, they were employees of Anti Corruption Bureau and collected certain files from the hands of the Appellant. In his crossexamination by the learned APP, he has admitted that the Appellant used to pay him Rs.50/- when no one visit to his office for copying. The concerned person used to pay amount firstly to the Appellant and the Appellant then used to pay amount to him. That, in the absence of Appellant, he used to receive applications and prepare copies of the relevant revenue record. He has admitted that, there was only one door for entering into Talathi office. That, he did not see any paper to the effect that the room was belonging to Police Patil.

14 Perusal of evidence of aforestated witnesses, clearly indicates that, the room from where the tainted amount was recovered was having entry from the office of the Appellant and apart from Appellant, nobody else was using it. PW-1 has categorically deposed that, the Appellant took complainant to the adjoining room and asked him to keep the amount in the wooden cupboard which is lying therein. He has also admitted that, he could see what happened inside the said room. He therefore told the said fact to the raiding party of keeping the said amount in the cupboard under the directions of the Appellant. This witness has proved the fact of demand by the Appellant. He has deposed that, the Appellant told Mr. Nitin Magadum, whether he has come after making required arrangement for getting his work down and thereupon Mr. Nitin Magadum asked the Appellant, whether he should pay the amount to him. This clearly indicates that, the prosecution has proved the act of demand by the Appellant from Mr. Nitin Magadum. The said amount was subsequently found in the cupboard, which was pointed out by PW-1 in presence of Mr. Nitin Magadum and Appellant. This witness has thus clearly proved the demand and acceptance of bribe amount by the Appellant. PW-1 Suryakant Patil is an independent witness. He was working with the Zilla Parishad Education Department, Kolhapur. He had no grudge, grievance, animosity or enmity to grind against Appellant to falsely implicate him in a crime. The evidence of PW-1 is self eloquent. Prosecution has thus proved that, the Appellant demanded the bribe amount from Mr. Nitin Magadum and had directed him to keep it in wooden cupboard in the adjoining room which was subsequently recovered by the Investigating Agency after it was pointed out by PW-1.

15 As noted earlier, in the present case the complainant had passed away on the date of commencement of trial and therefore his evidence could not be recorded. Assuming for the sake of argument, if the complainant would have been alive and did not support prosecution case i.e. turned hostile, then in that case the evidence of PW-1 who is an independent witness, for demand and acceptance of bribe amount, had to be taken into consideration with reasonable corroboration in that behalf. According to this Court, the testimony of PW-1 is fully trustworthy and reliable. In the absence of complainant, the prosecution has successfully proved that the Appellant demanded illegal gratification from the complainant and accepted it in presence of PW-1. There is no dispute about the fact that, the Appellant was a public servant working as Talathi at village Managaon on the date of commission of offence i.e. 30th April, 2003. It is thus established by the prosecution that, the Appellant being a public servant, on 30th April, 2003 demanded and accepted amount of Rs.1,000/- from the complainant as gratification other than legal remuneration for effecting mutation entries of the names of his sons in the revenue record and has committed an offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.

16 As far as sanction accorded by Sanjaysingh Chavan (PW-2) to prosecute the Appellant is concerned, it clearly appears to me that, the said witness after taking into consideration the material placed before it by the investigating agency reached to the satisfaction and accorded sanction to prosecute Appellant. He has proved sanction Order dated 4th June 2003 at Exh-33.

17 Perusal of entire evidence on record, leads to draw a safe conclusion that the prosecution has proved its case against the Appellant beyond reasonable doubt. In view thereof, the decisions relied upon by the learned Advocate for the Appellant are of no help to him as the facts in the said decisions differ from the facts of the case in hand.

18 Trial Court has not committed any error either in law or on facts while passing impugned Order dated 25th February, 2009. There are no merits in the Appeal. Appeal is accordingly dismissed.

19 Appellant is directed to surrender before the trial Court for undergoing balance of sentence within a period of eight weeks from the date of uploading of present Judgment on the official website of Bombay High Court. (A.S. GADKARI, J.)

SHARNAPPA MASHALKAR