Revu Wala Rathod Vs. State of Maharashtra - Court Judgment

SooperKanoon Citationsooperkanoon.com/1104960
CourtMumbai Aurangabad High Court
Decided OnFeb-22-2013
Case NumberCriminal Appeal No. 127 of 2004
JudgeM.T. JOSHI
AppellantRevu Wala Rathod
RespondentState of Maharashtra
Excerpt:
prevention of corruption act, 1988 - section 7, 13(1)(d) r/w section 13(2) -the present appellant is convicted by the special judge at ambajogai in special case no. 6 of 2001 for the offences punishable under section 7, 13(1)(d) r/w. section 13(2) of the prevention of corruption act, 1988 (for short "the act"). he is sentenced to suffer r.i. for two years and to pay fine of rs.5000/- for the offence punishable under section 7 of the act and further to suffer r.i. for three years and to pay fine of rs. 5000/- for the offence punishable under section 13(1)(d) r/w. section 13(2) of the act. aggrieved by the said order and judgment dated 9.2.2004, the present appeal is preferred. 2. the facts in brief are as under:. that appellant, during the relevant period, was police head constable attached to shirsala police station, dist. beed. one person named as prabhu chavan has died in unnatural circumstances after taking liquor. in that connection, one accidental death case no.3 of 2001 was registered with shirsala police station. thereafter, certain applications were filed by another person i.e. sitaram rathod that the deceased was severely beaten by babu munna rathod. said babu is the real brother of the present complainant-bhagwan. 3. the present appellant, being the head constable had recorded certain statements of certain witnesses and carried certain investigation. in that situation, on 29.3.2001, while complainant bhagwan was standing at certain square at shirsala, the present appellant informed him that the offence of murder will have to be registered against the brother of the complainant. when the complainant questioned as to how the offence can be registered since all the witnesses in his presence has told the appellant that the death of prabhu was merely an accidental death. ultimately, the complainant requested the appellant not to register any crime. during the conversation, the appellant told the complainant that the complainant would be required to pay rs.10,000/- to the appellant, for closure of the case. for the purpose of closure, he will have to obtain the signatures of his superior official and without taking any money, the superior would not sign the same. when the complainant showed his readiness to meet the superior officer, the appellant told that in that case, the superior officer may increase the demand to rs.25,000/-. ultimately, the appellant became ready to pay an amount of rs.10,000/-. he told the appellant that he would pay an amount of rs.2000/-, as advance on 1.4.2001 and rest of the amount of rs.8000/- would be arranged by obtaining loan and would be paid by 5.4.2001. it was agreed that first of the installment of rs.2000/- would be paid in a hotel in the said square between 10.00 am. to 2.00 in the noon. since the complainant was not ready to pay the bribe, he went to the anti corruption bureau and filed his complaint on 31.3.2001. 4. p.w. 6 deputy superintendent of police mahendra bhokare has conducted the investigation in the complaint. he arranged for two necessary trap witnesses by securing them from the principal of i.t.i. beed. out of them, panch no.1 was phulchand darade while panch no.2 was balaprasad vaishnav. the decoy money was collected by the complainant and the trap was laid on 1.4.2001. 5. the complainant met the appellant in the police station. at that time, however, the appellant told that his superior officer was not ready to accept the amount in installment and therefore he refused to accept the amount of rs.2000/-. as such, the trap failed. the complainant, thereafter told the appellant that he would arrange for rs.10,000/- within 78 days. thereafter, on 7.4.2001 the complainant again met the appellant and told that he could manage only rs.5000/- by that time. the appellant agreed to accept the said amount on 11.4.2001 within the premises of shirsala police station. he further instructed that on that day if the appellant is not found in the said premises, then the complainant should come to the premises of court at parali vaijnath to pay the amount. in the circumstances, again a trap was laid on 11.4.2001. when the complainant and panch no.2 went to meet the appellant in the police station, at that time, brother of the complainant i.e. babu told the complainant that the appellant had left the police station and told him that he should come to court at parali vaijnath. therefore, again the trap was laid in the premises of parali vaijnath court. after carrying his work, the appellant came out of the court. thereafter, the appellant alongwith the complainant, panch no.2 and babu went in a hotel near court premises. rest of the members and the raiding party took their positions outside the hotel. at that time, the appellant again asked as to whether the amount was brought and thereafter, when the complainant answered in the affirmative, the appellant asked the complainant to give the amount to him. thereupon, the complainant handed over the decoy money, which was smeared with anthracene powder to the appellant. the appellant took the amount in his left hand and kept the cash by folding the hand. thereupon, the complainant gave the signal, upon which, the other members of the raiding party rushed to the hotel. thereafter, the exercise of examination under ultra violet light of the hands of the complainant and appellant etc. was carried. during the examination in ultra violet light, the left hand of the appellant was found smeared with anthracene powder. necessary panchanama was recorded. seizure of the necessary clothes, currency note was carried. the appellant was arrested. the record of the accidental death case number 3 of 2001 was also collected. the sanctioning authority ultimately granted sanction to prosecute the appellant and thereafter the chargesheet came to be filed. 6. upon framing of the charge, in all six witnesses were examined by the prosecution. the defence of the appellant in short is as under:. that he was making enquiry in the accidental death case of prabhu as well as in the complaint filed by sitaram rathod. he had recorded the statements of the concerned parties as well recorded the panchanama. thereafter, the statements of those witnesses were recorded in presence of police inspector ranjankar. the witnesses as well as the complainant sitaram told that there was settlement between the parties. in the situation, the complainant as well as his brother has met the police inspector atleast for 4-5 times. the appellant has told the complainant and his brother that since the enquiry was over, they need not come to the police station. however, they insisted that the matter should be closed and for that purpose, the appellant should tell the police inspector. they used to tell the appellant that in view of the settlement, they would be required to pay the money to the widow of the deceased and in the circumstances, unless the matter is closed, the money would not be paid. however, the widow used to threaten them. the appellant used to tell them that unless report from the chemical analyzer is reached, the file cannot be closed. the complainant and his brother, however, suspected that the appellant is delaying the matter and therefore, he is falsely implicated in the false complaint. in fact, at any time, no demand of money was made. on the day of the alleged second trap, the complainant and his brother babu met him in the premises of parali vaijanath court. at that time, they requested the appellant to take tea in the hotel. in the hotel, during talk, the complainant forwarded the tainted money towards the appellant. the appellant, however, moved back the said cash to the complainant, by saying that no money is required for closure of the case. at that moment only, the deputy superintendent of police mr. bhokare caught the hand of the appellant, while the money was on the table itself. deputy superintendent of police mr. bhokare asked the appellant to lift the tainted money and as such he is falsely implicated in a false case. 7. before the learned special judge, besides the complainant, both of the panch witnesses, the investigating officer and p.w. 3 superintendent of police mr. fatesing patil were examined. 8. learned special judge, upon hearing both the sides, came to the conclusion that the prosecution has proved the case beyond reasonable doubt. it was further found that sanction is validly granted in the case, to prosecute the appellant and in the circumstances, the conviction and sentence, as detailed supra came to be recorded. 9. learned counsel for the appellant mr. waramaa submitted before me that the case papers of the accidental death case seized in the present crime, show that none of the witnesses had any grievance against the brother of the complainant and therefore there would have been no occasion for the appellant to make any demand of money. further, the evidence on record would show that the appellant, being a head constable was not empowered to close the case. the evidence of the said witnesses coupled with the admissions given by the complainant in the cross-examination would show that the complainant has merely suspected that the appellant would commit certain mischief regarding the accidental death case. further, while it is the prosecution case itself that first of the trap failed, the complainant during his cross-examination, clearly admitted that the investigating officer i.e. p.w.6 deputy superintendent of police mr. bhokare had instructed the complainant to thrust the tainted money in the hands of the appellant. the evidence would further show that while the prosecution case is that in the hotel, at the time of accepting the tainted money, the complainant has again made demand of the illegal gratification in presence of the panch witness, the very panch witness had admitted that he was not able to hear anything. further, as per the prosecution case itself, no anthracene powder was seen on the entire palm of the appellant and in the circumstances, the theory of thrusting the money, as propounded by the defence is proved, particularly in view of the admission of the complainant that the investigating officer has told him to thrust the money in the hands of the appellant. further, the evidence on record would show that the tainted money was not in the hand of the appellant but it was found on the table. in the circumstances, mr. waramaa, submits that the learned special judge ought to have extended the benefit of doubt to the appellant. 10. as regards the validity of the sanction, it was submitted by mr. waramaa that the statement of p.w. 3 would show that only his subordinate has scrutinized the file and draft of the sanction was prepared, he has merely signed the draft and as such, the sanction is also not validly given. 11. in the circumstances, on these two counts, mr. waramaa wanted that the appeal be allowed. 12. on the other hand, learned a.p.p. mr. ingole submitted that the appellant was caught red-handed with the tainted money in his hand. the evidence on record would show that there was demand of the illegal gratification from time to time. last of the demand was made in the presence of the panch witness in the hotel before accepting the money. the sanction is validly given. in the circumstances, he submitted that the appeal be dismissed. 13. on the basis of these submissions, following points arise for my determination:- i) whether the sanction to prosecute the appellant, given by p.w. 3 is legal and valid? ii) whether the appellant, being the public servant, made a demand of rs.10,000/- from the complainant-bhagwan rathod, as remuneration, otherwise than the legal remuneration for closing of the complaint application filed by sitaram rathod against the brother of the complainant, and accepted an amount of rs.5000/- on 14.1.2001? iii) whether the appellant, being the public servant, obtained an amount of rs.5000/- on 14.1.2001, by abusing his position as public servant, as a gratification for closure of the criminal case against the brother of the complainant? iv) what order? reasons : 14. as regards point no.i, p.w.3 fatesingh patil, the then superintendent of police, beed had granted sanction to prosecute the appellant vide sanction order at exhibit 36. his evidence would show that he has perused the entire papers of the case and found that there was evidence against the present appellant. in the circumstances, he granted the sanction. during cross-examination, he admitted that his subordinate officers had scrutinized the file. he further deposed that he did not remember as to whether the draft of the sanction order was supplied to him by the superintendent of police, anti corruption bureau, aurangabad. thereafter, he deposed that there is reference about draft of sanction order in the exhibit 37 i.e. the covering letter under which the sanction order was sent to the superintendent of police, anti corruption bureau, aurangabad. he, however, denied that he has not applied any mind while granting the sanction. 15. though, mr. waramaa argued that the evidence of the sanctioning authority would show that only subordinate has scrutinized the file and draft was already before the sanctioning authority, the oral evidence of the sanctioning authority would show that the sanctioning authority has also applied its mind by perusing the case papers and in the circumstances, it cannot be said that the sanction was invalid. point no. i is therefore answered accordingly. 16. as to point no. ii : it is an admitted fact that the brother of the complainant was one of the suspect regarding the accidental death of prabhu bansi chavan. the documents seized by the investigating officer in the case concerning the said accidental death case would show that certain complaint against the brother of the complainant was there. while the prosecution claims that in order to close the file, the bribe was demanded by the appellant; appellant's defence is that the complainant and his brother wanted early closure of the file, so that they would be able to pay the money to the widow of the deceased in view of their settlement. since the closure of the file was not possible till the c.a. report is received to the police station, the complainant and his brother became restless and only out of anger against the present appellant, he is falsely involved in the present case. 17. the evidence of the complainant p.w.1 bhagwan rathod would show that the appellant has during the first trap refused to accept the amount of rs.2000/- on the ground that his senior officer was not ready to accept the bribe in installments. p.w. 6 investigating officer mr. bhokare, however, had one another ground in his examination-in-chief. he deposed that on 1.4.2001, the appellant suspected the presence of panch no.1 darade with the complainant. he put certain questions to the complainant about the identity of the panch witness and, therefore, during the second trap, he changed the panch i.e. panch no.2 vaishnav. 18. while the investigating officer has deposed that he had instructed the complainant to give signal by moving his hand over the scalp thrice after the tainted amount is accepted by the appellant and not to give the amount forcibly to the appellant, the complainant in his cross-examination in clear terms has deposed that in the anti corruption bureau office, discussion took place as to what should be done in case the appellant would not accept the tainted amount. according to the complainant, at that time, necessary instructions were given by the investigating officer mr. bhokare to him that the amount should be thrust in the hands of the appellant at the time of second trap. 19. further, the complainant in his cross-examination, admitted that he did not inform his brother-babu regarding the demand made by the appellant though he has felt seriousness of the case. he further deposed that though he naturally desired that no prosecution should be lodged against his brother in such serious offence, he suspected that the appellant would play certain mischief against his brother. he, however, denied that therefore he had decided to remove the appellant from services and to get away with the problem. 20. further, p.w. 2 balaprasad vaishnav, who according to the prosecution accompanied the complainant during the second trap, has in the examination-in-chief deposed that the appellant demanded the money, whereupon the complainant handed over the same to him. on the other hand, during cross-examination, the complainant deposed that he himself told the appellant that he has brought the money and therefore the appellant should accept the same. 21. in the cross-examination, the complainant also stated that when he gave signal in the hotel, hand of the appellant was on the table and his hand was on the table even when the investigating officer mr. bhokare caught the hand of the appellant. his deposition would further show that for 15 months, he was sitting in the hotel with the appellant. p.w. no.2 i.e. vaishnav at that time was sitting on bench in second row. in the circumstances, when a question was put whether there was noise of the waiters in the hotel while offering services to the customers and noise of the traffic, the appellant stated that he did not remember as to whether any such noise was there. 22. in such situation, during cross-examination, p.w.2 balaprasad vaishnav admitted that he did not clearly hear the conversation between the appellant and the complainant. he also failed to tell as to whether the conversation between them had taken place between their mother-tongue i.e. "lamani". not only this, the panch further deposed during cross-examination that he did not remember whether the tainted currency notes were beneath the hands of the appellant. during further cross-examination, he deposed that when the investigating officer mr. bhokare entered into the hotel, the amount was lying over the table and thereafter the investigating officer caught the hands of the appellant. 23. all this evidence on record would show that as per the prosecution itself, the appellant has suspected something foul at the time of first unsuccessful trap itself. the complainant deposed that the investigating officer mr. bhokare has given him guidance as to how the tainted money should be thrust in the hands of the appellant in case he refuses to accept tainted money during the second trap. while the complainant was evasive about the situation in the hotel i.e. as to whether there was noise of the waiters as well as the traffic, the independent panch deposed that he could not hear the conversation between the appellant and complainant properly and was not even able to tell as to whether the duo was speaking in their mother-tongue i.e. lamani which is not known to the witness. the tainted money was lying on the table as per panch witness, while the panchanama would show that it was in the fist of the appellant. 24. if all this evidence is appreciated in the background of the statement of the complainant, that though his brother was not involved in murder, he was apprehensive that the appellant may commit certain mischief, would go to show that the prosecution failed to prove beyond reasonable doubt that the appellant has made a demand of any illegal gratification and thereafter accepted on his own the same, as propounded by the prosecution. 25. the learned special judge concluded that since the appellant in his written statement has stated that firstly, he pushed back the money forwarded towards him by the complainant, thereafter, the investigating officer mr. bhokare compelled the appellant to pick up the amount. in the circumstances, the arguments that anthracene powder was seen only on the portion of the palm, cannot be accepted. therefore, the learned special judge concluded that the tainted money was found in the left fist of the appellant. as regards the presence of the panch witness and his ability to hear the conversation between the appellant and complainant in the hotel, the learned special judge relied in the map at exhibit 46 prepared by p.w. 5 prakash kale as shown by the investigating officer and concluded that the presence of the panch witness at the time of actual conversation cannot be doubted. it is, however, against the evasive reply given by the complainant in his cross-examination and the clear admission of the panch witness, as detailed supra. however, considering the above fact, the learned special judge took aid of the presumption that the amount was accepted by the appellant as illegal gratification voluntarily. 26. as regards the admission that when the investigating officer came in the hotel after giving the signal, the amount was seen lying over the table, the learned special judge relied over the marathi version that when the investigating officer mr. bhokare appeared, at that time, he caught the hands of the appellant and at that moment, the currency note fell on the table. though, the acceptance of the marathi version by the learned special judge is correct, the whole of the evidence needs to be scrutinized which would go to show that there was a reasonable doubt as to whether the appellant has accepted the amount. 27. in that view of the matter, considering the material on record, in my view, the prosecution failed to prove beyond reasonable doubt, that the appellant has made any demand of any illegal gratification or accepted the same. 28. in the circumstances, the appeal succeeds. the appeal is allowed accordingly. the order of the learned special judge is hereby set aside and instead, the appellant is acquitted of the offences punishable under section 7, 13(1)(d) and section 13(2) of the act. his bail bond shall stand cancelled. fine amount, if any, deposited by him, be refunded.
Judgment:

The present appellant is convicted by the Special Judge at Ambajogai in Special Case no. 6 of 2001 for the offences punishable under section 7, 13(1)(d) r/w. section 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act"). He is sentenced to suffer R.I. for two years and to pay fine of Rs.5000/- for the offence punishable under section 7 of the Act and further to suffer R.I. for three years and to pay fine of Rs. 5000/- for the offence punishable under section 13(1)(d) r/w. section 13(2) of the Act. Aggrieved by the said order and judgment dated 9.2.2004, the present Appeal is preferred.

2. The facts in brief are as under:.

That appellant, during the relevant period, was Police Head Constable attached to Shirsala Police Station, Dist. Beed. One person named as Prabhu Chavan has died in unnatural circumstances after taking liquor. In that connection, one accidental death case no.3 of 2001 was registered with Shirsala Police Station. Thereafter, certain applications were filed by another person i.e. Sitaram Rathod that the deceased was severely beaten by Babu Munna Rathod. Said Babu is the real brother of the present complainant-Bhagwan.

3. The present appellant, being the Head Constable had recorded certain statements of certain witnesses and carried certain investigation. In that situation, on 29.3.2001, while complainant Bhagwan was standing at certain square at Shirsala, the present appellant informed him that the offence of murder will have to be registered against the brother of the complainant. When the complainant questioned as to how the offence can be registered since all the witnesses in his presence has told the appellant that the death of Prabhu was merely an accidental death. Ultimately, the complainant requested the appellant not to register any crime. During the conversation, the appellant told the complainant that the complainant would be required to pay Rs.10,000/- to the appellant, for closure of the case. For the purpose of closure, he will have to obtain the signatures of his superior official and without taking any money, the superior would not sign the same. When the complainant showed his readiness to meet the superior officer, the appellant told that in that case, the superior officer may increase the demand to Rs.25,000/-. Ultimately, the appellant became ready to pay an amount of Rs.10,000/-. He told the appellant that he would pay an amount of Rs.2000/-, as advance on 1.4.2001 and rest of the amount of Rs.8000/- would be arranged by obtaining loan and would be paid by 5.4.2001. It was agreed that first of the installment of Rs.2000/- would be paid in a hotel in the said square between 10.00 am. to 2.00 in the noon. Since the complainant was not ready to pay the bribe, he went to the Anti Corruption Bureau and filed his complaint on 31.3.2001.

4. P.W. 6 Deputy Superintendent of Police Mahendra Bhokare has conducted the investigation in the complaint. He arranged for two necessary trap witnesses by securing them from the Principal of I.T.I. Beed. Out of them, panch no.1 was Phulchand Darade while panch no.2 was Balaprasad Vaishnav. The decoy money was collected by the complainant and the trap was laid on 1.4.2001.

5. The complainant met the appellant in the Police Station. At that time, however, the appellant told that his superior officer was not ready to accept the amount in installment and therefore he refused to accept the amount of Rs.2000/-. As such, the trap failed. The complainant, thereafter told the appellant that he would arrange for Rs.10,000/- within 78 days. Thereafter, on 7.4.2001 the complainant again met the appellant and told that he could manage only Rs.5000/- by that time. The appellant agreed to accept the said amount on 11.4.2001 within the premises of Shirsala Police Station. He further instructed that on that day if the appellant is not found in the said premises, then the complainant should come to the premises of Court at Parali Vaijnath to pay the amount. In the circumstances, again a trap was laid on 11.4.2001. When the complainant and panch no.2 went to meet the appellant in the Police Station, at that time, brother of the complainant i.e. Babu told the complainant that the appellant had left the Police Station and told him that he should come to Court at Parali Vaijnath. Therefore, again the trap was laid in the premises of Parali Vaijnath Court. After carrying his work, the appellant came out of the Court. Thereafter, the appellant alongwith the complainant, panch no.2 and Babu went in a hotel near Court premises. Rest of the members and the raiding party took their positions outside the hotel. At that time, the appellant again asked as to whether the amount was brought and thereafter, when the complainant answered in the affirmative, the appellant asked the complainant to give the amount to him. Thereupon, the complainant handed over the decoy money, which was smeared with anthracene powder to the appellant.

The appellant took the amount in his left hand and kept the cash by folding the hand. Thereupon, the complainant gave the signal, upon which, the other members of the raiding party rushed to the hotel. Thereafter, the exercise of examination under ultra violet light of the hands of the complainant and appellant etc. was carried. During the examination in ultra violet light, the left hand of the appellant was found smeared with anthracene powder. Necessary panchanama was recorded. Seizure of the necessary clothes, currency note was carried. The appellant was arrested. The record of the accidental death case number 3 of 2001 was also collected. The sanctioning authority ultimately granted sanction to prosecute the appellant and thereafter the chargesheet came to be filed.

6. Upon framing of the charge, in all six witnesses were examined by the prosecution. The defence of the appellant in short is as under:. That he was making enquiry in the accidental death case of Prabhu as well as in the complaint filed by Sitaram Rathod. He had recorded the statements of the concerned parties as well recorded the panchanama. Thereafter, the statements of those witnesses were recorded in presence of Police Inspector Ranjankar. The witnesses as well as the complainant Sitaram told that there was settlement between the parties. In the situation, the complainant as well as his brother has met the Police Inspector atleast for 4-5 times. The appellant has told the complainant and his brother that since the enquiry was over, they need not come to the Police Station. However, they insisted that the matter should be closed and for that purpose, the appellant should tell the Police Inspector. They used to tell the appellant that in view of the settlement, they would be required to pay the money to the widow of the deceased and in the circumstances, unless the matter is closed, the money would not be paid. However, the widow used to threaten them. The appellant used to tell them that unless report from the Chemical Analyzer is reached, the file cannot be closed. The complainant and his brother, however, suspected that the appellant is delaying the matter and therefore, he is falsely implicated in the false complaint. In fact, at any time, no demand of money was made. On the day of the alleged second trap, the complainant and his brother Babu met him in the premises of Parali Vaijanath Court. At that time, they requested the appellant to take tea in the hotel. In the hotel, during talk, the complainant forwarded the tainted money towards the appellant. The appellant, however, moved back the said cash to the complainant, by saying that no money is required for closure of the case. At that moment only, the Deputy Superintendent of Police Mr. Bhokare caught the hand of the appellant, while the money was on the table itself. Deputy Superintendent of Police Mr. Bhokare asked the appellant to lift the tainted money and as such he is falsely implicated in a false case.

7. Before the learned Special Judge, besides the complainant, both of the panch witnesses, the Investigating Officer and P.W. 3 Superintendent of Police Mr. Fatesing Patil were examined.

8. Learned Special Judge, upon hearing both the sides, came to the conclusion that the prosecution has proved the case beyond reasonable doubt. It was further found that sanction is validly granted in the case, to prosecute the appellant and in the circumstances, the conviction and sentence, as detailed supra came to be recorded.

9. Learned counsel for the appellant Mr. Waramaa submitted before me that the case papers of the accidental death case seized in the present crime, show that none of the witnesses had any grievance against the brother of the complainant and therefore there would have been no occasion for the appellant to make any demand of money. Further, the evidence on record would show that the appellant, being a Head Constable was not empowered to close the case. The evidence of the said witnesses coupled with the admissions given by the complainant in the cross-examination would show that the complainant has merely suspected that the appellant would commit certain mischief regarding the accidental death case. Further, while it is the prosecution case itself that first of the trap failed, the complainant during his cross-examination, clearly admitted that the Investigating Officer i.e. P.W.6 Deputy Superintendent of Police Mr. Bhokare had instructed the complainant to thrust the tainted money in the hands of the appellant. The evidence would further show that while the prosecution case is that in the hotel, at the time of accepting the tainted money, the complainant has again made demand of the illegal gratification in presence of the panch witness, the very panch witness had admitted that he was not able to hear anything. Further, as per the prosecution case itself, no anthracene powder was seen on the entire palm of the appellant and in the circumstances, the theory of thrusting the money, as propounded by the defence is proved, particularly in view of the admission of the complainant that the Investigating Officer has told him to thrust the money in the hands of the appellant. Further, the evidence on record would show that the tainted money was not in the hand of the appellant but it was found on the table. In the circumstances, Mr. Waramaa, submits that the learned Special Judge ought to have extended the benefit of doubt to the appellant.

10. As regards the validity of the sanction, it was submitted by Mr. Waramaa that the statement of P.W. 3 would show that only his subordinate has scrutinized the file and draft of the sanction was prepared, he has merely signed the draft and as such, the sanction is also not validly given.

11. In the circumstances, on these two counts, Mr. Waramaa wanted that the Appeal be allowed.

12. On the other hand, learned A.P.P. Mr. Ingole submitted that the appellant was caught red-handed with the tainted money in his hand. The evidence on record would show that there was demand of the illegal gratification from time to time. Last of the demand was made in the presence of the panch witness in the hotel before accepting the money. The sanction is validly given. In the circumstances, he submitted that the Appeal be dismissed.

13. On the basis of these submissions, following points arise for my determination:-

I) Whether the sanction to prosecute the appellant, given by P.W. 3 is legal and valid?

II) Whether the appellant, being the public servant, made a demand of Rs.10,000/- from the complainant-Bhagwan Rathod, as remuneration, otherwise than the legal remuneration for closing of the complaint application filed by Sitaram Rathod against the brother of the complainant, and accepted an amount of Rs.5000/- on 14.1.2001?

III) Whether the appellant, being the public servant, obtained an amount of Rs.5000/- on 14.1.2001, by abusing his position as public servant, as a gratification for closure of the criminal case against the brother of the complainant?

IV) What order?

REASONS :

14. As regards point no.I, P.W.3 Fatesingh Patil, the then Superintendent of Police, Beed had granted sanction to prosecute the appellant vide sanction order at Exhibit 36. His evidence would show that he has perused the entire papers of the case and found that there was evidence against the present appellant. In the circumstances, he granted the sanction. During cross-examination, he admitted that his subordinate officers had scrutinized the file. He further deposed that he did not remember as to whether the draft of the sanction order was supplied to him by the Superintendent of Police, Anti Corruption Bureau, Aurangabad. Thereafter, he deposed that there is reference about draft of sanction order in the Exhibit 37 i.e. the covering letter under which the sanction order was sent to the Superintendent of Police, Anti Corruption Bureau, Aurangabad. He, however, denied that he has not applied any mind while granting the sanction.

15. Though, Mr. Waramaa argued that the evidence of the sanctioning authority would show that only subordinate has scrutinized the file and draft was already before the sanctioning authority, the oral evidence of the sanctioning authority would show that the sanctioning authority has also applied its mind by perusing the case papers and in the circumstances, it cannot be said that the sanction was invalid. Point no. I is therefore answered accordingly.

16. As to point no. II :

It is an admitted fact that the brother of the complainant was one of the suspect regarding the accidental death of Prabhu Bansi Chavan. The documents seized by the Investigating Officer in the case concerning the said accidental death case would show that certain complaint against the brother of the complainant was there. While the prosecution claims that in order to close the file, the bribe was demanded by the appellant; appellant's defence is that the complainant and his brother wanted early closure of the file, so that they would be able to pay the money to the widow of the deceased in view of their settlement. Since the closure of the file was not possible till the C.A. report is received to the Police Station, the complainant and his brother became restless and only out of anger against the present appellant, he is falsely involved in the present case.

17. The evidence of the complainant P.W.1 Bhagwan Rathod would show that the appellant has during the first trap refused to accept the amount of Rs.2000/- on the ground that his Senior Officer was not ready to accept the bribe in installments. P.W. 6 Investigating Officer Mr. Bhokare, however, had one another ground in his examination-in-chief. He deposed that on 1.4.2001, the appellant suspected the presence of panch no.1 Darade with the complainant. He put certain questions to the complainant about the identity of the panch witness and, therefore, during the second trap, he changed the panch i.e. panch no.2 Vaishnav.

18. While the Investigating Officer has deposed that he had instructed the complainant to give signal by moving his hand over the scalp thrice after the tainted amount is accepted by the appellant and not to give the amount forcibly to the appellant, the complainant in his cross-examination in clear terms has deposed that in the Anti Corruption Bureau Office, discussion took place as to what should be done in case the appellant would not accept the tainted amount. According to the complainant, at that time, necessary instructions were given by the Investigating Officer Mr. Bhokare to him that the amount should be thrust in the hands of the appellant at the time of second trap.

19. Further, the complainant in his cross-examination, admitted that he did not inform his brother-Babu regarding the demand made by the appellant though he has felt seriousness of the case. He further deposed that though he naturally desired that no prosecution should be lodged against his brother in such serious offence, he suspected that the appellant would play certain mischief against his brother. He, however, denied that therefore he had decided to remove the appellant from services and to get away with the problem.

20. Further, P.W. 2 Balaprasad Vaishnav, who according to the prosecution accompanied the complainant during the second trap, has in the examination-in-chief deposed that the appellant demanded the money, whereupon the complainant handed over the same to him. On the other hand, during cross-examination, the complainant deposed that he himself told the appellant that he has brought the money and therefore the appellant should accept the same.

21. In the cross-examination, the complainant also stated that when he gave signal in the hotel, hand of the appellant was on the table and his hand was on the table even when the Investigating Officer Mr. Bhokare caught the hand of the appellant. His deposition would further show that for 15 months, he was sitting in the hotel with the appellant. P.W. no.2 i.e. Vaishnav at that time was sitting on bench in second row. In the circumstances, when a question was put whether there was noise of the waiters in the hotel while offering services to the customers and noise of the traffic, the appellant stated that he did not remember as to whether any such noise was there.

22. In such situation, during cross-examination, P.W.2 Balaprasad Vaishnav admitted that he did not clearly hear the conversation between the appellant and the complainant. He also failed to tell as to whether the conversation between them had taken place between their mother-tongue i.e. "Lamani". Not only this, the panch further deposed during cross-examination that he did not remember whether the tainted currency notes were beneath the hands of the appellant. During further cross-examination, he deposed that when the Investigating Officer Mr. Bhokare entered into the hotel, the amount was lying over the table and thereafter the Investigating Officer caught the hands of the appellant.

23. All this evidence on record would show that as per the prosecution itself, the appellant has suspected something foul at the time of first unsuccessful trap itself. The complainant deposed that the Investigating Officer Mr. Bhokare has given him guidance as to how the tainted money should be thrust in the hands of the appellant in case he refuses to accept tainted money during the second trap. While the complainant was evasive about the situation in the hotel i.e. as to whether there was noise of the waiters as well as the traffic, the independent panch deposed that he could not hear the conversation between the appellant and complainant properly and was not even able to tell as to whether the duo was speaking in their mother-tongue i.e. Lamani which is not known to the witness. The tainted money was lying on the table as per panch witness, while the panchanama would show that it was in the fist of the appellant.

24. If all this evidence is appreciated in the background of the statement of the complainant, that though his brother was not involved in murder, he was apprehensive that the appellant may commit certain mischief, would go to show that the prosecution failed to prove beyond reasonable doubt that the appellant has made a demand of any illegal gratification and thereafter accepted on his own the same, as propounded by the prosecution.

25. The learned Special Judge concluded that since the appellant in his written statement has stated that firstly, he pushed back the money forwarded towards him by the complainant, thereafter, the Investigating Officer Mr. Bhokare compelled the appellant to pick up the amount. In the circumstances, the arguments that anthracene powder was seen only on the portion of the palm, cannot be accepted. Therefore, the learned Special Judge concluded that the tainted money was found in the left fist of the appellant. As regards the presence of the panch witness and his ability to hear the conversation between the appellant and complainant in the hotel, the learned Special Judge relied in the map at Exhibit 46 prepared by P.W. 5 Prakash Kale as shown by the Investigating Officer and concluded that the presence of the panch witness at the time of actual conversation cannot be doubted. It is, however, against the evasive reply given by the complainant in his cross-examination and the clear admission of the panch witness, as detailed supra. However, considering the above fact, the learned Special Judge took aid of the presumption that the amount was accepted by the appellant as illegal gratification voluntarily.

26. As regards the admission that when the Investigating Officer came in the hotel after giving the signal, the amount was seen lying over the table, the learned Special Judge relied over the Marathi version that when the Investigating Officer Mr. Bhokare appeared, at that time, he caught the hands of the appellant and at that moment, the currency note fell on the table. Though, the acceptance of the Marathi version by the learned Special Judge is correct, the whole of the evidence needs to be scrutinized which would go to show that there was a reasonable doubt as to whether the appellant has accepted the amount.

27. In that view of the matter, considering the material on record, in my view, the prosecution failed to prove beyond reasonable doubt, that the appellant has made any demand of any illegal gratification or accepted the same.

28. In the circumstances, the Appeal succeeds. The Appeal is allowed accordingly. The order of the learned Special Judge is hereby set aside and instead, the appellant is acquitted of the offences punishable under section 7, 13(1)(d) and section 13(2) of the Act. His bail bond shall stand cancelled. Fine amount, if any, deposited by him, be refunded.