Criminal Appeal No.425 of 1997

16th February, 2006

Petitioner Counsel: Shri. PRAFULLA S. KHUBALKAR
Respondent Counsel: Shri. SHYAM B. AHIRKAR

Cases Cited:
Mohd. Iqbal Ahmed Vs. State of A. P., 1979 Cri.L.J. 633 [Para 5]
State Vs. K. Narasimhachary, 2005 AIR SCW 6275 [Para 5(A]
Habeeb Mohammad Vs. State of Hyderabad, AIR 1954 SC 51 [Para 8]
Meena Balwant Hemke Vs. State of Maharashtra, 2000 ALL MR (Cri) 1194 (S.C.)=2000 Cri.L.J. 2273 [Para 10]

JUDGMENT

JUDGMENT :- Being aggrieved by his conviction for the offence punishable under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 and sentence of simple imprisonment for one year and fine of Rs.1000/- imposed upon him, the appellant has preferred this appeal.

2.The facts, which led to the appellant's prosecution are as under .

The appellant was working as Medical Officer at Primary Health Centre, Sawargaon, Tahsil : Kalamb, District : Yavatmal in the year 1986. On 04.11.1986 he performed a family planning operation on one Ramabai Kitke who had been persuaded to undergo that operation by one Chhaya Kamalji Kitke. Said Chhaya was working as an Auxiliary Nurse Midwife at Health Centre, Tarooli. Ramabai was wife of Chhaya's brother. Chhaya needed certificate from the accused that she was promoter who had motivated Ramabai to undergo family planning operation, since such certificate would have enabled Chhaya to get appropriate reward from the State. When chhaya asked the accused to give such a certificate he demanded a bribe of Rs. Hundred. This demand was repeated by accused before Chhaya's brother Vijay Kitke. Chhaya told accused that since she does not have such an amount her brother would pay such amount and that Dr. Gan should hand over necessary form to Vijay Kitke. Vijay gave report to Anti Corruption bureau whereupon a trap was arranged. On 16.12.1986 Vijay gave the amount to the accused in presence of a panch. The accused had asked Vijay to keep the amount in an envelope which was kept on the table. After receving signal the Raiding Party swooped and recovered the sum of Rs.Hundred kept in an envelope. After completing post trap formalities offence was registered and on completion of investigation sanction to prosecute the appellant was sought from the competent authority. On receipt of sanction charge-sheet was sent up.

3. To a charge of offence punishable under sections 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947, framed against him, accused pleaded not guilty and hence was put on trial in its attempt to bring home the guilt of the accused, the prosecution examined in all seven witnesses. After considering the evidence of the prosecution witnesses, in the light of defence of denial, the learned Special Judge held the appellant guilty and sentenced him as aforementioned. Aggrieved thereby the appellant has preferred this appeal

4. I have heard both, the learned counsel for the appellant and learned Additional Public Prosecutor for the State.

5. The learned counsel for the appellant first submitted that the sanction itself was defective and had not been properly proved. He submitted that Ex.43, which was tendered before the Court, could not be called sanction by a competent authority since evidence of P.W. 3 Ramkrishna Govind Barde, Deputy Secretary, who had signed the sanction order showed that he was not the authority competent to sanction prosecution. According to P.W. 3 Barde the authority competent to sanction in case of Dr. Gan was the Government, which meant Ministers of Public Health Department, both State and Cabinet, and Chief Minister of the State. The learned counsel for the appellant submitted that since sanction accorded by these three ministers was not on record, it could be held that the prosecution was launched without any sanction. Relying on the decision of the Supreme Court in Mohd. Iqbal Ahmed Vs. State of A.P., reported at 1979 Cri.L.J. 633, the learned counsel submitted that it was necessary to establish that the sanctioning authority was aware at the time of giving sanction of the facts constituting offence and had applied its mind to those facts. He submitted that in this case evidence of P.W. 3 Barde was grossly inadequate to conclude that the three ministers who were competent to sanction prosecution of the appellant had indeed applied their mind to the facts of the case.

5(A). The learned Additional Public Prosecutor submitted that evidence of P.W. 3 Barde was enough to prove that the sanctioning authority had duly applied its mind and sanctioned prosecution of the appellant. Relying on decision of Supreme Court in State Vs. K. Narasimhachary, reported at 2005 AIR SCW 6275, the learned A.P.P. submitted that Secretary to Government merely authenticated the sanction in the name of Governor and that such authenticated document is public document in accordance with provisions of section 74 of the Evidence Act. Though the Supreme Court had dismissed the appeal on merits it had observed that the view taken by High Court in the said case by applying provisions of Section 74 of the Evidence act was not correct. Therefore, in the instant case when P.W. 3 Deputy Secretary Shri. Barde states that he had duly placed all the papers and proposal before the Ministers concerned and that the Ministers had, after applying their mind, approved the proposal, his word would have to be accepted and therefore, according to the learned A.P.P. the sanction cannot be assailed.

6. In cases where sanctioning Authority is not a natural person but a body, like three Ministers in the present case, it was obviously unnecessary to examine each of them to prove that each of them had applied his mind while according sanction. The minutes recorded by the sanctioning authority also need not be placed on record because the order passed by the Deputy Secretary is in the name of the Governor and there would be a presumption that the deputy Secretary would not issue such order without first ascertaining that the authorities competent to sanction had applied their minds and approved the proposal. Therefore, the attempt of learned counsel for the appellant to assail the conviction on the ground of improper sanction has to be rejected.

7. The learned counsel for the appellant next submitted that the very foundation of the case was the "promoters form." It was said to be required by Chhaya for her own purposes. He pointed out from the promoters form at Ex.30 that it is not the form which is required to be signed or handed over to the promoters. He further submitted that the promoters forms were infact found at the residence of the accused and had been seized from the residence of the accused under panchanama at Exh.23. Had it been the practice of the Medical Officer returning form to the promoters after authentication such bundle of forms would not have remained at the house of the accused.

8. The learned counsel for the appellant next submitted that in this case there is serious infirmity inasmuch as Chhaya who was supposed to have first approached the appellant for getting promoters form and to whom the appellant is said to have made a demand of money, was not at all examined. It was obviously necessary for the prosecution to examine Chhaya because it was for her that her brother Vijay made demand of the form from Dr. Gan. Relying on the decision of Supreme Court in Habeeb Mohammad Vs. State of Hyderabad, reported at AIR 1954 SC 51. the learned counsel for the appellant submitted that it was bounden duty of the prosecution to examine material witness and therefore, according to the learned counsel, non-examination of Chhaya was fatal to the prosecution case. In the written statement submitted by the accused before the Trial Court at Exh.66 the accused had stated that Chhaya wanted transfer to Primary Health Center at Sawargaon from Sub-Centre at Tarnoli. She had requested Dr. Gan, who was Medical Officer incharge at Sawargaon, to recommend her transfer. He had not recommended the transfer. On the other hand he stated that he informed the seniors not to send Chhaya at Sawargaon and therefore, Chhaya was aggrieved. In the context of this defence, examination of Chhaya was necessary. It may be seen that suggestions to this effect had been made to P.W.2 Vijay also. The appellant had stated in his written statement at Exh.66 that after undergoing operation he was to give a sum of Rs.100/- to Ramabai, who had undergone operation, and Rs.20/- to Chhaya, however, the duo did not come to receive money. Now, if only sum of Rs.20/- was to be given to Chhaya and Rs.100/- to wife of Vijay it would be incredible to believe that Dr. Gan would demand sum of Rs.100/- from them.

9. Apart from the fact that Chhaya was not examined, it is clear from the evidence of P.W. 7 Additional Superintendent of Police. Thakare that on 11.11.1986 Mr. Pathan Deputy Superintendent of Police had laid trap on the accused on complaint of Chhaya and report in respect of unsuccessful trap was filed. He proved the abstract of register kept for this purpose which is at Exh.63. In view of this, it is clear that an attempt to trap the appellant was made at the instance of Chhaya once and such attempt had failed. In this context the facts unfolded would have to be seen.

10. It is not case of the prosecution that the accused was caught with tainted money, infact, the amount was found in an envelope lying at the table of Dr. Vidhale, who was not examined in the case. Hands of the accused were not tainted and therefore, the learned counsel for the appellant rightly submitted that it was incorrect to hold that the appellant had demanded or received any bribe. Relying on the decision in Meena Balwant Hemke Vs. State of Maharashtra, reported at 2000 Cri.L.J. 2273 : [2000 ALL MR (Cri) 1194], the learned counsel for the appellant submitted that mere recovery of note lying on the pad on the table was held by the supreme court to be insufficient proof of acceptance of bribe by the accused. He submitted that applying the same standard the appellant could not be held to have accepted the bribe money.

11. Considering the arguments advanced it is clear that, in this case, Chhaya had no need of getting promoters form from the accused. Therefore there was no question of her approaching the accused for the said form or accused making demand of Rs.100/- from her. A trap at the instance of Chhaya was duly laid by the Anti Corruption Bureau but had failed. In this context the second attempt of trapping the accused has to be looked into. Since the accused was not found with the tainted money even in the second attempt and that the money was merely found lying on the table in an envelope which Vijay could have dropped, it cannot be said that the prosecution proved that the appellant demanded or received any bribe money. Non-examination of Chhaya and Dr. Vidhale, on whose table the envelope was found and whose name appeared on the envelope, are also serious infirmities in the prosecution case.

In view of this, the appeal is allowed.

The conviction of the appellant for the offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentence of simple imprisonment for one year and fine of Rs.One thousand imposed upon him is set aside and the appellant is acquitted of the said offence.

Bail Bonds, if any, furnished shall stand cancelled. Fine, if paid, be refunded to the appellant.

Appeal allowed.