2012 ALL MR (Cri) 3089
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.P. BHANGALE, J.
Pralhad S/O. Sadashiv Badole Vs. The State Of Maharashtra
Criminal Appeal No.455 of 2010
8th August, 2012
Petitioner Counsel: Shri R.M. DAGA
Respondent Counsel: Mrs.R.A. DESHPANDE
Prevention of Corruption Act (1988), Ss.7, 13, 19 - Illegal gratification - Appeal against conviction - Prosecution case that appellant accused, District Fishery Officer demanded and accepted bribe amount from complainant for allotting lease of fishing right - Complainant in his cross-examination stating that he had not taken bribe amount with him when he went to ACB's office - FIR lodged after two months from date when raid was effected - Evidence of Accountant who received bribe amount admitting that accused had instructed him to collect amount from complainant and issue receipt - Non-production of documents as to approval by Deputy Chief Minister for prosecution of accused - Draft sanction order itself was accepted mechanically as it is - Grant of sanction suffered from non-application of mind - Guilt of appellant accused not proved beyond reasonable doubt - Conviction of appellant hence, set aside. (Paras 18, 19)
Bhagwan Mahadeo Sathe Vs. State & Anr., 2011 ALL MR (Cri) 1221 [Para 8,10]
Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, 1979 CRI.L.J. 633 [Para 8]
Gokulchand Dwarkadas Morarka Vs. The King, AIR (35) 1948 Privy Council 82 [Para 8]
State of Maharashtra Vs. Kashinath Shridhar Wani, 2010 ALL MR (Cri) 139 [Para 12]
Banarsi Dass Vs. State of Haryana, 2010 ALL MR (Cri) 1608 (S.C.) =(2010) 4 SCC 450 [Para 18]
Raju Somla Pawar Vs. State of Maharashtra, 2009 ALL MR (Cri) 384 [Para 18]
JUDGMENT :- This Appeal is directed against the Judgment and Order dated 4th August, 2010 passed by learned Special Judge, Wardha in Special (ACB) Case No. 4 of 2000, whereby the accused was convicted of offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and the accused was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/-, in default of which to undergo simple imprisonment for six months for offence punishable under Section 7 of the Prevention of Corruption Act. He was also sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs. 3,000/-, in default to undergo further simple imprisonment for nine months for offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
The complainant was Vice-President of Dolphin Matsya Vyavsay Sahakari Sanstha, Dahegaon (Miskin), Tahsil and District Wardha. On 09/10/1998, the society had applied for allotting lease of fishing right of Kunbaid pond situated at village Waifad, Tahsil and District Wardha. At that time, the accused (appellant) was District Fishery Officer at Wardha. It is the case of the prosecution that when complainant went to Fishery Office at Wardha on 25/11/1998, he met accountant namely; Shri. Gedam. At that time, Shri. Gedam told complainant that accused told him to obtain Rs. 4,000/- from members of Dolphin Society and that receipt will be issued later on. The complainant paid sum of Rs. 4,000/- to Shri. Gedam, but he had not issued any receipt. Later, in the month of December, 1998 the complainant informed to the accused about the payment made to Shri. Gedam, but accused then told that the said amount will be adjusted towards lease money of the pond and that meanwhile they should pay Rs. 7890/- to obtain fish seeds. Therefore, the complainant paid Rs. 7890/- and obtained receipt of the said amount. Thereafter, accused asked complainant to pay Rs.9600/- for lease of pond. It is alleged that when the complainant recalled accused about deposit of Rs. 4,000/-, accused refused to adjust that amount by saying that it was for his service for getting allotted lease of that pond to the society. Later on, when complainant met accused, accused refused to adjust that amount of Rs. 4,000/- towards lease money of pond but on bargaining made by complainant, accused agreed to adjust Rs. 2,000/- of it towards lease money of pond and asked the complainant to pay Rs. 7,600/- towards lease and then he will give receipt of Rs. 9,600/-. Accused told that if complainant fails to do so, then he will auction the pond for others. On 29/1/1999, when complainant visited the Fishery Office at Wardha, accused was not there in office. At that time, Shri. Gedam refused to give receipt for Rs. 9,600/- on acceptance of Rs. 7,600/-. Then, on 05/02/1999, complainant met accused at his house in Wardha. At that time also, accused refused to adjust entire amount of Rs. 4,000/- towards lease money but agreed to adjust only Rs. 2,000/- towards lease money. As accused refused to adjust Rs. 2,000/- for his personal gain, the complainant approached Anti Corruption Bureau and lodged written report on 05/02/1999. Thereafter, Investigating Officer called panchas and then obtained Rs. 2,000/- from the complainant and noted their numbers and applied phenolphthalein powder to it. Investigating Officer then laid a trap for accused. Thereafter, on 06/02/1999, I.O. sent complainant, one panch Mr. Khairnar and Secretary of the society namely; Shri. Telrandhe to the office of accused. Then, as per instructions of accused, complainant kept bundle of Rs. 5,000/- with tainted amount of Rs. 2,000/- on the table of the accused. Accused then issued a chit to his peon and asked that peon to hand over that amount and that chit to Accountant Shri. Gedam, and then, said peon did that. Thereafter, Shri. Gedam issued a receipt dated 08/02/1999 for Rs. 7,600/- by telling that he will be able to deposit it in the bank only on 08/02/1999. The complainant had refused to accept the said receipt since it was not for Rs. 9,600/-. Complainant, panch and Shri. Khairnar then again went to the chamber of accused and showed their grievance of even not adjusting Rs. 2,000/-. Then accused was agreed to issue further receipt of Rs. 2,000/- without making any payment. Accused called accountant - Shri. Gedam and asked him to issue a receipt of Rs. 2,000/- to the complainant without accepting any money. Complainant then gave signal to A.C.B. by coming out of office. A.C.B. Officials then effected raid there. Thereafter, by testing with the help of solution of sodium carbonate, I.O. ascertained how the tainted amount passed hand. I.O. seized chits issued by accused and further seized a diary from Gedam, which shows entry of Rs. 4,000/- taken by Gedam from complainant and then payment of it to accused. I.O. seized various other articles and the testing material. I.O. then lodged written report to the police, on the basis of which, crime was registered as 3046 of 1999. The Investigating Officer moved the Home Department, Government of Maharashtra to obtain sanction for prosecuting the accused. On receipt of sanction from Upper Secretary of Home Department of State of Maharashtra, the accused was charge-sheeted. Prosecution examined altogether eight witnesses to support its case. The accused had defended the prosecution on the ground that he neither demanded nor accepted any bribe amount from the complainant and that he was falsely implicated in the case.
3. Learned trial Judge, who heard the evidence held that the prosecution had proved charges against the accused that he obtained bribe from the complainant as illegal gratification other than legal remuneration as a reward for official favour made to him and that accused being a public servant committed criminal misconduct by corrupt or illegal means, by abusing his position as public servant and without public interest, obtained bribe from the complainant, for his personal gain.
4. Learned Advocate for the appellant assailed the impugned judgment and order on merits as well as grant of sanction to prosecute the appellant-accused. He submitted that the prosecution had failed to prove the demand made by appellant-accused as also voluntary payment of bribe by the complainant. He also submitted that the appellant-accused had succeeded to establish his defence upon preponderance of probabilities so as to rebut the presumption under Section 20 of the Act, and furthermore, sanction, which was granted to prosecute the accused, was without any application of mind. He also submitted that the sanction was not from the competent authority like Deputy Chief Minister or Home Department of the State of Maharashtra as understood from the evidence. He also submitted that in view of cross-examination of PW.3 - Rameshkumar, it is clear that the sanction is accorded mechanically and without any application of mind.
5. On the other hand, learned Assistant Public Prosecutor (APP) submitted that the learned trial Judge had considered the entire evidence that the amount was paid to Shri. Gedam (PW.7) at the instance of accused, and Shri. Gedam had noted this fact in his personal diary. As regards delay in prosecuting the accused, learned APP submitted that it is not fatal to the prosecution case. In respect of granting sanction by Shri. Ramesh Kumar (PW.3), she submitted that there was Principal Secretary of the Home Department and he had gone through the papers and sent the same to Law and Judiciary Department so also to Deputy Chief Minister for approval, and according to him, approval was granted. Learned APP also submitted that in paragraph '8' of the impugned Judgment and order, the topic of sanction was discussed by learned trial Judge and, therefore, no interference would be required for conviction recorded by the trial Court. Before considering the rival submissions, it has to be borne in mind that the prosecution is required to prove all the charges beyond reasonable doubt. It is true that defence is entitled to adduce explanation apart from indicating by way of cross-examination of prosecutions witnesses that defence is reasonable and probable upon the test of preponderance or probabilities. In the event there is probable defence, it may be said that the accused succeeded to rebut the presumption which is statutorily raised against him under Section 20 of the Prevention of Corruption Act.
6. Looking into the evidence on record, evidence of PW.1 was only as regards handing over a letter along with muddemal to Wardha Police Station for registering an offence and muddemal of Crime No. 3047 of 1999 to C.A. Nagpur. PW.2 - Shri. Yadaorao Nemade was Assistant Sub-Inspector of Wardha Police Station in February - 1999. He had received complaint by Mr. Razvi (Exh.55), which gave rise to crime No. 3047 of 1999. PW.3 - Rameshkumar was Principal Secretary of Revenue and Forest Department. According to PW.3, in the year 1999, D.G., Anti Corruption Bureau, Bombay sent letter and relevant documents in respect of this crime to Additional Chief Secretary, Home Department, Government of Maharashtra for sanction to prosecute the accused. Then that letter and documents were scrutinized by Home Department and then it was sent to PW.3 as Secretary of Fisheries Department. He had received letter along with various documents pertaining to the said crime on 05/01/2000. Those documents were F.I.R., complaint, panchanama, various seizure panchanamas, statements of some witnesses, investigation report and other documents. According to PW.3, he had studied the documents and then as per procedure he sent that material to Law and Judiciary Department for their opinion about it. On receiving opinion from Law and Judiciary Department, he sent opinion note along with all the documents to Deputy Chief Minister through his concerned Minister, and according to him, approval was granted by Deputy Chief Minister to prosecute the accused.
7. However, it is grievance of the learned Advocate for the appellant that no such approval from Deputy Chief Minister was produced by the prosecution on record. Learned Advocate for the appellant also criticized evidence of Shri. Rameshkumar (PW.3) on the ground that PW.3 had received the draft sanction order. In para '4' of his evidence, he admitted that no any change was made in the draft sent by Anti Corruption Bureau. He also admitted that in the sanction order there is portion marked 'A' which clearly indicates the fact that the complainant met accused on 04/2/1999, asked him to deposit Rs. 7,600/- and to get receipt of Rs. 9,600/-. He also admitted that the portion marked 'A' was introduced in sanction order as per the the complaint as well as the report of D.G., ACB and other documents, however, it was difficult for him to point out any document which shows such fact. He also admitted that as per record legal fee for obtaining contract of tank was Rs. 9,600/- and as per record complainant deposited Rs. 7,600/- on 06/02/1999. He also volunteers that accused already accepted Rs. 4,000/- and, therefore, the accused accepted excess amount of Rs. 2,000/- as bribe. While, he also admitted that on 06/02/1999 receipt of Rs. 7,600/- was passed to the complainant and he wanted to verify this fact from record. He further admitted that he did not send any document to Anti Corruption Bureau to show that he was appointing and removal authority of accused nor he mentioned in his sanction order that he had obtained permission from Deputy Chief Minister for prosecution of the accused. Thus, on perusal of evidence of PW.3 - Rameshkumar, who obtained the sanction order, it is submitted that there was total non-application of mind on the part of Shri. Rameshkumar as vital admissions he gave in respect of the above facts during his cross-examination, created serious doubt in the mind as to whether Rameshkumar (PW.3) had really studied the documents received by him. According to learned Advocate for the appellant, grant of sanction to prosecute has to be accorded only after judicious application of mind by the sanctioning authority. Grant of sanction is not an idle formality. The provision for grant of sanction was with a purpose to protect public servant from frivolous prosecutions. Therefore requisite care has to be taken before the prosecution is launched.
8. In the present case, no evidence is led by the prosecution as to document of approval granted by the Deputy Chief Minister of Maharashtra to prosecute the accused. According to PW.3, he had followed the procedure to send the documents to Deputy Chief Minister as well as Home Department for scrutiny and approval. PW.3 did not produce any document to show that he was appointing and removal authority of the accused. Under these circumstances, learned Advocate for the appellant placed reliance upon ruling in the case of Bhagwan Mahadeo Sathe Vs. State & Anr. reported in 2011 ALL MR (Cri) 1221 to argue with reference to paragraph '10' of the ruling that in the present case the record indicates that the draft sanction order was accepted mechanically as it is and the sanction order (Exh.85) was verbatim reproduction of the draft sanction. This Court had referred to rulings in Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh [1979 CRI.L.J. 633] as also Gokulchand Dwarkadas Morarka Vs. The King [A.I.R.(35) 1948 Privy Council 82] which mentioned the principles for grant of sanction. 'The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servant against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. Furthermore, the sanction order to prosecute a public servant is a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.'
9. The evidence of PW.3 - Shri. Rameshkumar disclosed that there was non-application of mind while granting sanction to prosecute the accused. It cannot be overlooked that the grant of sanction is a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and, therefore, the procedure need to be strictly complied with before any prosecution can be launched against the public servant concerned. The valid sanction order by a competent authority is a condition precedent to launch prosecution against the Government servant in respect of alleged act/offence committed by him while performing public duty.
10. Learned Advocate for the appellant, therefore, submitted that in absence of approval from Deputy Chief Minister and the non-application of mind, which is apparent in the deposition by PW.3 - Rameshkumar, the learned trial Judge ought to have observed that the sanction was mechanically granted without any judicious application of mind and was hit by the principles stated in the ruling in Bhagwan Mahadeo Sathe (cited supra).
11. The next contention on behalf of the learned Advocate for the appellant is that there was delay of about 2.5 months in lodging the F.I.R. While according to PW.4 - Shri. Kanetkar (complainant), the raid was effected on 15/12/1998 and FIR was lodged on 17/02/1999 i.e. after 2 months.
12. Learned Advocate for the Appellant also made reference to the ruling in the case of State of Maharashtra Vs. Kashinath Shridhar Wani reported in 2010 ALL MR (Cri) 139 to argue that there was huge time gap between the alleged demand, the trap laid and the F.I.R. lodged. Learned Advocate for the appellant, therefore, submitted that because of this huge time gap the prosecution case was rendered weak. He also criticized the evidence led by the prosecution on the ground that the amount of alleged bribe was paid to Shri. Gedam and not to the accused, and Shri. Gedam was not indicted as an accused but was introduced and summoned as a witness by the prosecution. It gave rise to suspicion that prosecution against the appellant only was ill-motivated, while shielding the one who accepted bribe amount, as alleged.
13. Learned Advocate for the appellant also invited my attention to the evidence of PW.4 - Deepak Kanetkar (complainant) and pointed out that it was Shri. Gedam, who told complainant that the accused Badole told him to take money, if persons of society bring money and that receipt will be given later on. That money was for fish-seeds (very small fishes). Thus, alleged demand of bribe from the complainant was not made by the accused. Shri. Gedam had demanded and was paid sum of Rs. 4,000/- on 25/11/1998. The complainant alleged that the accused had told him to pay Rs.7,890/- for fish-seed, while according to complainant, he had already paid sum of Rs. 4,000/- to Shri. Gedam and Shri. Gedam noted this fact in his personal diary.
14. On 15/12/1998; when sum of Rs. 7,890/- deposited in the office of accused, receipt was given as stated by the complainant. According to complainant, the accused had asked him to deposit Rs. 9,600/- for allotment of Kunbadi tank but complainant told him that he will arrange money after discussing with executive of his society.
15. Learned Advocate for the appellant submitted and pointed out that the evidence led by the prosecution created doubt because the raid was conducted after gap of about three months of payment of Rs. 4,000/- to Shri. Gedam. This fact is also admitted by the complainant in paragraph '14' of his cross-examination. It is further admitted by the complainant in paragraph '17' of his cross-examination that he had not given any money in the hands of accused.
16. The complainant also admitted during his cross-examination that on 05/02/1999, he had not taken bribe amount with him when he went to ACB's office. According to complainant, the accused had asked him as to whether he had brought whole amount of contract and insisted to deposit entire amount of contract. In paragraph '27', the complainant admitted that I.O. had instructed him that if the receipt of Rs. 7,600/- is given then it will not be presumed that the bribe was accepted. The prosecution had also examined Shri. Gedam as PW.7, who deposed that on 25/11/1998, accused had gone to receive their Deputy Director. According to PW. 7, he had also been instructed by the accused to obtain Rs. 4,000/- from Dolphin Society Members and receipt of the same will be given later on. Thus, complainant had paid him Rs.4,000/-, which he noted in his personal diary. On 29/01/1999, the accused was on tour. The accused had, while leaving office, told to Shri. Gedam to receive Rs. 9,600/- from the Dolphin Society Personnel towards lease of pond and to issue receipt of that amount to them.
17. in view of above admissions during the course of evidence of Shri. Gedam, learned Advocate submitted that Shri. Gedam admitted that the accused had instructed him to collect the amount and issue the receipt, which does not indicate the guilty mind of the accused or at any rate although the alleged bribe amount is accepted by Shri. Gedam, he has not been indicted as an accused. The suspicion created from the evidence of complainant and Shri. Gedam would rescue the appellant as he cannot be convicted on the basis of suspicion even if grave arising from the evidence on record. Learned Advocate for the appellant also invited my attention to the impugned judgment and order and pointed out that the learned trial Judge himself was not fully satisfied, when evidence of Shri. Gedam was considered. In the course of judgment, in paragraph '13', the learned trial Judge observed thus;
"13. Corroboration of complainant's version of payment of Rs. 4000/-, came from PW.7 - Ramdas Gedam. Complainant and Gedam, both deposed that Gedam took entry of that payment in his personal diary. PW.7 - Gedam further deposed that he paid that amount of Rs. 4,000/- to accused on 12.12.1998. Gedam proved such entry in his diary, which is at Ex-146 which shows that Gedam received Rs. 4,000/- from member of Dolphin Society on 25.11.1998 and then he paid back that amount to accused on 1.12.1998. However, that diary was 3-4 years old at that time and it was not maintained in regular course of business or as per sequence of events. Therefore, no importance can be attached to such entries in diary of Gedam. I do not hesitate to fall back on ratio laid down in the authority of 'L.K. Advani -Vs- C.B.I., 1997 Cr.L.J. 2559 (C) (Delhi)' in which it was held that diary haphazardly maintained, can not come within the ambit of books of accounts and so not admissible as evidence. Such is the case in hand also. Therefore, I do not place any reliance on such diary."
18. No reliance was placed by learned trial Judge on the diary of Shri. Gedam and he had not given much importance to the evidence of Shri. Gedam. Therefore, learned Advocate for the appellant submitted that when learned trial Judge was unable to rely upon such evidence, benefit of doubt arising from the evidence, ought to have been granted in favour of the appellant-accused particularly when evidence of Shri. Gedam (PW.7), who had received the alleged amount of bribe, was not indicted as an accused. Learned Advocate for the appellant submitted that there has to be a substantive evidence of demand as well as acceptance of bribe amount and it is settled canon of criminal jurisprudence that conviction of accused cannot be founded upon inferences as offence of corruption is required to be proved beyond reasonable doubt. Learned Advocate for the Appellant also placed reliance on the ruling in the case of Banarsi Dass Versus State of Haryana reported in (2010) 4 SCC 450 : [2010 ALL MR (Cri) 1608 (S.C.)], in which, Apex Court considered the requirement of standard of proof in such cases with reference to earlier rulings and held that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case. Learned Advocate for the appellant also referred ruling in the case of Raju s/o. Somla Pawar Vs. State of Maharashtra reported in 2009 ALL MR (Cri) 384 and canvassed that benefit of doubt of suspicion arising from the evidence led by the prosecution ought to be granted in favour of the accused and the ruling of Raju Pawar (supra), wherein the conviction and sentence was quashed and set aside.
19. Having considered the arguments advanced and the vital admissions given in the course of evidence by witnesses, as also the fact that grant of sanction in the present case suffered from non-application of mind as draft sanction order itself was accepted mechanically as it is and no care was taken by the prosecution to produce any document as to approval by Deputy Chief Minister for prosecution of the accused. Learned trial Judge committed an error of law by accepting the sanction as valid. The prosecution also failed to adduce evidence beyond reasonable doubt so as to impute criminal liability on the part of the accused for offences with which he was charged. For all these reasons, the impugned judgment and order is unsustainable according to law and, therefore, it has to be set aside. Hence, Appeal is allowed. The impugned judgment and order is set aside. The amount of fine, if any, paid by the accused be refunded to him. Bail bonds shall stand cancelled.