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2002 DIGILAW 812 (BOM)

Prakash Ramrao Kute v. State of Maharashtra

2002-08-16

R.S.MOHITE

body2002
JUDGMENT - R.S. MOHITE, J.:---In this appeal, the appellant seeks to quash and set aside the judgment and order dated 26-10-1999 whereby the Special Judge, Washim, has convicted the appellant under the provisions of section 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month. 2. The prosecution case was that the accused was working as a Canal Inspector. On 3-1-1996 he had measured the land of the accused situated in village Vakapur. The measurement was required to be done in connection with a complaint that the complainant Sudhakar Wankhede had taken the canal water. After taking the measurement, on 19-1-1996 the accused had met the complainant Sudhakar and told him that, Saaheb had called him. On 23-1-96 the complainant visited the office alongwith one Prabhakar Wankhede. The appellant met him and told him that he had prepared the panchanama of his field and that the complainant would have to pay Rs. 300/- and if he failed to pay Rs. 300/-, then he would have to pay Rs. 900/- as fine which was three times the amount of the fee. The appellant is alleged to have said that if the complainant paid the amount, he would not forward the panchanama. The appellant is alleged to have demanded Rs. 200/- and this was agreed to be paid by the complainant, but he had not paid the same on that date. 3. On 4-2-1996 the complainant met the appellant and the appellant is said to have again demanded an amount. 4. On 6-2-1996 Sudhakar visited the office of the Anti Corruption Bureau and filed the complaint. 5. On 7-2-1996 a pre-trap panchanama was prepared and the police party alongwith panchas and the complainant proceeded to Selu Bazar, there the complainant alongwith shadow panch Padole met the accused at the bus-stand and proceeded to hotel where they were taking a cup of tea. On that place the accused is said to have asked the complainant Sudhakar as to whether he had brought the amount. Sudhakar replied that he would pay the amount and panchanama should not be sent to the upper office, to which the appellant said that if the complainant paid Rs. On that place the accused is said to have asked the complainant Sudhakar as to whether he had brought the amount. Sudhakar replied that he would pay the amount and panchanama should not be sent to the upper office, to which the appellant said that if the complainant paid Rs. 200/-, he would not send the panchanama to the higher officer. The complainant then paid Rs. 200/- which was accepted by the appellant and kept in his pocket. Thereafter, the signal was given and the trap was sprung. 6. The post trap panchanama was prepared on 13-1-1996 which is at Exh. 14. 7. The defence of the appellant as can be seen from his statement recorded under section 313 Cri.P.C. as well as suggestions given to the witnesses was categorical and precise. It was his contention that the complainant was not a stranger, but was in fact his distant relative, that the complainant Sudhakar had taken a hand loan of Rs. 500/- from the appellant at the time of sowing season and thereafter he had repaid an amount of Rs. 300/- after selling Mung and had assured the appellant that he would repay the remaining amount of Rs. 200/- afterwards. He has admitted that there occurred a dispute between the complainant and himself on the ground of execution of panchanama and that he had only demanded outstanding amount of Rs. 200/-. 8. It is thus seen that the acceptance of Rs. 200/- as such is not disputed but the defence is that the demand as well as acceptance of an amount can not be said to be of a illegal gratification. 9. I find that as far as the first demand dated 23-1-96 is concerned, the purpose of the demand of Rs. 200/- is not mentioned at all. The statement that the panchanama would not be forwarded if the amount was paid relates to the earlier sentence which is in relation with legal remuneration charges. In the F.I.R. there is mention of a demand being made by the appellant on 27-1-96 at Selu Bazar, but there is no whisper in the substantial evidence of the complainant. As regards the demand made on 7-2-1996, in the hotel, in cross-examination it is specifically mentioned that this demand was made in respect of the amount of Rs. 200/- which was outstanding against the complainant Sudhakar. As regards the demand made on 7-2-1996, in the hotel, in cross-examination it is specifically mentioned that this demand was made in respect of the amount of Rs. 200/- which was outstanding against the complainant Sudhakar. In the cross-examination, Sudhakar has admitted that the appellant was his distant relative, that he had taken a loan of Rs. 500/-, of which Rs. 300/- was pending (sic paid) and that Rs. 200/- was outstanding against him. This is precisely the defence version. 10. In para 25 of the impugned judgment the aforesaid discrepancies have been explained by the trial Court by stating that the story of demand being in relation to the hand loan was never suggested to the panch P.W. 3. This is a factually incorrect statement as such a suggestion was in fact clearly made to the panch as it can be seen from paragraph 6 of the cross-examination of P.W. 3 Ashok Padole. In any case, Ashok Padole, who is panch would not know about the hand loan transaction and even if a suggestion has not been made it would not have been fatal to the defence. In the circumstance, in my opinion in the present case the prosecution has failed to prove that the demand and acceptance was in relation to an amount other than illegal gratification as contemplated under section 7 and in the circumstances, the evidence can not be said to indicate that the appellant had obtained for himself anything by corrupt or illegal means or by abusing his position as a public servant. 11. In the result, appeal will have to be allowed and the impugned judgment and order passed by the Special Judge, Washim on 26-10-1999 in Special Case No. 3 of 1996 is quashed and set aside and the appellant is acquitted of all charges against him. The bail bond given by the appellant will stand cancelled and he will be entitled to refund of fine, if paid. Appeal allowed. -----