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2013 DIGILAW 240 (BOM)

State of Maharashtra v. Shaikh Ismail Valisaheb

2013-01-29

T.V.NALAWADE

body2013
JUDGMENT The appeal is filed by the State against judgment and order of acquittal, delivered by Special Judge and Additional Sessions Judge, Osmanabad in Special Case No. 4/1998. The respondent is acquitted of the offence punishable under sections 7, 13(1)(d) r/w. S.13(2) of Prevention of Corruption Act. 2. Both the sides are heard. This Court has perused the original record. 3. In short, the facts leading to institution of appeal, can be stated as follows:–– Complainant Ratan Rankhamb owns agricultural land in village Kad-dora, Tahsil Omerga, District Osmanabad. Initially, he used to approach his field through the land of one Dwarkadas Laddha. Dwarkadas sold this land to others and the purchasers prevented the complainant from using the old way. On 9.9.1997, the complainant approached the accused, Circle Inspector of Revenue Department. The complainant and his relatives, who were interested in getting the right of way through the others land, requested the accused to see that way is created in the land of the aforesaid purchasers. 4. The accused demanded Rs.3,000/- as a bribe for helping the complainant and his relatives. The complainant said that he was not in a position to give Rs. 3,000/- and so the matter was settled at Rs. 1,000/-. On 9.9.1997 itself the amount of Rs. 500/- was handed over to the accused and it was decided that the remaining amount was to be given after creation of the road by the revenue authority. On that day, the accused helped the complainant for preparing application, which was to be submitted to the revenue authority for creation of the road. This application was submitted before Tahsildar, who can make some orders under Mamlatdars' Courts Act. 5. On 20.9.1997 the accused visited the field of complainant and the other fields for inspection and prepared panchanama. On that day, accused again demanded Rs. 500/-. This demand was not met with and the complainant promised to give the amount subsequently. The complainant met the accused in Tahsil Office, Omerga on 10.11.1997 and 17.12.1997. On these days also, the accused demanded Rs. 500/-, the remaining amount. As the complainant had no desire to meet this demand, he gave complaint to Anti Corruption Bureau (ACB) on 17.12.1997. 6. Action was taken by ACB on 18.12.1997. The trap money was supplied by the complainant. Necessary formalities were followed in the presence of the panch witnesses. On these days also, the accused demanded Rs. 500/-, the remaining amount. As the complainant had no desire to meet this demand, he gave complaint to Anti Corruption Bureau (ACB) on 17.12.1997. 6. Action was taken by ACB on 18.12.1997. The trap money was supplied by the complainant. Necessary formalities were followed in the presence of the panch witnesses. One panch was given in the company of the complainant to witness the incident of trap. On 18.12.1997 the complainant went with panch witness to the residential place of accused. The panch witness stayed away from the complainant. Complainant gave call to the accused and he had a talk with accused. It was at about 11.00 a.m. The accused was proceeding towards Tahsil Office and the complainant started walking with him. Panch witness kept some distance and he started following these two persons. On the way to Tahsil Office, the accused again demanded Rs. 500/- to the complainant. The complainant took out the tainted money and handed over the tainted money to the accused. Accused kept the tainted amount in left chest pocket of shirt by using right hand. When complainant gave pre-decided signal, the Officers of the ACB rushed on the spot. After seeing the Officers, the complainant took out the tainted money from the shirt pocket and threw it on the road. This amount was collected in the presence of second witness by the ACB. Antrascene powder was detected on the right hand of the accused and also in the chest pocket of the shirt. Panchanama was drawn accordingly. The incident came to be narrated by the panch witness, who was with the complainant at the relevant time. Accused took the defence that the amount was forcibly thrusted in the chest pocket of his shirt. Police collected the record like report given by the accused to the Tahsildar and also the panchanama prepared by him, as per the directions given by the Tahsildar. After completion of investigation, the matter was placed before the sanctioning authority and sanction came to be accorded. 7. The charge came to be framed for aforesaid offences. The accused pleaded not guilty. The accused took the defence that there was no work of complainant left with him and the amount was forcibly thrusted in to chest pocket of his shirt. The trial Court has not believed the complainant and panch witnesses. 7. The charge came to be framed for aforesaid offences. The accused pleaded not guilty. The accused took the defence that there was no work of complainant left with him and the amount was forcibly thrusted in to chest pocket of his shirt. The trial Court has not believed the complainant and panch witnesses. One defence witness is examined by the accused, whose presence on the spot at the relevant time, is admitted by Investigating Officer. The trial Court has held that there is other probability, of forcibly thrusting of amount in the shirt pocket. The trial Court has also relied on the circumstance that the order was to be made by Tahsildar and the report in that regard was already submitted by the accused to Tahsildar and no work was left with the accused, for which he could have extracted any amount as a bribe. 8. Ratan (PW 1), the complainant, has given evidence that the first demand was made when he had approached accused for getting his help. He has tried to say that he had collected amount of Rs. 500/- from Ganpati, Gorakh, who were also interested in getting the road through the land of the neighbour. He has tried to say that the remaining amount was to be given only after creation of road by the revenue authority. It appears that the first incident took place on 9.9.1997. 9. Vilas (PW 4) has given evidence that on the first occasion, he had given the contribution for giving the amount of Rs. 500/- to the accused and on that occasion, accused had helped them in preparing the application. The evidence of this witness and complainant shows that in their presence, the panchanama of the land was prepared in September itself by the accused. It does not look probable that this witness did not know that the matter was pending before the Tahsildar and the accused was bound to follow the instructions given by Tahsildar to him. The evidence of Gorakh (PW 5) is similar to these two witnesses. 10. The Complainant has given evidence that he and witness Vilas had approached accused at Omerga 8-10 days after preparation of panchanama by the accused. He has deposed that accused had demanded money from him and accused had said that only after giving of the amount, the road will be created by revenue authority. 10. The Complainant has given evidence that he and witness Vilas had approached accused at Omerga 8-10 days after preparation of panchanama by the accused. He has deposed that accused had demanded money from him and accused had said that only after giving of the amount, the road will be created by revenue authority. The record collected by ACB shows that the panchanama was prepared on 20.9.1997 and the report favourable to the complainant was submitted on the same day by the accused. The trap was laid in December on 18.12.1997. Thus, the evidence of complainant that 8-10 days after preparation of the panchanama, accused had made the demand does not appear to be probable. In the complaint dated 17.12.1997, it is mentioned that the demand was made on that day. Thus, the substantive evidence is not consistent with the contents of complaint in respect of the date of demand. The other two witnesses have tried to say that second demand was made only on the day, when the panchanama was prepared. Thus, there is no corroboration to the evidence of complainant that on the second occasion Vilas was in his company. 11. It is surprising to note in this case that during trap, panch witness Vithal (PW 2) did not remain in the company of complainant. His evidence shows that he stayed away from the complainant and when complainant was walking with the accused, Vithal was following them. It is already observed that a relative of the accused was in his company at the relevant time and he was also walking with the accused towards Tahsil Office. The presence of this witness on the spot at the relevant time is admitted by the Investigating Officer. The evidence of complainant and another witness does not show that Vithal (PW 2) was really at close distance from the complainant and accused and he was able to listen the conversation, which was going on in between complainant and the accused. This circumstance is important, as there will be no corroboration to the version of complainant of independent witness, if the evidence of Vithal (PW 2) is excluded. In view of nature of evidence given by Vithal, it does not look probable that he was able to listen the conversation. 12. The complainant has given evidence that during talks, accused made demand of Rs. In view of nature of evidence given by Vithal, it does not look probable that he was able to listen the conversation. 12. The complainant has given evidence that during talks, accused made demand of Rs. 500/- and when he handed over tainted money, the accused kept the amount after accepting it in chest pocket of shirt. It appears that right hand was used by the accused as per the version of the complainant. The evidence on record shows that the accused was carrying one bag, containing some papers of him. The complainant has not said anything about this bag and the panch witness also has not said anything about this bag. This bag was not examined in ultra violet rays to ascertain as to whether there was anthrascene powder on this bag. The complainant has given evidence that when the officers held both the hands of the accused after getting signal, the accused took out the tainted money and threw it on the road. Panch witness Vithal and Investigating Officer have given evidence that only after seeing the officers of ACB, the amount was thrown on road by the accused and after that his both the hands were held by ACB Officers. Thus, there is inconsistency on this part of the story in the evidence of complainant and other two witnesses. This inconsistency also cannot be ignored as the accused has come with the defence that the amount was forcibly thrusted in to pocket of his shirt and he immediately took out the amount and threw it on the road. The evidence of the Investigating Officer shows that the amount was then collected by other panch witness from the road. This other panch witness is not examined. In view of the facts and circumstances of this case, it was necessary for prosecution to examine the other panch also, as he could have given evidence on aforesaid alleged incident. 13. The defence witness is close relative of accused, but he has supported the defence taken by the accused. As his presence is admitted on the spot, his statement was recorded by Investigating Officer, due weight needs to be given to the evidence of the defence witness. 14. It does not look probable that the complainant was under belief that the accused can make the order of creation of road through the land of others under Mamlatdars' Courts Act. As his presence is admitted on the spot, his statement was recorded by Investigating Officer, due weight needs to be given to the evidence of the defence witness. 14. It does not look probable that the complainant was under belief that the accused can make the order of creation of road through the land of others under Mamlatdars' Courts Act. The application was addressed to Tahsildar and role of the accused was limited, which was already done by the accused. Only copy of panchanama and copy of report were taken over by the ACB Officers during investigation. It was necessary to take over copies of all the papers of that file from Mamlatdar's/Tahsildar's Court. The power to make such order vests in Mamlatdar/Tahsildar under Mamlatdars' Courts Act and it is very difficult to create such road, when there is the opposition. These circumstances need to be kept in mind while appreciating the evidence given in such a case. This Court holds that there is other possibility in this case and there is possibility of concoction. The view taken by the trial Court is a possible view and this Court holds that interference is not possible in the decision given by the trial Court. 15. Reliance was placed by the advocate for respondent on two reported cases like 2009 CRI.L.J. 3450 : [2010 ALL SCR 1115] [A. Subair Vs. State of Kerala] and 2012 CRI.L.J. (NOC) 125 (KAR.) [State by the Police Inspector, Chitradurga Vs. V. Nagendrappa]. Facts of these two cases are different. In the first case, the complainant was not examined and in the second case, shadow witness did not support the prosecution case. This Court has discussed the relevant facts of the present case. 16. As interference is not possible, the appeal stands dismissed. 17. Fees of Advocate Mrs. Madhubala Gangwal, who is appointed by this Court, is quantified at Rs. 4000/- (Rupees four thousand). Appeal dismissed.