Dismissed

Baban Namdeo Mhaske v. the State of Maharashtra

Bombay HC11 Jan 2016APEAL/148/2001

Case brief

AI extract

What is this about?

This criminal appeal challenging a conviction under the Prevention of Corruption Act for demanding a bribe to sanction a salary bill. The High Court examined evidence from a trap and held that the prosecution proved the case beyond reasonable doubt. The appeal in sanction and conviction was dismissed.

What did the court decide?

Criminal Appeal dismissed; bail bonds cancelled; appellant directed to serve sentence.

Baban Namdeo Mhaske Vs the State of Maharashtra — Corruption | Bombay HC (2016)

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[1] CR. APPEAL 148/2001 – JUDGMENT

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 148 OF 2001

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Baban S/o Namdeo Mhaske,
Age 54 years, Occu. : Service
at present working in Adult Education
Office, Zilla Parishad, Jalna .. Appellant
 (Orig. Accused)

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 VERSUS

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The State of Maharashtra
through Anti Corruption Bureau,
Beed .. Respondent
 (Orig. Complainant)

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Mr. M.K. Deshpande, Advocate for the appellant
Mr. S.D. Ghayal, A.P.P. for the respondent/State

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 CORAM : M.T. JOSHI, J.
 RESERVED ON : 03/12/2015
 PRONOUNCED ON : 11/01/2016

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JUDGMENT :

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Heard both sides.

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2.The present appellant was convicted by the

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learned Special Judge cum Additional Sessions Judge,

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Beed vide judgment and order dated 09/03/2001 passed

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in Special Case No. 53 of 1993 for the offences

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punishable under section 7, 13(1)(d) r/w. 13(2) of

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[2] CR. APPEAL 148/2001 – JUDGMENT

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the Prevention of Corruption Act, 1988. He was

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sentenced to suffer rigorous imprisonment for a
period of 1 year and to pay fine of Rs.1,000/- on
each of the counts, respectively. Hence, the present
appeal.

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3. The prosecution case, in nutshell, is as

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under:-

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.PW1 – complainant Ramdhan Dapkar during the

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relevant period was Assistant Teacher in Nalanda
Vidyalaya, Kaij, Dist. Beed. He was terminated from
the services on 30/04/1988. The School Tribunal
however vide judgment passed on 24/04/1989 reinstated
him with a direction to pay full back salary with
allowances. The complainant resumed the services on
25/04/1989 and the issue of payment of back salary
remained pending.

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.Ultimately, on 17/8/1992, the Headmaster of

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the school DW1 - Sham Thorat had sent a bill to the
Education Officer, Zilla Parishad, Beed for payment

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[3] CR. APPEAL 148/2001 – JUDGMENT

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of the said salary. As per the procedure, the bill
was sent to the Pay Unit and, thereafter, the payment
was to be received through bank. As the bill was not

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passed, ultimately, the complainant went to the
Office of the Education Department of Zilla Parishad
on 01/02/1993. The present appellant, being a Clerk
was dealing with the file of the complainant.
The appellant at that time made demand of Rs.2,000/-
for sanction of the bill. The complainant showed his
inability by saying that he was unable to raise
Rs.2000/- and said that as and when the amount under
the bill would be received, he would pay the amount
to the appellant. The appellant however said that as
per his experience, nobody turns back once the bill
is received. Ultimately, the complainant agreed to
pay Rs.1000/- after he would receive the then current
salary.

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.Again on 05/02/1993, the complainant met the

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appellant. At that time, when the appellant
questioned about the payment, the complainant falsely

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[4] CR. APPEAL 148/2001 – JUDGMENT

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said that he was yet to get the salary and promised

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that he would pay the amount by next Monday.

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Again, on 08/02/1993, the complainant met the
appellant in his office. The appellant made enquiry
about the money. At that time, the complainant told
that he had only Rs.200/- and offered the same with a
promise that rest of the amount would be paid on
Tuesday i.e. 09/02/1993. The appellant however said

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that the complainant did not know as to how to get
the work done and told that the full amount be
brought and then the work would be done. Upon that,
the complainant told the appellant that he would
bring the entire amount of Rs.1000/- on the next day
and went away. However, since he did not wish to pay
the bribe, he filed complaint with the Anti
Corruption Bureau, Beed on 09/02/1993 at Exhibit 28.

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4.PW3 - the then Superintendent of Anti

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Corruption Bureau Mr. Bhaurao Chavan conducted the
investigation in the offence. He collected two panch

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witnesses including PW2 – Vishnupant Tandle, the

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[5] CR. APPEAL 148/2001 – JUDGMENT

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Agricultural Assistant serving with the Sub

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Divisional Agricultural Office Training and Visit
Scheme, Beed. In their presence, complaint was read
over. Demonstration about the application of
anthracene powder was shown. Decoy money brought by
the complainant was smeared with anthracene powder.
The same was kept with the complainant. The shadow
panch witness PW2 – Vishnupant Tandle was asked to
accompany the complainant at the time of transaction
of handing over of the decoy money and the rest of
the team of the Anti Corruption Bureau followed them.

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5.At about 3.00 pm, the complainant and the
shadow panch witness waited in the premises of the
office of the Education Department. At about 3:45
pm, the appellant came from outside towards the

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office. After the greetings were over, the
complainant in presence of the shadow panch witness
asked the appellant about his work. Upon that, the
appellant asked as to whether the amount is brought.

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The complainant answered in the affirmative. Upon

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[6] CR. APPEAL 148/2001 – JUDGMENT

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that the appellant said that he was going to make
water and, therefore, the complainant should follow
him. Thereafter, the complainant and the appellant
went towards the open space, which was towards the
western side of the office. They urinated in
standing position and returned back. While walking,

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the appellant forwarded his hand before the
complainant. The complainant handed over the decoy
money to him. The appellant kept the same in his
right trouser pocket. Upon that the complainant gave
the predetermined signal. Therefore, the raiding
party apprehended the appellant and next of the
exercise of examination of the clothes and hands of
the appellant and the complainant under the ultra-
violet lamp had started. Said exercise confirmed the
transfer of the decoy money from the complainant to
the trouser pocket of the appellant.

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.Appellant was therefore arrested. Necessary
panchanamas were prepared. Statements of the
witnesses were recorded. Photocopy of the letter

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[7] CR. APPEAL 148/2001 – JUDGMENT

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from the Headmaster, photocopy of the bill and copy

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of the judgment of the School Tribunal were seized
from the office of the appellant, under the post-trap
panchanama. The Investigating Officer thereafter
forwarded the necessary documents to the then
Regional Deputy Director of Education, Aurangabad for
according sanction to prosecute the appellant.
Accordingly, PW4 - Mr. Tukaram Londhe - the then
Regional Deputy Director accorded the sanction at
Exhibit 41. Thereafter, the chargesheet came to be
filed.

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6.Before the learned Special Judge cum

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Additional Sessions Judge, Beed, the complainant was
examined as PW1. Shadow panch witness Mr. Tandale
was examined as PW2. The Investigating Officer was

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examined as PW3 and the sanctioning officer was
examined as PW4.

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7.The defence of the appellant was that in-

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fact, arrears of salary was already received by the

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[8] CR. APPEAL 148/2001 – JUDGMENT

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appellant from the school itself. No original
documents were submitted by the school for sanction
of any bill. On 7th February, 1993, the complainant

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met him and pressed for sanction of the bill only on
the basis of the photocopies of the documents. The
appellant told him that he is not authorized to
sanction any bill and only on the photocopy, no bill
would be sanctioned. The complainant was enraged by
these facts and, therefore on 09/02/1993, while the
appellant was returning from making water, in the
ground the complainant offered the money. The
appellant refused the same. However, the complainant
forcibly put the decoy money in his pocket and within

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no moment, the appellant was caught by the
Investigating Officer.

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8.The learned Special Judge found the

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prosecution case as proved beyond reasonable doubt.

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The sanction was also found to be valid and,
therefore, the conviction and sentences, as detailed
supra came to be recorded.

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[9] CR. APPEAL 148/2001 – JUDGMENT

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9.Mr. Deshpande, learned counsel for the

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appellant submitted that the admission of the
complainant coupled with the deposition of the
defence witness – the Headmaster, would show that the
complainant had already received the arrears of
salary from his school. Further, the prosecution

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case itself is that only the photocopies of the
documents were seized. Further, there are vast

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contradictions between the statements of the
prosecution witnesses, which would show that the
shadow panch witness was not able to hear any

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conversation between the appellant and the

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complainant and in the circumstances, he submits that

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the learned trial Court ought to have extended
benefit of reasonable doubt and acquitted the
appellant.

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10.On the other hand, the learned A.P.P.

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submitted that for some minor variation in the oral

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evidence, no benefit of doubt can be extended to the
appellant.

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[10] CR. APPEAL 148/2001 – JUDGMENT

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11.As regards the sanction, Mr. M.K. Deshpande

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submitted that the evidence of PW4 would show that he
has not applied his mind and no necessary documents
were supplied to him. On the other hand, learned
A.P.P. submitted that the evidence would show that

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the sanction is legal and valid.

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12.On the basis of this material, following

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points arise for my determination:-

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I) Whether the sanction accorded by PW4
to prosecute the appellant is legal and
valid ?

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II) Whether the prosecution has proved
that from 01/02/1993 till 09/02/1993,
the appellant made a demand of Rs.2000/-
and, thereafter, of Rs.1000/-, as
remuneration other than any legal
remuneration for facilitating the
sanction of bill of arrears of salary of
the complainant ?

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III) Whether the prosecution has proved
that during the above said period, the

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[11] CR. APPEAL 148/2001 – JUDGMENT

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present appellant has attempted to make
pecuniary gain and has accepted the same
by corrupt and illegal means ?

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My findings to all the above points are in the
affirmative. The appeal is therefore dismissed for
the reasons to follow.

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R E A S O N S

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13.The deposition of PW1 - the complainant, PW2

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– the shadow panch witness would show that on the day

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of the trap, the appellant made the demand of amount
of Rs.1000/- for facilitating the sanction of the
bill. The deposition of PW3 – Investigating Officer
would show that from some distance, he had occasion
to see the voluntary transfer of the decoy money from
the complainant to the appellant.

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14.The complainant further deposed about the
previous demands made by the appellant for doing the

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[12] CR. APPEAL 148/2001 – JUDGMENT

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needful. During cross-examination, he admitted that

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he had however already issued to the school the
acknowledgment of receipt of the arrears of salary
from the school. He however denied that any payment
was made to him. DW1 – the Headmaster had deposed
that in-fact the arrears of salary was paid to the
appellant and he has accordingly signed the
acquittance roll. It is however the defence case
itself that photocopies from the letter from the
Headmaster and the photocopy of the judgment of the
School Tribunal was seized from the custody of the
present appellant. Thus, it is clear that the issue
of payment of arrears of salary was forwarded to the
office of the appellant. Obtaining signatures over
the acquittance rolls by the Headmaster, therefore,
is of little consequence, so far as the present
controversy is concerned.

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15.According to the prosecution, the appellant

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has accepted the bribe amount in the open space after
returning from making water by the west side of the

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[13] CR. APPEAL 148/2001 – JUDGMENT

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office. It has come on record that though there is a
constructed urinal, the people used to make water in
the open space. According to the appellant also, the
amount was thrust in his pocket in the said open
space. The complainant has deposed in examination-
in-chief that while the shadow panch witness remained
behind, the appellant made enquiry with him that
whether he had brought the money, which he answered
in the affirmative. The shadow panch witness PW2 –
Tandale deposed that he has heard the conversation
between the two that the appellant and the
complainant made enquiry with each other about the
work and about the money. Further, when the
complainant told that the money was brought, the
appellant asked the complainant to accompany him for
going to make water and while returning from making
water, at the backside of the office, the appellant
again made demand of money to the complainant and
complainant handed over same to the appellant.
He has deposed that for all the time, he was
following both of them.

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[14] CR. APPEAL 148/2001 – JUDGMENT

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16.Though the complainant has deposed that the
shadow panch witness remained behind, no suggestions
were given either to the complainant or to the shadow
panch witness that the distance between them was such
that he was not able to hear any conversation that
took place between the appellant and the complainant.

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17.The shadow panch witness PW2 – Tandale had
no interest in the case. There is nothing on record
to show as to why he would make a false statement
that he had heard the conversation between the
appellant and the complainant. Besides them, PW3- the
Investigating Officer Mr. Bhaurao Chavan has deposed
that he, as well as the rest of the members of the
raiding party were standing in the compound of the
office and they had seen the voluntary transfer of
the money. In that view of the matter, merely for

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certain minor variation, as detailed supra, the
prosecution case cannot be thrown away.

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[15] CR. APPEAL 148/2001 – JUDGMENT

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18.Mr. M.K. Deshpande however relied on the
ratio of eight (8) cases, wherein on facts, inter-
alia finding that the prosecution evidence is
unreliable, the accused were acquitted, which are as

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under:-

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1) “ Avinash Sitaram Garware Vs. State of Maharashtra” 2008 (1) Bom.C.R. (Cri.) 260

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2) “ State of Maharashtra Vs. Dnyaneshwar Laxmanrao Wankhede” 2009 ALL MR (Cri.) 3127 (S.C.)

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3) “ Arjun Bajirao Kale Vs. The State of Maharashtra” 2009(2) Bom.C.R.(Cri.) 202

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4) “ Panalal Damodhar Rathi Vs. State of Maharashtra” 1979 CRI. L.J. 936(1)

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5) “ Suraj Mal Vs. The State (Delhi Administration)” 1979 CRI.L.J. 1087(1)

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6) “Pandharinath Shelke Vs. State of Maharashtra” 2005(2) Bom.C.R. (Cri.) 940

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7) “Banarsi Dass Vs. State of Haryana” 2010 AIR (SC) 1589

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8) “Manohar Ravan Kamble Vs. State of Maharashtra” 2011 BCI 110

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19.On facts, however, we have found that the

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[16] CR. APPEAL 148/2001 – JUDGMENT

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prosecution has proved its case beyond reasonable
doubt.

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20.As regards the sanction to prosecute the
appellant, PW4 – Tukaram Londhe has deposed that the
case papers were sent to him and after examining the

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same, he was satisfied that it was a fit case in
which the sanction was necessary and, therefore, he
granted sanction to prosecute the appellant. During
cross-examination,he deposed that besides the
statement of the witnesses and the panchanamas, no
other documents were amongst those case papers.

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21.On the strength of this statement,

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Mr. Deshpande submits that when entire set of
investigating papers were not sent to the sanctioning
authority, it cannot be said that the sanctioning
authority had any occasion to completely examine the
papers.

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22.It is however to be noted that the

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statements of witnesses includes the complainant's

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[17] CR. APPEAL 148/2001 – JUDGMENT

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statement and the recital in the panchanamas would

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also include the facts. In that view of the matter,

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no fault can be found with the sanction granted by

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PW4. In the result, the following order:-

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23.Criminal Appeal is hereby dismissed.

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24.Bail bonds, if any, of the appellant shall

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stand cancelled.

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25.The learned Special Judge is directed to

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take steps for securing the presence of the appellant

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to serve the sentences awarded to the appellant.

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[M.T. JOSHI] JUDGE

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arp/

Baban Namdeo Mhaske v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Baban Namdeo Mhaske v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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