Dismissed

Dilip Sheshrao Metalwad. v. the State of Maharashtra.

Bombay HC19 Dec 2017APPLN/2398/2017

Case brief

AI extract

What is this about?

In an application under s. 482 CrPC challenging an order rejecting a discharge plea in a corruption case, the High Court upheld the trial court's decision. The bench held that prima facie evidence of money demand existed and discharged applications were correctly rejected, dismissing the petition.

What did the court decide?

Criminal Application No.2398/2017 dismissed; trial proceedings to continue.

Dilip Sheshrao Metalwad. Vs the State of Maharashtra. — Corruption | Bombay HC (2017)

¶1

- 1 -

¶2

Cr.Appln.2398/17

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

BENCH AT AURANGABAD

¶5

CRIMINAL APPLICATION NO.2398/2017

¶6

Dilip s/o Sheshrao Metalwad,
age 33 yrs., occu.service (suspended),
r/o Ravinagar, Kapileshwar Nagar,
New Kautha, Nnded.
Tq. & Dist.Nanded.

¶7

...Applicant..

¶8

Versus

¶9

1]The State of Maharashtra,
through Anticorruption Bureau,
Osmanabad. Tq. & Dist.Osmanabad.

¶10

2]Balbhim s/o Balu Kshirsagar,
age 30 yrs., occu.business,
r/o at present c/o Jawahar Dhohare,
Sai Chowk, New Sangvi, Pune, AND
permanent r/o Borul Tq.Tuljapur
Dist.Osmanabad.

¶11

...Respondents...

¶12

 .....

¶13

Shri J.M. Murkute, Advocate for applicant.
Shri K.S. Patil, APP for respondent no.1.
Respondent no.2 served.

¶14

 .....

¶15

CORAM: PRAKASH D. NAIK, J.

¶16

 ORDER RESERVED ON 7.11.2017
 ORDER PRONOUNCED ON 19.12.2017

¶17

ORDER :

¶18

1] Heard learned counsel appearing for the parties.

¶19

2] The applicant has preferred this application by

¶20

Cr.Appln.2398/17

¶21

- 2 -

¶22

invoking the inherent powers of this Court u/s 482 of the
Code of Criminal Procedure. The applicant has challenged
the order dated 11.4.2017 passed below Exhibit 7 by the
learned Sessions and Special Judge, Osmanabad, in Special
Case (ACB) No.23/2016.

¶23

3]The applicant is being prosecuted in the

¶24

prosecution initiated by the Anticorruption Bureau for
offences u/s 7 and 13(2) of the Prevention of Corruption
Act, 1988 (in short the Act). The First Information

¶25

Report in that regard was lodged on 25.8.2016 vide Crime

¶26

No.252/2016. On completing the investigation, the
charge-sheet was filed before the Special Court.

¶27

4]The prosecution case is that the applicant had

¶28

demanded a sum of Rs.1,000/- from the original
complainant for issuing the 7/12 extract, although the

¶29

amount was not accepted and that the accused was not
caught receiving the said amount, the demand was made by

¶30

the applicant, which is, according to the prosecution,
established by the evidence on record. The applicant
preferred an application for discharge before the Special
Court. The said application was rejected vide order
dated 11.4.2017. Hence, the applicant has preferred this

¶31

Cr.Appln.2398/17

¶32

- 3 -

¶33

application before this Court challenging the order
refusing discharge and has sought discharge from the said
criminal prosecution.

¶34

5]The applicant contends that one Hariba Sattappa
Kshirsagar had filed a Regular Civil Suit No.178/2012
against Sattappa, Balu, Balbhim, Awaba and Shankar for
the partition of suit land situated in Gut Nos.587 and
12/2 situated at village Barul Tq.Tuljapur. The parties
in the suit were related to each other. A compromise was
executed between the parties. In view of the compromise,
Hariba filed an application in the office of Talathi for
sanction of mutation entry on the basis of compromise
dated 13.12.2014. The applicant, therefore, took the
entry of application by Hariba and recorded the land and
other property from Gut Nos.587 and 12/2 in the name of
Hariba and others in view of the compromise dated
13.12.2014. The applicant thereafter forwarded the

¶35

recorded documents to the Circle Officer for sanction and

¶36

after verifying the recorded documents, the Circle

¶37

Officer accorded sanction to the mutation entry on
21.3.2016. On the basis of the aforesaid sanction, the
applicant recorded the names of Hariba and others to the

¶38

Cr.Appln.2398/17

¶39

- 4 -

¶40

7/12 extract maintained at the office of the applicant.

¶41

It is further contended that in view of the compromise
and sanction of 7/12 extract, the holding of land in the
name of Hariba, who had preferred the RCS No.178/2012 and
the respondent no.2 gets reduced. The applicant further
contends that on 2.8.2016, he was transferred from
Osmanabad District to Nanded. Accordingly, on 24.8.2016,
he was relieved from Tahsil office, Tuljapur. On
29.8.2016, the applicant was directed to join the office

¶42

of Sub Divisional Officer at Hadgaon. However, on
25.8.2016, the FIR was registered against the applicant
by the Anticorruption Bureau, Osmanabad, u/s 7 and 13(2)
of the Prevention of Corruption Act, 1988.

¶43

6]Learned Advocate for the applicant submits that
the FIR was lodged at the instance of original

¶44

complainant on account of vendetta for implementation of
decree passed as holding of original complainant was

¶45

reduced. It is submitted that no case is made out

¶46

against the applicant to prosecute him for the offences
u/s 7 and 13(2) of the Act. There is no cogent evidence

¶47

to establish the said charges. It is submitted that
admittedly the amount as alleged on account of illegal

¶48

Cr.Appln.2398/17

¶49

- 5 -

¶50

gratification was not accepted by the applicant –
accused. The case of the prosecution that th demand was

¶51

made is unsupported by any cogent evidence. It is
submitted that the case of the prosecution that the
applicant had demanded an amount of Rs.1,000/- from the
original complainant for issuance of 7/12 extract in his

¶52

name is imaginary and based on the concocted version of
the complainant. The application for 7/12 extract was
recorded on 4.3.2016, the mutation was sanctioned by the
Circle Officer on 21.3.2016 and on 22.3.2016, the entry

¶53

of the said sanction of mutation entry was taken in the
on-line system. Therefore, in the circumstances, it is
clear that no work with regard to the mutation entry was
pending and there is no substance in the allegation that
the applicant had demanded the bribe as alleged by the
complainant.

¶54

7] The learned counsel for the applicant further submitted that on perusal of the charge-sheet filed against the applicant, it can be seen that prima facie , no case is made out against the applicant to frame the charge against him for the alleged offences. The method adopted while verifying the complaint itself is vitiated

¶55

Cr.Appln.2398/17

¶56

- 6 -

¶57

by gross irregularity. There is no corroborative
evidence, which proves the theory of complainant
regarding demand of bribe by the applicant. It is
submitted that the Special Court had erroneously rejected
the application for discharge without verifying the
documents on record. The work was completed with regard

¶58

to the mutation entry much prior to the date of the
complaint and the requisite entry was also made in the
on-line system and, therefore, the theory of demand of
bribe cannot be believed. It is submitted that the

¶59

verification of complaint dated 3.5.2016 was done with
the help of voice recorder in which the voice of the
applicant is recorded. In the said record, it is nowhere

¶60

heard that the applicant had demanded bribe from the
original complainant. The allegations of demand are
afterthought and the same are made after realizing that

¶61

the amount was not accepted by the applicant-accused.

¶62

The original complaint was filed on 3.5.2016 whereas the
FIR was registered on 25.8.2016 without there being any

¶63

sustainable reason for delay in registering the same. It

¶64

is apparent that the FIR is lodged only with a view to
harass the applicant. It is further submitted that the

¶65

Cr.Appln.2398/17

¶66

- 7 -

¶67

applicant had sanctioned the mutation entry on the basis
of the order of the Court and the land was allotted to
every person who were party to the said regular civil
suit. Therefore, without application by the complainant,
the applicant had recorded and sanctioned the mutation
entry in accordance with the order of the Court. The

¶68

verification of complaint dated 3.5.2016 is done in the

¶69

absence of witness and on the basis of mere signature of
witnesses on the typed copy of the conversation, which
cannot be accepted as genuine evidence. It is submitted

¶70

that the verification of complaint by the authority is

¶71

false and does not hold any evidentiary value. It is,
therefore, submitted that the order passed by the trial

¶72

Court is contrary to law and the applicant ought to have
been discharged from the said proceedings.

¶73

8] The learned APP submitted that prima facie case

¶74

is made out against the applicant. It is submitted that

¶75

the evidence on record clearly establishes the role

¶76

played by the applicant in demanding the bribe and,
therefore, the contention of the applicant cannot be
considered at this stage. It is submitted that there is
ample evidence against the applicant, which establishes

¶77

Cr.Appln.2398/17

¶78

- 8 -

¶79

that prima facie he is involved in commission of crime

¶80

and, therefore, the prosecution must be given an
opportunity to lead evidence and prove its case. The

¶81

proceedings need not be quashed at this stage. It is
submitted that the applicant had not made out the case
for discharge. The Special Court has rightly rejected

¶82

the application for discharge. The case of the

¶83

prosecution is that the accused had demanded an amount of
Rs.1,000/-, which is fortified by the evidence on record

¶84

and it is the case of the prosecution that the

¶85

expressions made by the applicant-accused establishes the
demand of the said amount. The contentions raised by the
applicant are based on disputed questions of fact and the

¶86

same cannot be considered as grounds for discharge. It
is, therefore, submitted that the application referred by
the applicant may be rejected.

¶87

9]On perusal of the documents on record, it

¶88

appears that the prosecution case is that there was

¶89

demand of money by the applicant – accused from the

¶90

original complainant. The demand was made for issuing

¶91

the 7/12 extract. Although it is the case of the
applicant that the work relating to the mutation entry

¶92

- 9 -

¶93

etc. was completed in accordance with the compromise
executed between the parties, the case of the prosecution
is that thereafter for issuance of the 7/12 extract, the
amount of Rs.1,000/- was demanded by the applicant –
accused. It is true that the trap was discontinued by
the investigating agency as the amount was not accepted

¶94

by the applicant – accused. However, the case of the prosecution is that there was demand from the applicant for which he is being prosecuted by the prosecution. The Special Court had rejected the application for discharge preferred by the applicant. While rejecting the said application, it has been observed by the Court that there was prima facie evidence to prosecute the applicant and, therefore, the case for discharge was not made out. The Special Court, therefore, rejected the application for discharge.

¶95

10] The submissions advanced by the applicant that he is being falsely implicated in the case with a view to cause harassment to him or that there was delay in recording the First Information Report cannot be a ground for discharge. The Court is required to see whether there is prima facie evidence against the accused for

¶96

Cr.Appln.2398/17

¶97

- 10 -

¶98

framing charge. The trial Court is not expected to hold
a roving enquiry for deciding the issue whether the
accused can be discharged from the prosecution. On the

¶99

basis of the evidence on record, which has to be
subjected to trial, the Special Court has rejected the
application preferred by the applicant. I do not find

¶100

any infirmity in the order passed by the Special Court.
The irregularities and infirmities as contended by the

¶101

applicant in this application as well as before the

¶102

Special Court cannot be accepted as a ground for

¶103

discharging him from the prosecution. The prosecution
case is that the work of complainant was pending with the
accused. There is sufficient material on record to
proceed against the accused. The accused had contended

¶104

that the three ingredients to constitute the alleged
offences viz. demand, acceptance and recovery are not

¶105

made out against the applicant cannot be accepted.
Although the amount was not accepted, the prosecution has
proceeded on the basis that there was demand from the
applicant. The prosecution must be afforded an

¶106

opportunity to adduce the evidence in support of its case
and the applicant shall not be discharged on accepting

¶107

Cr.Appln.2398/17

¶108

- 11 -

¶109

the grounds raised by him. If the Court finds prima

¶110

facie case to proceed against the accused, the Court has to frame charge. The Special Court has critically examined all the material on record and thereafter the order rejecting the application for discharge was passed. It appears from the record that pre-trap panchanama was

¶111

carried out in the presence of panch witnesses. On
appraisal of pre-trap panchanama, particularly the
conversation recorded between the complainant and the

¶112

accused reveals that there was demand of bribe at his

¶113

instance. The said conversation was recorded in digital
voice recorder. The complainant has stated that the

¶114

accused had demanded the illegal gratification for
issuing 7/12 extract. The defences agitated by the
applicant in support of his application for discharge
cannot be appreciated and it would be open for him to

¶115

raise the said defences at the time of trial. The

¶116

prosecution case is that the Tahsildar had stated during
the investigation that though the mutation entry of the

¶117

complainant was taken, yet its generated slip was not

¶118

available on the computer and it seems that the mutation

¶119

entry of the complainant was not uploaded on the

¶120

Cr.Appln.2398/17

¶121

- 12 -

¶122

computer. The applicant was working as Talathi at village Borul, which is not disputed. Section 7 of the Act was analyzed by the trial Court while rejecting the application. Prima facie , on reading the said provision, it appears that the case is made out to frame the charge against the applicant. At the stage of evaluating the truthfulness or otherwise of the allegations leveled by the prosecution against the accused, what is required to be seen is that prima facie the case is made out or not. In the present case, there is prima facie evidence that

¶123

the accused had demanded bribe amount. In the

¶124

circumstances, the trial Court has rightly observed that
it would be impermissible to discharge the accused. I am

¶125

in agreement with the observations made by the trial

¶126

Court while rejecting the said application. There is substantial evidence against the applicant to prima facie

¶127

justify the charge u/s 7 and 13(2) of th Act. The
grounds raised by the applicant cannot be considered at
this stage. In view of above, the application for
quashing the proceedings cannot be entertained and the
same deserves to be rejected. Hence, I pass the
following order.

¶128

Cr.Appln.2398/17

¶129

O R D E R

¶130

a]Criminal Application No.2398/2017 is
dismissed.

¶131

B]It is clarified that the observations

¶132

made in this order are only for entertaining
the present application and the trial Court
shall deal with the proceedings in accordance

¶133

with law.

¶134

 (PRAKASH D. NAIK, J.)

¶135

ndk/ cra239817.doc

Dilip Sheshrao Metalwad. v. the State of Maharashtra.

Case brief

What is this about?

What did the court decide?

Dilip Sheshrao Metalwad. v. the State of Maharashtra.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Uttara Vishesh Lohakpure Vs Vishesh Rameshwar Lohakpure and Others

Ashutosh Bhailal Rao and Ors. Vs the State of Mah and Ors.

Chhabu S/O. Dagadu Nagare and Others Vs the State of Maharashtra

Imran Amanulla Pathan. Vs Sayyed Mulayam Yunus.

Sharad S/O Bansilal Modi and Others Vs the State of Maharashtra and Anr.

Jagruti W/O Sadashiv Gaisamudre and Others Vs Sanghmaitra W/O Uday Tupare