SAYYED SHABIRALLI HAFIZALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a learned single Judge of the Bombay High Court, Aurangabad Bench upholding the conviction of the appellant for offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (in short the Act). The learned Special Judge, Ahmednagar, had found the accused-appellant guilty and convicted him as aforenoted and to suffer imprisonment for one year and to pay a fine of Rs. 1,000/- with default stipulation.

(2.) Background facts in a nutshell are as follows : The complainant Mhatardeo Dagadu Dahale, resident of Dule (Chandgaon) was running a tailoring shop by name Surekha Ladies Tailors at Pathardi. The land bearing S.No.92/1 situated at village Dule (Chandgaon) was owned by complainants father. He wanted to install electric pump set on the well situated in the said land. For that purpose, he had made an application to the office of Maharashtra State Electricity Board (in short M.S.E.B., Pathardi. However, the M.S.E.B. did not take any cognizance of the said application. Complainants father, therefore, submitted another application in the year 1980. Thereafter survey of the land and in particular the place where the electric motor was to be installed was carried out and the complainant was asked to carry out the preliminary requirements and to submit the test report. Accordingly, the complainant had submitted the test report on 12.11.1986. As the complainants father was of old age, complainant was in fact attending all the work in connection with the agriculture operations and allied work. As per the Rules of the M.S.E.B., it was necessary for the complainant to deposit certain charges for receiving the material required for the installation and connection of the electric motor. The complainant, therefore, deposited Rs.610/- in A.D.C.C. Bank, Ahmednagar on 26.12.1984. In spite of such compliance on the part of the complainant and his father, the M.S.E.B. had not provided the necessary material and connection. For getting the material released from the M.S.E.B. store, it was necessary to issue gate pass. For that purpose, the complainant had met the accused, who was then working as Sub-Engineer in the office of M.S.E.B., Rural Sub Division, Pathardi and the accused had told him that he would be sending one Channe, Wireman. However, nobody turned up till 19.11.1986. Hence, the complainant contacted the accused on that day. However, even on that day, the gate pass was not issued in favour of the complainant. On 26.11.1986, the accused went to the shop of the complainant and told him that he would issue the gate pass, but for that purpose, the complainant will have to pay Rs.100/- to the accused. The complainant told him that he had not that much amount to pay at that time and that he would collect the amount and give him within a short period. Thereafter on 02.12.1986, the complainant went to the house of the accused at about 9.00 to 9.30 p.m., at that time also, the accused told him that on the next day, while going to his house for meals from the office, he would hand over the gate pass to him and that he should pay him Rs.100/-at that time. The complainant thereafter went to the office of Anti Corruption Bureau at Ahmednagar and narrated the entire incident to Mr. Joshi, Deputy Superintendent of Anti Corruption Bureau and lodged a complaint wherein he specifically stated that the accused demanded bribe of Rs.100/- for issuing gate pass in favour of the complainant and that he would come to his shop the next day in the afternoon to collect the amount and to hand over the gate pass. The complainant was, therefore, asked to come to the Anti Corruption Bureau on the next day. Accordingly, the complainant went to the said office on the next day. At that time, the police called two panchas by names Vavhal and Godbole. The search of the complainant was taken in the presence of panchas and at that time, complainant handed over an amount of Rs.100/- to which police applied anthracene powder and gave necessary instructions to the complainant as well as to the panchas. Except that amount of Rs.100/-and another sum of Rs.18/-, nothing was kept on the person of the complainant. Then the police, panchas and complainant proceeded in a Jeep to Pathardi. They halted the Jeep at a distance of about 1 km. from the complainants shop and then pancha witness Vavhal and complainant went to his shop. They waited there till about 3/3.30 p.m. However, the accused did not turn up. They, therefore, informed this fact to Deputy Superintendent of Anti Corruption Bureau, Mr. Joshi. With his permission, the complainant and the pancha witness Vavhal then went to the office of M.S.E.B., Pathardi to find out as to whether the accused was there. However, the accused was not found there but they were informed that accused would be coming within 15/20 minutes. Hence, both of them sat on the Ota, which was in front of the said office. At about 5.30 p.m., complainants father went to that place and informed the complainant that Sayyedsaheb i.e. the accused has come to his shop. The complainant and pancha witness Vivhal therefore went to the shop of the complainant. The accused was sitting in the complainants shop. After reaching there, complainant asked the accused, whether he has done his work. The accused answered in the affirmative and asked the complainant as to what about him. On that, the complainant answered in the affirmative. Then the accused took out a folded chit, which is proved to be the gate pass, (Exhibit-21) and handed over the same to the complainant. Complainant took out the marked currency note of Rs.50, two currency notes of Rs.20/- and one currency note of Rs.10, in all Rs.100/- to which anthracene powder was applied, and gave them to the accused. The accused put the said amount in the pocket of his Manila. The complainant put Ext.21 in the pocket of the Manila in which initially he had kept the marked currency notes. The complainant then immediately went out of the shop and gave signal. Thereupon the police constables and Deputy Superintendent Mr. Joshi entered the shop. The police Constables held the hands of the accused and Deputy Superintendent Mr. Joshi asked the accused as to where the bribe amount was. Thereupon, the accused handed over the amount of Rs.100/- put by him in his pocket. Police then carried out the post-trap panchanama in which it was noted that the numbers of the marked currency notes mentioned in the pre-trap panchanama and post-trap panchanama were the same. Besides this, anthracene powder was noticed at the fingertips of the accused so also at some portion of the Manila of the accused. The police also attached the gate pass, Exhibit-21. The copy of the panchanama was handed over to the accused and accused signed the same for having received the copy. Thereafter, Mr. Joshi, Deputy Superintendent recorded the statements of complainant and some other witnesses and after obtain ing necessary sanction for prosecution and on completing the investigation submitted charge sheet against the accused in the Court of Special Judge, Ahmednagar. As the accused pleaded innocence, trial was held. Four witnesses were examined including the complainant, panch witness, Assistant Engineer and Deputy Superintendent of Police, Anti Corruption Bureau. The accused examined his wife as a defence witness. His stand was that his wife had given clothes for stitching to the complainant and he had gone to his shop to collect the money for the lost cloth. After considering the evidence, the trial Court concluded that the prosecution has fully established the demand of bribe. An appeal was preferred before the Bombay High Court. Stand of the accused before the High Court was that since money was not given by the complainant to the accused in the office but at the shop of the complainant, it proves that the defence version is correct. The High Court noted that admittedly the complainant was running a tailoring shop and complainants father had submitted an application for getting electricity connection. The necessary test report was filed on 12.11.1986 and the necessary charges had been deposited on 26.12.1984 but the necessary gate pass was not given. The complainants version that as regards demand of bribe was not shaken or shattered in cross-examination the same was fully corroborated by the complaint filed on 2.12.1986. The evidence of Deputy Superintendent of Police, Anti Corruption Bureau fully established the same as the High Court noted that the sanction order, pre trap panchnama of the place of offence and gate pass were produced. Referring to Section 4 of the Act the High Court held that the prosecution version was established and, therefore, there was no merit in the appeal.

(3.) Learned counsel for the appellant submitted that the defence version was more probable. This is a case where the complainant had not gone to the office of the accused to hand over the money but the accused had gone at the shop of the complainant, this itself creates a doubt about the version of the prosecution.