LAWS(BOM)-2021-9-254

YASHWANT BALASAHEB GAVADE Vs. STATE OF MAHARASHTRA

Decided On September 17, 2021
Yashwant Balasaheb Gavade Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) Feeling aggrieved by the order dated 11th January, 2021 in Special Case (ACB) No.33/2014, by which the Additional Sessions Judge, Thane declined to discharge the applicant under Section 227 of the Code of Criminal Procedure, 1973 ( 'Cr.P.C. ' for short) and thus, the revision is preferred before this Court.

(2.) Prosecution case in brief is that, the complainant was Electrical Contractor. He had installed electric transformer in one high rise building at Thane, for which clearances/permissions were required from the ofce of Electrical Inspector, Public Works Department, State of Maharashtra. Applicant was Assistant Electrical Inspector. He allegedly demanded Rs.95,000/- bribe from the complainant for issuing clearances/permissions. Thereupon, the complaint was lodged on 8th April, 2011 with the Anti Corruption Bureau at Thane. Whereafter the complainant called the applicant on his mobile in presence of two pancha witnesses and conversation was recorded on Digital Video Recorder. Whereafter applicant, called complainant at his ofce, at Thane on Monday in the morning. Accordingly, on 11th April, 2011, pre-trap panchanama was drawn. A DVR recorder was given to the complainant in presence of panchas. Complainant met the applicant in his ofce in morning hours. He recorded conversation with the applicant, on DVR. Transcript shows, the bribe amount was scaled down to Rs.30,000/-. Transcript suggests, the applicant would accept balance amount against further clearances/permissions in future. Whereafter, the complainant was called in the afternoon on the same day. Thereafter, verification panchanama was drawn and Anthracine powder was applied to 30 currency notes of Rs.1,000/- each. Currency note, numbers were noted in the panchanama. At around 5 p.m. complainant went to the ofce of the applicant with the panch witnesses. However, applicant and complainant went to canteen attached to ofce. Complainant recorded conversation. The transcript of the conversation shows, applicant finally agreed to issue the necessary permission required by the complainant, only against bribe of Rs.50,000/-. Thus, on 13th April, 2021, second pre-trap panchanama was drawn. Anthracine powder was applied to thirty currency notes of Rs.1,000/- each and forty currency notes of Rs.500/- each. Particulars of currency notes were noted in the pretrap panchanama. A trap was laid at 11 a.m. in the ofce of the applicant. Both, the applicant and the complainant first went into the canteen. Thereafter both sat in 'Santro ' car of the applicant, bearing registration no.MH-12-13G-8434, which was parked in the ofce compound. Applicant drove the car for short distance and again drove back to the ofce. The car was followed by the panchas at motor-cycle. Whereafter again applicant and the complainant went to the ofce. After sometime, complainant came out and gave pre-determined signal to the raiding party. The complainant informed raiding party that bribe was accepted by the applicant in the car. Inspector Dilip Patil introduced himself to the applicant. Thereafter the applicant opened the car with a key, which was with him. Till then, car was guarded and kept an eye on it by the members of raiding party. Whereafter Rs.50,000/- were recovered from the dash board of the car in presence of the pancha no.2, who was sitting on the front seat and Mr. Patil, sitting in the back seat of the car. Under violate lamp, tainted notes, hands of the applicant and clothes were seen and all these emitted bluish glow. Number of currency notes recovered from the car of the applicant tallied with the number that had been mentioned in the pre-trap panchanama. Another panchanama (Herein after called 'Post-trap Panchanama ') was drawn recording all that had transpired during the raid. Conversation between the applicant and the complainant was recorded in DVR. Its transcript was prepared. Transcript is in two parts; before and after accepting bribe. Second part of the transcript shows, after accepting the, bribe, applicant asked M.K.Deshpande (Ofce Person) to hand over the required permissions/clearances to the applicant.

(3.) Dr. Chandrachud, the learned counsel for the applicant has taken me through the final report and submitted that, to constitute ofence under Section 7 of the Prevention of Corruption Act, 1988, it is necessary for the prosecution to prove that there was 'demand ' of money and the same was voluntarily 'accepted ' by the accused. His next submission is that, demand and acceptance of money for doing a favour in discharge of his ofcial duties is sine-qua-non to the conviction of the accused. It is submitted that the material on record falls short of these basic ingredients of the ofence and, therefore, there is no sufcient ground for proceeding against the accused. His another contention is, that presence of panchas, who accompanied the complainant, was not formal witness but virtually a, 'star witness ' for prosecution, for it is he who requires to witness the demand and acceptance by the public servant. In support of this contention, Dr. Chandrachud has relied on the judgment of this Court in Achyutrao Dattatraya v. The State of Maharashtra reported in (1993) 1 Bom CR 479. In so far as the 'demand ' of and acceptance being ingredients of ofence under the Prevention of Corruption Act, 1988 are concerned, Dr. Chandrachud relied on the judgment of the Apex Court in the case of Banarsi Dass v. State of Haryana reported in (2010) 4 Supreme Court Cases 450. It is further contended that neither the alleged 'demand ' nor the 'acceptance ' of money was seen or heard or witnessed by either pancha witnesses. Dr. Chandrachud thus, contended that evidence of acceptance of bribe/tainted currency notes is not borne out from the material and therefore, the applicant has been implicated in this case on mere suspicion. Dr. Chandrachud would contend that in the case of Sajjan Kumar v. CBI reported in (2010) 9 SCC 368 Page 1371, the Hon 'ble Apex Court had an occasion to consider the scope of Sections 227 and 228 of the Cr.P.C. Dr. Chandrachud would submit that one of the considerations, while exercising jurisdiction under Section 227 of the Cr.P.C. is that ; "if two view are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal ". The contention is that nobody had seen, the applicant while 'accepting ' the bribe, and, therefore, simply because, tainted currency, was found in the applicant 's car, that by itself would not amount to acceptance of bribe pursuant to demand. It is, therefore, argued that applicant has been implicated on suspicion, which was not 'grave ' in nature. It is next contended that the sanction accorded to prosecute the applicant, is contrary to the settled principles of law and advice of law ofcer. It is submitted that sanction has been granted mechanically and without application of mind. In support of his contention, Dr. Chandrachud relied on the judgment of the Apex Court in Nanjappa v. State of Karnataka reported in (2015) 14 Supreme Court Cases 186 to contend that validity of the sanction could be gone into at any stage and not necessarily only during the course of the trial. In support of this proposition, Dr. Chandrachud would rely on paragraph 23 (Supra) which reads as under: