TRYAMBAK LILAJI BINNAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant original accused No. 1 in Special Case No. 10/88 on the file of Special Judge, Nasik, has challenged his conviction and consequent sentence of R. I. for one year and fine of Rs. 600/-, in default of payment of fine further S. I. for two months under section 5 (1) (d) of Prevention of Corruption Act, 1947 or alternatively under section 13 (1) (d) read with 13 (2) of Prevention of Corruption Act, 1988.

(2.) THE prosecution case in brief is as under:-Appellant was working as Forester, whereas the 2nd accused was working as a Forest Guard. Complainant Bapu Gavit (P. W. 1) resident of village Sambarpada had constructed a hut in his land. It was in dilapidated condition and he wanted to repair and practically re-construct the same. He therefore, approached the appellant for permission to reconstruct the hut. The appellant declined to give permission and thereafter complainant again approached him with the same request. Appellant did not grant permission but expressed that if complainant desired to re-construct the hut, he would be required to pay Rs. 600/- to the appellant by way of illegal gratification. However, complainant expressed in-ability to pay. Thereafter complainant re-constructed the hut and after about 7/8 days the appellant in company of other co-accused noticed the re-constructed hut. He enquired from the complainant as to how the hut was re-constructed and threatened him that in case appellant is not satisfied by him by making payment of gratification amount of Rs. 600/- appellant would drag him to Police Station by beating him and would also prosecute him. Complainant told him that he has not made use of forest wood for reconstruction of the hut. He has not committed any theft but the accused did take measurements and warned him that unless the appellant is paid Rs. 600/-, he will have to suffer prosecution. After 2/3 days again the appellant went to the village and called the complainant through village Kotwal. He went in the company of Waghmare to the house of appellant No. 1 wherein co-accused was also present and the appellant again gave him threat that he would be prosecuted unless payment of gratification is made and even suggested that complainant may obtain loan if he has no money and pay him Rs. 600/- as demanded whereupon complainant assured that he would manage some how to collect Rs. 600/- and make the payment on weekly bazar day i. e. Sunday. Thereafter complainant borrowed Rs. 600/- from Adivasi Forest Labour Workers Society and approached Anti Corruption Bureau Office, Nashik. He lodged a complaint on 21-11-1987. Thereafter he was asked by Anti Corruption Bureau officers to come back on the next day i. e. on 22-11-1987 at about 7. 00 a. m. According to the prosecution in the meanwhile, the Police Inspector of Anti Corruption Department, Chandrakant Bankar (P. W. 3) issued request letters to B and C departments for deputing two employees to act as panch witnesses and accordingly (P. W. 2) Pagare and one A. N. Taru were deputed to act as panch witnesses.

(3.) ON 22-11-87 complainant went to the A. C. B. Office, Nashik at about 7. 00 a. m. Thereafter all the procedure required for trap was followed and pre-trap panchanama was drawn in which the currency notes of Rs. 600/- (5 x Rs. 100 and 2 x Rs. 50) were produced by the complainant. The anthracene powder was then applied to both sides of each of the currency notes and after the entire procedure was over a panchanama was drawn (pre-trap ). Necessary instructions were given to the complainant and the panch witnesses. (P. W. 2) Ashok Pagare was asked to accompany the accused and other panch witness was directed to remain in company of the raiding party. At about 8. 40 a. m. the raiding party reached the village and after parking the jeep at some distance from forest rest house. Complainant and (P. W. 2) Ashok Pagare were asked to go ahead and approach appellant and the raiding party followed them. The appellant saw complainant Bapu Gavit (P. W. 1), both the accused came out from their office. Appellant intimated the complainant by gesture to proceed towards Bazar in the company of Ashok Pagare (P. W. 2 ). Appellant then instructed him to stop under the mango tree and when complainant and Pagare were sitting under the mango tree, the appellant and the co-accused reached there. Appellant enquired from complainant whether he has brought money as decided. The appellant told him that the price of the wood used by the complainant was worth Rs. 8000/- and so he should infact pay Rs. 8000/- or atleast Rs. 4000/- to the Government. At this juncture, complainant requested the appellant not to impose such exorbitant amount as fine and appellant then asked him how much complainant was ready to pay him by way of gratification, complainant replied that he has already brought Rs. 600/- as demanded. He then tendered the currency notes by right hand which were accepted by the appellant in his right hand. Appellant counted the notes by both the hands and kept them in the pocket of his shirt. In the meanwhile co-accused reached there and expressed that receipt was required to be issued whereupon the appellant stated that he would pass the receipt for Rs. 100/- or Rs. 200/ -. However, complainant gave the decided signal and the raiding party reached there. They caught hold of both the hands of the appellant-accused and (P. W. 3) Bankar introduced himself and thereafter search of the appellant was taken. The currency notes were in the pocket of the appellant. The currency notes were taken out from his pocket by (P. W. 2) Pagare. The notes were examined and the hands of the appellant were also examined under ultraviolet light. Pink blue shining was noticed. The notes were seized. Shirt of the appellant was seized and a detailed panchanama was drawn. Statements of the appellant and the other accused were recorded and search of the appellants office was taken. During search, registers, receipt-book, F. I. R. book and other articles were seized and the search of the complainant was also taken. Police Inspector Bankar (P. W. 3) then registered offence on the basis of F. I. R. signed by him containing the entire story narrated and forwarded his F. I. R. to Surgana Police Station. Offence was registered at the Police Station on the basis of this F. I. R. and further investigation was conducted by P. I. Bankar (P. W. 3) himself. The sanction was obtained from Deputy Conservator of Forests, Nashik, and after sanction appellant was charge-sheeted. Charge was framed under section 7 as well as under section 13 (1) (d) read with 13 (2) of Prevention of Corruption Act, 1988, although charge should have been under section 5 (1) (d) r/w 5 (2) of Prevention of Corruption Act, 1947. The learned Judge found that charge under section 7 of the Prevention of Corruption Act was uncalled for and the wording of section 5 (1) (d) r/w 5 (2) being similar to section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988. There was no prejudice to the accused. The prosecution examined 3 witnesses viz. the complainant Bapu Gavit (P. W. 1), Ashok Pagare (P. W. 2) and Chandrakant Bankar, Police Inspector (P. W. 3 ).