A.M. Badar, J. -
(1.) This appeal is taken up for hearing in terms of the following order of the Hon'ble Supreme Court in Petition for Special Leave to Appeal (Cri.) No.2334 of 2011 passed on 15th March 2011 :
"Taken on board.
The petition is dismissed.
The petitioner was convicted by the trial court under Prevention of Corruption Act and his appeal is pending before the High Court. We direct the High Court to decide the appeal expeditiously."
(2.) By this appeal, the appellant - convicted public servant is challenging the judgment and order dated 17th January 2011 passed by the learned Special Judge under the Prevention of Corruption Act, Pune, in Special Case No.12 of 2007 convicting him of offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. For the offence punishable under Section 7 of the Prevention of Corruption Act, the appellant/accused is sentenced to suffer rigorous imprisonment for 1 year apart from direction to pay fine of Rs.1,000/, in default, to undergo further rigorous imprisonment for a period of 3 months. For the offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, he has been sentenced to suffer rigorous imprisonment for 1 year apart from directing him to pay fine of Rs.1,000/, in default, to undergo further rigorous imprisonment for a period of 3 months.
(3.) Facts leading to the prosecution of the appellant/accused projected from the police report can be summarized thus :
(a) Complainant Prasanna Akkalkotkar runs a workshop under name and style of Fabex Engineers at Nandedgaon area of Pune. The Maharashtra State Electricity Distribution Company Limited (hereinafter referred to as MSEDCL for the sake of brevity) has provided electricity connection to this workshop.
(b) The appellant/accused, at the relevant time, was working as Assistant Engineer with the MSEDCL and he was member of the flying squad deputed for the purpose of checking electric meters provided to the consumers.
(c) According to the prosecution case, at about 1.15 p.m. of 21st January 2006, Ashok Shetty, Manager of Fabex Engineers, informed his employer Prasanna Suryakant Akkalkotkar (PW2) that the appellant/accused Dattatraya Bhagwan Omase along with his two colleagues have come to the workshop for inspection of the electric meter. PW2 Prasanna Akkalkotkar met the appellant/accused. Electric meter in the premises of the Fabex Engineers came to be checked by the appellant/accused. The appellant/accused informed PW2 Prasanna Akkalkotkar that the electric meter is running slow by 25%. He further informed that action for recovering damages would have to be taken. Another employee by name Shri Kudale from the Electric Distribution Company was called. The electric supply meter was again checked.
The appellant/accused accompanied by PW2 Prasanna Akkalkotkar and other employees of the MSEDCL then went to the office of the said Company. One form was got filled from the appellant/accused.
(d) According to the prosecution case, at about 4.30 p.m. of 21st January 2006, the appellant/accused came to the Fabex Engineers. He met PW2 Prasanna Akkalkotkar. The appellant/accused in his own handwriting prepared an application (Exhibit 14) on behalf of PW2 Prasanna Akkalkotkar. However, PW2 Prasanna Akkalkotkar got the separate application (Exhibit 13) prepared, signed it and gave the same to the appellant/accused. Thereupon, the appellant/accused informed PW2 Prasanna Akkalkotkar that he will have to pay fine of Rs.15,000/ and apart from that, a case would be filed against him. Upon request of PW2 Prasanna Akkalkotkar, the appellant/accused informed him that PW2 Prasanna Akkalkotkar would be required to pay him an amount of Rs.2,500/ and then neither the case would be filed nor fine of Rs.15,000/ would be imposed. In the next bill, arrears of Rs.5,000/ would be shown and the matter will be closed. Left with no alternative, PW2 Prasanna Akkalkotkar showed his willingness to pay illegal gratification. The appellant/accused insisted for immediate payment. PW2 Prasanna Akkalkotkar informed him that he is not having money. The appellant/accused then gave his cell phone number to PW2 Prasanna Akkalkotkar and asked him to keep money ready on Monday i.e. 23rd January 2006.
(e) According to the prosecution case, on 23rd January 2006, PW2 Prasanna Akkalkotkar telephonically contacted the appellant/accused from his office telephone. The appellant/ accused informed him that he will come to Fabex Engineers after the afternoon.
(f) As PW2 Prasanna Akkalkotkar was not willing to pay illegal gratification to the appellant/accused, he immediately went to the office of the Anti Corruption Bureau (ACB), Pune, on 23rd January 2006 itself and lodged a complaint (Exhibit 15) which was recorded by PW4 Arun Waikar, Deputy Superintendent of Police, ACB, Pune.
(g) According to the prosecution case, two panch witnesses, namely, PW3 Vijay Phulpagare and Uday Suryawanshi were summoned. Pretrap formalities were then conducted and recorded in Pretrap panchnama dated 21st January 2006 (Exhibit 17). PW2 Prasanna Akkalkotkar tendered currency notes amounting to Rs.2,500/ which were smeared with anthracene powder. Those were kept in the pocket of PW2 Prasanna Akkalkotkar. The panchas as well as complainant PW2 Prasanna Akkalkotkar were made aware about the use of anthracene powder. Accompanied by panch witnesses and complainant PW2 Prasanna Akkalkotkar, team of ACB then went to Fabex Engineers after preparing Pretrap panchnama (Exhibit 17).
(h) Panch witness PW3 Vijay Phulpagare accompanied by PW2 Prasanna Akkalkotkar then entered in the premises of Fabex Engineers and waited for the appellant/accused in the cabin located at the first floor of the workshop. Other members of the trap team including panch no.2 Uday Suryawanshi waited at the ground floor. This happened at about 2.30 p.m. of 23rd January 2006. However, the appellant/accused did not come to Fabex Engineers up to 5.30 p.m. Therefore, it was decided to withdraw the trap, and accordingly panchnama Exhibit 18 in respect of withdrawal of the trap was prepared. Currency notes smeared with anthracene powder were taken back from PW2 Prasanna Akkalkotkar and other currency notes worth Rs.2,500/ were given to him.
(i) It is case of the prosecution that on 25th January 2006, receptionist working at Fabex Engineers received a telephone call from the office of the Electric Supply Company.
However, prior to PW2 Prasanna Akkalkotkar conversing on that phone call, it got disconnected. Hence, PW2 Prasanna Akkalkotkar telephonically contacted the appellant/accused.
The appellant/accused informed him that it was he who had made the earlier call. The appellant/accused asked PW2 Prasanna Akkalkotkar to come to his office in the afternoon. However, PW2 Prasanna Akkalkotkar insisted the appellant/accused to come to the Fabex Engineers in the afternoon. The appellant/accused agreed.
(j) PW2 Prasanna Akkalkotkar then again contacted the office of the ACB. Then again, PW3 Vijay Phulpagare and coavk panch Uday Suryawanshi were called. Pretrap formalities were conducted. PW2 Prasanna Akkalkotkar then again produced five currency notes, each of Rs.500/ denomination. Numbers of those currency notes were noted in the pretrap panchnama Exhibit 20. These currency notes were smeared with anthracene powder. Mrs.Shintre - an employee from the ACB then kept those currency notes in the left chest pocket of the shirt of PW2 Prasanna Akkalkotkar. Suitable instructions were imparted to PW2 Prasanna Akkalkotkar not to touch those currency notes and to give those currency notes only on demand by the appellant/accused. PW3 Vijay Phulpagare was asked to work as shadow panch. Suitable instructions were also instructed to him. The proceedings were recorded in the Pretrap panchnama Exhibit 20. Accompanied by the complainant and panch witnesses, the trap team of the ACB then again went to the premises of Fabex Engineers. This happened at about 3.10 p.m. of 25th January 2006. PW2 Prasanna Akkalkotkar accompanied by PW3 Vijay Phulpagare waited at the premises of the Fabex Engineers whereas members of the trap team accompanied by the copanch Uday Suryawanshi waited outside the workshop.
Even after lapse of one hour, the appellant/accused did not come to the Fabex Engineers. Therefore, PW2 Prasanna Akkalkotkar telephonically contacted him at about 4.25 p.m. of 25th January 2006. The appellant/accused informed him that if the vehicle is made available by the office, he will come, or else, he be contacted after half an hour.
Thereafter, despite waiting for one hour, the appellant/accused did not come to the workshop of PW2 Prasanna Akkalkotkar. Hence, the appellant/accused was again contacted telephonically at about 5.25 p.m. of 25th January 2006. At that time, the appellant/accused informed that he is not having vehicle, and therefore, PW2 Prasanna Akkalkotkar should come to his office.
(k) The prosecuting agency i.e. the ACB then decided to sent PW2 Prasanna Akkalkotkar accompanied by PW3 Vijay Phulpagare to the office of the appellant/accused. At about 6 p.m. of 25th January 2006, along with members of the trap team, PW2 Prasanna Akkalkotkar and PW3 Vijay Phulpagare reached the office of the Electric Supply Company at Parvati area of Pune. At about 6.05 p.m., PW2 Prasanna Akkalkotkar accompanied by PW3 Vijay Phulpagare entered in the office of the MSEDCL.
(l) It is case of the prosecution that the appellant/accused was found to be in the cabin of the Executive Engineer accompanied by others. Hence, PW2 Prasanna Akkalkotkar and PW3 Vijay Phulpagare waited for him outside his cabin. After waiting period of about twenty minutes, the appellant/accused came to his cabin. PW2 Prasanna Akkalkotkar and PW3 Vijay Phulpagare thereupon met the appellant/accused in his cabin. The appellant/accused then demanded the amount of illegal gratification and asked PW2 Prasanna Akkalkotkar to keep the same on the paper used for printing in the computer. Accordingly, PW2 Prasanna Akkalkotkar kept the tainted currency notes on the computer printing paper. The appellant/accused lifted that computer printing paper containing the currency notes, folded those currency notes with the help of that paper and kept it in the drawer of his table. PW2 Prasanna Akkalkotkar then gave the predetermined signal to the trap team. Accordingly, members of the trap team, accompanied by copanch Uday Suryawanshi, rushed to the cabin of the appellant/accused. Complainant/PW2 Prasanna Akkalkotkar informed that the currency notes are in the drawer of the appellant/accused. Copanch Uday Suryawanshi took out those currency notes from the drawer of the table of the appellant/accused. Their serial numbers matched with the number recorded in the pretrap panchnama. Hands and clothes of the appellant/accused were checked under ultra violet rays. However, anthracene powder was not detected on either his hands or clothes. The same was, however, detected on hands of copanch Uday Suryawanshi. It was detected on the paper on which those currency notes were kept. Those currency notes were then seized apart from the paper on which those were kept. Necessary inquiry was made from PW3 Vijay Phulpagare. Posttrap panchnama (Exhibit 21) incorporating all these details came to be prepared.
(m) After completing all these formalities, First Information Report (FIR) (Exhibit 25) came to be lodged by PW4 Arun Waikar, Deputy Superintendent with Swargate Police Station which resulted in lodging of Crime No.3036 of 2006. Necessary investigation followed and the appellant/accused came to be chargesheeted.
(n) The Charge for offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act came to be framed and explained to the appellant/accused. He abjured his guilt and claimed trial.
(o) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all four witnesses.
Sanctioning Authority Narayan Misal, Chief General Manager (Technical) of the MSEDCL came to be examined as PW1. The order sanctioning prosecution of the appellant/accused is at Exhibit 7. Complainant Prasanna Akkalkotkar is examined as PW2. The complaint lodged by him is at Exhibit 15. Shadow panch Vijay Phulpagare is examined as PW3. Exhibits 17 and 18 are Pretrap and Posttrap panchnama dated 21st January 2006. Exhibit 20 is the Pretrap panchnama dated 25th January 2006 whereas Exhibit 21 is the Posttrap panchnama of the same date.
Investigating Officer Arun Waikar, Deputy Superintendent, is examined as PW4. Report lodged by him is at Exhibit 25.
(p) The defence of the appellant/accused is that of total denial.
According to the appellant/accused, on the date of inspection of the electric meter, he had submitted his report through the Divisional Accountant and on processing it had reached up to a Clerk named Chutke. PW2 Prasanna Akkalkotkar was aggrieved by the utterance of the appellant/accused to the effect that every thief says that he is innocent, and therefore, he is falsely implicated in the crime in question. The appellant/accused did not enter in defence, but he has filed his written statement.
(q) After hearing the parties, by the impugned judgment and order, the learned trial court came to the conclusion that the appellant/accused had demanded and accepted the illegal gratification amounting to Rs.2,500/ as a motive or reward for showing official favour to PW2 Prasanna Akkalkotkar.
He has committed criminal misconduct by obtaining pecuniary advantage of Rs.2,500/. Evidence adduced by the prosecution was held to be trustworthy, cogent and reliable, and the learned trial court came to the conclusion that the defence of the appellant/accused is not probable.
Accordingly, the appellant/accused is convicted and sentenced as indicated in the opening paragraph of this judgment.;