apeal667.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.667 OF 2004
1) Bhaurao s/o Shankarrao Gaidhane,
Aged about 45 years, Occ: Service,
as Police Constable, R/o Nagpur. ....... APPELLANT
...V E R S U S...
State of Maharashtra,
through Dy. S.P. Anti Corruption
Bureau, Nagpur. ....... RESPONDENT
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Shri S.K. Mishra, Senior Advocate for Appellant.
Shri Ashish Kadukar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
8 DECEMBER, 2017.
ORAL JUDGMENT
1] The appellant is aggrieved by the judgment and order
dated 28.09.2004 passed by the Judge, Special Court, Nagpur in Sessions Trial 17/1995, by and under which, the appellant-accused is convicted of offence punishable under section 7 of the Prevention of Corruption Act, 1988 ('Act' for short) and is ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 2 sentenced to suffer simple imprisonment for one year and to payment of fine of Rs.500/- and is further convicted of offence punishable under section 13 (1)(d) read with section 13 (2) of the Act and is sentenced to suffer simple imprisonment for three years and to payment of fine of Rs.1500/-.
2] Heard Shri S.K. Mishra the learned senior counsel for the appellant and Shri Ashish Kadukar, the learned Additional Public Prosecutor for the respondent/State. 3] The submission of the learned senior counsel is that the amount of Rs.1000/- which is recovered from the accused was not accepted as illegal gratification. The defence of the accused that the complainant owed Rs.3000/- to Mukund Pardhi the brother-in-law of the accused (D.W.1) and the amount of Rs.1000/- which was accepted from the complainant was accepted not as illegal gratification but as partial refund of the said loan, is more than probabilized on the touchstone of preponderance of probability, is the submission.
4] Per contra, Shri Kadukar, the learned A.P.P. submits ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 3 that the conviction is unexceptionable in law and the prosecution has proved both demand and acceptance of illegal gratification. 5] The gist of the complaint lodged by Gangadhar Wat on 05.04.1995 with the Anti Corruption Bureau, Nagpur (ACB) is that he is working as attorney (Clerk) to the Advocate Shri Ghodmare and was previously indulging in speculation (satta). The complainant however, wound up the business of speculation since two months prior to the complaint. The accused, summoned the complainant through one Vasanta Zade on 03.04.1995. The complainant met the accused at the office of the Crime Branch at 05:00 p.m. on 03.04.1995 and was asked to pay Rs.3000/- as gratification for not initiating action against the complainant as regards the speculation business. The complainant protested and told the accused since he had wound up the said business. The complaint further states that between 07:00 and 07:30 a.m. on 05.04.1995 the accused visited the house of the complainant and again demanded Rs.3000/- (three thousand) and threatened that should the amount not be paid, the complainant would be arrested. The accused told the complainant that he would visit the house of the complainant after 06:00 p.m. to ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 4 receive Rs.1000/- and that the complainant should arrange the balance Rs.2000/- within 2 to 3 days. The complainant was not willing to pay the said amount of Rs.1000/- to the accused and lodged the report.
6] The A.C.B. summoned the panchas, the usual demonstration inter alia that of the phenolphthalein powder and sodium carbonate solution test were given and the standard protocol explained to the panchas and the complainant. The case of the prosecution is that the accused visited the house of the complainant in the evening of 05.04.1995, demanded and accepted the illegal gratification and was apprehended by the A.C.B, which agency completed the investigation and submitted the charge-sheet before the Special Court. The learned Judge of the Special Court framed charge vide Exh.3, the accused abjured guilt and claimed to be tried in accordance with law. The trend and tenor of the cross-examination, the statement recorded under section 313 of the Code of Criminal Procedure, 1973 and the evidence of the solitary defence witness would reveal that neither the demand of Rs.1000/- nor the acceptance thereof is in serious dispute. The bone of contention is whether the amount was ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 5 demanded by the accused as illegal gratification or the accused has probabilized the defence that the amount was accepted believing that the complainant was partially returning the loan amount which a relative of the accused Mukund Pardhi (D.W.1) had extended to the complainant.
7] At this stage, it would be apposite to note that it is revealed from panchnama 2 (Exh.17) that the accused was asked to explain the acceptance of the amount of Rs.1000/- and the accused gave a written memorandum which was signed by both the panchas and the Investigating Officer. The relevant portion of panchnama 2 reads thus :-
When Shri Varma asked Shri Gaidhane the explanation about bribe amount of Rs. 1000/- accepted by him, Shri Gaidhane gave his written memorandum. We both the Panchas and Shri Varma put our signatures thereon.
In the cross-examination of the Investigating Officer Shri Santoshkumar Varma (P.W.7) it is elicited that at the time of the trap the accused did state that the amount received was ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 6 towards repayment of loan. The relevant portion reads thus :-
At the time of trap accused was saying that he had given amount and that amount was repaid to him. Therefore, I had recorded statement of his relatives.
The fact that the accused did give an immediate explanation when apprehended by the A.C.B. is proved beyond any doubt. Pertinently, the written explanation of the accused, which is referred to in the panchnama 2 is not produced along with the charge-sheet. The Investigating Officer Shri Santoshkumar Varma (P.W.7) while admitting that such an explanation was indeed offered by the accused and that he did record the statements of the relatives of the accused, did not produce on record the statements nor did the I.O. offer any explanation for not filing on record the written explanation offered by the accused at the time of the trap. The fairness and credibility of the investigation is seriously suspect. 8] The evidence of the defence witness Shri Mukund Pardhi apart, Shri Vasanta Zade who is examined as P.W.6 ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 7 corroborates the defence that the complainant owed some amount to the relative of the accused and what is admitted in the cross-examination of P.W.6 Vasanta Zade is thus :-
When I meet Gangadhar Wat at 3 to 3.30 p.m. he told me that amount of husband of sister of the accused wad due with him. Gangadhar was saying that he would repay that amount gradually.
9] It is trite law, that the accused need not establish the defence beyond reasonable doubt. It would suffice, if the defence is probabilized on the touchstone of preponderance of probabilities. The limited burden on the accused is to create doubt as regards the veracity of the prosecution case. The benefit of any doubt due to an alternate hypothesis incompatible with the guilt of the accused must necessarily go to the accused. 10] Shri S.K. Mishra, the learned senior counsel would submit, relying on the enunciation of law by the Apex Court in
(i) Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702 (ii) P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4 SCC 39 (iii) B. Jayaraj vs. State of A.P. ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 8 2014 All SCR 1619 (iv) and N. Sunkanna vs. State of Andhra Pradesh 2015 ALL MR (Cri) 4551 (S.C.), that proof beyond reasonable doubt of a decisive demand of illegal gratification is the sine qua non ingredient to constitute an offence under the provisions of the Act. In the absence of proof of a decisive demand, the acceptance or recovery of tainted currency notes is of little significance or relevance, is the submission. 11] Shri S.K. Mishra, the learned senior counsel would further submit that the evidence of the complainant must be subjected to close scrutiny since after introduction of section 165-A on the statute book the complainant is equally guilty as a bribe giver and the evidence of the complainant is not on a better footing than that of an accomplice. Reliance is placed, amongst others, on the judgment of the Apex Court in Pannalal Damodar Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121.
Shri S.K. Mishra, the learned senior counsel would then submit that having held the testimony of the shadow panch who is examined as P.W.2 inadmissible, the sole testimony of the complainant could not have been made the basis of conviction. ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 9 12] Shri S.K. Mishra, the learned senior counsel submit that the accused must be presumed innocent till the prosecution establishes the guilt by proving the acceptance and demand of illegal gratification. The presumption of innocence available to an accused facing prosecution under any other penal law is available in equal measure to an accused facing prosecution under the provisions of the Act, is the submission. My attention is invited to the following observations of the Apex Court in A. Subair vs. State of Kerala reported in (2009) 6 SCC 587.
28. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.
13] The learned Sessions Judge has held the evidence of the shadow panch P.W.2 inadmissible inter alia relying on the judgments in Zahiruddin v. Emperor, reported in AIR (34) 1947 Privy Council 75, Kanbi Baghji Savji v. State of Gujarat, reported in AIR 1968 Gujarat 11 and Ramvilas and others v. State of Madhya ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 10 Pradesh, reported in 1985 Cri.L.J. Page No.1773. The learned Sessions Judge was pleased to accept the contention of the defence that since the witness read the previous statement recorded by the A.C.B. before entering the court room, the evidence is inadmissible in view of the prohibition engrafted in section 162 of the Code of Criminal Procedure. The learned senior counsel has invited my attention to a judgment of a learned Single Judge of this court in Sharad s/o Namdeorao Shirbhate Vs. State of Maharashtra reported in 2007 ALL MR (Cri) 352 and in particular to the following observations :-
10. The learned counsel for the appellant further submitted that in this case, the evidence of complainant P.W.1 Pundlik in respect of demand and acceptance of the bribe on 14-07-1987 did not receive any trustworthy corroboration from the evidence of P.W.2 Prabhakar, the panch witness. In para 11 of his deposition, the said Prabhakar admitted that he was attending the Court for giving evidence since 01-07-1996. His evidence was recorded on 04-07-1996. He admitted that the police had read over his statement to him and also told him to tender evidence as per his statement. He admitted that he was giving evidence as per his police statement. In view of this, the learned counsel for the appellant submitted that since the witness was not stating the facts from his memory, the entire evidence of this witness Prabhakar would be inadequate to provide any corroboration to that of P.W.1 Pundlik. The learned Additional Public ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 11 Prosecutor submitted that since the incident was nine years' old, there was nothing wrong in the witness refreshing his memory by reading his statement before deposing about the incident giving minute details. There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should be falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not be permissible for such a witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of P.W.2 Prabhakar taken by the learned counsel for the appellant is valid.
The question of admissibility of the evidence of P.W.2 apart, even if the evidence is considered, a decisive demand of illegal gratification is not spelt out. I have given anxious consideration to the evidence of both the complainant P.W.1 and the shadow panch P.W.2, and having done so, I am inclined to agree with the submission of the learned senior counsel Shri S.K. Mishra that a decisive demand of illegal gratification is not established. The said witnesses indeed speak of demand, but then even the defence is not disputing that the accused did demand the ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 ::: apeal667.04.J.odt 12 amount. What the prosecution has miserably failed to establish is that the accused demanded illegal gratification. 14] I have no hesitation in holding that the prosecution has failed to prove that the accused demanded and accepted illegal gratification and that the accused has more than probabilized the defence on the touchstone of preponderance of probabilities.
15] In the light of the discussions supra, I set aside the judgment and order impugned and acquit the accused of offence punishable under section 7, 13 (1)(d) read with section 13 (2) of the Prevention of Corruption Act.
16] The bail bond of the accused shall stand discharged and fine paid by the accused, if any, shall be refunded. 17] The appeal is allowed in the above terms.
JUDGE NSN ::: Uploaded on - 11/12/2017 ::: Downloaded on - 13/12/2017 01:19:23 :::