1 apeal518.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.518 OF 2011
Dilip Janardhan Jadhav,
aged about 51 years,
occupation : service,
r/o Shivshankar Nagar, Chikhali
Road, Sunderkhed, Taluq and
District Buldana. ... Appellant
- Versus -
State of Maharashtra, through
Deputy Superintendent of Police,
Anti Corruption Bureau, Buldana,
District Buldana. ... Respondent
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Shri S. Wahane, Advocate for appellant.
Shri T.A. Mirza and Shri P.S. Tembhare, Additional Public Prosecutors for
respondent.
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CORAM : P.N. DESHMUKH, J.
DATED : MAY 4, 2017 ORAL JUDGMENT :
This appeal takes exception to the judgment dated 3/11/2011 passed by learned Additional Sessions Judge, Buldana in Special Anti Corruption Case No.5/2008 whereby appellant/accused came to be convicted for the offence punishable under Section 7 of the Prevention of ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 2 apeal518.11 Corruption Act and sentenced to suffer rigorous imprisonment for seven months and to pay fine of Rs.5000/- and in default, to suffer rigorous imprisonment for three months and for the offence punishable under Section 13(2) of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for one year and three months and to pay fine of Rs.10,000/- and in default, to suffer rigorous imprisonment for four months. Both the sentences are directed to run concurrently.
2) In brief, case of prosecution can be stated as follows :
Complainant examined as P.W.1 Vitthal Narote is a resident of village Gummi where he holds ancestral agricultural land. His father Sampat and grandmother of his father Bhikabai died and during their life time, their names were recorded in 7/12 extract of field Gat No.51 admeasuring 8 acres 6 gunthas situated at village Shekapur where accused at the material time was posted at Talathi. After death of complainant's father and grandmother of his father, complainant wanted their legal heirs to be brought on record in 7/12 extract and thus, had met accused and for that purpose, had submitted documents such as heirship certificates (Exhs.13 and 14), death certificate of Sampat (Exh. 15) and other documents and thereafter accused assured to take necessary entries in 7/12 extract within 8-15 days. Complainant thereafter contacted accused. However, at that time, accused demanded Rs.4000/- for above purpose, which amount was negotiated to Rs.2000/- and out of that, amount of ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 3 apeal518.11 Rs.1000/- was paid to accused in February 2007. It is the further case of prosecution that as per instructions of accused, complainant contacted him within 4-8 days thereafter at his office situated at Masrul where he demanded Rs.1000/- saying that 7/12 extract was not ready and Rs.1000/- were required for feeding required information in a computer system and that 7/12 extract would be made available only thereafter. Complainant, therefore, since was not interested to make payment of bribe amount, visited the Office of Anti Corruption Bureau, Buldana on 18/5/2007 and lodged his report (Exh. 12), which was recorded by P.W.4 Himmat Jadhav, Deputy Superintendent of Police, Anti Corruption Bureau, Buldana, who issued necessary instructions for arranging two independent panch witnesses, who were summoned to attend office of Anti Corruption Bureau on 21/5/2007.
3) It is the case of prosecution that after arrival of both panchas, they were introduced to complainant, who narrated his complaint as per Exh. 12 to them, upon which they put their signatures after verifying its contents. Thereafter, both the panchas and complainant were given demonstration of effect of anthracene powder when seen under the rays of ultra-violet lamp from which, they learnt that powder gives violet colour shine when seen under such rays. Complainant had produced amount of Rs.1000/- consisting of one note of Rs.500/- in denomination and five notes of Rs.100/- in denomination. Serial numbers of these currency ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 4 apeal518.11 notes were reduced into writing in panchanama and on applying anthracene powder, they were put in the left side shirt pocket of complainant. Complainant was then instructed not to make payment of said amount to accused unless demanded. After giving necessary instructions to both panchas and also to complainant to give proposed signal on making payment, panchanama of these facts was drawn as per Exh.20. Complainant, both panchas and members of the raiding party thereafter visited the spot situated at village Masrul when complainant and P.W.2 Niranjan Gajbhiye, panch went to the office of accused while members of the raiding party followed them maintaining safe distance. After going in the Office of accused, complainant along with panch came back, to whom accused followed within sometime and went towards urinal. Complainant and panch went towards accused and enquired about work of complainant when accused demanded amount, which was paid by complainant and was accepted by accused and kept in his right side pant pocket. Complainant thereafter gave proposed signal by pulling down handkerchief kept on his shoulder with the help of his left hand and thus, members of the raiding team arrived and apprehended accused. Amount of Rs.1000/- was recovered from his possession, which when seen under the rays of ultra violet lamp was found having shining upon it. Post-trap panchanama came to be drawn as per Exh. 22. At the same time, P.W.4 Himmat Jadhav, Investigating Officer obtained written explanation of accused regarding bribe amount found in his possession, which is on ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 5 apeal518.11 record as per Exh. 37. Investigating Officer thereafter lodged his report, upon which offences came to be registered vide Crime No.3032/2007, which was further investigated by him, during the course of which, he obtained sanction order (Exh. 28) from P.W.3 Sudhir Khande, Sub-Divisional Officer and after recording statements and on completion of investigation, filed charge-sheet before the Special Court.
4) Charge was framed against accused for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, to which he pleaded not guilty and claimed to be tried. It is the specific case of accused that he is falsely implicated and in fact, was not in a position to issue 7/12 extract in view of Office directions to Talathis that they should not issue 7/12 extracts unless approved by Revenue Inspectors, who shall verify entries, if taken in computer and on failure to abide by such conditions, was liable for disciplinary action. Similar is the stand of accused in his statement recorded under Section 313 of the Code of Criminal Procedure, while according to his explanation given immediately after the trap, it is the case of accused that at the time of incident when he had gone to Wash Room for urination and was returning back to his office, complainant all of a sudden planted notes in back pocket of his pant.
5) To establish charge levelled against accused, prosecution in all
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examined four witnesses and commenced its evidence by examining complainant P.W.1 Vitthal Narote, who has put on record documents, such as heirship certificates (Exhs. 13 and 14), death certificate of his father (Exh. 15), etc., P.W.2 Niranjan Gajbhiye, first panch, who had accompanied complainant at the time of raid and has proved pre-trap panchanama and post-trap panchanama at Exhs. 20 and 21 respectively, P.W.3 Sudhir Khande, Sub-Divisional Officer, who accorded sanction (Exh.
28) to prosecute accused and concluded its evidence by examining P.W.4 Himmat Jadhav, Deputy Superintendent of Police, Anti Corruption Bureau, Investigating Officer, who had obtained explanation (Exh. 37) from accused after the trap.
6) Learned trial Judge on considering evidence and documents on record, convicted accused as aforesaid. Hence, this appeal.
7) Heard Shri Wahane, learned Counsel for accused, and Shri Mirza, learned Additional Public Prosecutor for respondent.
8) Shri Wahane, learned Counsel for accused, has submitted that accused is falsely implicated and case of prosecution is full of doubts right from its inception in view of the fact that prosecution has miserably failed to establish demand by accused or subsequent demand and acceptance of bribe amount beyond reasonable doubt as evidence on record on this aspect, which is of complainant and panch witnesses, is contradictory to each other on the point of demand and acceptance of bribe amount and is ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 7 apeal518.11 not convincing. It is contended that learned trial Judge has not considered explanation put forth by accused immediately after his trap, which goes to establish that amount of Rs.1000/-, which was recovered from the pant pocket of accused, was planted by complainant. It is further contended that from the evidence of P.W.3 Sudhir Khande, it has amply come on record that in fact, accused was not competent to issue 7/12 extract and as such, there was no reason for accused to demand any money for said purpose. By referring to the material evidence on record, it is contended that since case of prosecution is full of doubts, appeal is liable to be allowed by setting aside the order of conviction as in view of the facts as aforesaid, even no presumption as required under Section 20 of the Prevention of Corruption Act can be drawn. It is, therefore, prayed that appeal be allowed.
9) Shri Mirza, learned Additional Public Prosecutor for respondent, on the other hand, has submitted that evidence of complainant establishes demand as well as acceptance of bribe amount by accused, which evidence is stated to be fully corroborated by evidence of P.W.2 Niranjan Gajbhiye on all material aspects. It is contended that since evidence of these two witnesses establish required ingredients of offences to be proved, for which accused is charged, appeal is liable to be dismissed as P.W.3 Sudhir Khande, Sanctioning Authority before according sanction to prosecute accused, has duly considered facts ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 8 apeal518.11 involved in the present case and having been satisfied, has accorded sanction. It is, therefore, submitted that from the evidence as aforesaid, since it is established by prosecution that accused had demanded and accepted bribe of Rs.1000/-, which came to be recovered from his possession, presumption as required under Section 20 of the Prevention of Corruption Act is duly attracted and from the evidence on record, accused cannot be said to have rebutted the same. It is, therefore, prayed that appeal be dismissed.
10) In the light of facts of prosecution and submissions advanced as aforesaid, I have perused evidence of complainant P.W.1 Vitthal Narote, who has stated that after death of his father and grandmother of his father, as he wanted their legal heirs to be brought on record in 7/12 extract, he had met accused, who was then posted as Talathi of village Shekapur where agricultural land was situated. On his meeting, complainant had provided necessary documents required for taking mutation entries when accused informed him to contact after 8-15 days when he would take entries in 7/12 extract. It is material to note that evidence of complainant is silent as to on what date he had for the first time met accused when he supplied documents as claimed by him and was directed by accused to meet him after 8-15 days while as per the charge, which is explained to accused vide Exh.5, it is stated that on 17/5/2007 accused had demanded Rs.1000/- from complainant, which was accepted ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 9 apeal518.11 on 21/5/2007 as illegal gratification other than legal remuneration, to issue 7/12 extract to complainant. It is material to note that in the entire evidence of complainant, no such date as 17/5/2017 as referred in Exh. 5 has come on record as according to further evidence of complainant, after 8-15 days when he again met accused, accused demanded Rs.4000/-. As per charge, if this date is to be considered, then it appears to be the case of prosecution that on 17/5/2017, amount of Rs.4000/- was demanded by accused, which was negotiated to Rs.2000/- and two-four days thereafter, amount of Rs.2000/- was paid to accused in February 2007. It is, therefore, material to note that charge that is explained to accused is that on 17/5/2017 he demanded Rs.1000/- while according to evidence of complainant, on his meeting for the second time, after gap of 8-15 days after the first meeting, accused demand Rs.4000/-, out of which Rs.2000/- were paid in February 2007.
11) P.W.1 Vitthal Narote, complainant has further deposed that after paying Rs.2000/- to accused in February 2007, he was directed to meet after 8-15 days and had accordingly met accused. However, 7/12 extract was not ready and accused, therefore, directed him to meet 4-8 days thereafter when accused informed complainant that Revenue Inspector had not signed 7/12 extract and he was demanding money. Complainant has further deposed that he, therefore, asked accused to provide him documents, upon which signature of Revenue Inspector was ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 10 apeal518.11 to be obtained. However, accused refused to part with such documents and complainant, therefore, contacted one Mr. Dange, Revenue Inspector, who is claimed to have instructed accused to do the needful within 2-3 days. Admittedly, Mr. Dange, Revenue Inspector is not examined.
12) Complainant has further deposed that accused thereafter instructed him to meet him after 4-8 days and accordingly he met accused in his Office at Masrul when accused told him that complainant will have to pay Rs.1000/- as said amount is required to be paid to concerned employee, who feeds required information in the system, upon which complainant informed that since he was not having said amount, he would pay the amount within 2-4 days and as he was not willing to make payment of bribe of Rs.1000/-, visited office of Anti Corruption Bureau on 18/5/2007. In view of specific date of visit of complainant to the Office of Anti Corruption Bureau as aforesaid, when his earlier evidence is considered, it appears to be incorrect in view of the fact that as per complainant's evidence as referred above, he made payment of Rs.2000/- to accused in February 2007. There is no specific date of making payment of said amount and complainant had met accused 8-15 days thereafter and again 4-8 days thereafter, which may be after 21 days after making payment of Rs.2000/-, which date may fall by the end of February 2007. Complainant has further deposed that thereafter again he met accused and Mr. Dange, Revenue Inspector 2-3 days thereafter, who instructed ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 11 apeal518.11 accused to provide 7/12 extract to complainant and within 4-8 days thereafter met accused when he is stated to have demanded Rs.1000/-. Even by calculating days as aforesaid, if evidence of complainant about his making payment of Rs.2000/- to accused in February 2007 is to be relied, by no stretch of imagination, it can be said that there was any demand made by accused prior to 18/5/2007, on which day accused by visiting Office of Anti Corruption Bureau lodged his report (Exh. 12).
13) Similarly, case of prosecution as revealed from the evidence of complainant of his paying amount of Rs.2000/- to accused sometime in February 2007 when considered with his cross-examination, it has come on record that said amount of Rs.2000/- was paid to accused at Masrul on 26/2/2007. Complainant admitted that distance between his village Gummi and Masrul is about 8 kms. and that for making payment of said amount, he had travelled by S.T. Bus and paid amount at 11 a.m. and returned back to his residence at 3.30 p.m. To a specific question, if complainant thereafter had gone out anywhere on 26/2/2007, he has specifically denied that on that day, he had not visited Buldana. Complainant, however, admitted that one hour is required to reach Buldana from his village Gummi and expressed his inability to say if on that day, he had purchased stamp paper at Buldana admitting that stamp vendors are available for sale of stamp papers at Buldana after 10.30 a.m. On being confronted with one consent deed written on stamp paper ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 12 apeal518.11 purchased on 26/2/2007, complainant admitted that it bears his signature as a purchaser and that stamp paper was purchased in his name, which document as such since referred in cross-examination is marked as Exh. 16. Contents of this document corroborate the oral version as aforesaid. In fact, in the latter part of his cross-examination complainant admitted that this document was got typed by him on 26/2/2007 on computer on the stamp paper and is signed by him and he has presented the same for his execution.
14) From the above evidence of complainant, therefore, it is established by defence that on 26/2/2007, after 9.30 a.m., complainant was at Buldana wherefrom he has admitted to have returned back after 3.30 p.m. In that view of the matter, case of complainant of his making payment of Rs.2000/- to accused in his Office at Masrul is not convincing at all. In that view of the matter, it is noted that prosecution has miserably failed to establish demand by accused for issuing 7/12 extract to complainant after taking necessary mutation entries in the revenue record. In fact, from the evidence of complainant, it has also come on record that lastly when he met accused, he was told that amount of Rs.1000/- is required to be paid by him as same is to be paid to concerned employee, who feeds information in the computer system and unless said amount is paid, no such information would be fed in the system and thus, complainant's work would not be done. In view of his evidence as ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 13 apeal518.11 aforesaid, when further cross-examination is perused, said piece of evidence appears to be material improvement when complainant has expressed his inability to state if such fact is mentioned in his report lodged with Anti Corruption Bureau. As such, such omission since goes to the root of the case, is material, which is found to be duly proved from the evidence of P.W.4 Himmat Jadhav, Investigating Officer when he has admitted that in his report (Exh. 12) complainant had not disclosed that amount is required to be paid if computerised 7/12 extract is to be taken. Truthfulness of report (Exh. 12), even otherwise, is full of doubts when P.W.4 Himmat Jadhav, Investigating Officer has admitted that initially complainant had put date as 14/5/2017 on his report (Exh. 12), which was changed without having signature put thereon to 18/5/2017. It is further admitted that date put below signature of P.W.2 Niranjan Gajbhiye, panch witness on Exh. 12 is 22/5/2007, which is thereafter scored and mentioned as 21/5/2007. Though Investigating Officer has admitted that he has put his counter signature over overwriting, there is no explanation put forth as to why scoring of dates was required to be carried out and in that view of the matter, there appears much substance in the defence of accused when it is suggested to Investigating Officer that on 22/5/2007 when complainant visited Office of Anti Corruption Bureau for recording his statement, his signatures were obtained on report (Exh. 12) after the incident though such suggestion is denied by Investigating Officer.
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14 apeal518.11 15) On considering further evidence of complainant on the point
of incident, he has stated that he along with P.W.2 Niranjan Gajbhiye, first panch visited Office of accused at Masrul, who informed him that he would come out of Office after 30-45 minutes and had accordingly come out to ease himself near the Society's Office when complainant immediately went to him and asked if his work was done when accused asked if he had brought the amount, to which complainant replied in affirmative and on accused demanding amount, made payment of same, which was accepted by accused and kept in his right side pant pocket and thus, gave the proposed signal by pulling handkerchief from his shoulder. In his evidence, it has specifically come on record that when accused came out of Office to ease himself, P.W.2 Niranjan Gajbhiye, panch was standing at some distance from him.
On considering cross-examination of complainant on this aspect, it has come on record that when he along with P.W.2 Niranjan Gajbhiye, panch had visited Office of accused, panch did not enter the office, but was standing in verandah and as such, P.W.2 Niranjan Gajbhiye could have no knowledge as to what talk took place between complainant and accused when complainant claims that accused had stated that he would come out of Office in 30-45 minutes. In fact, in the cross- examination, it has come on record that when complainant visited Office of accused, there were other persons present doing their work and before them, complainant had asked about his work when accused replied that it ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 15 apeal518.11 was not done. There is no independent evidence of any of such persons on record. In that view of the matter, there appears much substance in the defence of accused when it is suggested to complainant that when he went to the Office of accused, there was no talk between him and accused regarding his work or regarding payment of amount, but accused had only asked him to come after one hour though said suggestion is denied.
16) In view of the evidence of complainant about P.W.2 Niranjan Gajbhiye, panch remaining at some distance when complainant claims to have parted with bribe amount to accused, evidence of P.W.2 Niranjan Gajbhiye when perused on this aspect, reveals that after accused came out of Talathi's Office, he went towards open ground of Society's office when complainant immediately went near accused to whom accused asked if he had brought amount, to which complainant replied in affirmative and thus, on demand, complainant made payment, which accused accepted by his right hand and kept it in his right side pant pocket . The evidence of panch is, therefore, silent about conversation as deposed by complainant to the effect that he asked accused if his work was done, upon which accused enquired whether complainant had brought the amount, to which he replied in affirmative as according to panch, what conversation took place was only that accused asked if complainant had brought money. Evidence of panch, even otherwise, does not substantiate the case of prosecution as according to him, the bribe amount after being accepted ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 16 apeal518.11 was kept by accused in his right side pant pocket. However, post-trap panchanama (Exh. 22) as well as evidence of P.W.4 Himmat Jadhav, Investigating Officer reveal that amount of Rs.1000/- was recovered from the hip pocket of accused. Similarly, hip pocket of pant of accused as well as left side shirt pocket of complainant gave a glow when checked under the rays of ultra-violet lamp.
17) In view of doubtful evidence of complainant on the point of demand and acceptance, Shri Wahane, learned Counsel for accused, has rightly placed reliance on the case of T.K. Ramesh Kumar vs. State through Police Inspector, Bangalore {(2015) 15 SCC 629} wherein relying upon decision in the case of B. Jayaraj vs. State of Andhra Pradesh {(2014) 13 SCC 55}, it is laid down that mere possession and recovery of the currency notes from accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
18) Similarly, as from the above discussed evidence, no demand can be said to be established by prosecution, reference can usefully be ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 17 apeal518.11 made to the ratio laid down by the Hon'ble Apex Court in the case of C. Sukumaran vs. State of Kerala {(2015) 13 SCC 59)} where it is noted thus :
"The Special Judge found the appellant guilty under Sections 7 and 13(1)(d) read with Section 13(2). The High Court on re-appreciation of evidence held that the conviction of the appellant under Section 7 was not warranted as the essential element of demand of illegal gratification by the appellant, from the complainant, was not proved. However, the High Court held that there was a strong evidence against the appellant under Section 13(1)(d) of the Act to show his culpability as he had voluntarily accepted the money as bribe from P.W.2. His conviction under Section 13(1)(d) read with Section 13(2) of the Act was thus confirmed.
Allowing the appeal, the Supreme Court held :
"The High Court erroneously affirmed the conviction under Section 13(1)(d) read with Section 13(2) of the Act, although as per law, demand by the appellant under Section 7 of the Act, should have been proved to sustain the charge under Section 13(1)(d) of the Act."
19) Moreover, from the evidence of P.W.3 Sudhir Khande, Sanctioning Authority, case of prosecution fails as from his evidence, it has come on record that no 7/12 extract can be given by Talathi, which is in the computerised form as employees in the Computer Section are required to maintain register in respect of information received by them from the Talathies in respect of 7/12 extracts, which is required to be furnished to the Revenue Department each month and once such information is submitted to the Revenue Department, the Talathies are entitled to take entries in 7/12 extracts. In fact, P.W.4 Himmat Jadhav, Investigating Officer has admitted that at the time of lodging report ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 ::: 18 apeal518.11 (Exh. 12), complainant had produced 7/12 extract in a computerised form dated 18/5/2007. As such, it is seen that 7/12 extract was already issued to complainant, which aspect is further found substantiated from the evidence of P.W.3 Sudhir Khande, Sanctioning Authority when he has admitted that on 6/3/2007 accused had taken mutation entries in respect of village Shekapur, which were certified by the Revenue Inspector and after issuing notices to concerned persons on 17/4/2007, mutation was carried out, which was certified by Mr. Dange, Revenue Inspector. It is, therefore, amply established that at the time of lodging report, accused had already issued 7/12 extract to complainant after following due procedure by taking mutation entries and getting it certified from the Revenue Inspector.
20) In the light of above facts, the case set out by accused in his statement under Section 313 of Code of Criminal Procedure of his false implication by planting notes in his hip pocket appears to be reasonable to be relied upon and since prosecution has failed to establish demand, even if tainted amount of Rs.1000/- is seized from accused, that by itself is not sufficient to establish involvement of accused in the present crime.
21) For the reasons stated above, prosecution cannot be said to have established the case against accused beyond reasonable doubt. Criminal Appeal thus succeeds. In the result, following order is passed : ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:37 :::
19 apeal518.11
ORDER
(i) The criminal appeal is allowed.
(ii) The impugned judgment and order dated 3/11/2011 passed
by learned Additional Sessions Judge, Buldana in Special Anti Corruption Case No.5/2008 is quashed and set aside and appellant is acquitted of the offences charged.
(iii) Bail bonds of appellant stand cancelled.
(iv) Fine amount, if any paid by appellant, be refunded to him.
JUDGE
khj
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