apeal72.08.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.72 OF 2008
Rameshwar s/o Bhimrao Wakhare,
Age: 57 years, Occu: Service,
R/o Gaura Nagar, Nandura Road,
Khamgaon, Tal. Khamgaon,
District Buldhana.
Appellant through LRs.
1] Mandabai wd/o Rameshwar Wakhare,
Aged about 57 years, Occu: Housewife.
2] Sandip s/o Rameshwar Wakhare,
Aged about 32 years, Occu: Business.
3] Pradip s/o Rameshwar Wakhare,
Aged about 29 years, Occu: Business.
4] Seema wd/o Sonerao Suryawanshi,
Aged about 38 years, Occu: Household.
5] Swati w/o Ganeshrao Raut,
Aged about 35 years, Occu: Household.
All R/o Gaura Nagar, MIDC Road,
Near Ganpati Mandir, Sutala (Bk),
Tal. Khamgaon, Dist. Buldhana. ....... APPELLANT
...V E R S U S...
The State of Maharashtra
Through Deputy Superintendent of Police,
A.C.B. Buldhana and P.S.O. Khamgaon (City),
District Buldhana. ....... RESPONDENT
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Shri A.J. Thakkar, Advocate for Appellant.
Shri A.V. Palshikar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
29 NOVEMBER, 2017.
ORAL JUDGMENT
1] The legal heirs of the deceased-accused are
prosecuting the present appeal, which assails the judgment and order dated 28.01.2008 passed by the Additional Sessions Judge, Khamgaon in Special Anti Corruption Case 2/2004, by and under which, the accused Rameshwar Wakhare is convicted for offence punishable under section 7 and 13 (1)(d) read with section 13 (2) of the Prevention of Corruption Act, 1988 ('Act' for short) and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs.1000/- for offence punishable under section 7 of the Act and to suffer rigorous imprisonment for one year and to payment of fine of Rs.1000/- for offence punishable under section 13 (2) of the Act.
::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 3 2] Heard Shri A.J. Thakkar, the learned counsel for the appellant and Shri A.V. Palshikar, the learned Additional Public Prosecutor for the respondent/State.
3] Shri Thakkar, the learned counsel for the accused submits that the prosecution has failed to establish the essential ingredient of offence punishable under the provisions of the Act, that it must be proved beyond reasonable doubt that the accused made a decisive demand of illegal gratification. A decisive demand, is the very sine qua non for constituting the offence punishable under the provisions of the Act, is the submission. Reliance is placed, amongst others, on the enunciation of the 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. 2014 All SCR 1619,
(iv) A. Subair vs. State of Kerala (2009) SCC Vol.6 587 and
(v) N. Sunkanna vs. State of Andhra Pradesh 2015 ALL MR (Cri) 4551 (S.C.).
::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 4 4] The learned counsel for the accused would further submit that, in the absence of clinching proof that the accused demanded illegal gratification, the acceptance and recovery of the tainted currency notes, would pale into insignificance. The further submission of Shri Thakkar is that the acceptance and recovery of the currency notes from the accused, even if accepted arguendo, is duly explained by the accused and the defence that the currency notes were not accepted as illegal gratification is more than probablized on the touchstone of preponderance of probabilities. 5] The learned counsel for the accused would further submit that after the introduction of section 165-A on the statute book (IPC) the bribe giver is equally guilty. The evidence of the bribe giver is no better than that of an accomplice and must be tested with caution, is the submission. Reliance is placed, amongst others, on the judgment of the Apex Court in Pannalal Damodar Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121. The further submission is that both the complainant and the panch witnesses are interested witnesses who are vitally interested in ensuring that the trap succeeds. The evidence of the complainant ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 5 and the shadow panch must be subjected to close scrutiny, and should there be any doubt, the benefit thereof must necessarily go to the accused, is the submission.
6] Per contra, Shri Palshikar, the learned A.P.P. would support the judgment and order impugned, contending that the prosecution has proved both the demand and acceptance of illegal gratification.
7] I have given my anxious consideration to the evidence on record, the submissions canvassed and the reasoning of the learned Sessions Judge, and having done so, I am inclined to agree with the learned counsel for the accused that the prosecution has failed to prove that the accused demanded illegal gratification and that the accused has more than probablized the defence on the touchstone of preponderance of probabilities. 8] The accused faced trial on the charge that while serving as Junior Accounts Officer of Panchayat Samiti, Khamgaon, District Buldhana, at 13:35 hours on 17.12.2003 he ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 6 demanded and accepted Rs.200/- from the complainant Prakash Kale as illegal gratification as a motive or reward for issuing cheque of Rs.815/- of grant-in-aid for Gharkul Scheme and thereby committed an offence punishable under section 7 and 13(1)(d) read with section 13(2) of the Act.
9] The gist of the prosecution case, as is unfolded in the evidence of the complainant who is examined as P.W.1, is that the complainant Prakash Kale is a beneficiary of the Indira Aawas Yojana under which a person below poverty line is extended financial assistance for construction of residential house. The financial assistance is extended in installment corresponding to the progress of the construction of the house. Concededly, the complainant availed financial assistance of Rs.19,000/- in two installment of Rs.8000/- and Rs.11,000/- by cheques, which were issued and handed over by the accused without any hassle or illegal demand. The last installment of Rs.815/- was receivable by the complainant who approached the accused on 15.12.2002 and was asked to pay Rs.200/- as illegal gratification for issuance of the cheque.
::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 7 10] The complainant approached the Anti Corruption Bureau (ACB), Buldhana and lodged complaint Exh.12. Pursuant to the said complaint, panchas were summoned, panchnama Exh. 15 was drawn, the usual demonstration of the phenolphthalein powder and sodium carbonate solution test was given and the standard protocol explained.
11] The complainant and the shadow panch went to the office of the accused, the complainant asked the accused about the cheque and the accused said that the cheque was ready and whether the bribe amount is brought by the complainant. The complainant handed over Rs.200/- to the accused, the accused accepted the currency notes and put the said notes in his shirt pocket, the predetermined signal was given and the accused was apprehended.
12] Be it noted, that the complainant P.W.1 states in the examination-in-chief that the accused immediately disclosed to the Investigating Officer that he had not demanded illegal gratification.
::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 8 13] The cross-examination of P.W.1 may now be considered in order to appreciate the contention of the learned counsel for the accused, that the defence that the accused did not demand illegal gratification is more than probablized on the touchstone of preponderance of probabilities. 14] It is extracted in the cross-examination that Engineer Ghive used to supervise the work of construction of houses under the Indira Aawas Yojana and it was on his recommendation that the accused used to issue cheque to the beneficiaries. P.W.1 admits that the earlier installments were released by the accused without demanding any amount. My attention is invited to certain vital admissions extracted in the cross-examination of the complainant P.W.1 and the relevant portion reads thus:
"It is true that accused asked me to collect smokeless hearth worth Rs.185/- from Khodke Babu and thereafter to collect the cheque of last instalment from him. Ghive engineer was present there who instructed me to handover Rs.200/- to the accused for collecting the cheque of last instalment from the accused. On that day I was not having Rs.200/- and therefore I gave complaint in ACB office against the accused. It is true that when I was interrogated by both the panchas in ACB office at that time I said to them that the bribe ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 9 amount was demanded to me by Ghive sahib. It is true that when I approached the accused in the office at Khamgaon he asked me whether I brought the amount as per the instructions of Ghive sahib, and I replied in affirmative. When accused was caught hold by the members of raiding party, at that time accused spoke that whether bribe amount was demanded by him. There was no dispute in between me and accused at any time in respect of demand of money. Accused had stated me on 15-12-03 that cheque of mine of Rs.815/- was ready with him. Engineer Ghive was not present in the office of panchayat samiti on 17.12.2003. It is true that I wanted to lodge complaint against Engineer Ghive. But since the amount was to be handedover to the accused therefore I lodged complaint against the accused."
15] Be it noted, that the admission extracted in the cross- examination of P.W.1 are consistent with the contents of pre-trap panchnama Exh.15. The relevant portion of the pre-trap panchnama Exh.15 reads thus:
"I made enquiry from him in respect of the cheque of grant-in-aid of one thousand rupees of my Gharkul. Thereupon, Shri Wakhare sahib said to me, "one thousand rupees of your Gharkul is sanctioned". Then, he [i.e. Shri Wakhare] asked me to take away [purchase] from Shri Khodake Babu, one hearth worth Rs.185/- out of the said one thousand rupees."
16] The shadow panch who is examined as P.W.2 has ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 10 deposed thus:
"Accused was initially absent on his place of seating and later on he came there after half an hour. There was talk in between complainant Kale and complainant. I heard the talk. Accused asked complainant Prakash whether he brought the amount.
Thereafter complainant Prakash handedover the bribe amount to the accused and accused put the said amount in his left shirt pocket."
In the cross-examination, P.W.2 shadow panch deposes thus:
"Accused asked complainant Prakash that "TIYANCHE PAISE AANLE KA" and then Prakash tendered the currency notes to the accused."
17] The accused has not seriously disputed the acceptance of Rs.200/- on the day of the trap. The answer to question 5 in the statement recorded under section 313 of the Code of Criminal Procedure, 1973 would suggest that according to the accused, the said amount was given by the complainant for the Engineer Mr. Ghive and that the accused did not demand any illegal ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 11 gratification.
18] The submission of the learned counsel for the accused, that the prosecution has not proved a decisive demand, much less beyond reasonable doubt, deserves acceptance. The admissions extracted in the cross-examination of the complainant P.W.1 more than probablize the defence of the accused that he did not demand illegal gratification. The admission extracted in the cross-examination of the complainant P.W.1 are more than corroborated by the admission extracted in the cross-examination of the shadow panch P.W.2 who deposes that the accused asked the complainant Prakash whether "Tiyanche Paise Aanle Ka". If the evidence is tested on the anvil of the enunciation of law in the judgments cited supra, it must be held that the prosecution has not conclusively established a decisive demand. It is axiomatic, that in the absence of proof of a decisive demand, the recovery of the tainted currency notes pales into insignificance.
19] The judgment and order impugned is unsustainable in ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:17:50 ::: apeal72.08.J.odt 12 law and is set aside. The accused is acquitted of offence punishable under section 7 and 13 (2) of the Act. 20] The fine paid by the accused, if any, be refunded to the appellants-legal heirs.
21] Appeal is allowed.
JUDGE
NSN
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