Bombay High Court
Jitendra Kumar Jain vs Cental Bureau Of Investigation ... on 3 December, 2014
Bench: A.M. Thipsay
Tilak 1/40 APPEAL-1146-12(J).sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1146 OF 2012
JITENDRA KUMAR JAIN
Aged 45 yrs, Occupation Joint
Director, Delhi,
Residing at Flat No.7,
Gr.floor, Delhi Administration
Officer Flats, 33, Rajpur Road,
Civil Lines, Delhi 54 .. APPELLANT
Versus
1 CENTRAL BUREAU OF INVESTIGATION,
Anveshan Bhawan, C.G.O Complex,
New Delhi 3.
Through Union of India, having
their office at Aayakar Bhavan,
New Marine Line, Mumbai-20
2 STATE OF MAHARASHTRA .. RESPONDENTS
---
Mr.Sushil K. Gupta i/b Mr.Y.R. Mishra, Advocate for the appellant.
Mr.Rajesh Desai, Advocate for respondent CBI.
Mrs.M.R.Tidke, APP for the Respondent State.
---
CORAM : ABHAY M. THIPSAY, J.
ORDER RESERVED : 14th AUGUST 2014
ORDER PRONOUNCED : 3rd DECEMBER 2014
---
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ORAL ORDER :-
1 This Appeal is directed against the judgment and
order dated 21st September 2012 delivered by the Special Judge,
Silvassa, in Special Case No.1 of 2009, convicting the appellant
who was the accused in the said case of offences punishable under
sections 7 and section 13(2) read with section 13(1)(d) of the
Prevention of Corruption Act, 1988. By the said judgment and
order, the learned Special Judge sentenced the appellant to suffer
Rigorous Imprisonment for three years, and to pay a fine of
Rs.5,000/-, in default to suffer Rigorous Imprisonment for three
months in respect of the offence punishable under section 7 of the
Prevention of Corruption Act (hereinafter referred to as 'the P.C.
Act'); and to suffer Rigorous Imprisonment for three years and to
pay a fine of Rs.10,000/-, in default to suffer Rigorous
Imprisonment for six months in respect of the offence punishable
under section 13(2) read with section 13(1)(d) of the P.C. Act.
The learned Judge directed that the substantive sentences would
run concurrently.
2 The prosecution case, as put forth before the trial
court may be stated as under :-
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Amrutbhai Patel (PW 1), a resident of Baldevi, had
entered into an agreement to purchase a certain piece and parcel
of land situate at Silli, Dadra and Nagar Haveli, from one Satish
Chandra Tamboli for Rs.1,25,000/- per acre. The said land was
agricultural land, and therefore, for purchasing the same,
permission from the Collector was required under the provisions of
Dadra and Nagar Haveli Land Reforms Regulations and Rules.
Amrutbhai Patel and Satish Tamboli had therefore, filed an
application seeking such permission for execution of the sale deed.
The said application was pending and the file was lying in the
office of the appellant who was then the Resident Deputy Collector
(RDC) Silvassa, for inquiry. Amrutbhai Patel had approached the
appellant on 16th November 2006 and had made inquiries about
his pending file when the appellant had assured him that he would
look into the file.
That, on 29th December 2006, Amrutbhai Patel
received a telephone call from Vijay Matera (PW 4) Talathi of
Kilvani Panchayat. Vijay Matera informed Amrutbhai Patel that
the appellant had asked him (Amrutbhai) to see the appellant.
Amrutbhai's son was not well and was hospitalized at that time,
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and that therefore, Amrutbhai informed Vijay Matera (PW 4) that
he was unable to meet the appellant on that date, but that he
would approach the appellant after his son would be discharged
from the hospital. That, on 2nd January 2007, Amrutbhai
contacted the appellant in his office at Silvassa at about 5.00 p.m
and that at that time, the appellant told him that he had gone
through the file. The appellant told Amrutbhai that he (appellant)
used to charge an amount of Rs.15,000/- per acre for granting
permissions in respect of sale or purchase of the land. The
appellant demanded an amount of Rs.60,000/- from Amrutbhai as
a consideration for granting permission to purchase the land. The
appellant also told Amrutbhai that he should pay the amount
immediately, otherwise his file would be lying there for six
months, and that he would not get permission. Amrutbhai
requested the appellant to grant some time.
That, on 4th January 2007, Vijay Matera again made a
telephone call to Amrutbhai on Amrutbhai's mobile telephone, and
informed him that the appellant had called him (Amrutbhai).
Amrutbhai did not want to pay the bribe amount as had been
demanded by the appellant, (hereinafter referred to as 'the
accused') and therefore, on 5th January 2007, he went to the office
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of CBI, ACB, Mumbai and approached the Superintendent of
Police, CBI ACB - one Shri Saxena. Amrutbhai submitted his
complaint in writing, on the basis of which the First Information
Report came to be registered, and the matter was entrusted to
Shri Badenkal (PW 3) - Inspector of Police, CBI, ACB. Shri
Badenkal then made enquiry with Amrutbhai, whereupon
Amrutbhai narrated his grievance to Shri Badenkal. Badenkal
wanted to verify the correctness of the allegations made by
Amrutbhai, and therefore, called two panchas - Sawant (PW 2)
and Unawane. In the presence of the panchas, he asked
Amrutbhai to make a telephone call to the accused on the official
landline number of the accused, and made arrangements for
recording the conversation that would take place between
Amrutbhai and the accused. Amrutbhai then made a telephone
call to the accused which was attended by Mrs.Maria (PW 5) - P.A
of the accused, who informed Amrutbhai that the accused was not
present in his office, and that Amrutbhai should call again after
some time. Amrutbhai made another telephone call to the accused
as per the directions of Shri Badenkal, and this time, Mrs.Maria
transferred the call to the accused. The conversation that took
place between Amrutbhai and accused came to be recorded in the
cassette. Since on the basis of the conversation that had taken
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place, the correctness of the allegation of demand of bribe by the
accused could not be verified, Badenkal decided to verify the
correctness of the allegations in the complaint on the next working
day i.e. 8th January 2007. He asked Amrutbhai Patel to see him at
Bhilad Check Post on 8th January 2007.
On 8th January 2007, Badenkal, panchas and members
of the police party went to Bhilad check post at about 12 noon as
pre-decided, and Amrutbhai also came there. Badenkal instructed
Amrutbhai to see the accused in his office. Amrutbhai was given a
tape-recorder, and was asked to record the conversation that
would take place between him and the accused. Amrutbhai then
went to the accused in his office, had conversation with the
accused and that, at that time, the accused told Amrutbhai to pay
the amount to Vijay Matera (Talathi). Amrutbhai then requested
the accused to inform Vijay Matera in that regard by making a
telephone call to him. The accused then said that he did not know
the telephone number of Vijay Matera, but that Amrutbhai should
bring Vijay Matera to him. Amrutbhai then went back to Bhilad
check post. It was then decided by Shri Badenkal to lay a trap
against the accused. An amount of Rs.60,000/- was collected from
Amrutbhai, and the usual procedure that is adopted for laying
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down a trap i.e. of applying phenolphthalein powder to the notes
produced by Amrutbhai, and of noting down the numbers of the
said notes, etc. was followed. The bundle of notes was kept in the
shirt pocket of Amrutbhai. The tape-recorder, with a microphone
attached to, was also concealed on the person of Amrutbhai.
Amrutbhai and panchas were explained the characteristics of the
phenolphthalein powder. Amrutbhai was then asked to make a
telephone call to Vijay Matera. Accordingly, Amrutbhai made a
call and asked Vijay Matera to come with him while he would be
approaching the accused. Amrutbhai went to Mamlatdar office,
Silvassa, by his car as Vijay Matera was to meet him there, and the
panchas and raiding party followed him in another vehicle. From
the Mamletdar office, Amrutbhai and Vijay Matera both went
towards the office of the RDC situate in the Collectorate, Silvassa.
They both entered inside the cabin of the accused. The accused
was, at that time, dictating some matter to Mrs.Maria. After the
dictation was over, Mrs.Maria left the cabin of the accused and
went towards her cabin, whereafter there was conversation
between the accused and Amrutbhai regarding the bribe amount
and the work of Amrutbhai. The accused demanded the amount
of Rs.60,000/-, and asked Amrutbhai to pay the same to Vijay
Matera. Vijay Matera and Amrutbhai came out of the chamber of
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the accused, but when Amrutbhai was giving the amount to Vijay
Matera, he refused to accept the same. He told Amrutbhai to pay
the amount to the accused himself. Amrutbhai then told Vijay
Matera, that, in that case, he should inform the accused
accordingly. Vijay Matera went in the chamber of the accused,
and informed him that he was not ready to accept the amount.
The accused then called Amrutbhai in his chamber, and on being
told by Amrutbhai that Vijay Matera was not accepting the amount
stated, "Alright, give it to me" ( fBd gS] eq>s ns fnft;s). When
Amrutbhai was intending to take out the amount from his shirt
pocket, the accused asked him to put the amount in a paper, and
wrap the notes in the paper. Amrutbhai went out, collected a
paper from a clerk working in a nearby room, wrapped the
amount in a paper, and thereafter kept the said bundle of notes in
the left side of his shirt pocket. Amrutbhai entered in the chamber
of the accused, and paid the amount to the accused. The accused
accepted the bundle of notes by his right hand, and kept it in the
shelf of one iron rack which was in his chamber. Amrutbhai then
went out of the room and gave the pre-determined signal to the
CBI officials, where-after the raiding party and panchas entered
the chamber of the accused, and caught him. The tainted notes
were collected from the shelf of the rack in the cabin. Two glasses
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of water containing sodium carbonate were brought and the
accused was made to dip the fingers of both his hands, in each
glass, separately. The right hand-wash of the accused turned pink,
but that of the left hand did not show any change in the colour.
Similarly, solution of sodium carbonate was applied to the notes
also, and thereupon, a portion of the notes also turned pink. The
file of Amrutbhai Patel was found in the chamber, which was also
seized. The cassette in which the conversation between
Amrutbhai Patel and accused had been recorded was heard, and
thereafter sealed. Mr.Badenkal, (PW 3) then arrested the accused.
He also seized certain other documents.
In the course of further investigation which was
carried out by Shri B.M. Chonkar, Inspector of Police (PW 8), the
specimen voice of the accused was recorded and sent for
comparison with the voice in the recorded cassettes to the Central
Forensic Science Laboratory (CFSL) at New Delhi. The statements
of Amrutbhai and Vijay Matera were recorded under the provisions
of section 164 of the Code also. On completion of investigation,
sanction under section 19 of the Prevention of Corruption Act (for
short 'the P.C.Act') was sought for, from the competent authority.
On receiving the same, a charge-sheet came to be filed against the
accused.
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3 The accused pleaded not guilty to the charge of the
said offences that came to be framed against him. The defence of
the accused is of false implication. According to him, Amrutbhai
had some grudge against him as the accused had recorded some
findings in an inquiry in the matter of escape of some prisoners
from Silvassa jail, which findings were not liked by Amrutbhai.
According to the accused, Vijay Matera had also some grudge
against the accused, as the accused had given a memo to him. The
accused had also suggested that he had, on assuming the charge of
RDC Silvassa, issued a circular which provided for a better and
proper scrutiny of the proposals for sale and purchase of
agricultural lands,seeking permission of the collector, and has
suggested this might not have been liked by Amrutbhai.
4 The prosecution examined 8 witnesses in the course
of the trial, six of whom have already been referred to earlier. The
other two are Jitendra Kumar Singh(PW 6), Desk Officer, who had
signed the sanction order and Ms.Ranjmati B. Bhagle (PW 7),a
Lower Division Clerk working in the Mamletdar office, Silvassa.
The accused examined one Mrs.Kotian, who was, at the material
time, working as P.A to Collector,Silvassa in his defence. In
addition to the oral evidence of these witnesses, several
documents were tendered in evidence, marked and exhibited.
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5 After considering the evidence adduced during the
trial, the learned Special Judge convicted and sentenced the
accused, as aforesaid.
6 I have heard Mr.Sushil Gupta, learned counsel for the
accused. I have heard Mr.Rajesh Desai, learned counsel for the
CBI. I have heard Mrs.M.R. Tidke, learned APP for the State.
Apart from the oral arguments advanced by them, the learned
counsel for the accused and the learned counsel for the CBI have
also filed written submissions in the matter. They have also relied
upon authoritative pronouncements of the Supreme Court of India
in support of their respective contentions.
7 With the assistance of the learned counsel for the
accused and the learned counsel for the CBI, I have gone through
the evidence adduced during the trial. I have carefully gone
through the impugned judgment.
8 It is contented by Mr.Sushil Gupta, learned counsel for
the accused that the order of conviction as recorded by the learned
Special Judge is contrary to law. He contended that the
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prosecution had failed to establish the case against the accused.
He contended that the trial court has not at all taken into
consideration the contentions advanced before it on behalf of the
accused. Mr.Rajesh Desai, learned counsel for the CBI, on the
other hand, contended that there was sufficient and satisfactory
evidence to prove the guilt of the accused beyond reasonable
doubt, and that the impugned judgment and order is proper, legal
and in accordance with law.
9 The first contention advanced by the learned counsel
for the accused is that in the present case, the alleged demand of
illegal gratification itself has not been proved. He also submitted
that the cassettes and the transcripts of the recorded conversations
had wrongly been admitted in evidence. He also submitted that
the theory that the accused wanted Vijay Matera to act as a middle
man, is not logical in the facts and circumstances of the case, and
is not supported by the evidence on record. He also contended
that the receipt of the tainted money by the accused had also not
been proved. He emphasized that the money was not recovered
from the person of the accused, but from an iron rack inside the
chamber of the accused.
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10 It would be proper to first examine the evidence in
respect of the demand of gratification, allegedly made by the
accused.
11 According to Amrutbhai, on 29th December 2006, he
received a telephone call on his mobile phone from Vijay Matera
(Talathi), and that Vijay Matera told him that the accused had
called him (Amrutbhai). Amrutbhai thereafter, visited the office of
the accused on 2nd January 2007. It is at that time that the
demand of illegal gratification of Rs.60,000/- was, for the first
time, conveyed by the accused to Amrutbhai.
12 As per the version of Amrutbhai, he again received a
call from Vijay Matera on 4th January 2007, but Amrutbhai did not
approach the accused on that day. Instead, on 5 th January 2007,
he went to the CBI office.
13 It is contended that as regards the demand made by
the accused on 2nd January 2007, there is no evidence except the
uncorroborated testimony of Amrutbhai himself. It is submitted
that looking to the character of Amrutbhai, it was unsafe to accept
his uncorroborated testimony.
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14 Indeed, in the cross-examination of Amrutbhai, it has
been revealed that he has been convicted of an offence punishable
under section 302 of the IPC. Appeal filed by him against the said
conviction is pending. It is also revealed that a case in respect of
an offence punishable under section 307 of the IPC is pending
against him in the Sessions Court at Silvassa. He has also
admitted that about 7 to 8 criminal cases had been filed against
him, and that preventive action in respect of anti social activities
had also been taken against him on three occasions. Amrutbhai
claimed to be a social worker. He had contested Parliamentary
elections in the year 1998. It is also revealed that he has
frequently changed the political parties. He is a member of the
bar, practicing on the criminal side. He had, in the past also, filed
complaints of corruption against public servants. Indeed,
considering all these aspects, the evidence of Amrutbhai needs to
be carefully scrutinized and cannot be safely accepted without a
thorough and proper scrutiny.
15 There is certainly no rule that uncorroborated
testimony of an interested or partisan witness can never be
accepted as sufficient for establishing a fact. This would be so,
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even if a doubt is cast on the character of such witness. Such
uncorroborated testimony, however, has to very carefully
scrutinized, and the appreciation of such evidence would be
required to be done consistently with the principles which govern
the appreciation of evidence in general. While appreciating such
uncorroborated testimony, 'whether corroboration thereto could
have been obtained and that, still it has not been obtained', would
be a relevant factor. In the instant case, Amrutbhai is said to have
received a telephonic message from Vijay Matera on 29th December
2006, pursuant to which he went to the office of the on 2 nd
January 2007 and met him. Amrutbhai had received a telephone
call from Vijay Matera on his mobile telephone, and as such, it was
quite easy to prove that, by production of Call Data Records in that
regard. No Call Data Records were produced to support the theory
of Vijay Matera having told Amrutbhai to meet the accused as per
the message allegedly given by the accused. Amrutbhai again
received a call from Vijay Matera on 4 th January 2007 - this time
also on the mobile telephone of Amrutbhai. However, there is no
record in respect of this telephone call also. What is further
significant is that Vijay Matera, in his evidence, does not make any
mention of the telephone call supposedly made by him to
Amrutbhai on 4th January 2007. It is after this call - according to
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Amrutbhai - that Amrutbhai decided to go to the CBI and lodge a
complaint. In this case, the necessity of establishing the fact of
initial demand in a satisfactory manner was more than usual, as
the tainted money had not been recovered from the person of the
accused. Ordinarily, therefore, one would expect the Investigating
Agency to have collected record in respect of the telephone calls
received by Amrutbhai from Vijay Matera, which could easily be
procured. Interesting, PI Badenkal speaks of having collected the
call records of the calls made and received by Amrutbhai on 29 th
December 2006, but no such records were produced before the
Court. Had the CDRs reflected telephonic contacts between Vijay
Matera and Amrutbhai on 29th December 2006, that would have
lent some assurance to the claim of Amrutbhai. There is no
explanation why the CDRs were not produced before the Court.
The Investigating Officer did not collect any CDRs in respect of the
telephonic contact between Vijay Matera and Amrutbhai on 4 th
January 2007. According to him, he had collected the CDRs in
respect of the calls made on 29 th December 2006 only. Now, why
CDRs in respect of the other calls were not procured, is difficult to
understand and PI Badenkal in his evidence has stated that he
could not assign any reason for not obtaining the call details for
th
the period after 29 December 2006.
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16 Amrutbhai went to the office of CBI on 5 th January
2007 and lodged a complaint. It may be recalled that for
verification of the complaint, Amrutbhai was made to speak to the
accused on telephone, and when the second call was made by
Amrutbhai, on that day, he could contact the accused. The
conversation that took place was recorded. The transcript thereof
was tendered in evidence. The conversation which is reflected in
the transcript panchnama (Exhibit-54) reads as under :-
Amrut Patel Sir, eSa oks Amrut Patel cksy jgk gaqA
J.K. Jain gkaA
Amrut Patel ueLdkj lkgsc A
J.K. Jain gkaA
Amrut Patel vkidks disturb dj jgk gaqA igys Hkh phone fd;k FkkA
J.K.Jain cksyks
Amrut Patel Vijay Talathi lkgc us crk;k Fkk] ysfdu esjk cPPkk fcekj gSA
J.K. Jain
Amrut Patel Hallo -Hallo - Hallo
17 It is interesting to note that in this conversation
Amrutbhai refers to the message of Vijay Matera, (supposed to
th
have been given on 29 December 2006), but does not refer to his
nd
alleged meeting with the accused on 2 January 2007.
He also is
heard saying that he had previously also 'made a telephone call'
(igys Hkh Qksu fd;k Fkk ). If Amrutbhai had met the accused on 2 nd
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January 2007 pursuant to the message received by him from Vijay
Matera on 29th December 2006, he would have, in all probability,
referred to the meeting that had taken place on 2 nd January 2007,
and not only to the message received by him from Vijay Matera.
He mentions about his having made a telephone call to the
accused even before, but not about his having met the accused
before. Thus, the conversation that is alleged to have taken place
th
on 5 January 2007 does not lend any support to the theory that a
meeting between the accused and Amrutbhai had taken place on
nd
January 2007. Rather, it creates a doubt about such meeting
having taken place.
18 The complaint lodged by Amrutbhai was sought to be
verified by the Investigating Officer Mr.Badenkal, and it was for
that purpose, that Amrutbhai was made to talk to the accused on
telephone on 5th January 2007. However, the conversation that
took place did not afford any verification with respect to the
alleged demand of bribe made by the accused from Amrutbhai.
Not only this is clear from the record of the conversation itself, but
has also been admitted by the Investigating Officer PI Badenkal
(PW 3) in his examination-in-chief itself. According to him, since
the verification of the demand of bribe could not be done on 5th
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January 2007, he had decided 'to continue the process of
verification on the next working day i.e. 8th January 2007'.
However, though according to him, the verification was to be
done, actually he made all the arrangements for laying a trap. He
along with panchas, came to Bhilad check post and asked
Amrutbhai to be present there on that date without doing any
verification in respect of the complaint of demand of illegal
gratification.
19 The record of conversation that took place between
the accused and Amrutbhai on 8th January 2007, also does not
provide any corroboration to the theory of the accused having
made a demand of illegal gratification. According to Amrutbhai,
on 8th January 2007, as pre-decided, he went to the accused. As
decided, the conversation that took place between him and the
accused was recorded by him. The transcript of the conversation
forms a part of panchnama (Exhibit-54) This conversation also
does not support the theory of the accused and Amrutbhai having
nd
met on 2 January 2007
. In fact, the conversation suggests that
the accused had not identified Amrutbhai at all. True, according
to Amrutbhai, the accused deliberately pretended that he did not
know Amrutbhai, but the possibility of this claim of Amrutbhai
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being an attempt to overcome the failure to establish the demand
by recording the conversation, also needs to be kept in mind. The
transcript of the conversation not only does not support the
theory of a demand having been made previously by the
accused, but on the contrary, creates a further doubt about
this aspect of the matter. The conversation indicates that when
Amrutbhai opened the subject of 'giving', the accused said that he
had not identified him. Amrutbhai was required to refer to 'Vijay
Matera', 'sale permission in respect of the land at Silli' etc,
whereupon the accused seems to have been made aware of the
subject. Since the conversation is not fully audible, no definite
conclusion can be arrived at, but the least that can be said is that
the conversation fails to indicate that any demand of illegal
gratification was made by the accused.
20 However, that is not the most crucial aspect of the
matter. It may be recalled that according to the prosecution case,
th
Viay Matera and Amrutbhai on 8
January 2007 went inside the
chamber of the accused when discussion regarding money took
place, and the accused is said to have, in this meeting, told
Amrutbhai to hand over the money to Vijay Matera, in Vijay
Matera's presence. That, thereafter, Amrutbhai and Vijay Matera
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both came out, and when Amrutbhai attempted to give money to
Vijay Matera, he refused to accept it. Apart from the fact that his
refusal to accept the money does not fit in properly with the
prosecution case which is to the effect that Vijay Matera was to act
as a middle man, why did Vijay Matera not tell the accused in his
chamber itself that he will not accept the money, and why would
he, after going out of the chamber, tell Amrutbhai that he would
not accept the money, is difficult to comprehend. This is more so
because the record of the conversation as per the transcript thereof
does not support that any utterance to the effect that money
should be paid to Vijay Matera, was made by the accused.
According to Amrutbhai, accused said " fBd gS] mls ns nks ". However,
the transcript of the recorded conversation shows that what the
accused supposedly said is " vki mls dj fnth;s ok" . It is therefore,
clear that this conversation does not support the claim of
Amrutbhai. Rather it is in conflict with the claim made.
21 However, even that is not the crucial aspect of the
matter. When Amrutbhai attempted to give the money to Vijay
Matera,Vijay Matera refused to accept the amount and asked
Amrutbhai that it should be paid to the accused only. It has already
been observed that this does not fit in with the theory of Vijay
Tilak 22/40 APPEAL-1146-12(J).sxw
Matera having been selected by the accused to act as a middle
man, but what is important is, when Amrutbhai thereafter went
alone inside the chamber of the accused, he did not record the
conversation. This was the most crucial conversation in which the
accused is supposed to have said " fBd gS]eq>s ns fnft;s " (money) .
Amrutbhai ought to have been aware that the conversation which
would take place between him and the accused after his re-
entering the chamber of the accused, and directly offering money
to him would be crucial, and therefore, that he did not record the
conversation that took place in spite of having made full
preparations to record the same and having been provided with a
tape-recorder, is suspicious. There was no reason for him not to
again start the recording before entering inside the chamber of the
accused. It may be observed in this context that there was no
reason for him to stop the recording in the first place, while
talking to Vijay Matera, as, since Vijay Matera was to accept the
money on behalf of the accused, that conversation :- i.e. the one
between Amrutbhai and Vijay Matera would also be very material.
22 It is difficult to place reliance on the evidence of
Amrutbhai. In the context of his failure to record the most crucial
conversation that is supposed to have taken place between him
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and the accused, it may also be observed that as per the initial
plan, Amrutbhai was supposed to take a panch with him when he
was to visit the office of the accused on 8th January 2007 for the
first time (first visit). When Badenkal told Amrutbhai to take the
panch with him, Amrutbhai did not allow it to happen by telling
Badenkal that 'the accused was of a suspicious nature', and that 'he
would not talk about the bribe in the presence of a third person'.
Significantly, no verification of the demand of bribe had been
made by that time, and though preparations for laying a trap had
already been made, according to Badenkal, the verification was yet
to be done. Thus, at that crucial stage also, Amrutbhai did not
keep any witness with him, and preferred to be alone. It has
already been observed that the conversation that took place in the
said meeting (which came to be recorded), does not support the
theory of accused having made a demand for bribe earlier, or even
during the said meeting. Thus, Amrutbhai created situations
preventing collection of corroborative evidence, firstly by keeping
the panch out of it while going to the office of the accused on 8 th
January 2007 (first visit), and then by not recording the
conversation between him and the accused when he re-entered the
chamber of the accused after Vijay Matera had refused to accept
the money.
Tilak 24/40 APPEAL-1146-12(J).sxw
23 It is well settled that the demand of gratification is the
foundation of the 'trap cases'. It has been laid down in several
pronouncements of the Apex Court that unless the evidence of the
initial demand is satisfactory, the whole evidence obtained by
laying a trap, is required to be viewed cautiously. The argument
that it would not be necessary for the prosecution to prove
'demand', and it would be sufficient to establish that the accused
had 'obtained' illegal gratification for proving the charge of an
offence punishable under section 7 of the P.C. Act, has been often
rejected by the Superior Courts and by the Apex Court. In State
of Himachal Pradesh Vs. Tej Ram (1990) Cr.L.J. 995, it was
observed that if such an argument is accepted, the result would be
catastrophic and anyone may come forward to level an allegation
of corruption or bribery against a public servant by just pushing
money into his pocket, or throwing the same at his table. It was
held that the word 'obtains' has been intentionally used by the
legislature, and has a definite meaning. Therefore, before anyone
can be proceeded against on the allegations of having taken illegal
gratification, it would be necessary to prove that it was as a result
of 'demand' that the money was passed on. Passing of money is a
consequence of the demand. Thus, where there is no satisfactory
evidence with respect to the demand of gratification, the entire
Tilak 25/40 APPEAL-1146-12(J).sxw
prosecution case would be seriously affected. Undoubtedly,
evidence of acceptance of money would also amount to
circumstantial evidence of a previous demand in appropriate cases.
Inference of there having had a previous demand of illegal
gratification can be properly drawn from the fact of acceptance of
the money in appropriate cases, where the evidence of acceptance
of money is of a sterling quality and the facts of the case are such
as would justify such inference.
24 Even the evidence with respect to acceptance of bribe
by the accused is not satisfactory. Needless to say that this has to
be viewed in the light of the fact the weaknesses in the evidence in
respect of the initial demand made by the accused, and that the
trap was laid without verification of the aspect of a demand for
bribe. In this context, that Amrutbhai did not record the
conversation that took place between him and the accused
immediately before the bribe amount was allegedly handed over
to the accused by him, is significant and is, by itself, sufficient to
create a reasonable doubt about the claim of Amrutbhai that he
paid the tainted amount to the accused which was accepted by the
accused. This is more so because the amount was recovered from
an iron rack in the chamber of the accused, and not from the
Tilak 26/40 APPEAL-1146-12(J).sxw
person of the accused. The possibility of the amount having been
planted there, cannot altogether be ruled out if the entire evidence
that has been adduced during trial, is kept in mind.
25 Undoubtedly, some suspicion against the accused does
arise because the hand wash of the accused turned pink. This
would indicate that the accused had come in contact with the
phenolphthalein powder that was applied to the currency notes,
and this in turn would indicate that he had received and handled
the amount. However, this evidence cannot be viewed in isolation.
Moreover, there are some curious aspects which have remained
unexplained, and therefore, require careful thinking as to the
weight that should be given to this piece of evidence. Firstly, the
prosecution is unable to explain as to how it could happen when
the amount had been wrapped in a plain white paper. The amount
was found by the raiding party in the same condition i.e. being
wrapped in a white paper. Now, the surface of the white paper
would not have any phenolphthalein powder over it, and
therefore, going by the facts as stated by the witnesses, there was
no reason for the hand wash of the accused turning pink, even if
he had accepted the packet containing currency notes from
Amrutbhai. Secondly - and quite interestingly - the report from
Tilak 27/40 APPEAL-1146-12(J).sxw
the Central Forensic Science Laboratory shows that traces of
phenolphthalein were found in the hand wash solution of the left
hand of the accused also, though it is nobody's case that the
amount was taken by the accused also by using his left hand.
Even if that phenolphthalein powder could not have come in
contact with the hand of the accused because the currency notes
had been wrapped in a white paper, is ignored, the fact remains
that the presence of phenolphthalein powder on the left hand
wash solution, remains unexplained.
26 It is true that these factors viz:- 'the hand wash of the
accused turning pink, though the tainted amount had been
wrapped in a plain white paper to which phenolphthalein powder
had not been applied', and 'though the accused is said to have
accepted the packet containing tainted money by his right hand,
presence of phenolphthalein powder in his left hand solution, was
also found' - by themselves would not be of great significance, and
certainly would not be fatal for the prosecution. It is because
there would be a number of possible explanation as to how it
could have happened. What, however, cannot be overlooked is
that there would be a number of possible explanations the other
way also - i.e. consistent with the defence that the accused had
Tilak 28/40 APPEAL-1146-12(J).sxw
never received or accepted the tainted amount. Therefore, when
the demand of bribe is not satisfactorily established, and when
Amrutbhai appears to have kept the witness away, and also not
recorded the conversation wherein the demand took place, it
would be hazardous to hold the acceptance of bribe by the accused
as proved only on the basis of the evidence of the hand wash of
the accused turning pink. The theory of acceptance of bribe
cannot be believed merely on the basis of the hand wash turning
pink.
27 In this regard, the learned counsel for the accused has
placed reliance on a decision of the Supreme Court of India. From
the observations made by the Supreme Court of India in the case
of P. Parshuram Reddy Vs. State of Andhra Pradesh, 2012 SCC
Cr.552, it appears that when there would be no satisfactory
evidence regarding the demand of bribe, and when independent
witnesses had not heard the conversation between the
complainant and the accused, the evidence of phenolphthalein
powder would not be sufficient to convict an accused. In the
instant case, in the light of the weaknesses in the prosecution case,
not only with respect to the demand of bribe, but also with respect
to its acceptance, it would not be possible to hold the accused
Tilak 29/40 APPEAL-1146-12(J).sxw
guilty only on the basis of the evidence of the hand wash of the
accused turning pink.
28 The prosecution has relied upon the record of the
conversations that took place between Amrutbhai and the accused
in support of the alleged demand of money made by the accused.
The learned counsel for the accused advanced a number of
contentions with regard to the admissibility of such material in the
evidence. It does appear that the evidence of the tape-recorded
conversation has not been properly admitted. The instructions
given in the Criminal Manual issued by the High Court of
Judicature at Bombay for the guidance of sub-ordinate criminal
courts in that regard, have not been complied with by the learned
Special Judge before admitting the evidence of the tape-recorded
conversation.
29 However, in the view that I am taking, it is not
necessary to go deeper into this aspect of the matter, but what
needs to be observed is that the conversation is clearly - and
admittedly - inaudible at several places. Moreover, the record of
the conversation is not such, as can be safely accepted as
supporting the oral account of the conversation, as is given by
Tilak 30/40 APPEAL-1146-12(J).sxw
Amrutbhai. In the record of the conversation in which the accused
is said to have asked Amrutbhai to give the amount to Vijay
Matera, there are references to 'LRO' and 'legal value'. The
accused is also heard referring to the figure '67' (thousand). Going
by the version of Amrutbhai, there would be no occasion to make
a mention of '67 (thousand)', and the mention of LRO and 'legal
value' also is clearly out of place. All these factors, coupled with
the fact that even the conversation does not spell out any specific
demand, the suspicion felt because of the mention of some amount
being made by the accused, and that too, at the instance of
Amrutbhai, is not sufficient to hold that the accused had indeed
demanded illegal gratification from Amrutbhai. On the contrary,
the transcript of the conversation gives an impression that
Amrutbhai is trying to put some words in the mouth of the
accused. The possibility of the reference to '60' and/or '67' being
in the context of some other transaction cannot be ruled out.
Rather, such possibility appears to be quite likely. Not much
reliance, therefore, can be placed on the evidence of the tape
recorded conversations, even if the question of its admissibility
into evidence, is kept aside.
Tilak 31/40 APPEAL-1146-12(J).sxw
30 It does, however, appear that the accused, in all
probability, attempted to raise a false defence by showing that he
had already written some matter by pencil, which was lying in the
drawer of the table in his chamber, which would make it
impossible for him to have demanded any gratification from
Amrutbhai. It is difficult to place reliance on these writings (Exh -
61 colly). It also appears that he approached Amrutbhai and got
some writings from him which would exonerate the accused from
this case. However, these acts of the accused by themselves,
would not indicate that he was guilty of the alleged offences. It
might have been a thoughtless action of the accused generated by
the fear caused due to his apprehension in this case. It is well
settled that the burden of proving the guilt of an accused always
rests on the prosecution. The prosecution is required to prove the
guilt of an accused beyond reasonable doubt. The falsity of
defence would be a circumstance adding strength to the
prosecution case, but the falsity of defence can never take place of
evidence that would be necessary for proving the guilt of an
accused. When the prosecution is unable to establish its case on
the basis of the evidence adduced by it, it cannot gain any
advantage by pointing out the falsity of the defence. If the facts
and circumstances of this case are kept in mind, it cannot be
Tilak 32/40 APPEAL-1146-12(J).sxw
helped observing that the well recognized principle 'that the
prosecution must stand or fall on its own legs and will not derive any
strength from the falsity of defence', cannot be better applied in any
other case.
31 There are a number of suspicious features in this case
which create a reasonable doubt of the truth of the prosecution
case. They may be summarized as below :-
(a) There is absolutely no corroboration to the evidence
of the initial demand made by the accused on 2 nd January 2007
except the oral testimony of the complainant Amrutbhai Patel (PW
No. 2).
(b) Corroboration could have been obtained to some
extent by producing the entry in the mobile telephone records of
Amrutbhai showing that he had received a telephone call from
Vijay Matera on 29th December 2006. This could have been done
even by producing the CDRs in respect of Amrutbhai's mobile
telephone. Interestingly, the Investigating Officer claims to have
collected such records, but the same were not produced before the
Court during evidence with no plausible explanation therefor.
Tilak 33/40 APPEAL-1146-12(J).sxw
(c) The aspect of the demand for bribe (made on 2 nd
January 2009) was to be verified and for verification thereof, the
telephonic conversation that took place between the accused and
Amrutbhai was recorded on 5th January 2007. The transcript of
the recorded conversation, however, does not provide any
'verification' and does not even make any reference to the meeting
that allegedly took place between the accused and Amrutbhai on
2nd January 2007. This is significant. Thus, the trap was laid
without the verification of the demand of bribe being done.
(d) Even on 8th January 2007, the verification did not take
place as the conversation that took place in the first meeting
between the accused and Amrutbhai on that day, as reflected from
the relevant transcript, does not lend any support to the theory of
demand. In fact, it appears that the accused did not even identify
Amrutbhai. The conversation which Amrutbhai made, does not
refer to any previous meeting having been taken place between
him and the accused.
(e) The recorded conversation is not audible at several
places, but it does appear that some discussion regarding amount
Tilak 34/40 APPEAL-1146-12(J).sxw
finds place in the conversation recorded on 8 th January 2007.
However, the conversation is insufficient to show that the accused
asked any amount to be paid to Vijay Matera. The claim of
Amrutbhai that accused said ' mls ns nks ', is not found to be incorrect
from the record of the conversation as reflected in the transcript
thereof. According to Amrutbhai, the accused had made a
categorical and clear demand of bribe from him on 2 nd January
2007, but the subsequent conversations that took place between
the accused and Amrutbhai i.e on 5th January 2007 and 8th
January 2007, do not spell out any such demand.
(f) Amrutbhai avoided being accompanied by a panch
when the verification of the demand made by the accused was to
be done, by saying that 'the accused was of a suspicious nature',
and 'would not make the demand in the presence of a third
person'. Similarly, Amrutbhai did not record the crucial
conversation that allegedly took place when he re-entered the
chamber of the accused after Vijay Matera had refused to accept
the amount of bribe. Thus, when the crucial things are said to
have happened, i.e the demand of bribe on 2nd January 2007, and
the actual demand and acceptance of bribe by the accused on 8 th
January 2007, Amrutbhai is the only person who was present. At
Tilak 35/40 APPEAL-1146-12(J).sxw
the cost of repetition, it may be mentioned that there is no
plausible reason for Amrutbhai not having recorded the
conversation that took place between him and the accused at that
time, despite the fact that a tape recorder had been provided to
him for recording the same.
(g) The theory of accused having selected Vijay Matera to
act as a middle man, is difficult to understand in the light of the
fact that the accused had issued a memo to him and also the fact
that the accused did not even know his telephone number.
(h) The accused had been posted at Silvassa as the
Resident Deputy Collector only a few days before the incident. On
the contrary, Amrutbhai and Vijay Matera knew each other since a
number of years. Vijay Matera has stated that he knew Amrutbhai
since 10 years.
(i) The tainted amount was not recovered from the
person of the accused. It was recovered from a shelf in the iron
rack in the cabin of the accused situated at about 10 feet away
from the chair of the accused.
Tilak 36/40 APPEAL-1146-12(J).sxw
(j) The hand wash of the accused turned pink, but bow
could it happen when the notes had been wrapped in a white
paper on the surface of which there could not be any
phenolphthalein powder, is not clear. This is more mysterious
because the hand wash of even the left hand showed traces of
phenolphthalein powder as per the report from the CSFL.
There is no clarity with regard to the role of Vijay
Matera. His evidence does not show that there was any
understanding between him and the accused, or that he knew that
the demand of the accused was to be conveyed to Amrutbhai.
Whether he was acting at the instance of Amrutbhai (to trap the
accused), or whether he was acting at the instance of the accused
(to obtain illegal gratification), is certainly doubtful. Amrutbhai
never attempted to record the conversation between him and Vijay
Matera. It may be recalled that on 8 th January 2007, Amrutbhai
met Vijay Matera at the Mamletdar office, and that then they both
went to the office of the accused. Amrutbhai was having a tape
recorder with him, and had been instructed to record the
conversation that would take place between him and the accused.
Since Vijay Matera was thought to, and believed to be acting at the
Tilak 37/40 APPEAL-1146-12(J).sxw
instance of the accused, the conversation between Vijay Matera
and Amrutbhai would be extremely relevant. However, Amrutbhai
chose not to record the conversation which took place between
him and Vijay Matera. This, indeed, creates a doubt about the
truth of the prosecution version. This doubt is strengthened if
these aspects are viewed along with the fact that the CDRs in
respect of the telephonic contacts between Amrutbhai and Vijay
Matera were not collected during investigation, and that, no
explanation for collecting the same could be given by the
Investigating Officer. It may be recalled that in spite of claiming
that the CDRs in respect of the calls made and received by
Amrutbhai on 29th December 2006 were collected in the course of
investigation, the same were not tendered in evidence.
33 In my opinion, these aspects when considered
together, create a reasonable doubt about the truth of the
prosecution version.
34 I have carefully gone through the impugned
judgment. The learned Special Judge has not realized these
weaknesses in the prosecution case, and has not appreciated the
evidence in proper perspective. He has observed that the evidence
Tilak 38/40 APPEAL-1146-12(J).sxw
of Amrutbhai was 'corroborated by the evidence of other witnesses'
without realizing that the corroboration was not with respect to
the aspect of demand of bribe, and acceptance thereof. The
learned Special Judge failed to understand that in cases of this
nature, even if a false complaint is intended to be made and is, in
fact made, the facts of 'reporting to the Investigating Agency about
the demand, the calling of the panchas, the lodging of the complaint,
the laying of trap', would be the same and the evidence, so far as
these aspects are concerned, would be the same whether the
allegation of demand of bribe is true or false. If the evidence of
witnesses with respect to these facts corroborates the evidence of
one another, that would be quite immaterial.
35 The corroboration referred to by the learned Special
Judge is to the other aspects i.e. of Amrutbhai reporting the matter
to the CBI, of his telephoning to the accused, of the trap laying
officer calling the panchas, of the police party and panchas
proceeding to Bhilad check post, of Amrutbhai contacting Vijay
Matera, etc. These facts are in no way inconsistent with the theory
of Amrutbhai intending to falsely implicate the accused with the
help of Vijay Matera. What was necessary for the learned Special
Judge to have seen was that whether there is any corroboration to
Tilak 39/40 APPEAL-1146-12(J).sxw
nd
the demand of bribe allegedly made by the accused on 2 January
2007. The Special Judge also should have considered whether
there was any corroboration to the demand made by the accused
on 8 th January 2007 by saying that ' fBd gS] eq>s ns nk s'. Obviously,
there was no such corroboration. In fact, neither the telephone
call made on 5th January 2007, nor the conversation that took
place in the first visit made by Amrutbhai with Vijay Matera to the
chamber of the accused, provided any such corroboration. This
should have been viewed in the context that corroboration could
have been obtained by recording the conversation that took place
between him and the accused immediately before the bribe
amount was allegedly handed over. After keeping in mind that
there is no corroboration to the testimony of Amrutbhai on the
aforesaid two important aspects of the matter, the learned Judge
should have considered whether the case against the accused
could be held to be proved beyond reasonable doubt on the basis
of such uncorroborated testimony.
36 In my opinion, the appreciation of evidence as done
by the learned Special Judge, and the approach adopted by him,
was not in accordance with law.
Tilak 40/40 APPEAL-1146-12(J).sxw
37 This was a case where there existed a reasonable
doubt about the guilt of the accused. The accused was entitled to
have the benefit of such doubt and to be acquitted.
38 The Appeal is allowed.
39 The impugned judgment and order is set aside.
40 The applicant stands acquitted.
41 His bail bonds are discharged.
Find, if paid, be refunded.
43 Appeal is disposed of in the aforesaid terms.
(ABHAY M.THIPSAY, J)
