Bombay High Court
The State Of Mah vs Vishwas Bhaurao Bhoi & Anr on 5 April, 2016
Bench: A.I.S. Cheema
cria864.05
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.864 OF 2005
The State of Maharashtra,
Through Police Inspector,
Anti Corruption Bureau,
Dhule.
...APPELLANT
(Ori. Complainant)
VERSUS
1) Vishwas Bhaurao Bhoi,
Age-37 years, Occu:Sub Engineer,
MSEB Varul Branch,
at Present R/o-Amalgaon,
Tq-Shirpur, Dist-Dhule,
2) Devaba Pauladsing Girase,
Age-48 years, Line Helper,
MSEB Shirpur,
At Present-R/o-Chaugaon,
Tq-Shindkheda, Dist-Dhule.
...RESPONDENTS
(Orig. Accused)
...
Mr.A.M. Phule, A.P.P. for Appellant.
Mr.S.P. Brahme Advocate for Respondent No.1.
Mr. Joydeep Chatterji Advocate for Respondent
No.2.
...
::: Uploaded on - 15/04/2016 ::: Downloaded on - 29/07/2016 21:01:08 :::
cria864.05
2
CORAM: A.I.S. CHEEMA, J.
DATE : 5TH APRIL, 2016
JUDGMENT :
1. This Appeal by State is against acquittal
of the Respondents - original accused Nos.1 and 2
(hereafter referred as "accused Nos.1 and 2"
respectively), under Section 7 and 13(2) read with
Section 13(1)(d) of the Prevention of Corruption
Act, 1988 ("Act" in brief). Accused No.1 Vishwas
Bhoi was working as Sub Engineer at M.S.E.B.
Warul, Tq-Shirpur, Dist-Dhule, at the concerned
time. Accused No.2 Devaba Girase was his line
helper at the said posting.
2. Facts in brief are as under:-
(A). Complainant Nimbaji Bapu Sapkale - PW-1
(here after referred as "complainant"), had a
field at village Abhanpur. He had, in 1998, taken
electric connection for the field after depositing
cria864.05
necessary money in the office with accused No.1
Bhoi. Thereafter complainant had not received any
bills of the electric connection. He sold the said
field to one Sada Rama Thelari for Rs.81,000/-. As
per the terms of the sale deed, he was required to
clear the electricity dues and the revenue dues.
As such he approached accused No.1 Bhoi and
requested for transfer of the demand note in
favour of the purchaser. He was asked to pay
Rs.28,000/- as electricity charges. Bill however
was not given for the amount. The complainant
expressed that he was in financial difficulties
and he was then told that he should pay
Rs.10,000/- and the demand note would be
transferred to the purchaser and he would not be
required to pay electricity charges. Complainant
expressed that he could pay only Rs.8,000/-. He
was asked to bring the money by accused No.1. The
complainant did not want to pay the money as bribe
and filed complaint (Exhibit 9) with Anti
Corruption Bureau at Dhule, which was received by
cria864.05
P.I. Ashok Borse (PW-6).
(B). P.I. Borse secured presence of two
Panchas from the department of irrigation. The
complainant was asked to some how arrange for
Rs.8,000/- and he was also called on 19th January
2001. The Panchas included one Panch Yashwant
Bhalerao (PW-3) who was to act, later on, as the
shadow Panch. On 19th January 2001 the Panchas,
the complainant and raiding party headed by P.I.
Borse, assembled at the Anti Corruption Bureau,
Dhule. The Panchas were made aware of the
complaint of the complainant and they also talked
with the complainant regarding the demand which
had been made. The procedure regarding how
anthracene powder is used, was explained to the
Panchas and the complainant. Procedure as to how
trap would be executed, was also explained. Pre-
trap Panchnama Exhibit 28 was accordingly
prepared. The marked currency smeared with
anthracene powder was kept in the pocket of the
cria864.05
complainant and he was explained as to what signal
he should give after the money is accepted by the
accused. The raiding party then proceeded from
Dhule to Shirpur and went near the M.S.E.B.
Office. the complainant and the shadow Panch PW-3
went to the compound of the said office. Time was
about 8.30 a.m. The rest of the raiding party
remained away keeping watch. The office was yet to
open. After some time, it was learnt that the
accused No.1 Bhoi would come after some time. The
complainant and shadow Panch waited in the hotel
which was abutting the M.S.E.B. Office. Later on
accused No.1 came to the office on motorcycle. The
complainant called out to accused No.1 and after
parking the motorcycle, accused No.1 went to the
hotel. Complainant invited him for tea. Accused
No.1 inquired if he had brought the money. When
complainant tendered the money taking it out from
his pocket, accused No.1 asked accused No.2
Girase, who was there, to receive the amount. At
that time one Vishwasrao Patil, nephew of the
cria864.05
complainant, happened to be at the said hotel (the
name of accused No.1 is Vishwas Bhoi and the said
nephew was one Vishwas Patil. In evidence,
witnesses have referred to accused No.1 as Bhoi
and to the said nephew as Vishwas who was examined
as PW-2). He wished the complainant and coming to
know of the amount handed over to accused No.2
Girase which was in denomination of Rs.500/- each,
he requested for exchange of the notes as he was
going for shopping regarding marriage, to Dhule
and had one bundle of Rs.50/- denomination and
three bundles of Rs.10/- denomination, which were
difficult to carry. On his request, accused No.2
Girase exchanged the currency. The complainant
then gave signal and the rest of the raiding party
rushed in the hotel and on coming to know from the
shadow Panch PW-3 Yashwant Bhalerao, both the
accused were nabbed and even PW-2 Vishwas was
caught. Marked currency which was in denomination
of Rs.500/- was seized from PW-2 Vishwas. In the
bundles which PW-2 Vishwas had exchanged with
cria864.05
accused No.2 Girase, marks of anthracene powder
were found on one note of Rs.50/- and three notes
of Rs.10/-. As such those notes were also seized
and rest of the said currency was given back to
PW-2 Vishwas. PW-6 P.I. Ashok Borse then completed
further procedure regarding raid. The test
regarding anthracene powder reflecting on the hand
and clothes of accused No.2 was completed. There
was no anthracene powder on the hands of accused
No.1 Bhoi. Completing the procedures, Panchnama
Exhibit 33 was prepared. The accused Nos.1 and 2
were arrested in the same evening of 19th January
2001. P.I. Borse, later on, filed F.I.R.
Exhibit 45 with P.S.O. Shirpur which was
registered at Crime No.6 of 2001.
(C). The necessary sanction (Exhibit 35) to
prosecute was obtained as regards accused No.1
from PW-4 Anil Deskar, who was working as Joint
Secretary at the concerned time. Sanction (Exhibit
37) was obtained as regards to accused No.2 from
cria864.05
Executive Engineer PW-5 Jagannath Lokhande.
(D). After completion of the investigation,
charge-sheet came to be filed.
3. The Special Judge framed charge against
the accused Nos.1 and 2 for offence mentioned
above. The accused pleaded not guilty.
4. The defence of the accused persons, as
appearing from the cross-examination of the
witnesses and statement under Section 313 of the
Code of Criminal Procedure, is that of denial.
According to accused No.1, he never demanded any
amount as bribe. He had merely told the
complainant that he has to deposit Rs.6,000/-
towards arrears of electricity charges and
Rs.2000/- towards transfer of electricity
connection. The defence of accused No.2 was that
he was asked by his superior, accused No.1 to
receive the money and get it deposited and he had
cria864.05
nothing else to do with the matter.
5. The trial Court recorded the evidence of
witnesses and prosecution brought on record the
concerned documents. After the trial, trial Court
has acquitted both the accused and directed
confiscation of the money of Rs.8,000/- (Article
No. 1) and also one currency note of Rs.50/- and
three currency notes of Rs.10/- (Article No.2)
which were from the bundles which were being
carried by PW-2 Vishwas. Rest of the property was
directed to be destroyed.
6. Aggrieved by the Judgment, State filed
this Appeal raising grounds that the Judgment and
order of the trial Court cannot be maintained.
There was no reason for the accused persons to
receive the money in the hotel. The evidence has
not been properly appreciated. It could not have
been held that the money was received for official
purposes.
cria864.05
7. On behalf of the State, it is argued that
the trial Court wrongly held that the sanction
with regard to accused No.2 was erroneous. The
sanction was given by PW-5, after properly
considering the material available. The A.P.P.
submitted that only because outward number was not
there on the sanction Exhibit 37, the trial Court
could not have branded the document as not
official. According to the learned A.P.P. if the
amount was to be paid and was to be deposited for
official purpose, the accused could not have gone
and received the same in the hotel. The learned
A.P.P. submitted that there is sufficient evidence
and the Judgment of the acquittal cannot be
maintained.
8. Against this, the learned counsel for
Respondent No.1 - accused No.1 and learned counsel
for Respondent No.2 - accused No.2 have supported
the Judgment of the trial Court. According to
cria864.05
them, the presumption under Section 20 of the Act
was sufficiently rebutted by the accused persons.
The sanction was without application of mind. The
office was yet to open and the concerned hotel was
abutting the office of the M.S.E.B. and
complainant, who had reached earlier, called out
accused to come over there. Simply because of
this, it cannot be said that amount of bribe was
being received at the hotel. According to the
counsel, it was not that meeting as such was fixed
in the hotel. The learned counsel for both the
accused referred to the evidence to say that if
the evidence is properly read, the only conclusion
that can be drawn, is that for the official
purposes the money was received.
9. I have gone through the evidence which
was brought on record by the prosecution. The
evidence of the complainant read with PW-3
Yashwant Bhalerao, shadow Panch, as well as PW-6
P.I. Ashok Borse brings on record the facts that
cria864.05
the complainant had filed complaint Exhibit 9
claiming that accused No.1 Bhoi had disconnected
the electricity of the purchaser looking to the
arrears of electricity and to re-connect the
electricity, had asked for Rs.8,000/-. The
evidence of these witnesses is that the Panchas
were called and procedure regarding pre-trap was
completed and on the day of incident i.e. 19th
January 2001, the trap was executed.
10. From the evidence, I will refer to the
relevant details. Evidence of complainant shows
that in 1998 he had taken the electricity
connection, for which he had met accused No.1.
Complainant admitted (Para 14 of his evidence)
that in 1998 he deposited the official charges of
Rs.2820/- and was not required to pay anything
more. This is one aspect.
11. Then there is evidence that since from
1998 till 2001 when complainant went to get the
cria864.05
connection transferred, complainant had not paid
any amount towards electricity bills. Naturally
the bills were outstanding. The complainant
appears to have got in a fix because purchaser had
put terms that the complainant would have to clear
the electricity bills and the record shows that
the purchaser had with-held part of the
consideration amount which was to be paid.
Evidence shows that when complainant went to
accused No.1, accused No.1 asked him to deposit
the electricity dues which were not paid. The
concerned electric connection was thus
disconnected. The purchaser made grievance with
the complainant in this regard and the complainant
was naturally under pressure that the electricity
should be resumed. The evidence of the complainant
is that on 8th January 2001 he went along with
purchaser to accused No.1 and he was told that
Rs.28,000/- are the electricity charges. He
appears to have claimed financial difficulties. He
was ultimately told that he will have to pay
cria864.05
Rs.10,000/- and thereafter the transfer note could
be made. The evidence is that complainant claimed
that he did not have necessary money and could
pay only Rs.8,000/-. Complainant deposed that
accused No.1 asked him to bring the money. It
appears, thereafter, on 18th January 2001
complainant filed complaint and the trap was
executed.
12. The cross-examination of the complainant
(Para 16) shows that when he went to the said
office of M.S.E.B., accused No.1 was not there and
came at about 9.45 - 10.00 a.m. He stated that by
the side of the gate of office, there is hotel
namely, "Gnyanmai Corner". He deposed that when
accused No.1 was coming to the office on motor
bike, complainant called out to accused No.1 from
the said hotel and asked him to come there. There
after accused No.1 parked his motor bike and went
there. Complainant deposed that they took tea
together. Accused No.1 inquired from him if he had
cria864.05
brought the money and if he has brought, accused
No.1 asked the complainant "to deposit it".
Complainant after giving such admission stated
that he told accused No.1 (himself) to deposit the
same. However, it appears that accused No.1 told
complainant to hand over the money to accused No.2
Girase and asked the complainant to accompany
accused No.2 "for depositing the same in the
office". Complainant admitted that accordingly he
gave the money to accused No.2.
13. The shadow Panch PW-3 Yashwant Bhalerao
went in the witness box after appraising himself
regarding the evidence which was recorded of the
complainant on the earlier day. This can be seen
from cross-examination Para 10 of the witness.
Guarded, as he was, still the cross-examination of
even this shadow Panch shows that the office was
not open when these people reached there and the
employees were yet to arrive. After some time
accused No.2 Girase was seen. Even this Panch
cria864.05
accepted that it was the complainant himself who
invited attention of accused No.1 by saluting him
when accused No.1 was reaching the office. This
Panch deposed (Para 11) that when accused reached,
he inquired with the complainant if he had brought
the money. This Panch admitted that accused No.1
did not tell the accused No.2 to accept the money
and rather asked the complainant to go with
accused No.2 Girase.
14. The above discussion shows that there is
substance in the argument of the learned counsel
for accused that it is not a case of fixing a
meeting in some hotel for receiving the amount of
bribe. The hotel appears to have been abutting the
gate of the M.S.E.B. office which was yet to open
and the complainant and shadow Panch went and sat
there to wait and when accused No.1 reached,
rather he was invited there for tea. One cannot
forget that the accused were working in rural area
with responsibility to also get the electricity
cria864.05
dues recovered. As such, much need not be made
only because the complainant invited accused No.1
for a cup of tea and accused No.1 agreed.
15. The evidence of complainant as well as
shadow Panch and PW-2 Vishwas shows that PW-2
Vishwas happened to be in the hotel and he saw
complainant, his uncle and called out to him when
the incident relating to trap was unfolding. This
witness PW-2 was going for purchasing articles to
Dhule due to a marriage. He saw the currency notes
of Rs.500/- denomination to the extent of
Rs.8,000/- being given to accused No.2 and
requested for exchange. This appears to have been
done. Even PW-2 has deposed that the matter was
relating to electricity bill. Unnecessarily this
witness appears to have got entangled in the
execution of trap. Amount ultimately was recovered
from his pocket and even his hands reflected the
powder in ultra violet lamp. In cross-examination
PW-2 Vishwas accepted that when he met the
cria864.05
complainant in hotel, talk regarding payment of
bill was going on. At the time when PW-2 Vishwas
asked to exchange the money, he told accused No.2
Girase that, they had to (any how) deposit the
money against the payment of bill, (so) deposit
the money which he had. Thus, this also shows that
even this person who was there, did take the
impression that the money which was handed over to
accused No.2 was for deposit towards payment of
bill. As such, he appears to have reasoned out
that they any how have to deposit Rs.8,000/- and
the money is in which denomination would not
matter.
16. There is one more aspect of the matter.
The cross-examination of complainant (Para 15)
shows that when he was asked to deposit Rs.6,000/-
towards electricity charges and Rs.2,000/- for
transfer charges to re-connect the electricity
supply, he had told accused that he would come on
next day. However, on 18th January 2001 he went
cria864.05
directly to file the complaint to the A.C.B.
Office. Complainant accepted that he had a friend
Bhagwan Daga Patil, who advised the complainant to
file complaint against accused No.1. Complainant
admitted (in Para 16) that he filed the report
because without depositing the money, the electric
supply was not to be reconnected and he had no
money for depositing it. Complainant admitted that
his friend Bhagwan advised him that following
this track (i.e. reporting to A.C.B. Office) his
electric connection would be reconnected without
depositing the money and he so filed report in the
office of the A.C.B. It is shocking that
complainant resorted to such device and PW-6 P.I.
Ashok Borse failed to see through his intentions.
17. The trial Court has rightly concluded,
after discussing the evidence, that money was not
in respect of illegal gratification but it was in
respect of electricity charges and transfer
charges.
cria864.05
18. The observation of the trial Court with
regard to defective sanction as regards accused
No.2 has substance, as the sanction purports to
say that accused No.2 had demanded the bribe
money, whereas the complaint and even the evidence
is not like that. Accused No.2 was simply asked by
accused No.1 at the last moment to receive the
money for depositing. However the observation of
the trial Court that only because outward number
was not put to Exhibit 37, the sanction order,
was not an official document, is not sound.
However, that does not make much difference to the
outcome of the matter.
19. Before parting, reference may be made to
the observations of the Hon'ble Supreme Court in
the matter of State of Punjab vs. Madan Mohan Lal
Verma, reported in A.I.R. 2013 S.C. 3368. In that
matter, the Hon'ble Supreme Court observed in Para
6 and 7 as under:
cria864.05
"6. It is a settled legal proposition that in
exceptional circumstances, the appellate court
for compelling reasons should not hesitate to
reverse a judgment of acquittal passed by the
court below, if the findings so recorded by the
court below are found to be perverse, i.e. if the
conclusions arrived at by the court below are
contrary to the evidence on record; or if the
courts entire approach with respect to dealing
with the evidence is found to be patently
illegal, leading to the miscarriage of justice;
or if its judgment is unreasonable and is based
on an erroneous understanding of the law and of
the facts of the case.............
"7.
The law on the issue is well settled
that demand of illegal gratification is sine qua
non for constituting an offence under the Act of
1988. Mere recovery of tainted money is not
sufficient to convict the accused when
substantive evidence in the case is not reliable,
unless there is evidence to prove payment of
bribe or to show that the money was taken
voluntarily as a bribe. Mere receipt of the
amount by the accused is not sufficient to fasten
guilt, in the absence of any evidence with regard
to demand and acceptance of the amount as illegal
gratification. Hence, the burden rests on the
accused to displace the statutory presumption
raised under Section 20 of the Act 1988, by
bringing on record evidence, either direct or
circumstantial, to establish with reasonable
probability, that the money was accepted by him,
other than as a motive or reward as referred to
in Section 7 of the Act 1988. While invoking the
provisions of Section 20 of the Act, the court is
required to consider the explanation offered by
the accused, if any, only on the touchstone of
preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt.
However, before the accused is called upon to
explain how the amount in question was found in
his possession, the foundational facts must be
established by the prosecution. The complainant
is an interested and partisan witness concerned
with the success of the trap and his evidence
cria864.05
must be tested in the same way as that of any
other interested witness. In a proper case, the
Court may look for independent corroboration
before convicting the accused person."
20. Considering the above observations of the
Hon'ble Supreme Court also, I find that it would
be possible to interfere if the acquittal could be
termed as perverse. In fact, in the present
matter, the Judgment of acquittal is rather
correct and after proper appreciation of evidence.
The view taken is possible view of the evidence.
No reasons as referred to by Hon'ble Supreme Court
in above Para 6 of its Judgment exist. The accused
have also, from the cross-examination of
witnesses, rebutted the presumption which is
raised under Section 20 of the Act. The accused
are entitled to benefit of doubt and the Judgment
of acquittal needs to be maintained.
. However, slight change in the order
regarding disposal of the property is necessary.
Article 1 contains Rs.8,000/- which complainant
cria864.05
had brought for depositing with M.S.E.B. and which
were due. The Maharashtra State Electricity Board
(M.S.E.B.) now appears to have been taken over by
Maharashtra State Electricity Distribution Company
Limited. It would be appropriate that the amount
should be deposited to State and the M.S.E.B. or
successor of M.S.E.B. may claim the same from the
State depending on the terms of the successor. As
regard Article No.2 which contains Rs.80/- which
was belonging to PW-2 Vishwasrao Patil, the same
may be refunded to him.
21. For the above reasons, I pass the
following order:
O R D E R
(I) The Appeal is rejected.
(II) The Judgment and order of acquittal of
Respondent Nos.1 and 2 passed by Special
Judge, Dhule in Special Case No.2 of 2002
cria864.05
dated 13th September, 2005, is maintained.
are cancelled.
(IV) Article No.1, amount of Rs.8,000/-
(Rupees Eight Thousand) be deposited to
State for payment to M.S.E.B. or its
successor, as the case may be. The amount
of Rs.80/- (Rupees Eighty), which is
Article No.2, be refunded to PW-2
Vishwasrao Patil.
(V) The Appeal is accordingly disposed of.
[A.I.S. CHEEMA, J.]
asb/APR16
