Bombay High Court
Vijay Bhausaheb Chavan vs State Of Maha on 7 April, 2016
Bench: A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.272 OF 2003
Vijay s/o Bhausaheb Chavan,
Age-28 years, Occu:Govt. Service,
R/o-Phulambri, Tq-Phulambri,
Dist-Aurangabad.
...APPELLANT
(Ori. Accused)
VERSUS
The State of Maharashtra,
A.C.B. Aurangabad,
Through P.S. Kannad,
Dist-Aurangabad.
...RESPONDENT
(Ori. Complainant)
...
Mr. Govind Kulkarni Advocate h/f. Mr. Rajendra
S. Deshmukh Advocate for Appellant.
Mr. S.M. Ganachari, A.P.P. for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 2ND APRIL,2016
DATE OF PRONOUNCING JUDGMENT: 7TH APRIL, 2016
::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 21:24:24 :::
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JUDGMENT :
1. The Appellant - original accused has been
convicted on 15th March 2003 in Special Case No.21
of 1998, by the Special Judge, Aurangabad, for
offence punishable under Sections 7 and 13(1)(d)
read with 13(2) of the Prevention of Corruption
Act, 1988 (the "Act" in brief) and sentenced to
suffer rigorous imprisonment as well as fine as
directed.
2. Facts relevant, are as follows:-
(A) Complainant Ramnath Lonkar (PW-2) on 2nd
January 1998 filed brief complaint (Exhibit 20)
with PW-4 Dy.S.P. Subhash Joshi alleging that he
has taken on rent one Bigha land from one Janardan
Gaike at Hatnur, Tq-Kannad for operating kiln. He
wanted permission for the same and applied in the
office of Tahsildar, Kannad in November 1997. As
per rules, he deposited Rs.746/- in the bank by
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challan. Thereafter he had gone to Tahsil Office
to inquire regarding his permission and met
Appellant - accused Vijay Chavan (hereafter
referred as "accused") many times. Every time the
accused did not give him the information and also
did not give the permission. Complainant Ramnath
Lonkar (hereafter referred as "complainant") made
inquiries and reliably learnt that the accused
does not do work of anybody without taking money.
He claimed that he has no enmity with the accused
or transaction of money and had no intention to
give bribe to the accused and so action should be
taken against the accused.
(B) PW-4 Subhash Joshi, Dy.S.P., Anti
Corruption Bureau, Aurangabad on receipt of the
complaint, called one Maruti Idhate and one Ahire
to act as Panchas and appraised them of the
complaint and gave them instructions as to what is
to be done to verify the complaint. Regarding this
Panchnama was drawn on 3rd January 1998 (Exhibit
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22). On 3rd January 1998 raiding party went near
the Tahsil and PW-1 complainant and Panch Idhate
(PW-3) went inside the Tahsil Office and
complainant talked with the accused in presence of
the shadow Panch and at that time the accused
demanded Rupees Hundred, to which complainant
replied that he did not have and will have to
bring the same. It was decided that complainant
would come back on Monday with the money. The
complainant (PW-2) and the shadow Panch (PW-3)
then came back and appraised the details to PW-4
Joshi. Regarding this, another Panchnama (Exhibit
23) was prepared in the evening of 3rd January
1998. In view of the developments, the complainant
and two Panchas were asked to come back to the
A.C.B. Office on 5th January 1998. However, on
that day the complainant claims that he was not
well and reached in the A.C.B. Office only in the
evening. The other Panch Ahire also did not come
on the count of ill-health. Thus, it was decided
to lay the trap on 6th January 1998.
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(C) On 6th January 1998 another Panch Girnare
was called and given details. The complainant
attended A.C.B. Office with currency note of
Rupees Hundred for the trap. Panch PW-3 Idhate was
also present. Preliminaries regarding the trap
were explained to the Panchas and the complainant.
Demo regarding anthracene powder and how it
reflects in ultraviolet light, was given. The
number of the note was recorded and the same was
kept in the pocket of the complainant. How the
trap will be executed, was explained to the
complainant, shadow Panch PW-3 Idhate as well as
the other Panch. Completing the necessary
procedures, Panchnama Exhibit 24 was prepared. The
raiding party then again proceeded and came near
the Tahsil Office of Kannad. While the other
raiding party members waited in positions, the
complainant and shadow Panch PW-3 Idhate went in
the Tahsil. The complainant again inquired
regarding his work and the accused asked for the
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amount of Rupees Hundred. The same was paid by the
complainant. The accused said that he will get the
file of the complainant and went aside. The
complainant said that he will drink water and
come. Complainant went out and gave pre-determined
signal, where-after the raiding party went inside
the Tahsil Office. From the shadow Panch PW-3
Idhate, PW-4 Dy.S.P. Joshi verified who was the
accused who had taken the money and the accused
was called. The marked amount was recovered from
the accused and his hands and shirt pocket had the
signs of the anthracene powder, which was
verified. The trap was successful and Panchnama
Exhibit 25 was prepared and the accused was
arrested in the same evening vide Panchnama
Exhibit 26. PW-4 Dy.S.P. Joshi then filed F.I.R.
Exhibit 29 with Kannad Police Station and Crime
No.3001/98 was registered on 6th January 1998.
After investigation, the charge-sheet came to be
filed.
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The Witnesses Examined
3. The Special Judge framed charge against
the Appellant - accused under Section 7 and also
under Section 13(2) read with 13(1)(d) of the Act.
The accused pleaded not guilty and he was tried.
The prosecution brought on record evidence of
Collector Balasingh Chahal PW-1 regarding the
sanction proposal he received and sanction he
granted, vide Exhibit 18. Regarding the incident,
the complainant deposed as PW-2 and the shadow
Panch Maruti Idhate deposed as PW-3 and Dy.S.P.
Joshi recorded his evidence as PW-4. The concerned
documents have been proved.
Defence
4. The defence of the accused as appearing
from the cross-examination of prosecution
witnesses as well as his statement under Section
313 of the Code of Criminal Procedure, 1973
("Cr.P.C." in brief) along with his written
statement attached with the statement, shows that
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when the complainant had filed the application,
the Tahsildar had directed the complainant to
deposit royalty for 500 brass, which was not liked
by the complainant. The complainant made an
application and another order was passed directing
the complainant to deposit royalty for 100 brass.
The complainant held anger regarding this against
the accused. Thereafter the Tahsildar had directed
that the complainant should deposit Rupees Five
Hundred worth small savings and even for this the
complainant felt that accused was responsible. The
amount was again revised and it was directed that
the complainant should spend Rupees Three Hundred
towards small savings. The complainant deposited
only Rupees Two Hundred towards small savings and
was still to deposit Rupees Hundred, for which the
complainant was asked to do the needful from time
to time. Orders of Tahsildar were appraised to the
complainant. On date of incident when complainant
came, the accused claims that he asked complainant
to bring Kisan Vikas Patra of Rupees Hundred and
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complainant claimed that the same was not
available in the post office and so saying
complainant started giving Rupees Hundred to the
accused. The accused told complainant that he
should himself get the Kisan Vikas Patra. The
complainant then forcibly put Rupees Hundred in
the pocket of the accused, which accused removed
and tried to give back. At such time the raiding
party came in and caught the accused. The defence
is that the accused did not demand or receive
gratification amount and false case has been
filed.
Arguments for Appellant-Accused
5. I have heard learned counsel for the
Appellant - original accused and learned A.P.P.
for the State. It is argued for the accused that
the complaint filed by the complainant Exhibit 20,
does not show that accused had demanded any money.
It is stated that even when PW-2 and PW-3 went for
verification and it is claimed that money was
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demanded, there is no evidence as to for what
purpose money was demanded. The revenue record of
the application which the complainant had filed
for permission of kiln, shows orders of Tahsildar
of getting small savings investment done to the
extent of Rupees Three Hundred and only Rupees Two
Hundred had been invested. This can be seen from
the record. The balance Rupees Hundred was sought
to be got deposited by the accused and this has
been branded as taking of bribe money. The learned
counsel for the Appellant submitted that if the
evidence of PW-2 and PW-3 is properly appreciated,
it is clear that no offence was made out and the
accused has been wrongly trapped. According to the
learned counsel, the accused had rebutted the
presumption under Section 20 of the Act, looking
to the cross-examination of the shadow Panch and
the record from the office of Tahsildar. The
counsel relied on the case of State of Punjab vs.
Madan Mohan Lal Verma, reported in A.I.R. 2013
S.C. 3368, to submit that mere receipt of the
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amount is not sufficient to hold the accused
guilty and when Section 20 of the Act is sought to
be invoked, explanation of the accused needs to be
considered.
Arguments for State
6. The learned A.P.P. submitted that in the
trial Court no dispute regarding the validity of
the sanction was raised and even now in this
Appeal, dispute on that count is not being raised
and thus the evidence of PW-1 Balsingh Chahal and
the sanction order are not in dispute.
. The learned A.P.P. further submitted that
the record shows that the accused was protracting
giving of permission for kiln and the amount of
Rupees Hundred was demanded, firstly on 3rd
January 1998 when PW-2 and PW-3 went for
verification and on the second occasion on 6th
January 1998 when the trap was executed. According
to the learned A.P.P., the defence that Rupees
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Hundred was demanded for Kisan Vikas Patra was not
proved. According to A.P.P., the complainant was
in the business of brick kiln since before and he
was familiar with the procedures. The learned
A.P.P. submitted that the reasonings recorded by
the trial Court are correct and need to be upheld
and the Appeal should be dismissed.
7.
I have gone through the record and the
oral and documentary evidence relied. The case of
State of Punjab vs. Madan Mohan Lal Verma,
referred supra, needs to be kept in view before
discussing the evidence. In that matter, the
accused was convicted by the trial Court under
Section 7 and 13(1)(d) read with Section 13(2) of
the Act. In the appeal to the High Court, the
accused came to be acquitted. The State carried
appeal further to the Hon'ble Supreme Court. The
Hon'ble Supreme Court considered the facts of that
matter as well as law. In Para 7 it was observed
as under:-
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"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
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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 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."
Points for Consideration
8. Keeping in view the law and observations
of the Hon'ble Supreme Court, this Court has to
see whether the findings arrived at by the trial
Court are maintainable. It is necessary to see if
the evidence spells out demand and acceptance of
amount as illegal gratification. It is also
necessary to see if the explanation offered by the
accused on the touchstone of preponderance of
probability is acceptable. I first proceed to
discuss the evidence which has been brought.
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The Evidence
9. First reference needs to be made to the
complaint Exhibit 20. Although the complainant
claimed in the complaint filed with PW-4 Dy.S.P.
Joshi that he had been consistently going to the
accused to inquire regarding his work being done,
the complainant did not dare to mention at that
time that the accused had made any demand of money
to him, leave aside demanding money as
gratification. Complainant merely mentions that on
inquiries he has come to know that the accused
does not do any work except when he is bribed.
10. Then there is Panchnama Exhibit 22
regarding instructions given to the complainant
and the Panchas and Panchnama Exhibit 23 regarding
how PW-2 complainant and PW-3 Idhate went to
verify the complaint. In this regard, the evidence
of complainant PW-2 is that leaving back the other
raiding party at some distance, on 3rd January
1998 he along with PW-3 Idhate went inside the
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Tahsil Office, Kannad. Complainant claims that he
met the accused and asked about the permission. At
that time accused told him that there is no order
form in his file and he should get the form.
Complainant says that he went and got the form
spending Rupees three in the shop outside and gave
the form to the accused. Complainant claims that
the accused then asked him "whether I had brought
the money". Complainant deposed that he asked how
much and the accused told Rupees Hundred. The
evidence is that complainant then told the accused
that he will get the money on Monday. Complainant
claims that, on Monday he was not well and thus
the trap was laid on 6th January 1998.
. Regarding the incident of 3rd January
1998 PW-3, the shadow Panch Idhate deposed that
at the Tahsil office, he went with the complainant
to the accused. Complainant asked regarding
permission of his brick kiln and the accused asked
him to bring order form. They went to one shop and
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the complainant purchased form of Rupees three and
handed it over to the accused. PW-3 Idhate has
deposed that the accused then told complainant
that "he will have to pay Rs.100/-" but Lonkar
(Complainant) told that he had no money.
11. The evidence of PW-2, PW-3 as well as
Dy.S.P. Joshi PW-4 shows that the trap was
thereafter laid on 6th January 1998. Regarding the
actual incident, the evidence of the complainant
PW-2 is that on 6th January 1998 after rest of
the raiding party waited outside, he and PW-3
Idhate went inside the Tahsil office at around
2.30 p.m. It is deposed that he met the accused
and asked about his work. The accused said that
file was sent for signature of the Saheb and asked
him to wait. According to the evidence, the
accused then asked complainant whether he had
brought the money and complainant said - yes. PW-2
Complainant deposed that the accused then demanded
money and he took out tainted note with his right
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hand and held it to the accused, who took it with
his left hand and kept it in the pocket of his
shirt. The accused then told him that his work
would be done. The complainant said that he will
drink water and come, and went out and gave signal
where-after the raid took place.
. In this regard the evidence of PW-3
Idhate regarding the actual incident of 6th
January 1998 is that, after he and the complainant
went on foot inside the Tahsil office, the
complainant inquired from the accused regarding
progress of his work and the accused asked him to
wait for five minutes as the file was on the table
of his Saheb. The shadow Panch PW-3 deposed that
after five minutes the accused asked the
complainant, whether he had brought the amount of
Rupees Hundred to be "deposited". The Panch then
corrected himself and said that accused asked
complainant that he would have to "pay' Rupees
Hundered, where-after the tainted amount was paid
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by the complainant and the further raid took
place. In the raid, the evidence shows that, the
tainted currency of Rupees Hundred was seized from
the accused.
Analysis
12. Question before me is, whether this
evidence is sufficient and needs to be accepted to
convict the accused or the accused has any
reasonable explanation for the incident. In this
regard, on record there is file of Tahsil Office
relating to the application for permission of kiln
which had been filed by the complainant,
available. The documents are at Exhibit 21/1 to
21/2. The document at Exhibit 21/1 is the
application for quarry with the object of brick
kiln. The endorsements on the application show
that there was written order passed earlier that
on investment in small savings to the extent of
Rupees Five Hundred, the permission may be given.
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According to the statement of the accused under
Section 313 of Cr.P.C. the complainant did not
like such directions and quarrelled with the
accused. Thereafter the Tahsildar passed another
order that small savings of Rupees Three Hundred
may be accepted. There is written order below
Exhibit 21/1 that the complainant is informed that
small savings of Rupees Three Hundred will have to
be purchased. This order appears to be of 29th
December 1997. In file of Tahsil Office, then
there are photocopies of two Kisan Vikas Patra
each of Rupees Hundred, which are dated 1st
January 1998. There is endorsement on the quarry
application Exhibit 21/1 in the date of 1st
January 1998 that the applicant (i.e. complainant)
had "deposited" Rupees Two Hundred for Kisan Vikas
Patra. Looking to such orders and documents in the
concerned file dated 1st January 1998, it is clear
that Rupees Hundred towards small savings
investments were still short. Although it appears
to be inappropriate that the Government should
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force people to make such investments, for
executive acts which the Government is required to
perform, but that is not an issue in this matter.
Fact remains that on record, by orders such
investments were being got made. The existence of
such documentary record, maintained in ordinary
course and its closeness to the time of the trap,
gives sufficient room for doubt. It is too much of
co-incidence that after an order of small savings
certificates of Rupees Three Hundred, Rupees Two
Hundred are deposited for Kisan Vikas Patra on 1st
January 1998 and on 2nd January 1998 complainant
goes to PW-4 making complaint and in the
verification Panchnama Exhibit 23 and the raid
Panchnama Exhibit 25, the amount happens to be
exactly Rupees Hundred, which as per Exhibit 21/1
was still remaining to be deposited or Kisan Vikas
Patra of the said amount was yet to be submitted.
13. Apart from the above documents from the
revenue record, the accused gets support from the
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facts that in Exhibit 20 there was no mention of
any specific demand and the evidence of PW-2 and
PW-3 does not show that on 3rd January 1998 or 6th
January 1998 when the amount was allegedly asked,
the complainant made any query to the accused in
front of the shadow Panch as to for what purpose
the amount is to be paid. The complainant PW-2
Ramnath Lonkar has made the complaint Exhibit 20
and was naturally interested in success of the
trap. However, if the evidence of PW-3 Idhate is
perused, in examination-in-chief itself it slipped
out from his mouth (in para 5 of his evidence)
that on 6th January 1998 when they had gone to the
accused, the accused asked the complainant
"whether he had brought the amount of Rs.100/- to
be deposited?" No doubt the A.P.P. appears to have
immediately sought from PW-3 and he corrected his
version to say that the accused told complainant
that "he would have to pay Rs.100/-". In the cross
examination of this shadow Panch PW-3 Idhate, the
cross-examiner brought on record his admission
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with reference to incident dated 3rd January 1998
that "Chavan had told Lonkar that he will have to
pay Rs.100/- towards "saving" and also told him to
bring it on Monday" (Emphasis supplied). Not that
this was some stray admission. In further Para 10
of the cross-examination, the shadow Panch
admitted that "on the second occasion also Chavan
(i.e. accused) told Lonkar (i.e. complainant) to
pay the "balance amount" of Rs.100/- and he paid."
(Emphasis supplied).
Preponderance of Probability
14. Evidence of prosecution witness relied on
by the State in the back ground of the documents
and entries in the file of Tahsildar Office,
discussed above, shows that on the touchstone of
preponderance of probability, the defence of the
accused has substance that the amount sought was
for the balance towards small savings which had
been ordered in the file.
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Judgment of Trial Court - Not Maintainable
15. After the above discussion, I proceed to
consider the Judgment of the trial Court which has
recorded conviction.
16. I find that the entire approach of the
trial Court in dealing with the evidence was
illegal. The trial Court discussed the above
evidence. It was aware that the burden on the
accused to displace the presumption under
Section 20 of the Act was not onerous. Trial Court
discussed the file of the Tahsildar Office to
observe that in the file there was an order
granting permission of the date of 3rd January
1998. The trial Court reasoned that if the accused
had not demanded money, he could have handed over
the permission to the complainant on 3rd January
1998 itself. Now there is no material available to
know if the order prepared in the date of 3rd
January 1998 was also signed on 3rd January 1998.
The evidence of PW-2 and PW-3 both shows that on
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6th January 1998 when they had approached the
accused, he had told them that the file is with
his Saheb and he will get it. Even when the
tainted amount was paid to the accused, it is not
that he took out the file from his drawer. He was
proceeding to get the file when the signal was
passed and raid took place. Thus, I do not find
any substance in the reasonings recorded by the
trial Court in Para 20 of its Judgment. In Para 21
and 22 of its Judgment, the trial Court dealt with
the admissions given by the shadow Panch PW-3 in
his cross-examination and branded PW-3 as playing
double game by supporting the prosecution in
examination in chief and then the accused in
cross-examination. The trial Court observed that
skill of prosecutor lies in re-examination which
if not made, the Court could not ignore attitude
of the witnesses. The trial Court referred to
Judgment in the matter of State of Himachal
Pradesh vs. Lekhraj, reported in (2000) 1 Supreme
Court Cases, 247 to observe that to arrive at
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conclusion about truth the Court is required to
adopt rational approach. The trial Court went on
to observe in Para 22 of the Judgment that few
stray facts or statements disclosed by the witness
cannot be attached more importance. The trial
Court then discussed the file of Tahsildar and
went on to hold that the amount accepted was
towards gratification. I find that the evidence of
shadow Panch could not have been accepted in part
and his admissions ignored in part. As mentioned
above, in the examination in chief itself the
shadow Panch had blurted out that the accused had
asked the complainant if he had brought the amount
of Rs.100/- "to be deposited". Of course, this was
corrected in the subsequent sentence. However, in
the cross-examination the witness did accept that
the amount sought was towards savings and it was
towards balance amount which had remained. If the
trial Court felt that the witness perjured, it did
not take any action under Section 344 of the
Cr.P.C. If the trial Court felt that it was the
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duty of the prosecutor to get things clarified in
the re-examination, the trial Court also did not,
on its own, in order to arrive at truth put any
questions to the witness, which it was competent
to do under the Indian Evidence Act as per Section
165. The trial Court forgot that if the
responsibility is of the A.P.P., the trial Court
itself was also not a silent spectator, only to
speak at the time of Judgment. The admissions
recorded in cross-examination could not have been
simply ignored by blaming the prosecutor and
itself remaining silent at the time of recording
evidence.
17. Taking over all view of the evidence and
keeping in view the original file from the record
of Tahsildar, the orders passed therein and the
documents in the file as well as the oral and
documentary evidence in the trial, I find that the
conclusions arrived at by the trial Court to
convict the accused cannot be maintained. The
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approach regarding appreciation of evidence was
wrong. While invoking provisions of Section 20 of
the Act, the trial Court did not properly
considered the explanation offered by the accused
which was acceptable on the touchstone of
preponderance of probability. It has to be held
that there is room for reasonable doubt. The
amount of Rs.100/- accepted by the accused exactly
matched with the requirement which had remained in
the concerned file for permission and keeping in
view the timing of the orders as well as the
incident of trap, there is substance in the
defence. It is probable that the amount was
received in compliance of requirements in the
file. It is not proved beyond reasonable doubt
that the amount was accepted as gratification.
18. For above reasons, I pass following
order:-
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O R D E R
(I) Criminal Appeal is allowed.
(II) The impugned Judgment and order of
conviction and sentence imposed, in Special
Case No.21 of 1998 dated 15th March 2003
passed by the Special Judge, Aurangabad, is
quashed and set aside.
(III) Giving benefit of doubt, the
Appellant-accused is acquitted of the
offence punishable under Section 7 and
Section 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988.
(IV) Fine if paid, be refunded to the
Appellant.
(V) The directions of the trial Court in
Para (4) of the operative part of the
impugned Judgment regarding return of the
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amount of Rs.100/- and disposal of shirt of
the accused, are maintained.
[A.I.S. CHEEMA, J.]
asb/APR16
