Bombay High Court
Sanjay S/O Ishwar Bhanushali vs The State Of Maharashtra on 27 April, 2016
Bench: A.M. Thipsay
Tilak 1/34 APPEAL-210-11(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 210 OF 2011
Sanjay s/o Ishwar Bhanushali .. Appellant
Versus
The State of Maharashtra .. Respondent
---
Mr.S.R. Chitnis, Senior Advocate with Mrs.Vrishali Raje, Advocate
for the appellant.
Mr.V.B.Konde Deshmukh, APP for the Respondent State.
---
CORAM : ABHAY M. THIPSAY, J.
ORDER RESERVED : 9th MARCH, 2016
ORDER PRONOUNCED : 27th APRIL 2016
---
JUDGMENT :
1 This Appeal is directed against the judgment and
order delivered by the Special Judge (appointed under section 3 of
the Prevention of Corruption Act) for Greater Mumbai, convicting
the appellant of offences punishable under Section 7 and Section
13(1)(d) of the Prevention of Corruption Act (hereinafter referred
to as 'P.C. Act') and sentencing him to suffer Rigorous
Imprisonment for 3(three) years, and to pay a fine of Rs.7,500/-
on each of the said two counts.
Tilak 2/34 APPEAL-210-11(J)
2 The prosecution case, as put forth before the trial
Court, can be best taken from Form No. 5E of the Printed
Prescribed Proforma of the police report (Final Report Form)
u/s.173 of the Code of Criminal Procedure. In brief, it be stated
thus :
Hemant Bhagwat, (hereinafter referred to as 'the
complainant') at the material time, was doing his Garment
business under the name and style of "Four Seasons Garments" at
Unit No.IV, Star Delta Industrial Estate, Saki Naka, Andheri (East),
Mumbai-400072. He had no permits or licences required for the
said business. That, in the third week of January 2004 at about
2.00 p.m, the appellant went to the Company of the complainant
and introduced himself as an Officer in the Encroachment
Department, Municipal Corporation of Greater Mumbai, "L" ward,
Kurla (West). The appellant asked the complainant whether the
complainant had taken permission of the Municipal Corporation
for constructing the loft which was in the premises of the
complainant's company. The complainant said that he had not
taken any such permission whereupon the appellant gave his
mobile telephone number to the complainant and asked him to
meet the appellant. That, on 5 th February 2007, the appellant
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contacted the complainant on mobile telephone and informed him
that he would be coming to meet the complainant in his Company
in the evening. Accordingly, the appellant went to the Company of
the complainant in the evening and told the complainant that the
loft in the Company premises was illegal, and that it would be
demolished. The appellant discussed the matter with the
complainant and demanded an illegal gratification of Rs.60,000/-
as a consideration for not taking the action of demolition of the
said loft. The complainant expressed his inability to pay that
much amount whereupon the appellant asked the complainant to
consider about the quantum of the illegal gratification and meet
him in his office on the next day. The complainant had no desire
to pay any illegal gratification or bribe to the appellant,and as
such, he reported the matter to the Anti Corruption Bureau (ACB)
on 6th February 2007 by giving a complaint in writing. This
complaint was verified in the presence of two panchas and in the
verification, it became clear that the appellant had demanded an
amount of Rs.45,000/- as and by way of bribe from the
complainant and had agreed to accept an amount of Rs.15,000/-
therefrom on 7th February 2007; and as such a crime vide
C.R.No.12/07 was registered. On 7th February 2007 at about 8.35
p.m, the appellant was apprehended red-handed after he had
Tilak 4/34 APPEAL-210-11(J)
accepted the tainted amount near the counter of a store near
Mahim Railway Station. Traces of Anthracin powder, which was
used for laying the trap, were noticed on the fingers and the pant
pocket of the appellant. Further investigation into the matter was
carried out and record of the conversation between the
complainant and the accused which had been recorded earlier, was
forwarded to the FSL at Kalina. On receipt of the report about the
identity of the voices in question, a charge-sheet alleging
commission of the aforesaid offences was filed against the
appellant who, as aforesaid, was tried, convicted and sentenced by
the learned Special Judge.
3 The prosecution examined four witnesses during the
trial. The first one is the complainant himself and the second is
Ajay Sarolkar, a panch. The third witness Jayraj Phatak is the
person who had accorded sanction to prosecute the appellant
under the provisions of Section 19 of the P.C. Act. The fourth and
the last witness for the prosecution is Rajendra Jadhav, the trap
laying and Investigating Officer The appellant did not examine
himself as a witness. He, however, examined one Nayan
Pumbhadiya as a witness in his defence.
Tilak 5/34 APPEAL-210-11(J)
4 I have heard Mr.S.R.Chitnis, learned Senior Advocate
with Mrs.Vrishali Raje, Advocate for the appellant. I have heard
Mr.V.B.Konde-Deshmukh, learned APP for the State. I have
carefully gone through the record of the case. I have carefully
gone through the entire evidence that was adduced during the
trial. I have also examined the impugned judgment carefully.
Mr.Chitnis, the learned Senior Advocate for the
appellant contended that the order of conviction, as recorded by
the learned Special Judge, is not in accordance with law. He
submitted that the prosecution case was suffering from a number
of serious infirmities, and was unbelievable in itself. He
submitted, firstly, that the appellant was working as a Security
Officer in "L" Ward, and had nothing to do with the demolition of
illegal structures. He also submitted that the premises of the
complainant were not falling within "L" ward. He also submitted
that the sanction accorded for the prosecution of the appellant
was bad-in-law, and it suffered from non-application of mind.
Over and above, he contended that the falsity of the case of the
prosecution was established by the fact that the premises in which
the complainant claimed he was running a garment factory, did
Tilak 6/34 APPEAL-210-11(J)
not exist at all, and that this is amply proved from the documents
obtained by the appellant under the Right to Information Act. The
learned APP, on the other hand, contended that in this case, the
acceptance of illegal gratification by the appellant was proved
beyond reasonable doubt. That, based on the evidence of
acceptance of the bribe amount, the learned Special Judge has
properly concluded that the appellant was guilty of the offences in
question, and that as such, the order of conviction and the
sentences imposed upon the appellant, are proper and legal,
needing no interference.
6 According to the complainant, the appellant visited
his premises situate at Unit IV, Star Delta Industrial Estate,
Telephone Exchange Lane, Andheri (East), sometime before
February 2007 and introduced himself as a Vigilance Officer from
the BMC, Kurla "L" Ward. The complainant is categorical that he
did not know the appellant till then.
7 The complainant further stated that it is at that time
that the appellant informed the complainant that the loft in his
factory was illegal, and that the appellant would have to demolish
the same. According to the complainant, at that time, the
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appellant said that if the demolition was to be prevented, the
complainant would have to pay money to the appellant. It is in
this meeting that the appellant took the mobile telephone number
of the complainant, and gave his to the complainant. The
complainant also said that initially the appellant demanded
Rs.75,000/- from him, and when the complainant said that he was
not in a position to pay such huge amount, the appellant again
came to him after two days and demanded an amount of
minimum Rs.60,000/-. In this meeting, the complainant told the
appellant that he was not in a position to pay the entire amount in
one stretch, and that he would pay it in instalments. It is on the
next day, which the complainant remembers to be a Tuesday,
that the complainant went to the office of the ACB. Thus, it
appears that the demand of Rs.60,000/- was made by the
appellant on a day prior to lodging his complaint with the ACB.
Though the complainant has not given the dates of the
happenings, since, admittedly, the matter was for the first time
reported by him to the ACB on 6th February 2007, the happenings
i.e. of the appellant demanding a minimum amount of Rs.60,000/-
as and by way of bribe, and the complainant saying that he would
pay the same in instalments, had, clearly, taken place on 5 th
February 2007.
Tilak 8/34 APPEAL-210-11(J)
8 It is the case of the prosecution that the verification of
the alleged demand was made after the matter was reported by
the complainant to the ACB. It is well settled that the demand of
gratification is the foundation of the trap cases. The position is so
well settled that no further discussion on this aspect is necessary,
for the present. What is significant, however, is that according to
the prosecution, a trap was laid only after verifying the demand of
illegal gratification.
9 It would be necessary to first examine what is the
evidence with respect to the demand of gratification and
incidentally, of the verification of such demand.
10 In this case, what the complainant initially reported to
the ACB was on 6th February 2007 and it was recorded on the
same day. This record (Exhibit-13A) was produced before the trial
Court. However, this was not treated as the First Information
Report; and the statement of the complainant recorded after the
alleged verification of the demand which was made in the ACB
Office on 7th February 2007, was treated as the First Information
Report (Exhibit-13). Now, in none of these documents, there is a
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mention of the initial demand of Rs.75,000/- as per the
complainant's version in his evidence. In his initial complaint
(Exhibit-13A) and also in the so-called First Information Report
(Exhibit-13), the complainant spoke only of a demand of
Rs.60,000/-. The complainant was questioned in the cross-
examination in that regard, and he agreed that he did not mention
about the demand of Rs.75,000/- either on 6 th February 2007
when the complaint was recorded, or on 7 th February 2007 when
the so-called FIR was recorded. Why there should be a variation
in the amount of demand in the versions of the complainant given
on different occasions, has not been explained, and is difficult to
understand.
11 Anyway, the evidence with respect to the verification
of the alleged demand may now be examined. This verification
was undertaken by the Investigating Officer Jadhav (PW 4)
immediately on 6th February 2007 itself. He handed over a micro
tape-recorder to the complainant and explained to him about its
operation and use. This verification was to be done by going to
the "L" Ward office at Kurla of the Municipal Corporation and by
the complainant entering into a conversation with the appellant.
Going by the complainant's version, he, panchas and Inspector
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Jadhav (PW 4), all had gone to the "L" ward office, but thereafter,
the complainant alone was asked to go and meet the appellant.
The complainant did meet the appellant, but this time the
appellant did not speak anything about the money and interestingly,
he put the same in writing by using a pencil and the small piece of
paper and then threw the same in dustbin. Thus, according to the
complainant, the demand was made by the appellant by writing it
on an piece of paper and not by words of mouth, and as such,
could not be recorded in the tape-recorder. Interestingly, the
complainant also says that the appellant asked him to pay first
instalment of Rs.15,000/-, but whether this was also indicated by
the appellant by writing, is not clear. One aspect, however, is clear
and it is that the recording of the conversation could not prove the
demand made by the appellant. The complainant does not
expressly state so, but there is no dispute on this and panch
Sarolkar (PW 1) and IO Jadhav (PW 4), both stated about failure
th
to get the allegation of demand verified, on 6 February 2007
.
12 It is worth noticing here that according to the
complainant, he alone was asked to go and meet the appellant,
and the panch was asked to wait outside. According to panch
Sarolkar also, the complainant alone went inside the office and
Tilak 11/34 APPEAL-210-11(J)
met the appellant, and that the complainant came back after about
an hour. Interestingly, PI Jadhav (PW 4) claims that he had
instructed the panch also to accompany the complainant and to go
inside the office of the appellant, and hear the conversation that
would take place between the complainant and the appellant. He
also claims that the complainant and the panch both had gone
inside the Municipal Corporation office and had come back after
some time. Anyway, since admittedly, the recorded conversation did
not reveal any demand made by the appellant, and as the
verification failed, there is no point in highlighting this discrepancy
in the prosecution case.
13 The story goes that on the next date, again an attempt
to verify the allegation of the demand was made. This time the
complainant spoke to the appellant on phone as per the
instructions of PI Jadhav, but initially the appellant did not answer
the call. According to the complainant, it was the appellant who
later i.e. at about 2.00 p.m - 3.00 p.m called the complainant, and
the recording of the telephone calls was done at that time in order
to verify the demand of illegal gratification. The mobile telephone
of the complainant on which the appellant had called was to be on
speaker mode so that the panchas and the IO would be able to hear
Tilak 12/34 APPEAL-210-11(J)
the same. It is the case of the prosecution that, it is during this
conversation that, 'that a demand of illegal gratification had been
made by the appellant', was got confirmed. It is during this
conversation that the place where the bribe amount i.e. the first
instalment thereof in the sum of Rs.15,000/- was to be paid, was
said to have been fixed as Mahim Railway Station, near ticket
counter; and the time was fixed as on the same day, at about 7.00
p.m.
14 After getting confirmation of the demand of bribe in
this manner that the FIR was recorded and immediately, a trap
was arranged. The conversation that took place between the
complainant and the appellant was also recorded.
15 Though the complainant, panch Sarolkar and IO
Jadhav, all claim that 'from the conversation that took place
between the complainant and the appellant over telephone on 7 th
February 2007, the verification of the demand made by the
appellant was done', I am unable to hold the evidence in that
regard satisfactory.
Tilak 13/34 APPEAL-210-11(J)
16 In this regard, it may be observed record of the
conversation that took place between the appellant and the
complainant over telephone, - on the basis of which the
Investigating Officer arrived at a satisfaction that indeed there had
been a demand of illegal gratification by the appellant - was not
given in evidence, marked and exhibited.
It was necessary for the
prosecution to have got prepared a transcript of the recorded
conversation and exhibited the record of the conversation as well
as the transcript thereof, duly prepared and proved. When such
record was made and could have been produced, the prosecution is
content with the oral evidence of the complainant, the panch and
the Investigating Officer to give the account of the conversation.
When the conversation itself was available in the form of a record
thereof - specially made to use it in evidence - the question that
would arise is as to why no attempt to prove the conversation by
tendering the same in evidence along with a transcript, was made.
17 Anyway, the conversation is reflected in the
verification panchnama (Exhibit-17). It must be mentioned here
that the learned counsel for the appellant contended that the
recorded conversation had not been satisfactorily proved, though
it was played over in the Court during the trial. A number of
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contentions in that regard were raised before the trial Court, but
in the view that I am taking, it is not necessary to go into that
aspect of the matter. Without going into the question as to
whether the conversation was satisfactorily proved, and whether
the transcript thereof as given in the verification panchnama, is
accurate - and assuming/accepting it to be so - I have gone
through the record of the conversation reflected in the verification
panchnama (Exhibit 17); and I do not think that this record -
the
prosecution's own one - advances the prosecution case in any
manner.
18 Though the Investigating Officer and the panchas
claim that they were satisfied from this conversation, that indeed
there had been a 'demand' from the appellant, it is not possible to
hold that from this conversation, anyone would have the
satisfaction of having verified the demand of illegal gratification.
In fact, in this conversation also, the appellant is never seen
touching the subject of any amount to be paid to him. What is
seen is that the complainant is saying 'as to how much total was
told by him (appellant) to the complainant on the previous day'.
The conversation is not fully or properly audible as per the record
- transcript - itself. The complainant is seen saying something
Tilak 15/34 APPEAL-210-11(J)
about 'total' and the appellant asking 'whether the total was in his
own or of the others', and the complainant replying that it was 'his
only.' There is reference to the figure '45' (and not 'sixty' or 'sixty
thousand'); but from the record of conversation, as is found in the
verification panchnama, it is impossible to hold that the demand
of gratification which could not earlier be verified, stood verified.
Apparently, the trap was decided to be laid without being satisfied
about this aspect and without waiting any further, as previously also
such an attempt i.e. to make a verification of the demand, had failed.
19 There is also some doubt about the likelihood of
things having happened in the manner in which the complainant
says they happened. It is because on the previous day when the
complainant had met the appellant - with full preparation to
record the conversation secretly - the appellant did make no
demand of any gratification orally
and was too cautious to make a
demand only by writing it by a pencil on a small paper and then,
throwing away the paper in the dust-bin. The same complainant,
however, on the next day, spoke about the amount over telephone
which is not consistent with the cautious nature of the appellant,
as reflected from his behaviour on the previous day, and the
precautions he had been taking in that regard.
Tilak 16/34 APPEAL-210-11(J)
20 That, instead of producing the conversation and
tendering it in evidence with a duly proved transcript thereof, the
prosecution should rely on the oral account of the conversation
given by the complainant, the panch and the Investigating Officer
is a suspicious feature of the case and the least that can be said is
that the account of the conversation given by these witnesses and
their claim that the conversation proved the demand of bribe
made by the appellant, cannot be safely believed.
21 In my opinion, with respect of the initial demand,
there is hardly any satisfactory evidence. In the first place, there is
a variation in the amount of initial demand i.e. whether it was
Rs.75,000/- or Rs.60,000/-, and there is a reason to suspect that
this variation occurs because of the confusion in the mind of the
complainant who wanted to stick to a version that the initial
demand was later on reduced by Rs.15,000/- by the appellant.
Anyway, though this by itself may not be given much importance,
it is a fact that the demand could not be verified on 6th February
2007. Whether the complainant was alone at that time or was
accompanied by panch Sarolkar, is also not clear as there are two
different versions in that regard. Moreover, the record of the
Tilak 17/34 APPEAL-210-11(J)
conversation by which the Investigating Officer was 'satisfied'
about a demand of illegal gratification indeed having been made
by the appellant and which conversation served as verification of
the demand, was not at all produced before the Court, and only on
oral account thereof was given by the witnesses. Lastly, a doubt
can reasonably be entertained as to whether a cautious
complainant - as he must be held to be from the fact that he
avoided to utter the words and make demand on 6 th February
2007 - would rashly make a demand while speaking on telephone
on the very next day when he would not know from where the
complainant was speaking, and whether there was anybody with
him who would be able to hear the conversation.
22 We may now examine the evidence with respect to the
acceptance of the tainted amount by the appellant. This was
accepted by the appellant on 7th February 2007, in a shop / stall
near Mahim Railway Station, at about 8.35 p.m.
23 As to when and in what manner, the place, where the
amount was to be handed over to the appellant was fixed, and
how much was that amount, is not very clear. According to the
complainant, this was fixed on 7th February 2007, when the
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complainant was in the office of the Anti Corruption Bureau and
when the appellant had called him at about 2 to 3 p.m. This
conversation was heard by the Investigating Officer and the
panchas, on the speaker of the mobile telephone instrument of the
complainant. It is, during this telephonic conversation, that the
appellant is supposed to have asked the complainant as to when
he would pay Rs.15,000/- to him, and further that, the appellant
would meet the complainant at Mahim Railway Station near the
ticket counter, in the evening, at about 7.00 p.m. According to the
complainant, the conversation was also to the effect that the
complainant should pay first installment of the bribe amount i.e.
of Rs.15,000/- to the appellant. Interestingly, however, the
account of the conversation, that is reflected in the verification
th
panchnama dated 7 February 2007, does not disclose this.
It has
already been observed that no efforts were made by the
prosecution to prove the record of the conversation and it was
content with the witnesses giving an oral account thereof, inspite
of availability of the tape recorded conversation. Even if this
factor, which is clearly adverse to the prosecution, is kept aside,
and reliance is placed on the transcript of the conversation as is
th
reflected in the verification panchnama (Exhibit 17) dated 7
February 2007, still, the same is not consistent with the claim of
Tilak 19/34 APPEAL-210-11(J)
the complainant and the case of the prosecution. This
conversation, as has been mentioned earlier, does not speak about
any reduction of the bribe amount from Rs.60,000/- to
Rs.45,000/- (which is the case of the complainant). It also does
not refer to any installment of Rs.15,000/- (though there is a
vague reference to '15-20') and in any case, there is absolutely no
reference to the place of meeting as Mahim Railway Station,
where the amount of bribe was to be accepted. Infact, the claim of
the prosecution witnesses, who claim that it was decided between
the complainant and the appellant that the first installment of the
amount of bribe was to be accepted by the appellant on 7th
February 2007 itself in the late evening at Mahim Railway Station,
is inconsistent with the recitals of the verification panchnama
(Exhibit 17), as per which, the amount was to be accepted on 7 th
th
February 2007 or 8 February 2007
.
24 It is indeed mysterious that the recorded conversation
should not show that the appellant had agreed to accept the bribe
th
amount near Mahim Railway station on 7
February 2007, but
that, the complainant and the prosecution witnesses should state
so. Though it is possible to reason that subsequent to the
verification panchnama, the complainant and the appellant might
Tilak 20/34 APPEAL-210-11(J)
have agreed to meet near Mahim Railway Station, where the
amount of bribe would be paid; but the question that arises in that
case would be as to why such conversation, if any, was not
recorded. This, therefore, casts a doubt on the reliability of the
complainant and the panch, as well as the Investigating Officer.
25 We may now examine the evidence as to what
happened after the complainant and the appellant had agreed to
meet at Mahim Railway Station near ticket counter. The
complainant, the police party and the panchas went near Mahim
Railway Station and were waiting there. The appellant did not
come at the appointed time, i.e. between 7.00 to 7.30 p.m. On the
instructions of the Investigating Officer, the complainant then
called the appellant on his mobile telephone, which was at about 8
to 8.15 p.m., when the appellant asked him to wait near the ticket
counter and said that he would be coming in 10 to 15 minutes.
The appellant came at about 8.30 p.m. from Platform No.1. He
came towards the complainant and asked the complainant to
proceed across Tulsi Pipe Road. Accordingly, the complainant and
the appellant walked together. Arrangements had been made for
tape recording the conversation and the complainant had put the
tape recorder on. The complainant and the appellant then stopped
Tilak 21/34 APPEAL-210-11(J)
at a shop where cold drinks and other articles were sold. It is, at
that time, that the appellant demanded an amount of Rs.15,000/-,
whereupon, the complainant asked him whether after the payment
of the bribe amount, the demolition of the loft would not take
place. The complainant then assured that, after payment of bribe
the demolition would not take place and also insisted that the
complainant would have to pay the balance amount of
Rs.30,000/-. It is, thereafter, that the complainant took out the
bribe amount of Rs.15,000/- from his right hand shirt pocket by
using his right hand and handed it over to the appellant, who
accepted the same by his right hand and kept it in his right side
pant pocket. The complainant then gave the pre-determined
signal of moving his left hand over his head, and thereafter the
members of the raiding party apprehended the appellant. The
tape recorder was put off after his arrest. The evidence shows that
the complainant and the appellant, both, were standing near the
counter of the said shop / stall were holding cold drink bottles in
their respective hands, and both of them were actually consuming
cold drink at that time.
26 Interestingly, even the conversation that took place this
time was not produced before the court, though it had been recorded .
Tilak 22/34 APPEAL-210-11(J)
Like the previous conversations, a transcript of this conversation
forms a part of the trap panchnama (Exhibit 20). As aforesaid,
adverse inference against the prosecution can certainly be drawn
on account of its failure to produce the record of conversation, but
even if that aspect is kept aside, and a reference is made to the
transcription of the conversation as reflected in the trap
panchnama Exhibit 20, it belies the version of the complainant.
This transcription nowhere reflects any demand of bribe . In fact, the
IO has categorically admitted in the cross-examination that in the
record of this conversation which was heard by him, there was no
demand of bribe made by the appellant from the complainant.
27 There is also no uniformity in the versions as to what
happened after the apprehension of the appellant. According to
the complainant, his search was taken on the spot itself and
tainted currency notes were recovered from him on the spot itself.
According to the Investigating Officer, however, the appellant was
taken to Mahim Police Station and then his personal search was
taken, during which, the tainted amount came to be recovered.
Interestingly, this, the Investigating Officer stated only after
referring to the panchnama, which he was allowed to refer 'to
refresh his memory'. Thus, with respect to the acceptance of the
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bribe, there are two significant aspects. The first is, that the
conversation that took place just before the acceptance is not
attempted to be supported by the recording, which the prosecution
claimed to be having with it. This is the least that can be said,
even if that the prosecution's own record of the conversation not
only does not support the account thereof given by the
complainant, but totally destroys it, is ignored. The second aspect
is, that there is a glaring infirmity about the place where the
personal search of the appellant was taken.
28 Apart from this, there were two other glaring aspects
of the matter which creates a serious about the truth of the
prosecution case. The learned counsel for the appellant
contended before this Court - and it was also contended before
the trial Court - that the complainant was not having any business
at the address given by him - i.e. in the premises at Unit-IV, Star
Delta Industrial Estate, Saki Naka Industrial Lane. It was
specifically contended that the appellant had obtained information
under the Right to Information Act, and it was revealed that there
was no establishment by name "Four Seasons Garments" and there
was no "Star Delta Industrial Estate" at the place mentioned by the
complainant. In this regard, it is quite significant that the
Tilak 24/34 APPEAL-210-11(J)
complainant himself in the FIR has said that he had not taken any
licences or permissions from any Government Department. The
FIR initially itself mentions the address of the complainant's
business premises, and immediately adds that 'for his business, he
had not taken any licence/permits from any Government
departments'. The anxiety of the complainant to disclose this
information, before going further with his complaint and in the
introductory part itself, is indeed curious, but the matter be left at
that. What, however, is more important and renders the
complainant a thoroughly unreliable witness is the fact that the
complainant had previous acquaintance with the appellant, and
that the complainant tried to suppress it. The evidence of Nayan
Pumbhadiya who was examined as a witness for the defence,
clearly shows that the complainant and the appellant knew each
other since the year 2006. The evidence of this witness has not
been challenged at all,except putting a bare suggestion to him that
the appellant did not know the complainant, which suggestion has
been plainly denied by this witness. It cannot, at all be doubted
that the appellant and the complainant knew each other and had
been introduced by the said Pumbhadiya in the "L" Ward office of
the Municipal Corporation. The fact that the complainant tried to
suppress this and claimed that he came to know the appellant only
Tilak 25/34 APPEAL-210-11(J)
when he had visited the complainant's business premises and had
introduced himself to the complainant, is extremely suspicious.
Interestingly, another aspect of the evidence of the defence witness
Pumbhadiya - which was not referred to by either parties, but
which appears to be significant to me - is, that this witness said
that he came to know the complainant when he had seen him with
one Anil Jain who was known to Pumphadiya, and who was in
Garment business. The evidence of Pumphadiya also shows that
Anil Jain used to visit "L" Ward in connection with some problem
of his structure. There is not even a suggestion that the
complainant did not know any Anil Jain.
30 In my opinion, the following facts :-
(i) That, the complainant tried to suppress the
fact that he knew the complainant since prior to
February 2007;
(ii) That, he tried to mislead everyone by
stating that he came to know the appellant only
when the appellant visited his premises and
introduced himself;
(iii) That the complainant, in the introductory
part of the FIR itself, after mentioning his name,
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thought it necessary to mention that he had no
licences in respect of the business;
(iv) That, the complainant had been seen with
one Anil Jain who was involved in the Garments
business, and that the said Jain used to visit "L"
ward office of the Municipal Corporation in
connection with some problem of the structure;
indicate that the truth of the matter was quite different from that
projected by the complainant.ig
31 Inspite of these weaknesses in the case of the
prosecution, the learned Special Judge has held the appellant
guilty of the alleged offences. I have carefully examined the
impugned judgment, and I find that the only basis on which the
appellant came to be convicted is that, according to learned
Special Judge, it was satisfactorily proved that there was 'transfer
of amount' (a phrase repeatedly used by the learned Judge) from
the complainant to the appellant. By emphasizing on this "transfer
of amount", the learned Judge held that the presumption as laid
down in Section 20 of the P.C. Act was attracted to facts of the case
and that, therefore, by virtue of that presumption, that the
appellant had committed the said offences, stood proved. The
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learned Judge in his judgment, noted the contentions advanced by
the learned counsel for the appellant in depth, and also noted the
authoritative pronouncements of the Apex Court on which reliance
had been placed by the learned counsel for the appellant. After
doing this, instead of dealing with those contentions/ arguments,
the learned Judge straight away came to the aspect of acceptance
and recovery of amount from the appellant. He observed :-
"I will straight away discuss the issue about
the acceptance and recovery of amount from
accused, and further his claim that the amount
was thrusted in his pant pocket" (para 16)
The learned Judge further observed that :
"Neither though the conversation between
the complainant and accused is not heard by
other members of raiding party, everybody
therein witnessed the transfer of amount from
complainant to accused" (para 16)
32 After noticing some deficiencies in the evidence, the
learned Judge observed that :
"Inspite of these deficiencies, the evidence
of the Investigating Officer, this
corroborates the evidence of the
complainant that the amount was so
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transferred in the manner stated by the
complainant. (para 16)
33 It appears from the impugned judgment and the
conclusions arrived at by the learned Special Judge that he felt
satisfied about the evidence of the initial demand of bribe as
allegedly made by the appellant, only on the strength of evidence
of the happenings of 7th February 2007 - i.e. after the trap had
been laid - to hold the prosecution case as proved.
34 The learned Judge has not properly comprehended
the concept of 'demand' and 'acceptance'. He has misconstrued
the provisions of Section 20 of the P.C. Act. Moreover, the
appreciation of evidence, as done by him, is also not in accordance
with the well settled parameters. Thus, his conclusion that
'transfer of amount' was satisfactorily proved does not appear to
be proper; and further his opinion that from the transfer
of
amount (by
itself) the proof of the demand of bribe can be
gathered' is also incorrect.
35 The learned Judge was in error in holding the
prosecution case as proved only on the basis of the proof of
"transfer of amount" as repeatedly held by him in the impugned
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judgment. It may only be added that apart from the fact that only
on the basis of such "transfer of amount", he could not have held
the case as 'proved', what needs to be emphasized is that even the
evidence of the 'transfer of amount' could not have been treated as
satisfactory by isolating it from the evidence with respect to other
happenings. When the evidence of demand which is the foundation
of the prosecution case - or every trap case for that matter - had
been totally shaken, the learned Judge ought not to have felt so
assured about the truth and reliability of the evidence regarding
'transfer of amount'. In this context, it would be appropriate to
reproduce here the following observations made by Their
Lordships of the Supreme Court of India in the case of G.V.
Nanjundiah Vs. State (Delhi Administration) 1
"The question as to the handing over of any bribe
and recovery of the same from the accused should be
considered along with other material circumstances
one of which is the question whether any demand
was at all made by the appellant for the bribe. When
it is found that no such demand was made by the
accused and the prosecution has given a false story
in that regard, the Court will view the allegation of
payment of the bribe to and recovery of the same
from the accused with suspicion".
(para 25 of the reported Judgment)
1 AIR 1987 SC 2402
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36 There is no change in the well accepted proposition
that if the evidence of initial demand is not acceptable, the entire
evidence obtained by laying a trap, becomes suspect. The evidence
of recovery of amount from an accused, when evidence of a
previous demand is lacking, or is not satisfactory, would be totally
insufficient to hold as accused guilty of having committed an
offence punishable under section 7 and/or section 13(2) r/w
section 13(1)(d) of the P.C. Act. If at all any case law is still
required to be quoted for this well settled and logical proposition,
a reference can be made to a recent decision of the Supreme Court
of India.
37 In Krishan Chander Vs. State of Delhi (Criminal
Appeal No.14 of 2016) (decided on 6th January 2016), Their
Lordships reiterated the legal position by observing :
"It is well settled position of law that the
demand for the bribe money is sine qua non
to convict the accused for the offences
punishable under Sections 7 and 13(1)(d)
read with Section 13(2) of the P.C. Act.
Their Lordships referred to a previous decision of the Supreme
Court of India in the case of B. Jayaraj Vs. State of Andhra
Pradesh, 1 and quoted the following observations therefrom.
1 2014 Cr.L.J.2433
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Insofar as the offence under Section 7 is
concerned, it is a settled position in law that
demand of illegal gratification is sine qua non to
constitute the said offence and mere recovery of
currency notes cannot constitute the offence
under Section 7 unless it is proved beyond all
reasonable doubt that the accused voluntarily
accepted the money knowing it to be a bribe. The
above position has been succinctly laid down in
several judgments of this Court.
(Emphasis supplied)
38 In the instant case, the complainant tried to suppress
the prior acquaintance with the appellant, which apart from being
a highly suspicious feature in itself, clearly projects the
complainant as an unreliable witness. Moreover, there is a
reference to one Anil Jain and the complainant's acquaintance
with him, which the complainant did not dispute or challenge.
The recorded conversations, as reflected from the transcripts
found in the prosecution's own record, do not support the case of
any demand; and there is not only no demand, but there is
not even any reference to any illegal construction or loft. The
appellant was a security officer and not an officer concerned with
demolition of unauthorized structures. When such was the
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position, the possibility of the complainant having tricked the
appellant in accepting the money, or the money being given not in
any connection with any official act or as a motive or reward for
doing or forbearing to do any such act, cannot be ruled out. The
words "accepted" or "obtained" occurring in section 20 of the P.C.
Act contemplate a deliberate and voluntary act on the part of an
accused. If an accused is tricked into taking the amount, it can
hardly be treated as an acceptance so as to attract the
presumption laid down in Section 20 of the P.C. Act.
39 The appreciation of evidence as done by the learned
Special Judge is not proper. He has proceeded as if the appellant
was already guilty and put a reverse burden of proving his
innocence on the appellant. In this case, panch Sarolkar (PW 2)
had previously also acted as a panch in trap cases on two
occasions. Thus, he was acquainted with the police officers. His
evidence, therefore, needed to be appreciated cautiously by taking
this into consideration, but the Special Judge has accepted his
evidence as true and reliable by holding him to be a respectable
person only by virtue of his 'being a public servant'. That, the
panch had acted twice previously as such, was pointed out
to the learned Judge. The decision of the Supreme Court of
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India, in the case of G.V.Nanjundiah Vs. State (Delhi
Administration) (supra) was also pointed out to him, but he tried
to wriggle out of it by referring to a decision delivered by the
Bombay High Court. What he further observed is indeed
shocking. He observed : In the present case, "there should not be
any doubt that the panch witness is a respectable person being a
public servant". All that can be said about these observations is
that by the present logic, the appellant also should be held as a
respectable person 'being a public servant', (and therefore, not
likely to take bribe).
40 That there was a case for drawing the presumption
under section 20 of the P.C. Act because of the "transfer of
amount", and that the same would automatically establish all the
ingredients of the alleged offences, as believed and held by the
learned Special Judge, is contrary to law. If such a view is
accepted, it would render all the law emphasizing on the
necessity of demand thoroughly worthless and irrelevant. It is a
fundamental principle of the appreciation of evidence that in every
case, the evidence has to be seen as a whole. When there are a
number of infirmities in the prosecution case with respect to
several material aspects, it would be highly improper to easily
accept the evidence on a particular point as absolutely reliable and
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clinching. In this case, obviously, the evidence of demand was not
satisfactory and, therefore, instead of analyzing that evidence, the
learned Judge has started discussing the evidence from the so-
called acceptance of gratification by the appellant. In doing so, he
ignored all the doubtful aspects of the prosecution case.
41 This was a case where there was a serious doubt
about the truth of the prosecution case. This was a case where the
appellant should have been acquitted.
42 Appeal is allowed.
43 The impugned judgment and order of conviction is set
aside.
44 The appellant is acquitted.
45 His bail bonds are discharged.
46 Fine, if paid, be refunded to him.
(ABHAY M. THIPSAY, J)
