State Of Maharashtra vs Durgaprasad S/O Deviprasad ...
2016 Latest Caselaw 4031 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                                        
                            NAGPUR BENCH, NAGPUR
                                             CRIMINAL APPEAL No.632 OF 2002




                                                                                                       
    State of Maharashtra through
    Police Inspector, 
    Anti Corruption Bureau, Chandrapur. ....                                                                         ...                      Appellant.

                                                ..Versus..




                                                                                 
    Durgaprasad s/o Deviprasad Mishra,              
    Occupation Junior Engineer, 
    Maharashtra State Electricity Board, 
    Khambada, Tq. Warora, Dist. Chandrapur.                                                                         ...          Respondent.
                                                   
    .......................................................................................................................................................

Mr. M.J. Khan, Additional Public Prosecutor for appellant. Mr. R.S. Kalangiwale h/f Mr. C.S.Kaptan, advocate for respondent no.1.

.......................................................................................................................................................

                                                CORAM                  :  N.W. SAMBRE, 
                                                                                       J.

                                                RESERVED ON   :  18th JULY, 2016.
                                                DELIVERED ON  :  21st JULY, 2016.





    JUDGMENT.

This appeal is against the acquittal of the respondent-accused. By

the judgment and order dated 29.6.2002 passed in Special Case No. 2/1991

by the Special Judge, Chandrapur, acquitted the respondent accused of an

offence punishable under Section 7 and 13(1)(d) and 13(2) of the Prevention

of Corruption Act, 1988.

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2. The facts as are necessary for deciding the present appeal are as

under:

The respondent accused at the relevant time was working as

Junior Engineer in Maharashtra State Electricity Board (for short M.S.E.B.).

The complainant Chimnaji lodged a complaint Exh.24 with the Police

Inspector, Anti Corruption Bureau, Chandrapur on 7th February, 1990 alleging

that he applied for grant of electric connection in the year 1984 in his seven

acres of agriculture land situated at village Susa in the area of M.S.E.B. office

Khambada where the respondent accused was posted. As there was no electric

line passing nearing the field of the complainant, he inquired with a lineman.

Request for grant of connection was processed and as such he deposited

amount of Rs.475/- as per demand note.

3. In 1989 his brother Ambadas who was owning an adjoining field

was given connection. As such, he inquired with the office of the respondent

accused for giving electric supply to his pump which is installed in a well. At

that time accused demanded Rs.600/- from him which upon negotiations was

reduced to Rs.400/-.

4. Since the complainant Chimnaji was not ready and willing to

pay bribe amount, the complaint Exh. 24 came to be lodged.

5. After receipt of the complaint as per procedure two panch from

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the Collector Office, Chandrapur one Ramdas Pimpalshende and Shyam

Hazarey were called and given demonstration of use of Phenolphthalein

powder. The currency notes in the denomination of Rs.100 and 50 were given

by the complainant which were coated with Phenolphthalein powder and trap

was set.

6. Along with trap panch Ramdas, complainant went to the office of

the accused and offered to pay upon demand by placing bribe amount on

table, however accused thereafter instead of accepting the bribe directly,

asked the complainant to keep the same in a corner under a broom in his

chamber. As such, upon signal the accused was apprehended and the offence

came to be registered.

7. Charge came to be framed against the accused vide Exh. 16 on

8.8.2001 and after examination of 13 witnesses in support of the prosecution

case, the respondent accused came to be acquitted.

8. Heard Mr. Khan, the learned Additional Public Prosecutor for the

State and Mr. Kalangiwale, the learned counsel for the respondent accused.

9. The learned Additional Public Prosecutor submits that upon

critical analysis of the evidence of all 13 prosecution witnesses, the cumulative

effect if taken into account, there is a strong evidence available against the

respondent-accused. He would substantiate the issue of demand by relying

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upon the evidence of P.W.1 Complainant and P.W.2 Ramdas, P.W.13

Investigation Officer. He would then aver that the acceptance has been

inferred in the light of the evidence as is brought on record during

investigation and in the evidence of the witnesses. The demand and

acceptance is proved against the accused-respondent and as such court

below has committed an error in acquitting the accused based on certain

material contradictions and omissions. According to him, the appeal is liable

to be allowed.

10. Per contra, the learned counsel for the respondent would

support the judgment delivered by the learned Special Judge and would invite

attention of this Court to contents of Exh. 24, the complaint, the evidence of

complainant Chimnaji Exh. 23, the evidence of the trap panch witness Ramdas

who is examined at Exh. 26 and that of Investigation Officer P.W.13 namely

Nilkanth Zalke who is examined at Exh.63. According to him, the demand

itself was not proved as there are material contradictions in the complaint and

the evidence of the complainant. He would then submit that scope of

interference by this Court in the appellate jurisdiction has to be restrictive and

by relying upon the judgment of the Apex Court in the matter of Pudhu Raja

and another Vs. State represented by inspector of police reported in (2012)

11 SCC 196 particularly para 14 submits dismissal of appeal. In addition, he

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would rely upon the judgment of the Apex Court in the matter of Selvaraj Vs.

State of Karnataka reported in (2015) 10 SCC 230 particularly para 18 and 19

so as to submit that the discretion in appeal arising out of an acquittal has to

be exercised very diligently and sparingly. Innocence of the accused is

established by the order of acquittal passed by the trial court in addition to

the presumption of his innocence. He would then submit that the demand has

to be proved along with other material circumstances by adducing clinching

evidence. According to him, the appeal is liable to be dismissed.

11. With the assistance of respective counsels in the background of

the submissions made, I have analyzed the evidence as is brought on record.

12. P.W.13 Investigating Officer P.I. Zalke has proved the complaint

Exh.24. The requisition for calling of the panch witnesses at Exh.64, the

requisition for supply of jeep at Exh. 65 was also proved by the Investigation

Officer. The pre-trap panchanama at Exh. 27 of use of Phenolphthalein

powder was also proved. The seizure of the amount which was kept under

the broom at Exh. 29, the currency notes G-1 to G-5, seizure of broom at

exh.28, the bottle containing the solution article 'B' at Exh.31, the seizure

panchanama thereof Exh.25, the chit given by the wireman Article 'L' seized

at Exh. 32, test report and the receipt at Exh. 30, visit report to the field at

Exh. 72, communication with Executive Engineer about the documents of the

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grant of electric connection at Exh. 70 and 71 and other documentary

evidence came to be proved.

13. The complainant in his complaint at Exh. 24 has narrated that he

used to inquire with the lineman of the M.S.E.B. from time to time in respect

of electric connection and was informed that after the line will be erected in

the Susa village, he will be given electric connection. He has then stated in

his complaint that it is after the electric connection to his brother's field

Ambadas, he visited the respondent-accused who demanded the bribe. If the

above referred evidence of the complainant is evaluated in the light of his

evidence recorded at exh.23, it is required to be noted that the serial numbers

of the currency notes which were used in the trap were not recorded. Rather

he is not remembering the said incident. He then says that as there was

illegal demand, he lodged the complaint and the amount was kept on the

table of the accused and then the same was kept under the broom as per the

instructions of the accused. In his cross-examination he has stated that he has

never inquired with the lineman about the electric connection and when

confronted about the statement to that effect given in his complaint, he stood

by what has been stated in the complaint.

14. The above referred piece of evidence prima facie, in my opinion,

has been rightly taken into account by the learned court below so as to infer

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that the demand was not established particularly to infer that the complainant

never inquired with by the accused about the grant of electric connection.

15. He then in his evidence narrates that the Investigation Officer has

lifted currency notes kept in the corner and then narrates he is unable to

narrate that the hands of the said witness, P.W.13 turned violet after the

same were dipped in the solution.

16.

The trap panch P.W.2 who is examined at exh. 26 in his cross-

examination narrates that the currency notes were lifted by panch witness no.

2, then he changed the said version by stating that the bribe amount was lifted

by a police constable. He admits that the hands of said witnesses were not

checked by dipping in the solution.

17. The above referred piece of evidence in my opinion prima facie

creates serous doubts as regards the seizure of the notes under the broom

either by the Investigation Officer or by panch witness no. 2 which

prosecution claims to be amount of bribe. This itself demolishes the theory of

the acceptance of the bribe amount by the respondent accused.

18. P.W.6 Janardhan who is examined at exh. 47 claims that he

accompanied the complainant Chimnaji. However, in his cross-examination

he has stated that he is deposing as has been told to him by Chimnaji. The

above analysis of the evidence does not repose confidence in the prosecution

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story for bringing home the guilt of the accused.

19. In the above background, the reasonings as are given by the

learned court below while acquitting the accused in the matter need to be

endorsed with.

20. One more aspect of which this court must take note of is the trap

in question was laid in the year 1990 and the acquittal was ordered by the

court below on 29.6.2002 and by this time the accused must have stood

superannuated. In my opinion, in the above background, the reliance placed

by the learned counsel for the respondent accused particularly about the

scope of the reversal is to be ordered on para 18 & 19 of the judgment in

Selvaraj Vs. State of Karnataka (supra) is required to be considered, which

reads thus -

18. In State of Kerala V. C.P. Rao, it has been laid down

that recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious

while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt. This court has laid down thus : (SCC pp.452-53, paras 12 -13)

12. Those observations quoted above are clearly applicable in this case. In the context of those observations this Court in para 28 of A. Subair made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is

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proved to be the contrary by proper proof of demand

and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by

the High Court.

13. In coming to this conclusion, we are reminded of the well-settled principle that when the court has to exercise its discretion in an appeal arising against the accused an order of acquittal, the court must remember

that the innocence of the accused is further re- established by the judgment of acquittal rendered by

interference by this Court in an order of acquittal has been very succinctly laid down by a three Judge Bench of this Court in Sanwat Singh V. State of Rajasthan At SCR

p.129, Subba Rao, J. 9 as His Lordship then was) culled out the principles as follows: (AIR pp 719-20, para 9)

9. The foregoing discussion yields the following results: (1) an appellate court has full power to review

the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup

case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) substantial and compelling reasons

(ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not

only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

19. In G.V. Nanjundiah v. State ( Delhi Admn.), it was laid down that the allegation of bribe taking should be

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considered along with other material circumstances,.

Demand has to be proved by adducing clinching evidence. When the fact indicating that the complainant was aware of the amount, was not withheld by the accused, this Court disbelieved the allegation of the

complainant meeting the accused and presence of strangers at the time of giving bribe was held to be unnatural.

21. The learned counsel for the respondent, in my opinion has rightly

placed reliance upon para 14 of the judgment of Apex Court in the matter of

Pudhu Raja and another Vs State (supra)which reads thus -

"14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate

court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of

innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good

reasons for interference.

22. The main aspect of the present matter of acquittal is that the

amount was not seized from the person of the accused. The inconsistency in

the evidence of P.W. 1 and Panch witness no. 2 who are examined as P.W.1

and P.W.2 particularly on the material points as regards the seizure of the

notes, the reduction of the demand amount, in my opinion, rightly resulted

into acquittal of the respondent accused. In this background, no case for

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interference in the appellate jurisdiction is made out.

The appeal as such stands dismissed.

                                                                  
                                                              JUDGE 
    Hirekhan




                                                      
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                              ig         CERTIFICATE

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copy of original signed Judgment."

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