Purshottam R.Kulkarni vs State Of Maharashtra
2016 Latest Caselaw 5181 Bom

                                               1
                                                                               APEAL.243-1998

Dond
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                     CRIMINAL APPELLATE JURISDICTION

                           CRIMINAL APPEAL NO. 243 OF 1998




                                                            
       PURUSHOTTAM RAGHUNATH KULKARNI                              ..Appellant.
                                                                 (Original Accused)
             Vs.




                                                           
       STATE OF MAHARASHTRA
       (Anti-Corruption Bureau, Solaput)                           ..Respondent.
                                                   -----




                                                    
       Mr. S.V. Kotwal for the Appellant.
                                      
       Ms. Anamika Malhotra, APP for State.

                                                   -----
                                     
                                      CORAM: A.S. GADKARI, J.
                                      Reserved On:   22nd June 2016.
                                      Pronounced On: 2nd September 2016.
             


       JUDGMENT:

1 The appellant is convicted for the offence punishable under

Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988

and is sentenced to suffer rigorous imprisonment for one and half year and

to pay a fine of Rs.1500/-, in default of payment of fine to further suffer

rigorous imprisonment for nine months and under Section 7 of the

Prevention of Corruption Act, 1988 and sentenced to suffer rigorous

imprisonment for one year and to pay a fine of Rs.750/-, in default of

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payment of fine to further suffer rigorous imprisonment for six months by

the learned Special Judge, Solapur in Sessions Case No. 6 of 1993 by its

Judgment and Order dated 17th December 1997. It is directed that the

substantive sentences to run concurrently. The said Judgment and Order

dated 17.12.1997 passed by the learned Special Judge is impugned herein

by way of the present appeal.

2 The facts which are relevant to decide the present appeal and

are enumerated from the record can briefly be stated as under:

(i) It is the prosecution case that, the complainant-Mr. Shursen

Chandram Sushaladi (PW-3) was working as a Mistry Grade-II at the

Office of Deputy Engineer, Minor Irrigation, Sub-Division, South Solapur.

That in the year 1990 the complainant had reached the stage of efficiency

bar and further increment was not to be released until the orders were

passed by his superiors to allow him to cross the efficiency bar. In this

connection, the service book of the complainant was sent to the Executive

Engineer, Minor Irrigation Division No.1, Zilla Parishad, Solapur. At that

relevant time, the appellant was working as Senior Clerk/Assistant in the

Establishment Branch of the office of Executive Engineer and used to deal

with the work of sending all such files to the Executive Engineer for

passing the orders.

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(ii) That in the month of October 1992, the complainant met the

appellant at the Division Office and requested him to issue the increment

order. However, the appellant told the complainant that he would issue the

order, provided the complainant pay Rs.350/- for the same. Accordingly,

the complainant paid Rs.350/- to the appellant. Despite the same, the

increment was not received, therefore, the complainant went to the office

of the appellant on 14.12.1992 and told him that the increment was not

received and requested to issue the same early. That the appellant asked the

complainant to accompany him and lead him to a Hotel opposite to the

Zilla Parishad and demanded Rs.1000/- from the complainant and asked

him to pay by tomorrow evening and he would issue the orders on Monday.

(iii) As the complainant was not willing to pay the said amount to

the appellant, he decided to file a complaint with the Anti-Corruption

Office, for taking legal action against the appellant. That on the next day

i.e. 15.12.1992 the complainant went to the Office of the Anti-Corruption,

Solapur and contacted P.I. Shri Yunnus I. Shaikh (PW-7) and narrated the

incident to him. Shri Shaikh recorded the complaint as per the version of

complainant, which is at Exhibit 26. Thereafter P.I. Shaikh decided to lay a

trap on the same day. P.I. Shri Shaikh issued request letter to Executive

Engineer, Public Works Department, Solapur to send two clerks to ACB

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office for confidential work. In response to the said letter, panch witnesses

namely Mr. Nimbalkar and Mr. Perla appeared at ACB Office at about 2.00

p.m.

(iv) P.I. Shri Yunnus Shaikh thereafter completed necessary legal

formalities of preparation of pre-trap panchanama. The complainant

produced 10 Indian currency notes of Rs.100/-each totaling to Rs.1000/-.

The said pre-trap pachanama is at Exhibit-18. The complainant thereafter

along with panch-witness namely Shri Vitthal Nimbalkar (PW-2) went to

the office of the appellant. The appellant told the complainant and panch-

witness to come to "Peoples Hotel" in front of Zilla Parishad Office. The

complainant accompanied appellant and panch-witness. After the appellant

demanded amount from the complainant, the complainant paid to him the

amount in presence of panch-witness (PW-2). At about 3.50 p.m., the

complainant, panch-witness (PW-2) and the appellant were coming outside

and when they were in the gate of the Hotel, the complainant gave a pre-

arranged signal. The raiding party thereafter accosted the appellant. The

search of the appellant was taken. The traces of anthracene powder were

found on the right hand finger and palms of the appellant. The tainted

currency notes were found in the left side shirt pocket of the appellant. The

said currency notes were also having traces of anthracene powder. The

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appellant was provided with substitute shirt and the shirt which was on the

person of the appellant was taken into custody. A detailed panchanama of

all the events was recorded (post-trap panchanama) which is at Exhibit 21.

(v) P.I. Shri Shaikh (PW-7) thereafter lodged a complaint with

Sadar Bazar Police Station, Solapur which is at Exhibit-50. On the basis of

the said complaint, CR No.969 of 1992 was registered at Sadar Bazar

Police Station. The investigation of the said crime was entrusted to P.I. Shri

Yunnus Shaikh (PW-7). During the course of investigation, P.I. Shaikh

(PW-7) recorded the statements of various witnesses. After completion of

investigation, he sent papers to the higher authorities of Anti-Corruption

Bureau, Pune for obtaining sanction from the competent authority. On

17.4.1993, P.I. Shaikh received sanction Order from DGP/SP/SCV Pune.

The Investigating Officer (PW-7) thereafter filed a charge-sheet on

25.5.1993 before the Special Court (ACB), Solapur. The said charge-sheet

is at Exhibit 53.

(vi) The learned Special Judge framed charge below Exhibit-2 against

the appellant for the offence punishable under Section 13(2) read with

13(1)(d) and 7 of the Prevention of Corruption Act, 1988. The appellant

denied the said charges, pleaded not guilty and claimed to be tried. The

defence of the appellant was of total denial. It was the specific defence of

APEAL.243-1998

the appellant that the appellant had no role to play in the matter of passing

an Order regarding crossing of efficiency bar. That the orders as regards

crossing of efficiency bar of certain members of the staff were issued by

the Executive Engineer. However, the order of the complainant Shursen

Sushaladi (PW-3) was not issued because his record was not good. That

despite the said fact, the complainant was having a feeling that because of

the appellant, the order was not issued and on account of the said grievance

and wrong impression gathered by the complainant, he filed the present

false complaint against him with the Anti-Corruption Bureau. It is the

further specific defence of the appellant that, to trap the appellant in the

said design, the complainant requested the appellant to come to the Peoples

Hotel and thereafter forcibly thrusted tainted currency notes into his shirt

pocket. That the appellant never demanded and accepted the tainted

currency notes from the complainant.

(vii) The prosecution in support of its case examined in all seven

witnesses. The learned Special Judge of the Trial Court after recording the

evidence of the prosecution witnesses and after hearing the parties to the

said case, was pleased to convict and sentence the appellant by its

Judgment and Order dated 17.12.1997 as stated earlier.

APEAL.243-1998

3 Heard Mr. S.V. Kotwal, the learned counsel for the appellant

and Mrs. Anamika Malhotra, the learned APP for the State. I have also

perused the entire record pertaining to the present case.

4 The learned counsel for the appellant submitted that since

inception it is the specific defence of the appellant that he never made any

demand of the alleged bribe amount from the complainant and as a matter

of fact, the said alleged demand was never verified by the Investigating

Officer. He submitted that the appellant was not authority to pass any

orders for and in favour of the complainant (PW-3). That no tracess of

anthracene power were found on the palms of the appellant. That the

stitches on left side pocket of the shirt of the appellant were found loosened

which denotes that the force was applied by the complainant while

thrusting currency notes in his pocket. He further submitted that though the

currency notes were alleged to have been with one fold as per pre-trap

panchanama however same were found with multiple folds at the time of

recording substantive evidence. That the envelope containing tainted

currency notes were with the Investigating Officer for a considerable

period and therefore the possibility of tampering with the said piece of

evidence by the prosecution cannot be ruled out. He therefore submitted

that after taking into consideration the entire evidence on record, it is

APEAL.243-1998

apparent that in the present case, the alleged tainted currency notes were

foisted and/or forcibly thrusted in the left hand side shirt pocket of the

appellant and therefore prayed that the present appeal may be allowed and

the appellant may be acquitted from charges levelled against him.

The learned APP per contra opposed the present appeal and

submitted that the demand though not earlier verified by the Anti-

Corruption Bureau, an independent panch-witness PW-2 has deposed the

fact about demand of money in the office before going to the Hotel. She

submitted that there is presumption under Section 20 of the Prevention of

Corruption Act, which the appellant has failed to rebut. She further

submitted that as per prosecution case, it is the appellant who was having

duty to place the files of the staff members before the Executive Engineer

along with comments and for placing file before the concerned authority,

the appellant had demanded the said amount. She submitted that the

evidence adduced by the prosecution is reliable and trustworthy. She

therefore prayed that the conviction and sentence of the appellant may be

maintained and the appeal may be dismissed.

5 As stated above, the prosecution in support of its case has

examined in all seven witnesses.

(i) PW-1 Shri Sanjay Bhatiya was the then Chief Executive

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Officer, Zilla Parishad, Solapur and was competent to accord the sanction

under Section 19 of the Prevention of Corruption Act to prosecute the

appellant. PW-1 has deposed that the appellant was working as a Senior

Assistant, Minor Irrigation, Local Section, Zilla Parishad, Solapur. That

after receipt of a letter from SP/ACB, Pune and after perusing the entire

file of the appellant, he passed the sanction order which is at Exhibit 11. It

appears that the evidence of this witness is formal in nature and restricted

to the point of according sanction as contemplated under Section 19 of

Prevention of Corruption Act to prosecute the appellant.

(ii) PW-2 Vithal Nimbalkar is the panch-witness to the alleged

demand and trap led down by the Anti-Corruption Bureau on the complaint

of PW-3. PW-2 in his deposition has stated that he was working in the

Office of the Executive Engineer, PWD, Solapur. That he and panch-

witness Mr. Perla were directed by the Superior Officers to attend the

Office of the Anti-Corruption Bureau on that day. That after attending the

office of the Anti-Corruption Bureau, P.I. Shri Shaikh (PW-7) introduced

them with the complainant, who was present there. The said person was

Shri Shursen Sushaladi (PW-3). That after completing necessary

formalities the pre-trap panchanama (Exhibit-18) was prepared. PW-2 was

directed to accompany the complainant. That PW-2 Shri Nimbalkar along

APEAL.243-1998

with P.I. Shri Shaikh (PW-7), complainant (PW-3) and other members of

the raiding party went to the office of Zilla Parishad. PW-2 along with

complainant (PW-3) entered into the building and went to the first floor.

The complainant met the appellant and requested to issue increment order.

The appellant asked the complainant whether he had brought Rs.1000/- as

suggested by the appellant yesterday, to which the complainant replied in

affirmative. Then appellant directed the complainant to accompany him

and then they went to the ground floor at 'Peoples Hotel'. They sat on the

bench on table No.2. The complainant placed order for two cups of Coffee

and all three shared it. The complainant thereafter requested the appellant

to issue increment Order as early as possible. The appellant told that he

would issue the said Order by Sunday and asked the complainant to pay the

money. The complainant thereafter removed marked currency notes from

his left pocket and handed it over to the appellant. The appellant accepted

the same by his right hand and kept it in his left side bush-shirt pocket.

Then all the three got up. The complainant went ahead to the gate of the

Hotel and gave pre-arranged signal to the raiding party by removing gamja

from left hand pocket. The raiding party thereafter accosted the appellant.

The marked currency notes were found in the left side pocket of the

appellant. Post trap panchanama which is at Exhibit 21 is accordingly

APEAL.243-1998

prepared at the spot.

In the detailed cross-examination of this witness, PW-2 has

admitted that before giving or putting the marked currency notes into the

shirt pocket of the complainant, the Head Constable had folded it only once

i.e. the said currency notes were having one fold only before putting the

same in the shirt pocket of the complainant. That after accosting the

appellant, the currency notes were kept in paper pocket and it was sealed.

He has further admitted that from the table on which they were having

Coffee, they could saw the raiding party standing outside. That when the

raiding party arrived in the hotel there was crowd of about 50 to 60

persons. That it was panch No.2 who has removed the currency notes from

the pocket of the appellant and counted the same. He has denied the

suggestion that at the office itself the appellant had told the complainant

that his record was not proper and his work would not be done. He has

further denied the suggestion that the complainant came from the back side

of the appellant and inserted something into the shirt pocket of the

appellant. He has denied the suggestion that P.I. Shaikh held the appellant

when his palm was in the bush-shirt pocket.

(iii) PW-3 Shursen Sushaladi is the complainant. PW-3 in his

evidence has deposed the facts from the demand till completion of raid as

APEAL.243-1998

has been mentioned in forgoing paragraph Nos.2(i) to 2(iv) and for the sake

of brevity the repetition of the same is avoided.

PW-3 was cross-examined at length by the appellant. In his

cross-examination, PW-3 has admitted that the Executive Engineer was the

competent authority to pass the necessary orders and not the appellant. He

did not file the complaint for the earlier demand of Rs.350/- with any

authority. He further admitted that he did not feel it necessary to

straightway contact the Executive Engineer in connection with his work

instead of appellant. He has further admitted that the Head Constable

folded the marked notes only once. That at present i.e. in the Court there

are two folds to the currency notes. That the order to cross the efficiency

bar in his case was passed in March 1993 i.e. after the lodgment of the

present crime. PW-3 has denied the suggestion that in order to pressurize

his superiors and the concerned persons he filed the present false

complaint. He has further denied the suggestion that at the Hotel also the

appellant told him that his work would not be done and he had left after

taking coffee. He has also denied the suggestion that he foisted/thrusted the

tainted currency notes in the shirt pocket of the appellant.

(iv) PW-4 is Baswantrao P. Patil was the working as a Office

Superintendent in the office of Minor Irrigation, Division No.1, Solapur.

APEAL.243-1998

He has deposed that the appellant was subordinate to him. That the

appellant was working in the establishment branch as a senior assistant and

he used to look after the work of leave applications, E.B. Cross, G.P.F.

Advances, Confidential Reports, meetings and other matters. That on

15.12.1992 at about 3.30 p.m. he saw the complainant and one unknown

person to his office talking with the appellant. That the complainant and the

unknown person and the appellant went to the ground floor. That the

appellant was burdened with various types of work.

In the cross-examination, this witness has admitted that the

appellant was supposed to feed necessary information to the Executive

Engineer before different meetings of committees and the appellant was

burdened with various types of work. That this witness used to see the note

put up by the appellant and verify it, whether it was correct or not before

sending it to the superior officer. That he used to send the said notes to the

Executive Engineer for sanction and the Executive Engineer used to pass

orders thereon. The said witness has further admitted that the note put up

by the appellant was not binding on the Executive Engineer. He has further

admitted that the substitute bush-shirt was provided to the appellant on

15.12.1992 when he was brought to his office.

(v) PW-5 is Shivaji Shankar Khulsure. He was the subordinate

APEAL.243-1998

employee of the appellant. PW-6 is Mallinath V. Timake was conducting

the Hotel known as "Peoples Restaurant" where the raid was conducted by

the police. It appears that the evidence of these two witnesses is formal in

nature.

(vi) PW-7 is Mr. Yunnus Ismail Shaikh, the Investigating Officer

of the present crime. PW-7 was then attached as P.I./ACB, Solapur. In his

examination-in-chief, he has narrated in detailed the facts pertaining to the

present crime from the receipt of complaint till completion of the raid and

submitting final report before the Special Court. The said facts are briefly

mentioned in paragraph No.2 (iv) and (v) herein above and for the sake of

brevity its repetition is hereby avoided.

In the cross-examination of this witness, certain omissions

which were brought on record in the cross-examination of PW-2 panch-

witness and PW-3 complainant, have been proved. It further appears that

there is material inconsistency in the evidence of PW Nos.2 and 3 and the

present witness PW-7 as regards to the substitute shirt provided to the

appellant after conducting the raid. In the cross-examination PW-7 has

admitted that the currency notes were not folded at the time of pre-trap

panchanama in the manner in which they are now before the Court. He has

further admitted that he cannot state as to how they were folded in the

APEAL.243-1998

manner as they appear in the Court. That while keeping the currency notes

in the envelope they were not folded and pinned. He has further admitted

that the stitching at the left hand side of the pocket has become loose. He

has further admitted that, he did not feel that he should verify the

allegations as regards the demand made by the accused/appellant.

6 Thus, the evidence available on record reveals that the

appellant was not having any authority to pass any orders for and in favour

of the complainant (PW-3). Shri Baswantrao P. Patil (PW-4), the

superintendent in the office of Minor Irrigation, Division No.1, Solapur has

clearly deposed that though the appellant was having the work of preparing

notes to be submitted to the Executive Engineer, the said witness i.e. PW-4

used to see the note put up by the appellant and used to verify whether it

was correct or not before sending it to the superior officer. PW-4 has

admitted that he used to send the said notes to the Executive Engineer for

sanction and the Executive Engineer used to pass orders thereon. He has

further admitted that the note put up by the appellant was not binding on

the Executive Engineer. The learned APP submitted that where the marked

currency notes are recovered from the pocket of the shirt which the accused

was wearing and not from the shirt lying elsewhere in the room it was for

the accused to show how he came into possession of the notes. In this

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context it is to be noted here that since inception it is the specific defence

of the appellant that though the complainant (PW-3) had approached him

for his work for increment despite there being efficiency bar, the appellant

had specifically told him that the said work cannot be done as the record of

the complainant was not good. It is his further specific case that the

complainant (PW-3) requested him to come for a tea/coffee and after

having the said coffee when he was returning to his office, the complainant

came from the back side and foisted/thrusted the currency notes in the left

side pocket of his shirt and due to which the pocket of his shirt on its left

side was loosened which denotes that force was applied by the complainant

while thrusting currency notes in his shirt pocket. Section 20 of the

Prevention of Corruption Act deals with the presumption in case of

acceptance of bribe. The Investigating Officer (PW-7) in his cross-

examination has admitted that though at the time of pre-trap panchanama,

the tainted currency notes were given in possession of the complainant with

one fold, however, in the Court at the time of recording substantive

evidence they were having two folds. He further admitted that the currency

notes were not folded at the time of pre-trap in the manner in which they

are now in the Court. The Investigating Officer has admitted that at the

time of keeping the currency notes in the envelope they were not folded

APEAL.243-1998

and pinned. He has further admitted that the stitching at the left hand side

of the pocket of the shirt of complainant had become loose. The

Investigating Officer has given a startling admission that he did not feel

that, he should verify the allegations as regards demands made by the

accused/appellant. In other words, there is no verification effected by the

Investigating Officer prior to laying down the trap.

7 Thus, the evidence on record gives rise to a strong suspicion

about the fact that force was applied while keeping the alleged tainted

currency notes in the pocket of the appellant. It clearly appears to me that

the appellant is successful in rebutting the presumption as contemplated

under Section 20 of the Prevention of Corruption Act. The cumulative

effect of the aforesaid evidence on record and the deliberation leads me to

draw the irresistible inferance and hold that the appellant is entitled for

the benefit of doubt. Thus the appellant is given the benefit of doubt and

acquitted from all the charges framed against him.

    8             Hence, the following Order:





                  (i) Criminal Appeal is allowed;

(ii) The Judgment and Order dated 17th December 1997

passed in Sessions Case No. 6 of 1993 is hereby quashed and

set aside and the appellant is acquitted from all charges

APEAL.243-1998

framed against him by extending benefit of doubt;

(iii) Fine, if any, paid by the appellant be refunded to him after

following due procedure.

(A.S. GADKARI,J.)