Baliram S/O Mansingh Chawhan vs State Of Mah.Thr.The Anti ...
2017 Latest Caselaw 6354 Bom

 apeal50.02.J.odt                          1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                      CRIMINAL APPEAL NO.50 OF 2002

          Baliram s/o Mansingh Chawhan,
          Aged adult, Occ: Service,
          R/o Kajaleshwar, Tah. Barshitakli,
          District Akola (P.S. Shirpur).                    ....... APPELLANT

                                   ...V E R S U S...

          State of Maharashtra through the
          Anti Corruption Bureau, Akola.                     ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri A.S. Mardikar, Senior Counsel with Shri T.U. Tathod,
          Advocate for Appellant.
          Shri H.D. Dhumale, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            18    AUGUST, 2017.


 ORAL JUDGMENT


 1]               The   appellant   seeks   to   assail   judgment   dated

19.01.2002 in Special Case 3/1998 delivered by Special Judge,

Washim, by and under the appellant is convicted for offences

punishable under sections 7, 13(1)(d) read with section 13(2) of

the Prevention of Corruption Act, 1988 and is sentenced to suffer

rigorous imprisonment for two years and to pay fine of Rs.1000/-.

2] Heard Shri A.S. Mardikar, the learned Senior Counsel

for the appellant and Shri H.D. Dhumale, the learned Additional

Public Prosecutor for the respondent/State.

Prosecution Case

3] The complainant Sk. Jafar and one Narayan Somatkar

had a verbal alteration on 30.01.1998 and on 31.01.1998 both

lodged complaints against each other with Police Station Shirpur.

Appellant (herein referred to as "the accused"). Baliram, then

attached to the Police Station Shirpur as Police Head Constable

was enquiring into the said complaint. On 05.02.1998, accused

Baliram demanded illegal gratification of Rs.4000/- from the

complainant in the presence of Mukinda accused 2. The bribe

amount was scaled down to Rs.1000/- and accused Baliram

agreed to accept the said amount through accused Mukinda on

07.02.1998.

4] On 07.02.1998 the accused accepted Rs.450/-

through accused Mukinda as part payment and agreed to accept

the remaining amount of Rs.550/- through Mukinda (Mukinda the

Police Patil of village Ghata was arrayed as accused 2 in the trial,

was convicted along with the accused Baliram, had preferred

Criminal Appeal 88/2002 which has however, abated since

Mukinda the original accused 2 is dead).

5] On 03.03.1998 Mukinda demanded Rs.550/- from

the complainant on behalf of accused Baliram and agreed to

accept the same at Shirpur on 04.03.1998.

6] The complainant was unwilling to pay bribe of

Rs.550/- and approached the Anti Corruption Bureau (A.C.B.),

Akola and lodged oral report (Exh.26) against both Baliram and

Mukinda. The A.C.B. made elaborate preparation to trap the

accused, panchas were summoned, the complainant and the

panchas were given the demonstration of the phenolphthalein

powder and sodium carbonate solution test and were explained

the standard operating protocol. The trap party including the

panchas and the complainant proceeded to Shirpur by

government vehicle and reached at 12:30 p.m. or thereabout.

The government vehicle was stopped near Darga at Shirpur.

The complainant and the shadow panch Digamber proceeded

towards Police Station Shirpur and were followed by the raiding

party at some a distance.

7] The version of the prosecution is that the accused

were successfully trapped at 05:00 p.m. on 04.03.1988.

The tainted currency notes were recovered from accused Baliram.

The sodium carbonate test was positive. Further investigations

were done. The statutory sanction was obtained from the

authority competent to remove the accused Baliram and charge-

sheet against both Baliram and Mukinda was presented before the

Special Judge. The Special Judge framed charge at Exh.11, the

accused pleaded not guilty and claimed to be tried. The defence of

the accused, in support of which defence witnesses have been

examined, is that on the date of the incident Mukinda had repaid

to the accused a hand loan and that the accused Baliram did

accept the currency notes from his co-accused Mukinda, but then

not as illegal gratification, but as refund of the loan which he had

extended to Mukinda a few days prior to the incident. These are

are broad contours of the prosecution case.

Submission

8] The learned Senior Counsel would urge that the

prosecution has miserably failed to prove, much less beyond

reasonable doubt that the accused Baliram demanded illegal

gratification, which demand is sine quo non for constituting

offences punishable under the provisions of the Prevention of

Corruption Act, 1988 ('Act' for short). The learned Senior Counsel

would urge, that the acceptance of the currency notes by the

accused from Mukinda (accused 2) is not in dispute. However, the

currency notes were not accepted as illegal gratification and the

acceptance were as refund of the loan extended by Baliram to

Mukinda prior to the incident. The learned Senior Counsel would

urge arguendo, that even otherwise acceptance of the tainted

currency notes pales into insignificance if the prosecution is not in

a position to prove demand of illegal gratification beyond

reasonable doubt. The learned Senior Counsel would further urge

that although accused Baliram was under no burden in the eyes of

law to examine witnesses in defence, defence witnesses were

examined to probablize the defence that the acceptance of the

currency notes were towards refund of the hand loan. The learned

Senior Counsel would urge, relying on the dictum of the Hon'ble

Supreme Court in Dudh Nath Pandey vs. State of U.P. AIR 1981 SC

911, that defence witnesses are entitled to equal treatment with

the prosecution witnesses. The learned Senior Counsel invites my

attention to the observation of the Hon'ble Supreme Court that

the Court ought to overcome their traditional, instinctive disbelief

in defence witnesses. He would urge that the reasoning of the

learned Special Judge for not accepting the testimony of defence

witnesses is no reasoning in the eyes of law. He would urge, that

the only burden on the accused was to probablize the defence on

the touchstone of preponderance of probabilities.

9] The learned Senior Counsel would rely on the

judgments of the Hon'ble Supreme Court in Mukhtiar Singh (Since

Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702

and P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4

SCC 39 and B. Jayaraj vs. State of A.P. 2014 All SCR 1619 to

contend that irrefutable proof of decisive demand is a condition

precedent for bringing home charge under the provisions of the

Act and that neither possession nor recovery of currency notes

without proof of demand can constitute offence under the Act.

10] The learned Senior Counsel also invites my attention

to the judgment of the Hon'ble Supreme Court in Pannalal

Damodar Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121

and further contends that the evidence of the complainant and the

panchas must be closely scrutinized since they are partisan

witnesses in the sense that they are vitally interested in the

success of the trap. The learned counsel would urge that the

complainant is an accomplice in view of the introduction of

section 165-A in the Indian Penal Code and his testimony cannot

be on a better footing than that of an accomplice. He would

further urge that an accused under the Act cannot be treated

differently from an accused under any other penal law. An

accused under the Act is presumed to be innocent till the demand

and acceptance of illegal gratification is proved beyond reasonable

doubt. Reliance is placed on A. Subair vs. State of Kerla (2009)

SCC Vol.6 587.

11] The learned A.P.P. would submit that the prosecution

has conclusively established demand for illegal gratification.

The acceptance of the tainted currency notes is not in dispute and

would corroborate the evidence on demand. The learned A.P.P.

would submit that the learned Special Judge was justified in

discarding the testimonies of the defence witnesses. The learned

A.P.P. would urge that the judgment impugned does not suffer

from any error, factual or legal.

Consideration

12] P.W.1 states in the examination-in-chief that accused

2 Mukinda conveyed to him that accused Baliram had demanded

Rs.4000/- for not initiating any action pursuant to the complaint

lodged by Narayan. P.W.1 states that this demand conveyed

through Mukinda was four days after P.W.1 attended Police

Station Shirpur on 05.02.1988 and the accused Baliram recorded

his statement. P.W.1 states that he agreed to pay Rs.1000/- to

accused and that it was decided between P.W.1 and accused

Mukinda that the amount shall be paid to accused Baliram on

Saturday. He further states that he went to Police Station Shirpur

on Saturday, Police Patil Mukinda met P.W.1 in the premises of

Police Station at 04:00 p.m. and enquired whether the amount of

Rs.1000/- was brought. P.W.1 further states that he told Mukinda

that he was having only Rs.450/-. P.W.1 states that he paid

Rs.450/- to Mukinda. P.W.1 states that after a month accused

Mukinda again demanded the remaining amount of Rs.550/- and

P.W.1 told Mukinda that he would paid Rs.450/- on 04.03.1988

in Police Station Shirpur. P.W.1 states that he was not willing to

pay Rs.550/- and lodged complaint with A.C.B. The P.W.1

deposes that on 05.02.1998 accused Baliram personally did not

demand any amount from P.W.1. The P.W.1 was declared hostile

and cross-examined by the A.P.P. on behalf of the prosecution.

P.W.1 was subjected to extensive and searching

cross-examination. However, P.W.1 did not support the

prosecution on the role of accused Baliram and steadfastly

continued to assert that Baliram did not make any demand of

illegal gratification.

13] The shadow panch Digamber Bendre is examined as

P.W.2. He asserts that accused Mukinda met the complainant and

the shadow panch on the date of the trap, accused Mukinda asked

the complainant whether he had brought the money and then on

receiving an affirmative answer, accused Mukinda asked the

complainant to accompany him to the house of accused Baliram

for payment of the bribe amount. P.W.2 states that he and the

complainant went to the house of accused Baliram at 01:00 p.m.

The accused Baliram asked the complainant if he has brought the

amount, the complainant told Baliram that he had indeed,

brought the amount and requested Baliram not to arrest him after

receiving the amount. P.W.2 further states that the accused

Baliram told the complainant that he will not be arrested after

receiving the amount. The P.W.2 states that Baliram asked the

complainant and P.W.2 to wait at the hotel of one Pathan and that

he will come there after having meal. P.W.2 states that it was only

at 04:30 p.m. that along with the complainant went to the hotel.

Accused Baliram and Mukinda were having tea. The complainant

sat on the bench near Mukinda and P.W.2 shadow panch stood

near them. P.W.2 further deposes, that complainant also had tea,

the accused Baliram asked the complainant whether he has

brought the amount, the complainant told Baliram that yes he has

brought the amount and requested Baliram not to arrest him after

taking the amount and accused Baliram assured the complainant

that on receiving the amount he shall not arrest the complainant.

P.W.1 further states that accused Baliram asked the complainant

to pay the amount to accused Mukinda. The complainant handed

over the tainted currency notes to Mukinda, who accepted the

said amount and thereafter handed over the tainted currency

notes to accused Baliram. The amount was accepted by Baliram

and kept in his right side pocket of his shirt. The predetermined

signal was given and the raiding party rushed to the spot and

apprehended Baliram and Mukinda.

14] The defence witnesses: D.W.1 is Vilas Tajne who was

then attached to Police Station Shirpur as Writer to Baliram.

D.W.1-Vilas Tajne deposed that Mukinda was habituated to taking

hand loan from the staff of Police Station Shirpur and had taken

hand loan from accused Baliram many times. D.W.1 states that on

04.03.1988 he accompanied accused Baliram to village Karanji

and Malegaon for execution of non-bailable warrant and the

relevant station diary entry is at serial 16 dated 04.03.1988.

He deposes that he and Baliram left Police Station Shirpur at

09:00 a.m. and returned at 04:30 p.m. D.W.2 is Mansoor Ali Khan

who is the owner of the hotel within the premises of which the

accused were allegedly trapped. D.W.2 states that the complainant

had requested him for hand loan in February, 1998 for medical

treatment of the brother of the complainant one Sk. Ahmed.

Mukinda was present in the hotel at that time. P.W.2 deposes that

he expressed inability to extend the loan amount and told the

complainant to request Mukinda for hand loan. Mukinda

conveyed to the complainant that although he did not have any

money, he will arrange the loan from the Police staff. D.W.2 has

deposed that 2 to 3 weeks after the said conversation, both

Mukinda and the complainant came to the hotel, Mukinda asked

the complainant for refund of hand loan and the complainant

refunded the amount of hand loan. D.W.2 further deposes that

thereafter Baliram and Police Constable-Tajne came on

motorcycle, Baliram came inside the hotel and asked Mukinda for

refund of the hand loan and the money was handed over by

Mukinda to Baliram. The defence evidence has been brush aside

by the learned Sessions Judge, and I am afraid for reasons not

entirely satisfactory. In paragraph 34 of the judgment, the learned

Sessions Judge observes that since D.W.1-Vilas Tajne and D.W.2-

Mansoor Ali Khan are cited at prosecution witnesses, it can safely

be inferred that they are won over by accused Baliram. This is the

only reason given by the learned Special Judge to hold that the

defence evidence does not inspire confidence. The approach of the

learned Special Judge is the very approach which the Hon'ble

Apex Court has cautioned Courts not to adopt, i.e. not to view

defence evidence with instinctive disbelief.

15] The complainant has not supported the prosecution.

The two defence witnesses have more than probablized the

defence on the touchstone of preponderance of probabilities.

The version of the shadow panch is absolutely uncorroborated and

is not trust worthy on material aspects. It is difficult to believe that

accused Baliram would ask the complainant and the shadow

panch to bring the bribe amount to the hotel of Pathan and then,

the shadow panch and the complainant would go to the said hotel

only at 04:30 p.m. Firstly, according to the shadow panch at

01:00 p.m. or thereabout both he and the complainant went to

the residence of accused Baliram and told him that the

complainant had brought the money. If this is the version, it is

difficult to believe that Baliram did not accept the illegal

gratification then there and told P.W.1 and P.W.2 that he would

come to the hotel after having meals and the bribe amount should

be paid there and then, the version of the shadow panch that the

complainant and the shadow panch went to the hotel only at

04:30 p.m. is hardly confidence inspiring. I am not persuaded to

hold, on the basis of the uncorroborated and untrustworthy

evidence of the shadow panch, that the prosecution has proved

the demand much less proved beyond reasonable doubt. The

learned Sessions Judge has held that the accused have not

rebutted the presumption under section 20 of the Act. The learned

Sessions Judge fell in serious error in so holding. In the absence of

proof of demand of illegal gratification, there is no scope for the

statutory presumption under section 20 to come into play.

The view taken by the learned Sessions Judge militates against the

settled legal position. The prosecution evidence on both demand

and acceptance of illegal gratification, is not confidence inspiring

and in my opinion, to base the conviction on such evidence would

be most unsafe and hazardous.

16] In the light of the discussion and findings recorded

supra, the appeal is allowed. The judgment impugned delivered

by the Special Judge, Washim on 19.01.2002 in Sessions Case

3/1998 is set aside. The appellant is acquitted of the offences

punishable under sections 7, 13(1)(d) r/w 13(2) of the Prevention

of Corruption Act, 1988. His bail bond shall stand discharged.

Fine paid, if any, by the appellant shall be refunded to him.

The appeal is disposed of accordingly.

JUDGE NSN