Bombay High Court
State Of Maharashtra vs Rajendra S/O Dadaji Supare on 22 August, 2017
Bench: Swapna Joshi
1 jUDG.080817 apeal 166.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.166 of 2003
The State of Maharashtra
through Anti Corruption Bureau,
Yavatmal, District Yavatmal. .... Appellant.
-Versus-
Rajendra Dadaji Supare,
Aged about 46 years,
Occ.-Police Head Constable B.No.1034,
P.S. Arni, District Yavatmal. .... Respondent.
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Mrs. S.Z. Haider, Additional Public Prosecutor for appellant.
Mr. A.V. Bhide, Counsel for respondent.
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Coram : Mrs. Swapna Joshi, J.
Date of reserving judgment : 08-08-2017.
Date of pronouncement : 22-08-2017.
J U D G M E N T
The appellant state has filed the present appeal against the
respondent (hereinafter referred to as "the accused" for the sake of
brevity) who was working as a Head Constable attached to Arni Police
Station and was convicted by the learned Special Judge and Additional
Sessions Judge, Pusad, by its judgment and order dated 05-12-2002
delivered in Special Case No.6 of 1998, for the offence punishable under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption
2 jUDG.080817 apeal 166.03.odt
Act, 1988. Being aggrieved by the judgment of acquittal delivered by the
learned Special Judge and Additional Sessions Judge, Pusad, the
appellant-State has preferred the present appeal.
2] In brief the prosecution case is that;
Complainant Baliram Gunaji Jadhav was the resident of village
Sendursani. Mangilal Jadhav is the nephew of the complainant and
Devidas Chavhan is the son-in-law of the complainant. It is the case of
the prosecution that one Bandu Baliram Jadhav had pelted stones on the
house of one Hachadibai. At that time, Mangilal and Devidas caught
him. Therefore, Bandu had lodged the report against them for beating.
Hachadibai had lodged report against Bandu. However, the matter was
settled between them. The enquiry of the case lodged against Mangilal
and Devidas by Bandu was with accused. On 29-08-1993, complainant
Baliram went to the Police Station Arni in connection with the bail matter
of his nephew Dau, who was in the custody in concerned with the offence
punishable under Section 354 of the Indian Penal Code. The enquiry of
the said case was also with the accused. It is the case of the prosecution
that, the accused demanded an amount of Rs.7000/- so that the bail can
be granted to Dau. On the request of the complainant the accused
reduced the amount up to Rs. 3000/-. The complainant was not in a
position to pay the said amount, Dau was not released on bail. It is the
further case of the prosecution that, when the complainant had gone to
Arni in concerned with the case of Dau, accused asked him to produce
Mangilal and Devidas in the Police Station as he would prepare case
3 jUDG.080817 apeal 166.03.odt
against them and also will send them in jail like Dau. As per the case of
the prosecution the accused called the complainant to his house.
Therefore, the complainant along with Motiram and Kaniram went to the
house of the accused and at that time he demanded the amount of
Rs. 600/- for not beating and arresting Mangilal and Devidas. The
amount of Rs. 600/- was reduced to Rs. 500/-, as per the request of the
complainant. However, the accused said that if the said amount of
Rs. 500/- is not paid he would arrest Mangilal and Devidas. The
complainant then informed about the said fact to Mangilal and Devidas.
They told the complainant to agree for Rs. 500/- and given an amount of
Rs. 100/- to the complainant. The complainant then went to the house of
the accused. At that time the accused asked the complainant to pay the
amount of Rs. 100/- to him and remaining amount of Rs. 400/- be paid on
31-08-1993 at his house.
3] It is the case of the prosecution that the complainant along with
Mangilal and Devidas proceeded to the Anti Corruption Bureau, Yavatmal
and the report was lodged against the accused in Anti Corruption Bureau
office (Exhibit-30) on 30-08-1993.
4] After lodging of report, the Anti Corruption Bureau officers called
two panchas. Thereafter, a demonstration of Phenolphthalein powder
was given to the panchas and it was informed that if any substance
comes in contact with Phenolphthalein powder and Sodium Carbonate
it turns violet. The complainant brought the amount of Rs. 400/-. The
Phenolphthalein powder was applied to those currency notes. The said
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notes were kept in the banian of the complainant. Head Constable Jadhav
had taken big and small empty bottles for raid purpose. The primary
panchanama Exhibit-52 was drawn accordingly in the office.
5] Thereafter, PW-4 along with the panch, staff and complainant
proceeded to Arni. The complainant went to the house of the accused
along with Mangilal and the panch. However, the accused asked them to
come to the hotel. Therefore, the complainant along with panch and
accused went to the hotel. At that time, Mangilal was standing outside
the hotel. The trap was arranged surrounding the hotel. The accused had
placed an order for tea. After having tea, accused demanded the amount
of Rs. 600/- within three days. The complainant asked the accused not to
beat and arrest Mangilal and Devidas and handed over the amount of
Rs. 400/- to the accused. The accused accepted the said amount. He
counted the same and kept it in his Safari shirt's pocket. The complainant
then went out in Varandah and signalled the raiding party. Thereafter,
Head Constable Hirekar along with Police Constable Lavhale reached
there and caught hold both the hands of the accused. They gave their
introduction. That time the accused made hue and cry that he was
deceived.
6] Thereafter, the solution of sodium carbonate was prepared and the
hands of the accused were dipped in the sodium carbonate solution
separately. The colour of that solution changed to violet and it was
collected in two empty bottles separately and sealed. The solution was
taken charge by the Police. On currency notes, the drops of solution were
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sprinkled and their colour changed to violet where the drops were fallen.
Those currency notes were also taken charge. The shirt of the accused
was removed and the pocket was dipped in the solution, its colour also
changed to violet. The said solution was collected in the bottle and
sealed. The said bottles, shirt and currency notes were seized under
panchanama.
7] Even the complainant's fingers were dipped in the solution and it
turned violet. That solution was also collected and sealed by the Police.
After completing the formalities, the detailed panchanama Exhibit 54
was prepared. PW-4, thereafter, lodged complaint vide Exhibit-64. On
the basis of it offence was registered. The seized property was sent to
the Chemical Analyzer for analysis. The papers were sent to the
Superintendent of Police, Anti Corruption Bureau, Nagpur and
subsequently, it was sent to the Superintendent of Police, Yavatmal for
sanction and accordingly the sanction order for prosecution was passed
(Exhibit-61). Thereafter, charge-sheet came to be filed against the
accused in the Court. The trial was conducted by the learned Special
Judge and the learned Special Judge acquitted the accused as aforesaid.
8] Heard learned Additional Public Prosecutor for the State as well as
learned Counsel Mr. Bhide for the respondent. I have perused the entire
evidence on record led by the prosecution and the judgment passed by
the learned Special Judge. The learned Additional Public Prosecutor for
the State Mrs. Haider contended that the judgment delivered by the
learned Special Judge is illegal and perverse. In as much as the
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testimony of the witness has not been considered. According to learned
APP since the evidence with regard to the acceptance of the amount has
not been shattered in the cross examination, the presumption under
Section 20 of Prevention of Corruption Act is to be considered. The
learned APP canvassed that since the demand and acceptance of the
illegal gratification has been proved by the prosecution, the learned
Special Judge ought to have convicted the accused. Mr. Bhide, the
learned Counsel for the respondent contended that the learned Special
Judge has rightly considered the evidence on record and held that the
alleged demand of bribe was not proved by the prosecution, hence the
accused was rightly acquitted by the learned trial Judge. Mr. Bhide, the
learned Counsel for the respondent did not dispute that the amount of Rs.
400/- was found with the accused. However, he urged that the said
amount was not demanded and then accepted by the accused as a bribe,
but it was thrust in the hands of the accused. To substantiate his
contention, Mr. Bhide, placed reliance on the decision of the Hon'ble Apex
Court in the case of B. Jayaraj v State of Andhra Pradesh, reported in
(2014) 13 SCC 55 wherein it is held that the presumption under Section
20 of the Prevention of Corruption Act can be drawn only after demand for
an acceptance of illegal gratification is proved.
9] The defence has not seriously disputed the sanction accorded by
PW-4. The evidence of PW-4 clearly indicates that he has evaluated the
material placed before him and came to the conclusion that the case
warranted prosecution, therefore, he accorded sanction. So also, the
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learned Counsel Mr. Bhide for the respondent, did not seriously dispute
that it was a valid sanction.
10] In order to substantiate its case, the prosecution has relied upon
the testimony of complainant (PW-1) to prove the demand as well as upon
the acceptance of the illegal gratification. According to the PW-1, one
Bandu pelted stones on the house of Hachadibai. Mangilal and Devidas
both intervened. Hachadibai lodged report against Bandu. Bandu also
lodged report against Mangilal and Devidas for beating as they
intervened. The matter was compromised in between Hachadibai and
Bandu, as Bandu was her son-in-law. However, the report filed by Bandu
against Mangilal and Devidas was investigated by the accused. He asked
PW-1 to call Mangilal and Devidas and demanded money. Mangilal
asked PW-1 to accompany him therefore PW-1 accordingly went with him.
The accused initially demanded the amount of Rs. 7000/- for both the
cases. One of the cases out of two, was concerned with Dau and other
case was concerned with Mangilal and Devidas. In the case of Mangilal
accused demanded amount of Rs. 500/- and out of it Rs.100/- was paid to
the accused and remaining amount of Rs. 400/- was agreed to be given
on the day of 'Bakri Id' i.e on Tuesday. The accused assured PW-1 that, if
the amount is paid he will not beat Mangilal and Devidas.
11] The complainant (PW-1) took the amount of Rs. 500/- from Mangilal
and proceeded to Anti Corruption Bureau Office at Yavatmal. The
complaint was recorded by Anti Corruption Bureau Officer Mr. Sanjay
Deshpande (PW-4) at Exhibit-30. PW-4 stated that Phenolphthalein
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powder was applied to the currency notes and said amount was kept in
the upper side pocket of banian of complainant. PW-1 along with pancha
(PW-2) and Anti Corruption Bureau Officer Mr. Sanjay Deshpande (PW-4)
went to Arni. The PW-1 along with panch (PW-2) went to the house of the
accused. The accused asked PW-1 to come to the hotel. Accordingly
PW-1, panch (PW-2) and accused went to one hotel. At that time,
Mangilal was standing out side and the panch (PW-2) was with the PW-1.
At that time, accused asked the panch to give whatever amount was
available with him and to give the remaining amount of Rs. 300/-
thereafter. According to PW-1, he handed over an amount of Rs. 400/- to
the accused in hotel. The accused kept that amount in his shirt pocket.
The PW-1 then signalled the raiding party. Accordingly the officers of Anti
Corruption Bureau caught hold the accused. The hands of PW-1 were
dipped in the water and the water turned violet. That water was collected
in the bottle. Pocket of his banian was also washed and it also turned
violet. That water was also collected and sealed.
12] On careful scrutiny of PW-1, it is noticed that, with regard to the
demand of bribe amount, PW-1 deposed that, the accused initially
demanded amount of Rs. 7000/- for both the cases. However, the said
version is contradictory to the contents in the complaint (Exhibit-30).
PW-1 stated that in concern the case of Mangilal, accused demanded Rs.
500/- whereas, the complaint reveals that amount of Rs. 600/- was
demanded by the accused. Even the complainant failed to state the date
on which the first demand was made by the accused. It is also not clear
9 jUDG.080817 apeal 166.03.odt
as to when the amount of Rs.100/- was paid to the accused. There appear
to be discrepancies in the version of PW-1 when compared to his
complaint Exhibit-30. Admittedly, the complainant had grudge against the
accused as his relative did not get bail, hence he lodged the complaint
against the accused.
13] It is the case of the prosecution that the complainant went to the
Police Station in concerned with the bail of Dau and for that purpose the
accused demanded an amount of Rs. 7000/-. The amount was reduced to
Rs.3000/- on the request of the complainant. As the said amount of
Rs.3000/- was not given to the accused, the relative of complainant
namely Dau was sent to jail. The complainant went to Arni for requesting
the accused to release his relative Dau on bail. At that time the accused
asked him to produce Mangilal and Devidas before him. He stated that if
the amount is not paid he will send Mangilal and Devidas in jail like Dau.
The accused called the complainant to his house. When the complainant
went to the house of the accused the accused demanded the amount of
Rs.500/- for not beating Mangilal and Devidas. On his request, the
amount was reduced from Rs.600/- to Rs.500/-. The accused accepted
the amount of Rs.100/- and agreed to accept the remaining amount of
Rs. 400/- on 31-08-1993. In this context, it is worthy to note that PW-1
has not stated about the demands made by the accused at various places,
as mentioned in the complaint Exhibit-30. It is stated by PW-1 that, the
accused initially demanded Rs. 7000/- for both the cases and in the case
concerned with Mangilal accused demanded amount of Rs. 500/- out of
10 jUDG.080817 apeal 166.03.odt
which Rs. 100/- was given and Rs. 400/- was agreed to be given on
'Bakri Id' day i.e. on Tuesday and the accused said that if the amount is
paid he will not beat Mangilal. As discussed above, in the cross
examination the complainant was unable to state, as to how many days
before the demand of money the incident with regard to Bandu and
Hachadibai had taken place. During the cross examination the
complainant stated that, two months prior to the incident of Dau, Bandu
had lodged report against Mangilal and both the cases were enquired by
the accused. The complainant, however, denied that he stood as surety
for Dau and further stated that there was no occasion for him to visit the
Police Station before this incident. The complainant admitted that Dau
could not be released on bail, therefore, he got annoyed against the
accused and therefore report was lodged against the accused to teach
him a lesson. It appears from the testimony of complainant that as he
had grudge against the accused he had lodged a false complaint against
him.
14] As far as the first demand made by the accused to the complainant
is concerned, it is noticed that the testimony of PW-1 is not corroborated
with his complaint Exhibit-30. There is absolutely no iota of evidence on
record to corroborate the said version of the complainant. It is an admitted
fact that the complainant had grudge against the accused as his relative
Dau did not get bail, therefore he decided to lodge complaint against the
accused. With regard to the report of Bandu, the prosecution had filed
Non Cognizable (N.C.) case of Bandu with seizure panchanama
11 jUDG.080817 apeal 166.03.odt
Exhibit-63. Actually, it was the N.C. complaint registered by Police which
was lodged by Bandu. Admittedly, the Police Officers had no authority to
investigate the N.C. complaint and arrest the accused without prior
permission of the Magistrate. There is absolutely no evidence on record
to show that the permission to investigate the case was obtained by the
accused and the accused was investigating the case. There is no
evidence on record to show that the accused demanded the amount from
the complainant for not preparing the case against Mangilal and Devidas
and putting them in lock up. Thus, the demand of the accused for Rs.
100/- and handing over the said amount to him is not established beyond
reasonable doubt.
15] On the point of acceptance of the illegal gratification, the
prosecution has relied upon the testimony of Baliram (PW-1), Arun the
panch witness (PW-2) and Anti Corruption Bureau Officer Mr. Sanjay
Deshpande (PW-4). According to PW-1, he along with panch witness
and Anti Corruption Bureau Officer Mr. Sanjay Deshpande (PW-4)
proceeded to the house of the accused. He offered money to the
accused. However, the accused did not accept and ask him to come to
the hotel. Thereafter, the complainant, panch and accused went to the
hotel. Mangilal was standing outside the hotel. In the hotel, the accused
asked the panch to hand over whatever amount was with him and asked
him to give the remaining amount of Rs. 300/- afterwards. At that time,
the complainant handed over the amount of Rs. 400/- in the hotel. The
accused kept the amount in the pocket of his banian. Thereafter, he
12 jUDG.080817 apeal 166.03.odt
signalled the raiding party and the Anti Corruption Bureau Officers caught
hold the accused. The right hand of the accused was dipped into the
water and water turned violet. The pocket of Banyan was washed and its
colour was changed to violet. The water was collected in bottles. The
bottles were taken charge. It is the specific case of the accused that he
had not demanded the amount, but the complainant forcibly tried to thrust
the said amount in his pocket. The complainant has made an
improvement by stating that the accused asked the panch to give
whatever amount was with him and to give the remaining amount of
Rs. 300/- later on.
16] As regards the testimony of PW-2 panch witness is concerned, he
has stated about the trap. According to him, he along with complainant
went to the house of the accused along with Mangilal. The accused asked
the complainant whether he has brought the amount or not. The
complainant told him that he has brought the amount of Rs. 400/-. The
accused said that no work will be done in Rs. 400/- and he wanted
Rs. 1000/-. That time the complainant said to the accused that he does
not have that much money and he has brought the amount of Rs. 400/- by
taking loan and he would give the remaining amount of Rs. 600/- after
harvest. On this the accused said that he would not wait till harvest and
he wanted the amount within 2/3 days. Thereafter, they all went to the
hotel. The complainant took out the currency notes from his pocket and
handed over those currency notes to the accused. The accused counted
it and kept in his pocket. PW-2 deposed that then the complainant went
13 jUDG.080817 apeal 166.03.odt
outside and signalled the raiding party and when the raid was conducted
the accused made hue and cry that he was deceived. The solution was
prepared and the wash of the hands and clothes of the accused which
turned violet were collected in bottles. On currency notes, the drops of
solution were sprinkled and their colour changed to violet where the drops
were fallen. Those notes were also taken charge. The said bottles, shirt
and currency notes were seized under panchanama Exhibit-53 and
detailed panchanama was prepared at Exhibit-54. During the cross
examination PW-2 stated that when the tea was served in the hotel, at
that time the complainant had gone out for giving signal and in between
what talks had taken place he cannot say. So far as the testimony of
PW-4 is concerned, he has stated that the complainant lodged complaint
Exhibit-30. He gave demonstration regarding the Phenolphthalein powder
and Sodium Carbonate and recorded panchanama. On the point of trap
he stated that the complainant and panch went to the house of the
accused along with Mangilal. Thereafter, they all came to Heera Farsan
Hotel. A trap was arranged at about 1.00 pm. The complainant gave
signal and accordingly a trap was laid. The scrutiny of the witnesses
indicates that the testimony of complainant is not corroborated with the
evidence of PW-2 and PW-4. The complainant has not stated anything
about the talks which had taken place with the accused in his house.
PW-2 stated the talks which had taken place in the house. He stated
that there was a talk between the accused and the complainant in his
house. According to the complainant, the accused demanded the money
14 jUDG.080817 apeal 166.03.odt
to the panch in the hotel. The PW-2 has put forth some different story in
respect of the demand of illegal gratification. PW-4 has no personal
knowledge as to what talks were going on between the complainant,
Panch and the accused. It is thus not proved by the prosecution that the
first demand was made by the accused in his house and then
subsequently the second demand was made in the hotel.
17] As far as the case of acceptance of the illegal gratification is
concerned, no doubt, the amount was recovered from the accused.
However, it is the specific case of the accused that the complainant thrust
the amount forcibly in his pocket. As per the case put up by the accused,
as the complainant was annoyed with the accused, as his relative Dau
was sent to jail, in order to teach lesson to the accused, the complainant
has lodged a false complaint against him. No cogent and convincing
evidence brought on record to show that the accused has actually
demanded bribe amount. In this context, it is significant to note that,
simply finding of the amount with the accused, is not a conclusive proof
that the amount has been accepted by him towards illegal gratification, in
the absence of any demand of bribe amount. There is absolutely no
evidence on record to show that the accused demanded the money for
doing official act and accordingly the accused accepted it for the same.
18] As far as the demand is concerned, the learned counsel for the
appellant placed reliance on AIR 2010 SC 1589 in the case of Banarasi
Dass v. State of Haryana, wherein it is held by the Hon'ble Apex Court
that the proof of demand and acceptance of bribe is essential and in
15 jUDG.080817 apeal 166.03.odt
absence of proof of demand and acceptance of bribe by the appellant,
appellant is entitled to acquittal. It is also held that mere proof of recovery
of bribe amount from the appellant is not sufficient to prove the offence.
19] In the case of Ashok Kumar Wardhani v State of Maharashtra
reported in 2003 All MR (Cri) 88, the complainant was only witness
regarding alleged demand. It was held by this Court that the complainant
being an interested witness the Court must look for independent
corroboration.
20] The Hon'ble Apex Court in the case of Jaswant Singh v State of
Punjab, reported in AIR 1973 SC 707, has held as under :-
"As PW 1 is the complainant, his evidence will have to
be considered with great caution and it will not be
ordinarily safe to accept his interested testimony unless
there is material corroboration found in the other
evidence adduced by the prosecution."
21] In the case of B. Jayaraj v State of Andhra Pradesh, reported in
(2014) 13 SCC 55, the Hon'ble Apex Court has held as under :-
"7. 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. By way of
illustration reference may be made to the decision in
C.M. Sharma v. State of A.P., reported in
(2010) 15 SCC 1 and C.M. Girish Babu v. CBI, reported
in (2009) 3 SCC 779."
16 jUDG.080817 apeal 166.03.odt
22] The learned trial Judge has appreciated the evidence in right
perspective. There is no illegality or perversity noticed in the judgment
delivered by the learned Special Judge, Pusad. It is well settled principle
of law that in exercise of its appellate jurisdiction particularly in appeal
against acquittal, it is not open to this Court to substitute its own view with
a view taken by the lower Court, unless the view taken by the lower Court
is illegal, perverse or against the principle of law.
23] There are no sufficient grounds made out by the appellant/State to
interfere with the impugned judgment and order. In these circumstances,
the appeal deserves to be dismissed and accordingly it is dismissed.
JUDGE
Deshmukh
