Harishchandra Prabhakar ... vs The State Of Maharashtra
2017 Latest Caselaw 6469 Bom

                                             1


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


                     CRIMINAL APPEAL NO.351 OF 2000


 Harishchandra Prabhakar Borkar,
 aged about 54 years,
 Occupation Education Officer,
 (Madhyamik, Zilla Parishad)
 Nagpur                                                     ....... APPELLANT


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

         
 The State of Maharashtra,
 Through Anti-corruption Bureau,
 Police Station Ambazari, Nagpur                            ......RESPONDENT

 ------------------------------------------------------------------------------------------
 Mr. Mayank Sharma, holding for learned Senior Counsel Shri. 
 A.S.Jaiswal, for appellant.
 Mr. A.V. Palshikar, Addl. Public Prosecutor for respondent.
 ------------------------------------------------------------------------------------------

                                           CORAM:            ROHIT B. DEO, J. 

                                           DATE:                th
                                                             23    AUGUST, 2017.


 ORAL JUDGMENT

 1                The appellant is challenging the judgment and order

dated 24.11.2000, in Special Case 27 of 1988 delivered by the

Special Judge, Nagpur, by and under which, the appellant is

convicted of offence punishable under section 161 of the Indian

Penal Code and sentenced to suffer rigorous imprisonment for one

year and to pay a fine of Rs.500/- and is also convicted for

offences punishable under sections 5(1), 5(d) read with section

5(2) of the Prevention of Corruption Act, 1947 and is sentenced to

suffer rigorous imprisonment for 18 months and to pay a fine of

Rs. 500/-.

2 The prosecution case, shorn of unnecessary details, is

that one Rambhau Bankar, a teaching employee of Raje Raghuji

Nagar Madhayamik Vidhyalaya, Nagpur, approached the judicial

fora against the said management making certain grievances and

was successful in obtaining favourable orders from the School

Tribunal / this Court. The complainant was entitled to certain

monitory benefits by and under the judicial orders. A major

portion of the amount due and payable towards the arrears of

salary was received by the complainant. However, he did not

receive the pay for November and December, 1985 and January,

1986 nor did he receive the amount due towards the difference of

increase in salary from December 1983 to October 1985. The

complainant, according to the case of the prosecution, was entitled

to receive Rs. 10,500 and odd.

The report lodged with the Anti-corruption Bureau (for

short ACB) by the complainant on 16.1.1986 would reveal, that

the complainant allegedly contacted one Ali, the pay unit officer

and the accused who was the Education Officer, Zilla Parishad,

Nagpur on 15.1.1986. The accused allegedly demanded bribe of

Rs. 2,000/- and Ali allegedly demanded bribe of Rs. 500/- The

oral report dated 16.1.1986 further states that the complainant

met the accused in front of Ravi Bhavan on the morning of

16.1.1986. The accused asked the complainant to bring the bribe

amount to the residence of the accused in the evening. The

complainant further states in the oral report dated 16.1.1986 that

he met Ali in the afternoon and Ali decided to come to the

residential house of the complainant at 8.30 p.m. to collect the

bribe amount of Rs. 500/-. The oral report dated 16.1.1986

further states that the complainant submitted applications to both

the accused and the pay unit officer Ali. This oral report was

reduced into writing by the ACB officer Deshpande and a decision

was taken to lay a trap. Panchas were summoned, elaborate

preparations were made to lay the trap, necessary instructions

were issued to the complainant and the two panchas and the

standard protocol of demonstrating the sodium carbonate solution

test was followed. The ACB decided to trap the accused at the

residence of the accused and to thereafter trap Ali at the residence

of the complainant Bankar. However, according to the

prosecution case accused was not present at his residence at 7.00

p.m..when the complainant made inquiries with the wife of the

accused on telephone, and as the accused had not returned till

8.30 p.m. when the complainant called the second time, the trap

was postponed to 17.1.1986. The trap party assembled at the ACB

office on 17.1.1986 at 10.30 a.m., the complainant was again

asked to inquire with the wife of the accused about whereabouts

of the accused, and the complainant was informed that the

accused will return at 8.30 p.m.. The trap party proceeded to the

residence of Borkar. However, when the complainant and the

shadow panch went to the residence of Borkar / accused, the wife

of the accused informed that the accused is yet to return. The

complainant told the wife of the accused that he would be

returning and the complainant and shadow panch waited for the

accused. They again approached the residence of the accused on

noticing that the accused had come home. The door was opened

by the accused, complainant and the shadow panch entered sitting

room, the complainant greeted the accused and was asked to sit.

Accused asked the identity of the shadow panch and was told that

he was the maternal nephew of the complainant. The

complainant inquired with the accused about the pending salary

bill. The accused allegedly told the complainant that the note-

sheet is received, he has made his remark thereon and something

should be adjusted then the accused will release the salary bill.

The complainant took out the tainted currency notes and delivered

it to the accused, the accused accepted the currency notes and

allegedly kept the said notes below a diary on the table. The

complainant came out, gave the predetermined signal, the trap

party rushed inside the house of the accused and apprehended

him. The currency notes were recovered, sodium carbonate

solution was sprinkled on the currency notes and purple colour

dots appeared. Both the right and left hands of the accused were

subjected through the sodium carbonate test which was positive.

3 Offences punishable under section 161 of the Indian

Penal Code and 5(1), 5(d) read with section 5(2) of the

Prevention of Corruption Act, 1947 were registered, the statutory

sanction to prosecute the accused was obtained and upon

culmination of the investigation, charge-sheet was presented in the

Special Court.

4 The Special Judge framed charge vide exh. 10, the

accused pleaded not guilty and claimed to be tried. The

prosecution examined 8 witnesses to bring home the charge and

the defence of the accused, as is discernible from the statement

recorded under section 313 of Criminal Procedure Code is of total

denial.

5 Heard Shri. Mayank Sharma, for accused holding for

learned senior counsel Shri. A.S. Jaiswal and Shri. A.V. Palshikar,

learned Addl. Public Prosecutor for the State.

Shri. Mayank Sharma, learned counsel for accused contends

that the judgment of conviction is liable to be set aside on the

short ground that the prosecution has failed to establish that the

accused made a decisive and unambiguous demand for illegal

gratification.

He would contend that the condition precedent for

constituting an offence punishable under section 161 of Indian

Penal Code or under sections 5(1), 5(d) read with section 5(2) of

the Prevention of Corruption Act, 1947 (Act for short) is the proof

that the accused demanded illegal gratification. The recovery of

the tainted currency notes from the custody of the accused would

be of little, if any, significance if the prosecution is not in a

position to prove beyond reasonable doubt that the accused

demanded illegal gratification.

6 The learned counsel would contend that a person who

is accused of offence punishable under the Act, can not be treated

differently than an accused under other Penal provisions. The

learned counsel invites my attention to the following observations

of the Hon'be Supreme Court in Banarasi Dass Vs. State of

Haryana, (2010) 4 SCC 450 to contend that to bring home a

charge either under section 161 of the Indian Penal Code or

section 5(1)(d) read with section 5(2) of the Prevention of

Corruption Act, 1947, it is necessary for the prosecution to prove

that the accused demanded illegal gratification and voluntarily

accepted the said. It would be apposite to refer to the relevant

observations of the Hon'ble Supreme Court which reads thus:-

"19. The above findings recorded by the High Court show that the Court relied upon the statements of PW 10 and PW11. It is further noticed that recovery of currency notes, Exts. P-1 to P-4 from the shirt pocket of the accused examined in light of Exts. PC and PD, there was sufficient evidence to record the finding of guilt against the accused. The Court remained uninfluenced by the fact that the shadow witnesses had turned hostile, as it was the opinion of the Court that recovery witnesses fully satisfied the requisite ingredients. We must notice that the High Court has fallen in error insofar as it has drawn the inference of the demand and receipt of the illegal gratification from the fact that the money was recovered from the accused."

"20. It is a settled canon of criminal jurisprudence that the conviction of an accused can not be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. Applying these tests to the facts of the present case, PW 10 and PW 11 were neither the eyewitnesses to the demand nor to the acceptance of money by the accused from Smt. Sat 2Pal Kaur (PW 2)."

"25. Reliance on behalf of the appellant was placed upon the judgment of this Court in C.M. Girish Babu where in the facts of the case of Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under;(SCC pp.784 & 785-86)

"18. In Suraj Mal v. State (Delhi Admn.) this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove

payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

"20. A three-judge Bench in M. Narsinga Rao v. State of A.P., while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed:(SCC p. 700, para 24)

'...we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length.(Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra.) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (Madhukar case, SCC p. 577, para 12)

"12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word' gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." ' In fact, the the above principle is no way a derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of

bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan where similar view was taken.

Relying on the aforesaid observations, the learned counsel

would contend that an accused under the Act is presumed to be

innocent unless proved otherwise by establishing that he

demanded illegal gratification and received the same voluntarily.

The burden, according to the learned counsel, to prove that the

accused decisively demanded illegible gratification, is on the

prosecution and this burden does not shift even if it is proved that

the tainted currency notes were recovered from the accused.

7 Shri. Mayank Sharma, learned counsel for accused

contends that the statutory presumption under Section 4 of the Act

comes into play only if the demand is established beyond

reasonable doubt. The position of law that proof of demand

beyond reasonable doubt is sine quo none for constituting an

offence under the Act is well settled. My attention is invited to the

judgment of the Hon'ble Supreme Court in Mukhtiar Singh

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

Scale 702 and in particular to paragraphs 14, 15 and 25, which

read thus :

"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)

(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of

demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.

25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law

as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act."

8 I now proceed to analyze the evidence on record, on

the touchstone of the law propounded by the Hon'ble Supreme

Court, in order to appreciate if the prosecution has proved a

decisive demand for illegal gratification beyond reasonable doubt.

However, before I do so, one submission of the learned counsel for

the accused must be noted. The learned counsel for the accused

urged that both the complainant and the shadow panch are

partisan witnesses in the sense that both are interested in the

success of the trap. The complainant, is in fact an accomplice. My

attention is invited to the judgment of the Hon'ble Supreme Court

Panalal Damodar Rathi Vs. State of Maharashtra, 1980 SCC

(Cri.) 121, to contend that after the introduction of section 165-A

in the Indian Penal Code, a bribe giver is equally guilty of

abatement and his testimony can not be on a better footing than

the testimony of an accomplice. The learned counsel for accused

contends that the evidence of the complainant and the shadow

panch on the aspect of demand must be corroborated and in the

absence of corroboration it would be extremely hazardous to rely

on such testimony.

9 The complainant is examined as PW1. He states in

paragraph 2 of the examination in chief that Ali, the

Superintendent of Pay Unit, Zilla Parishad, Nagpur, was contacted

by PW1 multiple times for the pending salary. Ali asked the

complainant to contact Borkar, the accused and told the

complainant that after order by Borkar, the salary will be drawn.

PW1 states that he moved an application before the accused on

15.1.1986 (Exh.20). He then states that he met the accused again

on 16.1.1986 and the accused conveyed that since complainant -

PW1 was to receive Rs. 30,000/- the accused should get at least

Rs.2,000/-. PW1 states in paragraph 2 of the examination in chief

that he was not inclined to pay illegal gratification and therefore,

approached the ACB and lodged report (Exh. 21) on 16.1.1986.

10 The initial demand, according to PW1, was on

16.1.1986. This version of PW1 is absolutely uncorroborated.

However, de hors the absence of corroborative material, the

version of PW1 that the accused demanded money on 16.1.1986 is

wholly unreliable and inconsistent with the report Exh. 21 and the

later version of PW1 which has come on record during the cross

examination. In Exh. 21 - report complainant asserts that amount

of Rs.10,500/- is receivable and that he met both Ali and the

accused on 15.1.1986 and on the same day Ali demanded a bribe

of Rs.500/- and the accused demanded bribe of Rs.2,000/-. PW 1

states in report exh 21 that he met the accused on the morning of

16.1.1986 and was asked to bring a bribe amount to the residence

of the accused in the evening. In paragraph 2 of the examination

in chief, however, PW1 asserts that the initial demand was made

on 16.1.1986 and that accused told him that since PW1 was to

receive Rs.30,000/-, at least Rs.2000/- be paid to the accused. It

is difficult to belief that the accused / Education Officer would

make a reference of Rs. 30,000/- as the amount which PW1 would

receive. Even according to PW1 the amount receivable was not

more than 11,000/-. The statement in the report exh. 21 that the

initial demand was made on 15.1.1986 is inconsistent with

paragraph 2 of the examination in chief which records that the

initial demand was made on 16.1.1986. Interestingly, in

paragraph 2 of the examination in chief PW 1 later states that he

met Ali, the pay unit officer at noon time on 16.1.1986 and that

since Ali asked PW 1 to meet the accused, the PW1 went to meet

the accused. This version, that he met Ali at noon time and only

thereafter met the accused at the instance of Ali, can not be

reconciled with the earlier part of the testimony. This is

inconsistent with report Exh. 21 in which PW1 states that he met

the accused in the morning of 16.1.1986. Several omissions have

been brought on record during the cross-examination. Some are

minor and some could be attributed to the frailty and limitations

of human mind and memory, some omissions are significant and

may have partaken the character of contradiction had the defence

been alert and careful. The omissions are however, not proved

during the cross examination of the Investigating Officer.

However, inter se in inconsistent and contradictions in the

testimony of PW1 and the report exh. 21 persuade me to hold that

the uncorroborated testimony of PW 1 on the aspect of initial

demand is not reliable and confidence inspiring.

11 The next question which needs an answer is whether

the prosecution has proved the alleged demand on the date of the

trap beyond reasonable doubt. PW1 deposes thus in paragraph 4

of the examination in chief.

"Borkar has opened the door and I have saluted him and he has asked us to come in. myself and panch taken the seat on sofa. Borkar has asked me to who is person accompanying with me. I have introduced him

as my nephew. Due to night time I am afraid therefore I have brought him with me. I have asked him the progreess of my bill. He has said, he has informed me that he required Rs.2000/-. After payment of Rs. 2000/- he will immediately release my bill."

The shadow panch is examined as PW2 and his version in

paragraph 3 of the examination in chief is thus:

"Myself and Bankar went to the house of Borkar. Borkar has opened the door and we were asked to sit. Bankar has asked to Borkar what happened about his bill. Bankar has opened the talk of bill. Borkar said that Bankar that his case was put up before him and he has passed some remark thereon. Borkar said that some thing should be adjusted and he will release his pay."

In the cross examination, the defence has brought on record

an omission which reads thus:

"It is not mentioned in my statement that Borkar has demanded the money."

However, this omission is not put to the Investigating

Officer and is not proved. It is axiomatic that the testimony of

PW1 with PW2 is inconsistent as regards the words attributed to

the accused before the alleged currency notes were offered and

allegedly accepted. The dictum of the Hon'bel Supreme Court is

eloquent. The words attributed must decisively prove that illegal

gratification was demanded.

12 It is true, as is argued by the learned Addl. Public

Prosecutor, that a bribe or illegal gratification may be demanded

and accepted even if the work or favour is not within the province

of the government servant. However, if there is no evidence to

suggest that the accused was in a position to oblige the

complainant, then the absence of an occasion much less motive to

demand illegal gratification, would certainly be a circumstance

which merits consideration while appreciating the prosecution

version and evidence on record. The Investigating Officer who is

examined as PW 8 fairly admits in paragraph 7 of the cross-

examination that during investigation it did come to his

knowledge that the complainant was to receive the amount from

the pay officer (Ali), who was separately trapped on 17.1.1986

(before the trap which led to the prosecution of the accused)

13 Manohar Kharche, then senior clerk at the Zilla

Parishad Office, Nagpur who is examined as PW7 states:

"My office and office of Pay Unit are different. The work of drawing the pay is doen by Pay unit and not by our office."

A holistic view of the evidence on record does not exclude

the possibility that the grievance of the complainant was really

directed at Ali the pay unit officer and the accused became a

casualty in the inter se dispute between complainant and Ali. The

prosecution has failed to prove that the accused Education Officer

was under a statutory duty or was directed by a superior officer to

take a particular action in connection with the amount of Rs.

11,000/- and odd which according to the complainant was

receivable or that it was even otherwise the administrative duty or

responsibility of the accused to process and sanction the salary bill

in question. The learned Sessions Judge has referred to certain

correspondence inter-alia letter dated 4.2.1986 addressed by the

Director of Education to Education Officer. However, this letter

dated 4.2.1986 is issued after the trap. Even otherwise, said letter

dated 4.2.1986 was not proved in accordance with law, was not

exhibited and was marked as 'Article-D' only for identification.

Such inadmissible evidence ought not to have been considered by

the learned Special Judge.

14 The learned Addl. Public Prosecutor did make a

serious effort to persuade me to hold that the prosecution has

proved the offence beyond reasonable doubt. The learned Addl.

Public Prosecutor would urge, that the words attributed to the

accused by the complainant-PW2 prove a decisive demand for

illegal gratification. However, the words attributed by PW1 are

absolutely different and inconsistent with the version of the

shadow panch. The evidence on the aspect of demand, in my

opinion, is not free from doubt. The prosecution version has too

many gray shades for this Court to hold that the offence is proved

beyond reasonable doubt. The persuasive skill of the learned

Addl. Public Prosecutor, at best, sows a seed of suspicion in the

judicial mind. Suspicion, however, strong, can not be the basis of

conviction.

I, therefore, set aside the judgment and order impugned

dated 24.11.2000, in Special Case 27 of 1988, delivered by the

Special Judge, Nagpur and acquit the accused of the offence

punishable under section 161 of the Indian Penal Code and

offences punishable under sections 5(1), 5(d) read with section

5(2) of the Prevention of Corruption Act.

Appeal is allowed.

Bail bond stands discharged.

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

Appeal disposed of accordingly.

JUDGE

Belkhede