Bombay High Court

Bhaurao Shankarrao Gaidhane vs State Of Mah.Thr.Dy.S.P.Anti ... on 8 December, 2017

Bench: R. B. Deo

 apeal667.04.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.667 OF 2004


 1)       Bhaurao s/o Shankarrao Gaidhane,
          Aged about 45 years, Occ: Service,
          as Police Constable, R/o Nagpur.                   ....... APPELLANT


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


          State of Maharashtra,
          through Dy. S.P. Anti Corruption
          Bureau, Nagpur.                                    ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri S.K. Mishra, Senior Advocate for Appellant.
          Shri Ashish Kadukar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------


          CORAM:            ROHIT B. DEO, J.

          DATE:               th
                            8    DECEMBER, 2017.
                                                


 ORAL JUDGMENT



 1]               The appellant is aggrieved by the judgment and order

dated 28.09.2004 passed by the Judge, Special Court, Nagpur in

Sessions Trial 17/1995, by and under which, the

appellant-accused is convicted of offence punishable under section

7 of the Prevention of Corruption Act, 1988 ('Act' for short) and is

sentenced to suffer simple imprisonment for one year and to

payment of fine of Rs.500/- and is further convicted of offence

punishable under section 13 (1)(d) read with section 13 (2) of the

Act and is sentenced to suffer simple imprisonment for three years

and to payment of fine of Rs.1500/-.

2] Heard Shri S.K. Mishra the learned senior counsel for

the appellant and Shri Ashish Kadukar, the learned Additional

Public Prosecutor for the respondent/State.

3] The submission of the learned senior counsel is that

the amount of Rs.1000/- which is recovered from the accused was

not accepted as illegal gratification. The defence of the accused

that the complainant owed Rs.3000/- to Mukund Pardhi the

brother-in-law of the accused (D.W.1) and the amount of

Rs.1000/- which was accepted from the complainant was accepted

not as illegal gratification but as partial refund of the said loan, is

more than probabilized on the touchstone of preponderance of

probability, is the submission.

4] Per contra, Shri Kadukar, the learned A.P.P. submits

that the conviction is unexceptionable in law and the prosecution

has proved both demand and acceptance of illegal gratification.

5] The gist of the complaint lodged by Gangadhar Wat

on 05.04.1995 with the Anti Corruption Bureau, Nagpur (ACB) is

that he is working as attorney (Clerk) to the Advocate

Shri Ghodmare and was previously indulging in speculation

(satta). The complainant however, wound up the business of

speculation since two months prior to the complaint. The accused,

summoned the complainant through one Vasanta Zade

on 03.04.1995. The complainant met the accused at the office of

the Crime Branch at 05:00 p.m. on 03.04.1995 and was asked to

pay Rs.3000/- as gratification for not initiating action against the

complainant as regards the speculation business. The complainant

protested and told the accused since he had wound up the said

business. The complaint further states that between 07:00 and

07:30 a.m. on 05.04.1995 the accused visited the house of the

complainant and again demanded Rs.3000/- (three thousand) and

threatened that should the amount not be paid, the complainant

would be arrested. The accused told the complainant that he

would visit the house of the complainant after 06:00 p.m. to

receive Rs.1000/- and that the complainant should arrange the

balance Rs.2000/- within 2 to 3 days. The complainant was not

willing to pay the said amount of Rs.1000/- to the accused and

lodged the report.

6] The A.C.B. summoned the panchas, the usual

demonstration inter alia that of the phenolphthalein powder and

sodium carbonate solution test were given and the standard

protocol explained to the panchas and the complainant. The case

of the prosecution is that the accused visited the house of the

complainant in the evening of 05.04.1995, demanded and

accepted the illegal gratification and was apprehended by the

A.C.B, which agency completed the investigation and submitted

the charge-sheet before the Special Court. The learned Judge of

the Special Court framed charge vide Exh.3, the accused abjured

guilt and claimed to be tried in accordance with law. The trend

and tenor of the cross-examination, the statement recorded under

section 313 of the Code of Criminal Procedure, 1973 and the

evidence of the solitary defence witness would reveal that neither

the demand of Rs.1000/- nor the acceptance thereof is in serious

dispute. The bone of contention is whether the amount was

demanded by the accused as illegal gratification or the accused

has probabilized the defence that the amount was accepted

believing that the complainant was partially returning the loan

amount which a relative of the accused Mukund Pardhi (D.W.1)

had extended to the complainant.

7] At this stage, it would be apposite to note that it is

revealed from panchnama 2 (Exh.17) that the accused was asked

to explain the acceptance of the amount of Rs.1000/- and the

accused gave a written memorandum which was signed by both

the panchas and the Investigating Officer. The relevant portion of

panchnama 2 reads thus :-

When Shri Varma asked Shri Gaidhane the explanation about bribe amount of Rs. 1000/- accepted by him, Shri Gaidhane gave his written memorandum. We both the Panchas and Shri Varma put our signatures thereon.

In the cross-examination of the Investigating Officer

Shri Santoshkumar Varma (P.W.7) it is elicited that at the time of

the trap the accused did state that the amount received was

towards repayment of loan. The relevant portion reads thus :-

At the time of trap accused was saying that he had given amount and that amount was repaid to him. Therefore, I had recorded statement of his relatives.

The fact that the accused did give an immediate

explanation when apprehended by the A.C.B. is proved beyond

any doubt. Pertinently, the written explanation of the accused,

which is referred to in the panchnama 2 is not produced along

with the charge-sheet. The Investigating Officer

Shri Santoshkumar Varma (P.W.7) while admitting that such an

explanation was indeed offered by the accused and that he did

record the statements of the relatives of the accused, did not

produce on record the statements nor did the I.O. offer any

explanation for not filing on record the written explanation

offered by the accused at the time of the trap. The fairness and

credibility of the investigation is seriously suspect.

8] The evidence of the defence witness Shri Mukund

Pardhi apart, Shri Vasanta Zade who is examined as P.W.6

corroborates the defence that the complainant owed some amount

to the relative of the accused and what is admitted in the

cross-examination of P.W.6 Vasanta Zade is thus :-

When I meet Gangadhar Wat at 3 to 3.30 p.m. he told me that amount of husband of sister of the accused wad due with him. Gangadhar was saying that he would repay that amount gradually.

9] It is trite law, that the accused need not establish the

defence beyond reasonable doubt. It would suffice, if the defence

is probabilized on the touchstone of preponderance of

probabilities. The limited burden on the accused is to create doubt

as regards the veracity of the prosecution case. The benefit of any

doubt due to an alternate hypothesis incompatible with the guilt of

the accused must necessarily go to the accused.

10] Shri S.K. Mishra, the learned senior counsel would

submit, relying on the enunciation of law by the Apex Court in

(i) Mukhtiar Singh (Since Deceased) through his L.R. vs. State of

Punjab, 2017(7) Scale 702 (ii) P. Satyanarayana Murthy vs. State of

Andhra Pradesh (1992) 4 SCC 39 (iii) B. Jayaraj vs. State of A.P.

2014 All SCR 1619 (iv) and N. Sunkanna vs. State of Andhra

Pradesh 2015 ALL MR (Cri) 4551 (S.C.), that proof beyond

reasonable doubt of a decisive demand of illegal gratification is the

sine qua non ingredient to constitute an offence under the

provisions of the Act. In the absence of proof of a decisive demand,

the acceptance or recovery of tainted currency notes is of little

significance or relevance, is the submission.

11] Shri S.K. Mishra, the learned senior counsel would

further submit that the evidence of the complainant must be

subjected to close scrutiny since after introduction of section

165-A on the statute book the complainant is equally guilty as a

bribe giver and the evidence of the complainant is not on a better

footing than that of an accomplice. Reliance is placed, amongst

others, on the judgment of the Apex Court in Pannalal Damodar

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

Shri S.K. Mishra, the learned senior counsel would

then submit that having held the testimony of the shadow panch

who is examined as P.W.2 inadmissible, the sole testimony of the

complainant could not have been made the basis of conviction.

12] Shri S.K. Mishra, the learned senior counsel submit

that the accused must be presumed innocent till the prosecution

establishes the guilt by proving the acceptance and demand of

illegal gratification. The presumption of innocence available to an

accused facing prosecution under any other penal law is available

in equal measure to an accused facing prosecution under the

provisions of the Act, is the submission. My attention is invited to

the following observations of the Apex Court in A. Subair vs. State

of Kerala reported in (2009) 6 SCC 587.

28. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.

13] The learned Sessions Judge has held the evidence of

the shadow panch P.W.2 inadmissible inter alia relying on the

judgments in Zahiruddin v. Emperor, reported in AIR (34) 1947

Privy Council 75, Kanbi Baghji Savji v. State of Gujarat, reported in

AIR 1968 Gujarat 11 and Ramvilas and others v. State of Madhya

Pradesh, reported in 1985 Cri.L.J. Page No.1773. The learned

Sessions Judge was pleased to accept the contention of the

defence that since the witness read the previous statement

recorded by the A.C.B. before entering the court room, the

evidence is inadmissible in view of the prohibition engrafted in

section 162 of the Code of Criminal Procedure. The learned senior

counsel has invited my attention to a judgment of a learned Single

Judge of this court in Sharad s/o Namdeorao Shirbhate Vs. State of

Maharashtra reported in 2007 ALL MR (Cri) 352 and in particular

to the following observations :-

10. The learned counsel for the appellant further submitted that in this case, the evidence of complainant P.W.1 Pundlik in respect of demand and acceptance of the bribe on 14-07-1987 did not receive any trustworthy corroboration from the evidence of P.W.2 Prabhakar, the panch witness. In para 11 of his deposition, the said Prabhakar admitted that he was attending the Court for giving evidence since 01-07-1996. His evidence was recorded on 04-07-1996. He admitted that the police had read over his statement to him and also told him to tender evidence as per his statement. He admitted that he was giving evidence as per his police statement. In view of this, the learned counsel for the appellant submitted that since the witness was not stating the facts from his memory, the entire evidence of this witness Prabhakar would be inadequate to provide any corroboration to that of P.W.1 Pundlik. The learned Additional Public

Prosecutor submitted that since the incident was nine years' old, there was nothing wrong in the witness refreshing his memory by reading his statement before deposing about the incident giving minute details. There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should be falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not be permissible for such a witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of P.W.2 Prabhakar taken by the learned counsel for the appellant is valid.

The question of admissibility of the evidence of P.W.2

apart, even if the evidence is considered, a decisive demand of

illegal gratification is not spelt out. I have given anxious

consideration to the evidence of both the complainant P.W.1 and

the shadow panch P.W.2, and having done so, I am inclined to

agree with the submission of the learned senior counsel Shri S.K.

Mishra that a decisive demand of illegal gratification is not

established. The said witnesses indeed speak of demand, but then

even the defence is not disputing that the accused did demand the

amount. What the prosecution has miserably failed to establish is

that the accused demanded illegal gratification.

14] I have no hesitation in holding that the prosecution