Bombay High Court

Mohan S/O. Uttam Tayde And Another ... vs The State Of Maharashtra Thr. ... on 19 December, 2017

Bench: R. B. Deo

 apeal341.02.J.odt                         1




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

                     CRIMINAL APPEAL NO.341 OF 2002

          K.V.S. Reddy,
          Aged 56 years,
          Occupation: P.W.I Railway Vathar
          Railway Station, District Satara.                  ....... APPELLANT

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

 1]       Central Bureau of Investigation,
          Nagpur District, Nagpur.

 2]       State of Maharashtra.                              ....... RESPONDENTS

 -------------------------------------------------------------------------------------------
    Shri Anil Mardikar, Senior Advocate assisted by Mr. S.G. Joshi,
                               Advocate for Appellant.
          Mrs. Mugdha Chandurkar, APP for Respondent No.1.
 -------------------------------------------------------------------------------------------

 CORAM:  ROHIT B. DEO, J.

 DATE OF RESERVING THE JUDGMENT                                      :      28.08.2017
 DATE OF PRONOUNCING THE JUDGMENT                                    :      19.12.2017



 1]               Challenge   is   to   the   judgment   dated   17.06.2002   in

Special Case 9/1992 delivered by the Additional Sessions Judge

and Special Judge, Akola, by and under which, the appellant

(hereinafter referred to as "the accused") is convicted of offence

punishable under section 161 of the Indian Penal Code and under

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

Corruption Act, 1947 and is sentenced to suffer rigorous

imprisonment for six months and rigorous imprisonment for one

year for the said offences, respectively. The accused is further

sentenced to payment of fine of Rs.1000/- for each of the offences.

2] Heard Shri Anil Mardikar, the learned Senior Counsel

for the accused and Mrs. Mugdha Chandurkar, the learned

Additional Public Prosecutor for the respondent 1.

3] The genesis of the prosecution case is in the complaint

dated 14.12.1987 (Exh.76) lodged by Mohan Maniram Pawar, the

gist of which is as under:

Maniram Pawar (hereinafter referred to as the

complainant or P.W.1) states that he is working in South Central

Railway at Akot as a Gangman. The complainant states that by

letter dated 30.11.1987 he was informed of his selection as an

Electric Khalashi in the workshop of the Divisional Electrical

Engineer at Lalaguda and the letter further states that should he

failed to join duty till 15.12.1987 his name will be deleted from

the selection list. The complainant states that at 7 O'clock in the

morning on 10.12.1987 he asked the accused as to when he would

be relieved and was told by the accused that he would not be

relieved till the General Manager special inspection is done. The

next relevant statement in the complaint is that on 12.12.1987 the

complainant came to know that the Senior Divisional Engineer,

Hyderabad was to come to Akot, and the complainant intended to

submit an application to the said Officer for being relieved early.

However, the complainant felt that he should met the accused

again before submitting the application to the said Officer. The

complainant met the accused near the gate on the road and told

him to kindly relieve the complainant before 15.12.1987. The

complainant states that at that point in time, the accused

demanded Rs.200/-. The complainant states that he returned to

his house, prepared an application in duplicate addressed to the

Senior Divisional Engineer and waited at the Railway Station. At

about 06:30 to 07:00 in the evening, the Senior Divisional

Engineer arrived there by 51 down Khandwa to Purna train. The

S.D.E. disembarked from the train, the accused was present, the

complainant apprised the Sub-Divisional Engineer of the contents

of the application and then handed over the application to the said

Officer. The Senior Divisional Engineer returned the application to

the complainant and asked the accused to relieve the complainant

tomorrow (13.12.1987). The next material statement in the

complaint is that on 13.12.1987 that since the complainant was

not relieved till 13.12.1987, he was certain that the accused will

not relieve him till Rs.200/- is paid to the accused.

Pursuant to the said complaint dated 14.12.1987, a

trap was arranged, which was to be executed on 15.12.1987.

The panchas were summoned, the necessary instructions were

issued and the usual demonstrations given. However, the trap was

unsuccessful. The version of the complainant is that he inquired

with the accused about the relieving order and also informed the

accused that the money was brought as asked by the accused.

However, the accused told the complainant that he did not want

any money and further told the complainant that he would be

relieved only when he obtained a letter of the A.E.N.

4] The additional complaint lodged by the complainant

at 05:30 p.m. on 15.12.1987 alleges that the complainant came to

Akola from Akot by 581 down Ajmer Kachiguda passenger train

and disembarked at platform 5 between 03:00 to 03:30 p.m.

The complainant came to platform 4 where he met one Mehaboob

Allahuddin, Trolley-Man resident of Akot. Mehaboob conveyed to

the complainant the message of the accused to the effect that the

complainant need not go to the office of the Assistant Engineer

and that he will be relieved tomorrow. Mehaboob further

conveyed to the complainant that the accused has asked whether

he has brought the money. The complainant told Mehaboob that

the money was returned to the person from whom the hand loan

was obtained. The next material statement is that the complainant

and Mehaboob met the accused, the complainant asked the

accused as to what happened to the relieving order and the

accused told the complainant that if Rs.200/- is brought, the

complainant will be relieved in the morning tomorrow

(16.12.1987). The complainant further states that the accused was

adamant that unless the money is paid the relieving order will not

be issued and ultimately the complainant agreed to make the

payment in the office. The complainant also submitted an

application to the accused for grant of two days leave i.e. for

15.12.1987 and 16.12.1987 and was told by the accused that the

sanction order for the leave will be issued along with the relieving

order when the complainant meets the accused the next day with

the money. The additional complaint states that the entire

conversation occurred took place in the presence of Mehaboob

Trolley-Man.

5] On the basis of the additional statement again trap

was arranged on 16.12.1987. The complainant and the shadow

panch Ramesh Patkar went to the office of the accused, the

accused asked the complainant as to who was the shadow panch

and the complainant told the accused that he was the

brother-in-law of the complainant. The complainant asked the

accused about the relieving and told the accused that the money is

brought as per his say. The response of the accused was that the

complainant should go to his home and give the money to his

wife. The complainant and the shadow panch came out of the

office and sat on the bench. The complainant did not go to the

residence of the accused. The accused sent one Ashok Vitthal to

inquire if the money is handed over to his wife. The complainant

informed Ashok Vitthal that he did not give money to the wife of

the accused. Ashok Vitthal again returned and asked the

complainant as to why the money was not given and the

complainant told Ashok Vitthal that he would not pay money to a

woman. Ashok Vitthal then told the complainant to meet the

accused.

The complainant told the accused that today was the

last day and that he would not be allowed to join duty and that

the complainant has brought as asked. The accused extended his

left hand, the complainant gave the amount to the accused who

accepted the amount and kept in left shirt pocket. The accused

asked the complainant to go outside and told the complainant that

he would give a letter. The complainant came out, gave the

predetermined signal, then the complainant was called inside the

office of the accused, the complainant went inside the office of the

accused. The accused asked the complainant as to when he would

be leaving and the response of the complainant was that there was

no train, he would leave early in the morning. The accused told

the time-keeper the letter will be issued to the complainant in the

morning. By that time, the raiding party arrived and the accused

was apprehended.

On the basis of the complaint and the alleged demand

and the acceptance of the illegal gratification, First Information

Report was registered, investigation were undertaken and after

obtaining the statutory sanction the charge-sheet was submitted in

the Court of the Special Judge. The Special Judge framed charge

under section 161 of the Indian Penal Code and under section 5

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

1947, the accused pleaded not guilty and claimed to be tried. The

defence of the accused is of false implication. A specific defence is

taken in the statement recorded under section 313 of the Code of

Criminal Procedure that the amount of Rs.200/- was the refund of

hand-loan extended by the accused to the complainant.

6] Shri Anil Mardikar, the learned Senior Counsel for the

accused submits that the sine qua non for constituting offence

under the provisions of the Act, which is that the accused

demanded illegal gratification, is not proved beyond reasonable

doubt. The accused has more than probablized the defence that

the amount of Rs.200/- was the loan extended to the complainant

and not illegal gratification, is the next submission. The learned

Senior Counsel would submit that the testimony of the

complainant and the panch witnesses must be tested with caution

since they are partisan witnesses who are interested in the success

of the trap. He would further submit that the accused must be

presumed to be innocent till the guilt is conclusively established by

the proof that the accused demanded and accepted the illegal

gratification. The settled law is that an accused under the

provisions of the Act cannot be treated differently than accused

facing prosecution under any other penal provision, is the

submission. Reliance is placed in P. Satyanarayana Murthy vs.

District Inspector of Police, State of Andhra Pradesh and another

(2015) 10 SCC 152.

7] Per contra, the learned A.P.P. submits that the

prosecution has established demand of illegal gratification and

acceptance thereof, beyond any reasonable doubt. The learned

A.P.P. submits that the acceptance of Rs.200/-, is not seriously

challenged. The learned A.P.P. further submits that the defence

that the amount accepted was towards refund of the hand-loan is

not probable much less credible. The learned A.P.P. would submits

that the judgment impugned does not suffer from any infirmity.

8] Having given my anxious consideration to the

evidence on record and the submissions of the learned counsel for

the accused and the learned A.P.P, I find myself in agreement with

the submission that the prosecution has not established that the

accused demanded and accepted illegal gratification of Rs.200/-,

beyond reasonable doubt.

9] The case of the prosecution has too many shades of

grey for this Court to record a finding that the offence is

established beyond reasonable doubt. The complainant is

examined as P.W.1. The version of the complainant is that the

amount of Rs.200/- was demanded by the accused to issue the

relieving order. The complainant was working as a Gangman and

was selected as a Khalashi in Senior Divisional Electrical Engineer,

Lalaguda workshop. The complainant has deposed that on

10.12.1987he was informed by the accused that the complainant

will be relieved only after the departure of the General Manager

(Special) inspection train. He deposes that on 12.12.1987 he was

assumed by the Senior Divisional Engineer of Akot section that he

will be relieved on 13.12.1987. Th version of the complainant is

that the Senior Divisional Engineer of Akot section directed the

accused to relive the complainant on 13.12.1987.

The complainant has deposed that although he contacted the

Senior Divisional Engineer on 12.12.1987, prior to that the

accused demanded Rs.200/- as illegal gratification for relieving

the complainant. The complainant then deposed that he lodged

the report with the Anti Corruption Bureau, Akola (ACB) on

14.12.1987. The trap was arranged on 15.12.1987.

Concededly, even according to the complainant, the accused

refused to accept the money and indeed told the complainant that

he did want any money and that he would be relieved if a letter of

A.E.N. is obtained. The complainant then deposes that on

15.12.1987, he received a message through Mehaboob Allahuddin,

who was working as a Trolley-Man, that the complainant should

pay money to the accused. The complainant and the said

Mehaboob Allahuddin met the accused and the accused asked the

complainant whether the money is brought, is the deposition. The

complainant states that he assured the accused that the money

will be arranged till 02:00 p.m. on 16.12.1987. The complainant

then lodged a fresh report with the A.C.B.

On the basis of the second complaint, trap was

arranged on 16.12.1987. The complainant has deposed that he

and the shadow panch one Ramesh Patkar P.W.2 met the accused

in the office and the complainant asked the accused about the

relieving order and further told the accused that the money is

brought as per his say. The accused told the complainant to go to

his residence and give the money to his wife it is the version of the

complainant that he was not inclined to bribe amount to a woman.

The evidence of P.W.1 that the accused asked him to go his

residence and handed over bribe amount to his wife is difficult to

believe. The accused, who is a Senior Officer asking a Gangman to

go to his residence and hand over the bribe amount to his wife, is

not a natural conduct. The complainant P.W.1 has deposed that

since he did not go to the residence of the accused, the accused

sent one Ashok Vitthal to inquire with the complainant whether

the money is given to the wife of the accused. The complainant

P.W.1 has deposed that he told Ashok Vitthal that he did not give

the money to the wife of the accused and then Ashok Vitthal came

back with a message that the complainant should meet the

accused. Ashok Vitthal is however, not examined by the

prosecution.

10] According to the complainant P.W.1, he and the

shadow panch P.W.2 then went to the office of the accused, the

complainant told the accused that today was the last day (to be

relieved) and that he has brought as asked as said. The accused

put his left hand before the complainant, the complainant handed

over the tainted currency notes and accused accepted them by left

hand and kept the notes in the shirt pocket. The shadow panch

P.W.2 states that when he and P.W.1 Mohan entered the office of

the accused, the accused put his left hand before the complainant

and before P.W.1 who had handed over the tainted currency notes

to the accused. P.W.1 does not state that the accused told the

complainant that he has brought as asked.

11] It is trite law that a decisive demand must be proved

beyond reasonable doubt to bring home the charge under the

provisions of the Prevention of Corruption Act. It would be

apposite to note the observations of the Hon'ble Apex Court in

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

Punjab, 2017(7) Scale 702 and in 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."

12] I have given my anxious consideration to the evidence

on record, and as I have observed earlier, the prosecution case is

not confidence inspiring. According to P.W.1, the initial demand

was made on 12-12-1987. However, although P.W.1 met the

superior officer who was on inspection on the next day i.e. on 13-

12-1987, P.W.1 did not apprise him of the demand. Concededly,

an attempt was made by the complainant P.W.1 to pay the amount

to the accused on 15-12-1987 and it is the case of P.W.1 himself

that the accused refused to accept the amount. In this backdrop, it

is not probable that the accused would ask the complainant P.W.1

to pay the amount of Rs.200/- to the wife of the accused by

visiting the residence of the accused. As I have observed earlier, a