Krishna Narayan Gunthawar vs State Of Mah.Thr.P.S.O.Gondia
2017 Latest Caselaw 4568 Bom

                                                    1                   apeal49.60.01.odt

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

                        CRIMINAL APPEAL NO.49/2001

      Anilkumar Jaypalsingh Gaur, 
      aged about 37 years, Junior Clerk,
      In the office of Naib Tahsildar, 
      Gondia, Tq. Dist. Gondia.                              .....APPELLANT
                          ...V E R S U S...

      State of Maharashtra through 
      Police Station Officer, Gondia City, 
      Dist. Gondia.                                           ...RESPONDENT
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 Mr. Abdul Subhan, Advocate for appellant.  
 Mr. I. Damle, A.P.P. for respondent.  
 -------------------------------------------------------------------------------------------
                                            AND
                        CRIMINAL APPEAL NO.60/2001

      Krishna s/o Narayan Gunthawar, 
      aged about 45 years, r/o Gondia, 
      Tq. Dist. Gondia.                                      .....APPELLANT
                        ...V E R S U S...

      State of Maharashtra through 
      Police Station Officer, Gondia City, 
      Dist. Gondia.                                          ...RESPONDENT

 -------------------------------------------------------------------------------------------
 None for the appellant. 
 Mr. I. Damle, A.P.P. for respondent.  
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 17.07.2017

ORAL JUDGMENT

1. These two appeals are disposed of by this common

judgment since they arise out of the judgment and order of

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conviction passed by learned Additional Sessions Judge and

Special Judge, Gondia dated 08.02.2001 in Special Case

No.1/1996. The appellants are convicted under Section 12 of the

Prevention of Corruption Act. They are sentenced to suffer 6 six

months imprisonment and to pay a fine of Rs.1500/- each, in

default further rigorous imprisonment for one month.

2. Criminal Appeal No. 40/2001 is filed by original

accused no.2-Anilkumar whereas Criminal Appeal No.60/2001 is

filed by the original accused no.3-Krishna. A charge was framed

by the learned Special Judge in Special Case No.1/1996 against

accused no.1-Nisar Mohammad for an offence punishable under

Section 7 of the Prevention of Corruption Act. Also, he was

charged for an offence punishable under Section 13 (1) (d)

punishable under Section 13 (2) of the said Act.

The present appellants were charged for an offence

punishable under Section 12 of the Prevention of Corruption Act,

1988 and thus they were charged as the abettors.

3. Isulal Pardhi (PW4) is the complainant. On 31.05.1995,

he approached the Anti Corruption Bureau, Bhandara and lodged

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his report Exh.-53. As per the said report, his cousin Radhelal

Patle was arrested for an offence punishable under Section 376 of

the Indian Penal Code and he was in jail. For obtaining the bail,

Isualal required solvency certificate and therefore he obtained

7/12 extract from Patwari.

Exh.-53 further states that on 30.05.1995, at about 3

O'clock he went to Tahsil office, Gondia where the Naib Tahsildar

Nisar Mohammad informed him that for obtaining the solvency

certificate he has to move an application along with affidavit and

for that purpose, he demanded Rs.300/-.

The complaint further proceeds to state that on

31.05.1995 at 12.30 O'clock he again went to the office of Nisar

Mohammad and shown all the papers. That time the deceased

accused asked whether he has brought the amount. That time, the

complainant replied that he is having Rs.200/-. However, the

deceased accused stated that unless he brings Rs.300/-, the

solvency certificate will not be given. Therefore, he approached to

the Anti Corruption Bureau and lodged the complaint.

4. The officials of the Anti Corruption Bureau thereafter

decided to lay trap on Nisar Mohammad. Vasant Duapre (PW1)

and Kawadu Shastrakar (PW2), the Government employees were

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called in the office of the Anti Corruption Bureau and they were

asked to act as panch witness. On the next day, i.e. on 01.06.1995,

again the panch witnesses were called and in their presence, pre-

trap panchanama Exh.-39 was prepared. After preparation of the

panchanama, raiding party proceeded to the Tahsil office, Gondia.

Kawadu (PW2) was asked to remain in the company of

complainant Isulal (PW4). Vasant Dupare (PW1) was to remain

with the raiding party.

According to the prosecution, after reaching to the

office, Isulal (PW1) and Kawadu (PW2) went near the office of

Nisar Mohammad, the Naib Tahsildar. As per the prosecution

case, accused no.3-Krishna accepted the amount. After giving a

predetermined signal, the raiding party reached to the spot and

they arrested the accused no.3 from whose possession tainted

currency notes were recovered. Police Inspector Shaikh Sultan

(PW6) the Investigating Officer, thereafter lodged a complaint

with Police Station, Bhandara Exh.-68 on the basis of which the

offence was registered and after completion of the investigation,

charge-sheet was filed.

The prosecution examined in all 7 witnesses. During

the pendency of the trial itself, the main accused Nisar

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Mohammad had expired therefore his trial was abated.

5. I have heard Mr. Abdul Subhan, learned counsel for the

accused no.2-Anilkumar in Criminal Appeal No. 49/2001. Mr. V.

W. Meshram, learned counsel for the accused no.3-appellant in

Criminal Appeal No. 60/2011 is absent. His case was also argued

by Mr. Abdul Subhan, learned counsel. In both these appeals,

Mr.Indraneel Damle, A.P.P. appeared on behalf of the respondent-

State. With the assistance of both the counsel, I have gone

through the entire record and proceedings.

The contention of Mr. Abdul Subhan, learned counsel

for the appellant is that:

(i) Merely because the tainted currency notes were

found in possession and recovered from accused no.3,

without proof of demand, it does not constitute the offence

even under Section 13 (1) (d) read with Section 13 (2) of the

Act. For that he relied on the judgment in the case of M. R.

Purushotham vs. State of Karnataka; (2015) 3 SCC 247.

(ii) He also relied on the decision of this Court in

Jivandhar s/o Govindrao Katke vs. State of Maharashtra;

2015 ALL.MR (Cri.) 3589, to buttress his submission that the

that Kawadu (PW2) was not inside the room when the

6 apeal49.60.01.odt

deceased accused made a demand to the complainant Isulal

(PW4).

(iii) He also relied on the decision of the Hon'ble Apex

Court in Virendranath vs. State of Maharashtra; AIR 1996

SC 490 and Ulhas s/o Upasrao Salame vs. State of

Maharashtra; 2015 ALL MR (Cri) 2259, to point out that in

order to secure conviction under Section 12 of the Prevention

of Corruption Act, it is incumbent upon the prosecution that

the abettor must have some intention as that of the main

accused.

(iv) He also submitted that though in the verandha

where the bribe amount was accepted by accused no.3-

Krishna, near about 20 to 25 persons were present. However,

no independent person was examined by the prosecution as

witness.

He therefore prayed that both the appeals be allowed.

Per contra, the learned A.P.P. submits that the evidence

of Kawadu (PW2) is consistent and there is no reason to disbelieve

these persons. Further he submitted that the tainted notes were

found in possession of the accused no.3-Krishna for which he is

not offered any explanation. Therefore, he submits that the appeal

be dismissed.

7 apeal49.60.01.odt

6. In the case at hand, it is not the case of the prosecution

that either on 30.05.1995, 31.05.1995 or 01.06.1995 these

appellants made any demand to Isulal (PW4). It is also not the

prosecution case nor it is established on record that at the time of

demand on 30.05.1995 and 31.05.1995 or on 01.06.1995 these

appellants were present with the main accused Nisar Mohammad.

An affidavit Exh.-61 was filed on record by the

complainant himself by which he deposed that at no point of time

accused no.2-Anilkumar made any demand of the bribe amount.

Isulal (PW4) was declared hostile and was permitted to be cross-

examined by the learned A.P.P.

Though the complaint Exh.-53 speaks about the

demand on 30.05.1995, the evidence of Isulal (PW4) is totally

silent about any such demand on the said date. The FIR is not a

substantive piece of evidence. The said can be used only for

contradiction or corroboration of the evidence of the maker of the

said document. In the absence of the demand on 30.05.1995 in

the substantive evidence of the complainant, the court has to reach

to the conclusion that the prosecution has not proved the demand

on 30.05.1995.

8 apeal49.60.01.odt

7. Insofar as the demand on 31.05.1995 is concerned,

there is a material variance in respect of the amount of demand in

the complaint and from the witness box the complainant states

that the amount demanded was Rs.300/- and at the relevant time

he offered Rs.200/-. It is in the complaint that the main accused

Nisar Mohammad demanded the entire amount of Rs.300/-.

However, in his evidence, the complainant has stated that Nisar

Mohammad has demanded Rs.500/- not Rs.300/- and thus there is

material variance in respect of the amount of the bribe also.

As per the complaint, the complainant approached

Nisar Mohammad for obtaining solvency certificate since it was a

requirement for him for releasing his cousin who was in jail in

connection with an offence punishable under Section 376 of the

IPC. The record of this case shows that the Investigating Officer

has not taken any pains to collect the information in respect of the

said aspect even the crime number in which Radhelal whose name

is stated in the complaint as an accused is not brought on record.

Therefore, it becomes doubtful as to whether really the

complainant approached to Nisar Mohammad for demanding the

solvency certificate. In that behalf in the cross-examination of

Isulal (PW4), it is brought on record that one month prior to

9 apeal49.60.01.odt

31.05.1995, Nisar Mohammad has decided one mutation case

against the complainant and in favour of Nandlal, one of his

brothers. Therefore, possibility of nursing a grudge against Nisar

Mohammad is not completely ruled out.

8. As per the evidence of Isulal (PW4) and Kawadu

(PW2), when they reached to the office of Nisar Mohammad that

time he was not present there and he came thereafter. The

evidence of Kawadu (PW2) shows that after Nisar Mohammad sat

on his chair, the complainant entered in the room and that time he

was standing in door near curtain at a distance of 7 ft. His

evidence is totally silent that from the said place, he was able to

hear the conversation between him and Nisar Mohammad.

Insofar as demand from Nisar Mohammad, the

prosecution has also examined one independent witness

Rameshsingh Thakur (PW5). However, the said witness has

turned hostile and has not supported the prosecution case.

Therefore, it is difficult to accept the version of the prosecution

that there was a demand of Rs.300/- by Nisar Mohammad.

Even according to the prosecution case as could be seen

from the evidence of Kawadu (PW2) the panch witness, when the

complainant approached Nisar Mohammad, he made endorsement

10 apeal49.60.01.odt

on the application given by Isulal (PW4) and asked the amount to

be paid to accused no.2-Anilkumar. As observed in the early part

of the judgment, neither accused no.2-Anilkumar nor accused

no.3-Krishna were present near Nisar Mohammad. It is further the

evidence of Kawadu himself that when complainant submitted the

application to accused no.2-Anilkumar, he did not accept the

amount but he asked the amount to be paid to accused no.3-

Krishna. Even at this stage, Krishna was not present near him.

According to the prosecution, thereafter the

complainant went to the verandha where Krishna was standing

and he gave the tainted notes.

9. Thus, essentially these two accused persons were

charged as an abettors. The evidence in this case is somewhat

similar to the evidence in the decided case of Ulhas s/o Upasrao

Salame (supra). In paragraph 14 of the said judgment, it is

observed thus:

      "14.          Now,       if       we       take       a       look       at       the
      prosecution     evidence,     we would find that nowhere it has
      appeared either in the evidence of the complainant     P.W.4

Rajesh or evidence of P.W.1 Mahendra that accused No.2 was told by accused No.1 that the amount that he was directed to accept from the complainant was

11 apeal49.60.01.odt

towards the bribe demanded by accused No.1. There is also no other evidence brought on record by the prosecution from which an inference of sharing of same intention by accused No.2 as accused No.1 or same knowledge by accused No.2 as accused No.1 as regards the amount of Rs.250/-, being the bribe amount can be drawn. When a person is charged with an offence of abetting commission of offence by means of intentionally aiding the main accused, the burden is upon the prosecution to prove that same intention was nurtured by the abettor as the main culprit himself. That evidence is absolutely lacking in this case. It is quite possible that a person who is accused of abetment of commission of offence may accept something for and on behalf of the main accused innocently and in good faith without doubting that the money that he is accepting is really a bribe. In other words, the intention of the abettor may be different from the intention of the main culprit. Therefore, it is necessary for the prosecution to establish that the abettor too had shared the same intention as the main accused. That is not the case here and, therefore, I am of the view, accused No.2 deserves to be acquitted."

I am in full agreement with the aforesaid view

explained in the said case.

12 apeal49.60.01.odt

10. In view of the nature of evidence as discussed above, I

am of the view that the prosecution has utterly failed to bring

home the guilt of the appellants for an offence punishable under

Section 12 of the Prevention of Corruption Act. Hence, following

order is passed.

ORDER

(i) Criminal Appeal Nos.49/2001 and 60/2001 are allowed.

(ii) The judgment and order dated 08.02.2001 passed by Additional Sessions Judge, Gondia in Special Case No.1/1996 thereby convicting the appellants for an offence punishable under Section 12 of the Prevention of Corruption Act is quashed and set aside.

(iii) The appellants are acquitted of the offence punishable under Section 12 of the Prevention of Corruption Act.

        (iv)           Bail   Bonds   of   the   appellants   stand
        cancelled.
        (v)            Muddemal   property   be   dealt   with   as

directed by the trial Court after the appeal period is over.

JUDGE

kahale