Madhukar S/O Gangaramji Paturde vs State Of Maharashtra
2017 Latest Caselaw 4910 Bom

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

                        CRIMINAL APPEAL NO.65/2003

      Madhukar s/o Gangaramji Paturde,
      aged 52 years, Occ. PSI under suspension,
      r/o Mangrulpir, Dist. Washim.          .....APPELLANT

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

      State of Maharashtra through 
      Anti Corruption Bureau, 
      Dist. Akola.                                            ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. Sumit Joshi, Advocate for appellant.  
 Mr. R. S. Nayak, A.P.P. for respondent-State
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 24.07.2017

ORAL JUDGMENT

1. This appeal takes exception to the judgment and order

of conviction passed by the learned Judge of the Special Court at

Washim dated 13.01.2003 in Special Case No.2/1998. By the

impugned order of conviction, the appellant is convicted for the

offence punishable under Section 7, 13 (1) (d) read with Section

13 (2) of the Prevention of Corruption Act and directed to suffer

rigorous imprisonment of one year and to pay a fine of Rs.2000/-

on both counts, in default to suffer further simple imprisonment

for three months.

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 2.             The prosecution case is as under:-

                Dadarao   Kurhade   is   the   complainant.     He   lodged

complaint Exh.-38 with Anti Corruption Bureau, Akola on

27.01.1997.

As per the complaint, Dadarao resides at Pangri

(Mahadeo) falling under the jurisdiction of Police Station, Pinjar,

Tq. Mangrul Pir, Dist. Akola. Dadarao owns 3 Acres agricultural

land. Apart from his 2 brothers, he is having 2 sisters. His

brothers reside separately.

His elder sister Sarubai was married with one Maroti

Shinde of village Mardi. Maroti Shinde left the village Mardi and

came at Pangri. Maroti and Sarubai own 4 Acres land at Pangri.

The said couple used to visit Mumbai intermittently for labour

works and used to come back to the village Pangri.

The complaint further states that on 30.09.1997 i.e. 13

days prior to Dashera festival, Sarubai and her husband Maroti

came to Pangri from Mumbai. On the next day, they both had

been to Mangrul Pir to meet their daughter Mangala w/o Sukhdeo

Fulare. From there, they both had gone to market at Selu Bazar.

That time, the complainant was also at Selu Bazar for marketing.

 There   he   had   a   meeting   with   Sarubai   and   her   husband.     After





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marketing, the complainant returned to the village. At 6 O'clock

in the evening, his sister Sarubai returned alone to the village.

She asked the complainant as to whether her husband had

returned. Upon that the complainant replied that her husband

had not returned. At that time, Sarubai disclosed that her

husband had consumed liquor and she could not notice as to

whether he had gone from the market. Therefore they made wait

for him but in vain. On the next day i.e. on 02.09.1997 at 2.30 in

the afternoon, a person sent by Police Patil of Pedgaon informed

that a dead body is found floating in a well situated in a field at

Pedgaon Shivar. He inquired as to whether someone is missing

from the village. Since the complainant's brother in law has not

returned home from Shelu Bazar, the complainant and his sister

Sarubai along with the said person went to the well situated in

Pedgaon. He identified the body which was floating in the well as

that of his brother in law Maroti. This fact was disclosed to

Madhu, Police Patil of Pedgaon. Thereafter, the complainant along

with Police Patil went to Police Chowki at Shelu Bazar. The Police

Patil lodged a report. Thereafter the complainant along with

Police Constable attached to Police Chowki went to Police Station,

Mangrul Pir. There they met Police Station Incharge, Madhukar

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Paturde (appellant). He made inquiries with the complainant. As

per his direction, tractor was arranged on the next day and body

was taken after execution of the panchanama. After post mortem,

last rites were performed on the dead body at Mangrul Pir.

The complaint further states that while returning after

last rites, the Polie chowki Incharge met the complainant at the

square and told him that he is residing there and if needed, he

should contact him there only. Thereafter the Head Constable

attached Police Chowki, Selu Bazar recorded his statement as well

as the statements of his relatives.

The complaint further states that 8 days prior to the

lodging of the complaint with Anti Corruption Bureau, one Motilal

Wadar informed the complainant that he was called by the

appellant at Mangrul Pir. Hence, on the same day the complainant

went to Police Station. The appellant was sitting there in the

Police Station and he asked him to bring his sister for recording of

her statement. He told that her statement was already recorded

and that she had left for Mumbai. On that the appellant took the

appellant aside and asked him to go to Mumbai and bring her back

and come with money. The complaint further asserts that the

appellant disclosed that he was suspecting that the complainant

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and his sister has murdered his brother in law. He therefore asked

for money otherwise he would file case against them. On that, the

complainant requested that he would come on Saturday with his

sister and arrange some money. Then he went to Mumbai and

came back along with his sister and narrated her the facts as

stated by the appellant and also told that the appellant was

demanding money for not filing the case. On 27th in the morning,

he along with his sister Sarubai came back to Akola from Mumbai

by Vidarbha Express. At about 7.30 a.m. he reached to the room

of the appellant and gave a call from outside. The appellant came

out and then he asked the complainant to come inside by leaving

his sister outside. The complainant went inside the room and he

asked his sister to wait outside. The appellant asked as to why he

got late. On that the complainant replied that as he could not

make the arrangement of money, he did not come. He inquired as

to whether he had brought the money. On that the complainant

replied that he could not make arrangement of money. On that

the appellant stated that if the complainant fails to give money, a

case of murder would be lodged against the complainant and his

sister. The complainant requested the appellant not to file a case

against them. As per the complainant, the appellant asked as to

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how much money would be required to be paid. On that, the

appellant demanded Rs.10,000/-. The complainant shown his

inability to make payment of such a huge amount and requested

for reduction in the same. However, the appellant did not agree

for reduction. Therefore, the complainant informed him that he

will give Rs.2,000/- by selling cotton and would give remaining

amount of Rs.8,000/- within 15 days. The appellant agreed for it.

With these allegations, the complaint was lodged.

3. Subhash Dhok (PW3) at the relevant time was serving

as Police Inspector in Anti Corruption Bureau, Akola. He reduced

into writing the oral report lodged by Dadarao (PW1). Subhash

Dhok obtained his signature. He also asked Dadarao to visit the

Anti Corruption Bureau's office on 28.11.1997 at 7.00 a.m.

Subhash Dhok (PW3) decided to lay a trap on the appellant. He

gave letter to the Executive Engineer, Minor Irrigation

Department, Akola and requested for sending 2 employees from

his department to the Anti Corruption Bureau, Akola vide Exh.-53.

Accordingly, Dhananjay Deshmukh (PW2) and Sunil

Chinchmalatpure attended the office of Anti Corruption Bureau on

27.11.1997 at 4.20 p.m. They were asked to visit office of the Anti

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Corruption Office again on 28.11.1997 at 7.00 a.m. On

28.11.1997, Subhash Dhok (PW3) introduced Dadarao to the

pancha witnesses. Both extended consent to act as pancha

witnesses. They got ascertained the report from the complainant.

They also put their signatures on Exh.-38 after their due

verification. Thereafter Subhash Dhok (PW3) obtained 2 currency

notes of denomination of Rs.500/- each and 10 currency notes of

Rs.100/- each for Dadarao (PW1) for the purpose of trap. The

numbers were noted down. Use of phenolphthalein was also

demonstrated. The proceedings of all this was reduced into

writing by preparing the pre-trap panchanama Exh.-40. The

prosecution case further states that thereafter they proceeded for

Mangrul Pir at 11.45 a.m. on 28.11.1997. The Anti Corruption

Bureau personnel stopped their jeep near the by-pass. Dhananjay

(PW2) was asked by the Investigating Officer Dhok to remain with

the complainant Dadarao and to listen the talks between the

appellant and the complainant. The complainant was also asked

that on demand alone, the money should be paid to the appellant

and thereafter he should give a signal.

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4. The prosecution case further states that at 12.25 p.m.

the raiding party received per-arranged signal therefore Subhash

Dhok along with the raiding party rushed to the place of trap.

Hands of the appellant were caught. Subhash Dhok (PW3)

introduced himself and his staff to the accused. Subhash Dhok

(PW3) thereafter tested the fingers of both the hands of the

appellant however the colour did not change. The tainted amount

was found in the right side pocket of the shirt of the appellant.

The notes were seized under seizure panchanama Exh.-41. The

detailed panchanama was drawn and was recorded vide Exh.-46.

Thereafter, Subhash Dhok filed his complaint with Police Station,

Mangrul Pir. The printed FIR is at Exh.-56. On the basis of the

complaint Exh.-55, an offence punishable under Section 7, 13 (i)

(d) read with Section 13 (2) of the Prevention of Corruption Act

was registered against the appellant vide Crime No.112/1997.

The Investigating Officer thereafter sent the proposal for obtaining

the sanction. The sanction was received vide Exh.-71.

5. Charge was framed against the appellant by the learned

Special Judge. The appellant denied the charge and claimed for

his trial. In order to bring home the guilt, the prosecution has

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examined 4 witnesses namely; Dadarao (PW1), Dhananjay

Deshmukh (PW2), Subhash Dhok (PW3) and Rahul Gopal (PW4).

The defence of the appellant was that of false implication and that

the tainted amount is thrust in his pocket. The learned Judge of

the Court below, after appreciating the evidence as brought on

record, found that the prosecution was successful in proving its

case against the appellant and as observed in the opening

paragraph, the appellant was sentenced.

6. I have heard Mr. Sumit Joshi, learned counsel for the

appellant and Mr. R. S. Nayak, learned A.P.P. for the respondent-

State in extenso. Both the learned counsel submitted in detail

their respective cases. Learned counsel for the appellant also relied

on the decisions of the Hon'ble Apex Court and also of this Court.

7. The record shows that the currency notes smeared with

phenolphthalein powder were found in the right side pocket of the

appellant's safari shirt.

8. Merely because the currency notes smeared with

phenolphthalein or anthracene powder are found that itself is not

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sufficient to hold the accused guilty for the offence punishable

under the provisions of the Prevention of Corruption Act. The law

is well crystalized on the said aspect as it could be seen from the

authoritative pronouncement of the Hon'ble Apex Court in State

of Punjab vs. Madan Mohan Lal Verma, 2014 (4) Crimes 41

(SC), so also decision of the Larger Bench of the Hon'ble Apex

Court in B. Jayraj vs. State of Andhra Pradesh; (2014) 13 SCC

55. From the law as laid down to constitute an offence under the

Prevention of Corruption Act, demand of bribe is sine qua non.

Mere possession or receipt of the tainted amount is not sufficient.

Though there is statutory presumption under Section 20 of the

Act, it is always open for the accused to rebut the said statutory

presumption. The Apex Court also ruled that for rebutting the

said presumption, proof of reasonable doubt is not required. The

Court is required to consider preponderance of probabilities.

9. On the touchstone of the aforesaid, let us examine the

evidence as brought on record to see as to whether the prosecution

has successfully proved its case against the appellant beyond

reasonable doubts.

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10. While in the witness box, Dadarao (PW1) has stated

that after visiting to Mangrul Pir along with his sister Sarubai, the

appellant demanded Rs.10,000/- from him. That time, as per the

version of the complainant, he disclosed that he is not having

Rs.10,000/- and after negotiations, the amount was reduced to

Rs.8,000/-. It would be useful to refer the deposition from that

point as is appearing in the examination in chief of Dadarao. It

reads thus:

"After negotiation the accused reduced the amount to Rs.8,000/-. Accordingly after 2/3 days thereafter I went to accused Madhukar on Manora road in front of Police Station, Mangrul Pir and paid Rs.2,000/- to him."

This crucial aspect in respect of reduction of the bribe

amount from Rs.10,000/- to Rs.8,000/- and payment of Rs.2,000/-

to the appellant is not at all mentioned in the report lodged at the

Anti Corruption Bureau.

Exh.-38 report to the Anti Corruption Bureau was

lodged on 27.11.1997. On the said day, Dadarao had already

parted with the amount of Rs.2,000/- from his pocket and the

amount was paid to the appellant. Non mentioning of this crucial

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aspect of payment of Rs.2,000/- to the appellant in the complaint

appears unnatural.

11. Further, in the complaint Exh.-38, the complainant

asserts that though he pleaded for reduction of the bribe amount,

his request was flatly turned down by the appellant and the

appellant stuck to his demand of Rs.10,000/-. However, as

noticed in the deposition, the complainant himself is stating that

the bribe amount was scaled down from Rs.10,000/- to Rs.8,000/-

and prior to 2-3 days of the alleged report he paid Rs.2,000/- and

he was called by the appellant along with remaining amount.

Thus, there is total variance in the complaint Exh.-38 and the

evidence as noticed hereinabove. In my view, that casts serious

doubt about the truthfulness of the version of the complainant.

12. It is to be noted that the bribe amount was demanded

by the appellant from the complainant on the count that if the

bribe amount is not paid then in that event he will be implicated in

the murder of his brother in law.

An accidental death proceeding vide AD No.46/1997

was already registered under Section 174 of the Code of Criminal

13 apeal65.03.odt

Procedure with Police Station, Mangrul Pir. Statements of the

complainant and his sister Sarubai were already recorded by the

investigating officer namely; the appellant. Those accidental

death proceeding papers were already seized under Exh.-43 in the

Anti Corruption Bureau case. Those were already sent to Mr.

Rahul Gopal (PW4).

13. As per the complainant and the evidence of Dhananjay

Deshmukh (PW2), the amount of bribe was kept in the pocket of

the shirt of the appellant as per his direction. However, closer

scrutiny of their evidence shows that they are changing the place

where the amount was placed in the pocket. Dadarao (PW1)

states in his evidence as under:

"Accused asked me to hand over Rs.2,000/- to a lady present in a tea-canteen near P.S. Mangrulpir. I refused to do so. Then we and accused came on Manora road. Accused by making sign asked me to keep the money in his shirt pocket."

However, Dhananjay Deshmukh (PW2) deposed as

under:

"After taking tea we again went to P.S. Mangrulpir. Complainant Dadarao shown me accused Madhukar who was standing in the open site in the premises of P.S.

14 apeal65.03.odt

Mangrulpir. We both met accused Madhukar in the police station Mangrulpir just near the gate of the P.S. Complainant Dadarao offered Namaskar to accused. Thereafter accused Madhukar asked complainant Dadarao as to whether he has brought the money. Complainant Dadarao told to accused that he has brought Rs.2,000/-. Accused Madhukar asked complainant Dadarao to pay Rs. 2,000/- to a lady standing in a tea canteen near P.S. Mangrulpir. Complainant Dadarao refused to do so. Thereafter accused Madhukar by making sign asked the complainant Dadarao to put the amount of Rs. 2,000/- in his shirt pocket. Accordingly complainant Dadarao took out tainted amount of Rs. 2,000/- from his left side shirt pocket by his right hand and put the tainted amount of Rs. 2,000/- into the right pocket of Safari short of the accused and at that time we were standing just near the gate of P. S. Mangrulpir."

Thus, there is variance in between the version of

complainant and pancha witness in respect of the place. Not only

that, the pancha witness further states that after accepting the

amount, the appellant Madhukar offered them tea and to have tea,

he along with complainant proceeded towards the hotel and on

the way of the hotel, Dadarao transmitted the prearranged signal.

This fact is totally absent from the evidence of Dadarao (PW1).

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14. In this behalf, the defence of the appellant is that of

thrusting. The learned counsel for the appellant has invited my

attention to the cross-examination of Dhananjay Deshmukh (PW2)

to point out that at the time of accosting the appellant by the

investigating officer, the appellant gave his explanation in writing

to Subhash Dhok (PW3) in respect of the seizure of the tainted

amount, though Subhash Dhok (PW3) states that now he is unable

to remember the explanation given by the appellant. Even

Subhash Dhok (PW3) in the examination in chief stated as under:

"Upon inquiry about the bribe money, accused Madhukar told us that the complainant Dadarao has kept the bribe money in his right side safari shirt pocket."

While in the cross-examination, Subhash Dhok (PW3)

has stated as under:

"At the time of trap accused had submitted his written explanation regarding the tainted amount found with him to me. I have not submitted said written explanation of accused along with charge-sheet."

Thus, it is crystal clear from the aforesaid evidence of

Subhash Dhok (PW3) that at the time of arrest itself the appellant

gave his written explanation about the tainted amount. Thus, it is

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clear that the defence of thrusting as taken up by the appellant did

not crop up at the eleventh hour during trial. It was right from the

beginning and not only that the written explanation was also given

which was not filed by the investigating officer along with the

charge-sheet.

15. In that behalf, in my view, the learned counsel for the

appellant has rightly relied on T. Subramanian vs. State of Tamil

Nadu; 2006 ALL MR (Cri) 620 (SC) and Bismillakha s/o

Salarkha Pathan vs. State of Maharashtra; 2004 AL MR (Cri)

1341.

In T. Subramanian (supra) the Apex Court found that

when the High Court had not considered explanation offered by

the appellant about receipt of money which was immediately

given after the incident, explains all the circumstances and raises

not only a reasonable but very serious doubt about the amount

having been received by him as illegal gratification.

In Bismillakha s/o Salarkha Pathan (supra), this

Court in paragraph 9 observed thus:

".....However, there is one more important circumstance and i.e. the statement to be found in the post trap panchanama to the effect that immediately after the

17 apeal65.03.odt

trap was sprung, both the accused were asked by P.I. Dhok and they gave their version regarding acceptance of money. It is the express prosecution case which can be found in the panchanama that the version given by accused was reduced to writing and signed by the panchas as well as P.I.Dhok. The contents of what was mentioned in these two writings was not found in the panchanama as those were separate documents. However, for the reasons best known to the prosecution, these documents have not been brought before the Court in the trial. The panchas examined as well as P.W.7 Dhok but do not utter a single word about this first version given by the two accused in writing immediately after the trap was sprank. This circumstances of suppressing the first version as given by two accused, according to him, is very important circumstance which raised a shadow of doubt about the veracity of the prosecution case. The duty of the prosecution is to bring the entire truth as found before the Court. It appears to me that these two vital documents have been kept back from the trial. In my view, in such circumstances, these writings were evidence which could be produced and which were in the hands of the investigating agency and which could have been produced as evidence in the Court but was not produced. By virtue of Section 114 of the Indian Evidence Act, the Court would be entitled to presume that had these documents been produced, they would not have favoured the prosecution which had

18 apeal65.03.odt

withheld these documents. Useful reference can be made to illustration (g) of Section 114 of the Indian Evidence Act, in this regard."

16. In view of the written explanation right at the time of

trap which is not filed on record by the investigating officer there

is no hesitation in my mind to reach to the conclusion that the

appellant has rebutted the statutory presumption under Section 20

of the Act.

17. Section 19 of the Act deals with sanction. The law in

that behalf is now well settled. The order granting sanction is an

empty formality. Before according sanction, it is the duty of the

sanctioning authority to ensure that the frivolous complaints are

not entertained.

In the present case, Mr. Rahul Gopal (PW4), at the

relevant time was Special Inspector General, Amravati Range,

Amravati was the sanctioning authority. He admitted in his cross-

examination that the case papers in respect of death of Maroti vide

AD No.46/97 were received by him. The availability of the

accidental death papers before the sanctioning authority would

have given clear picture to the sanctioning authority before

19 apeal65.03.odt

according sanction. But one fact is also to be noted in the present

case is that the complainant is in habit of making complaints

against the police personnel. He has admitted that in the year

1986 also he lodged a complaint against one police officer and

since 1986 he was knowing the Anti Corruption Bureau office and

was knowing as to how to lodge the complaint against the public

servants with the Anti Corruption Bureau.

18. Be that as it may, it is clear that there is variance in the

evidence of the complainant and his complaint in respect of the

actual amount of the bribe, payment of bribe and the amount to be

paid on the day of trap so also there is a variance in between the

place in respect of putting of the tainted notes in the shirt pocket

of the appellant in the evidence of the complainant and in the

evidence of pancha witnesses.

Further, right from the first moment, the explanation

given by the appellant though it was reduced into writing, was

deliberately not produced on record.

The cumulative effect of the aforesaid leads me to pass

the following order.

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                               ORDER

        (i)            Criminal Appeal No. 65/2003 is allowed.

        (ii)           Judgment   and   order   dated   13.01.2003

passed by Judge, Special Court, Washim in Special

Case No.2/1998, is set aside. The appellant-Madhukar

s/o Gangaramji Paturde is acquitted of an offence

punishable under Section 7, 13 (1) (d) read with

Section 13 (2) of the Prevention of Corruption Act.

(iii) Bail Bonds of the appellant stands cancelled.

(iv) Muddemal property be dealt with as directed by

the trial Court after the appeal period is over.

JUDGE

kahale