Bombay High Court
State Of Mah. Thr. Police ... vs Prabhakar S/O Vistari Uddarwar on 21 June, 2017
Bench: Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.287 of 2011
State of Maharashtra
through Police Inspector, Anti Corruption Bureau,
Chandrapur. .... Appellant.
-Versus-
Prabhakar s/o Vistari Uddarwar,
Aged 58 years, Occ.-Service,
R/o.- Shriram Ward, Chandrapur. .... Respondent.
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Mr. V.P. Gangane, Addl. P.P. for State.
Mr. M.B. Naidu, Adv. for respondent.
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Coram : Mrs. Swapna Joshi, J.
Date of reserving judgment : 30-05-2017.
Date of pronouncement : 21-06-2017.
J U D G M E N T
The respondent (hereinafter referred to as "the accused" for the
sake of brevity) who was serving as a Nazul Surveyor in the office of
Taluka Inspector of Land Records at Chandrapur, at the material time,
was prosecuted on the allegations of having committed the offences
punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988. The learned Special Judge,
Chandrapur, by its judgment and order dated 25-01-2011 delivered in
Special Case No.7 of 1999, acquitted the accused of the aforesaid
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offences. Having aggrieved by the judgment of acquittal delivered by the
learned Special Judge, Chandrapur, the appellant-State has preferred the
present appeal.
2] In brief the prosecution case is that; complainant (PW-1) Sumedh
Motiram Shinde was residing in Naginabag Ward at Chandrapur in his
ancestral house. There was a Nazul land of 900 sq.ft. bearing Plot
No.11/2, Block No.19, Sheet No.5, adjacent to his house. The complainant
had applied to the Sub-Divisional Officer, Chandrapur for getting the said
land permanently. The Nagar Parishad and Town Planning office issued
'No Objection Certificate' in that regard. The accused was serving as a
Nazul Surveyor in the office of Taluka Inspector of Land Records at
Chandrapur. The Naib Tahsildar issued one letter to the Nazul Surveyor
for the report of valuation of the said land. About 8 days prior to the
lodging of the complaint, the complainant met with the accused being a
Nazul Surveyor and enquired about the valuation report. The
complainant requested the accused to send the report expeditiously. On
which the accused said that he has to bear the expenses of Rs. 3000/- for
getting the valuation report. On the request of the complainant the
amount was reduced to Rs.2,500/-. The accused again said that unless
and until the amount of Rs. 2,500/- is paid, the report would not be sent
and if the said amount is paid, he would report the valuation of less
amount. The complainant told the accused that he would think over it and
thereafter inform him about the payment. On 09-10-1998, the complainant
went to the office of the accused and requested him to send the report
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expeditiously. The accused again demanded amount of Rs. 2,500/-. The
complainant asked for 2/3 days for making the said payment. On which
the accused asked him to bring the amount till the evening of 12-10-1998.
The accused said that if he is not available in the office the amount
should be brought to his house. As the complainant was not intending to
pay the said bribe amount to the accused, he lodged oral complaint with
Anti Corruption Bureau, Chandrapur on 12-10-1998 (Exhibit-23).
Radhakrishna Sharma PW-5 the officer of the Anti Corruption Bureau,
Chandrapur, recorded the complaint of the complainant. He called for two
witnesses from the office of Zilla Parishad, Chandrapur. (PW-5)
Radhakrishna Sharma selected two panchas and as the offices of the
Anti Corruption Bureau and Nazul Surveyor were closed to each others,
as a precautionary measure, he took the complainant, panch witnesses
and staff members to the rest house of the Forest Department. Thus,
the rest house of the Forest Department was used as a Anti Corruption
Bureau office in the proceedings of raid. The panchas and complainant
were given the demonstration as to change of colour on application of
the Phenolphthalein powder and Sodium Carbonate. The
Phenolphthalein powder was applied to the currency notes consisting of
two notes of Rs. 500/- and 15 notes of Rs. 100/- (total Rs. 2,500/-) and
they were kept in the pocket of shirt of the complainant. The complainant
and one panch Maya Chawre along with the raiding party proceeded to
the office of the accused. However, as the accused was working in the
office he asked the complainant to visit his house during night time or in
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the next day morning. The raiding party, therefore, returned to the rest
house and prepared the panchanama no.2 (Exhibit-31) by mentioning all
the events. During night time the complainant along with another panch
namely Omprakash Gajjalwar went to the house of the accused. The
raiding party followed them. At about 21.10 hours the complainant
entered into the house of the accused. The complainant handed over the
amount to the accused. The accused counted the currency notes. He
then came out of the house. The complainant gave signal to the raiding
party by lighting the torch. The Anti Corruption Bureau officers rushed
inside the house of the accused and caught hold both the hands of the
accused. The accused was inside the house. When the Anti Corruption
Bureau officers entered the house of the accused, they saw that the son of
the accused was counting the currency notes. The hands of the accused
were dipped in the solution, it turned violet. The hand wash of the
accused was taken in a glass bottle and it was sealed. Similarly, the
colour of the currency notes was also changed to purple. On sprinkling
the Sodium Carbonate solution on the currency notes the violet coloured
spots appeared on them. The seizure memo was prepared at Exhibit-24.
Both the hands of the accused and his son were dipped in the solution of
Sodium Carbonate on which the colour of the solution turned violet. The
right hand fingers of the complainant were dipped in the solution of the
Sodium Carbonate and its colour changed to violet. The panchanama
was prepared. Investigation was carried out. After completion of the
investigation, the charge-sheet was filed.
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3] The defence of the accused is that the complainant was not entitled
for the grant of Nazul land. In fact the complainant thought that the
accused was creating obstruction in granting the Nazul land to him
therefore he had brought panch Omprakash Gajjalwar to his office prior to
8 to 10 days. On the point of incident, it is the case of the accused that,
the son of the accused was on the platform of the house. Two persons
came there and thrust the amount in his hands. Thereafter, the son
handed over the said amount to the accused. The accused again returned
the said amount to his son and came on the platform. However, he did
not see anyone. Thereafter, the raiding party came to that place and
apprehended him. The defence examined (DW-1) Kapil Uddarwar the son
of the accused, who deposed in the same line.
4] In order to establish its case, the prosecution examined in all five
witnesses. (PW-1) Sumedh Shinde is the complainant. (PW-2)
Omprakash Gajjalwar is the panch witness who allegedly accompanied
the complainant to the house of the accused. (PW-3) Sudhir Sayankar is
the Police Nayak who registered the offence on the basis of the complaint
lodged by the complainant. (PW-4) Pandurang Karande who was working
as a Deputy Director of Land Records at Nagpur at the time of incident
and he was the sanctioning authority. (PW-5) Radhakrishna Sharma is
the Investigating Officer. The defence of the accused was that he had
been falsely implicated and he had neither made any demand of the
amount nor accepted it.
5] Heard the learned Additional Public Prosecutor for the appellant-
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State and the learned Counsel for the respondent-accused. I have gone
through the record of the case and the impugned judgment and order.
6] The learned Additional Public Prosecutor for the appellant-State
contended that the learned Special Judge has illegally passed the
judgment of acquittal against the accused inasmuch as it is not considered
that the prosecution has proved the demand of bribe amount as well as its
acceptance. Per contra, the learned Counsel for the accused Mr. Naidu
argued that the learned Special Judge has rightly considered the
evidence on record and has come to the conclusion that the offence
against the accused is not proved and therefore he is entitled for acquittal.
7] Mr. Naidu, the learned Counsel for the accused has invited the
attention of this Court to the evidence led by the prosecution with regard
to the alleged demand of bribe amount and submitted that the said
demand itself is not proved by the prosecution by producing cogent and
consistent evidence. The learned Counsel for the accused pointed out
that the prosecution has failed to examine the material witness who
accompanied the complainant to the office of the accused when he
allegedly made the demand of bribe amount. According to the learned
Counsel for the accused, the present case fails on this count only. He
further submitted that the prosecution has not proved beyond reasonable
doubt as to from whom the bribe amount was taken charge i.e. either from
the accused or from his son and to whom exactly the said amount was
handed over.
8] After giving anxious consideration to the arguments advanced by
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both the sides, it is necessary to go through the evidence on record. So
far as the sanction under Section 19 of the Prevention of Corruption Act is
concerned, the prosecution has examined (PW-4) Pandurang Karande
who is the Sanctioning Authority. According to him, after perusing the
documents and after applying the mind in that respect to the facts of the
case, he accorded the sanction for the prosecution of the accused vide
Sanction Order dated 15-07-1999 (Exhibit-46). The version of (PW-4)
Pandurang Karande has not been seriously disputed by the defence. It is
also not disputed that the accused was a public servant i.e. Nazul Officer
and the matter of valuation of Nazul land was pending before him since
one week prior to the alleged trap. The letter dated 08-09-1998 of the
Taluka Inspector of Land Records, Chandrapur, addressed to the accused,
recites the subject of report of valuation in respect of the land in dispute.
9] As far as the alleged demand of bribe amount by the accused is
concerned, according to the complainant Sumed Shinde (PW-1), he had
applied for grant of Nazul land to the Tahsil Office. The case was sent to
Nazul Office for valuation. The Tahsil Office received 'No Objection
Certificate' from the Municipal Council and from the Town Planning Office.
The application of PW-1 was sent for valuation to the Nazul Office. The
accused who was serving as a Nazul Surveyor at Nazul Office, asked
for an amount of Rs.3000/-, in order to have less valuation of the field.
PW-1 stated that he would not be in a position to pay the amount of
Rs.3000/-. Therefore, the accused reduced the demand to Rs.2,500/-.
The complainant then proceeded to the Anti Corruption Bureau Office and
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lodged the oral report against the accused. According to PW-1 one
Mrs. Maya Chawre a lady and Mr. Gajjalwar the two employees were
called by the Anti Corruption Bureau Officers. They smeared currency
notes with the Phenolphthalein powder. The said notes were kept in the
pocket of shirt of the complainant and the Anti Corruption Bureau Officers
instructed him to take Mrs. Chawre with him as an intending purchaser of
the land. Mrs. Maya Chawre along with complainant went to the Nazul
Office. PW-1 met with the accused. PW-1 informed the accused that he
had brought the amount which was asked. The accused, however, said
that no site is available hence he did not accept the amount as the office
was functioning. The accused asked PW-1 to visit his house. Thereafter,
PW-1 returned to the Anti Corruption Bureau Office. It is significant to
note that, so far as the first demand is concerned, Mrs. Maya Chawre
accompanied the complainant to the office of the accused. However, she
has not been examined by the prosecution. Similarly, the Investigating
agency had not verified whether any demand is made by the accused,
prior to conducting the trap. According to PW-1 the another panch
namely; Gajjalwar accompanied him. They went to the house of the
accused. PW-1 told the accused that he had brought the amount which
was asked by him. Then he took out the money from the pocket of his
shirt and handed over the same to the accused. The accused counted
those notes and then came out from the house. Thereafter, PW-1 and
Gajjalwar came out of the house of the accused, signalled the Anti
Corruption Bureau Officers by lighting the torch. The Anti Corruption
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Bureau Officers rushed to the house of the accused and caught hold both
the hands of the accused. The accused was inside the house. When the
Anti Corruption Bureau Officers entered the house of the accused, at that
time the son of the accused was counting the currency notes. The
solution was sprinkled over the currency notes which turned purple. The
hands of the accused were dipped in the solution of Sodium Carbonate on
which the colour of the solution turned violet. The right hand fingers of the
complainant were dipped in the solution of the Sodium Carbonate and its
colour changed to violet. The hand wash of the accused was taken in a
glass bottle and it was sealed. The seizure memo was prepared at
Exhibit-24. Thus, the testimony of (PW-1) Sumed Shinde, does not reveal
any demand of the bribe amount, when he went to the house of the
accused. During the cross examination PW-1 stated that when the
accused demanded the amount of Rs.3000/- and it was reduced to
Rs.2,500/-, it was made in the presence of one fellow. The prosecution
has failed to examine the said fellow. Thus, the prosecution has not
sought corroboration to the testimony of PW-1 on the point of alleged
demand.
10] As far as the testimony of PW-2 is concerned, on 12-10-1998, he
went to the office of Anti Corruption Bureau along with his colleague Maya
Chawre. He was informed about the demand of bribe from PW-1 by the
Nazul Surveyor. The complainant had brought the amount of Rs.2500/-.
The Phenolphthalein powder was applied to those currency notes. The
complainant kept it in his shirt's pocket. Mrs. Maya Chawre was instructed
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to accompany the complainant. PW-2 stated that a tape recorder was
also given to the complainant for recording the conversation between him
and the accused. The panchanama was drawn in the guest house
(Exhibit-30). Thereafter, the complainant, both the panchas and the Anti
Corruption Bureau Officers proceeded to the office of Nazul Surveyor.
Mrs. Maya Chawre accompanied the complainant to the office of the
accused. However, they returned back within 15 minutes as the accused
was busy in his work. PW-2 then accompanied the complainant to the
house of the accused at about 8.00 p.m. The members of Police party
followed them in a jeep. The accused was present in the house. He
came in the varandah of his house. The complainant then told the
accused that he had brought the money as per his say. The complainant
then handed over the money to the son of the accused who was present
there. Thereafter, the complainant signalled to the members of the raiding
party. The members of the raiding party went inside the house. They
apprehended the accused by holding his hands. The hands of the
accused were dipped in the solution of the Sodium Carbonate. The colour
of the solution turned to violet. The solution was taken charge by the
Police and the seizure memo was prepared (Exhibit-33). The son of the
accused was also asked to dip his fingers in the fresh solution of Sodium
Carbonate. The colour of the solution turned violet. The said solution also
taken charge by the Police. The seizure panchanama was prepared
accordingly at Exhibit-34.
11] On the tainted notes, the solution of Sodium Carbonate was
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sprinkled. After sprinkling the same the violet colour spots appeared on
them. The seizure memo was prepared at Exhibit 34. Thus, the testimony
of PW-2 reveals that in his presence the accused did not make any
demand of bribe amount. PW-2 has stated that a tape recorder was given
to the complainant for recording the conversation between him and the
accused. However, PW-1 did not state anything about the tape recorder.
Thus, there is no corroboration to the version of PW-1 on the point of
alleged demand. So far as the testimony of PW-1 is concerned, there is
glaring discrepancy in the testimonies of PW-1 and PW-2 on the point of
handing over the currency notes to the accused. In the cross examination
PW-2 stated that the complainant handed over the money to the accused.
Thus, the testimony of PW-2 does not inspire confidence on the point of
handing over the amount to the accused by PW-1. His testimony does
not throw any light on the aspect of demand of bribe amount by accused
to PW-1. Thus, on the point of alleged demand of bribe amount, the
testimonies of the complainant and PW-2 are not consistent and
trustworthy.
12] So far as the acceptance of bribe amount is concerned, it is
discussed above that there is discrepancy in the testimonies of PW-1 and
PW-2 on the point of acceptance of the amount. According to PW-1 he
handed over the bribe amount to the accused, whereas according to
PW-2, it was handed over to the son of the accused. PW-2, thus,
declared hostile by the prosecution. He admitted in his cross examination
that the amount was handed over to the accused however he did not
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further state whether the said amount was further given by the accused
to his son. No convincing material elicited from his cross examination and
his evidence does not inspire confidence. It is not disputed that the
amount was received from the hands of the son of the accused in his
house in the presence of the accused. The Chemical Analyzer's report
also reveals that the test of Sodium Carbonate which was positive
indicating thereby that there was Phenolphthalein powder on the hands of
the accused and his son which indicates that they had handled the tainted
notes. It is also not in dispute that the numbers of the currency notes
recovered from the accused were tallied with the numbers mentioned in
panchanama no.1. However, the recovery of the tainted amount is not
sufficient to hold the accused guilty of the alleged offence. It is the
specific case of the accused as seen from the cross examination of the
witnesses and the examination of (DW-1) Kapil Uddarwar that on the date
of incident, he along with his parents were watching Television in the
leaving room. As he heard some noise, they all came outside the house
to see what was the matter. Two persons came near him and out of them
one person thrust the amount in his hand and asked him to handover the
same to his father. Thereafter, they both left that place. Accordingly,
DW-1 handed over the said amount to his father. However, his father
again handed over the said amount to him by murmuring "who paid the
amount". After 3 to 4 minutes, 3 to 4 persons came to their room. One
person caught hold of his hand and snatched the amount from him.
Those persons said that his father had accepted the bribe amount. Thus,
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the defence of the accused appears to be probable one.
13] It is well settled law that under the provisions of the Prevention of
Corruption Act, the accused is not required to prove his case beyond
reasonable doubt. However, he has to simply point out the preponderance
of probabilities. Thus, it appears that there is probability of thrusting the
amount in the hands of the son of the accused and his son handing over
the said amount to his father i.e. the accused. In this regard, the
testimony of Investigating Officer (PW-5) shows that, the son of the
accused was holding currency notes when he reached to the house of the
accused. Thus, the prosecution has not proved the demand of the bribe
amount as well as its seizure from the accused beyond reasonable doubt.
It is also not established by the prosecution that the complainant had paid
the amount to the accused.
14] The prosecution has suppressed the tape recorder which was
allegedly given to the complainant by the Anti Corruption Bureau Officers.
Neither the complainant has stated about the tape recorder nor the said
fact is mentioned in the panchanamas. Even the Investigating Officer is
silent on this aspect. Thus, the evidence of these witnesses does not
inspire confidence on the point of alleged demand of bribe amount by the
accused to the complainant. According to PW-1 the demand of bribe was
for less valuation which contradicts his own version that the demand was
for sending the report expeditiously. There is discrepancy on the point, as
to for what purpose the demand was made. The complaint (Exhibit-23)
reveals that the bribe amount was demanded for sending the report
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expeditiously. Whereas, according to the complainant, the bribe amount
was demanded for showing less valuation. In fact, the matter was
pending in the Nazul office since 1995 and 8 days prior to the complaint,
the complainant reached to the office of the accused. Within a period of 8
days the complainant met with the accused twice and during that time the
accused demanded the bribe amount from the complainant. However, the
theory of the prosecution appears to be improbable. It is not clear as to
within a period of 8 days how the alleged demand was made by the
accused from the complainant. In the absence of non-examination of the
person who accompanied the accused when the alleged first demand
was made, the said fact remains disproved for want of corroboration. In
the light of the fact that PW-1 himself has given contradictory version on
the aspect of demand of bribe amount from the complainant, it is not clear,
whether the alleged bribe amount was for less valuation of the land or for
sending the report expeditiously. In the absence of any corroboration to
the testimony of PW-1 on this aspect, the testimony of PW-1 does not
inspire confidence.
15] The learned Counsel Mr. Naidu placed reliance upon the judgment
in the case of Madhav Rajurkar vs. State of Maharashtra, reported in
2016(2) Mh.L.J.(Cri) 580, this Court held that no verification of alleged
demand of bribe was made before laying of trap. Since testimonies of
witnesses were not reliable as they were not consistent with each other.
The fact that the appellant demanded bribe and same was accepted, not
duly proved, the benefit of doubt can be granted to the appellant.
15 jUDG.0206517 apeal 287.11.odt
16] The learned Counsel for the accused has placed reliance upon the
judgment of this Court in the case of Shri Balkrishna Bhau Desai Vs. The
State of Maharashtra, reported in 2016 ALL MR(Cri) 1913 to canvass that
suppressing the tape recorder leads to the inference that the conversation
between the complainant and the appellant was against the case of the
prosecution. According to Mr. Naidu, there is no reference of tape
recorded in the version of PW-1 as well as the Investigating Officer.
Conversation between the complainant and the appellant would have
certainly thrown light on the aspect of alleged demand of bribe amount by
the appellant. However, since it is suppressed, legitimate inference can
be drawn that the said conversation was not supporting the case of the
prosecution as alleged by the complainant. The paragraphs 17 and 18
therein are reproduced below :-
"17. The question that arises is why then the
prosecution does not wish to rely on the conversation that
had taken place between Raje-Bhosale and the appellant?
The question that arises is why the Investigating Officer is
claiming that no tape-recorder had been provided to Raje-
Bhosale (while admitting that it could be provided), and
no conversation between him and the appellant had been
recorded? The question that arises is who is right- Raje-
Bhosale or the Investigating Officer-Ahire (PW4)? It is a
mater of common sense that Raje-Bhosale's version in
this regard, cannot be discarded at all. If there had been
no tape-recorder, Raje-Bhosale would have had no reason
to mention about such a tape-recorder. Moreover,
ordinarily, the Investigating Officer was expected to have
the conversation between Raje-Bhosale and the appellant
recorded when such recording facility was available, and
when there had been no prior verification of the alleged
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demand.
18. In my opinion, this is a serious discrepancy in
the prosecution case. This shows that the prosecution did
not want to produce the record of the conversation
between Raje-Bhosale and the appellant. Needless to say
that in such a situation, the inference that the recorded
conversation, if produced, would not have supported the
prosecution case, or the account of the happenings as
given by the de facto complainant Raje-Bhosale, can
legitimately be drawn."
17] There is no illegality or perversity noticed in the judgment delivered
by the learned Special Judge, Chandrapur. It is well settled principle of
law that in exercise of its appellate jurisdiction particularly in appeal
against acquittal, it is not open to this Court to substitute its own view with
a view taken by the lower Court, unless the view taken by the lower Court
is illegal, perverse or against the principle of law.
18] There are no sufficient grounds made out by the appellant/State to
interfere with the impugned judgment and order. In these circumstances,
the appeal deserves to be dismissed and accordingly it is dismissed.
JUDGE
Deshmukh
