The State Of Mah.Thr.Acb Amravati vs Ramrao Marotrao Khawale
2017 Latest Caselaw 2564 Bom

        J-apeal173.06.odt                                                                                               1/10  


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


                                  CRIMINAL APPEAL No.173 OF 2006


        The State of Maharashtra,
        through Anti Corruption Bureau,
        Amravati.                                                                   :      APPELLANT

                           ...VERSUS...

        Ramrao Marotrao Khawale,
        Aged about 52 years,
        Occupation : Talathi,
        R/o. Warud, District Amravati.                                               :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri S.M. Ukey, Additional Public Prosecutor for the Appellant
        None for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 18 MAY, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 12th January, 2006, passed by the Special Judge Amravati, in

Special (ACB) Case No.3/1992, thereby acquitting the respondent of the

offences punishable under Sections 7 and 13(2) of the Prevention of

Corruption Act, 1988.

2. In the year 1991, the respondent was serving as a Talathi

J-apeal173.06.odt 2/10

and was residing at Warud, Tq. Warud, District Amravati. He was also

running his office from his residence. The complainant, Namdeo

Mahadeorao Bopchi, a resident of village Rajara Bazar, Tq. Warud,

District Amravati was interested in getting the land bearing Survey

No.9/2, admeasuring 1 ½ acres mutated in his name and in the name of

his brother, as the same was purchased by the complainant and his

brother from their neighbour, Chhatrapati Wankhade. The land was

purchased about 4 years prior to lodging of the complaint in the instant

case. The complaint was lodged on 2nd May 1991. Around the same

time as the purchase of the land, the complainant had approached the

respondent along with one Vitthalrao Punjabrao Bahurupi with a request

for taking a mutation entry in respect of the said land in revenue record

in his own name and in the name of his brother. At that time, the

respondent was alleged to have demanded amount of Rs.150/- from the

complainant for the said work. This demand of the respondent was

fulfilled by the complainant. Later on, the complainant was told by the

respondent that the mutation entry was carried out as desired by the

complainant in the revenue record.

3. In the early part of April 1991, the complainant was again

required to visit office of the respondent. This time, the complainant

required a below poverty line certificate to be issued to him by the office

of the respondent, as it was a pre-requisite for obtaining subsidy for

J-apeal173.06.odt 3/10

installation of Gobar Gas Plant at the premises of the complainant. On

demand, the complainant paid amount of Rs.40/- as the land revenue to

the respondent. The complainant also incidentally enquired from the

respondent about carrying out of mutation entry in the revenue record in

respect of the land survey No.9/2 when the complainant was told by the

respondent that the mutation entry was not taken in the revenue record

and that some more documents were required. Again on 28.4.1991, the

complainant along with one Arun Ghormade visited the office of the

respondent and made him a request for taking mutation entry. The

complainant had also brought with him the documents required for the

purpose. The respondent, it is alleged, refused to accept those

documents, also refused to take mutation entry and insisted upon the

complainant paying him an amount of Rs.250/- as bribe or illegal

gratification for performing an official act. The complainant pleaded for

mercy. The respondent, however, was reticent about his demand, but

showed some leniency about the amount and agreed to accept amount of

Rs.150/- as illegal gratification for the said official work. The

complainant was told to bring the said amount on 3.5.1991 at the

residence of the respondent.

4. The complainant was displeased with the fleecing tactics

adopted by the respondent. He went to the office of the Anti Corruption

Bureau, Amravati about 3 days after the fresh demand of bribe was made

J-apeal173.06.odt 4/10

by the respondent i.e. on 2.5.1991 and lodged a report against the

respondent. The officials of the Anti Corruption Bureau, Amravati

decided to entrap the respondent. Necessary formalities were completed

and the trap was laid on 3.5.1991. It was successful and the tainted

currency notes, which comprised one currency note of Rs.100/-

denomination and one currency note of Rs.50/- denomination were

recovered from the shirt pocket of the respondent. Necessary

panchanamas were drawn out. Statements of witnesses were recorded.

After completion of the investigation, a charge-sheet came to be filed

against the respondent.

5. The respondent was tried for the offences punishable under

Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. On

merits of the case, the learned Special Judge found prosecution evidence

as inconsistent, sketchy and unreliable and, therefore, giving benefit of

doubt to the respondent, acquitted the respondent of the said offences by

judgment and order passed on 12th January, 2006. Not being satisfied

with the same, the State is before this Court in the present appeal.

6. I have heard learned A.P.P. for the State. None is present for

the respondent. I have carefully gone through the record of the case

including the impugned judgment and order.

7. According to learned A.P.P., the evidence of prosecution

witnesses is required to be considered as a whole and when it is done,

J-apeal173.06.odt 5/10

one would find that this evidence inspires confidence and, therefore, the

findings of facts recorded by the learned Special Judge in favour of the

respondent would have to be termed as perverse or as not logically

arising from the facts established on record. Thus, according to him, the

impugned judgment and order deserve to be quashed and set aside.

8. At the outset, it must be stated that in an appeal against

acquittal, like the present appeal, scope of interference is quite limited.

When two views are reasonably possible on the basis of evidence on

record, one favouring the accused and the other inclining towards the

prosecution, the one which favours the accused has to be adopted and if

this has been done by the trial Court, it would not be open for the

Appellate Court to upset such a view, just because another view

favouring the prosecution is possible and the appellate Court thinks that

such a view ought to have been taken by the trial Court. A useful

reference in this regard may be had to the case of Satvir Singh vs. State

of Delhi, through Central Bureau of Investigation, reported in (2014)

13 SCC 143, Murugesan s/o. Muthu and others vs. State, through

Inspector of Police, reported in (2012) 10 SCC 383, Chandrappa and

others vs. State of Karnataka, reported in (2007) 4 SCC 415, Abrar

vs. State of Uttar Pradesh, reported in (2011) 2 SCC 750, Rukia

Begum and others vs. State of Karnataka, reported in (2011) 4 SCC

779, and State of Madhya Pradesh vs. Dal Singh and others, reported

J-apeal173.06.odt 6/10

in (2013) 14 SCC 159. This is a case to which this principle of law

squarely applies. In the instant case, a careful perusal of the impugned

judgment and order discloses that the trial Court has adopted a view

based upon the evidence available on record, which favours the accused.

This view, as stated earlier, having been based upon the evidence

available on record and not being the result of consideration of any

extraneous material or ignorance of the material evidence available on

record, cannot be substituted by this Court, just because, in the opinion

of the learned A.P.P. some other view is possible.

9. In a graft case, if voluntarily acceptance of bribe amount is

important, so is the demand of bribe amount. It is well settled law that

when a trap is set for proving the charge of corruption against a public

servant, evidence about prior demand has its own importance. The

reason being that the complainant is also considered to be an interested

witness or a witness who is very much interested to get his work done

from a public servant at any cost and, therefore, whenever a public

servant brings to the notice of such an interested witness certain official

difficulties, the person interested in work may do something to tempt the

public servant to bye-pass the rules by promising him some benefit,

which is not a legal remuneration. Sometimes, it has also been seen that

the public servant initially resists such a temptation, but later on

succumbs to it. But, the important fact in such a case is that the offer to

J-apeal173.06.odt 7/10

make available some benefit for doing official work voluntarily comes

from the complainant without there being any demand for the same by

the public servant and if the public servant, on being goaded by such an

interested party, falls prey to such an offer, the law would require a more

careful approach to be adopted before placing the blame entirely upon

the shoulder of such a public servant and would require a stricter proof

from the prosecution about the public servant making a demand of bribe.

There is a consistent line of precedents set by the Hon'ble Apex Court in

this regard. In the case of Suraj Mal vs. State (Delhi Administration)

reported in AIR 1979 SC 1408, the Supreme Court held that in a case of

bribery, mere recovery of money divorced from the circumstances under

which it is paid is not sufficient to convict the accused when the

substantive evidence in the case is not reliable. Same principle has been

reiterated in cases of P. Satyanarayana Murthy vs. District Inspector of

Police, State of Andhra Pradesh and another, reported in (2015) 10

SCC 152, Selvaraj v. State of Karnataka (2015), reported in 10 SCC

230, Satvir Singh vs. State of Delhi (supra) and Krishan Chander vs.

State of Delhi, reported in AIR 2016, SC 298.

10. In the instant case, upon careful consideration of the

prosecution evidence, particularly of the complainant PW 1 Namdeo

Bopchi as well as PW 2 Arvind Bansod, who is the shadow witness, I find

that the prosecution could not establish beyond reasonable doubt the

J-apeal173.06.odt 8/10

prior demand of bribe made by the respondent. The evidence of PW 1

Namdeo shows that some time in the year 1987 which is approximately

4 years prior to the date of the complaint which is 2.5.1991, the

complainant had met the respondent in the presence of one Vitthal

Bahurupi and paid him through the hands of Vitthal Bahurupi an amount

Rs.150/- as an illegal consideration for performing the official work of

taking of mutation entry in respect of agricultural land purchased by the

complainant. His evidence further shows that even on 28.4.1991, when

another demand of Rs.150/- was made allegedly by the respondent, it

was witnessed by the acquaintance of the complainant, one Arun

Ghormade. However, neither Vitthal Bahurupi nor Arun Ghormade, the

independent witnesses though available, were not examined by the

prosecution. No explanation whatever has been given by the prosecution

for their non-examination as its witnesses, though they were available.

In fact, statement of Arun Ghormade was also recorded by the

Investigating Officer, but he was given up as prosecution witness. Later

on, he entered into a witness box as a defence witness when he was

examined as witness No.1 for the defence. He supported the case of the

respondent by stating that the amount of Rs.150/- was borrowed by the

complainant from the respondent and same was returned by him to the

respondent on 3.5.1991, when the respondent was allegedly entrapped.

According to him, there was neither any prior demand nor any

J-apeal173.06.odt 9/10

acceptance of the bribe amount. Such failure of the prosecution to

examine the independent witnesses though available on the point of

prior demand has created a serious doubt about the genuineness of the

prosecution case.

11. The doubt so created about the prosecution case against the

respondent has been further deepened by the fact that though the

demand was categorically made on 28.4.1991, the complaint was lodged

about 3 days thereafter, that is, on 2 nd May 1991. No satisfactory

explanation for such a delay has been given by the prosecution witnesses.

This inordinate delay occurred in approaching the Anti Corruption

Bureau, Amravati itself is indicative of the fact that there was something

more in the whole case than what met the eye. The possibility of

fabrication or concoction or exaggeration being made was not ruled out.

12. Then, there are also serious discrepancies in the evidence of

complainant PW 1 Namdeo about the manner in which the

demonstration regarding setting of the trap was given and same have

been discussed at length in the impugned judgment. In order to avoid

repetition, I would like to place reliance upon the observations of the

learned Special Judge made in paragraph 28 to 43 of the impugned

judgment. These observations are based upon the prosecution evidence

and I do not find them to be erroneous or contrary to law in any manner.

They further add to the doubts expressed about the prosecution case as

J-apeal173.06.odt 10/10

against the respondent. As if this is not enough, even the shadow

witness i.e. PW 2 Arvind Bansod's evidence appears to be of unreliable

nature as admittedly, he was told to depose in the Court as stated in the

panchanama as well as in his statement and that just before the

deposition, he was made to go through the panchanama and his

statement. The learned Special Judge, by relying upon the settled law

(paragraph 28 of the impugned judgment) has held that version of this

witness is inadmissible in evidence and deserves to be ignored. No fault

could be found in the approach so adopted by the learned Special Judge.

The Panch No.2, PW 3 Ravindra Agarkar, turned hostile to the

prosecution and his evidence, therefore, has been rightly ignored by the

learned Special Judge.

13. In the circumstances, I do not see any illegality or perversity

in the impugned judgment and order. The appeal deserves to be

dismissed and it is dismissed accordingly.

JUDGE

okMksns