The State Of Mah.Acb Bhandara vs Pritilal Jaipal Patle
2017 Latest Caselaw 2601 Bom

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                                                      1

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

                               CRIMINAL APPEAL NO.454/2005

     APPELLANT:                 The State of Maharashtra, 
                                Through Police Inspector, 
                                Anti Corruption Bureau, Bhandara.

                                               ...VERSUS...

     RESPONDENT :    Pritilal Jaipal Patle, 
                     Aged about 45 years, Senior Clerk 
                     in the office of Sub-Divisional (Revenue), 
                     Gondia, Distt. Gondia.

     --------------------------------------------------------------------------------------------------
                       Shri K.R. Lule, Addl. P.P. for appellant
                       Shri Shashikant Borkar, Advocate for respondent 
     --------------------------------------------------------------------------------------------------

                                                    CORAM  :  SMT. VASANTI  A  NAIK, J.

                                                    DATE    :   23.05.2017 

     ORAL JUDGMENT  

By this appeal, the State of Maharashtra challenges the

judgment of the Additional District Judge, Gondia, acquitting the

respondent - accused of the offences punishable under Sections 7, 13 (1)

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

1988.

2. Few facts giving rise to the appeal are stated thus :-

There were several litigations pending between

complainant Pramodsingh and Mr. Jaiswal and one of the proceedings

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between the said parties was pending before the Sub Divisional

Magistrate, Gondia. The complainant became aware that Mr. Jaiswal had

applied to the Sub Divisional Magistrate for grant of police protection and

the Sub Divisional Magistrate had entertained his request. The

complainant therefore applied to the Sub Divisional Magistrate, Gondia

for grant of certified copy of the order dated 5.3.2000 on 27.3.2000. The

charges for securing the certified copy of the order were deposited in the

Tahsil office. At the relevant time, the concerned file pertaining to the

matter before the Sub Divisional Magistrate was in the custody of

Mr. Pardhi, who was working as a Senior Clerk in the Tahsil office. The

complainant repeatedly met Mr. Pardhi for issuance of a certified copy of

the order but the concerned record was not traced out. On transfer of

Mr. Pardhi, the respondent - accused took the charge as a Senior Clerk.

The complainant then approached the accused for searching the record.

According to the prosecution case, ten days before 3.1.2001, when the

complainant met the Sub Divisional Magistrate, Gondia and made a

grievance in respect of the non-supply of the certified copy, the Sub

Divisional Magistrate, Gondia directed the complainant to meet the

accused. The complainant requested the accused to search out the file and

the accused assured the complainant that he would trace out the same.

The complainant became aware from Mr. Nandgaye, who was working as

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a Clerk in the copying section, that he has not received the record for the

preparation of the certified copy. The complainant therefore again met

the accused and after showing the file to the complainant, the accused

assured the complainant that he would forward the same to

Mr. Nandgaye. On 2.1.2001 at about 12:00 noon the complainant met the

accused and asked him whether his file was sent to the copying section. It

is the case of the prosecution that at that time, the accused demanded a

sum of Rs.100/- from the complainant. The complainant told the accused

that he should first handover the certified copy to him and then he would

pay a sum of Rs.100/-. When the accused asked the complainant to pay

money first, the complainant told him that at that point of time he did not

have the money and that he would meet him later. On the same day at

about 4:30 p.m. the complainant went to the office of the accused along

with one Dilipsingh Gaherwar. The accused told the complainant that if

he pays Rs.100/-, his file would be sent to Mr. Nandgaye. The

complainant assured the accused that he would pay Rs.100/- within two

weeks. Since the complainant did not wish to pay the amount to the

accused, he lodged a complainant to the Anti Corruption Department. The

pre-raid procedure was explained to the complainant and after

completing the procedure, the complainant and Mr. Jangde the panch

went to the office of the Sub Divisional Magistrate. The accused was

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however not found in his chair. The accused entered into the office along

with two-three other persons and the complainant asked him while

entering the office whether the work was done. The accused told the

complainant to pay the money because his work was done and then the

complainant took out the currency note of Rs.100/- from the pocket of his

shirt and by his right hand fingers handed it to the accused. The accused

accepted the currency note by his right hand and kept it in the right side

pocket of his pants. The complainant immediately came out and gave a

signal as decided and the other members of the raiding party rushed to

the place where the accused was sitting and conducted the necessary

tests. After completing the formalities, the relevant papers were

forwarded through the Superintendent of Police, Anti Corruption Bureau

to the Collector for according the sanction to prosecute and after

according of the sanction, the accused was charge-sheeted in the Court.

The accused denied that he was involved in the case and it was stated that

the amount of Rs.100/- was accepted by him towards repayment of the

borrowed amount. The accused denied that he had made any illegal

demand. The prosecution examined P.W.1 - Rajesh Jangde the panch

witness, P.W.2 - Methilal Nandgaye the copying Clerk, P.W.3 -

Lokeshchandra Sharma, the Competent Authority, who accorded the

sanction, P.W.4 - Ravindra Kumbhare, the Sub Divisional Magistrate who

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had issued the direction for grant of certified copy and P.W.5 -

Pramodsingh Rana, the complainant himself. The accused did not tender

any evidence and tried to defend his case on the basis of the cross-

examination of the prosecution witnesses. On an appreciation of the

evidence on record, the Additional District Judge, Gondia by the judgment

dated 21.4.2005, acquitted the accused of the offences punishable under

Sections 7, 13 (1) (d) read with Section 13 (2) of the Prevention of

Corruption Act. The judgment of the Additional District Judge, Gondia is

challenged by the State Government in this appeal.

3. Shri Lule, the learned Additional Public Prosecutor

appearing for the State Government submitted that the trial Court had

erroneously disbelieved the evidence of the prosecution witnesses in

respect of the prior demand and the demand at the time of trap. It is

submitted that the prosecution had led cogent evidence to prove the prior

demand as well as the demand at the time of trap. It is submitted that

there was no inconsistency in the evidence of the prosecution witnesses in

respect of material particulars pertaining to the case of demand and

acceptance. It is stated that the demand has been proved by the testimony

of the complainant. It is stated that the evidence of the prosecution

witnesses has not been appreciated by the trial Court in the right

perspective while holding that the prosecution had failed to prove that

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there was demand and acceptance of illegal gratification. It is submitted

that the Chemical Analyzer's report also supported the case of the

prosecution that the accused had accepted the money from the

complainant and there was an illegal demand for the same. It is stated

that the trial Court could not have disbelieved the case of the prosecution

in respect of the demand on the ground that Dilipsingh Gaherwar who

had accompanied the complainant when the demand was made by the

accused, was not examined as a prosecution witness. It is submitted that

on an appreciation of the evidence tendered by the prosecution in its

entirety, the trial Court should have held that the offence against the

accused was proved.

4. On a perusal of the record and proceedings as also the

judgment of the trial Court, it appears that the following points arise for

determination in this criminal appeal :-

(1) Whether the trial Court has rightly acquitted the accused of the offences punishable under Sections 7, 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act.

(2) What order ?

5. While deciding this appeal, it would be necessary to remind

myself that I am dealing with the judgment of acquittal and hence, it

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would be further necessary to bear in mind the well settled principle of

law that where two views are possible, the judgment cannot be interfered

with. By keeping this principle in view, it would be necessary to consider

the evidence tendered by the prosecution witnesses in support of the

prosecution story. The application for grant of certified copy was made by

the complainant on 27.3.2000. At the relevant time, the accused was not

the concerned Clerk, who could have possessed the file as Mr. Pardhi was

then working as a Clerk in the Tahsil Office. It is an admitted position that

after making an application for certified copy on 27.3.2000, the

complainant time and again met Mr. Pardhi in the matter of grant of

certified copy. The record of the case was however not traceable. Nothing

is placed on record to show as to when Mr. Pardhi was transferred from

the post of Senior Clerk from the concerned Tahsil office and as to when

the accused joined his duties as a Senior Clerk in place of Mr. Pardhi. As

per the testimony of the complainant, he first met the accused in the

matter of grant of certified copy in November-December, 2000 and the

accused assured him that he would trace the file. In his evidence, which is

duly considered by the trial Court, the complainant has testified that the

accused demanded Rs.100/- from him when he met him in the Month of

December, 2000 and again met him on 1.1.2001. The complainant

deposed in his evidence that he assured the accused that he would pay

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him after his work was done. He has further deposed that on 2.1.2001, he

again met the accused to find out whether the file was handed over to

Mr. Nandgaye for copying. The trial Court compared the testimony of the

complainant in respect of the demand with the statements in the

complaint made by him to the Anti Corruption Department, Exh.35. In his

complaint, the complainant has stated that the accused had told him on

1.1.2001 that he would search for the file and send it to Mr. Nandgaye. It

is stated in the complainant that on 2.1.2001, when he met the accused at

12:00 noon and asked him whether his file was sent to Mr. Nandgaye, the

accused told him that the complainant should pay him Rs.100/- towards

expenses and that he would send the file to Mr. Nandgaye. It is stated in

the complaint at Exh.35 that on the same day, i.e., 2.1.2001, the

complainant went with Shri Dilipsingh Gaherwar to the Tahsil office and

in the presence of Dilipsingh Gaherwar the accused asked him to pay

Rs.100/- so that the file could be sent to Mr. Nandgaye. It is then

mentioned in the complaint that the complainant assured the accused that

he would pay the amount in two days. The trial Court has rightly

considered that the version of the accused in the complaint at Exh.35 does

not refer to any illegal demand of Rs.100/-, as in the complaint it is stated

that the accused asked Rs.100/- towards expenses. In the complaint, the

complainant had stated that the amount of Rs.100/- was first demanded

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on 2.1.2001 at 12:00 noon and thereafter at 4:30 p.m. when Dilipsingh

Gaherwar was accompanying the complainant. The trial Court therefore

rightly found that there were material contradictions in the evidence

tendered by the complainant and the complaint filed by him at Exh.35.

The trial Court noted that in respect of the prior demand, in his

deposition the complainant had stated that the amount of Rs.100/- was

demanded from him in the Month of December, 2000, 1.1.2001 and

2.1.2001, whereas in the complaint at Exh.35, according to the

complainant, the amount was first demanded at 12:00 noon on 2.1.2001

and then at 4:30 p.m. on the same day. Apart from the aforesaid glaring

inconsistency, the trial Court noted that though according to the

complainant he was accompanied by Mr. Dilipsingh Gaherwar on

2.1.2001 at 4:30 p.m. when the accused demanded money, Mr. Dilipsingh

Gaherwar was neither interrogated by the Investigating Officer nor was he

examined as a prosecution witness. Also, the complainant failed to tender

evidence in respect of the presence of Mr. Dilipsingh Gaherwar when the

accused made the illegal demand at 4:30 p.m. on 2.1.2001. The trial

Court rightly considered the evidence of the complainant in his cross-

examination, where he had admitted that Mr. Dilipsingh Gaherwar is his

maternal father-in-law who resided at a distance of 3 kilometers from

Gondia. The complainant also admitted in his cross-examination that ten

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days after 2.1.2001, he had met Mr. Dilipsingh Gaherwar. The trial Court

rightly held that if Mr. Dilipsingh Gaherwar was available for

interrogation and was very closely related to the complainant, it was

necessary for the prosecution to explain as to why Mr. Dilipsingh

Gaherwar was not interrogated on the point of demand.

6. Apart from the aforesaid, the trial Court further noted that

there was a discrepancy in respect of the place where the complaint was

recorded, whether it was recorded at Nagpur or at Bhandara. It was

found by the trial Court that there was a glaring contradiction in the

evidence pertaining to the demand at the time of raid in the evidence of

the complainant and P.W.1 - Jangde, the panch witness. In respect of the

demand on the date of trap, P.W. 1- Jangde deposed that when the

complainant and Mr. Jangde entered into the office room and reached

near the chair of the accused at 12:30 p.m. on 4.1.2001, there was some

disturbance and noise due to the talks between the employees in the

adjoining hall. P.W.1 - Jangde stated in his evidence that the complainant

and the accused had some talk in connection with the work but due to the

disturbing noise from the adjoining room he could not hear the exact

conversation between them though they were talking for half a minute.

P.W.1 - Jangde stated that he heard the accused say, "Aap Paise De Do

Aapka Kam Ho Jayega" and the complainant then immediately handed

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over the currency note of Rs.100/- to the accused saying "take your

money". Though P.W.1 - Jangde had stated in his examination-in-chief

that due to the disturbing noise he could not hear the exact conversation

between the complainant and accused, he stated in his cross-examination

that he had heard the accused saying "Aap Paise De Do Aapka Kam Ho

Jayega". The trial Court tested this version of P.W.1 - Jangde with the

testimony of the complainant. The complainant had deposed that he had

asked the accused when he was standing outside the office whether the

work was done and the accused went inside the office, sat on his chair

and told him that the file had been sent to Mr. Nandgaye. The trial Court

found that there was a discrepancy in the evidence of P.W.1 - Mr. Jangde

and the complainant in respect of material particulars pertaining to the

demand at the time of the trap. The trial Court found that though P.W.1 -

Mr. Jangde had stated in his cross-examination that the accused told the

complainant that "Aap Paise De Do Aapka Kam Ho Jayega", such was not

the version of the complainant in his evidence. The trial Court has

therefore rightly held that it was very difficult to rely on the case of the

prosecution that there was a demand by the accused during the trap. The

trial Court, after scanning the evidence of P.W.1 - Jangde and the

complainant, observed and rightly so that the benefit of doubt should go

to the accused on the point of demand and acceptance in view of the

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glaring discrepancies in the evidence of P.W.1 - Jangde and the

complainant. Apart from recording the aforesaid findings, the trial Court

recorded a finding, on a proper appreciation of the material on record

that the Chemical Analyzer's report also did not support the case of the

prosecution in regard to the acceptance of the amount by the accused.

Though it is the case of the prosecution that the accused accepted the

currency note and dealt with the same by both his hands, the complainant

did not say so in his evidence. The trial Court found that the prosecution

had failed to explain as to why there was an application of

phenolphthalein powder to the left hand fingers of the accused, as

according to P.W.6, the accused was asked to dip his right and left hand

fingers in the solution comprising of sodium carbonate and water. The

trial Court found that in the Chemical Analyzer's report

phenolphthalein powder was found to have been detected on the pants of

the accused. The trial Court held that if the complainant and P.W.1 -

Jangde had stated that the accused accepted the currency note by his right

hand and put it in the side pocket of the pants, the Chemical Analyzer's

report should have recorded the existence of traces of sodium carbonate,

which it did not. After considering that P.W.1 - Jangde had admitted the

portion marked "A" in the panchanama which read that after washing the

glass when again sodium carbonate solution was prepared and the

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complainant's right hand fingers were dipped in the same, the colour of

the solution did not change. If the complainant had given the tainted

bribe money of Rs.100/- to the accused by his right hand fingers and if

the portion marked "A" in the panchanama showed that the colour of the

solution did not change, the trial Court observed that it was doubtful in

what manner the currency note was given to the accused as it was the

case of the prosecution that the currency note was given to the accused by

the complainant by the fingers of his right hand. Several other material

discrepancies were noted by the trial Court while holding that the

prosecution story in regard to the demand and acceptance of illegal

gratification was doubtful. The trial Court held, by appreciating the

evidence of the prosecution witnesses that the prosecution had failed to

prove the prior demand, the demand at the time of the trap as also the

acceptance of the money with the help of substantive and cogent

evidence. Though at the time of the trap two ladies and one Mr. Bagde

were present in the office of the accused, the ladies were not examined

before the Court though their statements were recorded by the police and

Mr. Bagde was neither interrogated by the police nor was his evidence

recorded though they were important witnesses, who could have had an

occasion to see the acceptance of the money by the accused. The trial

Court also observed that the complainant had complained on earlier

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occasion that a police head constable had accepted a bribe of Rs.1000/-

from him. The trial Court observed that the evidence of the complainant

was not worthy of credit, more so, when he had made two inconsistent

statements pertaining to material particulars in respect of the demand

while making the complaint at Exh.35 and while tendering the evidence.

It cannot be said that the trial Court has committed an error in

disbelieving the case of the prosecution as also the testimony of the

complainant on the basis of the prosecution evidence. By taking into

consideration the circumstances of the case, the trial Court rightly came to

a conclusion that the accused was entitled to be acquitted of the offences

punishable under Sections 7, 13 (1) (d) read with Section 13 (2) of the

Act as the prosecution had failed to prove its case beyond reasonable

doubt. The view expressed by the trial Court is not only a possible view,

but a reasonable view. It is well settled that though the powers of the

appellate Court while considering the appeal against acquittal are

extensive and similar to the powers of the appellate Court while deciding

the appeal against the judgment of conviction, the appellate Court would

be generally loath in disturbing the findings of facts recorded by the trial

Court. In the instant case, since the trial Court has recorded the findings

of facts on a proper appreciation of the evidence on record, there is no

scope for interference with the judgment of the trial Court in this appeal.

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Hence, the criminal appeal is dismissed with no order as to

costs.

JUDGE

Wadkar