State Of Mah. Thru P.S.O vs Gokul S/O Premdas Chavhan
2017 Latest Caselaw 2622 Bom

                                                                                                     c.appeal.329.07
                                                             1


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

CRIMINAL APPEAL NO. 329/2007

State of Maharashtra Through Police Station Officer, Pusad (city) Through P.I., ACB Yavatmal Tq.Pusad, Dist. Yavatmal .. APPELLANT

v e r s u s

Gokul s/o Premdas Chavhan Aged about 43 years occu: Service as Talathi R/o Paradh, Tq.Pusad, Dist.Yavatmal. .. ... RESPONDENT

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Mr. Mukund Ekre, Additional Public prosecutor for appellant Mr. Amit Bhate, Advocate h/for Mr B.G. Kulkarni, Advocate for the respondent ............................................................................................................................

CORAM: SMT. VASANTI A. NAIK, J .

DATED : 24th May, 2017 ORAL JUDGMENT:

This is a Criminal Appeal against the acquittal of the respondent/

accused in a trial against him, for the offences punishable under sections 7,

13(1)(d) read with section 13 (2) of the Prevention of Corruption Act, 1988.

2. At the relevant time, i.e. April 2006, the respondent/accused was

working as a Talathi (Class III) of Mouza Paradh, District Yavatmal. The

complainant-Avinash was in possession of 5 acres of agricultural land at

Paradh and by mortgaging the said land, he desired to secure loan from the

society. The complainant, therefore, approached the accused on 25.04.2006

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for securing the 7/12 extracts of the said field property. The accused

called the complainant on 26.04.2006 and when the complainant attended the

office of the accused, the accused demanded a sum of Rs. 100/- for supplying

the necessary documents. On 27.04.2006, instead of attending the office of the

accused and paying him a sum of Rs. 100/-, the complainant went to the

office of the Anti Corruption Bureau at Yavatmal and the complaint was

reduced into writing. A trap was laid after explaining the pre-trap procedure

to the complainant. According to the prosecution case, during the trap on

27.04.2006 in the house of the accused a currency note in the denomination

of Rs.100/- was paid by the complainant to the accused and the 7/12 extract

was prepared by the accused and handed over to the complainant. A first

information report was lodged and after the investigations were completed,

the trial Court framed the charges against the accused. The accused pleaded

not guilty and in his defence, stated that Rs. 100/- was not paid to him as

bribe money but was paid to him for deducting the charges required for

securing the certified copies for want of change. The accused stated that

before the change could be brought, he was falsely implicated. The

prosecution examined as many as four witnesses, ie, PW 1-complainant

Avinash(PW 2), Vijay Sedam, Panch No.1, Ashok Mairal (PW 4), the

Investigating Officer. On an appreciation of the evidence tendered by the

prosecution, the trial Court held that the evidence of the prosecution was not

cogent, satisfactory and reliable and, on the basis of the said evidence, the

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prosecution could not prove that the accused had demanded and accepted

the bribe of Rs. 100/- from the complainant. After granting the benefit of

doubt to the accused, the trial Court acquitted the accused of the offences

punishable under sections 7, 13 (1)(d) read with section 13 (2) of the Act of

1988. The judgment of the Special Judge, dated 23rd May 2007, is challenged

by the State of Maharashtra, in this Appeal.

3. Shri Mukund Ekre, the learned Additional Public Prosecutor appearing

for the State Government submitted that the trial Court has wrongly accepted

the explanation of the accused that the accused wanted to return a sum of

Rs. 90/- to the complainant after deducting the charges for securing the

certified copies of the documents required by the complainant and before the

said amount could be returned, the accused was falsely implicated in the case.

It is submitted that the Court ought to have relied on the testimony of the

complainant and the Panch witness, to hold that the accused had accepted an

amount of Rs.100/- as bribe, on the date of the trap, on 27.04.2006. It is

submitted that the trial Court wrongly gave undue weightage to some of the

admissions in the cross-examination of the panch witness and the Investigating

Officer, to hold that the amount of Rs. 100/- was not paid on the illegal

demand by the accused. It is submitted that merely because PW 2 and PW

4 had admitted in their cross-examination that there was no glitter in the

drawer in which Rs.100/-currency note was placed and that nothing was

recovered from the drawer, the trial Court could not have discarded the

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testimony of the witnesses, as being unreliable. It is stated that though an

amount of Rs. 10/- may not have been tendered by the complainant to the

accused towards the charges for securing the certified copies of the

documents, it cannot be said that the bribe money of Rs. 100/- was not

received by the accused. It is stated that it is clear that the accused had made

a demand of Rs. 100/- towards bribe money that included the charges for the

certified copy and hence there was no necessity to tender a sum of Rs. 10/-

separately towards the charges for the certified copy of the documents. It is

submitted that on the basis of the circumstances and the evidence on record,

it could be clearly gathered that the accused had demanded and accepted the

bribe of Rs. 100/-.

4. On a perusal of the original record and proceedings and the judgment

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

in this Appeal:-

(i) Whether the trial Court was justified in holding that the prosecution

had failed to prove that the accused had demanded and accepted bribe money

of Rs. 100/- from the complainant ?

(ii) Whether the judgment of the trial Court calls for interference?

(iii) What order?

5. The trial Court has held that there was a valid sanction for prosecuting

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the respondent/accused who was a Government servant at the relevant time.

It would therefore be necessary to consider whether the prosecution had

tendered reliable and trustworthy evidence to prove the charge against the

accused. The prosecution has mainly relied on the evidence of complainant

Avinash, PW 2 Vijay Sedam-Panch witness no.1 and PW 4-Ashok Mairal, the

Investigating Officer. The complainant deposed that on 25.04.2006 he had

met the accused in his Office and requested him for the 7/12 extract of the

field property for the purpose of securing loan from the society. The

complainant deposed that the accused called him on the next date i.e.

26.04. 2006 and on the said day, when the complainant asked for the

certified copies, the accused asked him whether he had brought Rs. 100/-

towards the charges for the 7/12 extract. The complainant deposed that he

told the accused that he would bring the said amount on the next day but,

instead of paying the said amount to the accused on 27.04.2006, he lodged a

complaint in the Anti Corruption Bureau Office at Yavatmal, on 27.04.2006.

The complainant deposed that he went to the house of the accused along

with Panch No.1- Vijay Sedam and the accused prepared the 7/12 extract,

handed over the same to the complainant and demanded a sum of Rs. 100/-

from him. It is deposed by the complainant that he then took out a currency

note of Rs.100/- and by his right hand, handed over the same to the accused

who, in turn, accepted the same and placed it in a drawer of his table. The

complainant deposed that he then went out of the house to give a signal

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and the raiding party entered the house of the accused and seized the

currency note. In his cross-examination, the complainant admitted that the

accused had not prepared the 7/12 extract in his presence but the accused

had only put his signature and affixed the stamp on the same, on 27.04.2006.

The complainant admitted in his cross-examination that since two certified

copies were supplied to him and each of the document was liable to be issued

after payment of the charges of Rs. 5/-, he was required to pay a sum of Rs.

10/- for grant of certified copies of the two documents. The complainant

admitted in his cross-examination that he had not paid the amount of Rs. 10/-

towards the charges for obtaining the certified copies. The complainant

admitted in his cross-examination that he did not know whether the accused

was having the change of Rs. 100/-or not. He admitted in his cross-

examination that the drawer of the table of the accused and the adjoining

area was not checked with the help of ultra-violet lamp, to find out whether

there was any glitter in the drawer.

6. Panch No.1-Vijay Sedam deposed that Panch No.2 had taken out the

currency note from the drawer of the table in which the glitter was noticed

and then a seizure memo was prepared. In his cross-examination Vijay

Sedam, Panch no.1, admitted that he did not know what talk took place

between the complainant and the accused, before the trap. Panch No.1-

Vijay Sedam stated in his cross-examination that the complainant had shown

the certified copy of the 7/12 extract and other documents to the raiding

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party. He admitted in his cross-examination that there was no other talk,

except in respect of payment of Rs. 100/- by the complainant to the accused.

The witness stated that after supplying the certified copies, the accused

asked the complainant whether money was brought and the accused talked

in Banjara language with his Assistant, after receiving Rs. 100/-. The witness

admitted that he did not know whether Rs.100/- was taken but the accused

was to return Rs.90/- to the complainant and accept Rs.10/- towards the

fees. The witness admitted that he does not know whether the Assistant of

the accused was about to bring the change for paying the same to the

complainant. Vijay, then, admitted that there was no glitter noticed in the

drawer of the table of the accused where the amount was placed. The panch

witness admitted that money was not found on the person of the accused or in

the drawer of his table.

7. The Investigating Officer deposed about the lodging of the complaint by

the complainant and about arranging of the trap on 27.04.2006. Certain

documents in the nature of the first information report, sanction order,

complaint, some reports and covering letters were placed by the Investigating

Officer on record. The investigating Officer admitted in his cross-examination

that he had not called for the confidential reports of the accused from his

office. The Investigating Officer admitted that the accused had supplied two

certified copies at Exhs. 13 and 14 to the complainant and an amount of Rs.

10/- was payable by the complainant towards the fees. The witness admitted

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in his cross-examination that the complainant was not instructed to give

separate money to the accused for the certified copies and the bribe. The

Investigating Officer showed his ignorance about the rules pertaining to the

issuance of the certified copies. The Investigating Officer admitted in his cross-

examination that when the drawer of the table of the accused was checked,

no glitter was noticed and no articles were found therein. It was admitted by

the Investigating Officer that no cash was found in the personal search of the

accused and cash was also not found in the drawer of the table of the accused.

The Investigating Officer admitted that there was nothing in the police

investigation papers to show that the complainant had paid a sum of Rs.10/-

towards charges for the certified copies other than the bribe money.

8. On an appreciation of the evidence of the complainant, the Panch

witness No.1-Vijay Sedam, the Investigating Officer, Shri Mairal, the trial Court

came to the conclusion that the evidence tendered by the prosecution

witnesses was not reliable and the accused was entitled to the benefit of

doubt. Though it was stated by the complainant in his evidence that an

amount of Rs. 100/- was paid by the complainant to the accused as bribe in

his house on 27.04.2006, the cross-examination of Panch witness no.1, Vijay

Sedam and the Investigating Officer shows that there was no glitter in the

drawer of the table of the accused and the amount of Rs.100/- was not found,

either on the person of the accused or from the drawer of the table in his

house. The admission of the panch witness and the Investigating Officer in

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their cross-examination that there was no glitter in the drawer of the table

and the Rs.100/- note was not found in the drawer of the table, shattered the

case of the prosecution that the accused had accepted the currency note of

Rs. 100/- and placed it in the drawer of the table of his house. Though the

Investigating Officer and the panch witness no.1 had stated that the drawer

of the table was tested by the ultra-violet lamp the complainant had stated

in his cross-examination that the drawer of the table was not tested with the

ultra-violet lamp. If there was no glitter in the drawer of the table of the

accused and if the currency note was not recovered from the drawer of the

table as per the admission of the Investigating Officer and panch no.1 in their

cross-examination, it cannot be said that there was a demand and acceptance

of the bribe of Rs. 100/-. Also, there is material discrepancy in the evidence

of panch no.1-Vijay Sedam and the complainant in regard to the demand at

the time of the raid on 27.04.2006. The complainant had admitted in his

cross-examination that he had not paid the charges of Rs. 10/- for securing

the certified copies of the 7/12 extract. The Investigating Officer had also

admitted in his cross-examination that the complainant was required to pay a

sum of Rs.10/-for securing the certified copies of the two documents. The

Investigating Officer had admitted that while laying the trap, the complainant

was not instructed to pay a sum of Rs. 10/- towards charges for securing the

certified copies and Rs. 100/- separately, as bribe money. The trial Court held

that the prosecution had not produced satisfactory and reliable evidence to

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show that the accused had demanded and accepted the bribe money of Rs.

100/-. In the circumstances of the case, after giving the benefit of doubt to

the accused, the trial Court acquitted the accused of the offences punishable

under sections 7,13(1)(d), read with section 13(2) of the Act. While

acquitting the accused, the trial Court accepted the explanation of the accused

on the basis of the evidence of the complainant and Panch No.1 in their cross-

examination that the accused wanted to return a sum of Rs. 90/- to the

complainant after deducting the charges of Rs. 10/- for securing the certified

copies but, before he could do so, he was falsely implicated. The findings

recorded by the trial Court are based on a proper appreciation of the material

on record. In view if the admissions of the complainant, Panch No.1 and the

Investigating Officer in their cross-examination, the trial Court held that the

case of the prosecution was not proved. It is well-settled that it would not be

permissible for an appellate Court while deciding an appeal against an

acquittal to lightly interfere with the findings of facts recorded by the trial

Court. There is a presumption of innocence in favour of the accused and the

presumption gets further strengthened with the acquittal of the accused by

the trial Court. The view expressed by the trial Court is just and reasonable

and it cannot be said that the said view is not a possible view. Even if two

views are possible it would not be for the appellate Court to reverse a

judgment and order of acquittal of the accused. In the instant case, the trial

Court has rightly disbelieved the case of the prosecution by relying on the

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admissions made by the complainant, Panch No.1 and the Investigating Officer

in their cross-examination and granted the benefit of doubt to the accused.

In the result, the Appeal fails and is dismissed with no order as to costs.

JUDGE sahare