Dattatraya Udaji Warkad vs The State Of Maharashtra
2017 Latest Caselaw 6866 Bom

 apeal319.2000.J.odt                       1




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

                     CRIMINAL APPEAL NO.319 OF 2000

          Dattatraya s/o Udaji Warkad,
          Aged about 53 years,
          Occupation: Patwari, 
          R/o Halka N.25, Village Veni,
          Taluka Lonar, Dist. Buldhana.                     ....... APPELLANT

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

          State of Maharashtra, through
          A.C.B. Office, Buldhana,
          Taluka and District Buldhana.                      ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Ms. A. Sarkar, Advocate holding for Shri S.V. Sirpurkar,
          Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:               th
                            7    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               Challenge   is   to   the   judgment   and   order   dated

23.10.2000 in Special Anti Corruption Case 092/1992 delivered

by the Judge, Special Court, Buldhana, by and under which, the

appellant is convicted of offence punishable under sections 7, 13

(1)(d) read with section 13(2) of the of the Prevention of

Corruption Act, 1988 (hereinafter referred to as the "Act") and is

sentenced to suffer rigorous imprisonment for a period of one year

and to pay fine of Rs.1000/-.

2] The gist of the prosecution case is that the appellant

(hereinafter referred to as "the accused") allegedly demanded a

bribe from the complainant one Ramkisan Laxman Dange to effect

mutation of the name of the complainant and other legal heirs of

late Laxman Ashru Dange in the agricultural land recorded in the

name of late Laxman Ashru Dange in revenue record.

The complainant has two brothers and three sisters.

The agricultural land situated in village Mohotkhed, which is

recorded in the name of the late father of the complainant, is

managed by the complainant and his mother. The complainant

and his brothers were desirous of selling the land to one Laxman

Sathe and accordingly entered into an agreement of sale with the

said Laxman Sathe. In order to give effect to the agreement, it was

necessary to obtain updated 7/12 extract and the heirship

certificate from the Patwari. The complainant approached the

Patwari-accused on 25.04.1992 and was told by the accused that

since the land is recorded in the name of the father of the

complainant, it would take at least one year to effect changes in

the revenue record. The accused demanded Rs.500/- from the

complainant to expedite the work. The accused expressed inability

to pay Rs.500/- and the demand was reduced to Rs.400/-.

The complainant met the accused on 27.04.1992 and was

informed by the accused that the documents are ready and asked

the complainant whether he had brought Rs.400/-.

The complainant answered in the negative and was then asked by

the accused to come with the amount on the next day and take

the document. The complainant was unwilling to pay the bribe

and lodged report with the Anti Corruption Bureau, Buldhana

(ACB). The ACB made elaborate preparation to trap the accused,

panchas were summoned, necessary instructions were issued to

the complainant and the panchas and the demonstration of the

phenolphthalein powder and the sodium carbonate solution test

was given.

3] The prosecution case is that the trap was successfully

executed on 28.04.1992. The complainant and the shadow panch

met the accused at the residence of the accused. The accused was

sitting on a carpet, three persons were already there, who left

after 10 to 15 minutes. The complainant asked the accused if the

work is done and then the accused asked the complainant

whether he has brought the form. The complainant said to the

accused that the form is not brought assuming that the

complainant will do the complete work. The accused filled the

form and handed over the 7/12 extract to the complainant.

The complainant received the 7/12 extract, kept the same in his

pocket and was about to leave when the accused demanded the

illegal gratification by a gesture. The complainant paid the

amount, the accused accepted the same and kept the tainted

currency note under his right hip. The complainant came out of

the residence of the accused, gave the predetermined signal, the

raiding party rushed to the spot and apprehended the accused.

The right hand fingers of the accused were subjected to the

phenolphthalein test which was positive. The currency notes were

recovered from the carpet. The ACB completed the investigation,

sought and obtained the statutory sanction and presented the

charge-sheet. The accused pleaded not guilty and claimed to be

tried. The prosecution examined five witnesses including the

sanctioning authority (P.W.1), the complainant Ramkisan Dange

(P.W.2), Head Constable Dhondu s/o Kisan Karutle who

registered the offence (P.W.3), shadow panch-panch 1 Ashok s/o

Gajanan Dalal (P.W.4) and Deputy Superintendent of Police,

Deshmukh the Investigating Officer (P.W.5). The defence is of

total denial and false implication.

4] Ms. Sarkar, the learned counsel would contend that

the prosecution has miserably failed to prove, much less prove

beyond reasonable doubt that the accused demanded illegal

gratification. She would contend that both the complainant and

the shadow panch are in unison in claiming that the demand was

by gesture. She would contend that the testimony of the

complainant (P.W.2) and the testimony of the shadow panch

(P.W.4), is inconsistent and marred by inter se contradiction on

the aspect of the gesture allegedly made by the accused.

She would then contend, that even if the version that certain

gestures were made is to be believed, the prosecution has not

established a conclusive demand. The learned counsel would

contend that the finding of the learned Special Judge that the

gesture constitutes demand is manifestly erroneous and borders

on perversity.

5] Ms. Sarkar would invite my attention to the

judgments of the Hon'ble Supreme Court in Mukhtiar Singh (Since

Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702

and P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4

SCC 39 and B. Jayaraj vs. State of A.P. 2014 All SCR 1619 to

contend that irrefutable proof of decisive demand is a condition

precedent for bringing home charge under the provisions of the

Act and that neither possession nor recovery of currency notes

without proof of demand can constitute offence under the Act.

6] Ms. A. Sarkar would then contend that after the

introduction of section 165-A in the Indian Penal Code, the

complainant is an accomplice since a bribe giver is equally guilty

as an abettor. She would contend that, even otherwise, the

evidence of the complainant and the panch must be closely

evaluated and tested on the touchstone of caution since the

complainant and the panch are partisan witnesses who are vitally

interested in the success of the trap. She would rely on the

judgment of the Hon'ble Supreme Court in Pannalal Damodar

Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121.

Ms. Sarkar would further urge that a person who is accused of an

offence punishable under sections 7 and 13(1)(d) read with

section 13 (2) of the Act is entitled to the same treatment as a

person accused of any other penal offence. The submission is, that

the presumption that an accused is innocent till the guilt is

established beyond reasonable doubt applies with equal vigour to

prosecution under the act. She would submit that the accused

must be presumed to be innocent till the demand and acceptance

of illegal gratification is proved beyond reasonable doubt and in

support of the said submission the learned counsel would rely on

A. Subair vs. State of Kerala (2009) SCC Vol.6 587.

7] The learned A.P.P. would urge that the prosecution

has conclusively established demand for illegal gratification.

He would submit that there is no infirmity in the finding of the

learned Sessions Judge that the gesture of the accused constitutes

demand. The evidence on demand, according to learned A.P.P., is

corroborated by the recovery of the tainted currency notes.

The learned A.P.P. would submit that there is no infirmity in the

judgment impugned.

8] The evidence of P.W.1 on initial demand is absolutely

uncorroborated. The evidence on demand on the date of the trap

is that he asked the accused if the work is done, the accused asked

the complainant whether the form is brought and upon the

complainant replying in the negative, the accused prepared the

7/12 extract and handed over the same to the complainant.

The complainant states that he kept the 7/12 extract in pocket

and then signed the register at the instance of the accused. It was

only when the complainant was getting up that the accused made

a demand by making gesture by his right hand. The complainant

states that the accused kept the notes below the shirt cloth.

The shadow panch who is examined as P.W.4 states that when he

and the complainant got up to leave, the complainant made

gesture by his finger demanding the amount. The complainant

handed over the currency note which the accused accepted and

kept under his right leg.

9] Concededly, there was no demand before the

preparation and handed over of the 7/12 extract. The 7/12

extract was prepared, handed over to the complainant and the

signature of the complainant was taken in the register.

The complainant and the shadow panch both state that it is

thereafter, when they got up to leave, that the amount was

demanded through gesture. In view of the settled legal position

that a conclusive and definite demand must be proved beyond any

reasonable doubt for constituting offence punishable under the

act, I am not inclined to agree with the contention of the learned

A.P.P. that the alleged gestures, which pertinently are not

described with any particularity, constitute demand.

The prosecution case has too many grey areas and doubtful facets

for this court to uphold the finding that a conclusive and definite

demand is proved beyond reasonable doubt. It is axiomatic, that

in absence of such a demand, the alleged acceptance of the

currency note or the recovery of the note from the accused, pales

into insignificance, I may also note that the recovery of the

currency note is also not free from doubt. The notes are allegedly

recovered from below the carpet by panch 2, who incidentally is

not examined. The recovery from the currency note from under

the carpet is inconsistent with the testimony of both the

complainant and the shadow panch. The complainant P.W.2 states

that the currency notes were kept by the accused below the shirt

cloth while the shadow panch states that the notes were kept

under right leg (hip). I need not dwelve in great detail on the

evidence of the prosecution on the aspect of the acceptance and

recovery of currency notes since I have recorded a finding that the

demand, which constitutes the sine quo non for constituting the

offence under the act, is not establish beyond reasonable doubt.

10] In the light of the discussion and findings recorded

supra, the appeal is allowed. The judgment impugned delivered

by the Special Judge, Buldhana on 23.10.2000 in Special Anti

Corruption Case 092/1992 is set aside. The appellant is acquitted

of the offences punishable under sections 7, 13(1)(d) r/w 13(2) of

the Prevention of Corruption Act, 1988. His bail bond shall stand

discharged. Fine paid, if any, by the appellant shall be refunded to

him.

The appeal is disposed of accordingly.

JUDGE

NSN