Hiroji Gagngaramji Dalvi vs State Of Mah. Thr. A.C.B. ...
2017 Latest Caselaw 7011 Bom

 apeal59.04.J.odt                          1




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


                      CRIMINAL APPEAL NO.59 OF 2004


          Hiroji s/o Gangaramji Dalvi
          Aged about 45 years,
          Occupation: Police Sub-Inspector,
          Resident of Virur, Tahsil Rajura,
          District: Chandrapur.           ....... APPELLANT

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

          State of Maharashtra,
          through Police Inspector,
          Anti Corruption Bureau,
          Chandrapur.                               ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri A.S. Jaiswal, Senior Counsel for Appellant.
          Mrs. M.H. Deshmukh, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            12    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               Challenge is to judgment dated 15.01.2004 delivered

by Special Judge, Chandrapur in Special Case 2/1998, by and

under which, the appellant (herein after referred to as "the

accused") is convicted of offence punishable under sections 7 and

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

Act, 1988 and is sentenced to suffer rigorous imprisonment for a

period of one year and to pay fine of Rs.1000/-.

2] Heard Shri Anand Jaiswal, the learned Senior

Counsel for the appellant and Mrs. M.H. Deshmukh, the learned

Additional Public Prosecutor for the respondent/State.

3] Shri A.S. Jaiswal, the learned Senior Counsel for the

accused submits that the judgment impugned is manifestly

erroneous since the prosecution has failed to prove a definite and

conclusive demand, beyond reasonable doubt. The learned

counsel would urge, relying on the judgments of the Hon'ble

Supreme Court in B. Jayaraj vs. State of Andhra Pradesh (2014)

13 SCC 55, P. Satyanarayana Murthy vs. District Inspector of Police,

State of Andhra Pradesh and another (2015) 10 SCC 152 and the

relatively recent judgment in Mukhtiar Singh (Since Deceased)

through his L.R. vs. State of Punjab, 2017 (7) SCALE 702, that

proof of a definite, unambiguous and conclusive demand is a sine

quo non for constituting offence/s punishable under the

Prevention of Corruption Act, 1988 ("Act" for short). The learned

Senior Counsel invites my attention to the evidence of the

complainant who is examined as P.W.1 and then contends that

the complainant has not supported the prosecution on the aspect

of demand. The shadow panch who is examined as P.W.4 has also

not deposed that the accused made a definite demand.

The prosecution also examined the son of the complainant

(P.W.2) on the aspect of demand. However, even P.W.2 has not

supported the prosecution.

4] The learned Senior Counsel would urge that in the

absence of proof, much less proof beyond reasonable doubt, that

the accused demanded illegal gratification, the alleged recovery of

the tainted currency notes pales into insignificance.

The conviction is a moral conviction than a legal conviction, is the

submission.

5] The learned Senior Counsel would urge that an

accused under the act cannot be treated differently than an

accused facing prosecution under any other penal law.

The accused is presumed to be innocent, till such time the guilt is

established by proof of demand and acceptance of illegal

gratification, beyond reasonable doubt. The learned Senior

Counsel would urge that the presumption of innocence is

available to the accused till the end of the trial and the burden on

the prosecution to prove the offence under the act beyond

reasonable doubt does not ever shift. He would rely on the

judgment of the Supreme Court reported in A. Subair vs. State of

Kerala (2009) SCC Vol.6 587.

6] Mrs. Deshmukh, the learned A.P.P. in rebuttal would

submit that the learned Special Judge is absolutely justified in

basing the conviction on the corroborative evidence on record.

She would further submit that although the complainant has not

supported the prosecution and has attempted to explain the

exchange of an amount of Rs.500/- between the complainant and

the accused, the learned Sessions Judge cannot be faulted for

rejecting the explanation as improbable and afterthought.

7] I have given my anxious consideration to the evidence

on record and to the reasoning of the learned Special Judge. I am

inclined to agree with the learned Senior Counsel for the accused,

that the prosecution has failed to establish the very sine quo non

for constituting an offence under the act, which is the proof

beyond reasonable doubt of demand. It is axiomatic, that in the

absence of proof of conclusive and definite demand, the other

aspects like the recovery of the tainted currency notes etc. are

rendered insignificant.

8] The case of the prosecution, as can be culled out from

the complaint/report dated 02.07.1996 lodged by the complainant

(P.W.1) with the Anti Corruption Bureau ("ACB" for short) is thus.

The complainant is an agriculturist owning land admeasuring

10 acres. He has two sons, the elder son is Raghoba who is

married. Shorn off unnecessary details, the complainant alleged

that for various domestic reasons, there was an altercation

between the complainant and the elder son Raghoba.

The altercation and the strained relationship culminated in

Raghoba allegedly attempting to assault the complainant by

catching the collar of the complainant. This provoked the other

son Dhanraj into inflicting two stick blows on Raghoba.

Raghoba lodged a complaint with the Virur Police Station.

The complaint states that the accused was the Investigating

Officer and the accused recorded the statement of the

complainant and Dhanraj. The complainant requested Raghoba to

withdraw the complaint and the response from Raghoba was that

he would think over it and decide in a day or two. Raghoba, went

to the Police Station on 29.06.1996 and requested the accused not

to act on the complaint. On the next day i.e. 30.06.1996 the

accused summoned the complainant to the Police Station.

The complainant along with his other son visited the Police

Station, the accused was not available. In the afternoon, the son of

the complainant, however, met the accused at the Police Station

and was told by the accused to bring Rs.500/- if the complainant

and his son desired that no action should be initiated on the basis

of Raghoba's complaint. The demand was conveyed to the

complainant, on 02.07.1996 the complainant met the accused and

the demand was reiterated. The accused did not have any option

but to agree to pay Rs.500/- on 03.07.1996. The complainant was

not willing to pay the bribe and approached the A.C.B.

9] The witnesses have however, not supported the

prosecution version as is reflected in the complaint.

The complainant, who is examined as P.W.1 did not support the

prosecution, was declared hostile and cross-examined by the

learned A.P.P. P.W.1 has deposed that the accused did not

demand Rs.500/- as bribe. Au contraire, the evidence of P.W.1 is

that he was summoned to the Police Station and adviced that the

father (complainant) and son (Raghoba) should not quarrel and

that the complainant should give some amount to his son

Raghoba. P.W.1 has deposed that all that the accused was

conveyed was that some amount should be paid by the

complainant to the son of the complainant Raghoba and that this

was misunderstood by the complainant who suspected that the

accused was demanding some amount for himself. P.W.1 is

subjected to an intensive cross-examination. However, he

steadfastly maintains that no bribe was demanded and that the

amount paid was the amount demanded by the accused to be paid

to the son of the complainant. The other son of the complainant

Dhanraj was examined as P.W.2 to prove the initial demand.

However, P.W.2 also did not support the prosecution, was

declared hostile and cross-examined by the learned A.P.P. P.W.2

states that the accused told the complainant that since Raghoba

sustained injuries, some amount as medical expenses should be

given to him by P.W.1 and P.W.2. Nothing is elicited in the

cross-examination of P.W.2 to take the prosecution case any

further. The shadow panch who is examined as P.W.4 has also not

supported the prosecution entirely. The shadow panch P.W.4 has

deposed in paragraph 3 of the examination-in-chief that when he

and the complainant met the accused inside the room, it was the

complainant who told the accused that he had brought the money.

The shadow panch P.W.4 does not state that this was said in

response to a demand by the accused. The only other statement is

that when he was standing at the door, the accused asked the

complainant as to whether he had brought the money and in

response the complainant replied that he had indeed brought the

money. The evidence of the shadow panch P.W.4 again is of little

assistance to the prosecution. The evidence is not inconsistent

with the version of the complainant. The complainant and his son

(P.W.1 and P.W.2) are in unison in asserting that there was no

demand for illegal gratification and that the accused only

suggested that some amount be paid to Raghoba the other son of

the complainant.

10] If the evidence on demand is tested on the anvil of

the law articulated by the Hon'ble Supreme Court, it is clear that

the prosecution has failed to prove demand beyond reasonable

doubt. In this view of the matter, the judgment of conviction is

absolutely unsustainable on facts and in law and is set aside.

11] The appeal is allowed. The appellant is acquitted of

offences punishable under Sections 7, 13(1)(d) and 13(2) of the

Prevention of Corruption Act, 1988.

 12]              The bail bond stands discharged.







 13]              The fine amount paid, if any, by the accused shall be

 refunded to him.

                                                JUDGE


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