Bombay High Court
Madhukar Ganpatrao Bansode & Anor vs The State Of Mah. Thru Its P.S.O on 13 September, 2017
Bench: Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 159 OF 2007
1) Madhukar s/o Ganpatrao Bansode,
Aged about 51 years,
Occu:- Motor Vehicle Inspector,
R/o.-Ambejogai, Tq. Ambejegoi, Dist.Yavatmal.
2) Gopinath s/o Eknath Sahare, ..... (Dead)
Aged about 51 years,
Occu:- Peon (in the office of R.T.O.), Yavatmal,
Tq. & Dist. Yavatmal.
(Legal Heirs of appellant no.2)
L.Rs. of appellant No.2
brought on record as per
1) Smt. Pratibha wd/o Gopinath Sahare,
Court's order dated
Aged about 47 years, Occu: Household. 19.3.2010
2) Ku. Suchitra d/o Gopinath Sahare,
Aged about 22 years, Occu: Nil,
3) Swapnil s/o Gopinath Sahare,
Aged about 20 Years, Occu: Nil,
4) Ku. Priyanka d/o Gopinath Sahare,
Aged about 18 years, Occu: Nil,
All are residents of Dalit Society,
Jaibhim Chowk, Yavatmal, District. Yavatmal. .. APPELLANTS
-v e r s u s-
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The State of Maharashtra, through
its Police Station Officer, Police Station,
Yavatmal City, Yavatmal. .. RESPONDENT
...........................................................................................................................
Mr. R.B. Gaikwad, Advocate for appellant No.1.
Mr. C.N. Deshpande, (Appointed) Advocate for appellant No.2.
Mrs. Shamsi Haidar, A.P.P. for State
...........................................................................................................................
CORAM :
MRS. SWAPNA JOSHI,
J .
DATED: 13 September, 2017
th
J U D G M E N T
This Appeal has been directed against the judgment and
order dated 11th April, 2007 delivered by the learned Special Judge, Yavatmal
in Special Case No.5/1998, thereby the learned Special Judge had convicted
both the appellants (hereinafter will be referred as 'the accused') for the
offence punishable under Section 7 of the Prevention of Corruption Act, 1988
and were sentenced to suffer Rigorous Imprisonment for six months and to
pay a fine of Rs. 1000/- each, in default, to suffer simple imprisonment for one
month.
2] The learned Special Judge further convicted Madhukar
(accused no.1) for the offence punishable under Section 13 (1) (d) punishable
under Section 13 (2) of the Prevention of Corruption Act and was sentenced
to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in
default, to suffer simple imprisonment for one month.
3] I have heard Mr. R.B. Gaikwad, the learned Counsel for
appellant no.1, Mr. C.N. Deshpande, the learned Counsel for appellant no.2
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and Mrs. Shamsi Haider, the learned Additional Public Prosecutor for the
respondent/State. I have perused the entire evidence on record led by the
prosecution and the judgment passed by the learned Special Judge.
4] The prosecution case, in nutshell, is as under :-
Complainant PW-1-Ravindrakumar Hiralal Jaiswal was
running a 'Sai Driving School' at Lal Bahadur Shastri Market, Yavatmal, since
1989. He used to give training to the students for driving light vehicles. He
used to help the students for getting the learning driving licence by submitting
requisite form and paying requisite fees, from A.R.T.O., Yavatmal. After
completing the training, he used to take the students at A.R.T.O., Yavatmal to
submit their application in requisite Form No.4, with certificate of completion
of training in driving and to pay the requisite fees for getting the permanent
driving licence. On taking their driving test by the Motor Vehicle Inspector,
they used to get the permanent driving licence.
5] On 18/12/1996 the complainant along with 19 candidates
went to A.R.T.O Office, Yavatmal, for getting their permanent driving licence.
accd. no.1being a Motor Vehicle Inspector, took the driving test of 19
candidates and out of them 18 passed and one failed. It is the further case of
prosecution that, accd. no.1 had demanded the bribe amount of Rs. 2400/-,
for providing driving licence for all these candidates. As the complainant was
not having the said amount, he told accd. no.1 that he will handover the said
amount later on. On 24/12/1996, when the complainant went with one student
for getting his learning licence at A.R.T.O. Office, Yavatmal, accd.no.1
demanded the due amount of Rs. 2400/- for 18 students and Rs. 25/- for one
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learning licence of that day. Thus, accd no.1 demanded the total amount Rs.
2425/-. Accd no.1 said unless the said amount is paid to him, he would not
issue the licence. The complainant then narrated all the instances to his
father who was running the Driving School. Accordingly, father of the
complainant talked on telephone with Wadkear, the Assistant Regional
Transport Officer and instructed him to meet Wadekar after sometime. The
father of the complainant met with Wadekar, the Assistant Regional Transport
Officer. Mr. Wadekar then called accd no.1 and instructed him to issue
licence to the candidate brought by the complainant. It is the case of the
prosecution that after they came out of the cabin, accd. no.1 got annoyed
and warned him that he (complainant) shall bring the amount of Rs. 2425/-
otherwise he would not pass any of the students of his driving school. The
complainant assured to pay the said amount to accd. no.1 and went away.
6] It is the case of the prosecution that the complainant took
four candidates on 26/11/1996 at A.R.T.O. camp at Wani. It is alleged that
after the test of those students was conducted, accd. no.1 then called the
complainant and demanded him the cash amount of Rs. 100/- for four
candidates and earlier balance of Rs. 2425/-, thus total amount of Rs. 2525/-.
The complainant handed over the amount of Rs. 100/- to accd. no.1, however,
for the remaining amount of Rs. 2525/- he assured to accd. no.1 that he will
pay the earlier balance amount at Yavatmal as he was not having the amount.
It is alleged that accd. no.1 threatened the complainant that if the entire
amount is not paid to him, he would not allow to run his luxury buses and
suspend his driving school.
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7] As the complainant was not desirous to pay the said
amount to accd. no.1, therefore, he proceeded to A.C.B. Office, Yavamtal on
26/12/1996 and lodged his complaint. Mr. Survashe, P.I. A.C.B., Yavatmal
recorded the complaint of the complainant (Exhibit-54). Mr. Survashe, P.I.
A.C.B., Yavatmal instructed the complainant to come to his office on next day
morning at about 6.30 a.m. Accordingly, the complainant attended the A.C.B.
office. On 26/12/1996 in the noon Mr. Survashe, P.I. A.C.B., Yavatmal
requisitioned two public servants from the office of Deputy Conservator of
Forest, Yavatmal to act as panchas and instructed them to attend his office on
27/12/1996 at 6.30 a.m.
8] On 27/12/1996 Mr. Survashe, P.I. A.C.B., Yavatmal at
6.30 am instructed both the panchas and introduced them to all the staff
members and also introduced the staff members present there to them.
PW-1 appraised both the panchas about his complaint. The complainant
produced 25 currency notes each of Rs. 100/- denomination, one currency
note of Rs. 20/- denomination and one currency note of Rs. 5/- denomination,
thus total amount of Rs.2525/-. Mr. Survashe, P.I. A.C.B., Yavatmal
demonstrated about the use and characteristic of anthracene powder and
explained that the said powder reflects a blue shining in the light of ultra
violate rays. The currency notes of Rs. 2525/- were smeared with anthracene
powder and the said amount was kept by the complainant in his right side
pocket of the pant. It is the case of the prosecution that after sometime the
complainant went to the office and instructed panch no.2 that he shall remain
with the raiding party and keep watch on the complainant (PW-1) and panch
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no.1. A Pre-trap Panchanama was recorded (Exhibit-60).
9] Mr. Survashe, P.I. A.C.B., Yavatmal with Dy. S.P. Pande,
complainant, panchas and staff proceeded by a jeep towards the R.T.O.
Office. They halted the vehicle at some distance. Mr. Survashe, P.I. A.C.B.,
Yavatmal and the staff took their position near the hotel and Pan Shop in front
of the R.T.O. office. When the complainant and pancha no.1 proceeded at
RTO Office, accd. no.1 had not attended the office till that time. They both
stopped near the RTO Office. After sometime accd. no.1 came there in an
Auto Rickshaw. The complainant and panch no.1 followed accd. no.1.
Accd. no.1 occupied the chair. Accused No. 2 (Sahare Constable) was
present on that place. On seeing the complainant accd. no.1 asked him
whether he has brought the amount. On this the complainant said that he
has brought the amount of Rs.2525/-. On this accd. no.1 asked the
complainant to handover the said amount to accd. no.2 peon who was
standing just near them. Accd. No.2 accepted those currency notes by his
right hand, he counted those notes and kept it in the right side pocket of his
Paijama. The complainant, thereafter, came outside the R.T.O., Office and
signalled the raiding party. P.I. Survashe with panch no.2 and the raiding
party came at the room at R.T.O.office where accd. no.1 was sitting. P.I.
Survashe examined the hands of the members of the squad in the ultra violet
rays but none reflected the blue shining of anthracene powder. On inquiry by
P.I. Survashe, accd. no.2 informed that the amount received from the
complainant is kept by him in the right side pocket of his paijama. Accd. no.1
and accd. no.2 were then examined under the ultra Violet rays and during
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that there was a shining of anthracene powder to both the hands and fingers
of accd. no.2. Accd. no.2 took out the tainted currency notes from his right
side pocket of his Paijama and kept it on the table in front of accd. no.1. On
examination it in the ultra violet rays, the blue shining of anthracene powder
on the currency notes was noticed. The tainted notes 'Article-A' were taken
charge by PI Survashe under Panchanama (Exhibit-61). On examination of
Paijama of accd. no.2 in Ultra Violet Rays, shining was seen at the mouth of
the right side pocket of his Paijama. The Paijama was then seized under
panchanama (Exhibit-62).
10] P.I. Survashe then prepared a report (Exhibit-74) and
sent it to the Police Station, Yavatmal (city). On the basis of the said report,
offence was registered against accd. no.1 and accd. no.2. The necessary
investigation was conducted by PI-Survashe. He recorded the statements of
witnesses. The papers of investigation were forwarded to the Transport
Commissioner at Transport Office, Transport Division, Mumbai, along with the
letter for according sanction to prosecute the accused persons. The sanction
was accorded vide Exhibit-68 to prosecute the accused persons from the
Transport Commissioner, Mumbai. On getting the sanction, chargesheet was
filed against the accused persons before the Special Court, Yavatmal.
11] The learned Special Judge framed the charge against
accd. no.1 and accd. no.2. Both the accused denied the charges levelled
against them and claimed to be tried. The learned trial Judge on analysis of
evidence and on hearing both the sides, convicted both the accused as
aforesaid.
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12] Mr. Gaikwad, learned Counsel for accd. no.1 vehemently
argued that, the judgment passed by the learned Special Judge is illegal and
perverse, inasmuch as the learned Special Judge has not considered the
aspect that the demand allegedly made by accd. no.1 with regard to the
amount of gratification, has not been proved by the prosecution beyond
reasonable doubt. He further submitted that, the version of the complainant,
with regard to the alleged demand of bribe amount, is an improvement made
by the complainant. Mr. Gaikwad, the learned Counsel for accused no.1
submitted that the demand of gratification amount is sine-qua-non for proving
the offence against accd. no.1 and since it is not proved, accd. no.1 is entitled
for acquittal.
13] To substantiate his contention, Mr. Gaikwad, learned
Counsel for accd. no.1 placed reliance on the decision of the Hon'ble Apex
Court in the case of B. Jayaraj v State of Andhra Pradesh, reported in
(2014) 13 SCC 55, wherein it is held that the presumption under Section 20
of the Prevention of Corruption Act can be drawn only after demand for an
acceptance of illegal gratification is proved.
14] The learned counsel Mr. Gaikwad has not disputed that
the sanction to prosecute the accused and was granted and it was a valid
sanction order. On this point the law is well settled that the valid sanction is a
condition precedent to a valid prosecution.
15] Mr. C.L. Deshpande, the learned Counsel for accd. no.2
contended that accd. no.2 has not accepted the amount and which amount
found with him, it was the penalty amount which accd. no.1 asked him to take
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from the complainant.
16] The learned Additional Public Prosecutor for the State
Mrs. Shamsi Haider contended that the learned Special Judge has rightly
convicted the accused persons on believing the testimony of the witnesses.
17] In order to substantiate its case, the prosecution has
placed reliance on the testimony of the complainant P.W.1-Ravindrakumar,
P.W.2-Abhay who was Pancha No.1, PW-3-Chandardeo Singh Gurudeo
Singh, the Sanctioning Authority, P.W-4-P.I. Narayan Survashe, the
Investigating Officer and P.W.5-Shripad Wadekar, the Deputy Regional
Transport Officer.
18] Now coming to the testimony of PW-1 who is the
complainant and aggrieved person, it is well settled that complainant is an
aggrieved person, so also he is an interested person, he is branded as
accompaniment, hence his testimony should be scanned with great care and
caution.
19] It is well settled position in law that demand of illegal
gratification is sine-quo-non, to continue the offence and mere recovery of
currency notes cannot constitute the offence u/s 7 of the Prevention of
Corruption Act, unless it is proved beyond all reasonable doubts, that the
accused voluntary accepted the amount knowing it to be bribe. Keeping in
mind the above said principle of law the testimony of the complainant is to be
viewed on material aspects with regard to the demand of bribe amount by
accd. no.1 and the acceptance by accd. no.2.
20] The testimony of PW-1 is reflected in the prosecution case
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hence it is not repeated. On careful scrutiny of the testimony of PW-1 it is
noticed that his testimony is full with discrepancies, improvements and
embellishments which go to the root of the case and creates a serious doubt
about the alleged demand and acceptance of the bribe amount. In his cross-
examination, PW-1 admitted that during the period from 18/12/96 to 27/12/96
he had not lodged written complaint about the alleged demand made by
accd. no.1. P.W-1 admitted that after the inspector submitted the proposal of
recommendation, the question does not remain whether the licence issued or
not. It is significant to note that P.W.1 admitted that on 26-12-96 at Wani
Camp, accd. no.1 had passed all the 4 candidates who were taken by him,
then subsequently licence were issued. accd. no.1 had passed those 4
candidates during the test. In view of the specific admissions given by the
PW.1, it is not clear as to why accd. no.1 then demanded the amount for
issuing licence to the 4 candidates who were taken by him to the RTO office
on that day. It is the case of PW.1 that accd. no.1 demanded an amount for
18+1+4 candidates. It is not clear as to how accd. no.1 had issued licence to
the 4 candidates which were brought to him on 26.12.96.
21] It is interesting to note that in the cross examination PW-1
stated that accd. no.1 demanded amount of Rs.2400/-, for the first time on
18/12/96 and thereafter till 26.12.96. However, the improvements were noticed
in the version of P.W.1 to the effect that after the test of the candidates
was over accd. no.1 demanded from him the amount of Rs. 2400/- for the 18
candidates passed and PW-1 said to him that he was not having the said
amount and on that accd. no.1 informed him that he would not issue the
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licence till he paid him the said amount. P.W.1 then made an improvement
with regard to the demand made by accd. no.1 on 19.12.96. The said
improvement was to the effect that P.W.1 again came to accd. no.1 and
requested him to issue licence and on that accd. no.1 said that unless he
does not pay the amount to him, he would not issue licence. P.W.1 further
made an improvement that on 24/12/1996, he went to R.T.O. Office for getting
licence for one of the candidates and on that day accd. no.1 took the test of
that candidate and issued the learning licence. On that day also accd. no.1
demanded the amount of Rs. 2400/- for 18 candidates who were passed on
18/12/96 and said that when he would pay the old amount then he would
issue the learning licence for one candidate. In the cross examination it was
suggested to P.W.1 that when demand was made by accd. no.1 before issuing
learning licence why he did not mention this fact before the police. From the
above said improvements, it is doubtful, whether any demand was made by
accd. no.1.
22] Further improvements were pointed out in the testimony
of P.W.1 to the effect that on 24/12/96 after telephonic talk of PW-1 with his
father, Wadekar (P.W.5) called him in his chamber and he narrated all the
instances about the demand made by accd. no.1 and then Wadekar called
accd. no.1 and scolded him.
23] P.W.1 failed to mention any reason as to why all these
facts were not recorded by Police in his statement before A.C.B. It was
suggested to P.W.1 that as there was no demand from accd. no.1 to PW-1
and as no such incident occurred, regarding Wadekar scolding accd. no.1, all
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these facts are not recorded in his statement before the ACB.
24] PW-1 admitted that in the year 1996, one bus bearing
MH-29/6855 was in the name of his father (Hiralal). There was some action
by RTO office in respect of said bus and his father had paid the penalty.
PW-1 however failed to state whether the said action was taken by accd. no.1.
P.W.1 further stated that in the year 1996 his father was having another Mini
Bus, the rear wheels of that bus were of one wheel only and if one more
wheel was attached to the either side of the rear wheels, then the capacity of
the bus was to increase. P.W.1 failed to state whether there was any action
against his father, in respect of adding rear wheel of the mini bus and
therefore the action was taken on the report of accd. no.1 against his father.
From the suggestion given by the defence, it appears that there was some
action taken against the father of P.W.1 by accd. no.1, therefore, P.W.1 had
grudge against accd. no.1 and therefore he lodged the complaint against him
and this must be the reason that the testimony of P.W-1 was full with
improvements and embellishments. On the factum of the acceptance of the
bribe amount, P.W.1 stated that there was procedure in RTO Office for
accepting the fine penalty, in respect of vehicles but it was not in respect of
the bus. P.W.1 did not state the reason as to why there were many
proceedings pending against his father and the institute.
25] On the point of raid, P.W.1 stated that when he entered in
the room of accd. no.1, one Deshmukh Inspector was present in the room of
accd. no.1. Significantly the said inspector has not been examined by the
prosecution. It has come in the testimony of PW-1 that many persons visited
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to Inspector Deshmukh who was sitting in the room where accd. no.1 was
sitting. According to P.W.1, when he reached to office of accd. no.1, he
demanded the amount of Rs. 2525/- and accd. no.1 directed to pay the said
amount to the Peon of R.T.O. Office, who was standing near him. PW-1 also
stated that accd. no.1 instructed that Peon to receive said amount.
Significantly the said version of PW-1 does not find place in his statement
recorded by A.C.B. PW-1 has made an improvement with regard to the fact
that prior to raid, accd. no.1 demanded the amount of Rs. 2525/- from PW-1
and accd. no.1 directed PW-1 to pay the said amount to accd. no.2. All these
glaring discrepancies in the testimony of PW-1 go to the root of the case.
PW-1 further made an improvement that an enquiry by PI Survashe and
Pande, as to whom he had paid the amount and who was Bansode, at that
time he pointed out towards accd. no.1 and accd. no.2 and informed that as
asked by accd. no.1 he had paid the amount to accd no.2. The above said
entire version is missing in the statement of PW-1 recorded by A.C.B. The
said fact creates a serious doubt with regard to PW-1 pointing out to PI
Survashe as to how he offered the amount to accd. no.1, and as per the
directions of accd. no.1, P.W.1 paid the said amount to accd. no.2 who was
standing near accd. no.1. PW-1 also made an improvement with regard to
the fact that he had given the amount of Rs. 2525/- to accd. no.2 and it was
kept by him in the right side pocket of the Paijama and that as instructed by
P.I Survashe, one Constable took out said amount from the right side pocket
of the pant of Accused No.2-Sahare and that amount was found to be Rs.
2525/- and in the lamp bluish glue was seen. On enquiry by P.I Suroshe to
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PW-1, PW-1 said that it was the same amount, which was received by accd.
no.2. All these facts are missing from the statement of PW-1 recorded by the
ACB. On careful scrutiny of the testimony of PW-1, it is found that his entire
testimony is shrouded with discrepancies, which go to the root of prosecution
case and makes the entire case of the prosecution doubtful with regard to the
demand & acceptance of the gratification amount.
26] Thus P.W.1 is not found to be a reliable and trustworthy
witness and his testimony does not inspire confidence. It appears that the
case put up by the defence with regard to accd. no.1 directing to PW-1 to
give the amount to accd. no.2 for depositing it as a fine amount, appears to
be true.
27] The testimony of P.W-2 indicates that on 27/12/1996
P.W-2 and the other panch were called on 27/12/1996 at about 6.30 a.m. to
ACB Office, Yavamtal. The demonstration was given by P.I. Survashe with
regard to the application of Anthracene Powder and the glow of currency
notes in the ultra violet rays. P.W.2 accompanied the complainant and raiding
party to the R.T.O. Office. According to him, he along with the complainant
went near the table of accd. no.1. There was talk between the complainant
(P.W.1) and accd. no.1 in respect of licence. PW-2 further stated that he does
not know the details about the talk. Thus, P.W.2 failed to state about the
demand made by accd. no.1 from the complainant. P.W.2 then stated that
P.W.1 took out the amount from his right side pant pocket (Paijama) and gave
it to accd. no.1. On this accd. no.1 instructed to PW-1 to give the said amount
to Gopinath (accd. no.2) who was the peon of that office. At that time accd.
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no.2 was standing near the rack at about 3 to 4 feet away from accd. no.1.
Accordingly, P.W.1 gave the said amount to accd. no.2. accd. no.1 then kept
the said amount in his right side Pyjama Pocket. The complainant then went
outside the Office and signalled the raiding party. Immediately, the members
of the raiding party and other panch came inside the office and instructed
both the the accused not to move. It is significant to note that P.W-1 has
categorically deposed that both the panchas were with him, when the amount
was handed over to accd. no.2 as per the instructions of accd. no.1 in RTO
office. Whereas PW-2 is completely silent on the aspect of presence of
another panchas with him in the RTO Office, when accd. no.1 allegedly
handed over the said amount on his instructions to accd. no.2.
28] PW-2 further deposed that he along with PW-1 went
near the table of accd. no.1 where he was sitting and there was a talk
between PW-1 and accd. no.1 in respect of licence. PW-2, however, fairly
stated the he does not know the details about the talk between PW-1 and
accd. no.1. The said version of PW-2 makes amply clear that no demand
was made by accd. no.1. According to PW-2 after the trap was led PW-1
was instructed to go out and stay near Siddheshwar Temple, which was
near the R.T.O. Office and accordingly he went away. In view of the said
version of PW-1, it appears that PW-1 was not present at the time of further
proceedings by PW-4-PI-Survase. It is also clear that at that place no
panchanama was prepared by the Investigating agency in his presence.
29] According to PW-2, when the ultraviolet rays were
focused on the currency notes which were taken charge from accd. no. 2
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there was blue glow. Those currency notes were taken charge by the
investigating agency and the seizure panchanama was recorded (Exhibit-61)
and the panchanama no.2 (Exhibit-64) was recorded at R.T.O. office. The
cross examination of PW-2 shows that PW-2 along with PW-1 went near the
table of accd. no.1. At that time Mr. Deshmukh of that office was sitting on
the chair, who was across the table, in front of accd. no.1. PW-2 further
stated that accd. no.2 was coming in and going out from the room and no
other staff was present there. However, many persons visited him in respect
of the licence. The said version of PW-2 indicates that accd. no.1 was not
alone in his room and just across the table one Mr. Deshmukh who was
serving in the same office and many people were visiting him in respect of
grant of licence. In these circumstances, it would not be possible for accd.
no.1 to demand the bribe amount from PW-1. The said version of PW-1 in
that regard does not appear to be convincing and digestible.
30] An improvement was pointed out in the testimony of
PW-2 with regard to the fact that in panchanama no.2, it is mentioned that,
when accd. no.1 asked PW-1 to pay the amount to accd. no.2, accd. no.2
was standing near the rack. However, the said version does not find place in
his statement recorded by the ACB. Similarly, in panchanama no.2 there is
no mention of the fact that accd. no.2 was standing near the rack about 3 to 4
ft. from accd. no.1. The said improvement goes to the root of the prosecution
case and creates a serious doubt about accd. no.2 standing besides accd.
no.1. accd. no.1 directed to PW-1 to handover the bribe amount to accd. no.2
and accd. no.2 accepted the said amount, as a bribe. Thus, the testimony of
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PW-2 does not inspire confidence. Thus, in view of the serious
discrepancies in the version of PW-2 about the demand as well as the
acceptance of bribe amount, his testimony does not inspire confidence. In
fact PW-2 has not stated about the demand made by accd. no.1. From the
version of PW-1 thus there is no corroboration to the testimony of PW-2.
Similarly the version of PW-1 as discussed above is full with improvements
and embellishment. Hence his testimony cannot be relied upon.
31] On the point of acceptance of the bribe amount, the
testimony of PW-2 cannot inspire confidence as he had made an
improvement with regard to the fact that accd. no.2 was standing near the
rack. There is no corroboration in that regard. Thus PW-2 is not found to be
a reliable witness.
32] In the testimony of PW-5- Shripad Krishnarao Wadekar,
who was serving as a Assistant Regional Transport Officer at RTO Yavatmal,
accd. no.1 was serving as Motor Vehicle Inspector at RTO and accd. no.2
was serving as a Peon at RTO. accd. no.1 was empowered to conduct the
test of candidates and issue licence. PW-3 stated that there was a complaint
from proprietor of Sai Driving School against accd. no.1, the Motor Vehicle
Inspector, that he was harsh in taking the test for issuing the licence and
there was no other complaint. Pertinently PW-5 did not state about the
complaint against accd. no.1 that he was demanding illegal gratification from
the complainant (PW-1). PW-5 admitted in his evidence that there was
Challan to the bus on 22-11-96 owned by Hiralal father of Ravindra Jaiswal
(complainant) who is the owner of Sai Driving School and submitted the
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charge-sheet thereon against the driver and owner of the bus in the Court of
C.J.M., Yavatmal and fine was imposed. The said version of PW-5 makes
clear that as there was Challan to the bus of father of complainant, he had a
grudge against accd. no.1 hence he had lodged a false complaint against the
accd. no.1.
33] On careful scrutiny of the evidence of all the witnesses, it
is abundantly clear that the testimony of PW1 is full with discrepancies and
improvements and embellishments. The testimony of PW-1 is not
corroborated by testimony of PW-2 and PW-5 with regard to the aspect of
demand as well as acceptance of bribe amount. The talk of PW-5 shows that
there was challan to PW-1's father and prior to lodging of the complaint by
PW-1 in A.C.B. Department, the Criminal case was pending against him in
which fine was imposed. So also there were many proceedings pending
against the father of PW-1 and his driving school. It appears that as accd.
no.1 was harsh in conducting test of the candidates, PW-1 was disturbed
thinking that the driving school would not run smoothly and therefore a false
case has been lodged against accd. no.1 as well as accd. no.2.
34] The prosecution has miserably failed to prove the
offence against the accused persons. The demand as well as seizure of
amount is not proved beyond reasonable doubt. It appears that accd. No.2
has received the amount towards the fine amount and before any receipt
could be issued the raid was conducted. The learned trial Judge has not
considered all these aspects in right perspective and has convicted the
accused persons. The judgment and order delivered by the learned trial
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Judge needs to be quashed and set aide. As the prosecution has failed to
prove the demand made by the accused towards illegal gratification, it would
be wholly unsafe to sustain the conviction of the appellants.
35] No cogent and convincing evidence is brought on record
to show that the accused has actually demanded bribe amount. In this
context, it is significant to note that, simply finding of the amount with the
accused, is not a conclusive proof that the amount has been accepted by
him towards illegal gratification, in the absence of any demand of bribe
amount. There is absolutely no evidence on record to show that the accused
demanded the money for doing official act and accordingly the accused
accepted it for the same.
36] As far as the demand is concerned, the learned counsel
for the appellant placed reliance on AIR 2010 SC 1589 in the case of
Banarasi Dass v. State of Haryana, wherein it is held by the Hon'ble Apex
Court that the proof of demand and acceptance of bribe is essential and in
absence of proof of demand and acceptance of bribe by the appellant,
appellant is entitled to acquittal. It is also held that mere proof of recovery of
bribe amount from the appellant is not sufficient to prove the offence.
37] In the case of Ashok Kumar Wardhani v State of
Maharashtra reported in 2003 All MR (Cri) 88, the complainant was only
witness regarding alleged demand. It was held by this Court that the
complainant being an interested witness the Court must look for
independent corroboration.
38] The Hon'ble Apex Court in the case of Jaswant Singh v
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State of Punjab, reported in AIR 1973 SC 707, has held as under :-
"As PW 1 is the complainant, his evidence will have to
be considered with great caution and it will not be
ordinarily safe to accept his interested testimony unless
there is material corroboration found in the other
evidence adduced by the prosecution."
39] In the case of B. Jayaraj v State of Andhra Pradesh,
reported in (2014) 13 SCC 55, the Hon'ble Apex Court has held as under :-
"7. Insofar as the offence under Section 7 is concerned,
it is a settled position in law that demand of illegal
gratification is sine qua non to constitute the said offence
and mere recovery of currency notes cannot constitute the
offence under Section 7 unless it is proved beyond all
reasonable doubt that the accused voluntarily accepted the
money knowing it to be a bribe. The above position has
been succinctly laid down in several judgments of this
Court. By way of illustration reference may be made to the
decision in C.M. Sharma v. State of A.P., reported in (2010)
15 SCC 1
and C.M. Girish Babu v. CBI, reported in (2009) 3 SCC
779."
40] In case of P. Satyanarayana Murthy v Dist. Inspector of
Police and another reported in 2015 Cri.L.J. 4670, the Hon'ble apex Court has
held :-
"The proof of demand of illegal gratification, is the
gravamen of the offence under Ss.7 and 13(1) (d)(i) and
(ii) and in absence thereof, unmistakably the charge
therefor, would fail. Mere acceptance of any amount
allegedly by way of illegal gratification or recovery
thereof, dehors the proof of demand ipso facto, would
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thus not be sufficient to bring home the charge under
these two sections of the Act. As a corollary, failure of
the prosecution to prove the demand for illegal
gratification would be fatal and mere recovery of the
amount from the person accused of the offence under
Ss. 7 or 13 of the act would not entail his conviction
thereunder."
41] In the instant case the prosecution has failed to prove the
factum of demand beyond reasonable doubt. The testimony of the
complainant and panch even if accepted on the face value it falls short of
the quality and decisiveness of proof of demand of illegal gratification as
contemplated by law, to hold the offence under Section 7 or 13(1)(d) (i) & (ii)
of the Prevention of Corruption act has been proved.
42] In view of above, it is held that the prosecution has failed
to prove its case beyond reasonable doubt. In these circumstances, the
benefit of doubt is to be given to the appellants/accused. The learned trial
Court has not properly evaluated the evidence led by the prosecution. In
view thereof, the judgment and order passed by the learned trial Judge,
needs to be quashed and set aside. Hence, the following order:-
O r d e r
(a) Criminal Appeal No.159 of 2007 is allowed.
(b) The judgment and order dated 11th April, 2007
delivered by the learned Special Judge, Yavatmal
in Special Case No.5/1998, is quashed and set
aside.
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(c) The appellants are acquitted of the offences
under Sections 7, 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988.
(d) The bail bonds furnished by the appellants stand
cancelled.
(e) The fine amount, if any, deposited by the
appellants be refunded to them, if not withdrawn.
(f) Fees of the learned Counsel (appointed) for
appellant no.2 shall be quantified at Rs. 5000/-.
(g) Muddemal property be dealt with as directed by
Trial Court after the appeal period is over.
JUDGE
Nandurkar
