Bombay High Court
Ravindra Vitthal Jevre And Anr vs The State Of Maharashtra on 14 September, 2017
Bench: Sangitrao S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.144 OF 2008
1. Ravindra Vitthal Jevre,
Age : 50 years,
Occ. Cadastral Surveyor,
Class-III, City Survey Office,
Ahmednagar, r/o. Near Zopadi
Canteen, Gaikwad Colony,
Ahmednagar
2. Ismail Abdul Tamboli,
Occ. Service, Peon Class IV,
City Survey Office,
Ahmednagar,
Dharti Chowk, H.No.3270,
Ahmednagar ..Appellants
Vs.
The State of Maharashtra ..Respondent
----
Mr.Anant R. Phadnis i/b. Mr.A.R.Avachat, Advocate for
appellants
Mr.K.D.Mundhe, APP for respondent
----
CORAM : SANGITRAO S. PATIL, J.
RESERVED ON : SEPTEMBER 01,2017
PRONOUNCED ON : SEPTEMBER 14, 2017
JUDGMENT :
Heard
2 Cri.Appeal.144-08
2. The appellants have taken exception to the
judgment dated 07.04.2008 passed in Special Case No.4
of 2003 by the learned Special Judge (P.C.),
Ahmednagar, whereby appellant no.1 has been convicted
for the offences punishable under Sections 7 and
13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988 ("the Act", for short), while
appellant no.2 has been convicted for the offences
punishable under Sections 12 and 13(2) read with
Section 13(1)(d) of the Act.
3. Appellant no.1 was serving as Surveyor,
while appellant no.2 was serving as Peon in the City
Survey Office, Ahmednagar in the year 2003. It is
alleged that on 17.03.2003, the complainant namely,
Shaikh Ayaz Isaq r/o. Zendigate, Shani Galli,
Ahmednagar met appellant no.1 in his office and
inquired as to whether the name of his father (i.e.
Shaikh Isaq Gafoor) was recorded in the city survey
record in respect of the house bearing City Survey
3 Cri.Appeal.144-08
No.923/A, which was purchased by him on 09.02.2001.
Appellant no.1 informed the complainant that as long
as the notices issued against all the vendees are not
served, the name of his father would not be recorded
in the city survey record of that house. The
complainant expressed inability to serve all of the
vendees and requested appellant no.1 to find out some
other way. At that time, appellant no.1 asked him to
pay Rs.1,000/- and assured that he would record the
name of the father of the complainant in the record
of city survey and issue property extract within 2-3
days. The complainant requested appellant no.1 to
reduce that amount, but appellant no.1 refused to
reduce it. Since the complainant was not inclined to
pay the bribe amount to appellant no.1, he went to
the office of Anti Corruption Bureau (A.C.B.), at
Ahmednagar and lodged a complaint against appellant
no.1.
4. On the basis of that complaint, it was
decided to lay a trap. Accordingly, the Deputy
4 Cri.Appeal.144-08
Superintendent, A.C.B., called two panchas to his
office. The complaint against appellant no.1 lodged
by the complainant was verified before them.
Demonstration in respect of use of anthracene powder
was conducted in order to show that the traces of
that powder could be seen in the form of blue shining
under the light of ultra violet lamp. The complainant
produced two currency notes of the denomination of
Rs.500/- each. They were smeared with anthracene
powder. The Police Constable - Sonule kept those
currency notes in the left side chest pocket of the
shirt of the complainant. The complainant was
instructed to visit the office of appellant no.1
along with panch namely, Ashok Shelar and hand over
the tainted currency notes of Rs.1,000/- to him on
being demanded by him. The complainant was further
instructed that after handing over the tainted
currency notes to appellant no.1, he should take out
his handkerchief by his left hand from left side
pocket of his pant and move it around his face.
5 Cri.Appeal.144-08
Another panch namely, Sachin Kotkar was instructed to
keep himself at some distance from the office of
appellant no.1 and watch the activities of the
complainant and appellant no.1. Police Constable -
Sonule was instructed to remain in the office of the
A.C.B. itself. A pre-trap panchnama was prepared.
5. After preparing the pre-trap panchnama, the
raiding party along with the complainant and both of
the panchas went to the office of appellant no.1 and
reached there at about 4.20 p.m. The complainant and
the panch namely, Ashok Shelar entered into the
office of appellant no.1 at about 4.30 p.m. The
complainant asked appellant no.1 as to whether his
work was done. Appellant no.1 asked the complainant,
whether he had brought the money. When the
complainant answered in the affirmative, appellant
no.1 asked to handed over the amount of Rs.1,000/- to
appellant no.2, who was sitting in a chair at some
distance from the table of appellant no.1.
6 Cri.Appeal.144-08
Accordingly, the complainant handed over the tainted
currency notes to appellant no.2, who, in turn, kept
those currency notes in the left side pocket of his
shirt. The complainant then went outside the office
of appellant no.1 and gave the pre-determined signal
by moving his handkerchief around his face. The
raiding party entered into the office of appellant
no.1. Appellant nos.1 and 2 were caught hold of. The
tainted currency notes of Rs.1,000/- were taken out
from the left side chest pocket of the shirt of
appellant no.2. The hands and the shirt pocket of
appellant no.2 were examined under the light of
ultra-violet lamp. Blue shining was noticed on the
tips of the right hand fingers and inside the left
side chest pocket of the shirt of appellant no.2. The
shirt of appellant no.2 and the tainted currency
notes came to be seized. A post-trap panchnama came
to be prepared. The statements of witnesses were
recorded. After completion of investigation, the
papers of investigation were sent to the Deputy
7 Cri.Appeal.144-08
Director, Land Records, Nashik seeking sanction for
prosecution of the appellants. After obtaining
sanction for their prosecution, the appellants came
to be charge-sheeted for the above-mentioned
offences.
6. The learned Special Judge framed charges
against the appellants vide Exh.12 and explained the
contents thereof to them in vernacular. The
appellants pleaded not guilty and claimed to be
tried. Their defence is that of total denial.
According to appellant no.2, when he was sitting in a
chair in the office, an unknown person thrusted
something in the left side pocket of his shirt. He
took out by his right hand from his shirt pocket
whatever was thrusted inside it by that unknown
person. At that time, he was caught hold of by
police. He denied of having received any bribe amount
from any person. According to appellant no.1, he
never demanded any bribe amount from the complainant.
8 Cri.Appeal.144-08
He denied that he ever asked the complainant to hand
over the bribe amount to appellant no.2.
7. The prosecution examined the complainant at
Exh.24; panch Ashok Shelar (PW 2) (Exh.29); The
Sanctioning authority Sable (PW 3) (Exh.40); and
Deputy Superintendent of police (Dy.S.P.) - Joshi
(PW 4) (Exh.44), who conducted the raid and lodged
FIR (Exh.47) against the appellants. After evaluating
the evidence of these witnesses, the learned Special
Judge found the appellants guilty of the above-
mentioned offences. He sentenced appellant no.1 for
the offence punishable under Section 7 of the Act
with rigorous imprisonment for one year and a fine of
Rs.1,000/-, in default, to suffer simple imprisonment
for two months; and further sentenced him for the
offence punishable under Section 13(2) read with
Section 13(1)(d) of the Act with rigorous
imprisonment for three years and a fine of
Rs.2,000/-, in default, to suffer simple imprisonment
9 Cri.Appeal.144-08
for four months. The learned Special Judge sentenced
appellant no.2 for the offence punishable under
Section 13(2) read with Section 13(1)(d) of the Act
with rigorous imprisonment for three years and a fine
of Rs.2,000/-, in default, to suffer simple
imprisonment for four months; and for the offence
punishable under Section 12 of the Act with rigorous
imprisonment for one year and a fine of Rs.1,000/-,
in default, to suffer simple imprisonment for three
months. The substantive sentences were ordered to run
concurrently. The appellants deposited the fine
amount in the trial Court.
8. The learned Counsel for the appellants
submits that there is no sufficient, cogent and
dependable evidence on record to establish that
appellant no.1 demanded bribe amount from the
complainant. According to him, the evidence of the
complainant and Ashok Shelar (PW 2) in respect of the
place of demand of bribe, is not at all consistent.
10 Cri.Appeal.144-08
There was no verification of demand of bribe
conducted by Joshi (PW 4). The evidence of the
complainant about the time of the alleged first
demand is not at all believable. He then submits
that the evidence of Ashok Shelar (PW 2) and Joshi
(PW 4) in respect the person, who allegedly took out
the tainted currency notes from the pocket of shirt
of appellant no.2, also is not consistent. Ashok
Shelar (PW 2) states that the said amount was taken
out by P.C. Sonule, who was instructed to remain in
the office of A.C.B. itself, while Joshi (PW 4)
states that it was taken out by the another panch
namely, Sachin Kotkar. He submits that in view of
this inconsistency, it was necessary for the
prosecution to examine Sachin Kotkar. However, he
has not been examined without assigning any reason.
He further submits that there were 7-8 other persons
inside the office of appellant no.1 at the time of
the raid. However, none of them has been examined by
the prosecution without assigning any reason. Though
11 Cri.Appeal.144-08
independent evidence was available, the prosecution
has suppressed that evidence. He further submits that
there is absolutely nothing on record to show that
appellant no.2 had any discussion with appellant no.1
in connection with the alleged demand of bribe from
the complainant. Appellant no.2 was totally unaware
as to what was thrusted inside the pocket of his
shirt by the complainant. He submits that the
evidence on record does not show that appellant no.2
consciously accepted the bribe amount for and on
behalf of appellant no.1. In the circumstances,
according to him, appellant no.1 cannot be said to
have abetted appellant no.2 to commit the offence of
accepting the bribe. He submits that the appellants
have been wrongly convicted by the learned Special
Judge. In support of his contentions, he cited
certain judgments, which would be considered at the
later stage.
9. On the other hand, the learned APP submits
that the evidence of the complainant is quite natural
12 Cri.Appeal.144-08
and probable. It inspires great confidence. From
the evidence of the complainant and Ashok Shelar (PW
2), it would be clear that there was demand of bribe
by appellant no.1 for the purpose of recording the
name of father of the complainant in the city survey
record in respect of the house purchased by him. He
then submits that the bribe amount was paid by the
complainant to appellant no.2 at the instance of
appellant no.1. According to him, pre-trap
verification of the demand for bribe is not always
essential. He submits that there was no reason for
the complainant and Ashok Shelar (PW 2) to make false
allegations against the appellants. The evidence of
these witnesses is consistent and dependable. The
learned trial Judge has rightly believed their
evidence and rightly convicted the appellants for the
above-mentioned offences.
*** *** ***
10. It has come in the evidence of the
13 Cri.Appeal.144-08
complainant that he firstly visited the office of
appellant no.1 06.03.2003, when appellant no.1 had
given notices for being served on the vendees. He
does not state that on that day, there was demand for
bribe made by appellant no.1. He states that on
17.03.2003, he went to the office of appellant no.1
and met appellant no.1 at about 11.00 a.m. to 12.00
noon. He informed appellant no.1 that the vendees
could not be served with notices as they were not
found on their last addresses. He requested appellant
no.1 to find out some other way so that the name of
his father could be recorded in the record of the
city survey in respect of the house purchased by his
father. At that time, appellant no.1 demanded
Rs.1,000/- for doing the needful. From this evidence,
it seems that on 17.03.2003 at about 11.00 a.m. to
12.00 noon, the first demand for bribe was made by
appellant no.1.
11. The complainant states that since he was not
inclined to pay the bribe to appellant no.1, he went
14 Cri.Appeal.144-08
to the office of A.C.B. and lodged the complaint
(Exh.25). In paragraph 7 of his deposition (see
Marathi version), the complainant states that he
went to the office of A.C.B. to lodge complaint at
about 3.00 p.m., however, the Dy. S.P. - Joshi (PW4)
in paragraph 11 of his deposition states that the
complainant lodged the complaint (Exh.25) at about
10.00 a.m. to 10.30 a.m. If the evidence of the Dy.
S.P. - Joshi (PW 4) about the time of lodging the FIR
is considered, the evidence of the complainant that
he met appellant no.1 in his office on 17.03.2003 at
about 11.00 to 12.00 noon, when appellant no.1
demanded bribe from him and then he went to the
office of A.C.B. at 3.00 p.m. and lodged the
complaint (Exh.25) does not stand to reason.
12. It is common knowledge that the Government
offices start at 10.30 a.m. Therefore, there was no
question of there being any meeting between the
complainant and appellant no.1 in the office of
15 Cri.Appeal.144-08
appellant no.1 on 17.03.2003 prior to 10.30 a.m. In
fact, it is not even the version of the complainant
that he met appellant no.1 in his office prior to
10.30 a.m. on 17.03.2003. If that be so, the contents
of the FIR (Exh.25) about so called demand of bribe
by appellant no.1 prior to the visit of the
complainant to the office of A.C.B. at about 10.00
a.m. to 10.30 a.m. for lodging the complaint (Exh.25)
cannot at all be believed. The contents of complaint
(Exh.25) do not corroborate the version of the
complainant that appellant no.1 demanded bribe amount
from him prior to 10.00 a.m. to 10.30 a.m. on
17.03.2003 i.e. prior to lodging of the complaint
(Exh.25). In the circumstances, the first demand of
bribe allegedly made by appellant no.1 from the
complainant cannot be said to have been established.
13. The complainant states that he went to the
office of A.C.B. for lodging complaint at about 3.00
p.m. and within 5 to 10 minutes, necessary
16 Cri.Appeal.144-08
arrangements for laying trap was made. If this
version is accepted, the evidence of Ashok Shelar (PW
2) that on being called by the Dy. S.P. - Joshi (PW
4), he went to the office of A.C.B. at 1.30 p.m. on
17.03.2003 when he found the complainant present in
that office, cannot be accepted. Though Ashok Shelar
(PW 2) states that the complainant stated before him
about the demand of bribe of Rs.1,000/- by appellant
from him, the complainant himself does not state so
in his deposition. He states that the Dy. S.P.- Joshi
(PW 4) apprised the panchas about his complaint. As
such, the alleged demand of bribe made by appellant
no.1 was not even disclosed by the complainant before
the panchas. The pre-trap panchnama (Exh.30) is shown
to have been prepared between 2.00 p.m. and 3.45 p.m.
on 17.03.2003. When the complainant himself states
that he visited the office of A.C.B. on that day at
about 3.00 p.m., the evidence of Ashok Shelar (PW 2)
and Dy.S.P. - Joshi (PW 4) about verification of
demand of bribe before the panchas through the
17 Cri.Appeal.144-08
complainant and the steps taken for laying the trap,
as mentioned in the pre-trap panchnama (Exh.30),
would create a great doubt.
14. The complainant states that after he left
the office of A.C.B. along with the panchas and
raiding party and went to the office of appellant
no.1, he saw appellant no.1 coming from Varandah from
his office. At that time, he pointed out to Ashok
Shelar (PW 2) that the said person was appellant no.1
only. He then asked appellant no.1 about his work,
whereon appellant no.1 asked as to whether he brought
Rs.1,000/- as per his demand. He answered in the
affirmative. Thereafter, appellant no.1 went inside
the office and occupied his chair. From this
evidence, it seems that the demand of bribe money was
made by appellant no.1 outside his office prior to
the trap. However, Ashok Shelar (PW 2) does not
corroborate the evidence of the complainant in
respect of this demand for bribe. He states that
18 Cri.Appeal.144-08
when he went to the office of appellant no.1 along
with the complainant, he saw appellant no.1 near one
vehicle outside the office. In his cross-examination,
this witness states that appellant no.1 had come to
Varandah of his office. He then states that the
complainant asked appellant about his work, whereon
appellant no.1 informed that his work had been done.
Thereafter, appellant no.1 entered into his office
and occupied his chair. This witness does not state
that appellant no.1 had demanded bribe amount from
the complainant outside the office. As such, the
version of the complainant that appellant no.1
demanded Rs.1,000/- from him towards bribe outside
the office, cannot be believed.
15. The complainant states that after he entered
into the office of appellant no.1 along with Ashok
Shelar (PW 2) and after appellant no.1 occupied his
chair, appellant no.1 asked him as to whether, he had
brought the money. He does not state as to what
19 Cri.Appeal.144-08
reply was given by him at that time to appellant
no.1. However, Ashok Shelar (PW 2) states that after
appellant no.1 occupied his chair inside the office,
the complainant showed him copy of notice, whereon
appellant no.1 showed the papers to the complainant
in respect of the work that was done. Thereafter,
appellant no.1 asked the complainant, whether he had
brought money as decided, whereon the complainant
answered in the affirmative. Thus, the evidence of
the complainant and Ashok Shelar (PW 2) about the
events those took place inside the office of
appellant after he occupied the chair is not
consistent on material points. The complainant does
not state that he offered the bribe amount to
appellant no.1 on being asked by appellant no.1,
however, Ashok Shelar (PW 2) states that the
complainant offered that amount to appellant no.1.
16. The version of the complainant that
appellant no.1 asked him whether he had brought
20 Cri.Appeal.144-08
Rs.1,000/- as per his demand outside the office, and
again after occupying his chair asked him whether he
had brought the money, does not appear to be natural
and probable. When appellant no.1 had asked the
complainant whether he had brought the amount of
Rs.1,000/- and the complainant had replied in the
affirmative, in the natural course, there was no
reason for appellant no.1, to put again the same
question to the complainant immediately after
entering into the office on occupying the chair. The
demand of bribe money outside the office allegedly
made by appellant no.1 has not been supported by
Ashok Shelar and the demand of that amount by
appellant no.1 immediately after entering into the
office and occupying the chair does not appear to be
natural and probable. In the above circumstances,
the evidence of the complainant and that of Ashok
Shelar (PW 2) about the alleged demand of money by
appellant no.1 prior to the trap cannot be believed.
21 Cri.Appeal.144-08
17. The complainant and Ashok Shelar (PW 2)
state that appellant no.1 asked the complainant to
hand over the bribe amount of Rs.1,000/- to appellant
no.2, who was sitting in another chair in the office
of appellant no.1 at the distance of about 8 ft. to
10 ft. Accordingly, the said amount was paid by the
complainant to appellant no.2, who took it by his
right hand and kept in the left side pocket of his
shirt. The complainant admits that after he entered
into the office of appellant no.1 along with Ashok
Shelar (PW 2), there were no talks between appellant
no.1 and appellant no.2. Ashok Shelar (PW 2) states
that there were 8-9 officials inside the office of
appellant no.1 and they were present there until the
raiding party entered into that office. After the
bribe amount was handed over to appellant no.2, the
complainant was asked to go outside of that office.
Ashok Shelar (PW 2) states that Police Constable -
Sonule took out the tainted currency notes from the
shirt pocket of appellant no.2. However, Dy.S.P. -
22 Cri.Appeal.144-08
Joshi (PW 4) states that panch no.2 took out that
amount and one handkerchief (Art.2) from the shirt
pocket of appellant no.2. Thus, the evidence of these
two witnesses as to who took out the tainted currency
notes from appellant no.2 is not consistent. The
discrepancy in the evidence in that regard is very
material and creates doubt as to whether the tainted
notes were actually taken out from the shirt pocket
of appellant no.2 by somebody else than appellant
no.2 himself. In order to remove this discrepancy, it
was immensely necessary for the prosecution to
examine the panch no.2. However, the prosecution has
not examined the said witness without assigning any
reason.
18. Appellant no.2 has come with a specific
defence that the tainted currency notes were thrusted
in his shirt pocket by somebody else without his
knowledge and when himself he took out those notes by
his right hand in order to see as to what was
23 Cri.Appeal.144-08
thrusted in his shirt pocket, his right hand was
smeared with anthracene powder that was applied to
those currency notes. This defence, in the above
circumstances, and more particularly when the
evidence in respect of the person who took out the
currency notes from the shirt pocket of appellant
no.2, is inconsistent and doubtful, will have to be
accepted as plausible. It cannot be said that
appellant no.2 consciously accepted the tainted
currency notes. Appellant no.2 has, thus, rebutted
the presumption laid down under Section 20 of the Act
by showing a probable defence.
19. As stated above, the evidence adduced by the
prosecution in respect of the demand allegedly made
by appellant no.1 and acceptance of currency notes by
appellant no.2 at the instance of appellant no.1, is
not cogent, consistent and dependable.
20. The learned Counsel for the appellant cited
the judgments in the following cases :-
24 Cri.Appeal.144-08
(i) The State of Maharashtra Vs. Ramrao
Marotrao Khawale, 2017 All M.R.
(Cri) 3269;
(ii) Purushottam Raghunath Kulkarni Vs.
State of Maharashtra, 2016 All M.R.
(Cri) 4516;
(iii) Purushottam Vasant Joshi Vs. The
State of Maharashtra, 2016 ALL MR
(Cri) 665;
(iv) Pramod s/o Namdeo Choudhary Vs. The
State of Maharashtra, 2017 ALL MR
(Cri) 57;
(v) Avinash s/o Sudhakarrao Ankush and
Anr. Vs. The State of Maharashtra,
2016 ALL MR (Cri) 5245;
(vi) Vasant s/o Domaji Likhar Vs. State
of Maharashtra, 2015(4) Mh.L.J.
(Cri.) 416;
(vii) Vinod s/o Savalaram Kanadkhedkar
Vs. The State of Maharashtra, 2016
ALL MR (Cri) 3697;
25 Cri.Appeal.144-08
(viii) G.V.Nanjundiah Vs. State (Delhi
administration), AIR 1987 SC 2402;
(ix) Smt. Avinash Sitaram Garware Vs.
State of Maharashtra, 2008 ALL MR
(Cri) 15;
(x) Hiroz s/o Baburao Meshram Vs State of
Maharashtra, 2015(3) Mh.L.J.(Cri.)
639;
(xi) Gopal s/o Nagnathrao Gunjkar Vs.
State of Maharashtra, 2010 ALL MR
(Cri) 2436;
21. The sum and substance of the above mentioned
rulings is that when a trap is set for proving the
charge of corruption against a public servant,
evidence about prior demand has its own importance.
Prior demand of bribe has to be positively
established. Mere recovery of tainted currency notes
by itself would not connect the person, from whom the
said notes were recovered, with any offence in the
absence of any evidence as to demand for bribe
amount. When there is variance in the evidence of
26 Cri.Appeal.144-08
the witnesses about the events those took place prior
to and at the time of trap, it is necessary to
examine an independent witness. In the absence of any
evidence, to show that both the accused persons
conspired to demand and accept the bribe, it cannot
be said that the accused from whom the tainted
currency notes were recovered abetted another accused
to commit the offence of demanding and accepting the
bribe. The accused has not to establish his defence
beyond reasonable doubt. He may rebut the presumption
under Section 20 of the Act by showing a mere
preponderance of probability in his favour.
22. In the present case, as stated above, there
is no sufficient and dependable evidence to
established that appellant No.1 demanded bribe from
the complainant. There is no evidence to show that
appellant No.2 consciously accepted the tainted
currency notes for and on behalf of appellant no.1
knowing that it was the bribe amount. The defence set
up by appellant No.2 is quite natural and plausible.
27 Cri.Appeal.144-08
There is no independent corroboration to the evidence
of the complainant and Ashok Shelar (PW2). In the
above circumstances, it cannot be said that the
prosecution established beyond the reasonable doubts
that appellant No.1 demanded the bribe amount from
the complainant and appellant No.2 accepted the bribe
amount at the instance of appellant No.1.
23. The learned trial Judge did not appreciate
the facts of the case as well as the evidence on
record correctly and properly. Though, the evidence
on record is not cogent, consistent and dependable,
the learned trial Judge believed it and wrongly
convicted the appellants. The evidence on record
creates strong doubt about the alleged demand of
bribe by appellant No.1 and acceptance thereof by him
through appellant No.2.
24. In the result, the impugned judgment and
order will have to be set aside with the following
order :-
28 Cri.Appeal.144-08
O R D E R
(i) The appeal is allowed.
(ii) The impugned judgment and order are set
aside.
(iii) Appellant no.1 is acquitted of the offences
punishable under Sections 7 and 13(2) read
with Section 13(1)(d) of the Prevention of
Corruption Act, 1988.
(iv) Appellant no.2 is acquitted of the offences
punishable under Sections 12 and 13(2) read
with Section 13(1)(d) of the Prevention of
Corruption Act, 1988.
(v) The bail bonds of the appellants are
cancelled. They are set at liberty.
(vi) The fine amount deposited by the appellants
be refunded to them.
[SANGITRAO S. PATIL]
JUDGE
kbp
