Bombay High Court
Dattatraya Bhagwan Omase vs The State Of Maharashtra on 11 January, 2018
Bench: A.M. Badar
201-APPEAL-78-2011.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.78 OF 2011
DATTATRAYA BHAGWAN OMASE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Niranjan Mundargi a/w. Mr.Prasanna Bhangale i/b. Ms.Swapna
Kode, Advocate for the Appellant
Mr.Prashant Jadhav, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 10th JANUARY 2018 &
11th JANUARY 2018.
ORAL JUDGMENT :
1 This appeal is taken up for hearing in terms of the
following order of the Hon'ble Supreme Court in Petition for
Special Leave to Appeal (Cri.) No.2334 of 2011 passed on 15 th
March 2011 :
"Taken on board.
The petition is dismissed.
The petitioner was convicted by the trial court
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under Prevention of Corruption Act and his appeal
is pending before the High Court. We direct the
High Court to decide the appeal expeditiously."
2 By this appeal, the appellant - convicted public servant
is challenging the judgment and order dated 17 th January 2011
passed by the learned Special Judge under the Prevention of
Corruption Act, Pune, in Special Case No.12 of 2007 convicting
him of offences punishable under Sections 7 and 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1988. For
the offence punishable under Section 7 of the Prevention of
Corruption Act, the appellant/accused is sentenced to suffer
rigorous imprisonment for 1 year apart from direction to pay fine
of Rs.1,000/-, in default, to undergo further rigorous
imprisonment for a period of 3 months. For the offence
punishable under Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, he has been sentenced to suffer
rigorous imprisonment for 1 year apart from directing him to pay
fine of Rs.1,000/-, in default, to undergo further rigorous
imprisonment for a period of 3 months.
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3 Facts leading to the prosecution of the
appellant/accused projected from the police report can be
summarized thus :
(a) Complainant Prasanna Akkalkotkar runs a workshop under
name and style of Fabex Engineers at Nandedgaon area of
Pune. The Maharashtra State Electricity Distribution
Company Limited (hereinafter referred to as MSEDCL for the
sake of brevity) has provided electricity connection to this
workshop.
(b) The appellant/accused, at the relevant time, was working as
Assistant Engineer with the MSEDCL and he was member of
the flying squad deputed for the purpose of checking electric
meters provided to the consumers.
(c) According to the prosecution case, at about 1.15 p.m. of 21 st
January 2006, Ashok Shetty, Manager of Fabex Engineers,
informed his employer Prasanna Suryakant Akkalkotkar
(PW2) that the appellant/accused Dattatraya Bhagwan
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Omase along with his two colleagues have come to the
workshop for inspection of the electric meter. PW2 Prasanna
Akkalkotkar met the appellant/accused. Electric meter in
the premises of the Fabex Engineers came to be checked by
the appellant/accused. The appellant/accused informed
PW2 Prasanna Akkalkotkar that the electric meter is running
slow by 25%. He further informed that action for recovering
damages would have to be taken. Another employee by
name Shri Kudale from the Electric Distribution Company
was called. The electric supply meter was again checked.
The appellant/accused accompanied by PW2 Prasanna
Akkalkotkar and other employees of the MSEDCL then went
to the office of the said Company. One form was got filled
from the appellant/accused.
(d) According to the prosecution case, at about 4.30 p.m. of 21 st
January 2006, the appellant/accused came to the Fabex
Engineers. He met PW2 Prasanna Akkalkotkar. The
appellant/accused in his own handwriting prepared an
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application (Exhibit 14) on behalf of PW2 Prasanna
Akkalkotkar. However, PW2 Prasanna Akkalkotkar got the
separate application (Exhibit 13) prepared, signed it and
gave the same to the appellant/accused. Thereupon, the
appellant/accused informed PW2 Prasanna Akkalkotkar that
he will have to pay fine of Rs.15,000/- and apart from that,
a case would be filed against him. Upon request of PW2
Prasanna Akkalkotkar, the appellant/accused informed him
that PW2 Prasanna Akkalkotkar would be required to pay
him an amount of Rs.2,500/- and then neither the case
would be filed nor fine of Rs.15,000/- would be imposed. In
the next bill, arrears of Rs.5,000/- would be shown and the
matter will be closed. Left with no alternative, PW2
Prasanna Akkalkotkar showed his willingness to pay illegal
gratification. The appellant/accused insisted for immediate
payment. PW2 Prasanna Akkalkotkar informed him that he
is not having money. The appellant/accused then gave his
cell phone number to PW2 Prasanna Akkalkotkar and asked
him to keep money ready on Monday i.e. 23rd January 2006.
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(e) According to the prosecution case, on 23 rd January 2006,
PW2 Prasanna Akkalkotkar telephonically contacted the
appellant/accused from his office telephone. The appellant/
accused informed him that he will come to Fabex Engineers
after the afternoon.
(f) As PW2 Prasanna Akkalkotkar was not willing to pay illegal
gratification to the appellant/accused, he immediately went
to the office of the Anti Corruption Bureau (ACB), Pune, on
23rd January 2006 itself and lodged a complaint (Exhibit 15)
which was recorded by PW4 Arun Waikar, Deputy
Superintendent of Police, ACB, Pune.
(g) According to the prosecution case, two panch witnesses,
namely, PW3 Vijay Phulpagare and Uday Suryawanshi were
summoned. Pre-trap formalities were then conducted and
recorded in Pre-trap panchnama dated 21st January 2006
(Exhibit 17). PW2 Prasanna Akkalkotkar tendered currency
notes amounting to Rs.2,500/- which were smeared with
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anthracene powder. Those were kept in the pocket of PW2
Prasanna Akkalkotkar. The panchas as well as complainant
PW2 Prasanna Akkalkotkar were made aware about the use
of anthracene powder. Accompanied by panch witnesses
and complainant PW2 Prasanna Akkalkotkar, team of ACB
then went to Fabex Engineers after preparing Pre-trap
panchnama (Exhibit 17).
(h) Panch witness PW3 Vijay Phulpagare accompanied by PW2
Prasanna Akkalkotkar then entered in the premises of Fabex
Engineers and waited for the appellant/accused in the cabin
located at the first floor of the workshop. Other members of
the trap team including panch no.2 Uday Suryawanshi
waited at the ground floor. This happened at about 2.30
p.m. of 23rd January 2006. However, the appellant/accused
did not come to Fabex Engineers up to 5.30 p.m. Therefore,
it was decided to withdraw the trap, and accordingly
panchnama Exhibit 18 in respect of withdrawal of the trap
was prepared. Currency notes smeared with anthracene
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powder were taken back from PW2 Prasanna Akkalkotkar
and other currency notes worth Rs.2,500/- were given to
him.
(i) It is case of the prosecution that on 25 th January 2006,
receptionist working at Fabex Engineers received a telephone
call from the office of the Electric Supply Company.
However, prior to PW2 Prasanna Akkalkotkar conversing on
that phone call, it got disconnected. Hence, PW2 Prasanna
Akkalkotkar telephonically contacted the appellant/accused.
The appellant/accused informed him that it was he who had
made the earlier call. The appellant/accused asked PW2
Prasanna Akkalkotkar to come to his office in the afternoon.
However, PW2 Prasanna Akkalkotkar insisted the
appellant/accused to come to the Fabex Engineers in the
afternoon. The appellant/accused agreed.
(j) PW2 Prasanna Akkalkotkar then again contacted the office
of the ACB. Then again, PW3 Vijay Phulpagare and co-
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panch Uday Suryawanshi were called. Pre-trap formalities
were conducted. PW2 Prasanna Akkalkotkar then again
produced five currency notes, each of Rs.500/-
denomination. Numbers of those currency notes were noted
in the pre-trap panchnama Exhibit 20. These currency notes
were smeared with anthracene powder. Mrs.Shintre - an
employee from the ACB then kept those currency notes in
the left chest pocket of the shirt of PW2 Prasanna
Akkalkotkar. Suitable instructions were imparted to PW2
Prasanna Akkalkotkar not to touch those currency notes and
to give those currency notes only on demand by the
appellant/accused. PW3 Vijay Phulpagare was asked to
work as shadow panch. Suitable instructions were also
instructed to him. The proceedings were recorded in the
Pre-trap panchnama Exhibit 20. Accompanied by the
complainant and panch witnesses, the trap team of the ACB
then again went to the premises of Fabex Engineers. This
happened at about 3.10 p.m. of 25 th January 2006. PW2
Prasanna Akkalkotkar accompanied by PW3 Vijay
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Phulpagare waited at the premises of the Fabex Engineers
whereas members of the trap team accompanied by the co-
panch Uday Suryawanshi waited outside the workshop.
Even after lapse of one hour, the appellant/accused did not
come to the Fabex Engineers. Therefore, PW2 Prasanna
Akkalkotkar telephonically contacted him at about 4.25 p.m.
of 25th January 2006. The appellant/accused informed him
that if the vehicle is made available by the office, he will
come, or else, he be contacted after half an hour.
Thereafter, despite waiting for one hour, the
appellant/accused did not come to the workshop of PW2
Prasanna Akkalkotkar. Hence, the appellant/accused was
again contacted telephonically at about 5.25 p.m. of 25 th
January 2006. At that time, the appellant/accused informed
that he is not having vehicle, and therefore, PW2 Prasanna
Akkalkotkar should come to his office.
(k) The prosecuting agency i.e. the ACB then decided to sent
PW2 Prasanna Akkalkotkar accompanied by PW3 Vijay
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Phulpagare to the office of the appellant/accused. At about 6
p.m. of 25th January 2006, along with members of the trap
team, PW2 Prasanna Akkalkotkar and PW3 Vijay Phulpagare
reached the office of the Electric Supply Company at Parvati
area of Pune. At about 6.05 p.m., PW2 Prasanna
Akkalkotkar accompanied by PW3 Vijay Phulpagare entered
in the office of the MSEDCL.
(l) It is case of the prosecution that the appellant/accused was
found to be in the cabin of the Executive Engineer
accompanied by others. Hence, PW2 Prasanna Akkalkotkar
and PW3 Vijay Phulpagare waited for him outside his cabin.
After waiting period of about twenty minutes, the
appellant/accused came to his cabin. PW2 Prasanna
Akkalkotkar and PW3 Vijay Phulpagare thereupon met the
appellant/accused in his cabin. The appellant/accused then
demanded the amount of illegal gratification and asked
PW2 Prasanna Akkalkotkar to keep the same on the paper
used for printing in the computer. Accordingly, PW2
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Prasanna Akkalkotkar kept the tainted currency notes on the
computer printing paper. The appellant/accused lifted that
computer printing paper containing the currency notes,
folded those currency notes with the help of that paper and
kept it in the drawer of his table. PW2 Prasanna
Akkalkotkar then gave the pre-determined signal to the trap
team. Accordingly, members of the trap team, accompanied
by co-panch Uday Suryawanshi, rushed to the cabin of the
appellant/accused. Complainant/PW2 Prasanna Akkalkotkar
informed that the currency notes are in the drawer of the
appellant/accused. Co-panch Uday Suryawanshi took out
those currency notes from the drawer of the table of the
appellant/accused. Their serial numbers matched with the
number recorded in the pre-trap panchnama. Hands and
clothes of the appellant/accused were checked under ultra
violet rays. However, anthracene powder was not detected
on either his hands or clothes. The same was, however,
detected on hands of co-panch Uday Suryawanshi. It was
detected on the paper on which those currency notes were
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kept. Those currency notes were then seized apart from the
paper on which those were kept. Necessary inquiry was
made from PW3 Vijay Phulpagare. Post-trap panchnama
(Exhibit 21) incorporating all these details came to be
prepared.
(m) After completing all these formalities, First Information
Report (FIR) (Exhibit 25) came to be lodged by PW4 Arun
Waikar, Deputy Superintendent with Swargate Police Station
which resulted in lodging of Crime No.3036 of 2006.
Necessary investigation followed and the appellant/accused
came to be charge-sheeted.
(n) The Charge for offences punishable under Sections 7 and
13(2) read with 13(1)(d) of the Prevention of Corruption
Act came to be framed and explained to the
appellant/accused. He abjured his guilt and claimed trial.
(o) In order to bring home the guilt to the appellant/accused,
the prosecution has examined in all four witnesses.
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Sanctioning Authority Narayan Misal, Chief General
Manager (Technical) of the MSEDCL came to be examined as
PW1. The order sanctioning prosecution of the
appellant/accused is at Exhibit 7. Complainant Prasanna
Akkalkotkar is examined as PW2. The complaint lodged by
him is at Exhibit 15. Shadow panch Vijay Phulpagare is
examined as PW3. Exhibits 17 and 18 are Pre-trap and
Post-trap panchnama dated 21st January 2006. Exhibit 20 is
the Pre-trap panchnama dated 25th January 2006 whereas
Exhibit 21 is the Post-trap panchnama of the same date.
Investigating Officer Arun Waikar, Deputy Superintendent, is
examined as PW4. Report lodged by him is at Exhibit 25.
(p) The defence of the appellant/accused is that of total denial.
According to the appellant/accused, on the date of
inspection of the electric meter, he had submitted his report
through the Divisional Accountant and on processing it had
reached up to a Clerk named Chutke. PW2 Prasanna
Akkalkotkar was aggrieved by the utterance of the
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appellant/accused to the effect that every thief says that he
is innocent, and therefore, he is falsely implicated in the
crime in question. The appellant/accused did not enter in
defence, but he has filed his written statement.
(q) After hearing the parties, by the impugned judgment and
order, the learned trial court came to the conclusion that the
appellant/accused had demanded and accepted the illegal
gratification amounting to Rs.2,500/- as a motive or reward
for showing official favour to PW2 Prasanna Akkalkotkar.
He has committed criminal misconduct by obtaining
pecuniary advantage of Rs.2,500/-. Evidence adduced by
the prosecution was held to be trustworthy, cogent and
reliable, and the learned trial court came to the conclusion
that the defence of the appellant/accused is not probable.
Accordingly, the appellant/accused is convicted and
sentenced as indicated in the opening paragraph of this
judgment.
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4 I have heard Shri Mundargi, the learned advocate
appearing for the appellant/accused. He vehemently argued that
the demand allegedly made by PW2 Prasanna Akkalkotkar at 4.30
p.m. of 21st January 2006 is not proved. The said demand was
not got verified by the prosecuting agency, though there was
enough time to get that demand verified. This aspect, according
to the learned advocate appearing for the appellant/accused
assumed importance because the case in hand reflects two failed
traps coupled with the fact that the appellant/accused had not
telephonically contacted the complainant during all this period,
even for once. By drawing my attention to the cross-examination
of PW2 Prasanna Akkalkotkar, the learned advocate appearing for
the appellant/accused argued that as the appellant/accused
referred PW2 Prasanna Akkalkotkar as a "thief", in order to take
revenge, he lodged a false complaint and got the appellant/
accused falsely implicated in the crime in question. My attention
was drawn to the answer given to Question No.49 by the
appellant/accused in his examination under Section 313 of the
Code of Criminal Procedure. It is further argued that, it was PW2
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Prasanna Akkalkotkar who was repeatedly calling the
appellant/accused and the appellant/accused never visited the
workshop of the complainant after 21st January 2006. This
demonstrates that there was no demand for illegal gratification.
The learned advocate further argued that versions of PW2
Prasanna Akkalkotkar and that of PW3 Vijay Phulpagare - shadow
panch, so far as it relates to demand and acceptance of illegal
gratification on 25th January 2006 at the cabin of the
appellant/accused are divergent. Because of variance in version
of both these witnesses in respect of the events allegedly took
place in the evening hours of 25th January 2006 at the cabin of the
appellant/accused, the Charge needs to be held as failed.
5 The learned advocate for the appellant/accused placed
reliance on judgment of the Hon'ble Apex Court in the matter of
P. Satyanarayana Murthy vs. The District Inspector of Police
and Another1 to demonstrate that mere possession and recovery
of currency notes from the appellant/accused without proof of
demand is not sufficient for establishing the alleged offence.
1 2015(4) RCR (Cri) Page 305
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Reliance is further placed on judgment of this court in the matter
of Shri Balkrishna Bhau Desai vs. The State of Maharashtra 2 to
demonstrate that for seeking conviction for alleged offences,
satisfactory evidence regarding demand is necessary.
6 The learned APP supported the impugned judgment
and order of conviction and sentence by contending that there is
no requirement of law that the demand needs to be verified by
sending a shadow panch. The demand can be proved through the
version of the complainant and in the case in hand, evidence of
the complainant is satisfactory. Hence, the appellant/accused, in
submission of the learned APP, is rightly convicted of alleged
offences.
th
ADJOURNED TO 11 JANUARY 2018 AS COURT TIME IS OVER
th
RESUMED ON 11 JANUARY 2018
7 I have carefully considered the rival submissions and
also perused the record and proceedings including oral as well as
documentary evidence adduced by the prosecution.
2 2016 ALL MR (Cri) 1913
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8 The case in hand is a trap case, wherein, according to
the prosecution, on 21st January 2006, the appellant/accused -
public servant, demanded gratification amounting to Rs.2,500/-
on the pretext that the electric meter at Fabex Engineers owned by
PW2 Prasanna Akkalkotkar is running slow and thereby showing
less consumption. According to the prosecution, the demand of
gratification other than legal remuneration was for showing
favour in the official act by not taking any legal action against
PW2 Prasanna Akkalkotkar and for charging Rs.5,000/- only as
difference of cost of actual consumption of electricity in billed
amount instead of recovering actual damages amounting to
Rs.15,000/-. Considering the charges leveled against the
appellant/accused, in the case in hand, the prosecution will have
to prove that the appellant/accused had demanded and accepted
gratification other than legal remuneration amounting to
Rs.2,500/- as a motive or reward for showing favour in the official
act. It will have to be established that by corrupt or illegal means
and by abusing his position, the appellant/accused had obtained
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for himself pecuniary advantage. It will have to be proved by
cogent evidence that -
(a) at the time of the alleged offence, the appellant/accused
was a public servant;
(b) he demanded and accepted or obtained for himself
gratification other than legal remuneration;
(c) such gratification was accepted as a motive or reward
for official act.
If these ingredients are established by the prosecution, then the
Charge can be held to be proved. The third requirement in
respect of motive or reward for doing official act is generally
difficult to prove against the public servant. Therefore, the
legislature has enacted Section 20 which prescribes rule of
presumption. The presumption specified therein will arise only
upon proof that accused has accepted any gratification other than
legal remuneration. This mandatory presumption of law is
required to be understood in terrorum i.e. in tone of command
(see M. Narsinga Rao vs. State of Andhra Pradesh3).
3 (2001) 1 SCC 691
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9 At this juncture, it is also apposite to note the burden
of proof expected from the appellant/accused for rebutting the
presumption as envisaged by Section 20 of the Prevention of
Corruption Act. In the matter of Trilok Chand Jain vs. State of
Delhi4 the Hon'ble Apex Court has held thus :
"If at such a trial, the prosecution proves that the
accused has accepted or obtained gratification other
than legal remuneration, the court has to presume
the existence of the further fact in support of the
prosecution case, viz., that the gratification was
accepted or obtained by the accused as a motive or
reward such as mentioned in Section 161, Penal
Code. The presumption however, is not absolute. It
is rebuttable. The accused can prove the contrary.
The quantum and the nature of proof required to
displace this presumption may vary according to the
circumstances of each case. Such proof may partake
the shape of defence evidence led by the accused, or
it may consist of circumstances appearing in the
prosecution evidence itself, as a result of cross-
examination or otherwise. But the degree and the
character of the burden of proof which Section 4(1)
4 AIR 1977 SC 666
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casts on an accused person to rebut the presumption
raised thereunder, cannot be equated with the
degree and character of proof which under Section
101, Evidence Act rests on the prosecution. While
the mere plausibility of an explanation given by the
accused in his examination under Section 342,
Cr.P.C. may not be enough, the burden on him to
negate the presumption may stand discharged, if
the effect of the material brought on the record, in
its totality, renders the existence of the fact
presumed, improbable."
Keeping in mind this position of law, let us examine evidence
adduced by the prosecution in order to establish its case. This
being an appeal, there is no embargo on reviewing the entire
evidence or rather it becomes duty of this court to re-appreciate
the entire evidence, this court being the last fact finding court in
the subject matter.
10 I have set out the case of the prosecution in detail in
order to avoid repetition of congruous evidence coming on record
from mouth of complainant PW2 Prasanna Akkalkotkar and
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shadow panch PW3 Vijay Phulpagare. Let us ascertain from the
evidence adduced by these two witnesses coupled with the
evidence of Investigating Officer PW4 Arun Waikar, Deputy
Superintendent, whether the prosecution has established by
cogent and trustworthy evidence demand of illegal gratification
and acceptance thereof. Undisputedly, the alleged demand of
illegal gratification was not got verified by the ACB. However,
there is evidence of PW2 Prasanna Akkalkotkar on record, so far
as this demand is concerned. The defence has not disputed that
this witness is owner of the workshop known as Fabex Engineers.
There is no challenge to the fact that on 21 st January 2006, the
appellant/accused accompanied by other employees of the
Electricity Supply Company visited the workshop for taking
electric meter supply. Version of PW2 Prasanna Akkalkotkar,
owner of workshop is in tune with the prosecution case to that
effect, set out in earlier paragraphs. The demand of illegal
gratification is seen to be emanating for the first time at about
4.30 p.m. of 21st January 2006, i.e., the second visit of the
appellant/accused to the workshop of PW2 Prasanna Akkalkotkar.
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This witness deposed that after the first visit of the
appellant/accused in the morning hours for inspecting the meter
with colleagues, the appellant/ accused revisited his workshop at
4.30 p.m. on 21st January 2006, all alone. At that time, the
appellant/accused prepared an application on behalf of PW2
Prasanna Akkalkotkar in Marathi language, showing willingness of
PW2 Prasanna Akkalkotkar to deposit the balance amount for
electricity consumption. That application is at Exhibit 14. As per
version of PW2 Prasanna Akkalkotkar, he did not agree with
contents of that application, and therefore, he got another type
written application, which is at Exhibit 13. Perusal of this
application shows that PW2 Prasanna Akkalkotkar had, by this
application communicated to the Executive Engineer of the
Electric Supply Company that he is ready to pay the difference of
consumption charges for the period from July 2005 to January
2006. As per version of PW2 Prasanna Akkalkotkar, he gave
application which is at Exhibit 13 to the appellant/accused and
had obtained acknowledgment of the appellant/accused on the
said application. Then, as stated by PW2 Prasanna Akkalkotkar,
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the appellant/accused communicated to him that he should pay
an amount of Rs.2,500/- and the matter would be settled for a
fine of Rs.5,000/-. The appellant/accused demanded the amount
of Rs.2,500/- immediately. PW2 Prasanna Akkalkotkar further
deposed that he informed the appellant/accused that he is not
having money, and therefore, the appellant/accused informed him
to keep that much amount ready on Monday i.e. on 23 rd January
2006. The appellant/accused also gave his cell phone number to
PW2 Prasanna Akkalkotkar and then left the workshop.
11 It has come in evidence of PW2 Prasanna Akkalkotkar
that on 23rd January 2006, he telephonically contacted the
appellant/accused on cell phone of the appellant/accused. The
appellant/accused then agreed to come to the workshop. As per
version of PW2 Prasanna Akkalkotkar, he then approached the
ACB as he was not willing to pay illegal gratification to the
appellant/accused and lodged complaint Exhibit 15. Perusal of
this complaint Exhibit 15 lodged by PW2 Prasanna Akkalkotkar
also shows that there was demand of illegal gratification
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amounting to Rs.2,500/- at 4.30 p.m. of 21 st January 2006. The
complaint at Exhibit 15 further shows that on 23rd January 2006,
complainant PW2 Prasanna Akkalkotkar contacted the appellant/
accused and the appellant/accused agreed to come to the
workshop after the afternoon.
12 What happened subsequently, has come on record
through version of PW2 Prasanna Akkalkotkar, PW3 Vijay
Phulpagare and PW4 Arun Waikar, Deputy Superintendent, ACB.
After making preparations for trap and recording those
preparations in pre-trap panchnama Exhibit 17 on 23rd January
2006 accompanied by panch witnesses, raiding party went to the
Fabex Engineers. These witnesses have spoken about what had
happened on 23rd January 2006 at the Fabex Engineers and the
same is also reflected from trap withdrawal panchnama of the
same day, which is at Exhibit 18. After conducting necessary
formalities of recording complaint Exhibit 15, raiding team,
complainant PW2 Prasanna Akkalkotkar and panch witnesses
reached Fabex Engineers at 2.30 p.m. of 23rd January 2006. PW2
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Prasanna Akkalkotkar accompanied by shadow panch PW3 Vijay
Phulpagare then went to first floor cabin and waited there for the
appellant/accused. Other members of the raiding team with
another panch waited in the vicinity for arrival of the
appellant/accused. It is seen from evidence of these three
witnesses, so also from trap withdrawal panchnama Exhibit 18
that till 5.30 p.m. of 23rd January 2006, the appellant/accused had
not come to the workshop of PW2 Prasanna Akkalkotkar.
Evidence of PW2 Prasanna Akkalkotkar further shows that despite
waiting, as the appellant/accused had not come to his workshop,
PW2 Prasanna Akkalkotkar had contacted the appellant/accused
telephonically during the course of the trap. However, the
appellant/accused had informed PW2 Prasanna Akkalkotkar that
he will come. PW2 Prasanna Akkalkotkar further deposed that
despite this telephonic message, the appellant/accused did not
come to his workshop on 23rd January 2006. PW2 Prasanna
Akkalkotkar further deposed that he again tried to call the
appellant/accused but the appellant/accused was unreachable
thereafter. This is how the prosecuting agency then prepared
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panchnama Exhibit 18 for withdrawal of the trap on 23 rd January
2006, at about 6.00 p.m.
13 What happened on 25th January 2006 is deposed by
PW2 Prasanna Akkalkotkar by stating that on that day his
receptionist got a phone call from the office of the Electricity
Company but that call got cut prior to conversing, and therefore,
he himself had again called the appellant/accused telephonically.
At that time, the appellant/accused told him that he is coming to
the workshop of the complainant in the afternoon. Therefore,
again PW2 Prasanna Akkalkotkar went to the office of ACB. Again
panch witnesses were called, pre-trap panchnama Exhibit 20 was
prepared. Currency notes smeared with anthracene powder were
kept in the shirt pocket of PW2 Prasanna Akkalkotkar and taking
the panch witnesses with them, the raiding party accompanied by
complainant PW2 Prasanna Akkalkotkar went to his workshop
Fabex Engineers.
avk 28/46
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14 Evidence of PW2 Prasanna Akkalkotkar, PW3 Vijay
Phulpagare and PW4 Arun Waikar is congruous in respect of
happenings which took place on 25th January 2006. Events which
took place are also recorded in post-trap panchnama of 25 th
January 2006 which is at Exhibit 21. Evidence of these witnesses
examined by the prosecution and contemporaneous documents
i.e. post-trap panchnama Exhibit 21 reveals that on 25 th January
2006 at 3.15 p.m., PW2 Prasanna Akkalkotkar and PW3 Vijay
Phulpagare - shadow panch entered in the workshop named
Fabex Engineers belonging to PW2 Prasanna Akkalkotkar. Other
members of the raiding party with the co-panch waited in the
vicinity. Despite wait for one hour, the appellant/accused did
come. Then, at about 4.25 p.m., PW2 Prasanna Akkalkotkar
telephonically contacted the appellant/accused. The appellant/
accused told him that he could not get vehicle but he will come.
He should be contacted telephonically after half an hour. It is
seen from the evidence of the prosecution, and particularly post-
trap panchnama Exhibit 21 that despite further wait for one hour,
the appellant/accused did not come to the Fabex Engineers.
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Therefore, at 5.25 p.m. of 25th January 2006, PW2 Prasanna
Akkalkotkar again called the appellant/accused. Upon that, the
appellant/accused informed that he is not having vehicle and
asked PW2 Prasanna Akkalkotkar to come to his office.
15 It was then decided to trap the appellant/accused at
his office itself, and therefore, as seen from evidence of PW2
Prasanna Akkalkotkar, PW3 Vijay Phulpagare and PW4 Arun
Waikar, Deputy Superintendent, ACB, coupled with
contemporaneous post-trap panchnama Exhibit 21 that at about
6.05 p.m. of 25th January 2006, PW2 Prasanna Akkalkotkar and
PW3 Vijay Phulpagare went inside the office of the MSEDCL vide
PW2 Prasanna Akkalkotkar carrying tainted currency notes in his
pocket. Other members of the trap party and the co-panch waited
in the vicinity of that office till getting prearranged signal at 6.38
p.m. of 25th January 2006.
16 What transpired during that period of 33 minutes has
come on record through evidence of PW2 Prasanna Akkalkotkar
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and PW3 Vijay Phulpagare. PW2 Prasanna Akkalkotkar has
deposed that when they went to the office of the
appellant/accused, the appellant/accused was found sitting in the
cabin of the Executive Engineer. Similar is the version of PW3
Vijay Phulpagare who has stated that he had seen the
appellant/accused sitting in the cabin of the Executive Engineer
with three other persons. Both these witnesses congruously
deposed that then they waited for the appellant/accused to come
out of the cabin of the Executive Engineer. PW3 Vijay Phulpagare
has categorically stated that he along with PW2 Prasanna
Akkalkotkar sat on the bench kept outside the cabin of the
appellant/accused waiting for his arrival. As per version of PW3
Vijay Phulpagare, after waiting for half an hour outside the cabin
of the appellant/accused, the appellant/accused came out of the
cabin of the Executive Engineer and came towards his own cabin.
PW2 Prasanna Akkalkotkar has stated that they were required to
wait for the appellant/accused for fifteen to twenty minutes. Both
these witnesses then stated that they entered in the cabin of the
appellant/accused along with the appellant/accused. It is
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apposite to note that as seen from evidence of PW3 Vijay
Phulpagare, that when they entered in the cabin of the
appellant/accused, they found that only one extra chair was
available there. Therefore, as stated by PW3 Vijay Phulpagare,
PW2 Prasanna Akkalkotkar went outside the cabin and brought
one more chair for himself. This evidence goes to show that when
the appellant/accused was with the Executive Engineer in the
cabin of the Executive Engineer, PW2 Prasanna Akkalkotkar and
PW3 Vijay Phulpagare were waiting for him outside the cabin of
the appellant/accused, for about a period of half an hour. Even
post-trap panchnama Exhibit 21 shows that both these witnesses
were in the office of the appellant/accused from 6.05 p.m. to 6.38
p.m. of 25th January 2006.
17 So far as actual demand and acceptance of illegal
gratification at the time of the trap which took place on 25 th
January 2006 is concerned, PW2 Prasanna Akkalkotkar has
deposed that firstly, the appellant/accused informed him that he
has imposed fine of Rs.15,000/- and then when PW2 Prasanna
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Akkalkotkar started leaving, the appellant/accused asked him to
stop and told him that he has charged fine of Rs.5,000/- only.
Then the appellant/accused asked him about his work and PW2
Prasanna Akkalkotkar informed him that he had brought the
amount. The appellant/accused raised suspicion about presence of
of PW3 Vijay Phulpagare and then he was informed that PW3
Vijay Phulpagare is a relative. Then the appellant/accused opened
the drawer and put the papers used for printing in computer on
the table and asked PW2 Prasanna Akkalkotkar to keep the
amount on those papers. That is how PW2 Prasanna Akkalkotkar
kept the five tainted currency notes on those papers. The
appellant/accused folded those currency notes with the help of
the papers on which those currency notes were kept and placed
them in the drawer of his table. Version of PW3 Vijay Phulpagare,
in this regard, is also similar. However, he has not spoken about
folding of the currency notes kept on the papers along with the
papers. This witness has stated that the appellant/accused lifted
those currency notes with the help of the papers on which those
were kept and kept them in the drawer and closed the drawer.
avk 33/46
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18 This is principally the evidence regarding demand and
acceptance of illegal gratification by the appellant/accused.
19 Law regarding appreciation of evidence of trap
witnesses as well as the complainant can be found in catena of
judgments delivered by the Hon'ble Apex Court as well as by this
court. In the matter of Sudhakar Jadhao vs. State of
Maharashtra 5 it is held thus :
"After all, P.W.1. is himself the complainant and
therefore, interested in the success of the
prosecution of his complaint. The evidence of an
interested witness cannot be accepted by itself. It is
unsafe to accept the evidence of interested witness
unless corroborated by independent witnesses."
Similarly, the Hon'ble Apex Court in the matter of Jaswant Sing
vs. State of Punjab 6 has held thus :
"As P.W.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."
5 2004 ALL MR (Cri.) 648
6 AIR 1973 SC 707
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In the matter of Ramprakash
Arora vs. State of Punjab 7 the
Hon'ble Apex Court has given guidelines guidelines regarding
appreciation of evidence of trap witnesses and has held that they
are concerned with the success of the trap and their evidence must
be tested in the same way as that of other interested witnesses
and in a proper case, the court may look for independent
corroboration.
20 In the case in hand, perusal of the charge-sheet shows
that Ashok Shetty, Manager of PW2 Prasanna Akkalkotkar was
cited as a witness. Evidence of this complainant shows that when
the appellant/accused revisited his workshop at about 4.30 p.m.
of 21st January 2006, he did not accept the draft of application
prepared by the appellant/accused which is at Exhibit 14 but got
prepared a typed application in English which is at Exhibit 13.
Evidence of PW2 Prasanna Akkalkotkar shows that at the time of
initial visit in the morning hours of 21st January 2006, the
appellant/accused was introduced to him by his Manager Ashok
Shetty. PW2 Prasanna Akkalkotkar has not spoken that at the
7 AIR 1973 SC 498
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time of visit of the appellant/accused to his workshop at 4.30 p.m.
of 21st January 2006, his Manager Ashok Shetty was not there.
PW2 Prasanna Akkalkotkar has not deposed that whatever talk
took place between him and the appellant/accused at 4.30 p.m. of
21st January 2006 did not take place in presence of any of his
employees. PW2 Prasanna Akkalkotkar has not deposed that he
himself had got the application at Exhibit 13 typed by himself
without taking the aid of any of his employees. In normal course
it seems that PW2 Prasanna Akkalkotkar, who was owner of the
Fabex Engineers, must have sought help of his employees for
getting the application at Exhibit 13 typed. The charge-sheet is
citing Ashok Shetty, Manager of Fabex Engineers, as one of the
witnesses, but he has not been examined. It will have to be seen
whether available evidence is lacunic in order to infer implications
of non-examination of Ashok Shetty as witness by the prosecution.
21 As stated in foregoing paragraphs, on occasion of the
first trap i.e. on 23rd January 2006, though it is the prosecution
case that the appellant/accused was to visit the workshop for
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acceptance of illegal gratification, the appellant/accused had not
chosen to come to the workshop of PW2 Prasanna Akkalkotkar for
accepting the amount of illegal gratification. It is seen from his
evidence that even on 23rd January 2006, during the course of the
trap, PW2 Prasanna Akkalkotkar was telephonically contacting the
appellant/accused for inviting him to his workshop for accepting
the amount towards illegal gratification. Despite alleged
assurance by the appellant/accused, he did not come to the
workshop of PW2 Prasanna Akkalkotkar on 23rd January 2006 for
the whole day, which has resulted in withdrawal of the trap by
preparing panchnama Exhibit 18, after 6.00 p.m. What is the
normal consequence of such withdrawal of the trap panchnama
can be found in the judgment of this court reported in Ramdas
Shahane vs. State of Maharashtra 8. Relevant observations found
in paragraph 10 of the said judgment read thus :
"That apart, the further story that the raiding party
waited for the accused to come firstly on the same
night and secondly for almost the whole day on the
next day appears to be really puzzling. If the
accused did not come as per the version of the
8 1996 CRI.LJ. 1848
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complainant, then that should have been normally
the end of it. In this case, the Investigating Officer
seems to have gone a step ahead in giving a hot
chase to the accused having waited for the accused
and seeing that the accused had not turned up, the
trap should have been dissolved."
22 This withdrawal of the trap on 23rd January 2006 did
not end the matter but has resulted in laying down another trap
on 25th January 2006. On that day also, though according to the
prosecution case, the appellant/accused had assured to come to
the Fabex Engineers of PW2 Prasanna Akkalkotkar for accepting
the amount of illegal gratification, despite the ACB team waiting
there for about more than two hours, the appellant/accused did
not come there. Then, the ACB decided to sent PW2 Prasanna
Akkalkotkar and shadow panch PW3 Vijay Phulpagare to the
office of the appellant/accused.
23 As stated by me in foregoing paragraphs, PW2
Prasanna Akkalkotkar and PW3 Vijay Phulpagare were in the
office of the appellant/accused for about thirty-three minutes, as
avk 38/46
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seen from post-trap panchnama Exhibit 21. Out of this period,
atleast for a period of twenty minutes, they both were sitting
outside the cabin of the appellant/accused waiting for him.
Evidence of PW3 Vijay Phulpagare makes it clear that no peon was
entrusted to the appellant/accused for taking care of his vacant
cabin. This is writ large from the fact that after entering in the
cabin along with the appellant/accused, PW2 Prasanna
Akkalkotkar was required to come out again for taking a chair
from outside, as there was only one spare chair in the cabin of the
appellant/accused. Thus, the open cabin of the appellant/accused
was totally unguarded and as per version of PW2 Prasanna
Akkalkotkar and PW3 Vijay Phulpagare, they both were sitting
outside that cabin for a period of 20 minutes for arrival of the
appellant/accused. Needless to mention that, they both were
having tons of opportunities to enter in that cabin prior to arrival
of the appellant/accused for planting money.
24 Post-trap panchnama Exhibit 21 categorically points
out that clothes and hands of the appellant/accused were scanned
avk 39/46
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under ultra violet rays, but no traces of anthracene powder were
found either on his hands or clothes. However, traces of
anthracene powder were found on the papers on which tainted
currency notes were kept. At this juncture, evidence of PW2
Prasanna Akkalkotkar assumes importance. He has categorically
stated that the appellant/accused has handled the papers on
which the tainted currency notes were kept for folding those
currency notes. Post-trap panchnama Exhibit 21 shows that
currency notes were found in folded condition in the computer
printing paper. Even PW3 Vijay Phulpagare has spoken about
handling by the appellant/accused of the computer printing paper
on which the tainted currency notes were allegedly kept by PW2
Prasanna Akkalkotkar. Thus, in every probability, atleast right
hand of the appellant/accused ought to have been found smeared
with anthracene powder. This did not happen. A lurking doubt
arises in the judicial mind as to whether in the available time of
twenty minutes, when PW2 Prasanna Akkalkotkar and PW3 Vijay
Phulpagare were waiting outside the unguarded cabin of the
appellant/accused, the tainted currency notes were planted in the
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drawer of the appellant/accused? This possibility is not excluded
by the prosecution by adducing the cogent evidence. The
prosecution case becomes suspect on this aspect and the doubt so
created is from the evidence adduced by the prosecution itself.
25 In the light of the foregoing discussion, as the
available evidence adduced by the prosecution is not trustworthy
and reliable, non-examination of Ashok Shetty, Manager of the
Fabex Engineers, assumes importance. The prosecution could
have gained corroboration to the initial demand of illegal
gratification from the mouth of Ashok Shetty, Manager - a cited
witness, as in every probability, he must have accompanied his
master while dealing with the appellant/accused at 4.30 p.m. of
21st January 2006.
26 The entire evidence adduced by the prosecution
reflects that except the so called telephonic call received by the
receptionist of the Fabex Engineers, there was not a single phone
call by the appellant/accused to PW2 Prasanna Akkalkotkar. The
avk 41/46
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appellant/accused is alleged to have demanded illegal
gratification amounting to Rs.2,500/- from complainant/ PW2
Prasanna Akkalkotkar. The entire team of the ACB coupled with
panch witnesses and the complainant lay in wait for the
appellant/accused on two days, i.e., on 23rd January 2006 as well
as 25th January 2006, at the premises of the Fabex Engineers.
However, the appellant/accused did not even visit the premises of
the Fabex Engineers on both these days for accepting the amount
of illegal gratification despite repeated invitations by the
complainant. This conduct of the appellant/accused reflected
from the version of prosecution does not appear to be the normal
conduct of a bribe seeker. The complainant as well as the trap
witnesses were virtually out to implicate the appellant/accused
and the appellant/accused was virtually being trapped by them.
To crown this all, despite having time from 23rd January 2006 to
25th January 2006, no attempt was made by the prosecuting
agency to get the demand verified by sending the shadow panch
along with the complainant to the appellant/accused. Though
this is not requirement of law, facts of the present case warranted
avk 42/46
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such exercise because of withdrawal of the two traps at the
premises of the Fabex Engineers and when the prosecuting agency
decided to go ahead by giving a hot chase to the appellant/
accused for contacting him at his office. The learned advocate for
the appellant/accused has rightly relied on the judgment in the
matter of P. Satyanarayana Murthy (supra) and paragraphs 19,
20 and 21 of the said judgment needs reproduction. They read
thus :
"19 In State of Kerala and another vs.
C.P.Rao (2011) 6 SCC 450, this Court, reiterating
its earlier dictum, vis-à-vis the same offences, held
that mere recovery by itself, would not prove the
charge against the accused and in absence of any
evidence to prove payment of bribe or to show that
the accused had voluntarily accepted the money
knowing it to be bribe, conviction cannot be
sustained."
"20 In a recent enunciation by this Court to
discern the imperative pre-requisites of Sections 7
and 13 of the Act, it has been underlined in B.
Jayaraj (supra) in unequivocal terms, that mere
avk 43/46
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possession and recovery of currency notes from an
accused without proof of demand would not
establish an offence under Sections 7 as well as
13(1)(d)(i)&(ii) of the Act. It has been propounded
that in the absence of any proof of demand for
illegal gratification, the use of corrupt or illegal
means or abuse of position as a public servant to
obtain any valuable thing or pecuniary advantage
cannot be held to be proved. The proof of demand,
thus, has been held to be an indispensable
essentiality and of permeating mandate for an
offence under Section 7 and 13 of the Act. Qua
Section 20 of the Act, which permits a presumption
as envisaged therein, it has been held that while it is
extendable only to an offence under Section 7 and
not to those under Section 13(1)(d)(i)&(ii) of the
Act, it is contingent as well on the proof of
acceptance of illegal gratification for doing or
forbearing to do any official act. Such proof of
acceptance of illegal gratification, it was
emphasized, could follow only if there was proof of
demand. Axiomatically, it was held that in absence
of proof of demand, such legal presumption under
Section 20 of the Act would also not arise."
avk 44/46
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"21 The proof of demand of illegal
gratification, thus, is the gravamen of the offence
under Sections 7 and 13(1)(d)(i)&(ii) of the Act
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 thus not be sufficient to bring home the
charge under these two sections of the Act."
27 In the light of the foregoing discussion and stated
reasons, it cannot be said that the prosecution has established its
case beyond all reasonable doubts that the appellant/accused had
demanded and accepted an amount of Rs.2,500/- from PW2
Prasanna Akkalkotkar and thereby obtained pecuniary advantage.
This acceptance of amount of illegal gratification which leads to
presumption, as envisaged by Section 20 of the Prevention of
Corruption Act, 1988, can be drawn only if it is proved that the
appellant/accused had accepted any illegal gratification. In the
case in hand, there is doubt whether the appellant/accused has
really accepted the amount of illegal gratification or whether with
avk 45/46
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all opportunities available with them, PW2 Prasanna Akkalkotkar
and PW3 Vijay Phulpagare had planted that amount in the drawer
of the table of the appellant/accused. Thus, the appellant/
accused deserves benefit of doubt and as such the order :
ORDER
i) The appeal is allowed.
ii) The impugned judgment and order dated 17 th January 2011
passed by the learned Special Judge under the Prevention of
Corruption Act, Pune, in Special Case No.12 of 2007
convicting him of offences punishable under Sections 7 and
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988, is quashed and set aside.
iii) The appellant/accused is acquitted of the offences alleged
against him. His bail bonds stand cancelled.
iv) Fine amount, if any, imposed on the appellant/accused, and
paid by him, be refunded to him.
(A. M. BADAR, J.)
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