Bombay High Court

Surgani Vyankatesh S/O Raju Naidu vs State Of ... on 12 January, 2018

Bench: R. B. Deo

                                      1                                     apeal567.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 567 OF 2002


 Surgani Vyankatesh s/o Raju Naidu,
 Aged about 38 years,
 Occupation - Service,
 R/o Mohannagar, Nagpur.                                    ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through Anti Corruption Bureau, Nagpur.                    ....       RESPONDENT


 ______________________________________________________________

              Shri J.M. Gandhi, Advocate for the appellant, 
   Shri V.P. Gangane, Additional Public Prosecutor for the respondent. 
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                            DATED    :   12
                                               JANUARY, 2018
                                            th



 ORAL JUDGMENT :

The appellant is assailing the judgment and order dated

16-9-2002 passed by the learned Special Judge, Nagpur in Special Case

28/1992, by and under which the appellant (hereinafter referred to as

the "accused") is convicted for offence punishable under Section 7 of

the Prevention of Corruption Act, 1988 ("Act" for short) and is

sentence to suffer rigorous imprisonment for three years and to

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payment of fine of Rs.2,5000/- and is further convicted for offence

punishable under Section 13(1)(d) and 13(2) of the Act and is

sentenced to suffer rigorous imprisonment for three years and to

payment of fine of Rs.2,500/-.

2. The genesis of the prosecution lies in complaint lodged at

4-00 p.m. on 03-3-1992 by Madhusudan Ade (P.W.1) with the Anti

Corruption Bureau, Nagpur (ACB). The complainant, who was working

as a reporter with All India Reporter, Nagpur stated that he contacted

the accused on 27-2-1992 with a request that a medical certificate of

the Civil Surgeon, Nagpur be issued to the complainant. The accused,

who was attached to the office of the Civil Surgeon, Nagpur as a

stenographer did not issue the certificate on 27-2-1992 and asked the

complainant to come the next day. The complainant met the accused

on 28-2-1992 and was asked to contact the accused on 03-3-1992. The

complainant, alongwith a friend Shri Kotangale met the accused at

12-00 noon on 03-3-1992 and requested that medical certificate of the

Civil Surgeon be issued to the effect that the complainant needs rest for

fifteen days. The accused demanded illegal gratification of Rs.300/-,

the complainant protested pointing out that he was not well since last

two to three months and was not attending duty and would not be in a

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position to pay Rs.300/-. The accused scaled down the demand of

Rs.250/-. The accused asked the complainant to come between 10-00

a.m. to 11-00 a.m. on 04-3-1992 with the amount. The complainant

states that he is not inclined to pay the illegal gratification.

3. In order to keep the record straight, it must be noted that

according to the complaint dated 03-3-1992, on several occasions prior

to the said demand of Rs.250/-, the complainant obtained medical

certificates from the office of the Civil Surgeon, Nagpur with the help

of the accused and paid various amounts to the accused as illegal

gratification. In view of the said complaint, it was decided to trap the

accused.

4. Before the evidence on record is considered and

appreciated, one relevant feature of the prosecution case must be

noted. The accused is a stenographer and in the teeth of the evidence

on record inter alia the evidence of the Civil Surgeon Shri

Prakashchandra Waghe (P.W.5) it is irrefutable that the accused was in

no position to issue the medical certificate of the Civil Surgeon. An

employee seeking medical certificate of the Civil Surgeon is required to

obtain the OPD Card by paying the prescribed fees, the employee is

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then examined by the Civil Surgeon who dictates the contents of the

medical certificate to the steno. The limited duty of the stenographer is

to type the contents of the medical certificate as dictated by the Civil

Surgeon.

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

support the prosecution. He was declared hostile and was cross-

examined by the learned Additional Public Prosecutor. Nothing is

elicited in the cross-examination of P.W.1 to assist the prosecution in

proving the demand. Au contraire, in the cross-examination on behalf

of the accused, P.W.1 states thus :

"Naidu has not demanded bribe to me. He has demanded his money back to me. I thought that he is demanding bribe thereby I have lodged a complaint."

The said admission is of some significance, since the

defence of the accused, which he immediately disclosed to the

investigating officer, was that the complainant owed him Rs.250/-,

when he accepted the amount he was under the impression that the

complainant was making the repayment of the amount of loan. The

disclosure is recorded in Exhibit 107-A.

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6. The prosecution did not prove the payment of fees

statutorily prescribed to obtain the OPD Card. The OPD Card (Article-

F) reveals that initially some other name is written which is scored off

and the name of the complainant Madhukar Ade is inserted. P.W.1

Madhukar Ade admits that Article-F OPD Card bears the name of a

different patient. The story of the prosecution that the complainant

was asked by the accused to come with Rs.250/- on 04-3-1992 to

obtain the medical certificate of the Civil Surgeon is rendered

extremely doubtful for reasons more than one. The accused-

stenographer was in no position to ensure that the Civil Surgeon would

issue the medical certificate to the complainant. The issuance of the

certificate was dependent on the Civil Surgeon being satisfied, on

examining the complainant, that the complainant was not well enough

to report for duty. The Civil Surgeon Shri Prakashchandra Waghe was

on leave on 04-3-1992 and Dr. Gode was incharge. The evidence

would suggest that the complainant did not obtain the OPD Card which

was mandatory before he could even be examined by the Civil Surgeon.

At the cost of repetition, except for taking down the dictation of the

Civil Surgeon, the accused-stenographer could have done precious little

to show any favour to the complainant. It must be borne in mind that

there is no allegation against the Civil Surgeon nor was the charge, of

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abetment. Be it noted, that the complainant does state in the evidence

that the accused asked him whether the amount is brought and the

complainant replied in the affirmative. P.W.1 states that he gave the

amount of Rs.250/- to the accused which was accepted. The defence is

not disputing the demand and acceptance of Rs.250/-. The bone of

contention is that according to the defence, the amount was paid to

repay the loan amount and was accepted as such. The direct admission

is already extracted supra. It would further be apposite to note the

following statement of P.W.1 in the cross-examination on behalf of the

accused.

"17. As I was transferred at Bombay therefore I was under mental tension. My elder brother was died six months prior to incident. As I was relieved from Nagpur, there was no salary to me and it is one of the reason for mental tension. Due to my family problem I have made representation to cancel my transfer. Due to my financial difficulty I used to seek financial help from my friend. In the last week of January 1992 I have demanded the hand loan of Rs.500/- to Bhagwan Wahane. When I went to demand money to Bhagwan Wahane, Naidu was present at the house of Bhagwan Wahane. When I have demanded Rs.500/- to Bhagwan Wahane. He said that now he is not having Rs.500/-, Bhagwan Wahane has given Rs.250/-

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from him and by taking Rs.250/- from Naidu has given it to me.

18. After 15 to 20 days I have paid back Rs.500/- to Wahane. After return of money and till I have lodged a complaint to A.C.B., I have not visited to Bhagwan Wahane, there was no meeting between us. I was not having idea whether Bhagwan Wahane has returned Rs.250/- to Naidu. Bhagwan Wahane has informed me that he has not returned the money of Naidu. Bhagwan Wahane has informed this fact to me after the trap when he met with me. When Naidu has demanded money to me I thought that he is demanding bribe, but he was demanding his money back."

7. It is further admitted by P.W.1 that since the accused

cautioned him that in view of his improving health the Civil Surgeon

may not issue the medical certificate, he was angered.

8. The shadow panch Shri Anil Lingayat, who is examined as

P.W.2, has deposed that the accused asked the complainant whether

the work is done as stated and whether the complainant has brought

the money and the complainant answered affirmatively. The accused

said 'give the money' and the complainant gave the money to the

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accused. I am afraid, that this evidence is not sufficient to prove that

the accused decisively and conclusively demanded illegal gratification.

I may reiterate, that it is not in dispute that the accused accepted

Rs.250/- from the complainant. The million dollar question is whether

the money was accepted as illegal gratification or as refund of the loan

amount. It is a well settled position of law that proof of a decisive and

conclusive demand is the very sine qua non ingredient of offence under

the Act. In the absence of such proof, the acceptance and recovery of

amount would not be sufficient to establish the offence under the Act

beyond reasonable doubt. The learned Counsel for the accused Shri

J.M. Gandhi relies on a relatively recent judgment of the Hon'ble Apex

Court in V. Sejappa v. State By Police Inspector Lokayukta,

Chitradurga reported in AIR 2016 SC 2045, and in particular the

observations of the Hon'ble Apex Court in paragraph 10 which read

thus :

"10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 : (AIR 2014 SC (supp) 2837), wherein this Court held as under:-

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal

9 apeal567.02

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.(2010) 15 SCC 1 : (AIR 2011 SC 608) and C.M. Girish Babu v. CBI (2009) 3 SCC 779 : (AIR 2009 SC 2022)."

The same view was reiterated in P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152 : (AIR 2015 SC 3549)"

9. The learned Counsel for the accused Shri J.M. Gandhi

would further rely on the observations of the Hon'ble Apex Court in

Rabhbir Singh v. State of Punjab reported in (1976) 1 SCC 145, to

substantiate the submission that since the accused was in no position to

show any favour to the complainant, the prosecution case is rendered

vulnerable. The relevant observations in the said judgment read thus :

"5. ----------------------------- The only issue which was then being pressed by Jagdish Raj was that relating to exemption from payment of goods tax and so far as that issue was concerned, the appellant had nothing to do with it. There was, therefore, clearly no motivation for Jagdish Raj to give bribe to the appellant for obtaining grant of exemption. This circumstance weakens the foundation on which the edifice of the prosecution story rests and introduces an element of infirmity in it."

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10. The learned Additional Public Prosecutor invites my

attention to the evidence of P.W.8 Anthony Francis who claims to be

present in the office of the Civil Surgeon to obtain a similar certificate.

His evidence, however, takes the case of the prosecution no further

since all that is said by P.W.8 is that the accused asked the complainant

as to whether he has brought as asked and the complainant answered

in the affirmative.

11. In the teeth of evidence on record, it would be extremely

unsafe to record a finding that the prosecution has proved beyond

reasonable doubt that the accused demanded illegal gratification. The

defence is more than probabilsed on the touchstone of preponderance

of probabilities. The evidence on record is not of such clinching nature

as would rule out every hypothesis other than that of the guilt of the

accused. The benefit of doubt must necessarily go in favour of the

accused.