Rameshwar Baliramji Dharmul vs State Of Mah.Thr.Pso Wardha
2018 Latest Caselaw 368 Bom

 apeal298.04.J.odt                         1




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

                     CRIMINAL APPEAL NO.298 OF 2004

          Rameshwar s/o Baliramji Dharmul,
          Aged about 50 years,
          Occupation: Service,
          R/o Ward No.1, Sailu,
          Dist. Wardha.               ....... APPELLANT

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

          State of Maharashtra,
          through Police Station Officer
          and Anti Corruption Bureau,
          Wardha.                                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Shyam R. Jaiswal, Advocate for Appellant.
          Shri N.R. Patil, APP for Respondent/State
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            12    JANUARY 2018.


 ORAL JUDGMENT



 1]               The   appellant   is   convicted   of   offence   punishable

under section 7 of the Prevention of Corruption Act ('Act' for

short) and is sentenced to suffer rigorous imprisonment for one

year and to payment of fine of Rs.1000/- and is further convicted

of offence punishable under section 13 (1)(d) read with section

13(2) of the Act and is sentenced to suffer rigorous imprisonment

for one year and to payment of fine of Rs.1500/-. It is this

judgment and order dated 21.04.2004 passed by the Special

Court, constituted under Prevention of Corruption Act, Wardha in

Special Case 3/2000 which is assailed in the instant appeal.

2] Heard Shri S.R. Jaiswal, the learned counsel for the

appellant and Shri N.R. Patil, the learned Additional Public

Prosecutor for the respondent/State.

3] The complainant Nana Marotrao Deshmukh

approached the Anti Corruption Bureau ('ACB'), Wardha with

complaint dated 28.10.1999 (Exh.28) the gist of which is thus:-

The complainant is a Hotelier who purchased a plot

by and under the registered sale-deed dated 29.07.1999.

He contacted the accused, who was Patwari of Borgaon (Meghe)

with photo copy of the sale-deed, on 01.10.1999. He requested

the accused to effect mutation. The accused handed over a printed

form and asked the complainant to obtain the signature of the

vendor and retained the photo copy of the sale-deed.

The complainant obtained the signature of the vendor on the very

day and met the accused at 04:00 p.m. and handed over the form.

The accused asked the complainant to attend his office on 15 th or

16th October, 1999. The complainant met the accused on

20.10.1999 and inquired about the mutation. The accused told the

complainant that he will have to incur expenditure and pay the

outstanding tax. The accused told the complainant that he will

have to pay the outstanding tax of Rs.145/- and additionally

Rs.200/-. The complainant protested. Negotiation ensued.

The accused scaled down the demand to Rs.100/-. The accused

asked the complainant to come with Rs.245/- to cover the

outstanding tax of Rs.145/- and the illegal gratification of

Rs.100/-. The complainant conveyed to the accused that after the

mutation entry is taken, and extract of 7/12 would be needed,

and the accused agreed to issue the 7/12 extract. The complainant

went to the Tahsil Office at 11:00 a.m. on 22.10.1999, paid the

tax amount to the accused and asked the accused to issue tax

receipt and extract of 7/12 record with the mutation entry.

The accused accepted Rs.145/-, prepared a receipt of Rs.145.90,

signed the receipt and recorded the date 22.10.1999 and asked

the complainant as to whether the amount of Rs.100/- is brought.

The complainant conveyed that he could not arrange the said

amount and would do so within a week. In response, the accused

told the complainant to bring Rs.100/- till 28.10.1999.

4] The accused further conveyed that after the officer

sanctions the mutation entry he would issue 7/12 extract in

favour of the complainant. The complainant stated that he did not

wish to pay the illegal gratification of Rs.100/- and that action be

initiated against the accused.

5] The defence of the accused is that the complainant

did inform the accused that the mutation entry was not recorded

due to the non-availability of the Revenue Circle Inspector.

When the complainant visited the office on 22.10.1999, the

accused made it clear that unless the outstanding tax is cleared

the mutation entry would not be effected. The complainant

handed over only Rs.50/- and insisted that the tax receipt be

issued. The accused refused to do so since the outstanding tax was

Rs.149.90. A verbal altercation ensued between the complainant

and the accused. Shri Dhamande tried to persuade the

complainant to see reason. However, the complainant threatened

the accused and left. The accused was required to maintain a

diary. The accused recorded the incident in the diary on the same

day.

In so far as the trap is concerned, the contention of

the accused is, that the amount of Rs.100/-, which was accepted

from the complainant on 28.10.1999 was accepted as the payment

of the balance tax.

6] At this stage, few admitted facts may be noticed. It is

irrefutable that as Talathi, the accused was required to maintain a

daily diary. The sanctioning authority Anil Bansod (P.W.2) has

deposed that every Talathi is required to maintain a daily diary.

One Santosh Dhumale, who took over charge as Talathi of

Borgaon (Meghe) on 01.07.2003 is examined as D.W.1. He has

deposed that every Talathi has to maintain daily diary which is to

be handed over to the successor. P.W.1 produced the original

daily diary. He has deposed that the daily diary which is provided

to Talathi is certified by Circle Officer. The diary produced in the

court records entries from 01.08.1999 to 05.11.1999. The original

diary reveals that a note is taken on 22.10.1999 at serial 83 of the

incident of altercation. In the cross-examination of D.W.1 no

suggestion is given that entry 83 is fabricated or that the entry

was not taken on 22.10.1999. The other important fact which

must be noticed is that there is irrefutable evidence on record to

show that when the accused received the payment of Rs.100/-

from the complainant, he noted on a piece of paper 'tax receipt is

to be issued'. The shadow panch Shankar Gawande who is

examined as P.W.3 was declared hostile since he did not entirely

support the prosecution. P.W.3 has categorically deposed that the

accused recorded on a piece of paper that tax receipt is to be

issued. Interestingly, the learned Additional Public Prosecutor

suggested to the P.W.3 that the accused did note on piece of paper

that the tax receipt is to be issued. In the cross examination of

P.W.3 on behalf of the prosecution the answer given in response

to the suggestion is thus:-

It is true that one that paper there was mentioned "Nana Deshmukh tax Rs.100/- credited.

On 28th Oct. 1999 receipt is to be issued". It is true that on the other side of the paper what was written "Kumbhare Bhoyar". It is true that on that paper myself other panch Dharmu and A C officer Sharma we made signatures. It is true that when panch Dhote took out the articles from the chest pocket of Dharmu at that time one folded paper was found in his pocket.

P.W.1 complainant has also deposed in the

examination in chief thus:-

The said piece of paper was having a fold. It was unfolded. My name was written on the said chit/piece of paper and Rs.100/- towards the tax were the only words mentioned and on one side of the said piece of paper two entries were mentioned.

The defence examined as D.W.2 Laxmikant

Dhamande, who was then a Professor at the Bapurao Deshmukh

Engineering College, Sewagram. D.W.2 is acquainted with both

the accused and the complainant. He was present in the office of

the accused between 11:00 to 12:00 on 22.10.1999 to obtain

7/12 extract. D.W.2 has deposed that he witnessed hot exchange

of words between the accused and the complainant.

The complainant was insisting that the accused should accept

Rs.50/- and the document should be given while the accused was

firmly saying that the total outstanding of Rs.145/- be paid. D.W.2

states that the accused told the complainant to pay the legal

charges and take the document which enraged the complainant.

D.W.2 has deposed that he had again visited the office of the

accused at 02:00 p.m. on 28.10.1999 and on coming to know of

the trap, conveyed to Shri Sharma, the Investigating Officer the

incident which occurred on 22.10.1999. D.W.2 states that the I.O.

asked one of his staff to record his statement, which was duly

recorded.

7] The defence also made an endevaour to prove that

the complainant was of suspect moral character and was

habituated to lodging false complaint. It would be apposite to

reproduce the following portion of the cross-examination of P.W.1

complainant.

It is true that I was arrested by the police for the crime under gambling Act. It is not true to say that one of my brother is attached to P.S. Wardha as policeman. It is not true to say my brother is serving with police department. I know police constable Gulhane and he is my neighbour. It is true that I lodged complaint against

police constable Gulhane. I gave that complaint to A.C.B. and also to the police department. It is true that inquiry was made in regard to my complaint. It is true that no action was taken police department against Mr. Gulhane despite of the fact that I made complaint against him. It is true that my complaint was that Mr. Gulhane possesses more property than to his income. It is not true that I made complaint against him that he demands money from me.

8] P.W.1 complainant has deposed that the initial

demand for illegal gratification was made on 20.10.1999.

His version is that on 20.10.1999 the accused conveyed that the

outstanding taxes of Rs.145/- will have to be paid and Rs.200/-

would be required for effecting mutation. Negotiations ensued

and the demand for illegal gratification was scaled down to

Rs.200/-. No explanation is forth coming in the evidence as to

why the complainant lodged the report belatedly on 28.10.1999.

The delay in lodging the report calls for strict scrutiny of the

evidence of P.W.1. De hors the delay, in view of the settled

position of law, inter alia, enunciated in Panalal Damodar Rathi

vs. State of Maharashtra, 1980 SCC (Cri) 121, the evidence of the

complainant must be tested with caution since his evidence cannot

be considered on a better footing than that of an accomplice.

P.W.1 then states that he went to the office of the accused on

22.10.1999, handed over Rs.145/- as payment of the outstanding

tax and inquired about the tax receipt and mutation. The accused

issued tax receipt (Exh.27) and demanded Rs.100/-. The accused

informed the complainant that his superior has not signed the

mutation register. The complainant conveyed to the accused that

he would arrange for Rs.100/- within eight days and was told by

the accused to come on 28.10.1999.

The evidence of P.W.1 as regards the trap is that he

asked the accused about the mutation entry, the accused in turn

asked as to whether the money is brought, the complainant said

yes and the accused took out a paper from the nearby almirah and

wrote something on the piece of paper. The accused then

demanded money, which was paid by the complainant.

The accused kept the amount in the shirt pocket along with the

piece of paper. The complainant gave the predetermined signal

and the accused was apprehended. The complainant himself has

stated in the examination-in-chief that the accused made an

immediate disclosure that he received the amount as payment of

tax.

In the cross-examination, the defence of the accused,

the substratum of which is noted supra, was put to the accused.

The accused has denied the suggestion that although the receipt

for payment of tax was indeed prepared on 22.10.1999, the

receipt was not issued since the complainant paid only Rs.50/-

and not Rs.144.90 which was the tax outstanding. This suggestion

is denied by the complainant. The complainant admits that the

accused pay Rs.144.90 to clear the outstanding tax. He however,

denies that after giving only Rs.50/- to the accused, he demanded

receipt. P.W.1 complainant denies that there was an altercation

between him and the accused. It is brought on record that the

statement of the complainant was recorded on 31.10.1999.

The recording of the statement on 31.10.1999 is of some

significance from the perspective of the defence, and I shall deal

with the said aspect at a later stage of the judgment.

9] The learned Sessions Judge has heavily relied on

Exh.27 which is the original tax receipt to hold that the defence of

the accused is improbable. The learned Sessions Judge has

recorded a finding that the tax receipt Exh.27 was issued on

22.10.1999 and would mean that the entire tax amount was

received by the accused on the said date. This, in the view of the

learned Sessions Judge, rules out the possibility that the amount

of Rs.100/- which was irrefutably received by the accused from

the complainant on the date of the trap, was received towards

payment of the outstanding tax. It is axiomatic that if it is

conclusively established that the entire outstanding tax was paid

on 22.10.1999, the defence of the accused is rendered suspect.

The accused is not disputing having received the amount of

Rs.100/- on 28.10.1999. The defence is that the said amount was

received as balance amount of the outstanding tax. The defence is

relying on several circumstances to assail the version of the

prosecution that the entire tax was paid on 22.10.1999 and

receipt issued. The first circumstance is that there is

contemporaneous documentary evidence to prove that the

complainant paid only Rs.50/- and altercation occurred since he

was insisting on receipt. The accused recorded in daily diary at

entry 83 which is certified by the concerned officer on

27.10.1999. The second circumstance is that the accused

concededly made an immediate disclosure of the defence when he

was apprehended, by the ACB staff. The third circumstance is that

irrefutably the chit which was recovered, records that Rs.100/- is

received as tax and receipt is to be issued. The prosecution

witnesses too admit that the accused did record on piece of paper

that Rs.100/- is received as tax and the receipt is to be issued.

The fourth circumstance is that the original tax receipt is placed

on record is apparently seized only on 31.10.1999, after the trap

and there is no rational explanation as to why the said receipt is

not produced or seized earlier. The fifth circumstance is that the

shadow panch P.W.3 admits that in the office of the ACB the

complainant stated that despite payment of the outstanding tax no

receipt was issued. The sixth circumstance is that the I.O. admits

that in the receipt book verified on 28.10.1999, there was a

receipt pertaining to the payment of tax of Rs.144.90 which

evidence would imply that the receipt was prepared on

22.10.1999 but not issued to the complainant. The defence

emphasizes that the reference is not to a counter foil of the receipt

but to the receipt itself. The defence appears to be, that the

cumulative effect of the afore referred circumstances would to

suggest that as on the date of the trap the complainant was not in

possession of the receipt and therefore, the receipt was only

produced or seized on 31.10.1999 on which date concededly the

statement of the complainant is recorded.

10] It is trite law, that the burden which the accused is

required to discharge to probablize the defence is not to prove the

defence beyond reasonable doubt. The defence may be

probablized on the touchstone of preponderance of probabilities.

I have already noted that the evidence of the complainant calls for

close scrutiny since the report is belatedly lodged. If the version of

the complainant that the initial demand was made on 20.10.1999

and he agreed to pay Rs.100/- to the accused, and that there was

no altercation or exchange of hot words with the accused on

22.10.1999, what persuaded him to approach the ACB on

28.10.1999 remains unexplained.

The daily diary which is required to be maintained

purports to record the incident which occurred on 22.10.1999.

The recording is inconsonance with the defence of the accused.

The relevant entry 83 appears to be duly certified by the officer on

27.10.1999. The original diary is produced and proved by the

incumbent Talathi D.W.1 to whom no suggestion is given that

entry 83 is not certified by the Revenue Inspector or the Tahsildar

on 27.10.1999. The suggestion given is that each and every page

of the diary is not certified, but then the evidence of D.W.1 is that

the entries were not verified on day to day basis and it was only

when the Revenue Inspector used to visit that he certified the

entries. Surprisingly, a suggestion is given that there is no mention

in entry 83 that tax receipt was handed over to the complainant.

The suggestion is strange because the defence is that the tax

receipt was not issued to the complainant on 22.10.1999 and

what is recorded in entry 83 is inconsonance with the defence.

The learned Sessions Judge has disbelieved the evidence of D.W.2.

The reasons given by the learned Sessions Judge to disbelieve the

evidence of D.W.2 do not appeal to me. The learned Sessions

Judge appears to have appreciated the evidence of D.W.2 on the

premise that it is proved by the prosecution that tax receipt was

issued on 22.10.1999 which would render the evidence of D.W.2

suspect. However, arguendo, even if the evidence of D.W.2 is kept

out of consideration, the evidence on record creates sufficient

doubt about the veracity of the prosecution case, which is the

limited burden cast on the defence.

11] It is admitted by the prosecution witnesses that the

accused immediately made an endorsement on a piece of paper

that Rs.100/- is received tax and the receipt be issued.

The defence has also succeeded in bringing on record a real

possibility that the receipt was not with the complainant till

31.10.1999 on which day it is shown to have been produced.

12] The presumption of innocence, which is one of the

golden thread running through the web of the administration of

criminal justice system enures to the benefit of a person facing

prosecution under the act with the same vigor as is available to a

person prosecuted under any other penal law. The observations of

the Apex Court in A. Subair vs. State of Kerala (2009) 6 SCC 587

are apposite:

It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be

established to procure a conviction for the offences under consideration".

13] It is a position of law too well settled to warrant a

lengthy discussion or debate that proof of decisive demand for

illegal gratification is the very sine quo non ingredient of offence

under the Act. Shri S.R. Jaiswal, the learned counsel relies on the

enunciation of law by the Apex Court in (i) Mukhtiar Singh (Since

Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702

(ii) P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4

SCC 39 (iii) B. Jayaraj vs. State of A.P. 2014 All SCR 1619 (iv) and

N. Sunkanna vs. State of Andhra Pradesh 2015 ALL MR (Cri) 4551

(S.C.). To my mind, the evidence on record is not cogent and

unimpeachable enough to hold that the prosecution has

established beyond reasonable doubt that the accused demanded

and accepted illegal gratification. The evidence on record creates

enough doubt as regards the veracity of the prosecution case and

the benefit of the doubt must necessarily go in favour of the

accused.

14] In the light of the discussion supra, I am impelled to

give the benefit of the doubt to the accused and to set aside the

judgment and order impugned.

15] The accused is acquitted of offence punishable under

section 7, 13 (1)(d) read with section 13 (2) of the Prevention of

Corruption Act.

16] The bail bond of the accused is discharged and fine

paid, if any, by the accused be refunded.

  17]              The appeal is allowed.




                                                JUDGE



NSN