Baban S/O Jaisingh Rathod vs State Of Mah. Thru. Dy. S.P. Anti ...
2018 Latest Caselaw 795 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 784 OF 2008


 Baban s/o Jaisingh Rathod,
 Aged about 37 years, 
 Occupation - Service as Peon in the      -     (Dead)
 Office of Nazul Surveyor, Land Records,
 Kurha, R/o Gadge Nagar, Amravati. 

 Legal Heirs of the appellant :

 1) Sheela wd/o Baban Rathod,             -(Amended as per 
     Aged about 42 years,                   order dt. 4-12-2017)
     Occupation - Household,

 2) Priyanka d/o Baban Rathod, 
     (After marriage Priyanka w/o 
     Gokul Chavan), Aged about 24
     Years, Occupation - Household,
     R/o At Post Khamoi, Tq. Betul,
     District Betul (M.P.)

 3) Rahul s/o Baban Rathod, 
     Aged about 23 years, 
     Occupation - Education. 

 4) Roshan s/o Baban Rathod, 
     Aged about 20 years, 
     Occupation - Nil,
     (Since applicant No.4 is mentally
     disabled, through natural guardian
     mother i.e. Applicant No.1)

     Applicant Nos.1, 3 and 4 are 
     R/o At Mogra, Post Bhankheda Khurd,
     Tq. & District Amravati.                           ....       APPELLANTS




::: Uploaded on - 23/01/2018                   ::: Downloaded on - 24/01/2018 02:17:05 :::
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                   VERSUS


 The State of Maharashtra, 
 through Dy. S.P., Anti Corruption
 Bureau, Amravati.                                  ....       RESPONDENT

 ______________________________________________________________

              Shri P.R. Agrawal, Advocate for the appellants,
   Shri V.P. Maldhure, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                                   WITH

 CRIMINAL APPEAL NO. 764 OF 2008


 Babulal s/o Mangalchand Thakre, 
 Aged about - years, 
 Occupation - Nil,
 R/o Office of Nazul Land Records, 
 Kurha, Tq. Tiwasa, District Amravati.              ....       APPELLANT


                   VERSUS


 The State of Maharashtra, 
 through Deputy Supdt. of Police,
 Anti Corruption Bureau, Amravati.                  ....       RESPONDENT

 ______________________________________________________________

       Shri Anil Mardikar, Senior Advocate assisted by Shri S.G. Joshi,
                                 Advocate for the appellant,
    Shri V.P. Maldhure, Additional Public Prosecutor for the respondent.
  ______________________________________________________________
                           
                               CORAM :  ROHIT B. DEO, J.

DATED : 23 rd JANUARY, 2018

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ORAL JUDGMENT :

Both Criminal Appeal 784/2008 and Criminal Appeal

764/2008 seek to assail the judgment and order dated 22-10-2008

passed by the learned Special Judge and Additional Sessions Judge,

Amravati in Special (ACB) Case 6/1998, by and under which the

accused are convicted for offence punishable under Section 7 of the

Prevention of Corruption Act ("Act" for short) and are sentenced to

suffer rigorous imprisonment for six months and to payment of fine of

Rs.100/- each and are convicted for offence punishable under Section

13(1)(d) read with Section 13(2) of the Act and are sentenced to suffer

rigorous imprisonment for one year and to payment of fine of Rs.200/-

each.

2. Appellant Baban Jaisingh Rathod in Criminal Appeal

784/2008 expired during the pendency of the appeal which is

prosecuted by his legal heirs.

3. The genesis of the prosecution lies in complaint dated

16-10-1997 lodged by P.W.1 Manikrao Dhule with the Anti Corruption

Bureau, Amravati (ACB).

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4. The gist of the complaint is thus :

P.W.1 Manikrao is a resident of Mouza- Kurha, Tahsil

Tiwasa, District Amravati and is employed with Ashok Mahavidyalaya

Marda. P.W.1 purchased four plots which are situated in Ward 4,

Kurha. The marriage of the daughter of P.W.1 was solemnized in May

1997. He needed money and entered into an agreement to sell the said

plots to Dr. Pachghare for Rs.90,000/-. The purchaser paid him

Rs.60,000/- as earnest and the sale-deed was to be executed on or

before 20-10-1997. One of the documents required for execution of

the sale-deed is title certificate issued by the Nazul Department. The

complainant went to the Nazul Office, Kurha on 18-9-1997. The Nazul

Surveyor is accused Babulal Thakre and Baban Rathod is working as

Peon. The complainant met Babulal Thakre in the presence of Baban

Rathod and requested for the title certificate. He was asked to produce

copy of the sale-deed of the previous owner and other documents. The

complainant went to the nazul office again on 25-9-1997 and met Peon

Baban Rathod. Babulal Thakre was not present in the office. Baban

Rathod conveyed to the complainant that ordinarily issuance of title

certificate is time consuming, however, if the complainant pays

Rs.500/-, he would ask his superior to issue the certificate. In the

evening, Peon of the Gram-Panchayat one Sardar came to the house of

5 apeals784&764.08

the complainant with message that he was summoned in the nazul

office. The complainant went to the nazul office. Babulal Thakre and

Baban Rathod were present. The complainant was asked by Peon

Baban Rathod to wait for sometime and to collect the nazul certificate.

The complainant waited. Peon Baban Rathod prepared the certificate,

Babulal Thakre signed the certificate and then Peon Baban Rathod

demanded Rs.500/-. The complainant told Baban Rathod that he did

not have the money and then Baban Rathod kept the certificate in the

almirah. Babulal Thakre told the complainant that whether he is

present or otherwise, the title certificate may be collected the next

Thursday from Baban Rathod. At 5-00 p.m. on 09-10-1997 Baban

Rathod met the complainant on the road and conveyed that saheb

(Babulal Thakre) is transferred, the title certificate is ready and the

same be collected after paying Rs.500/-. The complainant protested

saying that he did not have Rs.500/- and is ready to pay Rs.100/-, to

which Peon Baban Rathod did not agree. The complainant met Babulal

Thakre at Kurha Motor Stand on 13-10-1997. Babulal Thakre enquired

whether the complainant collected the certificate. The complainant

replied that he did not collect the certificate since he could not arrange

for money and that he will do so on 16-10-1997. The complainant was

not inclined to pay the bribe and lodged the report with the ACB.

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The ACB summoned panchas, the usual demonstrations

were given, panchanama 1 was recorded and it was decided to trap the

accused on 16-10-1997. The case of the prosecution is that the trap

was successfully executed on 16-10-1997. First information report was

registered, investigation ensued and after receipt of the statutory

sanction, charge-sheet was filed in the Special Court, Amravati.

5. Heard Shri Anil Mardikar, learned Senior Counsel for the

accused in Criminal Appeal 764/2008 and Shri P.R. Agrawal, learned

Advocate for the accused in Criminal Appeal 784/2008 and Shri

V.P. Maldhure, learned Additional Public Prosecutor for the

respondent/ State in both the appeals.

6. The submission of the learned Senior Counsel Shri Anil

Mardikar and learned Counsel Shri P.R. Agrawal is that the prosecution

has failed to prove the very sine qua non ingredient to constitute

offence under the Act, which is a decisive demand for illegal

gratification. Shri Anil Mardikar, learned Senior Counsel would submit

that in so far as Babulal Thakre, Land Surveyor is concerned, even the

acceptance of the tainted currency notes is not proved. The learned

Senior Counsel has invited my attention to plethora of judgments of the

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Hon'ble Apex Court to buttress the submission that if a decisive

demand is not conclusively established, the acceptance or recovery of

the tainted currency notes pails into insignificance. Reliance is also

placed on the following observations in A.Subair v. State of Kerala

reported in (2009) 6 SCC 587 :

"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."

It would suffice to refer to judgment of the Hon'ble Apex

Court in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108. The

relevant paragraphs 35, 36 and 37 read thus :

"35. It is well-settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) o the PC Act. The same legal principle has been held by this Court in B. Jayaraj, A. Subair and P. Satyanarayan Murthy upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.

36. The relevant para 7 from B. Jayaraj case reads thus : (SCC p.58).

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and

8 apeals784&764.08

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.and C.M. Girish Babu v. CBI."

(emphasis supplied)

37. In P. Satyanarayana Murthy, it was held by this Court as under: (SCC p.159, paras 21-23)

"21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-a-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.

22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere 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 Sections 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

9 apeals784&764.08

absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

23. 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 therefore, 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. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied)

The learned Senior Counsel also invites my attention to

the observations of the Hon'ble Apex Court in Mukhtiar Singh (Since

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

paragraphs 14, 15 and 25, which read thus :

"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused

10 apeals784&764.08

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.

15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well 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. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre- requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (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. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.

25. It would thus be patent from the materials on record

11 apeals784&764.08

that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act."

7. Suffice it so say that, the proposition of law canvassed by

the learned Senior Counsel that unless the prosecution proves beyond

reasonable doubt that the accused demanded illegal gratification,

offence under the Act is not constituted notwithstanding the alleged

acceptance or recovery of the tainted currency notes, does not call for

12 apeals784&764.08

any demur.

8. P.W.1 Manikrao is the complainant. In the deposition, he

has made a reference to only one visit to the nazul office before the

trap. P.W.1 does not state the precise date. He states that he

approached accused Babulal Thakre with copies of the sale-deeds and

requested that nazul certificate be issued. Accused Babulal Thakre

asked the complainant to pay Rs.500/-. The complainant states that he

told accused Babulal Thakre that he did not have the amount of

Rs.500/- and was asked to come on Thursday. The complainant did

not visit the nazul office on Thursday and lodged the report on 16-10-

1997.

The learned Senior Counsel, by inviting my attention to

the oral report (Exhibit 11) submits that the deposition is at stark

variance with the oral complaint. In the oral complaint, the first visit to

the nazul office is stated to be on 18-9-1997, on which day concededly

neither Babulal Thakre nor Peon Baban Rathod made any demand. In

the oral complaint, the demand is said to have been made not by

Babulal Thakre but by Peon Baban Rathod on 25-9-1997. In the

complaint, the complainant asserts that he visited the nazul office twice

on 25-9-1995 and on the second occasion in the evening Peon Baban

13 apeals784&764.08

Rathod prepared the certificate, the certificate was signed by the nazul

surveyor Babulal Thakre and since the complainant did not make the

payment of Rs.500/-, instead of issuing the certificate Peon Baban

Rathod kept the certificate in the almirah. The oral complaint then

makes a reference to demand made by accused Peon Rathod when he

accidentally met the complainant on the road on 09-10-1997. The

complaint also makes a reference to a chance meeting between accused

Babulal Thakre and the complainant at the Kurha Motor Stand on

13-10-1997. The learned Senior Counsel Shri Anil Mardikar would

submit that in the deposition P.W.1 has narrated a totally different

version and has stated that in the only visit to the nazul office before

16-10-1997, amount of Rs.500/- was demanded by the Nazul Surveyor

Babulal Thakre who asked the complainant to come on Thursday.

P.W.1 states that he did not visit the nazul office on Thursday and

lodged the complaint with the ACB on 16-10-1997. In the complaint,

what is stated is that since Thursday was a holiday (Gandhi Jayanti

'02-10-1997'), he did not visit the nazul office.

9. At this stage, the version of the complainant P.W.1 as to

what transpired on the day of the trap may be noted. P.W.1 states that

the shadow panch (P.W.2) stood near the nazul office, P.W.1 went

14 apeals784&764.08

inside near the table of the Nazul Surveyor Babulal Thakre asked

whether the complainant had brought the money. The complainant

replied in the affirmative and was asked to pay the amount and to

collect the certificate from accused 2. The complainant states that as

told by accused 1 Babulal Thakre, he gave the amount to accused 2 and

collected the certificate and then gave the predetermined signal.

At this stage, the version of the shadow panch P.W.2 on

demand and acceptance of illegal gratification may be taken note of.

The shadow panch has deposed thus :

Myself and complainant went inside the office. Rathod

Peon came in the varandah. His name was told to me by the

complainant. Rathod peon had a talk with complainant.

Complainant had asked him as to whether his work was

complete. Rathod peon then went inside the office and he

came out of the office alongwith one register. From the said

register he gave one paper to the complainant. Complainant

gave Rs.500/- to him. Rathod peon had asked the

complainant as to whether he brought Rs.500/-. Thereafter,

complainant gave Rs.500/- to Rathod peon. Rathod kept that

amount in the register and he went inside the office. Myself

and the complainant gave signal to the raiding party.

15 apeals784&764.08

10. The versions of the complainant P.W.1 and the shadow

panch P.W.2 are not capable of being reconciled. According to the

complainant, the shadow panch was standing near the office, the

complainant went inside the office and approached accused 1 Babulal

Thakre who asked whether the amount was brought and when the

complainant replied in the affirmative, asked the complainant to hand

over the amount to accused Baban Rathod and to collect the certificate.

The complainant states that he gave the amount to accused 2 Baban

Rathod as told by accused 1 Babulal Thakre. Au contraire, the shadow

panch claims to have accompanied the complainant inside the office.

The shadow panch P.W.2 has a totally different story to tell. P.W.2

states that accused 2 Baban Rathod came in the varandah and had a

talk with the complainant. According to P.W.2, it was accused Baban

Rathod who was asked by the complainant whether the work is

complete. P.W.2 claims that Baban Rathod went inside the office and

came out with a register from which he handed over one paper to the

complainant who then gave Rs.500/- to Baban Rathod. The shadow

panch states that Baban Rathod had asked the complainant as to

whether he brought Rs.500/- and when the amount was paid, Baban

Rathod kept the amount in the register and went inside the office.

Shri Anil Mardikar, learned Senior Counsel is justified in

16 apeals784&764.08

contending that the evidence of P.W.1 and P.W.2 is marred by such

serious discrepancy and inconsistency and that the case of the

prosecution that the illegal gratification was demanded is rendered

extremely doubtful. The learned Senior Counsel is at pains to emphasis

that the discrepancy and inconsistency is not on minor or peripheral

aspects but touches the very core of the prosecution case.

11. I am inclined to agree with the said submission of the

learned Senior Counsel, which is adopted by the learned Counsel Shri

P.R. Agrawal. The evidence of P.W.1 on both the initial demand and

the demand on the day of the trap i.e. 16-10-1997 is neither reliable

nor confidence inspiring. I have already noted that the version of the

complainant in the oral complaint dated 16-10-1997 and that in the

deposition is inconsistent on material aspects. The evidence of P.W.1

and P.W.2 is glaringly inconsistent and dents the veracity of the

prosecution case that illegal gratification was demanded. Indeed an

endeavour to reconcile the versions of P.W.1 and P.W.2 is an exercise

in futility. Both are speaking in different voices on the core and

substratum of the prosecution case.

12. The learned Senior Counsel invites my attentions to the

17 apeals784&764.08

following observations of the Hon'ble Apex Court in Pannalal

Damodar Rathi vs. State of Maharashtra, 1980 SCC (Criminal) 121

in support of the submission that the evidence of the complainant

cannot be treated on a better footing than that of an accomplice. The

evidence of the complainant must be tested with caution. The

complainant is not only an accomplice in view of the introduction of

Section 165-A in the Indian Penal Code, he is a witness who is

interested in the success of the trap.

"The accused is presumed to be innocent till the

prosecution establishes beyond reasonable doubt that the accused

demanded and accepted illegal gratification. The presumption of

innocence is neither diluted nor dislodged by the proof of acceptance or

recovery of the currency notes, unless the demand is established."

13. If the evidence is tested on the anvil of enunciation of law

by the Hon'ble Apex Court, it must be held that the prosecution failed

to prove beyond reasonable doubt that the accused demanded illegal

gratification, and in the absence of such proof, even if the evidence on

acceptance and recovery of tainted currency notes from accused Baban

Rathod is considered, the prosecution must fail.

18 apeals784&764.08

14. It is trite law that the benefit of any doubt qua the

prosecution case must necessarily go to the accused. I am inclined to

give the benefit of the doubt to the accused and to acquit the accused

for offence punishable under Sections 7 and 13(1)(d) read with Section

13(2) of the Act.

15. The judgment and order impugned is set aside.

16. The accused are acquitted of offence punishable under

Sections 7 and 13(1)(d) read with Section 13(2) of the Act.

17. The bail bonds of the accused shall stand discharged.

18. Fine paid by the accused, if any, be refunded to them.

19. The appeals are allowed.

JUDGE

adgokar