Murlidhar S/O Haribhau Gawarguru vs State Of Mah.Thr.Anti Corruption ...
2021 Latest Caselaw 1514 Bom

 901cri. appeal176.02-final.odt                                          1


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


                     CRIMINAL APPEAL NO. 176 OF 2002


          Murlidhar S/o Haribhau Gawarguru,
          Aged about 45 years,
          Occ: Police Constable, Police Station Amdapur,
          R/o Police Head Quarter,
          Buldhana.                                       .... APPELLANT


                      Versus


          State of Maharashtra,
          through Anti Corruption Bureau,
          Buldhana, District Buldhana.                  .... RESPONDENT


 Shri R.M. Daga, Advocate h/f Shri N.B. Kalwaghe, Advocate for the appellant.
 Shri H.D. Dubey, APP for the respondent - State.
 __________________________________________________________


                           CORAM : PUSHPA V. GANEDIWALA, J.

JANUARY 22, 2021.

ORAL JUDGMENT :

This appeal is directed against the judgment and order

dated 27/03/2002 passed by the Special Judge, Buldhana in

Sessions Case (Anti Corruption Case) No. 04/1995, whereby the

appellant is convicted for the offence punishable under Sections 7

and 13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988 (for short "the PC Act").

For the offence punishable under Section 7 of the PC

Act, the appellant is sentenced to suffer rigorous imprisonment for

one year and to pay fine of Rs. 1,000/- (Rs. One thousand), in

default, to suffer further rigorous imprisonment for three months.

For the offence punishable under Section 13(1)(d)

read with Section 13(2) of the PC Act, the appellant is sentenced

to suffer rigorous imprisonment for one year and to pay fine of

Rs.1,000/- (Rs. One thousand), in default, to suffer further

rigorous imprisonment for three months.

Both the substantive sentences were directed to run

concurrently.

2. The prosecution case, in nutshell, is as under :

i. On 07/07/1994, the complainant Mahadeo Kale (PW-

1) lodged a report with the Police Station, Amdapur, stating

therein about the misfeasance act of his adjoining field owner

causing danger to his crops, and therefore, he sought an enquiry

from the police. He was assured that the enquiry will be

conducted by the Jamadar Gawarguru within 3-4 days. As the

same was not conducted, he wrote complaining letters to different

authorities, and also visited the Police Station, Amdapur, however,

nothing had happened except assurances.

ii. It is further the case of the prosecution that on

09/08/1994, when the complainant (PW-1) along with his cousin

Shivdas Kale was coming from Buldhana on a motorcycle, the

present appellant along with constable Ulhas Patil confronted

them on the way from Dhodap to Palaskhed Fata. The appellant

demanded Rs.200/- (Rs. Two hundred) for carrying out the

purported enquiry or else he would involve the complainant and

his rival in a false case. As the complainant was reluctant to satisfy

the said unlawful demand, immediately, on the next day, he

approached the Office of the Anti Corruption Bureau, Buldhana

(for short "ACB"), and lodged a complaint. P.I. Pande recorded his

statement, and asked him to come on the next day. On the next

day, P.I. Pande arranged two panchas from the Irrigation

Department, and a trap was arranged by availing Rs.200/- (Rs.

Two hundred) from the complainant. The pre-trap panchanama

was prepared. Necessary instructions were given to the

complainant and the Panchas. The complainant, panchas and the

raiding party proceeded for Amdapur in Government Vehicle, and

reached there at 9:45 a.m. The complainant and the shadow

panch were sent to the Police Station, Amdapur with necessary

instructions. They met the appellant. The complainant introduced

his cousin with the appellant. Then they went out for tea in a

nearby hotel. It was a busy market area. In the hotel, the appellant

and the complainant sat on one bench, while the shadow panch

sat on the side bench. The complainant asked the appellant about

his work, to which he inquired as to whether he brought money.

The complainant answered in affirmative. After having tea, as

there was disturbance and noise in the hotel, they went out and

settled near one closed window of Anand Touring Talkies. On

asking by the appellant, the complainant took out the tainted

currency notes from his pocket, and handed over to the appellant,

and also made a predetermined signal. The appellant kept the said

notes in his right side pant pocket. Immediately, he smelled

something suspicious, he threw away those notes on the ground.

The raiding party reached there and caught the appellant. The

procedure for the post trap panchnama was carried out.

iii. The appellant was brought to the Police Station,

Amdapur. On the complaint of P.I. Pande, Crime No. 151/94 came

to be registered against the appellant, and after investigation and

on obtaining sanction for prosecution from the competent

authority, the chargesheet was submitted before the Special Court,

Buldhana, who framed charge against the appellant for the

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

Section 13(2) of the PC Act. The charge was read over and

explained to the appellant in his vernacular, to which he pleaded

not guilty, and claimed to be tried. His plea was recorded.

iv. In order to substantiate the charge against the

appellant, the prosecution examined in all six witnesses, and also

brought on record the relevant documents.

PW-1. Madhav Kale - the complainant

PW-2. Shivdas Kale - cousin of the complainant

PW-3. Suresh Pimpleshende - Shadow Panch

PW-4. Prabhakar Modakwar - Second Panch for recovery

PW-5. Shrikant Sawarkar - Sanctioning Authority

PW-6. Jamnaprasad Pande - API, the Investigating Officer

v. The Special Court examined the appellant under

Section 313 of the Code of Criminal Procedure, 1973, and

recorded his statement. The appellant preferred not to examine

any witness. His defence is of total denial.

vi. On appreciation of evidence, documents on record and

the submissions of the parties, the Special Court found the

appellant guilty of the charge framed against him, and passed the

judgment of conviction and sentenced him as above. This

judgment is impugned in this appeal.

3. I have heard Shri Daga, learned counsel for the

appellant, and Shri Dubey, learned APP for the respondent - State.

I have also perused the record with the assistance of learned both

the counsel.

4. Shri Daga, learned counsel appearing on behalf of the

appellant, read out the depositions of the prosecution witnesses,

and submitted that the prosecution has failed to prove the first

demand itself which, as per settled law, is sine-qua-non for the

offence punishable under Sections 7 and 13(1)(d) of the PC Act.

With regard to the second demand, it is submitted that the

shadow panch, who is a Government Servant, turned hostile, and

therefore, the prosecution also failed to prove the second demand.

With regard to recovery of alleged tainted notes from the ground

where the appellant and the complainant were standing when the

raiding party reached the spot, it is his submission that amount of

Rs.200/- (rupees two hundred) was being planted upon the

appellant. The learned counsel further submitted that the

Investigating Officer (PW-6) is the same person on whose report,

the F.I.R. was registered against the appellant. Furthermore, the

complainant, in his cross-examination, has admitted that one of

his relatives is on a higher official post in the Anti Corruption

Bureau. The cousin of the complainant, who allegedly

accompanied him on 09/08/1994, in his cross-examination, has

admitted that he worked as a Clerk on temporary basis in the

Office of the Anti Corruption Bureau. Lastly, the learned counsel

submitted that had the appellant really wanted the gratification as

alleged, he would have certainly asked for the same on earlier two

occasions, i.e., on 23/07/1994 and 24/07/1994, when the

complainant met him in his office. According to the learned

counsel, there is no whisper at all during the period from

23/07/1994 till 09/08/1994 for the alleged demand, which

creates spacious doubt in the prosecution story. In support of his

submissions, the learned counsel relied on a catena of judgments

of the Higher Courts, which I would be discussing in the later part

of this judgment.

5. As against this, Shri Dubey, the learned APP for the

respondent/State, while supporting the impugned judgment of

conviction of the appellant, vehemently submitted that the Special

Court appreciated the evidence in its correct perspective. It is

further submitted that there is no reason to disbelieve the sole

testimony of the complainant on the point of the first demand.

With regard to the second demand, it is submitted that the

shadow panch Suresh (PW-3) though turned hostile, however, he

admitted certain leading questions put to this witness on behalf of

the prosecution, which has to be considered in its correct

perspective. Lastly, the learned APP submitted that the prosecution

could establish the charge against the appellant beyond

reasonable doubt, and therefore, the appeal deserves dismissal.

6. I have considered the submissions advanced on behalf

of both the parties. Before proceeding to appreciate the evidence

on record, it would be advantageous to consider the settled law on

the concepts of 'demand', 'acceptance' and 'recovery' for the

alleged offences under the PC Act.

7. In the case of State of Maharashtra v. Dnyaneshwar

Laxman Rao Wankhede, reported in (2009) 15 SCC 200, the

Hon'ble Apex Court has held that the demand of illegal

gratification is a sine qua non for constitution of an offence under

the provisions of the PC Act, and for arriving at the conclusion as

to whether all the ingredients of an offence viz. demand,

acceptance and recovery of the amount of illegal gratification have

been satisfied or not, the court must take into consideration the

facts and circumstances brought on record in their entirety.

8. In the recent judgment of the Hon'ble Apex Court in

the case of N. Vijayakumar v. State of Tamil Nadu, reported in

MANU/SC/0051/2021 it has been reiterated that the absence of

the proof of demand for illegal gratification and mere possession

or recovery of currency notes is not sufficient to constitute such an

offence. The relevant para from the said judgment is reproduced

below :

"12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala MANU/SC/0274/2009 : (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh MANU/SC/0245/2014 : (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the

said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved.------"

9. The Hon'ble Apex Court in the case of P.

Satyanarayana Murthy v. District Inspector of Police, State of

Andhra Pradesh & anr., reported in (2015) 10 SCC 152 on a

survey of its earlier decisions on the pre-requisites of Sections 7

and 13 of the PC Act 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 or 13 of the Act would not entail his conviction thereunder."

10. With regard to the applicability of the presumption

under Section 20 of the PC Act, the Hon'ble Apex Court in the case

of State of Punjab v. Madan Mohan Lal Verma, reported in (2013)

14 SCC 153 has held that before the accused is called upon to

explain how the amount in question was found in his possession,

the foundational facts must be established by the prosecution. It is

further held that the complainant is an interested and partisan

witness concerned with the success of the trap, and his evidence

must be tested in the same way as that of any other interested

witness. In a proper case, the Court may look for independent

corroboration before convicting the accused person.

11. In the light of the above settled position of law, now I

proceed to examine the evidence on record. First and foremost,

the complainant - Mahadeo (PW-1) is the only witness supporting

the case of the prosecution. The two panchas, even though they

are the employees from the Irrigation Department of the State,

preferred not to support the prosecution fully. The eye-witness

Shivdas (PW-2), who allegedly accompanied the complainant, also

turned hostile on the point of first demand.

12. Now, it is necessary to examine as to how far the sole

testimony of the complainant justifies in proving the guilt against

the appellant. No doubt, in appropriate cases, the sole testimony

of the complainant, with regard to the first demand, would be

sufficient to prove it. In many cases, it so happen that the accused

is enough smart not to make a demand in presence of a third

person. He prefers to keep it as a top secret. In such cases, it

would be very difficult to prove the first demand, and therefore,

the insistence for corroboration to the testimony of the

complainant would lead to unmerited acquittal.

13. The complainant PW-1 deposed that on 07/07/1994,

he came to know that his neighbour - Madhukar had sown some

taag within the boundary of his field, and therefore, he lodged a

report (Exh. 20) with the Police Station, Amdapur. It was told to

him that Jamadar Gawarguru (the appellant) would initiate

inquiry in 3-4 days. As there was no development, he again

approached the Police Station, Amdapur, and met the appellant.

The appellant asked him to gratify him. The complainant

answered in affirmative. As the appellant didn't come, the

complainant sent letters to various authorities. He further deposed

that on 23/07/1994, in his absence, the appellant had been to his

field for inquiry, and prepared Panchnama (Exh. 22) in the

presence of his cousins Shivdas and Haridas. He further deposed

that on 24/07/1994, the appellant had called him at the Police

Station with 7/12 extract by issuing him a notice (Exh. 23). He

along with his uncle went to the Police Station and handed over

7/12 extracts to the appellant. The appellant assured him that he

would conduct an inquiry in 3-4 days.

14. A careful perusal of the aforesaid part of the testimony

of the complainant, as rightly submitted by Shri Daga, learned

counsel for the appellant, it would reveal that there is no specific

demand of Rs.200/- (Rs. Two hundred). Even without any

demand, the appellant had started the proceedings for inquiry.

15. The complainant further deposed that on 09/08/1994,

while he along with his cousin Shivdas Kale was coming to

Buldhana on a motorcycle, on the way from Dhodap to Palaskhed

Fata, they met the appellant accompanied by constable Ulhas Patil.

The appellant stopped them. The appellant asked for Rs.200/- (Rs.

Two hundred) for inquiry against his neighbour or else he will

involve both of them in a false case. At that time, he showed his

readiness, however, on the next day, he lodged complaint (Exh.

25) at the ACB office against the appellant.

16. There is no corroboration to the testimony of the

complainant on the first demand. There are umpteen number of

reasons pointed out by the learned counsel for the appellant for

not relying on the testimony of the complainant without

corroboration.

17. Firstly, his own cousin Shivdas, who was the alleged

eye witness to the alleged demand, turned hostile. Even in a

searching cross-examination by the learned APP, he didn't give any

admission with regard to demand of Rs.200/- (Rs. Two hundred).

The trial Court considered the sole testimony of the complainant

reliable only on the basis that the cousin of the complainant

Shivdas (PW-2) though turned hostile, however, he has deposed

that on that day near Zodap Fata, the appellant met them. On

perusal of the testimony of PW-2, it would reveal that this witness

has flatly denied witnessing any talk between the appellant and

the complainant with regard to demand of gratification in his

presence. Furthermore, during cross-examination, he has

admitted that he was a Clerk on temporary basis in the ACB office.

At the same time, the complainant in his cross-examination has

also admitted that his sister is given in a marriage to S.J. Patil,

who is a higher official in ACB at Nagpur. He has also admitted

that Ulhas Patil is his relative. Interestingly, though Ulhas Patil

allegedly was present on 09/08/1994 with the appellant, he was

not examined. The complainant has admitted that at the time of

demand by the appellant, PW-2 Shivdas, i.e., his cousin, was

present. The complainant further admitted that prior to

09/08/1994, he met the appellant twice, but he did not ask for

money in clear words. He has also admitted that he did not

inform in his complaint to the ACB that in his first meeting, the

appellant had asked to gratify him. He also did not complain this

fact in the letters which he had sent to the superior authorities as

deposed by him. He has admitted that on 23/07/1994 and

24/07/1994, the appellant did not ask for gratification.

18. Considering the clear admissions by the complainant,

the story of the prosecution for the first demand appears doubtful.

Had it been the intention of the appellant to perform his legal

duty only on the satisfaction of his illegal demand, he would not

have initiated the inquiry at his own and would not have visited

his field. Admittedly, for 15 days, there was no demand. For the

demand as alleged on 09/08/1994, neither the appellant called

the complainant nor the complainant approached the appellant for

his work. They coincidentally met on the road. In these

circumstances, it is difficult to believe the sole testimony of the

complainant.

19. The first demand, as per settled law, is the sine-qua-

non for the offence under Sections 6, 7 and 13(1)(d) of the PC

Act. It is to be proved beyond reasonable doubt. In the instant

case, the defence counsel could point out the probable doubts in

the case of the prosecution. Firstly, the complainant's own cousin

Shivdas does not say anything about the first demand, though he

was allegedly present. Secondly, undisputedly, there was no

demand for almost 15 days, i.e., from 23/07/1994 to 09/08/1994

even though there were meetings held between the appellant and

the complainant on 23/07/1994 and 24/07/1994. Thirdly, even

without any demand, the appellant visited the field of the

complainant and prepared panchnama. Had the appellant any

intention to demand, he would not have initiated inquiry.

Furthermore, non-examination of Ulhas Patil, the constable, who

is also the relative of the complainant, also creates doubt. More

so, the defence of the appellant that the complainant was having

grudge against him as he had investigated one crime wherein the

statement of the complainant was also recorded, appears

probable. The complainant in his cross-examination has admitted

that he was acquainted with the appellant.

20. In the considered opinion of this Court, the aforestated

facts on record are sufficient not to believe the sole testimony of

the complainant on first demand.

21. With regard to the second demand, the complainant

deposed that he was called in the ACB office on the next day at

around 6:00 a.m. Accordingly, he reached there. The ACB officials

already arranged two panchas. In his presence, the necessary

formalities of pre-trap panchnama was done. Necessary

instructions were given to the complainant and the panchas. Then

they all went in a Police van to the Amdapur Police Station. The

complainant and panch No. 1 proceeded towards the Police

Station on foot, he met the appellant there, he greeted him. The

appellant informed him that he received his application for

inquiry. The appellant inquired about panch. Then at the instance

of the appellant, they went out for tea in a hotel in front of the

Police Station. The complainant asked the appellant about his

work. The appellant inquired as to whether he brought Rs.200/-

(Rs. Two hundred). He said yes. As there was noise in the hotel,

they went out and stood near a close window of Anand Touring

Talkies. The appellant demanded Rs.200/- (Rs. Two hundred),

which the complainant took out from his pant pocket. The

appellant accepted the same by his left hand, and kept it in his

right side pant pocket. The complainant made a signal,

immediately the raiding party reached the spot. That time, the

appellant threw away the tainted notes on the ground from his

pocket. The procedure for post trap panchnama was carried out.

The appellant was brought to the Police Station, Amdapur.

22. On the aforesaid point, apart from the testimony of the

complainant, the prosecution also examined the shadow panch

witness Suresh (PW-3), wherein he has deposed about the

procedure for panchnama, however, he has failed to depose about

specific demand of money by the appellant from the complainant

in the hotel. On the contrary, the complainant deposed that the

appellant made a demand in the hotel when they had ordered tea.

PW-3 in his cross-examination has admitted that as there was

noise in the hotel, he could not hear, as he was sitting on the other

bench. He further deposed that while all the three were standing

near the window of the talkies, there was dealing of the money.

This witness does not say in clear terms about the venue of

demand as well as the actual demand. The depositions of both

these witnesses, i.e., the complainant and the shadow panch (PW-

3) are inconsistent with regard to the venue of the demand.

23. With regard to 'acceptance', the tainted currency notes

were allegedly found on the ground by the raiding party. So, there

was no recovery of the tainted notes from the possession of the

appellant. The learned APP has pointed out that during the post

trap panchnama, the right side pant pocket of the appellant

turned violet and that would go to show that he had accepted the

money and then threw it down. On this point, the learned counsel

Shri Daga has rightly pointed out the cross-examination of the

shadow panch Suresh (PW-3) who has admitted that the second

panch witness Prabhakar (PW-4) picked up those currency notes

from the ground and counted it, and therefore, there is every

likelihood of his hands coming in contact with powder, and if

thereafter he took out the inner side pant pocket of the accused

out, then there is every likelihood of powder of his hands might

have touched the inner side pant pocket of the accused.

24. Considering the admissions of the aforesaid witness, in

the considered view of this Court, the appellant cannot be held

guilty of the offence under the PC Act on the basis of truncated

evidence brought on record by the prosecution. Even if, it is

assumed that the prosecution could prove the recovery of the

tainted notes from the appellant, yet the prosecution has failed,

beyond reasonable doubt, to prove the first demand which is

essential for the offence under the PC Act.

25. The trial Court, while believing the story of the

prosecution from the mouth of the complainant, has observed that

there was no reason for the complainant to lodge false report

against him, and only because the cousin of the complainant and

the shadow panch have not supported the case of the prosecution

and independent person like Ulhas Patil was not examined, it

cannot be said that witnesses, examined by the prosecution, are

not trustworthy. The trial Court has failed to take into

consideration the point that the other witnesses are only the

complainant and the Investigating Officer at whose instance crime

under the PC Act was registered and investigated against the

appellant. The serious infirmities in the evidence of the

complainant (PW-1) and the absolute lack of any other evidence

to prove the prosecution case, has not been taken into

consideration in proper perspective by the trial Court while

passing the impugned judgment and order. This has rendered its

findings erroneous and unsustainable. It appears very strange that

the complainant's own relative, i.e., Shivdas, who was allegedly

present at the time of first demand, did not support the case of the

prosecution. The Investigating officer in his cross-examination has

also admitted that Ulhas Patil was not examined as he was not

supporting the prosecution case. The testimony of the complainant

on the point of first and second demand, in the opinion of this

Court, is laden with doubts, and therefore, the conviction cannot

be recorded on the basis of sole testimony of the complainant,

being unreliable and untrustworthy.

26. Apart from above, PW-5 - Shrikant Sawarkar - the

Sanctioning Authority was examined on the point of issuing

Sanction Order for prosecution of the appellant. However, no

serious submissions were made on behalf of the appellant as

regards the validity of the sanction order. Even otherwise, a

perusal of the documentary evidence on record and the oral

evidence of the Sanctioning Authority, (PW-5) demonstrates that

there was indeed valid sanction for prosecution of the appellant,

upon due application of mind. Therefore, no fault can be found

with the finding rendered by the trial Court in this regard in the

impugned judgment and order.

27. PW-6 Jamnaprasad is the Investigating Officer, who

registered the complaint at the instance of PW-1 and arranged a

trap, and on his report, the crime was registered against the

appellant. The testimony of the Investigating Officer is relevant

only with regard to recovery of the tainted currency notes.

28. As discussed earlier, in the absence of proof of the first

and second demand, there is no sense in proving the recovery. In

fact, in the present case, the prosecution also failed to prove the

recovery beyond the pale of reasonable doubt.

29. Given the circumstances, the argument of the learned

APP that the prosecution could prove demand and acceptance

beyond reasonable doubt, cannot be accepted. In the absence of

the proof of the foundational facts, there is no question of the

applicability of the presumption under Section 20 of the PC Act as

held in the case of State of Punjab v. Madan Mohan Lal Verma

(supra).

30. For the reasons aforestated the prosecution has failed

to prove the charge levelled against the appellant for the offence

punishable under Sections 7 and 13(1)(d) of the PC Act beyond

reasonable doubt and hence, the appellant is entitled for benefit of

doubt. Hence, the appeal deserves to be allowed and the same is

accordingly allowed. Hence, the following order :

ORDER.

 i.               The Criminal Appeal is allowed.








  ii.              The judgment and order dated 27/03/2002 passed by

the Special Judge, Buldhana in Sessions Case (Anti Corruption

Case) No. 04/1995, is quashed and set aside. The appellant stands

acquitted of the offence punishable under Sections 7, 13(1)(d)

and 13(2) of the PC Act.

iii. The bail bond/s of the appellant stands cancelled and

sureties stand discharged.

iv. Fine, if paid, be refunded to the appellant.

JUDGE

C.L.Dhakate/*DB.