The State Of Maharashtra vs Vinaykumar Channayya Swami
2021 Latest Caselaw 1531 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.951 OF 2008
The State of Maharashtra
(Through Deputy Superintendent                 of
Police, Ratnagiri)                                  ....Appellant/Complainant
             V/s.
 Vinaykumar Channayya Swami
 Age about 57 yrs., Assistant Director of
 Fisheries, Ratnagiri, (Lower Class-I),
 Partawane, Ratnagiri, Resident of State
 Bank Colony, Ratnagiri, Native Place,
 R/o. A-26, Mahalaxmi Nagar, Vijapur
 Road, Solapur                                .....Respondent/accused
                                    ----
Mrs. Anamika Malhotra, APP for State - Appellant.
Mr. Rahul More for respondent.
                                    ----
                                          CORAM : K.R.SHRIRAM, J.

                                          DATE     : 22nd JANUARY 2021
ORAL JUDGMENT :

1                   This is an appeal impugning an order and judgment dated

29th December 2007 passed by the Judge, Special Court, Ratnagiri, acquitting

respondent (accused) of offences punishable under Section 7 ( Public servant

taking gratification other than legal remuneration in respect of an official

act), Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption

Act, 1988 (PC Act).

2 I have perused the evidence and the impugned judgment with

the assistance of Ms. Malhotra, learned APP and Mr. More for respondent.

Though Ms. Malhotra was at pains to persuade the Court to interfere with

the impugned judgment, having perused the evidence and the impugned

judgment, in my view, there is nothing that requires interference.

    Gauri Gaekwad
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3                    It is trite that the prosecution has to prove demand and

acceptance of bribe by the accused. It is also settled law that merely because

tainted currency has been found does not mean the demand has been

proved. It is mandatory for the prosecution to prove both demand and

acceptance otherwise the case has to fail.

4 The Apex Court in M.K. Harshan V/s. State of Kerala1 has held

that in cases of bribery, two aspects are important. Firstly, there must be a

demand and secondly, there must be acceptance in the sense that the

accused has obtained the illegal gratification. The Apex Court in State of

Punjab V/s. Madam Mohan Lal Verma2, in paragraph 11 has held as under :

11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.

Therefore, mere receipt of the amount by the accused is not

sufficient to fasten guilt in the absence of any evidence with regard to

demand and acceptance of the amount as illegal gratification. In this case,

the Trial Court is right in concluding that prosecution has miserably failed in

proving the demand.

5 It is prosecution's case that on 20 th January 2003 when

complainant met accused at his office and requested accused to release the

second installment of a loan, accused demanded a sum of Rs.500/- as bribe

1. 1996 (11) SCC 720

2. 2013 Cr. L.P. (SC) 914

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for issuing the release order. Complainant told accused that he will bring the

money the next day and left the office and went straight to the office of the

Anti Corruption Bureau and lodged a complaint. After the pre-raid

formalities were completed, the raid was affected on 21 st January 2003.

Accused was allegedly caught with the tainted currency and post trap

formalities were completed, investigation commenced, FIR was lodged and

after obtaining sanction, chargesheet was filed and charges were framed.

6 To drive home the charge, prosecution has led evidence of five

witnesses, viz., Complainant as PW-1; Shadow panch witness as PW-2;

Senior Clerk in the Fisheries Department, where accused was Assistant

Director of Fisheries, as PW-3; Investigating Officer as PW-4; and Sanctioning

Authority as PW-5.

7 A fatal blow has been hit on the prosecution's case by the

evidence of PW-3. PW-3 categorically states that complainant went to the

office of accused only on 21 st January 2003 and not on 20 th January 2003.

Prosecution has not got the witness declared hostile and has accepted the

version of PW-3 that complainant visited the office of accused only on

21st January 2003 and not on 20 th January 2003. Therefore, the first demand

itself cannot be stated to be proved. Moreover, PW-3 in his evidence, has

stated that the first part of the loan amount of 35% had already been given

and the second part of 55% was to be paid in four installments, out of which

one had already been paid. The loan was to the extent of 90% of the value of

the boat. PW-3 then states that on 21 st January 2003 complainant Mr. Huna

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visited their office alongwith recommendation letter issued by Licensing

Officer at Nate. Complainant showed his application alongwith the

recommendation letter for release of the second installment of 55%. PW-3

then sent complainant to accused for getting necessary endorsement and

accused gave the necessary endorsement and sent complainant back to PW-3.

PW-3 then handed over the application that had the endorsement of accused

to the Inward Clerk, who registered the application and gave it back to PW-3.

PW-3 then scrutinized the application and other documents and thereafter,

prepared an order releasing the loan amount of Rs.51,000/- in favour of

complainant alongwith a note. The note and the other documents then were

sent to accused through Peon Mr. Ghosale, who has not been examined.

Accused then signed on the order of release of the installment and

Mr. Ghosale brought the file back and handed it over to the dispatch clerk.

Thereafter, PW-3 left the office for lunch but when he returned at 2.00 p.m.,

he saw a crowd and the ACB officers came to him, took him away and the

concerned files towards accused. Therefore, even before the raid had

happened on 21st January 2003 in the afternoon, it is PW-3's case that

complainant had visited in the morning session and accused has signed all

the sanction papers for release of the loan installment of Rs.51,000/-. The

Inward Clerk Mr. Horate also has not been examined.

8 As against this, PW-2, the panch witness, says that when he went

with complainant to the office of accused on 21 st January 2003, complainant

inquired with accused about an order upon which accused told him that the

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order is ready on the table and complainant should give the amount and

then he will issue the order. Thereafter, complainant took out the amount of

bribe by his right hand and it was handed over to accused and accused

accepted the amount and kept it in his pocket on the left side of his shirt.

Thereafter, complainant went outside and PW-2 remained inside the cabin.

But complainant (PW-1) states that upon demand being made by accused, he

removed the tainted currency notes from his left shirt pocket and showed it

to accused and upon seeing the money, accused signed on the order which

was sent by PW-3 through the Peon and thereupon accepted the tainted

currency notes. We have to note that PW-2, the panch witness, in his

evidence has not stated that complainant (PW-1) showed the currency notes

to accused and accused signed the order before collecting the bribe amount.

This intervening event of signing the release order by accused on sighting the

tainted currency notes is very material contradiction. But PW-3 states that

theses orders were signed much before even the raid took place in the

morning session itself when complainant had visited the office of accused.

9 Therefore, in my view, the entire case of prosecution is

not believable. The Trial Court has pointed out many further contradictions

and omissions and flaws in the prosecution's case, which for the sake of

brevity, I am not reproducing. The same, however, has this Court's

endorsement.

    Gauri Gaekwad
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10                   The Apex Court in Ghurey Lal V/s. State of U.P. 3 has formulated

the factors to be kept in mind by the Appellate Court while hearing an appeal

against acquittal. Paragraph Nos.72 and 73 of the said judgment read as under:

72. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Section 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

3. (2008) 10 SCC 450

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v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

The Apex Court in many other judgments including Murlidhar &

Ors. V/s. State of Karnataka4 has held that unless, the conclusions reached by

the trial court are found to be palpably wrong or based on erroneous view of

the law or if such conclusions are allowed to stand, they are likely to result in

grave injustice, Appellate Court should not interfere with the conclusions of

the Trial Court. Apex Court also held that merely because the appellate court

on re-appreciation and re-evaluation of the evidence is inclined to take a

different view, interference with the judgment of acquittal is not justified if

the view taken by the trial court is a possible view.

We must also keep in mind that there is a presumption of

innocence in favour of respondent and such presumption is strengthened by

the order of acquittal passed in his favour by the Trial Court.

The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat 5

has held that if the Appellate Court holds, for reasons to be recorded that the

order of acquittal cannot at all be sustained because Appellate Court finds

4. (2014) 5 SCC 730

5. 1996 SCC (cri) 972

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the order to be palpably wrong, manifestly erroneous or demonstrably

unsustainable, Appellate Court can reappraise the evidence to arrive at its

own conclusions. In other words, if Appellate Court finds that there was

nothing wrong or manifestly erroneous with the order of the Trial Court, the

Appeal Court need not even re-appraise the evidence and arrive at its own

conclusions.

11 There is an acquittal and therefore, there is double presumption

in favour of accused. Firstly, the presumption of innocence available to

accused under the fundamental principle of criminal jurisprudence that every

person shall be presumed to be innocent unless he is proved guilty by a

competent court of law. Secondly, accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

strengthened by the Trial Court. For acquitting accused, the Trial Court

rightly observed that the prosecution had failed to prove its case.

12 In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

acquittal, in my view, need not be interfered with.

13                   Appeal dismissed.

14                   The Government/Appropriate Authority shall pay over to

respondent, within a period of 30 days from the date of receiving a copy of

this order, all pensionary or other benefits/dues stalled, in view of pendency

of this appeal. If during the service, in view of this matter, the promotions or

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increments of accused have been affected, the concerned Authority/

Department will pay, proceed and calculate on the basis that there was no

such matter ever on record against the accused and will factor in all

promotions and increments that the accused would have been entitled to and

all the amounts shall be accordingly paid within 30 days.

After 30 days interest at 12% p.a. will have to be paid by

Government/Appropriate Authority to respondent.

No authority shall demand certified copy for reimbursing the

benefits/dues as directed above. All to act on authenticated copy of this

order. Certified copy expedited.

           Digitally signed                                                     (K.R. SHRIRAM, J.)
           by Gauri A.
           Gaekwad
Gauri A.   Date:
Gaekwad    2021.01.25
           17:59:44
           +0530




                              Gauri Gaekwad