Bombay High Court
Raju Shantaram Kakphale vs State Of Maharashtra on 27 January, 2021
Bench: S. K. Shinde
Rane 1/16 Appeal-535-2016
27.1.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 535 OF 2016
Raju Shantaram Kakphale,
Age: 45 years, Occ : Service,
Kakphale Chawl, Azad Nagar No.2
Gokul Nagar, Opposite Hotel-United
21, Thane-400 601. ....Appellant
: V E R S U S :
State of Maharashtra,
Through Anti Corruption Bureau,
Thane (Notice to be served on
Public Prosecutor, High Court,
Mumbai) ....Respondent
* * * * *
Mr. Satyavrat Joshi, Advocate for the appellant.
Ms. Veera Shinde, APP for State.
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CORAM :- SANDEEP K. SHINDE, J.
Resd. On : 18th January, 2021.
Pron. On : 27th January, 2021.
JUDGMENT :
1. Appellant, a peon in the Thane District
Court, was found and held, guilty for demanding and
accepting Rs.300/- as illegal gratification for
supplying certified copies of the judgment to the
complainant. Thus, for offences punishable under
Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, he was sentenced to
suffer simple imprisonment for one year and fine of
Rs.1,000/-; and simple imprisonment for six months
and fine of Rs.1,000/-; respectively.
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2. Mr. Tapan, complainant in this case, was
prosecuted and tried in Criminal Case No. 3629/2004.
He was acquitted by the learned Judicial Magistrate
First Class on 31st January, 2008. After pronouncing
the judgment in the open Court on 31 st January,
2008, complainant applied for certified copies, on the
same day, vide Application No. 161/2008 dated 31 st
January, 2008. The complainant paid copying charges
and copies were to be delivered/supplied on 4 th
February, 2008.
3. It is unfolded in the evidence that, though
the judgment was delivered in the open Court on 31 st
January, 2008, Pradeep Narvekar, stenographer typed
the judgment on 3rd February, 2008.
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4. Complainant deposed, after applying for the
certified copies on 31st January, 2008, accused who
was working as Peon in Court Room No.8 demanded
Rs.2,000/- from him for supplying the certified
copies of the judgment urgently and asked the
complainant to bring money on the next day. When
he met the complainant on 01st February, 2008, he
alleged the accused repeated the demand and he paid
Rs.300/- to him. At that time, accused told him that
unless full sum demanded is not paid, he would not
receive copies of the judgment and may have to wait
for a month. Evidence shows that, complainant
deposed that he paid Rs.1,000/- to the accused since
he needed the copies urgently, to file proceedings in
the High Court, whereupon the accused gave his
mobile contact number to him on the chit and asked
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him to call and meet on the next day i.e. 2 nd
February, 2008.
5. Shortly thereafter, the complainant
approached the Anti-Corruption Office at Thane. Mr.
Powar, verified the complaint in the presence of
panchas and after completing the formalities, handed
over currency notes to the complainant after applying
anthracin powder to it. Accordingly, verification
and pre-trap panchanama were drawn. Investigating
Officer asked the complainant to contact the accused
on his mobile and conversation was recorded in the
digital voice recorder. Mr. Rathod, pancha witness
accompanied the complainant. The other raiding
party members were waiting outside the court
building. Permission of Hon'ble District Judge was
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sought to lay the trap. Complainant deposed that,
accused enquired with him, whether he had brought
the money as agreed and asked to hand over to him.
Following that, complainant paid Rs.800/- to the
accused. The conversation was recorded on the
digital voice recorder which was attached to the shirt
pocket of the complainant. After giving signal, the
raiding party recovered tainted money found on the
person of the accused which had traces of anthracin
powder. Soon thereafter, FIR was filed. Upon
perusing the final report, charge was framed under
Section 7, 13(1)(d) and 13(2) of the Prevention of
Corruption Act. The learned trial Judge, after
appreciating the evidence, convicted the peon as
aforesaid against which this Appeal is preferred.
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6. Heard Mr. Joshi, learned Counsel for the
appellant and Mrs. Shinde, learned APP for State.
7. I have carefully considered the submissions
of the learned Counsel for the accused and the State
and perused the evidence. The question that falls for
my consideration is; (i) whether the prosecution has
proved that the appellant had demanded Rs.800/- as
illegal gratification other than legal remuneration as
a motive or a reward to favour the complainant for
urgently supplying the copies of the judgment passed
in Criminal Case No. 3629/2004 which was
pronounced and dictated by the learned Judicial
Magistrate in the open Court on 30th January, 2008.
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8. Actually, copy of the judgment was typed
by the stenographer, Narvekar, D.W.1 on 3 rd
February, 2008. Indeed, alleged demand by the
accused for giving certified copies, was made on 30 th
January, 2008 and according to the complainant on
the same day, he gave a receipt to the accused vide
which copying charges were paid by him. Indeed
certified copy section of the District Court was
certain to deliver judgment copy on 4th February,
2008. However, till 3rd February, 2008, judgment
was not typed. In these circumstances and in view of
the fact that, when Certified Copy Section was
certain to given certified copy, if ready, on 4 th
February, 2008, why the complainant would pay
Rs.1,000/- to accused on 1st February, 2008. Besides,
it may be stated that the complainant was familiar
with the court procedure, so much so that, he had
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filed one case against a constable, Mr. Kurne.
Moreover, complainant was also prosecuted in
Regular Criminal Case No. 1213/2011. It is therefore,
unclear, as to why, person familiar with court
procedure, would approach accused either on 30 th or
1st for certified copy when, copying section was to
give copy on 4th February, 2008. Certainly, no
prudent person would approach and pay, Court peon
either on 01st February, 2008 or 2nd February, 2008
when copy of the judgment was typed on 3rd
February, 2008. In this case, the complaint is not a
lay person but had visited with the cases in the
Court. Thus, looking into the attendant
circumstances, prosecution's case, against the accused
is not only unclear but debatable.
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9. Evidence of Mr. Rathod, pancha witness
who had accompanied the complainant on 2nd
February, 2008, stated something else. His evidence,
discloses that, when complainant told the accused
that he had brought the money, accused brought
zerox copies of the judgment and order. This
statement of facts of the P.W.2, cannot be accepted
for the simple reason that on 2 nd February, 2008
when trap was laid, copy of the judgment was not
available because it was typed on 3 rd February, 2008.
Be that as it may, even assuming, zerox copy was
brought by the accused, as stated by pancha, Rathod,
Investigating Officer ought to have seized the copy
and produced it before the Court.
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10. Mr. Joshi, learned Counsel for the
appellant, argued that, once an application for
certified copy is made, a separate section in the
District Court handles this business. Admittedly, the
accused was not working in the Certified Copy
section but was a Peon in the Court of Judicial
Magistrate First Class, Court Room No.8. Therefore,
at the first place, it was unlikely that complainant, a
person familiar with the court procedure, would
approach Peon for certified copy, though he was not
working in the certified copy section. Secondly, on
2nd February, 2008, certified copy of the judgment
was not typed and therefore the evidence of Mr.
Rathod, P.W.2, that on 2nd February, 2008, accused
had brought the zerox copy of the judgment, renders
his evidence improbable.
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11. Thus, conjoint reading of the evidence
of the complainant and witness, renders prosecution's
case, that accused demanded Rs.2,000/- from the
complainant on 31st January, 2008 uncertain.
12. Nextly, Mr. Joshi, learned Counsel for
the appellant submitted, supplying/giving certified
copy was not within the ambit and scope of duties of
the accused. Therefore, even assuming, but without
admitting that, appellant had accepted illegal
gratification, it could not be said that it was in
consideration of discharge of official duties.
13. Contradicting Mr. Joshi's argument,
learned Prosecutor, has invited my attention to the
transcript of conversation between the appellant and
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the complainant recorded in the voice recorder before
the trap was laid. He submitted, the conversation
discloses 'demand' of illegal gratification by accused.
As also, perused evidence of the Investigating Officer
who had stated that, after recording the conversation
between the complainant and the accused on the
digital voice recorder, later it was stored on the
'Compact Disc' and conversation in the digital voice
recorder was deleted. In the cross-examination, the
Investigating Officer admitted that, the person who
had transferred dated from Digital Voice Recorder to
Compact Disc, had not given report/certificate nor
the prosecution has examined him.
14. The conversation stored in the C.D.
being 'electronic evidence' of secondary, in nature,
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Certificate under Section 65B of the Evidence Act is
mandatory. Prosecution has not produced a
Certificate contemplated under Section 65-B of the
Evidence Act. Therefore, the alleged conversation
between the complainant and the accused, is required
to be kept out of consideration.
15. Mr. Joshi, in the course of his
arguments, had taken me through the evidence of
P.W.1 and pointed out 'omissions' which in my
view, needs no special emphasis, being insignificant.
16. In consideration of the facts of the case,
evidence renders prosecution's case, doubtful and
unclear on both the facts in issue i.e. "demand" and
"acceptance". The law on the issue is well settled
that, illegal gratification is sine-qua-non for
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constituting an offence under the Prevention of
Corruption Act, 1988. Mere recovery of tainted
money is not sufficient. Mere receipt of amount by
accused is not sufficient to fasten guilt in absence of
any evidence with regard to "demand" and
"acceptance" of the amount as illegal gratification.
17. Thus, for the reasons stated hereinabove, I
hold that, prosecution could not prove beyond
reasonable doubt that the appellant, accused
demanded and accepted illegal gratification as a
reward for giving/supplying certified copies to him.
18. That for the reasons aforesaid, appeal is
allowed and impugned judgment and sentence dated
19th July, 2016 passed by the Additional Sessions
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Judge-1 and Special Judge (POC Act), Thane in
Special Case No. 19/2008, is quashed and set aside.
Digitally
signed by
Neeta Neeta S.
Sawant
S. Date:
Sawant 2021.01.27
17:40:04
+0530 (SANDEEP K. SHINDE, J.)
