The State Of Maharashtra vs Suresh Baliram Rane
2021 Latest Caselaw 518 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

            CRIMINAL APPELLATE JURISDICTION

            CRIMINAL APPEAL NO. 570 OF 2012




The State of Maharashtra,
through, Dipak Bhaskar Bandekar
Dy.S.P.,Anti-Corruption Bureau,
Sindhudurg                      ...Orig. Complainant

       : V/s :

Suresh Baliram Rane, age : 52 yrs,
Taluka Inspector, Land Records Office
Vengurla, District-Sindhudurg, No.2   ...(Orig. Accused)



                          ****

Mr. Yogesh Dabke, APP for applicant-State.

Mr. A.S. Khandeparkar a/w. Mr. Rohit P. Mahadik

       a/w. Mr. Rajdeep Gude, a/w. Mr. Shubham Javlekar

       i/by. Khandeparkar & Associates, Advocate for the

       respondent.

                 Coram : Sandeep K. Shinde, J.

                 Dated : 11th January, 2021.
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JUDGMENT :

1. This is an, appeal preferred by the State, under

Section 378 of the Criminal Procedure Code, 1973 against the

order of acquittal dated 17th November, 2011 passed by the

Special Judge, Sindhudurg at Oras in Special Case

No.11/2010.

2. Respondent, a public servant was charged and tried

for the offences punishable under Sections 7, 13(1)(d) read

with Section 13(2) of the Prevention of Corruption Act, ("Act"

for short) for having accepted the amount of Rs.4,000/- as a

gratification while serving as the Inspector of Taluka Land

Records (TILR) as a motive or reward for measuring the land

bearing Gat No.220 belonging to the complainant, Prasad

Naik ("complainant" for short), other than remuneration for

doing the official act and for also having committed

misconduct by abusing his position as a "public servant".

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3. That before adverting to the facts of the case and

the arguments advanced by the learned Prosecutor for the

State in support of Appeal and Mr. Khandeparkar, learned

Counsel for the respondent, it may be stated that, in the

proceedings instituted against the order of acquittal, it is open

to the High Court to re-appreciate the evidence and

conclusions drawn by the trial Court but only in a case when

judgment of the trial Court is stated to be perverse. The word

"perverse" to mean is "against the weight of evidence" as held

by the Hon'ble Supreme Court in the case of Gemini Bala

Koteshwara Rao V/s. State of Andhra Pradesh,

reported in AIR 2010 SC 589.

4. Prosecution's case :

. Complainant being owner of land bearing Gat

No.220, had approached respondent-accused, Taluka Inspector

of Land Records on 15.11.2008, for measuring his land.

Complainant was told by the respondent to deposit Rs.1,500/-

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official fees for measuring the land, besides, other formalities

like land map, consent of co-sharers. It is alleged, he

demanded Rs.8,000/- reward for measuring the land on

priority. On 18.11.2008, complainant narrated the incident to

Deputy Superintendent of Police, Bandekar attached to Anti-

Corruption Office at Kudal. He reduced the complaint to

writing. It is prosecution's case that, complainant called the

respondent on his cellphone on 18.11.2008 from the office of

Anti-Corruption. The telephonic conversation was recorded,

which was stored on a Compact Disc (CD). Simultaneously,

transcript verification panchanama was drawn in presence of

pancha witness. It is prosecution's case that, on 20.11.2008

after drawing pre-trap panchanama, complainant, witness-

Shivankar and members of raiding party proceeded to the

office of Taluka Land Records. The pre-trap panchanama

reveals a device-voice recorder and Rs.4,000/- after applying

anthracin powder were given to the complainant, with

instructions to record his conversation with the respondent.

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The complainant met the respondent in his cabin; recorded the

conversation in a device-voice recorder and again met S.P.

Bandekar-P.W.4, who was waiting with other raiding party

members outside the office of the respondent. Bandekar heard

the conversation recorded on device and confirmed "demand"

allegedly made by the respondent for measuring the

complainant's land on, priority. As instructed by Bandekar,

complainant went back to the office of the respondent and

gave him tainted currency Rs.4,000/- which the raiding party

found on the person of the respondent. Soon thereafter,

respondent was put under arrest.

5. Prosecution in support of the charge, led the

evidence of the complainant-P.W.1, pancha-Shivankar-P.W.2

and Bandekar-P.W.4. As, also relied on two transcript

verification panchanamas; one relates to telephonic

conversation recorded on 15.11.2008 and another transcript of Rane 6/12 APPEAL-570-2012 11.1.2021

conversation recorded in device-voice recorder on 20.11.2008.

Reliance was also placed on report of Spectographic test.

6. So far as telephonic conversation, transcript

verification panchanama and the conversation recorded on

voice recorder is concerned, it may be stated that both the

conversation were stored in the Compact Disc (CD) in

presence of panchas.

7. As such four CDs; two containing voice sample and

other containing two conversations dated 15th & 19th

November, 2008 between the complainant and the accused

were sent to Forensic Science Laboratory, Mumbai for

Spectographic Test. In my view, "sound" stored in CD is

"electronic record" in terms of Section 2(f) of the Information

Technology Act 2000, a secondary evidence. Thus unless,

evidence of this nature is not supported by a Certificate Rane 7/12 APPEAL-570-2012 11.1.2021

required under Section 65B(4) of the Evidence Act, it is to be

kept out of consideration.

8. Be that as it may, the learned trial Court, upon

appreciating the evidence of P.W.1, complainant, P.W.2-

Shivankar-pancha witness and P.W.4-Deputy Superintendent

of Police, Bandekar reached the conclusion that, prosecution

could not prove the alleged "demand" of reward/bribe, beyond

reasonable doubt and accordingly returned the findings.

Resultantly, the learned trial Court acquitted the accused.

9. I have perused the evidence. The findings returned

by the learned Judge are founded on the evidence of the

complainant, pancha witness and of Bandekar, on the aspect of

'demand'. It may be noted that, evidence of complainant

relating to 'demand' has not been corroborated by P.W.2-

Shivankar. It so happened that the complainant would say,

when he had been to the office/cabin of the respondent, Rane 8/12 APPEAL-570-2012 11.1.2021

Shivankar was present, whereas, witness-Shivankar said, he

was waiting outside the cabin. It may also be stated that,

there is no evidence on record to suggest that, on 15.11.2008

and 19.11.2008, respondent-accused demanded reward from

the complainant, for measuring land on priority. Evidence of

the complainant on the aspect of demand has not been

corroborated at all. The so called telephonic conversation, the

complainant had with the respondent on 19.11.2008 was silent

on the aspect of demand.

10. Faced with this situation, with the assistance of the

learned Counsel, I have gone through the evidence to ascertain

whether prosecution has proved that on 20.11.2008 respondent

demanded money as motive from the complainant to measure

land on priority. Evidence of prosecution's witness, on this

point, is contradictory, in as much as, the complainant

deposed, he first went in the cabin of the respondent, recorded

the conversation on device and paid him Rs.4,000/-. However, Rane 9/12 APPEAL-570-2012 11.1.2021

the evidence of P.W.4 suggest, after hearing the conversation

recorded in the device and on being satisfied that conversation,

spells out demand by the respondent for measuring land on

priority, he asked the complainant to pay him. It may also be

stated that, evidence of the complainant suggests that, when

he returned to P.W.4 alongwith the conversation recorded in

the device, he did not disclose to P.W.4, the conversation or

gist of conversation he had with the respondent. In other

words, the complainant did not tell the respondent no.4 about

money demanded money by the accused. The trial Court,

therefore rightly reached the conclusion that the omission on

the part of the complainant to disclose this "vital

conversation" to the P.W.4 renders the prosecution case,

suspicious. In my view, this finding is based on the evidence

on record and therefore not be a perverse finding. Even

otherwise, complainant's evidence and admissions in cross-

examination suggests, he was confused, whether Rs.8,000/-

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demanded were towards official fees for measuring adjoining

lands or otherwise.

11. It is contended by the prosecution that the raiding

party had recovered Rs.4,000/- from the person of the

respondent, which had traces of anthracin powder and thus

recovery has been proved. It may be stated that, mere

recovery itself would not prove the charge against the accused

and in absence of any evidence to prove payment of bribe or to

show that accused had voluntarily accepted the money

knowing it to be bribe, conviction cannot be sustained.

12. In the case of M.K. Harshan Versus. State of

Kerala, reported in (1996) 11 Supreme Court Cases

729, the Hon'ble Apex Court has held as thus :

". In all these type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance, in Rane 11/12 APPEAL-570-2012 11.1.2021

the sense that, accused has obtained illegal gratification. Here, demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important."

Mr. Khandeparkar, has rightly relied on another judgment of

the Apex Court in the case of B. Jayaraj Vs. State of A.P.,

reported in 2014 (13) SCC 55. In para-8, the Hon'ble

Supreme Court has held;

"The only other material available is recovery of tainted currency notes from the possession of the accused. Infact such possession is admitted by the accused himself. Mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive, in so far as, the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illelgal means or abuse of position as a "public servant" to obtain any valuable thing or pecuniary advantage, cannot be held to be established".

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13. In the case at hand, the prosecution could not

establish the fact that, respondent had demanded illegal

gratification, beyond reasonable doubt.

14. In consideration of the facts of the case and for the

reasons stated, appeal fails and is dismissed accordingly.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.
Sawant
         Date:
         2021.01.13
                                                     (Sandeep K. Shinde, J.)
         17:22:16
         +0530