Bombay High Court
Satish S/O Purshottam Wankhede vs The State Of Maharashtra on 9 June, 2021
Bench: Prakash Deu Naik
Ethape 1 Cri.Appeal No.591.2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 591 OF 2015
WITH
INTERIM APPLICATION NO.84 OF 2020
Satish Purshottam Wankhede .. Appellant
Vs.
The State Of Maharashtra .. Respondent
--------------------------------------------------------------------------------------
Mr.Aniket Ujjawal Nikam, Mr. Piyush Toshnival, Mr. Vivek
Arote and Mr. Amit Icham i/b. Aashish Satpute, Advocate for
Appellant.
Mrs. A. A. Takalkar, A.P.P. for the State-Respondent.
--------------------------------------------------------------------------------------
CORAM : PRAKASH D. NAIK, J.
DATE OF RESERVATION : 6th JANUARY, 2021
DATE OF PRONOUNCEMENT: 9th JUNE, 2021
JUDGMENT.
1. The appellant is convicted vide judgment and order dated
30.04.2015 passed by the Special Judge, Nashik in Special Case
(ACB) No.5 of 2010 for the offences punishable under Sections 7
and 13 (1) (d) read with Section 13 (2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as PC Act 1988).
The appellant has been sentenced to suffer rigorous
imprisonment for six months and fine of Rs.2,000/- for the
offence under punishable under Section 7 of P.C. Act, 1988. He
is sentenced to suffer rigorous imprisonment for one year and
fine of Rs.2,000/- for the offence punishable under Section 13 (1)
(d) read with Section 13(2) of the P.C. Act, 1988. The substantive
sentences were directed to run concurrently. This appeal has
Ethape 2 Cri.Appeal No.591.2015
been preferred under Section 374 of Code of Criminal Procedure
(for short "Cr.P.C.") challenging the impugned Judgment and
order convicting the appellant for the aforesaid offences.
2. The case of the prosecution is as under: -
(i) The complainant Sunil Nathhu Borase was appointed by the
Government as Weights and Measures Repairer. His
workshop "Borase Scale Traders" is situated at Vani, Taluka
Dindori. Taluka Dindori, Peth and Surgana comes under the
jurisdiction of the accused who was Inspector of Legal
Metrology, Vani Division.
(ii) The weighing machines are handed over to the complainant
by the businessmen for verification, renewal and stamping.
The complainant repairs them and repaired instruments are
submitted to Inspector of Legal Metrology, Vani Division for
re-verification. The Inspector of Legal Metrology re-verify
and inspect those machines. After re-verification the
accused used to hand over them along with certificate to the
complainant. On receiving the inspected weighing machines,
the complainant used to hand over machines to the
businessmen. The complainant recovers Government fees
and deposits the same in State Bank of India, Dindori
branch.
(iii) After re-verification and stamping, accused should return
weighing machine along with certificate immediately. The
accused was recovering amount of 45% out of repair fees
from the complainant and other licence holders as bribe.
After receiving the amount, the accused used to inspect the
instruments. Many times without verification, accused used
Ethape 3 Cri.Appeal No.591.2015
to stamp instruments. About 78 matters were pending for
issuing certificates. The complainant had deposited
Government fees of Rs.10,000/- on 14.05.2009 with the
State Bank of India. On 11.05.2009 he deposited amount of
Rs.10,000/- in State Bank of India. The accused did not
issue certificates. 45% of the Government charges of weight,
balance weight measurement and electronic balance was
due. The complainant paid advance amount of Rs.5,000/-
on 10.05.2009. Balance amount of Rs. 12,344/- was due.
The transaction was unauthorized.
(iv) For pending 78 matters, it was agreed to pay Rs.10,000/- at
the office of accused at Vani. The complainant was not
willing to pay the amount to the accused. The complainant
lodged the complaint with Anti-Corruption Bureau (for short
"ACB"), Nashik.
(v) On receipt of the complaint, Deputy Superintendent of
Police Bharatkumar Suryawanshi called two panch
witnesses. The complainant was introduced to them. The
complainant produced the amount of Rs.10,000/- to pay it
as bribe. Instructions were given to panch witnesses. Raid
was arranged. Anthracene powder was applied to the
currency notes. Necessary instructions were given to panch
witnesses.
(vi) Pre-trap panchnama was recorded. The trap party
proceeded towards Vani by Government vehicle. They
stopped near the office of Weights and Measures. The
complainant and panch witnesses were instructed to meet
the accused in his office. Accused was not in the office.
Therefore, the complainant and panch witness returned to
Ethape 4 Cri.Appeal No.591.2015
Government vehicle. The accused went to Chopada Petrol
Pump for stamping. The complainant was instructed to
verify the fact by giving phone call to the accused on his cell
phone. The complainant made phone call on the mobile
phone of the accused. They proceeded towards Chopada
Petrol Pump.
(vii) Complainant and panch witness Chintaman Thakare had
talk with accused. The complainant handed over currency
notes to accused. The raiding party rushed towards the
spot. The currency notes were recovered from the accused.
Accused was arrested. Charge-sheet was filed.
3. Charge was framed on 07.08.2010. The first charge is that
since 08.11.1991 till 20.05.2009, accused was working as
Inspector in the office of Weights and Measures at Dindori, Vani
division, Nashik. Complainant had approached accused for the
purpose of verification of the 78 annual proposals of repairs of
weights and measures and for the said purpose, accused
demanded amount of Rs. 12,375/- and in pursuance of demand.
The accused demanded and accepted bribe amount of
Rs.10,000/- on 20.05.2009 from the complainant near Chopda
Petrol Pump in presence of Panch witness as motive or reward,
for verification of the 78 proposals of repairs of weights and
measures and by abusing position as public servant. The accused
committed an offence under Section 7 of P.C. Act. Secondly, on
the aforesaid day, date, time, place, the accused committed
offence of criminal misconduct by corrupt and or illegal means by
obtaining pecuniary advantage of Rs. 10,000/- from complainant
by abusing position as public servant and committed offence
under Section 13(1)(d) read with 13 (2) of P.C. Act, 1988. The
Ethape 5 Cri.Appeal No.591.2015
prosecution examined three witnesses. PW No.1 Sunil Nathhu
Borase is the complainant. PW No.2 Chintaman Pandurang
Thakare is the panch witness. PW No.3 Bharatkumar
Suryawanshi is the investigating officer.
4. Learned counsel for the appellant submitted as follows: -
(a) The appellant has been falsely implicated in this case.
There is no evidence to establish the charges against him.
(b) The complainant is not better than accomplice and without
corroboration to the version of complainant, the accused
should not be convicted.
(c) The earlier demand of bribe prior to filing of complaint is
not proved. The demand of bribe is sine qua non for
constituting the offence punishable under Section 7 of
Prevention of Corruption Act, 1988. If the demand of bribe
is not proved, the acceptance and recovery of bribe from the
possession of the accused has no relevance.
(d) Acceptance has to be proved beyond doubt and if there are
discrepancies in respect of demand of bribe and its
acceptance, such evidence cannot be accepted.
(e) In the absence of proof of demand, the presumption under
Section 20 of Prevention of Corruption Act cannot be drawn
against the accused.
(f) Mere recovery of the bribe amount from the possession of
accused is not sufficient to convict him.
(g) The defence of the accused has to be tested only on the
touchstone of preponderance of probability.
Ethape 6 Cri.Appeal No.591.2015
(h)The complainant has alleged that the accused had
demanded bribe amount for issuance of certificate of
stamping. He used to demand such amount frequently. The
complainant has never made any complaint to Legal
Metrology Department or any other authority.
(i) The complainant has admitted that Mr.Gangurde was
working in the office of the accused as Field Assistance and
he was looking after the work of accepting the applications
and handing over the certificates. The complaint is silent
about the fact that he had met Mr.Gangurde and demanded
certificate from him.
(j) Mr.Gangurde had produced the record before the
investigating officer. It was verified. The spot panchnama
mentioned that certificates were dated 15.05.2009,
16.05.2009 and 19.05.2009. The certificates were ready
with Mr.Gangurde and the accused has no connection
about handing over the certificates to the complainant.
(k) Except the evidence of the complainant, there is no
evidence to corroborate the version of the complainant.
(l) There is no specific date of demand, no specific incident of
demand and agreement of acceptance of bribe by the
accused from the complainant.
(m) There is improvement/omission and contradiction in
the evidence of complainant. The complainant is not
credible witness.
Ethape 7 Cri.Appeal No.591.2015
(n)Complainant and panch witness were instructed to go to the
office of the accused on the day of trap. Both of them went
to the office of accused. After sometime, both of them
returned. The Investigating Officer had instructed the
complainant to make a call to the accused. The
complainant has given telephonic call to the accused. The
accused had informed the complainant to come at Petrol
Pump. The post trap panchnama does not mention that the
complainant had informed the accused that he had brought
the amount and asked him that he should meet him. In the
evidence, it is stated that the complainant told accused that
he had brought the demanded amount and asked him
where he should come. The evidence of complainant does
not inspire confidence. The complainant does not state that
the accused had demanded the amount from him. The
panch could not hear the conversation between the
complainant and accused. The complainant refers to
amount of Rs.10,000/-. The panch refers to Rs.5,000/-.
(o) The complainant had motive to falsely implicate the
appellant. Licence was issued to U.K. Scales Company by
Controller of Legal Metrology. The business of the
complainant was affected. The complainant was insisting
that the accused should make the report of U.K. Scales to
cancel licence of that company. Accused refused to do so.
Hence, he was involved in false case.
(p) The complainant was collecting the Government Stamping
charges from businessmen but he was not depositing the
same in the office of accused. He was warned by the
accused. Hence, accused was implicated in false case.
Ethape 8 Cri.Appeal No.591.2015
5. Learned APP submitted that the prosecution has
proved its case by oral and documentary evidence. The evidence
of complainant and the panch witness cannot be doubted. The
accused have not rebutted the presumption under Section 20 of
the Prevention of Corruption Act. The accused have accepted the
amount of Rs.10,000/- from the complainant as bribe. The
amount was recovered from his possession. Anthracene powder
was applied to the currency notes. There is evidence to establish
the demand of bribe by the accused. The prosecution has
established that the accused had demanded and accepted the
bribe. The evidence of panch witness on the point of acceptance
of bribe amount is reliable. Minor discrepancies and
contradictions in the evidence of witnesses are not fatal to the
prosecution case. The accused had accepted bribe for issuance of
certificate to the complainant.
6. As a part of his explanation/defense under Section 313 of
Cr.P.C., the appellant has tendered written explanation. His
defence is that he has never demanded and accepted the bribe
amount from complainant; PW No.1 was recovering stamping
charges from the vendors and not depositing them in the office of
Legal metrology. The account was not settled since 2009. The
complainant was recovering excess amount towards repairing and
stamping charges from the vendors. He was not issuing receipt of
the amount collected by him. The appellant had warned him that
he would forward to the Controller of Legal Metrology in that
regard. In the event the appellant submit such report to the
department, the licence of complainant would have been
cancelled. It was the duly of Field Assistant to issue certificate of
repairs. Mr.Gangurde was working as Field Assistant. The
Ethape 9 Cri.Appeal No.591.2015
appellant had signed the verification certificate before the
complaint was filed. The certificate were handed over to
Mr.Gangurde for further process. The complainant had collected
the certificate from the office, before filing the complaint. The
Controller of Legal Metrology had allowed U.K. Scale Company to
work in the whole State of Maharashtra as repairer. Licence was
issued to the said company. The said company had started work
in Nashik District. Hence, income and work of complainant had
hampered. He was insisting upon appellant to send report
against above company to the office of controller of Legal
Metrology department so as to cancel the licence of said
company. The appellant had refused to co-operate with
complainant in that regard. Complainant was disappointed with
appellant. For the aforesaid reason, complainant has falsely
involved appellant in this case. On the day of incident, while
appellant was conducting inspection at Chopda Petrol Pump, the
employees of Petrol Pump were with him. The complainant tried
to thrust, the amount in left hand of appellant. He resisted. He
was accosted by some persons who were in civil uniform. They
were officers of ACB.
7. PW No.1 Sunil Borse is the complainant. According to him,
he is holding licence for repairing weigh bridge, platform
machine, beam scale, electronics and weighing machine. His
workshop comes under the jurisdiction of the Inspector of Legal
Metrology, Vani. The accused was in-charge of Vani Division. The
complainant repairs the instruments of businessmen and submit
them to the Legal Metrology Department. The Inspector of Legal
Metrology inspects the instruments and issue certificate. In April
2019, he had handed over 150 instruments to Inspector of Legal
Ethape 10 Cri.Appeal No.591.2015
Metrology. 78 Certificates were to be received. On 16.05.2019,
he demanded certificates of inspected instruments from the
accused. The accused demanded 45% of the Government
charges of weigh balance measurement and Rs.200/- for each
electronic weigh balance, total Rs.17,344/-. The complainant
paid Rs. 5,000/- on 10.05.2009 to the accused. On 20.05.2009,
there was phone conversation between him and accused. The
accused inquired about his money. The complainant told him
that he would pay Rs.10,000/-. The accused told him to pay Rs.
10,000/-. The complainant was not willing to pay the amount.
Hence, on the same day he went to office of the ACB, Nashik. He
lodged the complaint. Panchas were called. Arrangement was
made for laying trap. Complainant produced Rs.10,000/-.
Anthracene powder was applied to currency notes. All of them
went to the office of accused. PW No.1 and panch (PW-2)
approached the accused. They went inside the office of accused.
The peon by name Gavali was present in the office. The accused
was not in the office. Peon Gavali informed that accused had
gone to petrol pump of M.R. Chopada for stamping. PW No.3
instructed applicant to contact accused on phone. The
complainant contacted accused on phone. He told him that he
had brought the demanded amount. The accused told him that
he is at M.R. Chopada petrol pump and told him to come there.
They went to the said petrol pump. PW No.1 and panch (PW-2)
went to the petrol pump. The accused was inspecting the
instruments of petrol pump. The complainant inquired about his
certificates. The accused told him that the certificates are handed
over to Mr.Gangurde. The accused inquired about their accounts.
The complainant told him that he has brought Rs.10,000/- . The
amount was given to the accused. He kept that amount in his
Ethape 11 Cri.Appeal No.591.2015
left-pant pocket. Signal was given to the raiding party. The
accused was caught. Panch No.2 was instructed to takeout bribe
amount from the pant pocket of the accused. Notes were checked.
They were to Vani Police Station along with accused.
8. PW No.1 was cross-examined by the defence. He stated that
he had noted notes of complaint and after receiving the
summons, he had gone through the notes. He admitted that the
repairing charges and the stamping charges are different. He gets
repairing charges and he has to credit stamping charges to the
Government. He was recovering both the charges from the
customers. He was issuing receipt for the charges to the
customers. He used to deposit stamping charges in the bank by
cash. The account of the stamping charges recovered by him and
credited to the Government was not maintained in the office of
accused. In case of breach of condition of licence, the licence can
be cancelled. Supervision of breach of condition of licence was
with the office of the accused. As per the condition of licence he
was not required to submit monthly account to the office of
accused. In case of breach of condition of licence, the same was
liable to be cancelled. The supervision about breach of condition
of his licence was with office of accused. In case the accused had
reported breach of condition of licence by him, the same would
have been liable for cancellation. He cannot say whether he has
handed over 150 instruments in the office of the accused in April
2009. Stamping has to be done to every instrument and
thereafter the certificate is issued. The stamping of the
instruments handed over in April 2009 was already done. The
office of the accused has maintained the register in respect of
instruments received from him and the certificates issued in
Ethape 12 Cri.Appeal No.591.2015
respect of the instruments. He never signed any register after
receipt of instruments with stamping and certificates. The
complainant has not obtained signatures of the accused or any of
the employees from his office after handing over instruments for
stamping. He used to submit the accounts of the amount
collected and credited by him on account of stamping to the office
of the accused once in a year. It was necessary for him to deposit
the stamping charges in the bank within 8 to 15 days from the
collection. It was a rule that he should deposit the stamping
charges along with the instruments in the office of the accused
and obtain receipt in that respect. The ACB Inspector never
demanded accounts for the period of January 2009 to April 2009
from him in respect of the stamping charges collected and
credited by him. He only demanded details of amount to be
credited by him. On 19.05.2009 he had narrated his complaint
at ACB office. It was not written down. He had stated in his
complaint that on 16.05.2009, he demanded certificates of
inspected instruments from the accused but he did not receive
those certificates and on his demand, the accused asked him to
pay 45% of the Government charges balance totaling amount of
Rs.17,344/-. However, this fact is not reflected in the complaint.
On 20.05.2009, he went to ACB office. He had talk with the
accused on mobile phone before filing complaint in respect of
demand of Rs.10,000/-. He had stated in his compliant that on
20.05.2009 at about 08:00 a.m. the accused had demanded
Rs.10,000/- on mobile phone and asked him to come to Vani
Office with the said amount. He cannot assign any reason why
this fact is not mentioned in his complaint. Licence was allotted
to Uttamrao Jagtap. It was transferred to partnership firm
namely U.K.Scales. Licence of UK Scales was extended for whole
Ethape 13 Cri.Appeal No.591.2015
Maharashtra. The complainant issued notice to the Controller
(weights and measures) for cancelling licence of UK Scale
Company. He filed Civil Suit. The notice and the suit were filed
after the trap of present case. Mr. Gangurde was working in the
office of accused as Field Assistant. He was looking after the
work of accepting the applications and handing over certificates.
He has stated in his statement that he met peon Gawali in the
Office of the accused. He also stated that he made telephone call
to the accused and informed him that he has brought the money
demanded by him and where he should come. He also stated
that members of trap party and Officer Mr. Suryavanshi were at
the distance of 4 to 5 feet from him, when he gave signal. These
facts are not mentioned in the statement. When he reached Petrol
Pump, accused was taking inspection and 3-4 employees of Petrol
Pump were present. The accused had told him that he would not
co-operate with him for cancelling licence of UK Scales Company.
9. PW No.2 Chintaman Pandurang Thakare is the panch
witness. He stated that on 20.05.2009 he was called at the ACB
office at Nashik. He was requested to act as panch witness. He
was appraised about the complaint filed by PW No.1. PW No.1
produced Rs.10,000/-. Anthracene powder was applied to notes.
They proceeded to Vani. He went to the office of accused along
with PW No.1. Accused was not in the office. He was at petrol
pump. PW No.1 was instructed to make telephone call to
accused. PW No.1 made call and informed that accused is at
Petrol Pump and he is called at Petrol Pump. They went to petrol
pump. There was talk between complainant and accused. He
could not hear all the conversation due to chaos at the petrol
pump. He could hear that complainant was saying about
Ethape 14 Cri.Appeal No.591.2015
Rs.5,000/- and the accused told him that only signatures are
remained and he can collect the papers from the office.
Thereafter, complainant handed over the amount to the accused.
Accused accepted the amount. Signal was given to the raiding
party. They rushed to the spot. Accused was accosted. Amount
was recovered. They went to Vani Police Station. Anthracene
powder was found on hands of panch and accused. He could not
identify the notes seized by the ACB. He cannot identify the
clothes of accused. Post trap panchnama was prerpared (Exh.19).
They returned to ACB office at Nashik. At the time of recording
panchnama at Vani, certified registered and documents of PW
No.1 were called from office of Weights and Measures. The ACB
officer inspected those documents. Nothing was done about
those documents. ACB Officer never made any inquiry with him
about the entire episode after returning from trap. His statement
was not recorded. APP sought permission to put leading
questions to the witness as he resiled from contents of
panchnama. Permission was granted. In the cross-examination
of learned APP, he deposed that before proceeding to Vani
panchnama was prepared. It was read and signed by him. He
identified pre-trap panchnama (Exh.20). On the next day of trap,
the ACB officer asked him about the incident. His statement was
type-written. He could not hear at petrol pump that the
complainant asked accused about pending 78 certificates on
which accused replied that he has signed those certificates and
the complainant should collect the same from the office. He
could not hear thereafter whether the accused asked the
complainant about remaining amount. He was questioned by
prosecutor whether complainant said to the accused that he
already paid Rs.5,000/-and brought Rs.10,000/- as agreed on
Ethape 15 Cri.Appeal No.591.2015
which accused told him to give the amount. He only heard
amount of Rs.5,000/- from the conversation between the accused
and the complainant. When the accused said to the complainant
to give amount, the complainant gave the amount. He identified
panchnama dated 21.05.2009 regarding verification of seats on
the box (Exh.21). He admitted arrest panchnama (Exh.22). He
attended Court on three dates. He had talk with accused on the
day of recording his evidence. He denied he had deposed on the
request of accused. In his cross-examination by advocate for
accused, he stated that PW No.1 is present in the Court since
morning. The complainant never stated to them about date of
demand of money from him in his oral narration of his complaint.
The complaint was not read by him and therefore he cannot say
whether, the date of demand of money to the complainant was
mentioned in it or not. The clerk who brought the documents
from the office of weights and measures was Mr. Gangurde. He
did not hear the conversation of the complainant when he made a
mobile call after returning from the office of the accused. In the
panchnama it is mentioned that the hands of Jagtap (panch)
were tested under light of the lamp at the time of testing the
hands and pant of the accused. He never stated this fact in his
statement. Personal search of accused was taken by panch No.2
Jagtap. In his personal search, cash, mobile etc. were found. He
do not remember whether those articles were also tested under
the light of the lamp and then returned to accused. No markings
were made on the pant where traces of powder were seen. They
never signed on the pant.
10. PW No.3 Bharatkumar Suryavanshi is the Investigating
Officer. He has narrated the details about investigation
Ethape 16 Cri.Appeal No.591.2015
conducted by him. He was the member of trap party. He deposed
that the complainant had produced copy of licence. Challan of
registration fee from traders recovered by him. Documents were
marked as Exh.30 to 32. He recorded pre-trap and trap
panchnama. Complainant produced amount of Rs.10,000/-.
Anthracene powder was applied. Instruction were given to the
complainant and panch (PW-2). After pre-trap panchnama they
proceeded towards Vani. Complainant and panch No.1 proceeded
to meet accused. After some time, they returned. They informed
him that accused is not in the office and he went of Chopada
Petrol Pump for stamping. Then they proceeded towards Chopada
Petrol Pump for trap. It is pertinent to note that, according to PW
No.1, (complainant) after he returned from office of accused,
alongiwth PW No.2, he was instructed by PW No.3 to contact
accused on phone and he immediately contacted accused on
phone and told him that he had brought demanded amount and
asked him where he should come. The accused told him that he
is at M.R. Chopada Petrol Pump and asked him to come there.
Thereafter, he went to Petrol Pump. PW No.3 has not stated that,
after PW No.1 and PW No.2 had returned from office of accused,
he told PW No.1 to give call to the accused. PW No.1 and PW
No.2 told him that accused is at Chopada Petrol Pump. PW No.3
is not even aware what conversation PW No.1 had with accused.
PW No.3 saw complainant and panch talking to unknown person
and gave agreed signal. PW No.3 and others rushed to the spot.
PW No.3 did not hear the conversation between PW No.1 and the
accused. He did not see PW No.1 handing over amount or
accused accepting the amount. He is silent in that regard. If he
could see PW no.1 and PW No.2 talking to unknown person, it is
not clear how he could see handing over bribe and its acceptance.
Ethape 17 Cri.Appeal No.591.2015
PW No.2 told him that unknown person is Inspector of Weights
and Measures namely Wankhede (accused). PW No.2 also told
him that, the accused told PW No.1 that certificate of
complainant is ready and he should collect it from office and
asked the complainant about remaining payment and PW No.1
told accused that he had paid Rs.5,000/- and brought
Rs.10,000/- with him and thereafter bribe was handed over to
accused, which was accepted by him. It is relevant to note, the
conversation which PW No.2 had with PW No.3 as deposed by PW
No.3 is not stated by PW No.2 in his evidence. Thus, there is
contradiction in version of PW No.2 and PW No.3. Thereafter
according to PW No.3 tainted notes were recovered. He told P.I.
Kotkar to bring documents from office of accused. P.I. Kotkar
brought the documents from Shri.Gangurde. Accused was
arrested. Subsequently PW No.3 impoved his version in
paragraph 16 of his evidence and stated that, he had instructed
PW No.1 to verify the fact that accused is at Chopada Petrol
Pump by giving call to him and accordingly PW No.1 made call to
accused. He received call details. No evidence regarding CDR to
establish calls between PW No.1 and accused has been proved in
evidence. PW No.3 completed investigation. Sanction order was
received and he filed charge-sheet. In the cross-examination, he
stated that he did not make any inquiry as to how much amount
was collected towards stamping charges and how much amount
was deposited in the office of Weights and Measure from
01.04.2009 till the date of incident. He did not feel it necessary to
make inquiry about the truthfulness in the allegations made in
the complaint before laying the trap. He has not personally seen
as to whom the complainant met in the office of the accused for
the first time after he sent him to office. The employee and the
Ethape 18 Cri.Appeal No.591.2015
officers of the HP company were at the petrol pump with accused.
The activities of the accused and the complainant were visible to
him. The certificate produced from the office of the accused were
of different dates. The complainant had never stated in his
complaint that on 16.05.2009 when he demanded certificates
from the accused, he demanded 45% of Government charges of
Weights balance measurement and Rs.200/- each for electronic
weigh balance total amounting to Rs.17345/-. The complainant
has never stated that on 20.05.2009, he made phone call to
accused and the accused inquired about money and the
complainant told him that he would pay of Rs.10,000/- on that
day and hence he was called to office at Vani. The complainant
did not visit ACB office on 19.05.2009 for making complaint. He
recorded statement of complainant. The complainant did not
state that he informed the accused on phone that he brought the
amount and then the accused called him at petrol pump. He
recorded statement of the persons who were present with the
accused at petrol pump. He did not mention in his formal
complaint that he had seen the complainant while talking to
unknown person and handing over notes to said person at the
petrol pump. In his formal complaint, he did not mention that the
notes were taken out from the left side pocket of the accused and
when those notes and hand of the accused were tested under
ultra-violate lamp bluish while glaze was found on those notes
and hands.
11. From the evidence of witnesses, it can be seen that the
version of the complainant about demand is not corroborated by
any other witness. The complainant (PW No.1) has stated that he
had handed over 150 instruments to Inspector of Legal
Ethape 19 Cri.Appeal No.591.2015
metrology. 78 certificates were to be received from office of Legal
Metrology. According to him on 16.05.2009 accused demanded
45% Government charges and Rs.200/- for each electronic weigh
balance, total Rs.17,344/-. He paid Rs.5,000/- to accused. On
20.05.2009 PW No.1 contacted accused and he enquired about
money. Accused told him to pay Rs.10,000/- in his office. Since
he was not willing to pay he approached ACB office. Thus,
demand was made on 16.05.2009. PW No.1 did not lodge
complaint. He himself called accused on 20.05.2009. Again
alleged demand was made. No time was fixed for payment of
bribe. In examination in chief PW No.1 has stated that he had
made inquiry on 19.05.2009, with ACB by visiting office.
Complaint (Exh.13) is silent about his visit on 19.05.2009. PW
No.3 has stated that complainant did not visit their office on
19.05.2009 for making complaint. In the cross-examination PW
No.1 again stated that on 19.05.2009, he had narrated his
complaint to ACB office. Exh.13 complaint is recorded on
20.05.2009. The complainant along with the raiding party and
the panch witness had proceeded towards the office of the
accused. Accused was not present in the office. PW No.1 made
call to accused. According to him he told accused that he brought
demanded amount and where he should come. Accused told him
to come at Petrol Pump. Thereafter they went to Petrol Pump.
This conversation between PW No.1 and accused is not
corroborated by PW No.2 and PW No.3. It is difficult to believe
that the accused would call the complainant at the petrol pump
in the presence of other person to accept the bribe amount. The
case of complainant is based on demand dated 16.05.2009. It
was his sole testimony. It is pertinent to note that the alleged
demand dated 16.05.2009 is an omission. The fact that
Ethape 20 Cri.Appeal No.591.2015
complainant demanded certificates of inspected instruments from
accused and he was told by accused to pay 45% Government
charges and Rs.200/- for each electronic weigh balance total
amounting to Rs.17,344/- is not reflected in his complaint. The
second demand deposed by PW No.1 is dated 20.05.2009. He
gave call to accused. During conversation accused enquired
about his money and complainant told him that he would pay
Rs.10,000/-. The complainant went to ACB office. The fact that
on 20.05.2009 at 08:00 a.m. the accused demanded Rs.10,000/-
is not mentioned in his complaint. The investigating officer
believed the version of PW No.1 and arranged trap. There was no
verification of demand. There was no tape-recording of
conversation. PW No.1 has then stated that he gave call to
accused, since he was not present in office and told him that he
has brought demanded amount. There was no demand from
accused. This version is not corroborated by PW No.2 and PW
No.3. In the cross-examination it was put to him that the
aforesaid fact was not reflected in his complaint. Thus, the
alleged demand referred to by PW No.1 were omission. According
to complainant he met accused at Petrol Pump. Accused told him
that he has handed over certificates to Mr.Gangurde. accused
asked him about his account. PW No.1 handed over Rs.10,000/-
to accused. Assuming that the version of PW No.1 to be true, the
accused had asked about account. Panch (PW No.2) stated that
he could not hear conversation due to chaos at Petrol Pump. He
heard complainant referring to Rs.5,000/- and accused telling
him to collect papers. He did not hear demand or enquiry by
accused about his accounts. PW No.3 did not hear conversation
between accused and PW No.1 at Petrol Pump. Panch did not
hear the conversation between PW No.1 and the accused. The
Ethape 21 Cri.Appeal No.591.2015
investigating officer did not hear the conversation between
complainant and the accused at the Petrol Pump. The
complainant was collecting the amount towards repairs and
Government charges from the vendors. He had submitted several
instruments. The accounts were given to the office of the accused
once in a year. The investigating officer did not conduct any
investigation about how much amount was collected by the
complainant, how many instruments certificates were issued,
how much amount was collected for repairs of Government
charges and where the clear account is submitted to the office of
the Legal Metrology. The complainant has admitted that UK
Scale Company was given license for whole Maharashtra. The
complainant had written letter for cancellation of licence. His
request was not considered. He filed the suit. This corroborate
the defence of the accused that since there was no support/co-
operation from the accused, there is every possibility of false
implication of accused. The demand and acceptance are primarily
based on the sole testimony of complainant. Considering the
nature of evidence deposed by the complainant and discrepancies
in his evidence, the motive can be attributed to him. It is difficult
to base the conviction of the accused on doubtful testimony of
complainant. There is no complaint in the past at the instance of
the complainant against the accused with the Legal Metrology
Department. Mr. Gangurde has issued certificates. The evidence
disclosed that accused had informed the complainant that those
certificates are ready and he should collect them from Mr.
Gangurde. It is nowhere reflected that the complainant had
demanded certificate from Mr. Gangurde. It is not clear whether
the statement of Mr. Gangurde was recorded during the course of
investigation. He would have thrown the light on the procedure
Ethape 22 Cri.Appeal No.591.2015
followed while issuing certificate. Mr.Gangurde had produced on
record the certificate. The documents were produced by him on
15.05.2009, 16.05.2009, 19.05.2009 and 20.05.2009. These
documents show that the certificates were ready. The
prosecution has not established specific date of demand. The
complainant did not tell accused about money and where he
should come. Before going to Petrol Pump, the complainant met
the accused at Petrol Pump and accused told him that the
certificates are with Mr. Gangurde. The accused inquired about
his account and thereafter allegedly complainant gave money.
The evidence of independent witness PW No.2 is contrary to the
evidence of PW No.1. He did not hear conversation between
complainant and the accused. The complainant referred to the
demand of Rs.10,000/-. Pancha have referred to Rs.5,000/-.
12. PW No.1 has deposed that stamping and repairing charges
are different. He was recovering both the charges from
customers. He was issuing receipts to the customers. The
amount of stamping charges was credited to the Government. He
was required to submit monthly account to the office of the
accused. Supervision about the breach of conditions of licence
was with the office of the accused. The investigating officer never
demanded account from him in respect to stamping charges
collected and credited by him for a period from January 2009 to
April 2009. The Investigating Officer did not demand specific
amount from January 2009 up to the date of trap to him. He
only demanded the details of the amount to be credited by him. It
is pertinent to note that in case of demand of bribe, the
complainant could have fixed the time with the accused about his
visit to the office of the accused for making payment of bribe.
However, when the complainant and the panch witness visited
Ethape 23 Cri.Appeal No.591.2015
the office, the fact that the accused was not at the office shows
that there was no prior conversation about the demand of bribe
between the accused and the complainant. The complainant has
also admitted that he had issued notice to Controller for issuing
cancellation of licence for U.K. Scale Company and he also filed
the suit. The defence of the accused is that the accused thrust
the currency notes in his left hand by saying that the he should
accept the amount and settle the account. Admittedly, there are
discrepancies about the charges collected by the complainant.
Undisputedly, as he was collecting stamping charges as well as
repairs charges from the vendor, he was supposed to credit the
amount towards Government charges to the account of the
Government. The complainant has stated that he has deposited
the amount by cash. His evidence does not inspire the
confidence. There is no clarity as to how much amount was
collected and deposited towards the stamping charges. There
was no attempt by the investigating officer to conduct
investigation in that regard. The defence of the accused,
therefore, appears to be probable. The investigating officer has
admitted that he did not carry out the detailed investigation with
regard to the account. The omissions were proved during cross-
examination of the investigating officer.
13. The discrepancies/aspects which speaks volumes of doubt
about authenticity of the prosecution due to which accused is
entitled for benefit of doubt can be summarised as under:-
(a) PW No.1 referred to written notes on complaint before
deposing his evidence.
(b) Repairing charges and stamping charges are different.
(c) PW No.1 gets repairing charges and he has to credit
Ethape 24 Cri.Appeal No.591.2015
stamping charges to the Government. He was recovering
both charges from customers. The account of stamping
charges recovered by him and credited to Government
were not maintained in the office of accused.
(d) Supervision of breach of condition of licence was with
office of accused.
(e) The stamping of instruments handed over in April 2009
was done.
(f) It was rule that complainant should deposit stamping
charges alongwith instruments in the office of the
accused and obtain receipt.
(g) ACB Inspector never demanded accounts for January
2009 to April 2009.
(h) Demand dated 16.05.2009 is an omission.
(i) Demand dated 20.05.2009 at 08:00 a.m. is an omission.
(j) Licence was issued to U.K.Scales to whole Maharashtra.
PW No.1 wanted to cancel licence.
(k) Conversation of PW No.1 with accused after returning
from office is omission.
(l) Accused had told complainant that he would not
cooperate in cancellation of licence of U.K. Scales.
(m) PW No.1 was instructed by PW No.3 to call accused
after he returned from office of accused. PW No.3 did not
hear conversation between accused and complainant.
(n) PW No.2 did not hear talk between accused and PW
No.1. He did not refer to any demand of bribe by
accused.
(o) Contradiction in evidence of PW No.1 and PW No.2. PW
No.1 refers to bribe of Rs.10,000/-. PW No.2 refers to
amount of Rs.5,000/-.
Ethape 25 Cri.Appeal No.591.2015
(p) PW No.2 do not state that amount was handed over to
accused on demand of bribe amount.
(q) PW No.2 was declared hostile.
(r) No marking on pant of accused. No signatures of panch
witnesses on pant of accused.
(s) PW No.3 did not enquire about how much amount was
collected towards stamping charges and amount
deposited in office of metrology.
(t) Employees and officers of H.P. were present at Pump.
(u) Complainant states he visited ACB on 19.05.2009. PW
No.3 stated PW No.1 not visited ACB on 19.01.2021.
14. Learned counsel for the appellant relied upon the judgement
of the Supreme Court in the case of Dashrath Singh Chauhan
Vs. CBI (2019) 17 SCC 509. In the said decision, the Apex
Court has observed that it was necessary for the prosecution to
prove the twin requirement of demand and the acceptance of
bribe amount by the accused. Learned counsel relied upon the
decision of this Court in the case of Pratap Mahadev Moon Vs.
Union of India and Anr. delivered on 16.10.2020 in Criminal
Appeal No.44 of 2013. In the said decision, it was observed that
in view of discrepancies in the evidence of the prosecution, the
accused is entitled of benefit of doubt. The demand of bribe has
to be established by clinching evidence. Suspicion, however grave
it may be, cannot take the place of proof and the prosecution
cannot afford to rests its case in the realm "may be" true but has
to upgrade it in the domain of "may be", in order to steer clear of
any possible surmise or conjuncture. If two views are possible,
the benefit of doubt must be given to the accused. Reliance is
also placed on another decision of this Court delivered in
Ethape 26 Cri.Appeal No.591.2015
Criminal Appeal No. 898 of 2012 vide judgment dated
09.07.2019. In the said decision this Court has referred to
several decisions and observed that presumption raised under
Section 20 for the offence under Section 7 is rebuttable and the
burden placed on the accused is one of the preponderance of
probability. Mere possession and recovery of currency notes from
the accused without proof of demand will not bring home offence
under Section 7.
15. In the light of the fact of this case and the legal principle
enunciated in several decisions of the Apex Court as well as this
Court, the accused/appellant is entitled to benefit of doubt. The
prosecution has not established the charges beyond all
reasonable doubt. Hence, the conviction is required to be set
aside.
ORDER
(i) Criminal Appeal No. 591 of 2015 is allowed.
(ii) The impugned judgment and order dated 30.04.2015
passed by the Special Judge, Nashik in Special Case
(ACB) No.5 of 2010 convicting the appellant for the
offences punishable under Sections 7 and 13 (1) (d) read
with 13 (2) of Prevention of Corruption Act and
sentencing to suffer imprisonment and fine is set aside
and the appellant is acquitted for all the charges.
(iii) Criminal Appeal No.591 of 2015 and Interim Application
No.84 of 2020 stand disposed of.
(PRAKASH D. NAIK, J.)
