Bombay High Court
Vishwambhar Abaji Bharose And Anr vs State Of Maha on 9 August, 2024
2024:BHC-AUG:17496
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 79 OF 2004
1. Vishwambhar s/o. Abaji Bharose,
Age : 48 years, Occu. : Service,
R/o. Gajanan Nagar, Parbhani,
District Parbhani.
2. Dasrao S/o. Ramrao Suryawanshi,
Age : 45 years, Occu. : Service,
R/o. Ganeshnagar, Vasmat,
R/o. Vasmat, Dist. Hingoli. ... Appellants
(Orig. Accused)
Versus
The State of Maharashtra ... Respondent
...
Mr. S. P. Chapalgaonkar, Advocate for Appellants
Mr. A.A.A. Khan, APP for Respondent - State
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 22nd JULY, 2024
PRONOUNCED ON : 9th AUGUST, 2024
JUDGMENT :
1. Both appellants, who stood convicted by learned
Special Judge, Parbhani on 29.12.2003 in Special Case No. 03 of
1999 for offence under sections 7 and 13(1)(d) punishable under
section 13(2) and section 12 of the Prevention of Corruption Act,
1988 (P.C. Act), are challenging the impugned judgment by filing
instant appeal.
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PROSECUTION CASE IN NUTSHELL IS AS UNDER
2. Appellants were charge-sheeted on the premise that,
appellant no.1 Vishwambhar a Talathi demanded Rs.5,000/- from
complainant Rangnath Chavan, since deceased, for effecting
mutation entry. Finally, appellant no.1 agreed to bring down the
bribe amount to Rs.2,000/- and accepted Rs.1,200/-. Rs.800/- was
the balance amount. Complainant approached Anti Corruption
Bureau (ACB) authorities, lodged report and in consequence to it
trap was planned, procedure was explained to complainant and
pancha PW1 Baburao. They both approached appellant no.1.
Complainant questioned whether mutation entry has been taken.
Appellant no.1 counter questioned whether amount has been
brought. When complainant affirmed it, appellant no.1 directed
amount to be paid to appellant no.2, who was sitting next to him.
Predetermined signal was relayed and raiding party apprehended
both accused. Investigating Officer filed complaint and charge-
sheeted both accused.
Trial was conducted by Special Judge, Parbhani, who
accepted the prosecution case as proved, vide judgment and order
dated 29.12.2003, convicted both appellants i.e. for offence under
sections 7 and 13(1)(d) punishable under section 13(2) and
section 12 of Prevention of Corruption Act, respectively.
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Feeling aggrieved by the above judgment and order,
instant appeal has been preferred.
EVIDENCE BEFORE TRIAL COURT
3. PW1 Baburao is a pancha, justified about being called
to ACB office, introduced to complainant Rangnath Chavan and
being informed about Talathi demanding Rs.5,000/- for effecting
mutation entry and finally deal being stuck for Rs.2,000/- and
complainant informing this witness about amount of Rs.1,200/-
already paid and remaining to be paid on 01.08.1998. He testified
about ACB authorities explaining the procedure of application of
anthracene powder to the currencies, necessary instructions given
by ACB to him and complainant for effecting raid. He deposed that,
he and complainant, approached Talathi office, but appellant was
not available in the office and they learnt that he was at his
residence. So they both went to his house at Ganeshnagar. He
deposed that, accused no.1 was sitting on a cot and accused no.2
was sitting on a chair. Complainant asked about his work and
accused Talathi asked complainant whether he brought amount as
directed. Complainant took out the money, but accused Talathi
instead of himself receiving by nodding his head directed it to be
paid to accused no.2, who received the amount. After which
complainant went out and gave signal and raiding party came and
apprehended both accused.
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PW2 Ashok - Sanctioning Authority, who was working
as Sub Divisional Officer at Hingoli, testified about receiving papers
from ACB, finding case made out for grant of sanction, he accorded
sanction, which he identified to be at Exh.60.
PW3 Vasant Bacchav, Divisional Controller, State
Transport, Parbhani deposed about receiving papers from ACB and
being competent authority to accord the sanction to prosecute
accused no.2 Dasrao Suryawanshi.
PW4 Rajendra More, the Investigating Officer, who
narrated all step taken by him since receiving complaint, laying
trap, executing it, apprehending accused and charge-sheeting
them.
SUBMISSIONS
On behalf of Appellant :
4. Learned counsel apprised this court about prosecution
version and would submit that, there is no dispute that, appellant
no.1 was officiating as Talathi. He pointed out that, here,
prosecution evidence is without complainant's evidence. According
to him, therefore testimony of shadow pancha and sanctioning
authority only remains for appreciation. He would strenuously
submit that very foundational facts of demand which are sine qua
non has not been proved by prosecution for want of testimony of
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complainant. According to learned counsel, pancha has hearsay
information, and therefore, it was not open for prosecution to rely
on uncorroborated testimony of pancha and thereby he questions
the very prosecution itself.
5. Learned counsel next submitted that, there is no
evidence that, for carrying out mutation entry, there was demand
or even part payment. That, no circumstances are brought on
record to substantiate visit of deceased complainant to appellant
Talathi. He pointed out that, at the threshold granting mutation
entry was not within the jurisdiction and power of appellant, who
was a Talathi, rather it was the duty of higher revenue authorities,
and therefore, according to learned counsel very aspect of demand
has come under shadow of doubt.
6. He further pointed out that, prosecution's evidence
itself shows that there was no acceptance by appellant no.1., even
pancha witness admits that, amount was not accepted by appellant
no.1 Talathi and therefore learned counsel questions the
implication and guilt, as according to him, here, both demand and
acceptance, which are sine qua non for recording the guilt, are not
proved.
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7. Learned counsel's second attack was on the sanction
accorded by PW2 S.D.O. Ashok Singare for prosecution of appellant
no.1. Apart from questioning the authority and power of PW2
S.D.O. Singare to grant sanction, he would forcibly submit that,
there is non application of mind and sanction is granted in
mechanical manner. He invited attention of the court to the very
sanction (Exh.60) and would submit that, title of the sanction itself
is shown to be a draft. Therefore, he submits that, there are strong
reasons to hold that sanction has been granted without proper
verification or application of mind.
8. As regards to appellant no.2 is concerned, learned
counsel submitted that, he is admittedly at the relevant time
working in State Transport Department. He had no nexus with
revenue department. That, there is no material on behalf of
prosecution to show nexus between appellant nos.1 and 2. Learned
counsel emphasized that, to connect appellant no.2, it was
expected of prosecution to prove that with complete knowledge he
had accepted the bribe amount. Learned counsel pointed out that,
there is no evidence to show that, the appellant no.2 had no
knowledge as to whether the amount he took that day was towards
illegal gratification. That, there is nothing to show that he was
acting on behalf of appellant no.1. Consequently, learned counsel
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questions his implications and also brought to the notice that even
in sanction accorded to him by PW3 Vasant Bacchav, draft has
been approved and dispatched and as like that of appellant no.1,
his sanction is also without application of mind.
9. Lastly, he submitted that, in the light of above quality
of evidence, prosecution has miserably failed to establish not only
demand, but even acceptance by adducing cogent and reliable
evidence. According to him, still learned trial Court accepted the
prosecution version and erred in convicting appellants and so he
prays to interfere by allowing the appeal.
On behalf of State :-
10. Learned APP would point out that, though
unfortunately complainant had expired and was not available for
evidence, but it is submitted that through the very complaint to
which PW1 Baburao was also a signatory, prosecution version is
cogently proved. Learned APP took this court through the
testimony of PW1 Baburao and would submit that, he had
interacted with complainant. He had participated in the process of
instructions given by Investigating Officer while planning and
executing the raid. That, he accompanied complainant and is party
to the demand by accused no.1 and acceptance by accused no.2 on
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direction of accused no.1. Therefore, trap is successful. That,
accused no.2 acted on instructions of accused no.1. That, they both
being public servants, prior sanction for prosecuting them was
obtained. According to learned APP, both sanctioning authorities of
accused nos.1 and 2 are explained by prosecution. That, there is
evidence of Investigating Officer. That, their versions have not
been rendered doubtful, and therefore, according to learned APP,
there is no illegality or perversity at the hands of learned trial
Judge and consequently there are prayers for dismissal of appeal
for want of merits.
ANALYSIS
11. Unfortunately, during pendency of trial, original
complainant Rangnath Chavan has expired and was thus not
available for evidence. Consequently, evidence of prosecution is
without testimony of original complainant. Very recently the
Hon'ble Apex Court in the case of Neeraj Dutta v. State (Govt. of
N.C.T. of Delhi), (2023) 4 SCC 731, has elucidated certain
principles and manner of appreciation of trap cases in paragraph
no.68, which are as under :-
"68. .......
"(a) Proof of demand and acceptance of illegal gratification by a
public servant as a fact in issue by the prosecution is a sine qua non
in order to establish the guilt of the accused public servant under
Sections 7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution
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has to first prove the demand of illegal gratification and the
subsequent acceptance as a matter of fact. This fact in issue can be
proved either by direct evidence which can be in the nature of oral
evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and
acceptance of illegal gratification can also be proved by circumstantial
evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and
acceptance of illegal gratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there
being any demand from the public servant and the latter simply
accepts the offer and receives the illegal gratification, it is a
case of acceptance as per Section 7 of the Act. In such a case,
there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand
and the bribe giver accepts the demand and tenders the
demanded gratification which in turn is received by the public
servant, it is a case of obtainment. In the case of obtainment,
the prior demand for illegal gratification emanates from the
public servant. This is an offence under Section 13(1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe
giver and the demand by the public servant respectively have to
be proved by the prosecution as a fact in issue. In other words,
mere acceptance or receipt of an illegal gratification without
anything more would not make it an offence under Section 7 or
Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore,
under Section 7 of the Act, in order to bring home the offence,
there must be an offer which emanates from the bribe giver
which is accepted by the public servant which would make it an
offence. Similarly, a prior demand by the public servant when
accepted by the bribe giver and inturn there is a payment made
which is received by the public servant, would be an offence of
obtainment under Section 13(1)(d) and (i) and (ii) of the Act."
(e) The presumption of fact with regard to the demand and acceptance
or obtainment of an illegal gratification may be made by a court of law
by way of an inference only when the foundational facts have been
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proved by relevant oral and documentary evidence and not in the
absence thereof. On the basis of the material on record, the Court has
the discretion to raise a presumption of fact while considering whether
the fact of demand has been proved by the prosecution or not. Of
course, a presumption of fact is subject to rebuttal by the accused and
in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is
unavailable to let in his evidence during trial, demand of illegal
gratification can be proved by letting in the evidence of any other
witness who can again let in evidence, either orally or by documentary
evidence or the prosecution can prove the case by circumstantial
evidence. The trial does not abate nor does it result in an order of
acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the
facts in issue, Section 20 mandates the court to raise a presumption that
the illegal gratification was for the purpose of a motive or reward as
mentioned in the said Section. The said presumption has to be raised by
the court as a legal presumption or a presumption in law. Of course,
the said presumption is also subject to rebuttal. Section 20 does not
apply to Section 13(1)(d)(i) and (ii) of the Act."
In the same judgment the Hon'ble Apex Court in
paragraph no.70 has observed as under :-
"70. .......
In the absence of evidence of the complainant (direct/primary,
oral/documentary evidence) it is permissible to draw an inferential
deduction of culpability/guilt of a public servant under Section 7 and
Section 13(1)(d) read with Section 13(2) of the Act based on other
evidence adduced by the prosecution."
12. Thus, it is emerging that, here, complainant because of
his demise is not available.
In view of judgment of Hon'ble Apex Court,
circumstances regarding demand and acceptance can also be taken
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into account in eventuality of evidence of complainant being not
available. Therefore, prosecution ought to have at least brought
other circumstances in support of contention that on 30.07.1998,
complainant had approached accused and above demand was
made.
13. Admittedly, even as per PW1 Baburao shadow panch,
when complainant was about to handover currency, accused no.1
allegedly gestured towards accused no.2 i.e. by nodding and
thereafter, according to PW1 Baburao, accused no.2 accepted the
currency. Such evidence itself shows that, there is no acceptance
by accused no.1. Admittedly, recovery of currency is from
possession of accused no.2, who was said to be sitting there.
14. Second feature of the case is that, here, accused no.2,
who was said to be in the company of accused no.1 on the day of
trap and though he is shown to have accepted the tainted currency
and it is recovered from him, it has not been demonstrated that
accused no.2 was acting in concert or directions of accused no.1
and with specific knowledge that the amount taken by him was
towards illegal gratification, charge cannot be fastened against
him. It is expected of prosecution to first prove that specific
knowledge that the amount which he is receiving, was towards
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illegal gratification. This aspect is not proved. There is no evidence
in this direction. Mere acceptance is not sufficient, as it is further
expected to be proved that acceptance was of bribe amount and not
otherwise. Therefore, such evidence on record, renders case of
prosecution doubtful.
15. As pointed out by learned counsel for appellants, here,
there is mechanical sanction as both authorities PW2 Ashok and
PW3 Vasant, who have accorded sanction to prosecute both
accused nos.1 and 2, though deposed that they studied the papers
received from Anti Corruption Bureau, they have admitted about
receiving draft sanction and surprisingly sanction orders are itself
typed with title as 'Draft Sanction Order'. Therefore, there is no
due care on the part of both the authorities which gave reason to
the defence to agitate and lay stress on non application of mind,
which does become obvious in view of above title of sanction
orders. Typing mistake at the hands of one authority can be
understood, but surprisingly both authorities, who are distinctly
placed and are two distinct departments, have typed the sanction
orders as 'Draft Sanction Order'. This also is a good ground to doubt
the prosecution version on the point of sanction.
16. In the considered opinion of this court, because of
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above lapses, case cannot be said to be proved beyond reasonable
doubt. There is no acceptance by accused no.1 and there is no
cogent and reliable evidence that accused no.2 acted in concert at
and on behalf of accused no.1 and with complete knowledge he had
accepted the amount to be a bribe amount. Consequently, it is a
case of benefit of doubt and the same goes to accused.
17. Perused the judgment. Apparently there is improper
appreciation of evidence. The above discussion and features
noticed by this court on re-appreciation are not taken into account
by learned trial Judge and hence interference is called for. Hence,
the following order :-
ORDER
I) Criminal Appeal stands allowed.
II) The conviction awarded to appellants, namely, (i)
Vishwambhar s/o. Abaji Bharose and (ii) Dasrao S/o.
Ramrao Suryawanshi in Special Case No. 03 of 1999 by
learned Special Judge, Parbhani on 29.12.2003 for the
offence under sections 7 and 13(1)(d) punishable under
section 13(2) and section 12 of Prevention of Corruption
Act, 1988, stands quashed and set aside.
III) The appellants stand acquitted of the offence under
sections 7 and 13(1)(d) punishable under section 13(2)
and section 12 of Prevention of Corruption Act, 1988.
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IV) The bail bonds of the appellants stand cancelled.
V) The fine amount deposited, if any, be refunded to the
appellants after the statutory period.
VI) It is clarified that there is no change as regards the order
in respect of disposal of muddemal.
(ABHAY S. WAGHWASE, J.)
Tandale
