IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.378 OF 2007
APPELLANT : Yashwant s/o. Sambhaji Dadmal,
Aged about 47 years, Occ. Service,
r/o. Sradha Nagar, Tukum,
Chandrapur, Tq. And Distt.
// VERSUS //
RESPONDENT : State of Maharashtra,
Through Deputy Superintendent of
Police, Anti Corruption Bureau,
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.M.P.Khajanchi, Adv. for the Appellant.
Mr.D.B.Patel, A.P.P. for the Respondent/State.
Date of reserving the Judgment : 25.07.2012. Date of pronouncing the Judgment : 30.07.2012. ******************
CORAM : A.P. BHANGALE, J.
1. This Appeal is directed against the Judgment and Order dated 14/08/2007 passed by the learned Special Judge, Chandrapur in Special Case No.6 of 1999 whereby the original accused no.1 was convicted of the offence punishable under Section 7 of the Prevention of Corruption Act (hereinafter referred to as "the Act") and was sentenced to suffer rigorous imprisonment for one year and to pay a fine in the sum of Rs.300/- and in default to suffer rigorous imprisonment for three months. For the offence punishable under Section 13(1)(d) read with Section 13(2) of the said Act, the original accused no.1 was convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine in the sum of Rs.300/- and in default to suffer further rigorous imprisonment for three months. Accused no.2 was acquitted of all the offences with which he was charged.
2. Heard the submissions at the bar.
3. The facts, in the nutshell, are as under: 3
On 01/09/1998, Complainant Subhash Yelpulla - an auto driver, was having fun with his two friends namely Kumar and Rajayya. At that time, one more friend Anil hurled a small stone, which hit against a passing Motor Bike. The rider halted and questioned the trio. He noted their names and directed them to appear in the Mahakali Police Chauki. He was accused no. 1 Yashwant Dadmal. The Complainant and his friends did not visit the Police Chauki as directed by accused no.1. Then, Bhaskar Eknath Gowardhan (accused no.2) was asked to search for the Complainant and his friends. On 04/09/1998, the Complainant with 'Police Mitra' Dindewar approached Mahakali Police Chauki. Accused no.1 disclosed to Dindewar that the Complainant shall pay Rs 400/- or else he will prosecute the Complainant. Dindewar disclosed this to the Complainant. They were told that the amount will have to be paid by 7 p.m. on the same day. The Complainant agreed to pay the amount and then left the Police Chauki.
4. The Complainant then approached the A.C.B., Chandrapur to lodge complaint. Deputy Superintendent of Police Shri Hiware recorded it (Ex.40). Pre-trap Panchanama (Ex.13) was 4
drawn by arranging the pancha from the Office of the District Welfare Officer. The Complainant and the Pancha proceeded to the Mahakali Police Chauki followed by the raiding Party. When they reached near the Chauki, accused no.1 met and inquired as to why the Complainant was delayed. The Complainant told him that it was raining. When accused no.1 inquired about the money, the Complainant told him that he had brought the amount of Rs 300/-, as instructed. The Complainant took out the marked currency notes and handed over the same to accused no.1. He accepted in his right hand and kept by his left hand inside his left pant pocket. Then, accused no.1 asked the Complainant to provide him 'Kharra'. The Complainant, accused no.1 and the Pancha went near the Pan Stall where accused no.1 obtained the 'Kharra'. Panchas also obtained another packet. The Bill of Rs.5.50 was shared by the Complainant and the Pancha. When the Complainant asked accused no.1 as to whether there would be prosecution, accused no.1 told that there will be no prosecution and asked accused no.2 to delete the name of the Complainant. After this, the Complainant gave a signal to the raiding Party who rushed towards the spot. They held the hands of accused nos. 1 and 2 and both the accused were taken to the Mahakali Police Chauki. About 50 feet away, accused no.2 fled 5
away from the spot. Tests were carried out to detect the traces of the phenolphthalein powder. The articles seized were forwarded to the Chemical Analyser. Shri Hiware reported the offence to the Police Station, Chandrapur giving rise to Crime No. 3154 of 1998. Upon completion of the investigation, the accused were charge- sheeted. Charge was framed to which the accused pleaded not guilty and claimed trial.
5. The accused defended the case on the ground that the Complainant is the relative of Vijay Dindewar (Police Mitra). In the month of August, Shri Dindewar had bought the bicycle from accused no.1 for Rs 550/- and had paid only the sum of Rs 250/- while taking the bicycle. He agreed to pay the balance amount of Rs.300/- by 1st September and receipt was issued accordingly (Ex. D/1). On the day of the trap planned, accused no.1 was to receive the sum of Rs 300/-. The Complainant had paid the sum of Rs. 300/- on behalf of Dindewar. However, the raiding trap was arranged against accused no.1 to falsely implicate him. Accused no.1 received the amount towards the transaction of the bicycle. Accused no.2 also defended the case on the ground that he was nowhere concerned in the crime, as alleged and had no role in the 6
crime, as alleged. It is the grievance of the Appellant that - notwithstanding the defence contention in the evidence, the trial Court relied upon the evidence led by the prosecution and held accused no.1 guilty and passed the order (as mentioned supra).
6. Mr.M.P.Khajanchi, learned Advocate for the Appellant submitted that the complaint lodged by the Complainant made clear mention of alleged demand made through Shri. Vijay Dindewar ('Police Mitra') and alleged bargain of the amount demanded was also settled through Shri. Vijay Dindewar and communicated through him. The Complainant in his cross- examination admitted thus:-
" It did happen that for the first time when I visited the Police Chauki I was accompanied by Mr. Vijay Dindewar who had entered in the Police Chauki and after coming out he had told me that the Major was demanding Rs.400/-. When I approached the ACB's office I was accompanied by my another friend Pramod. When we proceeded for trap in jeep Pramod followed us by his Auto Rickshaw. Prior to that we had came out of the ACB's office together."
7. According to the learned Advocate for the Appellant, both the persons - Pramod and Vijay Dindewar were independent and material witnesses to unfold the truth. But they were not examined by the prosecution for the reasons best known to it. Learned trial Judge did accept the position that adverse inference is required to be drawn while making observations in para 21 of the impugned judgment, but failed to draw the logical conclusion that the first demand was not proved beyond reasonable doubt. Pramod, a friend of the Complainant had accompanied with the Complainant to the ACB's Office, remained there with him in ACB's Office and came out with him and then followed the raiding party by his auto rickshaw. He was a necessary witness to unfold the truth, but he was also not examined by the prosecution. Learned Advocate Shri Khajanchi thus argued that the chain of circumstances to connect the guilt of accused no.1 by best evidence was missing. The prosecution has to be blamed for suppressing the material evidence from the Court. The Complainant was questioned specifically about the presence of Pramod and Vijay Dindewar. The Complainant tried to give lame excuses suppressing the evidence of the material witnesses thus- "I had not stated in my statement to the ACB officials that while lodging the complaint I was accompanied by my 8
friend Pramod because these people were knowing that my friend was with me. I was unaware which official of the police station is commonly known as Major. The designation of the Major was disclosed to me by my friend Dindewar. Dindewar is also Auto rickshaw driver. It is not true to say that my friend Dindewar told me that his name shall not be disclosed because he is holding a card as a "Police Mitra."
8. Shri Khajanchi, Adv. argued that - had both the witnesses Pramod and Vijay Dindewar were examined by the prosecution, it could have brought the best evidence on record. Now the prosecution cannot escape facing the blame regarding suppression of material witnesses and material facts.
9. The learned Advocate for the Appellant placed reliance upon the ruling in C.M.Girish Babu .vs. CBI, Cochin, High Court of Kerala reported in (2009) 3 SCC 779. The learned Advocate sought to explain legal position regarding proof of offence punishable u/s.7 of the Act. He made a reference to para 16 of the ruling wherein it is observed that " the crucial question would be whether the appellant had demanded any amount as gratification to show any official favour and whether the said amount was paid by 9
PW-10 and received by the appellant as consideration for showing such official favour. With reference to this question, the Apex Court made a reference to the case of Suraj Mal .vs. State (Delhi Administration) reported in (1979) 4 SCC 725, in which it was observed that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. It appears that the Apex Court also referred to Section 20 of the Act, which reads as under : "20. Presumption where public servant accepts gratification other than legal remuneration -
(1)Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of the Section 13 it is proved that an accused has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is 10
proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2)Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3)Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn. "
10. The Apex Court also referred to three-Judge Bench ruling in M. Narsinga Rao .vs. State of A.P. reported in (2001) 1 11
SCC 691, in which it was observed that it is not enough to prove that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification. Thus, the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. "
11. Regarding statutory presumption u/s.20 of the Act, the Apex Court observed that it is not an inviolable presumption because the accused can rebut it either through the cross- examination of the witnesses cited against him or by adducing reliable evidence. The accused may succeed to disprove the presumption by such evidence which is acceptable by the test of preponderance of probabilities unlike the heavy burden on the prosecution to prove the offence beyond all reasonable doubts.
12. The learned Advocate also made a reference to the case of State of Kerala and another .vs. C.P. Rao reported in (2011) 6 SCC 450, in which also it appears that C.M.Girish Babu's case (cited supra) was followed as also the case of Suraj Mal (cited supra).
13. Reliance is then placed on the ruling in the case of Banarsi Dass .vs. State of Haryana reported in (2010) 4 SCC 450 (para 19 to 23). The settled principle of criminal jurisprudence cannot be disputed that the conviction of accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct 13
evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. Looking to penal Section 5(1) (d) of the Act, the Apex Court observed that the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused.
14. Reference is also made to the ruling in the case of V.Venkata Subbarao vs. State represented by Inspector of Police, A.P. reported in (2006) 13 SCC 305, in which it is observed that - regarding standard of proof upon the accused to rebut presumption, it is not as heavy as upon the prosecution. Burden upon the accused may be compared with that of a defendant in the civil proceedings.
15. Reference is also made to the ruling in the case of Vijaykumar s/o. Marotrao Daiwalkar .vs. State of Maharashtra reported in 2012 ALL MR (Cri) 2173. This Court had, considering the contradictory nature of evidence regarding signal given as per 14
instructions when the accused allegedly accepted the bribe amount, held that the prosecution has failed to prove the offence beyond reasonable doubt after making reference to various rulings from the Apex Court.
16. The learned Advocate for the appellant made a reference to the case of Mansukhlal Vithaldas Chauhan .vs. State of Gujarat, (1997) 7 SCC 622 (para 18). The learned Advocate submitted that the sanctioning Authority has to apply its mind to the facts and circumstances of the case and the validity of sanction would depend upon the material placed before the sanctioning Authority with all relevant facts, evidence and material to be considered by the Authority. The order of sanction must ex facie disclose that the sanctioning Authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning Authority. In other words, the sanctioning Authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. If it is shown that the sanctioning Authority was unable to 15
apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority " not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
17. Finally, reference is made to the ruling in the case of State of Karnataka .vs. Ameerjan reported in (2007) 11 SCC 273 (Para nos.10 and 11). In the said case, it was held that the sanctioning Authority ought to consider the entire record containing the material collected against the accused and to apply its mind to material placed before the Authority. Application of mind on the part of the sanctioning Authority is imperative. The order must demonstrate that there was proper application of mind.
18. Mr.Khajanchi, Adv. relied upon the discrepancies in the evidence of the Complainant and the panch witness. He invited my attention to the evidence of the Complainant Subhash Yelpula (PW-2) who, during the course of evidence, admitted that he does not know the name of attendant of the pan stall. According to him, he had stated that the amount was demanded and it was handed 16
over at the pan stall itself. However, Vijay Nilkanth Dongre (PW-1), in the course of his examination-in-chief, stated that when he and the complainant were about 7 or 8 ft. away from police chowki, they accosted both the accused. In the cross-examination, however, Vijay Dongre (PW-1) stated that the conversation about the amount had taken place before reaching to pan stall while walking (not at the pan stall), while Subhash (PW-2) mentioned in his evidence that when accused no.1 noticed the Complainant and the panch witnesses from inside the police chowki, he gave signal to the Complainant to wait, he came out of police chowki and proceeded towards the pan stall. Then the Complainant and the pancha came near the pan stall; while at the pan stall, accused no.1 asked the Complainant whether he had brought the amount. Thus, the version of the Complainant is that the marked currency was handed over to the accused at the pan stall; while the panch witness, who is supposed to be an independent witness, stated that the conversation about the amount had taken place before reaching the pan stall while walking. Under these circumstances, it is contended that the trial Court ought to have considered the discrepancies, as above and given benefit of doubt to the accused no.1.
19. It is further stated that the trial Court was wrong to draw the presumption u/s.20 of the Act so as to convict the appellant and it was great error of law on the part of the learned trial Judge to draw the presumption u/s.20 on the only ground of acceptance of the amount. The learned Advocate Mr.Khajanchi submitted that mere acceptance does not attract presumption u/s.20 of the Act. Prosecution has to establish that the money paid to the accused was not legally due and in the present case, it is submitted that the prosecution has miserably failed to establish this. Mr.Khajanchi, Adv. criticized the observations made by the learned trial Judge regarding the defence evidence and the explanation coming on record. According to the learned trial Judge, when the passing of the amount is admitted and the presumption u/s.20 is not rebutted, then it is established that the accused had accepted the amount as a motive or reward. The learned Advocate Mr.Khajanchi submitted that the learned trial Judge made blanket observations in the following words : " However it cannot be disputed that the accused no.1 being Police Head Constable was having potential value to launch prosecution under the Bombay Police Act at any juncture.
20. Mr.Khajanchi, Adv. submitted that - particularly when there was no any report or complaint or even diary entry against the Complainant at the outpost of Police Station where accused no.1 was working, there was no question of accused no.1 implicating the Complainant in any criminal case. Mr.Khajanchi, Adv. submitted that the order convicting the appellant for committing serious offence punishable under the Act ought not to have been passed upon baseless hypothesis, as indicated in the observations above by the learned trial Judge. Thus, it is submitted that the charge itself is ruled out as conviction cannot be based on absurd reason that the Police H.C. has potential value to launch prosecution at any juncture. If conviction is based upon such hypothesis, the learned Advocate contended that, almost all public servants may be booked for the offence punishable under the Act and may be convicted on the basis of hypothesis of guilt based on their potential value to implicate anybody. Mr.Khajanchi, Adv. pointed out that defence evidence was led which was put to the Complainant in the form of suggestion in the course of his cross- examination when the Complainant answered thus : 19
"I do not know that Dindewar had purchased a bicycle from accused no.1 for consideration of Rs.550/- and the amount of Rs.300/- was due. "
21. Defence witness no.1 Narendra Mahadeorao Tajane gave evidence that there was a transaction of sale of bicycle between accused no.1 and Vijay Dindewar in the month of August, 1998. On the day of transaction, at about 9.00 A.M., Dindewar had been to his house and inquired about location of the house of accused no.1. Dindewar told Narendra (DW-1) that he is intending to purchase the bicycle of accused no.1 and therefore, Narendra Tajane had accompanied with Vijay Dindewar to the house of accused no.1. The bicycle was shown to Dindewar. Accused no.1 quoted the price of Rs.600/- and Dindewar quoted the price of Rs.500/-. Dindewar paid Rs.250/- and remaining amount of Rs.300/- was agreed to be paid after 1st September, 1998. Accordingly, Dindewar had passed a receipt as per Exh.D-1. It is in the handwriting of Vijay Dindewar and also bears his signature. Thus, Dindewar took away bicycle which was second hand bicycle and accused no.1 also handed over original receipt of the bicycle to Dindewar issued by the shop owner from where accused no.1 had purchased bicycle.
22. In the course of the cross-examination by the learned Public Prosecutor for the State, Witness Narendra Tajane deposed that accused no.1 had disclosed to him that he had accepted the remaining amount towards sale of bicycle and the transaction had taken place in his presence. Surprisingly, statement of witness Narendra Tajane (DW-1) was not recorded by ACB Officials and in respect of such rebuttal evidence, no effort was made by the prosecution to summon Vijay Dindewar as necessary or essential witness for just decision of the case. Thus, in view of the explanation of accused no.1 that the amount payable to the accused no.1 was paid to him through the Complainant, it is submitted by the learned Advocate Mr.Khajanchi that the trial Court ought not to have disbelieved the evidence of Narendra (DW- 1). It was also open for the trial Court to summon and examine Vijay Dindewar as a Court witness by exercise of power u/s.311 of the Code of Criminal Procedure before it could disbelieve the defence evidence. Thus, it is the grievance on behalf of the appellant that the defence evidence was not understood in proper perspective bearing in mind the likelihood of false implication of the appellant due to evidence of sale transaction of bicycle which had taken place between Vijay Dindewar and the accused. It is 21
submitted that Narendra Tajane (DW-1) had no reason to depose falsely. Therefore, when the prosecution did not examine the pan stall owner, in front of whose pan stall the alleged bribe was taken by the accused and the material witness like Vijay Dindewar was also not examined, under these circumstances, it is submitted that the evidence led by the prosecution was shaky and there was no concrete proof of the offences punishable under the Act by legal evidence so as to convict the appellant.
23. While, on the other hand, the learned A.P.P. who supports impugned judgment and order submitted that, from the evidence of Vijay (PW-1), the factum of demand and the acceptance was proved. He has corroborated the evidence of the Complainant. According to the learned A.P.P., defence came forward with concocted story and therefore, presumption u/s.20 which arose was not rebutted. It is also contended that the receipt produced in defence was not signed by Narendra Tajane (DW-1). Therefore, it was rightly disbelieved.
24. Hearing the submissions as afore-mentioned, I think that, considering the defence evidence of Narendra (DW-1) as also 22
the inconsistencies/discrepancies found in the evidence of panch witness and the Complainant regarding the spot where bribe was allegedly paid, admission given by the Complainant in the course of his evidence and the evidence brought forward that the demand was made through Vijay Dindewar and bargain was settled and communicated through Vijay, I think that the prosecution ought to have examined said Vijay Dindewar. But, unfortunately, he was not examined. Under these circumstances, the benefit of doubt arising from discrepancies or inconsistencies found in the prosecution evidence have to go in favour of the accused in front of criticism that the prosecution has suppressed the material witnesses like Pramod and Viay Dindewar. Considering the oral evidence of Narendra Tajane (DW-1) and the document i.e. receipt Exh.D-1 executed in respect of transaction between accused no.1 and Vijay Dindewar, I think there was plausible explanation from the defence which ought to be considered in its proper perspective in view of likelihood of false implication of the appellant in respect of money paid due to sale transaction of bicycle. One cannot conclude with full confidence that the amount paid in the sum of Rs.300/- to accused no.1 by the Complainant was totally unrelated to the bicycle transaction between accused no.1 and Vijay Dindewar. 23
Unfortunately, witness Vijay Dindewar was not examined by the prosecution. Therefore, adverse inference can be drawn against the prosecution that had he been examined, he might have deposed in favour of the defence. Under these circumstances, the defence evidence, which appears probable, if read along with the documentary evidence in the form of receipt and doubt arising regarding genuineness of the Complaint itself. Benefit of doubt ought to go in favour of the accused looking to the totality of evidence and nature of inconsistencies and discrepancies pointed out from the record.
25. Looking to the entire evidence on record including the defence evidence and the documentary evidence in the form of receipt, appellant herein/accused no.1 is entitled for benefit of doubt on the ground that there was sale of bicycle transaction in respect of which payment of Rs.300/- was due to accused no.1 (appellant) and the Complainant may have acted as an agent of Mr.Vijay Dindewar to pay the balance amount which was payable to accused no.1 in respect of sale of bicycle for a sum of Rs.550/-, out of which Rs.250/- was already paid to the accused. In absence of material evidence of Vijay Dindewar, benefit of doubt must go in 24
favour of the accused. In the circumstances, the appeal is allowed. The impugned judgment and order is set aside.
The appellant/accused is acquitted of all the offences with which he was charged.
Bail bond, if any, of the accused shall stand discharged. JUDGE