Nandlal vs State of Maharashtra

A.B. Chaudhari, J—Being aggrieved by the judgment and order dated 31st March, 2001 passed by the Special Judge, Gondia in Special Case No. 1/1997 by which the appellant /accused was convicted under Section 7 of the Prevention of Corruption Act, 1988 (henceforth abbreviated to "Act of 1988") and was sentenced to undergo R.I. for six months and to pay a fine of Rs. 1000/-, in default, R.I. for two months and was further convicted for offence punishable u/s 13 (1)(d) of the Act of 1988 and was sentenced to suffer R.I. for two years and fine of Rs. 5000/-, in default, further R.I. for six months, which were directed to be run concurrently, the present Appeal was filed by the appellant/original accused.

Briefly stated it is the case of the prosecution that on 25.8.1995 complainant-Gunilal along with Girdhari, Deogir, Tukangir, Deochand and Shiolal were playing cards in the chhapri of Lattu Bhalavi at village Kawadi, in the wake of "pola" festival. The appellant/accused-Nandlal Kapgate, P.olice Head Constable (Buckle No. 1014) with his police party nabbed them. Gunilal managed to escape from the spot and hid himself in the house of his brother Tanulal. Crime No. 27/1995 under Section 12-A of the Prevention of Gambling Act against Gunialal and others were registered. On 26.8.1995 at about 10.00 a.m. P.C, Hemne and P.C. Salame visited the house of Tanulal to track Gunilal and they asked Tanulal to produce him. On 21.08.1995 Tanulal went to outpost Sakritola where P.H.C. Nandlal Kapgate (appellant) was present along with other constables. PHC Nandlal demanded Rs. 200/- for releasing Gunilal after his production. Tanulal was working as a Mustering Clerk in Irrigation Department of the State of Maharashtra, did not want to pay him the amount and went to Anti Corruption Bureau on 8.9.1995. Gunilal lodged the complaint at Exh.25; whereas Tanulal lodged complaint at Exh. 28, on 8.9.1995 and 12.9.1995 respectively. Thereafter Police Inspector Sunil Jaiswal took steps to arrange the trap. The trap was successful. Charge-sheet was filed after investigation was completed. The trial was held. The learned trial Judge convicted the appellant/accused as stated in paragraph no. 1 above. Hence this Appeal.

ARGUMENTS:

In support of the Appeal, Mr. A.S. Dhore, learned counsel for the appellant submitted that the prosecution failed to prove that there was any demand as such. Both Tanulal and Gunilal claimed to be witnesses for proving demand and the case was only one, namely, that Gunilal was to be arrested and would be released on bail after acceptance of illegal gratification of Rs. 200/-, by Nandlal (appellant). Therefore, it is impossible to believe that the demand was made to two persons and such an alleged demand in law has no place at all. Learned counsel submitted that mere proof of bribe amount from the complainant is sufficient to prove the offence, is the trite law. In support thereof, learned counsel for appellant cited the decision of Banarsi Dass Vs. State of Haryana, AIR 2010 SC 1589 : (2010) CriLJ 2419 : (2010) 2 Crimes 351 : (2010) 3 JT 552 : (2010) 4 SCC 450 : (2010) 4 SCR 383 . He submitted that in the instant case though recovery of bribe amount from the accused was proved, the demand as such, was not proved even at the time of raid or before and, therefore, the conviction could not have been recorded by the learned trial Judge. Learned counsel for appellant then argued that the burden to prove demand and acceptance etc. is on the prosecution and not on the accused. He then submitted that there was no authorization in favour of P.I. Sunil Jaiswal who carried out the raid and investigation and in the absence of authorization the very raid and the investigation, both were vitiated and, as such, the appellant was entitled to acquittal. Learned counsel further submitted that the then Irrigation Minister Mr. Mahadeorao Shivankar had managed the entire show of conduct of raid and it has come on record that he had made a telephone call to the Anti Corruption Bureau and, thus, the Minister being behind the raid, the learned trial Judge ought not to have based the conviction on such type of evidence. In that regard, he placed reliance on V. Venkata Subbarao Vs. State, represented by Inspector of Police, A.P., AIR 2007 SC 489 : (2007) CriLJ 754 : (2006) 14 SCALE 125 : (2006) 13 SCC 305 . Learned counsel also relied on the judgment of the Hon''ble Supreme Court reported in AIR 1994 SC 1205 in the matter of Vishnuji Jadhav vs. State of Maharashtra, and submitted that prior permission of Judicial Magistrate was not taken as required by Section 5-A of the Act of 1988 and, therefore, the trap was illegal. Finally, he submitted that the appellant was thrown out of employment after the incident in question and, therefore, leniency should be shown in favour of the appellant/accused.

Per contra, Mr. T.A. Mirza, learned A.P.P. supported the impugned judgment and order and submitted that the learned trial Judge has discussed the entire evidence in details with precision and there is hardly scope to hold that he had made an error in appreciation of the evidence and law that is applicable. The learned A.P.P., therefore, submitted that the impugned judgment is legal, correct and proper and deserves to be confirmed.

CONSIDERATION:

I have heard the learned counsel for rival parties, at length. I have perused the reasons given by the learned trial Judge for recording the order of conviction. I have carefully seen the entire evidence to find out whether the learned trial Judge made any mistake in recording the finding of fact and whether the same is based on evidence or not. I have considered all the submissions made by the learned counsel for the appellant.

The submission made by the learned counsel for the appellant that the Police Inspector was not authorized will have to be turned down for the reasons recorded by the learned trial Judge in paragraph 18 of his judgment and I quote the following reasons from the said paragraph.

"18................ As per Circular dated 30.11.1988 submitted with the list Exh.70, the Police Inspectors are also empowered to conduct the investigation under the Act of 1988. In this Circular itself, the Police Inspectors got the authority to conduct the investigation of the cases under Prevention of Corruption Act by Government Order No. ACB -1269/4180/Roman -3/p dt. 20/6/1977. This order of the Government and the Circular complies with the provisions of first proviso to Section 17 of the Prevention of Corruption Act, 1988. P.I. Sunil Jaiswal was attached to Anti Corruption Bureau, Nagpur at the relevant time. PW 6 Sadanand Date stated in the cross-examination that, Dy. S.P. A.C.B. Bhandara functions under the supervision of S.P.A.C.B. Nagpur. The trap in question was organized by ACB Nagpur. Sanction to prosecute was accorded as the whole case was referred by the officer holding the same rank and heading the A.C.B. Unit PW 7 Sunil Jaiswal stated in the cross-examination that, if any complaint is received regarding the corruption in the jurisdiction of S.P. (Anti Corruption) then with the permission of S.P. they can proceed to arrange the trap. He denied the suggestion of not having obtained the permission from S.P. A.C.B. Bhandara Unit functions under the 8 supervision of S.P.A.C.B. Nagpur. In view of this, even if it is considered that, any irregularity in the matter of investigation has taken place but such an irregularity is curable under section 465 of Cr.P.C. and it will not totally affect the jurisdictional power the cognizance in the matter in fact is taken, sanction to prosecute was ordered and the trial against the accused proceeded to termination. No objection about the jurisdictional power of the Investigating Officer was taken before the commencement of the trial and so, I do not find any merit that the entire proceed is vitiated ab-initio. Thus, I find no force int he submission of the learned counsel that for want of jurisdiction, trial is vitiated."

I agree with the reasons recorded by the learned trial Judge that there was a Circular dated 30.11.1988 empowering the Police Inspectors to conduct the investigation under the Act of 1988. That being so, in the light of first proviso to Section 17 of the Act, the submission will have to be turned down. Secondly, the judgments cited by the learned counsel for the appellant, in this regard, do not have any application in the facts of the present case.

The next question is about the proof of demand and acceptance of bribe by the appellant-Nandlal. I have perused the entire evidence tendered by the prosecution. Insofar as the demand made by appellant/accused to Gunilal and Tanulal is concerned, the demand related to the same incident, namely, demand for illegal gratification of Rs. 200/- because Gunilal was absconding and PHC appellant-Nandlal to release him on bail, provided an amount of Rs. 200/- was paid to him. The demand was made to both Tanulal and Gunilal. It cannot therefore, be said that there are two different demands since the transaction was only one. The only thing is that the demand was made to two brothers, but then the intention of the appellant was to get Rs. 200/- from either of the brothers for releasing him on bail. I do not think that this can be termed as any discrepancy regarding the demand that was made for the amount of Rs. 200/-.

The next question is about the laying of trap. I have carefully gone through the trap that was arranged successfully. It is not in dispute that an amount of Rs. 200/- was found on the person of Nandlal (appellant) and the currency notes i the denomination of Rs. 100/- each, have changed the colour. It is not necessary for me to discuss the evidence in that aspect, since I have carefully gone through evidence along with the reasoning given by the learned trial Judge in that behalf and I find that the reasons are in consonance with the evidence on record. Instead of repeating the same, it would be appropriate to quote the following paragraph No. 26 of the impugned judgment, with which I concur.

"26. According to complainant Tanulal Exh.27 and Panch No. 1 Ankush Nipare, they met the accused Nandlal Kapgate at outpost Sakritola. The accused Nandlal enquired Tanulal whether he brought his brother (Gunilal). Tanulal, replied in the affirmative. The complainant Tanulal has given unshaken and unshattered version that the accused Shri Kapgate asked him whether he brought money. Tanulal replied in the affirmative. Panch No. 1 evaded to answer whether the accused Nandlal had demanded money to Tanulal. His evasive answer crumbles downs for the reasons stated hereinbelow. According to Tanulal, his signature on blank form of surety bond was obtained. Thereafter, Shri Kapgate demanded him money and be paid money to Kapgate. The complainant Tanulal and Panch no. 1 Nipare are consistent in their statement in respect of pre-proposed signal given by Tanulal and entry of remaining members of the trap party at outpost Sakritola. This fact also finds corroboration from the evidence of Panch No. 2 Dhurve and PW 7 PI Jaiswal. Panch No. 1 Nipare has corroborated Tanulal''s version that Tanulal paid sum of Rs. 200/- to Nandlal. Panch No. 2 Dhurve stated in examination-in-chief itself that Panch No. 1 Nipare disclosed the fact accused asking Tanulal to bring Rs. 200/- in case to release Gunilal. This disclosure was made when PW 2 Dhurve reached at outpost Sakritola. The IO P.I. Jaiswal in para no. 14 of his deposition stated that as per instructions, Panch No. 1 Nipare narrated the entire incident to Panch no. 2. According to Tanulal, Panch no. 1 Nipare was near him when money was tendered to the accused. I.O. Jaiswal testified that the proceeding covering events since their departure from Nagpur till post trap events were reduced into writing in panchnama No. 2. Exh.10 Panch No. 1 Ankush Nipare Exh.9 and Panch No. 2 Hiraman Dhurve Exh.17 have categorically stated that the panchnama No. 2 Exh. 10 was recorded in their presence and also bears the endorsement. The contents of this Panchnama are correct. The perusal of panchnama Exh. 10 crystallized the fact of complainant Tanulal and Panch no. 1 Nipare visiting outpost Sakritola. This panchnama specified the discussion taking place between the complainant and the accused Kapgate and enquiry to Tanulal by the accused whether he brought money and also asking Tanulal to pay sum of Rs. 200/-. It also specified the complainant Tanulal taking out currency notes of Rs. 100 two in number from the left pocket of his shirt and delivery of the same to the accused Kapgate who in turn counted those currency notes and kept in his left pocket of the shirt. As both Panchas have admitted the contents of panchnama No. 2 Exh. 10 as correct, then it fortifies the version of the complainant Tanulal that, the accused Nandlal Kapgate demanded a sum of Rs. 200/- to Tanulal and in fact accepted such money from him. As such, discrepancy in statement of Nipare about the demand becomes insignificant. PW 4 Gunilal stated that Police Constable Salame obtained his finger marks at O.P. Sakritola and thereafter his brother i.e. Tanulal paid Rs. 200/- to the accused. Gunilal''s evidence in respect of the accused Nandlal having accepted Rs. 200/- from Tanulal becomes incredible in view of his cross-examination, that he has not seen while delivery of money. His admission that H.C. Kapgate did not demand money to him is of little importance because since beginning the stand of the prosecution is that demand of bribe of Rs. 200/- were made to Tanulal by the accused."

Insofar as the post-trap procedure is concerned, I quote paragraph 27 of the impugned judgment, which reads thus.

"27. The evidence of Panch witnesses Nipare, Dhurve, complainant Tanulal and I.O. Sunil Jaiswal P.I. showed that post-trap procedure was initiated after pre-proposed signal. They testified that the panch No. 2 Dhurve took out the tainted currency notes of Rs. 100/- denomination each from the left pocket of the shirt of the accused. The numbers on currency notes were tallied and found identical with number of currency notes mentioned in panchnama No. 1 Exh.11. Their evidence is to the effect that the drops of solution of sodium carbonate were sprinkled on tainted currency notes. There was appearance of violet or pink dots on those currency notes. The pocket of shirt of the accused was also tested with solution of sodium carbonate. The pocket turned into to violet or pink colour. This shirt was also seized and sealed. The tainted currency notes were seized and sealed. The fingers of right hand of the accused were tested with solution of sodium carbonate. The colour of solution was turned into violet or pink. This solution turned into violet or pink colour. The left pocket of shirt of Tanulal also gave violet or pink colour when tested with the solution of sodium carbonate. This solution were preserved and seizure memo Exh.13 was prepared. All such facts are mentioned in panchnama No. 2 Exh.10. The seizure memo Exh.14 also specified the seizure of Articles and tainted currency notes from the person of the accused and so also, seizure and sealing of the bottles containing tested sodium carbonate solution of the fingers of the both hands of the accused. The number on currency notes also tallies with number of currency as specified in panchnama No. 11. From these aspects, it crystallized that the prosecution has successfully adduced the evidence of demand of Rs. 200/- to Tanulal by the accused for releasing Gunilal on bail in a Gambling case and recovery of tainted currency notes of Rs. 200/- from possession of the accused Kapgate. The C.A. Report Exh.46 also gives a positive finding about the detection of Phenolphthalein powder and sodium carbonate in the articles referred for Chemical Analyser."

The upshot of the above discussion is that it is not possible to agree with the learned counsel for the appellant that the demand and acceptance of bribe was not proved by the prosecution. The evidence narrated above shows that the same was beyond any doubt and the appellant/accused was caught red handed with the amount of Rs. 200/-.

Insofar as the question about influence of the then Irrigation Minister to conduct the raid on the appellant is concerned, I find that there is no material brought on record to that effect to believe any such theory propounded by the defence, in the first place. Secondly, assuming that any raid was arranged at the behest of the then Hon''ble Minister, there was no compulsion on the appellant to accept the amount of Rs. 200/- and then get caught red handed particularly when all the scientific evidence goes against him. Therefore, insofar as the actual raid is concerned, the same was proved and since the appellant himself took the money of Rs. 200/- in his hands and he being a Police Head constable attached with the concerned Police Station and in the wake of crime registered against complainant Gunilal, he took the risk of accepting the amount of Rs. 200/-, for which he has to thank himself.

In that view of the matter, I think that the appellant cannot succeed in this Appeal and, therefore, the instant Appeal deserves to be dismissed. In the result, I make the following order :

ORDER:

i) Criminal Appeal No. 104/2000 is dismissed.

ii) Eight weeks"'' time is granted to the appellant/accused to surrender.