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Judgment
The appellant is aggrieved by the judgment and order
dated 16.08.2012 passed by the Adhoc-2 Special Judge, Yavatmal
in Special Case 7/2006, by and under which, the
appellant-accused is convicted under Section 7 of the Prevention
of Corruption Act, 1988 (''Act'' for short) and is sentenced to suffer
rigorous imprisonment for one year and to payment of fine of
Rs.1000/- and is further convicted of offence punishable under
Section (13)(1)(d) read with Section 13(2) of the Act and is
sentenced to suffer rigorous imprisonment for one year and to
payment of fine of Rs.1000/-.
The genesis of the prosecution lies in complaint
(Exh.16) dated 30.06.2005 lodged by the complainant Ramesh
Binjhade (P.W.1) with the Anti Corruption Bureau (ACB),
Yavatmal. The gist of the complaint is that Ramesh Binjhade is a
resident of Gurudeo Ward, Ghati Ghatanji and is a cobbler by
profession. His mother Mankarnabai Binjhade owns a house at
Gurudeo Ward. The complainant applied for a telephone
connection in the name of Mankarnabai in May, 2005, along with
the application, the complainant handed-over the electricity bill
and the house tax receipt to the accused R.C. Dhongade, Junior
Telecom Officer (JTO). The accused informed the complainant
that Rs.500/- is required to be deposited for new telephone
connection and asked the complainant to bring Rs.500/- so that
the demand note could be prepared. The accused handed-over to
the accused Rs.500/- after two days and was assured by the
accused he would prepare the demand note which could be
collected the complainant later on.
The complainant met the accused on 25.06.2005.
The accused handed-over demand note dated 08.06.2005
evidencing receipt of Rs.500/-. When the complainant asked the
accused as to when the connection would be installed, the accused
demanded Rs.1000/- for installing the connection, the
complainant attempted to negotiate but in vain. The accused told
the complainant that if Rs.1000/- is paid the telephone connection
will be installed on 27.06.2005. The accused agreed to bring the
amount of Rs.1000/-. The complainant was not inclined to pay the
bribe and lodged the complaint.
The ACB decided to trap the accused on 01.07.2005.
Panchas were summoned, the usual demonstrations were given,
the complaint was verified and signed by the complainant and the
panchas and the trap was successfully executed on 01.07.2005.
The submission of the learned counsel for the accused
is that the prosecution has failed to establish the very sine quo non
ingredient of offence punishable under the provisions of the Act,
which is that decisive demand must be proved beyond reasonable
doubt. Reliance is inter alia placed on the following decisions of
the Apex Court.
[i] Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702.
[ii] P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4 SCC 39.
[iii] B. Jayaraj vs. State of A.P . 2014 All SCR 1619.
[iv] A. Subair vs. State of Kerala (2009) SCC Vol.6 587.
[v] N. Sunkanna vs. State of Andhra Pradesh 2015 ALL MR (Cri) 4551 (S.C.).
The learned counsel for the accused is right in
submitting that unless the prosecution proves the demand beyond
reasonable doubt, the offence punishable under the provisions of
the Act is not established. It would therefore, be necessary to
scrutinize the evidence of the complainant (P.W.1),
and the shadow panch (P.W.2) to ascertain whether the
prosecution has proved that the accused demanded illegal
gratification. It is trite law, that if the demand is not proved,
recovery of tainted currency notes per se would not take the case
of the prosecution any further.
The relevant portion of the examination-in-chief of
P.W.1 reads thus:
I alongwith Kadu went inside the office by walk. When I entered in the office towards left side of the office nobody was present. Thereafter I proceed further. I saw three employees there. Accused was amongst those three employees. Those three employees were seated in the cabin of glass. Accused after seeing me came out of the said cabin and came in the passage. The accused asked me, "Aai Kya" I thought he demanded me the money. I say yes. I talked with accused. I took out those currency notes and handed over to accused. I asked to the accused where is bath room. As per the instruction of the office I took out my hand-cur-chief from left pocket of my full pant and wipe out my face by that hand-cur-chief. Accused took doubt about my act and he threw those notes. I came out of office and staff of A.C.B. came inside the office near the accused and caught hold him. Thereafter I took my motor cycle and went away. I did not narrate this incident to anybody. A.C.B. officer did not record my statement.
It must be borne in mind that P.W.1 was not declared
hostile. In the cross-examination, P.W.1 complainant has deposed
thus:
I have not stated in my statement to A.C.B. officer as well in my complaint that the accused demanded Rs.1,500/- for installing telephone connection, when I met to accused as per say of Wireman. It is true when I handed over Rs.500/- to accused for demand note at that time accused did not ask me about the remaining about. It is true at that time accused also not told me that Rs.1,000/- more is required for telephone connection. It is true after depositing Rs.500/- towards demand note I never met to the accused till filing of my complaint nor accused demand Rs.1,000/- from me.
It is true the accused came out from the cabin and inquired me why my shop was closed since two days. I told him that my mother was not keeping well therefore my shop was closed. It is true during this discussion accused did not demand any amount from me. As per the say of wireman I gave the amount in the hand of accused. It is true the accused was not willing to accept the money therefore he immediately dropped the amount on the floor. It is true till accused dropped the currency notes on the floor the panch No.1 Mr. Kadu was not with me and he reached there later on.
The evidence of the complainant, who is not declared
hostile and whose testimony must ordinarily bind the prosecution,
has not supported the prosecution. Au contraire, P.W.1
complainant absolves the accused of any misdeed or misconduct.
The shadow panch (P.W.2) supports the prosecution
version and has deposed thus in the examination-in-chief :
Shri Dhondge, made inquiry with the complainant whether his shop is closed, where he had gone. Shri Binjade told him that his mother was ill, therefore the shop was closed. Thereafter the complainant asked Mr.Dhondge what about his telephone connection. Shri Dhondge asked the complainant whether he has brought Rs.1,000/- as demanded by him. The complainant given the answer in affirmative. The tainted notes were took out by the complainant and the accused had accepted that notes. The complainant asked Mr.Dhondge where is the toilet. The complainant took out his hand kerchief and gave pre-determined signal to the raiding party. Shri Dhongade strike out the activity of the complainant therefore he threw the notes in varandha.
In the cross-examination of P.W.2 Manoj Kadu, it is
elicited that the word "ekx.kh" (demand) is an omission viz-a-viz
the statement. According to P.W.2, the demand was made by the
accused in the room, the amount was given in the room and
thereafter the complainant and the accused came out of the room
in the varandha. It is elicited in the evidence of P.W.2 that besides
the accused, two other employees were present in the room.
The Investigating Officer P.W.4 Vinod Pathak admits
that the statements of the two persons in the room Vasant Thate
and Devidas Raut were recorded and the following admission is
extracted on record.
"After perusing the statement of Devidas Raut and Vasant Thate, they did not state that in room of the accused there was money transaction."
The submission of the learned counsel for the accused
is that P.W.1 complainant, who is not declared hostile has falsified
the case of the prosecution and the evidence of P.W.2 Manoj Kadu
is not implicitly reliable. The failure of the prosecution to examine
two witnesses in the room is significant in view of the admission
of P.W.4 Investigating Officer that the two persons in the room
did not state that there was any money transaction in the room of
the accused.
If the evidence is tested on the anvil of the law
enunciated by the Apex Court in the decisions referred to supra, it
is difficult to hold that the prosecution has proved a decisive
demand beyond reasonable doubt.
The counsel for the accused, would further submit
that the cognizance of the offence is void ab initio since the
sanction under Section 19 of the Act is invalid. The Investigating
Officer addressed a communication dated 03.08.2005 to the
Divisional Engineer (Admn.) BSNL, Yavatmal seeking information
about the authority competent to appoint and dismiss the accused.
The reply Exh.56 would reveal that the Investigating Officer
informed that the Chief General Manager, MH Circle, Mumbai is
the officer empowered to appoint and dismiss the appellant.
The learned counsel for the accused would emphasis, that as a
fact the Investigating Officer admits to have sought sanction from
the Chief General Manager, BSNL Maharashtra Circle.
The sanction Exh.47 is accorded by Senior General
Manager and it would be apposite to consider the evidence of
Jairaman Gopala Krishnan (P.W.3) who has granted the sanction.
P.W.3 is Senior General Manager. In the cross-examination of
P.W.3 it is elicited thus:
"It is true Chief General Manager and General Manager are two different authorities. It is true that in the year 2006-2007 Mr. Kuldip Goyal was the Chief General Manager. Mr. Goyal has not given written authority to me for according sanction."
P.W.3 further admits that there is no mention in
Exh.47 that he is the appointing and removing authority of a
Junior Telecom Officer.
Although P.W.3 states in the examination-in-chief
that he is empowered to appoint and dismiss Junior Telecom
Officer, no evidence is brought on record by the prosecution in
support of the said assertion.
P.W.3 states that he received a report from ACB
seeking sanction and the background of the complaint, FIR,
special report of SP ACB, panchnama and the draft sanction.
P.W.3 states that the ACB made available translation of the
documents. In the cross-examination, an attempt is made to bring
on record that the sanction was accorded without application of
mind. In rebuttal, the learned APP submits, that since the facts
constituting the offence are spelt out in the sanction order, no
inference of non-application of mind can be drawn only because
the sanctioning authority is not in a position to recollect certain
details.
I need not record any finding on the submission that
the sanction order is bad in law due to non-application of mind
since the submission of the learned counsel for the accused that in
the teeth of the information provided by B.S.N.L. to the
Investigating Officer the prosecution has not proved that P.W.3
was competent to accord sanction.
In the light of the discussion supra, although I have
recorded a finding the sanction order is bad in law, I do not feel it
necessary to remit the matter back to the B.S.N.L. to consider
grant of sanction in accordance with law since the prosecution has
also failed to prove that the accused demanded illegal
gratification.
In the result, the judgment and order impugned is set
aside.
The accused is acquitted of offence punishable under
Section 7, 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act.
The bail bond of the accused shall stand discharged.
The appeal is allowed.