Ramdas vs The State of Maharashtra

P.N. Deshmukh, J.—This criminal appeal takes exception to the judgment and order dated 3/5/2001 passed by the learned Special Court, Yavatmal in Special Case No. 3/1992, whereby appellant is convicted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and is sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs. 2000/- and in default, to suffer rigorous imprisonment for one month for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 and to undergo rigorous imprisonment for five years and to pay fine of Rs. 2000/-, in default to suffer rigorous imprisonment for one month for the offence punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

In brief, it is the case of prosecution that field Survey No. 43 is owned by complainant Uttam and there is approach way to go to the said field, which is passing through the field of Jagan Bharti, which way is used by complainant and other villagers. However, Jagan Bharti was obstructing villagers from passing through it and had put thorny fencing and as such, since way was closed, complainant and other villagers had applied to Tahsildar, Darwha about the said incident and on taking cognizance of their complaint, way was made open. According to further case of prosecution, on 27/8/1991 at about 7 p.m. when complainant was returning back from his field, he was obstructed by Jagan Bharti, who extended him threats, of which complainant lodged complaint in the same night with Police Station, Darwha. In the morning of 29/8/1991, appellant, who was then working as Head Constable in Police Station, Darwha visited village Daheli to make enquiry and informed complainant that he had received report against him and five others and with reference to it, directed complainant and others to attend Police Station, Darwha on 2/9/1991 for the purpose of enquiry. Accordingly complainant along with his brothers, namely, Shankar and Rambhau, Bapurao (his nephew), Shrihari and Gajanan visited Police Station where Jagan Bharti was already present and their statements were recorded. At the same time, appellant is alleged to have informed complainant and all those, who accompanied him to Police Station, that he would arrest them and send them to Jail and prepare case against them so that they would be behind the bars till Pola and Ganpati festivals and for not doing so, it is alleged that appellant demanded bribe of Rs. 2000/-. The amount being excessive was further negotiated to Rs. 1300/-, out of which amount of Rs. 500/- was paid on 2/9/1991 itself and appellant asked complainant to pay remaining amount of Rs. 800/- on 5/9/1991 at 10 - 11 a.m. directing complainant and all those, who had accompanied him, to see him on that date along with sureties.

Since complainant was not intending to make payment of bribe amount of Rs. 800/-, he visited the office of Anti Corruption Bureau, Yavatmal and lodged his report (Exh. 24), which was received by P.W.4 Deshpande, Investigating Officer. The Investigating Officer thereafter arranged for two independent panch witnesses being P.W.2 Shrihari Thamke and one Shriram Audarya from the Office of Collector and made necessary arrangement to lay a trap by giving instructions to complainant and both panchas and by giving demonstration of effect of phenolphthalein powder with sodium carbonate solution, upon which complainant and panchas learnt that when phenolphthalein powder comes in contact with solution of sodium carbonate, it turns purple. Complainant then produced amount of Rs. 800/- in the office of Anti Corruption Bureau, which was smeared with phenolphthalein powder and was kept in the pocket of complainant with instructions to pay to appellant only on demand. On drawing pre-trap panchanama, Investigating Officer along with panchas, complainant and other members of the raiding team proceeded to Darwha at about 10 a.m. Complainant and P.W.2 Shrihari, who acted as first panch, went to Darwha Police Station at about 11.15 a.m. However, appellant was not present there and, therefore, complainant and P.W.2 Shrihari proceeded towards Police quarters when appellant met them on way and they went to his quarter. After sometime, members of the raiding team received the proposed signal and accordingly members of the raiding team apprehended appellant. On obtaining his personal search, bribe amount of Rs. 800/- came to be recovered from left side pocket of appellant and on testing both hands of appellant in the solution of sodium carbonate, it turned purple and on sprinkling said solution on the bribe amount, purple colour dots were seen on the currency notes. Post trap panchanama of above facts came to be drawn and on the basis of report lodged by P.W.4 Deshpande, Investigating Officer, offences came to be registered vide Crime No. 497/91 under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988, which was further investigated.

During the course of investigation, Investigating Officer recorded statements of witnesses including panchas and forwarded articles to Chemical Analyser and on receipt of sanction from competent Authority to prosecute appellant, filed charge-sheet in the Special Court. Charge was framed against appellant for the said offences, to which he pleaded not guilty and claimed to be tried. It is the case of appellant that amount of Rs. 800/- which was accepted by him on 4/9/1991 from complainant was provided to him by his cousin brother Satish Gawande, which was required by him for providing medical treatment to his ailing father, however, he came to be falsely implicated.

In order to prove the charge levelled against appellant, prosecution examined P.W.1 Uttam (complainant), P.W.2 Shrihari (panch No. 1), who had accompanied complainant at the time of trap, P.W.3 Ankush Dhanvijay, Sanctioning Authority and concluded evidence by examining P.W.4 Sanjay Deshpande, Investigating Officer.

Heard Shri Kariya, learned Counsel for appellant and Shri Uke, learned Additional Public Prosecutor for respondent. To effectively evaluate the submissions advanced by learned Counsel for both sides, I have scrutinized evidence with their assistance.

P.W.1 Uttam (complainant) has stated that there was dispute between him and one Jagan Bharti with respect to approach way to his field, of which cases were also pending before Tahsildar. He has further stated about Jagan Bharti obstructing his way on 27/8/1991 and about lodging report against him of the incident. He has further stated that two days thereafter, accused who was then posted as Beat Jamadar, arrived in the village for enquiry and directed complainant and 4-5 other persons to visit Police Station, Darwha on 2/9/1991. Accordingly complainant and others visited said Police Station when accused informed that case would be registered against them on the basis of report lodged by Jagan Bharti and accused demanded Rs. 1300/- from complainant and 4-5 other persons for not preparing case, out of which amount of Rs. 500/- was paid immediately by brother of complainant, namely, Rambhau and remaining amount was agreed to be paid and accepted on 5/9/1991 by accused at his house and for release of complainant and others on their furnishing sureties.

Complainant has further stated that since he was not interested in making payment of bribe amount, he lodged his report (Exh. 24) with Anti Corruption Bureau, Yavatmal, which was recorded by P.W.4 Deshpande, Investigating Officer and he directed complainant to visit Office of Anti Corruption Bureau on the following day, i.e. on 5/9/1991 at 7 a.m. Complainant has further stated that accordingly he remained present in that office when he was introduced to two panchas and phenolphthalein powder was applied to currency notes of Rs. 800/-produced by him, which were kept in the pocket of his baniyan and he was instructed to make payment only on demand by accused. He has further stated that thereafter he accompanied by Investigating Officer, panchas and two Constables reached Darwha around 11 A.M. and he along with P.W.2 Shrihari and two Constables proceeded to Police Station, Darwha. However, on reaching Police Station, Darwha, they were informed that accused was not present in the Police Station and he thus along with P.W.2 Shrihari went to the house of accused. However, accused was not present in his house also and thus, they returned back and were passing through road when they met accused and accompanied him back to his home. Complainant has further stated that accused enquired about the sureties to which complainant replied in affirmative and thereafter enquired about money as told, to which complainant replied in affirmative and then accused asked him to pay the amount, upon which complainant took out the amount from his baniyan and paid to accused, which he accepted by his right hand and kept in his left side pant pocket. It is further stated by complainant that he thereafter came out of the house of accused and gave proposed signal by flying his handkerchief when Investigating Officer and other members of the raiding team arrived and apprehended accused.

Complainant has admitted in the cross-examination that on 2/9/1991 in the Police Station for about one and half hours his statement was recorded along with statements of 4-5 persons, who had accompanied him, by accused personally and after recording of statements, he and others were asked to go with direction to come on 5/9/1991 along with sureties as accused wanted to seek permission of his superior Officer. Tenor of his further evidence suggests that he was not happy since he along with his brothers were called by accused in Police Station with reference to enquiry of a report lodged by Jagan Bharti. The above aspects appear to be substantiated from his further evidence when he has admitted that on 4/9/1991 on visiting Office of Anti Corruption Bureau, he had informed the Officer that without any fault of his and his brothers, they were asked to attend Police Station, Darwha on 5/9/1991 along with sureties by accused. Complainant has further admitted that due to above, he was being troubled along with others and, therefore, he had requested Anti Corruption Bureau to take some action against accused. It has further come on record that in the background of above facts, the Officer of Anti Corruption Bureau had asked complainant to give report against accused that accused had demanded money and, therefore, amount would be paid to him on 5/9/1991.

In view of above evidence, it is noted that complainant on 4/9/1991 had visited office of Anti Corruption Bureau since he found that he was being troubled by accused, who was investigating the report lodged by Jagan Bharti and had requested Anti Corruption Bureau to take action against accused, upon which officials of Anti Corruption Bureau asked him to lodge report against accused that he had demanded money.

Keeping above evidence in mind, when further evidence of complainant is considered, it is noted that though according to the case of complainant, accused had demanded an amount of Rs. 800/- to be paid on 5/9/1991 at his home, complainant along with panch instead of going to the house of accused had visited Police Station where accused was not found and had then visited his house. On this aspect, it has further come in the cross-examination of complainant that after reaching Darwha Police Station, since complainant did not find accused in the Police Station and it was informed that his father was sick and he was on leave, P.W.4 Deshpande, Investigating Officer directed complainant to go to the house of accused to meet him and thus, complainant and panch were on their way to the house of accused when accused met them. Complainant has admitted that after going to the house of accused by following him, he gave him the amount and then gave proposed signal. Complainant has specifically admitted that in the house of accused, no talk between him and accused took place.

When above admissions of complainant are considered, it is established that it is complainant, who on reaching the house of accused, made payment of money to accused though there was no specific demand made by him. According to complainant''s evidence, after he went to the house of accused, no conversation took place between him and accused.

Even on the point of bribe amount, case of prosecution is not consistent as from the evidence of complainant, the amount alleged to have been demanded by accused is stated to be Rs. 1300/-, out of which amount of Rs. 500/- was paid on 2/9/1991 and balance amount of Rs. 800/- was agreed to be paid on 5/9/1991 while according to contents of the report (Exh. 24), the amount demanded by accused is stated to be Rs. 2000/-, which was further negotiated to Rs. 1300/-. Moreover, it is material to note that though it is the case of prosecution that bribe amount was demanded by accused from complainant in the presence of his two brothers, namely, Shankar and Rambhau, his nephew Bapurao, one Shrihari and his son Gajanan in the Police Station, neither of them is examined to corroborate the version of complainant. No satisfactory explanation is put forth by the prosecution for non-examination of any of these witnesses.

Having considered above discussed evidence, evidence of P.W.1 Uttam (complainant) does not inspire confidence to be acted upon in view of settled legal principle that where witness makes two inconsistent statements in his evidence either at one stage or two stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based upon evidence of such witness.

The evidence of P.W.2 Shrihari, first panch accompanying complainant on 5/9/1991, has established that on 4/9/1991 he attended office of Anti Corruption Bureau and as per instructions of the Investigating Officer, attended the said office on the following day when he was introduced to complainant and was given demonstration of effect of phenolphthalein powder on sodium carbonate solution and has further stated about his being instructed by the Investigating Officer and has proved pre-trap panchanama. On the point of trap, he has stated that after reaching Darwha, he along with complainant went to Police Station, Darwha and enquired about accused when he was reported to be on leave and was informed that he might be at his home. Therefore, he along with complainant went to the house of accused. This piece of evidence of P.W.2 Shrihari does not corroborate the case of complainant that accused had demanded bribe amount to be accepted at his house as according to the independent witness, after reaching Police Station since accused was informed to be not present there and was further informed to be in the house, complainant and P.W.2 Shrihari decided to go to his house. Moreover, if it is the case of complainant that amount was agreed to be accepted by accused in his house, there was no reason for complainant and panch witness to visit Police Station. No explanation is put forth by the prosecution on this aspect. P.W.2 Shrihari has further stated that after reaching the house of accused, complainant requested him to prepare a case and let him and others to be free on that day itself, upon which accused enquired about amount, to which complainant replied in affirmative and then accused directed him to pay the same, which was accordingly tendered by complainant. He has further stated that they then came out of the house upto road and thereafter complainant gave proposed signal when two Constables arrived and apprehended accused and removed amount from his pant pocket.

In the cross-examination, P.W.2 Shrihari has admitted that in the report (Exh. 24) complainant has stated that amount of Rs. 800/- was agreed to be accepted by accused in Police Station on 5/9/1991. The contents of report (Exh. 24) as already stated earlier, are not corroborating to oral version of complainant as according to his evidence, said amount was agreed to be accepted by complainant at his home on 5/9/1991.

In contrast to the evidence of complainant, who has stated that since accused was not found in the Police Station, it is Investigating Officer, who instructed him to go to the house of accused, P.W.2 Shrihari has stated that it was the decision of complainant Uttam to go to the house of accused when he was not found present in the Police Station as in the Police Station, a Constable, who was present, had informed that accused might be in his house.

From above discussed evidence, it is also noted that prosecution has failed to establish the place where accused is alleged to have agreed to accept the bribe money. Even otherwise, P.W.2 Shrihari has admitted that on reaching the house of accused with complainant when complainant informed him to free him today itself by not preparing a serious case against him and others, accused had not specifically demanded any amount from complainant for doing that work. Therefore, I do not find it safe to rely upon the case of prosecution to hold that prosecution has established its case on the point of first and subsequent demands of accused for bribe amount and further on the point of acceptance of bribe, though from the evidence of these witnesses and from the post trap panchanama, amount of Rs. 800/- is found to have been recovered from the left pant pocket of accused.

In view of above discussed facts, I find it useful to refer to the case of State of Punjab Vs. Madan Mohan Lal Verma, AIR 2013 SC 3368 : (2013) CriLJ 4050 : (2013) 3 RCR(Criminal) 972 : (2013) 10 SCALE 211 : (2013) 14 SCC 153 : (2013) 217 TAXMAN 402 , wherein in para 7 of the judgment, it is observed thus :

"7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act, 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain, how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the Court may look for independent corroboration before convicting the accused person."

In view of above settled legal position and as evidence of complainant and P.W.2 Shrihari is found not reliable, prosecution cannot be said to have established its case. Similarly, mere recovery of tainted currency notes itself would not arise any presumption against the appellant nor it is sufficient to prove the offence against the appellant. In that view of the matter, I further find it useful to refer to the decision of the Supreme Court in the case 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 . The Supreme Court in that judgment has held that mere recovery of tainted notes divorced from the evidence in respect of demand and acceptance would not amount to establishing the offence against appellant beyond reasonable doubt.

Even otherwise, another material point, which needs consideration, is about explanation of accused, which has nowhere come on record. According to evidence of P.W.2 Shrihari, he had read over explanation tendered by accused to P.W.4 Deshpande, Investigating Officer wherein he had stated that he had demanded amount from his Aunt''s son, namely, Gawande from his village as his father was sick. Similarly, it has come in the evidence of P.W.4 Deshpande, Investigating Officer that on his enquiry with accused, he had tendered his explanation in writing. From the evidence of these two witnesses, it has thus come on record that immediately after the trap, on apprehension of accused, he had tendered his explanation in writing which, according to independent witnesses, is that amount accepted by accused was sent by one Gawande, cousin brother of accused, through complainant, which was required by accused for providing medical treatment to his father. Admittedly, no investigation appears to have been carried out on the explanation tendered by accused nor any reference is found in the post trap panchanama about explanation given by accused immediately after his apprehension. In fact, from the above discussed evidence, it has come on record that when complainant and P.W.2 Shrihari visited Police Station on 5/9/1991 they were informed that accused was not present in Police Station and was on leave since his father was sick. In his statement under Section 313 of Code of Criminal Procedure, accused has come out with a specific case that amount of Rs. 800/- paid by complainant to him was sent by Satish Gawande, which he accepted, but was implicated on the basis of false report.

In the background of above evidence, I find it useful to rely upon the case of Bismillakha Pathan Vs. State of Maharashtra where in similar set of circumstances as is referred above, immediately after the trap, statement of accused was recorded regarding his alleged acceptance of money which was reduced into writing, however, said writing was not reproduced in the post trap panchanama. It was thus observed that circumstance of suppressing best version given by accused being an important circumstance raises a shadow of doubt about veracity of prosecution case.

In the appeal in hand also, there is no reference of explanation given by accused or its sum and substance in the post trap panchanama. It is the duty of prosecution to bring entire truth on record. However, on not mentioning of such material aspect in the post trap panchanama, the only inference that can be drawn is that such explanation is not brought on record since it is not supporting the case of prosecution.

In the background of above facts, by virtue of Section 114 of Indian Evidence Act, Court is entitled to presume that explanation which was admittedly tendered by accused, has been withheld by prosecution since it was favouring accused. For this purpose, reference can be usefully made to the illustration (g) of Section 114 of Indian Evidence Act.

Having considered uncorroborated testimony of complainant which, even otherwise, is found inconsistent with the evidence of P.W.2 Shrihari, independent panch as well as contents of the report (Exh. 24) on material aspect, I find this to be a fit case where accused is entitled to benefit of doubt. Hence, I pass the following order :

Order

The criminal appeal is allowed. The impugned judgment and order dated 3.5.2001 passed by the Special Court, Yavatmal in Special Case No. 3/1992, thereby convicting and sentencing the appellant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 is quashed and set aside. The appellant is acquitted of the said offences. The bail bonds of the appellant stand cancelled. The fine amount, if any paid, be refunded back to the appellant.