WAMAN S/O MALHARI JAMBHULKAR vs STATE OF MAHARASHTRA

By this appeal, the appellant has challenged the judgment and order dated 17.03.2003 passed by the Court of Special Judge (Under Prevention of

Corruption Act) and 4th Additional Sessions Judge, Nagpur (Trial Court) in Special Criminal Case No.19 of 1990, whereby the appellant has been

convicted under Section 7 and 13(2) of the Prevention of Corruption Act, 1988 and sentenced to suffer simple imprisonment for periods of six months

and one year on the two counts and also to pay fine of Rs.500/Â​ on each count.

At the relevant time, the appellant was working as a Nazul Surveyor in the City Survey Office at Nagpur. The case of the complainant (PW1)

was that he had submitted an application to the said office on 06.12.1989 for mutation in respect of the house property owned by his father and also

for issuance of the property card to him. As the said application was being processed, the complainant (PW1) went to meet the appellant, who

asked him to deposit Rs.29/ towards fees for obtaining the copy of ""Sanad"", which the complainant (PW1) did in the name of his father. It has

came on record that the appellant had issued a receipt for the said amount but, he demanded a sum of Rs.500/Â from the complainant (PW1) for

issuance of the property card. Since the complainant (PW1) stated that he could not afford to pay the said amount, it was allegedly agreed that the

appellant would take an amount of Rs.100/ for ensuring that the property card was delivered to the complainant (PW1). It was further claimed

that the complainant (PW1) again visited the office of the appellant on 25.01.1990, when the aforesaid demand of Rs.100/Â was reiterated by the

appellant and the complainant (PW1) was asked to come to the office on 29.01.1990. According to the complainant (PW1), as the appellant was

not available in his office on 29.01.1990, he visited the office on 31.01.1990, when the demand was again repeated by the appellant and it was agreed

that the complainant (PW1) would arrange for the amount on 01.02.1990. On this basis, the complainant (PW1) approached the office of

AntiCorruption Bureau, Nagpur and lodged the written complaint on the basis of which, the Investigating Officer (PW4) arranged for the trap to be

executed against the appellant. Two panchas were arranged and other procedures necessary for execution of the trap were undertaken.

On 01.02.1990, the complainant (PW1) and panch no.1 (shadow witness), i.e. PW2, went to the office of the appellant and when the appellant

asked as to whether the complainant (PW1) had brought the amount, the said amount was handed over to the appellant, who took it and after counting

the same with both hands, he put the same in the pocket of his pant. Thereafter, upon a preÂdecided signal being given to the raiding party, which

included Investigating Officer (PW4), the appellant was apprehended. Upon sodium carbonate solution being poured on the hands of the appellant, his

fingers turned violet, thereby showing that he had indeed handled the currency notes handed over by the complainant (PW1) to him. On this basis,

offences under the aforesaid Act were registered against the appellant and he was prosecuted.

In support of its case, the prosecution examined four witnesses, viz. PW1ÂComplainant, PW2ÂShadow witness, PW3ÂPolice official who carried

the property after execution of the trap for analysis and PW4Â​Investigating Officer.

In the proceedings before the trial Court, the complainant (PW1) was declared hostile and he was crossÂexamined by the prosecution. PW2Â‐

Shadow witness did adduce the evidence to the effect that the appellant had demanded amount from the complainant (PW1), which was paid to

him. PW4ÂInvestigating Officer conceded in his crossexamination that although the statement of the appellant was recorded upon execution of the

trap, but, the same was not placed on record. The defence of the appellant was that he was falsely implicated and that in any case, he had no

power or authority to process the application of the complainant (PW1) and to issue the property card to him. On the basis of the evidence and

material on record, the trial Court found that although there were certain discrepancies in the evidence of the complainant (PW1) and PW2ÂShadow

witness, on an overall appreciation of the evidence on record, it was clear that the prosecution had made out its case and that the appellant had failed

to rebut the presumption that operated against him under Section 20 of the aforesaid Act, in view of the clear evidence on record about acceptance of

the bribe amount by the appellant. On this basis, the trial Court convicted and sentenced the appellant.

Mr.R.M. Daga, learned counsel appearing on behalf of the appellant, submitted that the complainant (PW1) had not supported the case of the

prosecution and that he was declared hostile. He had clearly stated in the crossÂexamination that he had submitted the report against the appellant

before the office of the Anti-Corruption Bureau under a wrong impression. This witness nowhere stated about the appellant having made demand

of amount when the trap was executed on 01.02.1990. It was submitted that when the complainant (PW1) himself had not supported the case of

the prosecution, the appellant could not have been convicted. It was also pointed out that PW2Âshadow witness had specifically stated in his

crossÂexamination that before deposing in the Court, he had got necessary information from the office of the Anti-Corruption Bureau and that he had

gone through the contents of panchanama nos.1 and 2 before deposing before the Court. According to the learned counsel, this admission of the

said witness rendered his evidence unreliable and it deserved to be discarded. It was also contended that when PW4ÂInvestigating Officer had

admitted in the crossÂexamination that the statement of the appellant was recorded upon execution of the trap and that the same was not placed on

record before the trial Court, an adverse inference was required to be drawn against the prosecution. On this basis, it was submitted that the

impugned judgment and order deserved to be quashed and set aside. The learned counsel placed reliance on the judgment of the Hon'ble Supreme

Court in the case of Mukhtiar Singh (Since Deceased) Thr. His. L.R. Versus State of Punjab [(2017) 8 SCC 136] and the judgments of this Court

in the cases of Sharad Namdeorao Shirbhate Versus State of Maharashtra [2007 ALL MR (Cri) 352] and Suresh Purushottam Ashtankar versus The

State of Maharashtra & Another [2015 ALL MR (Cri) 4243].

Per contra, Mr.Vishal Gangane, learned Additional Public Prosecutor appearing for the respondentÂState, submitted that although the complainant

(PW1) had turned hostile, his evidence could not be ignored on material particulars supporting the prosecution case and that the evidence of PW2Â‐

Shadow witness could not be discarded only because he had read the panchanamas before his testimony was recorded in the Court. It was

submitted that the trial Court had examined this aspect in detail and that it had correctly concluded that merely because the PW2Shadow witness had

gone through the contents of the panchanamas, it did not render his evidence unreliable. It was submitted that if the evidence on record was

appreciated in its entirety in the correct perspective, the conviction and sentencing of the appellant would be justified. The learned Additional Public

Prosecutor has placed reliance on the judgment of the Hon'ble Supreme Court in the case of C.M. Sharma Versus State of Andhra Pradesh

[(2010) 15 SCC 1] and S.C. Goel Versus State [(2016) 13 SCC 258].

Having heard the learned counsel for the parties, it is evident from the record that the complainant (PW1) himself has not supported the case of the

prosecution. Although, he has narrated the facts pertaining to the demands allegedly made by the appellant prior to execution of the trap, as regards

what happened on the day when the trap was executed, the complainant (PW1) has been absolutely silent on demand of illegal gratification by the

appellant. In fact, this witness only stated that as soon as he went near the accused, he asked the appellant to accept the amount of Rs.100/ and

he put the amount in the pocket of the appellant. In his crossÂexamination, this witness has stated that he had only a doubt in his mind that the

appellant was not giving him the property card because he wanted some money and that it was under this impression that he had lodged report with

the office of Anti-Corruption Bureau. Therefore, as regards demand on the date when the trap was executed, there is absolutely no evidence given

by this witness in support of the prosecution case. In fact, he has disowned his own complaint as having been filed in the office of the Anti-

Corruption Bureau under a mistaken impression. It is only in statements in his examinationÂinÂchief that this witness deposed regarding demand of

illegal gratification allegedly made on occasions earlier to the date of execution of the trap. This renders the evidence of the complainant (PW1),

unreliable.

As regards PW2ÂShadow witness, although this witness has indeed deposed that on the date when the trap was executed he and the complainant

(PW1) had gone to the office of the appellant and the appellant had asked the complainant (PW1) as to whether he had brought the amount.Â

According to this witness, after such a query was made, the complainant (PW1) handed over the said amount to the appellant and thereafter, the

raiding team apprehended the appellant. But, in the crossÂ​examination, the said witness has made following statement.

“Before coming to the Court, I got the necessary information from the ACB office and I had gone through the contents of panchanama nos.1 and

2, before I came to the Court today.â€​

The aforesaid admission made by PW2ÂShadow witness renders his evidence unreliable as per the position of law elucidated by this Court in similar

circumstances. In the case of Suresh Ashtankar Versus The State (Supra), the Division Bench of this Court, while approving the view of the

learned Single Judge of this Court, has held as follows:Â​

“30. In the crossÂexamination, Sharyu (PWÂ1) has admitted as under: “It is true that, today, I have read my statement. It is true that police

had given the same to me. It is true that the said police Officer is sitting in the Court hall.â€​

In the backdrop of the aforesaid evidence, it will be useful to refer reported decision by the learned Single Judge of this Court (R.C. Chavan, J)

reported in 2006(2) Mh.L.J. (Cri) 1210 : [2007 ALL MR (Cri) 352] Sharad s/o Namdeorao Shirbhate vs. State of Maharashtra.

In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PWÂ1) has admitted that the police has read over his

statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus:

“There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the

Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some

material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It

would not be permissible for such witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving

minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of PWÂ2 Prabhakar taken by

learned counsel for the appellant is valid.â€​ (emphasis is supplied by us). We approve the dictum of the learned Single Judge in that behalfâ€​

Therefore, it becomes clear that upon the aforesaid crucial admission made by PW2ÂShadow witness in his crossÂexamination, his entire evidence

becomes unreliable and it has to be discarded.

In this situation, the only evidence that remains on record is that of PW4ÂInvestigating Officer. It is obvious that the appellant could not have

been convicted on the sole testimony of the PW4ÂInvestigating Officer. Yet, the trial Court has convicted the appellant by holding that even if the

evidence of the complainant (PW1) and the PW2ÂShadow Witness as regards demand by the appellant was contradictory but, PW2Shadow witness

had specifically stated in his evidence about demand by the appellant when the trap was executed and that the complainant had indeed stated about

the demand made by the appellant on earlier occasions when he had visited the office of the appellant. Thereafter, the trial Court opined that when

the appellant was found in conscious possession of the smeared currency notes, there was sufficient evidence on record that he not only had

demanded illegal gratification but, he had also accepted the same from the complainant (PW1).

The nature of evidence on record in the present case shows that the evidence of the complainant (PW1) does not support the case of the

prosecution. The evidence of the PW2ÂShadow witness has been rendered unreliable and that it has to be discarded. It is a settled position of

law that proof of mere acceptance of smeared currency notes on execution of a trap would not be sufficient to convict an accused under the

provisions of the aforesaid Act. The proof of demand is a sine qua non which must first be proved by the prosecution beyond reasonable doubt and

it is thereafter that the presumption under section 20 of the said Act would operate.  In the case of Mukhtiar Singh Versus State (Supra),

the Hon'ble Supreme Court has held as follows:Â​

“14. The indispensability of the proof of demand and illegal gratification in establishing a charge under sections 7 and 13 of the Act, has by now

engaged the attention of this Court on umpteen occasions. In A.Subair vs. State of Kerala, 2009(4) Mh.L.J. (Cri.)(S.C.) 465 = (2009) 6 SCC

587, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand

and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation

further, it was exposited in State of Kerala vs. C.P. Rao (2011) 6 SCC 450 that mere recovery by itself of the amount said to have been paid by

way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that

the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

In P.Satyanarayana Murthy (supra), this Court took note of its verdict in B.Jayaraj vs. State of A.P., 2014 MhLJ Online (Cri)(S.C.) 33 =

(2014) 13 SCC 55 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an

offence under section 7 as well as section 13(1) (d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for

illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage

cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for

an offence under sections 7 and 13 of the Act, it was held as well qua section 20 of the Act that any presumption thereunder would arise only on such

proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the prerequisites of sections 7 and 13

and the proof thereof summed up its conclusions as hereunder:Â​

The proof of demand of illegal gratification, thus, is the gravamen of the offence under sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence

thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof,

dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary,

failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the

offence under sections 7 and 13 of the Act would not entail his conviction thereunder.â€​

In the present case, there is absolutely no evidence on record to prove that the appellant had indeed made demand of illegal gratification when the

trap was executed on 01.02.1990. The evidence of the complainant (PW1) is of no assistance and the evidence of PW2Shadow witness is

rendered unreliable. Therefore, it would not be safe at all to reach a conclusion that the prosecution case was proved beyond reasonable doubt in

the present case. In the facts of the present case, it becomes evident that the learned Additional Public Prosecutor is not justified in relying on the

judgment of the Hon'ble Supreme Court in the case of S.K. Goel Versus State (Supra) to contend that the solitary evidence of the complainant could

be sufficient to prove the case of the prosecution against the appellant, even if the evidence of PW2Âshadow witness was discarded. This is

because in the said case before the Hon'ble Supreme Court, it was found that although the complainant in that case had been declared hostile but, so

far as the demand made by the accused was concerned, the evidence of the complainant was clear and categorical. In the present case, the

complainant (PW1) has not stated anything in support of the prosecution case regarding the demand made by the appellant on the day when the trap

was executed. Therefore, this being a distinguishing feature, the aforesaid judgment of the Hon'ble Supreme Court would be of no assistance to the

prosecution.Â

The learned Additional Public Prosecutor has also sought to rely on the judgment of the Hon'ble Supreme Court in the case of C.M.SharmaÂ

Versus State (Supra) to contend that even if there was no shadow witness to support the evidence of the complainant, the accused could still be

convicted under the provisions of the aforesaid Act. But, when the complainant (PW1) in the present case has turned hostile and his evidence does

not inspire confidence at all, the appellant could not be convicted only on the evidence of the complainant (PW1).Â

Another aspect of the present case is that the PW4ÂInvestigating Officer has given a crucial admission in crossÂexamination to the effect that

the statement of the appellant was recorded after the trap was executed. But, the said statement was never placed on record by the prosecution.Â

In this situation, an adverse inference needs to be drawn against the prosecution. It has to be presumed that the said explanation of the appellant

was not placed on record by the prosecution as it would not have favoured the prosecution case and that the said document was deliberately

suppressed. This would be evident from the position of law as laid down by this Court in the case of Bismillakha s/o Salarkha Pathan VersusÂ

State of Maharashtra [2004 ALL MR (Cri) 1341], wherein it has been observed as follows :Â​

“However, there is one more important circumstance and i.e the statement to be found in the post trap panchanama to the effect that immediately

after the trap was sprung, both the accused were asked by P.I Dhok and they gave their version regarding acceptance of money. It is the express

prosecution case which can be found in the panchnama that the version given by accused was reduced to writing and signed by the panchas as well

as P.I Dhok. The contents of what was mentioned in these two writings was not found in the panchanama as those were separate documents.

However, for reasons best known to the prosecution, these documents have not been brought before the Court in the trial. The panchas examined as

well as P.W 7 Dhok but do not utter a single word about this first version given by the two accused in writing immediately after the trap was sprung.

This circumstance of suppressing the first version as given by two accused, according to him, is a very important circumstance which raises a shadow

of doubt about the veracity of the prosecution case. The duty of the prosecution is to bring the entire truth as found before the Court. It appears to me

that these two vital documents have been kept back from the trial. In my view, in such circumstances, these writings were evidence which could be

produced and which were in the hands of the Investigating agency and which could have been produced as evidence in the Court but was not

produced. By virtue of Section 114 of the Indian Evidence Act, the Court would be entitled to presume that had these documents been produced, they

would not have favoured the prosecution which had withheld these documents. Useful reference can be made to illustration (g) of Section 114 of the

Indian Evidence Act, in this regard.â€​     Â

Thus, it becomes evident that on this count also, the prosecution case is rendered weak and a conviction on the basis of the evidence on record cannot

be sustained.

In view of the fact that the evidence of both the prosecution witnesses in the form of the complainant (PW1) and the PW2ÂShadow witness is

rendered wholly unreliable, it cannot be said that the prosecution case has been proved beyond reasonable doubt in the present case. The trial Court

had failed to properly appreciate the evidence of the prosecution witnesses. This has rendered the impugned judgment and order erroneous and

unsustainable.

In view of the above, the present appeal is allowed. The impugned judgment and order of the trial Court is set aside and the appellant is

acquitted of the charges levelled against him. His bailÂbond stands cancelled. The fine amount, if any, paid by the appellant shall be refunded to

him.