Bhaidas Chhagan Pawar vs State Of Maharashtra

Heard Mr. Waramaa, learned Advocate for the appellant, and Mr. Khan, learned Additional Public Prosecutor for the respondent/State.

By way of this criminal appeal, the appellant is challenging the impugned judgment and order dated 04/07/2015, passed by the learned Special Judge, Dhule, in Special Case (ACB) No.19/2012, whereby the appellant came to be convicted for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short ‘P.C.Act’) and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default of payment of fine, to suffer further simple imprisonment for six months. He was further convicted under Section 13(1)(d) read with Section 13(2) of the P.C.Act and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.2,000/-, in default of payment of fine, to suffer further simple imprisonment for three months. Both the substantive sentences were directed to be run concurrently.

The factual matrix of the case is as under:

Learned Advocate for the appellant Mr. Waramaa vehemently submits that the prosecution has virtually failed to prove its case beyond reasonable doubt. According to him, the testimonies of the prosecution witnesses are not at all reliable and trustworthy. He submits that PW-1/complainant failed to depose that the accused had demanded any bribe amount from him and that he had paid the said amount as an illegal gratification. He then submits that the appellant has been falsely implicated in this crime.

Mr Waramaa then submits that the judgment of conviction and sentence awarded by the learned Trial Court is contrary to the law and the evidence available on record. He further submits that the Trial Court has failed to consider the evidence in its proper perspective and has virtually ignored the material contradictions and inconsistencies appearing in the statements of the prosecution witnesses.

Mr Waramaa further submits that the Investigating Officer has not seized the voice recorder from the complainant. It is also not pointed out as to why the broken voice recorder was not seized by the Investigating Officer. It was also tried to be pointed out that, when the complainant had approached the ACB office for the first time, the two panchas were already present in the office of the Anti-Corruption Bureau, which according to the accused, indicates false implication of the appellant. Therefore, according to learned Advocate for applicant, the appellant/accused cannot be convicted under the provisions of the Prevention of Corruption Act.

Mr. Waramaa further submits that there are too many contradictions and omissions in the testimonies of the prosecution witnesses which are sufficient to destroy the prosecution case. The evidence of the prosecution is therefore not at all strong enough to sustain the conviction of the appellant/accused.

Mr. Waramaa further argues that, as per the deposition of PW-1/complainant, when he had reached the Railway platform, he had fallen down and the voice recorder was damaged. However, PW-4/Investigating Officer had admitted that, it is not true that the voice recorder was damaged during the trap and that he had not seized or produced the damaged voice recorder before the Court. Thus, according to him, both the versions are contrary on the point of the voice recorder.

Mr Waramaa then submits that PW-2/panch witness, had admitted in his deposition by stating that it did not happen that when the accused first time met them at the platform and demanded the bribe amount and accepted it, and thereafter on a pre-determined signal, the raiding party rushed. Thus, on the point of meeting of the accused and the demand, the evidence is contrary and not reliable. In view of such contradictions and non-corroboration, there is a serious doubt in the prosecution case, and therefore, the case against the appellant cannot be said to be proved beyond reasonable doubts. He, therefore, prays for allowing the present Criminal Appeal by acquitting the appellant/accused.

Per contra, learned A.P.P. Mr. Khan strongly opposes the present appeal. According to him, the prosecution has fully established the charge against the appellant/accused. The evidence of the prosecution witnesses is trustworthy and reliable. He further submits that the appellant having demanded and accepted the bribe amount is liable to be convicted. He then submits that the amount demanded by the appellant has been recovered from possession of the appellant, and as such, the appellant/accused is guilty of the offence punishable under Section 7 and Section 13(1)(d) of the P.C.Act.

Learned APP further submits that the appellant is involved in a serious crime, and as such, no leniency be shown towards him. According to him, the minor variations do not affect the substance of demand and acceptance. On the point of demand, the evidence of PW-1/complainant is materially corroborated by PW-2 and PW-4. PW-3 has also proved the sanction. Thus, according to learned APP Mr. Khan, the oral evidence is supported by the pre-trap and post-trap panchnamas, recovery of pre-determined currency notes and anthracene traces. Thus, according to him, the prosecution has proved the demand and voluntary acceptance beyond reasonable doubt. The appellant having failed to rebut the statutory presumption is therefore liable to be convicted and the judgment passed by the learned trial Court deserves to be maintained. He, therefore, prays for dismissal of the instant criminal appeal.

Before examining the evidence on record, it would be fruitful to discuss the legal provisions of the Prevention of Corruption Act. The offence in the present case relates to the year 2011. Therefore, the provisions of the Prevention of Corruption Act, 1988, as applicable on the date of the alleged offence, are required to be considered. Section 7 of the P.C.Act, as it then stood, dealt with acceptance or obtaining of gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act or for showing or forbearing to show favour or disfavour in the exercise of official functions.

The Hon'ble Apex Court in P. Satyanarayana Murthy v. District Inspector of Police & anr., (2015) 10 SCC 152, held that proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the P.C.Act, and in absence thereof, the charge would fail. Mere acceptance of any amount allegedly by way of an illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge under the aforesaid sections of the P.C. Act. Failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the accused person for the offence punishable under Sections 7 or 13 of the P.C.Act would not entail his conviction thereunder.

The Constitution Bench of the Hon'ble Apex Court in the judgment of Neeraj Dutta v. State (Government of NCT of Delhi), (2023) 4 SCC 731, has also considered a question as to whether, in the absence of direct or primary evidence of demand of illegal gratification, an inferential deduction of culpability/guilt of a public servant can be drawn on the basis of other evidence adduced by the prosecution. The Hon'ble Apex Court, in paragraph 68 of the said judgment, summarized the legal position and held that proof of demand and acceptance of illegal gratification by a public servant, as a fact in issue, by the prosecution is a sine qua non to establish the guilt of the accused/public servant under Sections 7 and 13(1)(d)(i) and (ii) of the P.C.Act. The prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. Such fact in issue can be proved either by direct evidence, which can be in the nature of oral or documentary evidence, or by circumstantial evidence in the absence of direct oral and documentary evidence. The Constitution Bench further clarified that, where the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification, which is received by the public servant, the prior demand emanating from the public servant has to be proved as a fact in issue. Mere acceptance or receipt of illegal gratification, without proof of the necessary foundational facts, would not by itself make out the offence.

In the present case, the learned APP also relies upon the statutory presumption under Section 20 of the P.C.Act. However, the presumption under Section 20 cannot dispense with proof of the foundational facts required for bringing home the offence. The prosecution must first establish, by reliable evidence, the necessary facts relating to the demand and acceptance of illegal gratification. Only thereafter can the statutory presumption be considered in accordance with law. In the present case, when the evidence regarding demand and acceptance itself is found to be doubtful, the question of drawing the statutory presumption does not arise.

Now coming to the facts of the present case, the complainant/PW-1 had deposed that, on 13/10/2011, he had gone to meet the appellant/accused at Police Station, Shindkheda, at about 6:00 p.m. The appellant/accused allegedly demanded Rs.2,500/- from him for initiating action against his son-in-law. However, since he was not having money and was not willing to pay the bribe, on the next day, i.e. on 14/10/2011, he went to the office of the Anti-Corruption Bureau, Dhule and lodged his complaint, which came to be reduced into writing at Exhibit 10. After reporting the incident to the Anti-Corruption Bureau office and after the Investigating Officer laid the trap, the complainant had deposed that he, along with panch No.1, went to the Railway Station by walk. The accused came towards him. It was about 2:40 p.m. While proceeding towards the Railway Station, he had fallen and the voice recorder might have broken. Thereafter, the accused came to him and asked him whether he had brought the amount. The complainant told him that he had brought the amount from his son. Accordingly, he gave the amount to the accused as demanded. However, the said portion regarding the alleged demand and payment of the amount is stated to be an omission from the statement of the complainant recorded by the Police, and therefore, the exact nature and proof of the said omission can be considered with reference to the deposition of the Investigating Officer and the relevant portion of the statement.

The aforesaid portion of the deposition, if tried to be corroborated with the evidence of PW-2/panch witness, would reveal that PW-2 states in his examination-in-chief that, one voice recorder which was attached to the shirt of the complainant while they were going towards the Railway Station by walking, and as the complainant had fallen on the ground, the said voice recorder was damaged. PW-2, the shadow panch, further states that the accused came there on the platform of the Railway Station and asked the complainant whether he had brought the amount. The complainant told him that he had collected the amount from others and kept it with his son and told him that he would bring the said amount. He told the accused to wait on the platform. Thereafter, the complainant and the said panch witness came out of the platform towards the hotel. There they told the raiding party that the accused had come and that he had asked the complainant about the amount. Thereafter, the said panch and the complainant again came to the platform. The complainant and the accused talked with each other and the accused demanded the money. Accordingly, the complainant removed the amount from his pocket and gave it to the accused in his presence. This aspect goes to show that the amount was sought to be given on the second attempt and the said second attempt is not disclosed by the complainant in his deposition. Thus, on the point of demand, there is a discrepancy between the deposition of PW-1/complainant and PW-2/panch witness. The manner in which the alleged demand and acceptance took place is, therefore, not free from doubt.

The prosecution is required to prove its case beyond reasonable doubt. In a case under the Prevention of Corruption Act, proof of demand and acceptance of illegal gratification assumes significance. The evidence brought by the prosecution regarding the demand and acceptance of the bribe amount by the appellant/accused is not found to be sufficiently trustworthy and reliable so as to sustain the conviction.

The fact that the tainted amount was subsequently recovered from the possession of the appellant/accused and anthracene traces were found cannot, by itself, substitute the requirement of proving the necessary foundational facts regarding demand and acceptance. In the facts of the present case, the evidence regarding the demand and the circumstances in which the amount came to be handed over, creates a reasonable doubt.

In view of the aforesaid background, the witnesses cannot be safely relied upon to prove the case of the prosecution against the appellant/accused beyond reasonable doubt. Consequently, I am of the opinion that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Having observed thus, I find that the conviction of the appellant under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act is not sustainable. Therefore, the appellant has made out a case and the appeal deserves to be allowed. Hence, I pass the following order: