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Judgment
Heard learned Advocate Mr Chatterji for the appellant and learned APP Mr Sangle for the respondent/State.
By this appeal, the appellant is challenging the judgment and order dated 24/09/2004 passed by the learned Special Judge, Ahmednagar in Special Case No. (A/C) No.04/1998, wherein he came to be convicted and sentenced for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short “the said Act”).
The prosecution story in short is as under :-
The appellant/accused No.1 was working as Section Officer and accused No.2 was working as Clerk. The complainant Haridas Sonawane, husband of one Medical Officer, namely, Sharda, lodged a complaint in the office of Anti Corruption Bureau. His wife was working as Medical Officer in Zilla Parishad, Health Department and was posted at village Kohane, Tal. Akole, Dist. Ahmednagar. The complainant was working at village Wangani, Tq. Ambarnath, Dist. Thane. The Complainant stated that, one Dr. Salunke was working at Thane Zilla Parishad. Said Dr. Salunke and his wife had moved joint application in respect of their mutual transfer to their respective Zilla Parishads, vide application on 24/01/1997.
In pursuance of said application, the complainant and his wife came to Zilla Parishad office, Ahmednagar on 31/01/1997 and met Mr Magare, who was working as the Deputy Chief Executive Officer. Said Magare informed them to meet accused No.2, who was working as Senior Clerk in Health Department, Zilla Parishad, Ahmednagar. Said accused No.2 demanded Rs.500/- for putting up file for sanction. He told them to meet accused No.1 and accordingly, they met accused No.1. It is alleged that accused No.1 informed them that unless Rs.500/- is paid, the file would not be proceeded further. Thereafter, complainant told him that he is not having Rs.500/- and he will bring it from his relative and went to his relative and collected Rs.500/-.
The complainant went to ACB office and lodged complaint. Deputy Superintendent of Police Mr Ingawale called two persons to act as panch. Accordingly, amount of Rs.500/- in denomination of Rs.100/- each were used and currency numbers were noted down. Anthracene powder came to be applied on the notes and necessary instructions were given to complainant and panch. Accordingly, pre-trap panchnama came to have been drawn.
On 31/01/1997 at about 4:50 p.m., the raiding party left for raid to the office of Zilla Parishad Health Department. Complainant alongwith panch went to table of accused No.2. Complainant told accused No.2 that he had brought the amount which he had demanded and asked about his work. Accused No.2, by sign, told him to go to accused No.1. Accordingly, complainant and panch No.1 went to table of accused No.1/Deodatta Salve/appellant herein. Thereafter, both the accused alongwith one person came out to have tea. The complainant and panch were also followed them. After having tea, accused were returned back to the office. Complainant once again met accused No.1. Accused No.1 got up and went to the table of accused No.2. They talked with complainant. Thereafter accused No.1 told complainant that papers were with accused No.2. Accused No.1 then got up and came out of room and told complainant to pay the amount. Complainant thereafter removed the amount from his pocket. Thereafter, complainant came out and gave signal to raiding party. As the raiding party arrived, they caught hold accused No.1. Thereafter, they brought accused to the chamber of District Health officer, Health Department, Zilla Parishad and proceeded further to complete formalities.
Thereafter, the hands and shirt pocket of accused were checked. Anthracene powder was glittering on the right hand finger and left shirt pocket of accused No.1. Panch No.2 was told to search accused No.1. The bribe amount was removed from pocket of accused No.1. Accordingly, panchnama was drawn. The shirt of the accused No.1 came to be seized. Thereafter, detailed panchnama came to be recorded. Accordingly, complaint was lodged by the Dy.S.P. in Kotwali Police Station, which was registered as Crime No.5/1997. After completing investigation, the proposal was forwarded to the Sanctioning Authority and after receipt of sanction order, charge sheet was filed. The charges came to be framed vide Exh. 12. Accused pleaded not guilty and claimed to be tried.
The prosecution examined PW-1/Haridas Sonawane, complainant at Exh.20; PW-2/ Anil Zaveri, panch witness at Exh.29; PW-3/Arun Bharde, Chief Executive Officer of Zilla Parishad being Sanctioning Authority at Exh.37 and PW-4/Vasant Ingawale, Dy.S.P. and Investigating Officer at Exh.43.
After recording the evidence and hearing the learned Advocate for the parties, the learned Sessions Court acquitted accused No.2/Baban Rambhau Sherkar for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the said Act and accused No.1/appellant herein also came to be acquitted for offence punishable under Section 12 of the said Act. However, he came to be convicted for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the said Act and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/-, in default to pay fine, to suffer rigorous imprisonment of three months.
Being aggrieved by the aforesaid judgment and order of conviction dated 24/09/2004, the appellant has approached this Court by filing present appeal.
Mr Chatterji, learned Advocate for the appellant submits that the prosecution has failed to prove charges against appellant. According to him, in order to prove the demand of the alleged amount for putting up the file of the complainant in respect of mutual transfer between two Medical Officer to their respective Zilla Parishads, there are various omissions in testimony of complainant himself as regards important aspect of demand and acceptance of bribe amount. The complainant in his evidence deposed that accused No.1 had questioned him, as to how much amount he had brought and that he had told him to deliver the amount. Accused No.1 told him to pay amount and he paid the amount to accused No.1 with his right hand. Accused No.1 accepted the amount by his right hand and kept it in his left side shirt pocket. The said portion is proved as omission as the same is not found in the complaint as well as in the statement given to the Investigating Officer.
Learned Advocate Mr Chatterji further submits that the complainant in his evidence had stated that prior to the date of complaint, he had never met accused No.1. Prior to 31/01/1997, he was never informed that accused No.1 had any connection with the transfers of employees. Accused No.1 was working as Office Superintendent at Zilla Parishad, however, he had approached accused No.1 on pretext that he is working as Office Superintendent. Mr Chatterji submits that the said complainant cannot be believed for the reasons that he had admitted in his deposition that, on the table of each staff member, there was name plates of designation, however, there was no board on the table of accused No.1, showing that he was working as Office Superintendent. He has admitted that, he was not knowing to accused No.1 at that time, as to whether accused No.1 was working as Desk Officer or Office Superintendent. He went to accused No.2 and accused No.2 had told him to go and meet accused No.1. He had disclosed the name of accused No.1 while lodging complaint. He further stated that, he do not remember that he disclosed name of accused No.1 while lodging complaint. There is again omission in the deposition of complainant as regards whether he had stated in his statement before the Police that when he met accused No.1, he had told him to wait for sometime. He had stated before the Police that, when he came to the table of accused No.1, accused No.1 had asked as to how much amount he had brought and that further accused No.1 told him to pay amount. This important aspect of the demand of bribe has been proved to be omission.
Mr Chatterji then points out that the complainant himself was facing complaint as there were allegations against him that he had worked as Medical Officer in absence of his wife and under influence of liquor. It was also pointed out before this Court that, office of Zilla Parishad put up objections in the file of transfer of wife of complainant on the ground that transfer cannot take place within five years of appointment/posting.
Mr Chatterji further states that the complainant further admitted that the amount demanded by the accused person himself for forwarding the proposal to the Government in respect of mutual transfer of his wife. Thereafter, Mr Chatterji took this Court through evidence of PW-2/Anil Ramsingh Zaveri, who was panch witness No.2. The said panch admitted that in the complaint, there was reference of Office Superintendent and there is separate cabin of Officer Superintendent and accused No.1 was not working as Office Superintendent at the relevant time. The said witness put to suggestion that the amount was thrusted in the pocket of shirt of accused No.1 and when accused No.1 tried to remove amount, the anthracene powder was seen on his finger tips. Thus, the Advocate for appellant submits that the amount forcibly thrusted in the pocket of accused. He submits that anthracene powder was seen on the fingers of accused No.1 because at the instance of panch No.2, the amount was recovered from shirt of accused No.1. On checking hands of accused No.1 under ultraviolet lamp, the anthracene powder found glittering on the right hand fingers. He then submits that the explanation submitted by the accused fortifies the submission of the accused that, when he was going towards Cycle stand, complainant and panch came behind him and thrusted the amount in his pocket. The panch witness had admitted in his cross-examination that anthracene powder was seen only upon thumb and index finger and not to all the fingers of right hand of accused No.1.
Learned Advocate for the appellant further stated that as per the evidence of the witness Anil Zaveri, bribe amount was recovered from pocket of accused. However, there are some other papers were also found in the pocket of accused. Panch witness admitted that anthracene powder was found only outside the pocket and not inside the pocket. Though the Investigating Officer Ingawale admitted that some papers were found in the pocket of accused, however, same were not attached to panchnama and no anthracene powder was seen on the papers. Therefore, according to Mr Chatterji, it is clear that the bribe amount was deliberately thrusted in the pocket of accused. He submits that, if the appellant had accepted the amount by his hand, the anthracene powder could have been found on all fingers of his hand.
Mr Chatterji further states that, though the provisions of Section 20 of the said Act lays down presumption in favour of the prosecution, admittedly, the said presumption is not applicable so far as charges under Section 13(2) read with 13(1) are concerned. It is submitted that the statutory presumption under Section 20 of the said Act is confined to the offences specified therein and does not extend to an offence punishable under Section 13(1)(d) of the said Act.
Mr Chatterji further submits that, as the prosecution failed to prove the demand of bribe as well as acceptance of same, mere recovery of amount from the pocket itself is of no use for the prosecution. He categorically submits that the deposition of complainant is contradictory to the deposition of panch regarding demand. Complainant specifically stated that, at the time of trap, accused No.2 had made demand. However, the said fact was not corroborated with the panch witness. Learned Sessions Judge observed that the complainant deliberately implicated accused No.2 without accepting the defence taken by present appellant and acquitted accused No.2. Therefore, Mr Chatterji submits that this vital evidence regarding demand taken by complainant, proves omission and the same cannot be considered as evidence for convicting appellant under the offence punishable under the provisions of the Act. He again reiterated that evidence of complainant and panch on the aspect that complainant paid amount as demanded, is absent in the deposition of panch. Therefore, learned Sessions Judge had committed a grave error of law by not considering the aforesaid aspect and passed order on conviction without considering aforesaid aspect. Mr Chatterji, therefore prays for allowing of this appeal.
Per contra, learned APP submits that the prosecution has proved the charges against the accused. The accused has been rightly convicted by the learned Sessions Judge by considering prosecution evidence in proper manner. He submits that the evidence brought by the prosecution before the Session Court as regards demand, acceptance and recovery is strong enough to convict the appellant and thus, the prosecution has proved its case beyond all reasonable doubts. He, therefore, submits that the judgment and order passed by the learned Sessions Court requires no interference of this Court and the same is required to be uphold, thereby maintaining the sentence passed by the learned Sessions Court.
After hearing the learned Advocates for the respective sides and going through the evidence, it is clear that in order to attract offences under the provisions of the Act, the Hon’ble Apex Court as well as this Court in numerous cases held that the prosecution must establish that there is valid demand, acceptance of demand of bribe and recovery of the tainted amount from the possession of accused. Merely recovery of tainted amount in absence of valid demand and acceptance, is not sufficient to prove the charges under the provisions of the said Act. For the purpose of proving demand, the prosecution is required to prove that the appellant had demanded a bribe amount of Rs.500/- from complainant Haridas (PW-1) for forwarding the proposal of matter of transfer of his wife Sharda. The perusal of deposition of PW-1/Complainant as well as panch witness/Anil Zaveri disclose that, both the accused initially were dealing with the transfer proposal of the complainant. However, there is a reference of designation of Office Superintendent, whose chamber is located in opposite direction of the table of appellant, who was working as Section Officer and not Office Superintendent. The complainant had admittedly stated in his deposition that he was not knowing whether the appellant was working as Section Officer at the relevant point of time. The omission proved in respect of demand, goes to show that the prosecution has not brought sufficient evidence as regards the same before the learned Sessions Court. Complainant in such circumstances cannot be believed being an interested witness. The Hon’ble Apex Court in the judgment delivered in the matter of Ram Prakash Arora Vs. The State of Punjab, AIR 1973 Supreme Court 498, observed that evidence of complainant as well as that of panch witnesses cannot be accepted straightway, for the reasons that both are partisan witnesses, interested in success of the trap and they are to be treated like interested witnesses. In this case, both the witnesses are not found to be corroborating to each other. On the aspect of demand, both the witnesses are coming with different versions. Moreover, the version of complainant on the aspect of demand has been proved to be omission by the defence. In numerous cases, it has been held that, mere recovery of tainted amount from possession of public servant is not sufficient to hold him liable for the punishment under Section 7 and 13 (1) (d) of the said Act. The prosecution has to establish the facts of valid demand and acceptance, in order to prove its case beyond all reasonable doubts.
On an overall consideration of the evidence on record, the prosecution has failed to establish the foundational facts of demand and acceptance of illegal gratification by the appellant beyond reasonable doubt. The material omission in the testimony of the complainant, the absence of satisfactory corroboration from the panch witness on the crucial aspect of demand and the circumstances surrounding the alleged recovery, when considered cumulatively, create a reasonable doubt about the prosecution version. Though demand and acceptance may be established by circumstantial evidence, the circumstances brought on record in the present case do not form an unbroken chain leading to the only conclusion that the appellant had demanded and accepted the tainted amount as illegal gratification. Mere recovery of the currency notes, therefore, cannot by itself sustain the conviction.
When the prosecution evidence regarding demand and acceptance is found to be doubtful and does not inspire confidence, the conviction of the appellant cannot be sustained merely on the basis of recovery of the tainted currency. In that view of the matter, I found that the learned Sessions Court, without considering the aforesaid aspects, has committed a grave error, thereby convicting the appellant for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the said Act. Hence, the appellant has made out a case and the appeal deserves to be allowed. Hence, I pass the following order :-
ORDER
The Criminal Appeal is allowed.
The judgment and order of conviction and sentence dated 24/09/2004, passed by the learned Special Judge, Ahmednagar in Special Case No. (A/C) No.04/1998, convicting the appellant for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, is hereby quashed and set aside.
The appellant/accused is acquitted of the offence under the said Act, for which he was charged.
The bail bonds of the appellant, if any, stand cancelled. The surety, if any, stands discharged.
The fine amount, if any deposited by the appellant pursuant to the order of the Sessions Court, shall be refunded to him, after due verification.