AI Structured Summary
Not yet generated for this judgment
Judgment
By this appeal, the appellant has challenged the judgment and order dated 17Â09Â2003 passed by the Court of Special Judge, Pusad (trial Court) in
Special Case No.3 of 1999, whereby the appellant has been convicted for the offences under Sections 7, 13 (i) (d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 [for short, 'Act of 1988'] and he has been sentenced to suffer rigorous imprisonment for one year and six months
respectively for conviction under the said provisions. The wife of the appellant had been arrayed as accused no.2 in the present case, but, she was
acquitted by the trial Court.
2.   The appellant was working as 'Talathi' of village Phulumri, Taluka Digras, District Yavatmal at the time of incident. The complainant herein,
one Narayan Rathod (PWÂ1), claimed that he had approached the appellant for copies of 7/12 extracts, copies of mutation and heir certificate. The
reason why the said complainant was required to approach the appellant was that he was holding a Power of Attorney from one Panchfula, who was
the daughter of Dayaram Rathod and who claimed that she along with her sisters Shobha and Narmada had inherited fields belonging to the said
Dayaram Rathod. It was claimed by the said Panchafula that the husband of Shobha (one of the sisters) had been looking after the aforesaid fields of
Dayaram Rathod and that he had sold some of the fields. Due to this, the said Panchafula required the aforesaid documents, for which she executed
Power of Attorney had dated 16Â06Â1998, in favour of complainant Narayan (PWÂ1) who was her brotherÂinÂlaw.
3.   The complainant Narayan (PWÂ1) claimed that when he approached the appellant for copies of the aforesaid documents, the appellant
demanded Rs. 200/Â, which the complainant gave unwillingly. It was claimed that the appellant gave four copies of 7/12 extracts and stated that the
copies of mutation were to be obtained from Manora and that when the complainant went to the house of appellant on 15Â07Â1998, the appellant said
that for the copies of mutation and heir certificate further amount of Rs. 200/Â was required and that unless the amount was paid the work of the
complainant would not be done. The complainant claimed that unwillingly he agreed to pay the amount of Rs. 200/Â to the appellant, upon which the
appellant told the complainant that he would give the said copies on 16Â07Â1998 at 4.00 pm.
4.   According to the complainant, since he was not willing to pay the said bribe amount to the appellant, he went to the office of the Anti-
Corruption Bureau at Yavatmal and made an oral complaint to the concerned Police Officer Dildar Tadvi (PWÂ5). The oral complaint was reduced
into writing and on the basis of the same, said PWÂ5 started arrangements for trap against the appellant. The detailed exercise of preparing complaint
in the presence of two panchas was undertaken along with the currency notes amounting to Rs. 200/Â. Their numbers were noted down and
phenolphthalein powder was applied to the same. One Dadarao Meshram, panch no.1 (PWÂ3) was instructed to remain present with the complainant
(PWÂ1) when he would go to offer the aforesaid bribe amount to the appellant so as to complete the process of trap.
5.   The raiding party for the trap went to the house of theappellant on 16Â07Â1998 and according to the complainant (PWÂ1) and panch
witness (PWÂ3), the wife of appellant Rekha (accused No.2) was sitting in the verandah of the house. When they asked for the accused, she told
them to sit in the verandah and said that she would inform the appellant. Thereafter, the appellant came out of the house. The complainant (PWÂ1)
told the appellant that he had come prepared and that he wanted the aforesaid documents. It was claimed that when the complainant (PWÂ1) took
out the money from his pocket, the appellant went inside the house and brought a newspaper, stating that taking of such money in hand would be sin.
He then allegedly gave a signal and indicated to the complainant (PWÂ1) to keep the money in the newspaper. The complainant (PWÂ1) put the
money in the newspaper, folded it and kept it on a tea poy. Thereupon, he gave a signal to the raiding party, which included PWÂ5.
6.   Thereafter, PWÂ5 undertook the exercise of pouring solution of sodium carbonate on the hands of the appellant and his wife as also the
newspaper and the currency notes inside the same. The hands of the appellant and his wife did not change colour while the newspaper and the said
currency notes became violet in colour. On the basis of the said trap, the offence was registered under the aforesaid provisions against the appellant
and his wife and the investigation was undertaken. It is relevant to note that while conducting the trap, PWÂ5 sought a written explanation from the
appellant, which was submitted by him, but the same was never placed on record by the prosecution.
7.   In order to prove its case against the accused, the prosecution examined five witnesses viz., PWÂ1ÂNarayan Rathod was the complainant,
PWÂ2ÂRamrao was the then Tahsildar, PWÂ3ÂDadarao Meshram was the aforesaid panch witness who accompanied the complainant (PWÂ1) at
the time of trap, PWÂ4ÂNana Waindeskar was the SubÂDivisional Officer who granted sanction for prosecution of the appellant and PWÂ5ÂDildar
Tadvi was the Investigating Officer and the person who had arranged the trap, being the Police Officer attached to the Anti Corruption Bureau,
Yavatmal.
8.   Apart from the oral evidence of the aforesaid witnesses, the prosecution relied upon documentary evidence in the form of documents and
records recovered from the appellant, as also the report pertaining to the trap conducted against the appellant. On the basis of the same, the
prosecution claimed that it had proved its case beyond reasonable doubt against the appellant and his wife.
9.   In their statement recorded under Section 313 of the Code of Criminal Procedure, 1973, both the aforesaid accused stated that the
complainant and the person from whom he was holding Power of Attorney held a grudge against the appellant in the backdrop of their dispute with the
said Krishnarao Rathod pertaining to the agricultural fields. It was pointed out that a notice dated 27Â12Â1997 had been issued by them against the
appellant claiming that the appellant had colluded with said Krishnarao Rathod in showing his name in the column of cultivation pertaining to the
agricultural fields. It was also stated that on 22Â12Â1998, the said Shobha had issued notice through Advocate to the appellant threatening to take
legal action against him. It was also pointed out that a civil suit was pending in the Court between Krishnarao and the daughters of Dayaram and that
if the crop statements were shown in the name of two daughters of Dayaram it would have been helpful for them in the civil litigation. It was also
pointed out that since the appellant did not act in favour of the said daughters, they were disturbed and hence they had falsely implicated the appellant.
10.   By the impugned judgment and order dated 17Â09Â2003, the trial Court found that the appellant was guilty of the aforesaid offences for
which he was charged, but, that his wife (accused no.2) could not be said to have abetted in commission of the said offences. On this basis, the trial
Court convicted and sentenced the appellant while acquitting his wife. The trial Court found that the bribe money and the newspaper in which it was
kept were under the control of the appellant and that therefore, there was sufficient evidence on record to prove that he was indeed guilty of the said
offences. On the same material, the trial Court held that accused no.2 i.e. wife could have innocently lifted the newspaper for reading and that it could
not be said that she had abetted the appellant in commission of the said offences.
11.   Aggrieved by the same, the appellant filed the instant appeal which was admitted by an order dated 30Â09Â2003, and the appellant was
directed to be enlarged on bail.
12.   Shri P.R. Agrawal, learned Counsel appearing on behalf of the appellant contended that the conviction and sentence granted by the trial
Court against the appellant was not sustainable in the face of the evidence and material on record. It was contended that even if it was a trap case
there was no direct evidence of demand by the appellant and there was no material on record to show that the currency notes of the alleged bribe
were ever accepted or received by the appellant. It was submitted that the currency notes were found inside the folds of the newspaper of the very
date when the trap was undertaken and that merely because the currency notes were found inside the folds of the newspaper on a table in the house
of the appellant, it could not be concluded that he had accepted the bribe, as alleged by the complainant, for being convicted and sentenced under the
aforesaid provisions of the Act of 1988. It was contended that the entire story of the complainant was improbable and sufficient material was placed
on record by the appellant to show that the complainant and the persons on whose behest he was acting had a grudge against him, prompting them to
create a story of demand of bribe and falsely implicating the appellant. The learned Counsel relied upon the judgment of the Hon'ble Supreme Court in
the case of Mukhtiar Singh (since deceased) through his L.R. vs State of Punjab, reported at 2018(1) Mh.L.J. (Cri.)(S.C.) 1 and the judgments of this
Court in the case of Bismillakha s/o Salarkha Pathan vs State of Maharashtra, reported at 2004 All MR (Cri) 1341 and in the case of Haridas s/o
Bhagwan Jamunah vs The State of Maharashtra, through Anti-Corruption Bureau, Akola, District Akola in Criminal Appeal No.385 of 2001, judgment
dated 14Â12Â2017.
13.   On the other hand, Shri Alap Palshikar, learned APP appearing on behalf of the State submitted that in the present case the trap laid
against the appellant had been clearly proved and there was sufficient material on record to show that the appellant had indeed demanded bribe and
that the bribe amount was received by him in his house, thereby showing that the conviction and sentence granted by the trial Court was justified. It
was submitted that the appellant had demanded the aforesaid bribe amount for providing documents from official record and that therefore, he
deserved to suffer the sentence imposed by the trial Court.
14.   In the present case, although the prosecution had laid a trap against the appellant, the bribe amount was not actually found in the hands of
the accused (appellant) and therefore, the evidence and material on record, as also the background in which the trap was laid, are required to be
considered in detail.
15.   It has come on record that according to the complainant, four copies of 7/12 extracts were already given by the appellant to the
complainant for an amount of Rs. 200/Â paid by him. It was claimed that a further amount of Rs. 200/Â was illegally demanded by the appellant for
giving copies of mutation and heir certificate. It is in this backdrop that the complainant claims to have approached the Anti-Corruption Bureau leading
to laying down the trap against the appellant.
16.   In order to analyze the question as to whether the prosecution had been able to prove that the appellant was indeed guilty of the aforesaid
offences for which he has been convicted by the trial Court on the basis of the trap, it is necessary to consider the evidence of the complainant
(PWÂ1) and the panch witness (PWÂ3). An analysis of the evidence of the said witnesses brings out the picture of the manner in which the trap was
laid and the bribe amount exchanged hands. A perusal of the evidence of complainant (PWÂ1) shows that he went to the house of the appellant on
16Â07Â1998 along with PWÂ3 i.e. the panch witness and found that the wife of the appellant was sitting in the verandah while the appellant was
inside the house. It was claimed that the appellant was called by his wife and when he came out, the complainant told him that he had come with
preparation and that he showed the bribe amount to the appellant. Thereafter, the appellant went inside the house and he brought the newspaper
indicating to the complainant to put the bribe amount in the newspaper. Accordingly, the amount was placed inside the newspaper and it was placed
on a tea poy inside the house. According to the complainant, he gave a signal to the raiding party after doing so, upon which Police Inspector (PWÂ5)
of the Anti-Correction Bureau came with the team to complete the further steps pertaining to the trap. It was claimed by the complainant that the
newspaper along with the amount was picked up by the wife of the appellant and she had tucked it in her saree near her waist. It was then claimed
that the newspaper and the bribe amount upon being poured with sodium carbonate changed colour demonstrating that it was indeed the bribe amount.
17.   The complainant (PWÂ1) further claimed that the appellant was asked for an explanation, which he gave in writing. This is crucial for the
present case because such a written explanation, being the first in point of time after the trap, was the version of the appellant, which was necessary
to be placed on record by the prosecution.
18.   The evidence of PWÂ3 (panch witness) shows that he has narrated the events pertaining to the trap similar to the manner in which the
complainant (PWÂ1) had stated them. A perusal of evidence of these two witnesses i.e. PWÂ1 and PWÂ3 shows that while they have indeed
described the details of the manner in which the trap was executed against the appellant, there is no evidence that at the time when the trap was
executed, the appellant had made any demand from the complainant. In fact, the written explanation given by him was never placed on record by the
prosecution, for which an adverse inference is liable to be drawn against the prosecution. It is also clear that the bribe amount was never actually
handed over to the appellant or his wife. It has come on record that the newspaper in question was of the same date i.e. 16Â07Â1998 and that
although the newspaper and the bribe amount did change colour upon solution of sodium carbonate being poured, neither the hands of the appellant nor
those of his wife changed colour. They did not actually handle the aforesaid amount at all. Apart from this, when it was the case of the prosecution
that the bribe amount along with newspaper was kept in her saree around the waist by the wife of the appellant, neither the said saree was seized nor
poured was the solution of sodium carbonate poured on the same to show that there was indeed any change of colour. Therefore, the evidence of
these two witnesses does not really bring out proof of demand by the appellant and actual handing over of bribe amount to the accused.
19.   A perusal of evidence of PWÂ2ÂTahsildar shows that he has clearly stated that he has not received any complaint against the appellant
during his tenure as Tahsildar from 27Â11Â1997 to 10Â02Â2000. Insofar as the evidence of PWÂ5, the investigating officer is concerned, he has
also deposed in detail about the trap that was undertaken against the appellant. But, there is nothing in the evidence of this witness to show that the
aforesaid bribe amount was indeed handled by the appellant or his wife. In fact, in cross examination, the said witness had admitted that he had not
treated the portion of saree near waist of the wife of the appellant with sodium carbonate solution.
20.   In this context, the detailed statement given by the accused (appellant and his wife) under Section 313 of the Code of Criminal Procedure,
assumes significance. They have given details of the pendency of civil litigation initiated by the persons who had executed Power of Attorney in
favour of the complainant, pertaining to the agricultural fields in respect of which the appellant, as 'Talathi' of the village, was maintaining records. It
has come out that the  maintenance of the said record did have a crucial bearing on the claims made by the said persons and that they had reason to
have a grudge against the appellant in the backdrop of their claim in respect of the agricultural fields. It was also brought on record by the appellant
and his wife that notice had been issued against the appellant for having allegedly colluded with one Krishnarao Rathod in respect of the records
pertaining to the agricultural fields and that a legal notice had also been issued against the appellant threatening action against him. In this backdrop,
the possibility of false implication by the complainant at the behest of the person who had executed Power of Attorney in his favour, cannot be ruled
out for the grudge that they had against him. In this situation, it was all the more necessary for the prosecution to have placed on record direct
evidence pertaining to demand of bribe made by the appellant. In the absence of such evidence and the material on record showing that the bribe
amount was merely placed in the newspaper of the said day, which was kept on a tea poy, shows that even evidence of actual acceptance or receipt
of bribe amount by the appellant or his wife was not on record.
21.   It is also crucial that the prosecution failed to prove initial demand by the appellant on 15Â07Â1998. There is hardly any material on record
to prove the said claim of the complainant. Â This factor also adversely affected the prosecution case, which the trial Court completely failed to
appreciate, while passing the impugned judgment and order.
22.   Apart from this, on the basis of the same material, the trial Court had held in favour of the wife of the appellant, finding that it was
probable that she had innocently picked up the newspaper for reading and that therefore, it could not be said that she had abetted the commission of
offence by the appellant. If she was innocent in touching the newspaper, the appellant had not even touched the newspaper in which the bribe amount
had been placed. In this context, failure of the prosecution to place on record the written explanation sought from the appellant on the date of trap,
assumes significance. The learned Counsel appearing on behalf of the appellant is justified in relying upon the judgment of this Court in the case of
Bismillakha s/o Salarkha Pathan (supra), the relevant portion of which reads 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€
23.   The said ratio has been followed by this Court in its judgment in the case of Haridas s/o Bhagwan Jamunah (supra), wherein this Court has
held as follows: Â
“26) In the background of above evidence, learned Counsel for appellant has relied upon the case of Bismillakha s/o Salarkha Pathan vs. State of
Maharashtra (2004 ALL MR (Cri) 1341) wherein facts were similar to the effect that immediately after the trap, both the accused were asked by the
Investigating Officer to give their version regarding acceptance of money, which explanation, according to prosecution, was reduced into writing and
was signed by panchas as well as Investigating Officer. The contents of what was mentioned in such writing was also found mentioned in the
panchanama, however, for the reasons best known to prosecution, such document was not brought before the Court during trial, which fact was
considered by this Court to be a material circumstance of prosecution suppressing the first version given by accused to Investigating Officer, which in
fact is a very important circumstance and as such, gives rise to doubt about veracity of prosecution case and thus, observing that under such
circumstances, such writings, which were in the hands of Investigating Agency and which could have been produced in the evidence in the Court, but
were not produced, adverse inference needs to be drawn by virtue of Section 114 of the Indian Evidence Act that those documents were deliberately
suppressed as were not favourable to prosecution. In the appeal in hand, facts are similar as aforesaid. The appeal is, therefore, liable to be allowed on
this count also.â€
24.   The aforesaid position of law shows that had the written explanation of the appellant been produced, it would not have favoured the
prosecution and that therefore, the said document was deliberately suppressed in the present case. The trial Court completely failed to appreciate this
aspect of the matter while holding against the appellant.
25.   In respect of evidence regarding demand by the appellant, as observed above, there is scant evidence regarding the same. It is only the
complainant (PWÂ1) who has stated in the evidence that upon reaching the house of the appellant and meeting him, the complainant stated that he
had come prepared and that he wanted the documents from him. It was further claimed that the complainant showed the currency notes amounting to
bribe amount of Rs. 200/Â to the appellant upon which he went inside the house and brought the newspaper indicating that the amount be kept inside
the newspaper. This nature of evidence is not sufficient to prove that there was any demand by the appellant as required to be proved in law for
proving the guilt of the appellant. In fact, in the case of Mukhtiar Singh (supra) the Hon'ble Supreme Court in the context of evidence to prove
demand, has held as follows:
“25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3, 000/Â‐
which had been paid or of Rs.2, 000/Â as made on the day of trap operation is wholly inadequate to comply with the prerequisites to constitute the
ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming
and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/Â at the first instance is alleged
to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of
the complainant with regard to the demand and payment of Rs.3, 000/Â as well as the demand of Rs.2, 000/Â has remained uncorroborated. Further
to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such
demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow
witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as
enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and
persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.â€
Thus, even when the complainant, the inspector and shadow witness had stated in the said case that the accused had inquired as to whether money
had been brought or not, it was been held that as per law, the same would not amount to demand as an ingredient of the offence levelled against the
accused. In the present case, there is no such inquiry or demand made by the appellant, even if the evidence of PWÂ1, PWÂ3 and PWÂ5 is
accepted in totality.
26.   Therefore, it is evident that the trial Court has committed an error in the present case in convicting and sentencing the appellant under the
aforesaid provisions of the Act of 1988. The trial Court has failed to appreciate that there is no direct evidence of demand by the appellant. The bribe
money has not been found on the person of the appellant or his wife at all. The trial Court has erred in holding that the appellant was guilty because
the newspaper was under his control and if such a reasoning is accepted, in the facts and circumstances of the present case, merely placing currency
notes inside a newspaper lying in the house would lead to conviction of the accused under the provisions of the Act of 1988. The evidence in the
present case has not been appreciated in totality by the trial Court, particularly when material was brought on record by the appellant that the
complainant and the persons who had executed Power of Attorney in his favour, did hold an attitude of animosity against him, pointing towards the
possibility of false implication. The trial Court has erred in not appreciating these aspects of the matter, while passing the judgment and order
convicting and sentencing the accused.
27.   In view of the above, it is held that the impugned judgment and order passed by the trial Court is not sustainable. Accordingly, this appeal is
allowed. The impugned order of the trial Court convicting and sentencing the appellant under the provisions of the Act of 1988, is quashed and set
aside and the appellant is acquitted of the charges levelled against him.