The State Of Maharashtra vs Dattatraya

State assails judgment and order dated 29.12.2005 passed by learned Special Judge, Jalna in Special Case No.6 of 2003 [PCA] acquitting respondent herein i.e. original accused from charges under Sections 7, 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act [for short “P.C. Act”].

In nutshell, prosecution story is that complainant Ganesh had approached accused/respondent herein, a Talathi, for mutation entries on account of demise of his father. It is the case of prosecution that for effecting mutation entry, accused demanded amount of Rs.3000/- but on negotiations agreed to accept bribe of Rs.1200/-. Complainant Ganesh as was not willing to pay bribe, approached ACB office and P.W.5 entertained the complaint and planned trap by engaging panch and introducing him to complainant. Necessary instructions were given, apart from demonstrating the application of anthracene powder to the currency notes and thereafter complainant and shadow panch were made to approach accused and accordingly, they approached and as instructed, on demand, the bribe in the form of tainted currency was given to the accused and after its acceptance predetermined signal was relayed, followed by the apprehension of accused. P.W.5 on behalf of State lodged complaint, investigated it and after charge-sheeting accused, he was tried vide above special case. On appreciating the evidence, learned Trial Court refused to accept the case of prosecution as proved beyond reasonable doubt and acquitted the accused. Hence, the appeal.

Sum and substance of the evidence is as under :

. PW3 complainant Ganesh at Exhibit-37 deposed that he had approached accused Talathi for mutation work along with his uncle Kailash. That time accused told that Rs.5000/- to Rs.7000/- would be required and after deliberation, the amount was fixed to Rs.1200/-, which was directed to be brought next day. Complainant approached ACB office, gave complaint Exhibit-38. Panch from the Water Supply Department was summoned and made to accompany him, while a demonstration of the application of anthracene powder was given. He deposed that after the preparations, he and panch as well as his brother-in-law Baban went to the residence of accused and he claims that accused asked them whether amount is brought and after it was affirmed, the amount was paid to him on the raised platform, which accused accepted and pocketed. Thereafter, signal was relayed and accused was apprehended.

While under cross, complainant has admitted that he had earlier approached Talathi 15 to 20 days prior to 31.03.2003 and had submitted Applications Exhibits 39 and 40. In paragraph No.4 of his cross-examination, he admitted that his father died in 1999 and that he filed application in the year 2000 for mutating names of all legal heirs and in September, 2000, mutation entry was duly sanctioned and said applications are at Exhibits 39 and 40. He admitted that he was trying to get all the lands entered in his sole name, to which the accused had told him that he could not delete the names of the other heirs from the record. The omissions are brought to the effect that initial demand of Rs.5,000/- to Rs.7,000/- was not stated by him in the complaint and that his uncle Kailash was accompanying him. He further deposed that 5 to 6 agriculturists were present with the accused and he did not feel it comfortable to transact money in their presence and, therefore, he called accused outside. He admitted that after accused was apprehended, no inquiry was made with him. He also admitted that the accused had not acted as per his request to delete the names of his father’s heirs, but he denied having filed a false complaint.

. Another important witness is P.W.1 i.e. shadow panch and he deposed at Exhibit-23. In paragraph No.3 he stated that, he himself and Dnyanoba went to ACB office and there one person told about Talathi claiming Rs.1200/- for sanctioning mutation entries and therefore, he agreed to act as panch. He verified the written complaint and signed it. Then, he deposed about procedure of application of anthracene powder by police officer, and after drawing pre-trap panchanama, he accompanying complainant to Priyadarshani Colony i.e. to the house of accused and after entering the house, complainant seen accused and 2-3 other persons already sitting with the accused and complainant asking about his mutation, upon which, accused rose and came out of that room with this witness and complainant followed and accused asked complainant as to whether he brought the agreed amount of Rs.1200/- and after it being answered in affirmative, complainant taking out currency offering to accused, who accepted it, after which complainant relayed signal.

While under cross, he admitted that he did not notice, after reading the documents, that mutation in the name of complainant has already been sanctioned on 30.09.2000. He admitted that portion marked ‘A’ is reduced as it was a fact noticed. Regarding the main trap, he answered that after he himself, Ganesh and Baban entered the house, it is the Varanda where the amount was paid to the accused and that no person sitting in the room was visible to him while amount was being paid. Omission is brought to the extent in his statement to police about accused asking complainant as to whether he brought amount of Rs.1200/- as agreed and he answered in affirmative. Rest is all denial.

. P.W.4 Baban deposed at Exhibit-43 that he accompanied complainant to meet village of the Talathi at least 10 times and that one day complainant asked Talathi to issue 7/12 extract and Talathi said to him that Rs.3000/- would be required and complainant said that he would not be in a position to pay more than Rs.1200/-. Regarding the main trap, he deposed that they visited the house of accused at Sambhajnagar, Jalna and at that time work of Talathi was in progress. After a while, accused and complainant went out of the residence and third person accompanying them relayed signal to the police regarding acceptance of amount.

While under cross, he admitted that, all the while, he was sitting in the house of Talathi in a room and he admitted that from the raised platform, events outside the house were not visible.

. P.W.5 is the Investigating Officer.

. P.W.6 denied accompanying complainant to the Talathi and therefore, as he was not supporting, he was declared hostile.

Pointing to the above evidence, learned APP would submit that demand and acceptance is proved by prosecution beyond reasonable doubt. Traces of anthracene powder to the hands of accused suggests acceptance and thus, according to him, essential requirement for attracting charges, is very much available in the prosecution evidence, however, the same has not been correctly appreciated by the learned Trial Court.

Further according to him, learned Trial Court failed to consider that evidence of complainant found support from Shadow panch, who was the independent witness. Their testimonies and the cross have remained unshaken. Thus, according to him learned Trial Court ought to have invoked Section 20 of P.C. Act for drawing presumption, but it had apparently failed to do so.

He further submitted that learned Trial Court also failed to consider and appreciate contents of Exhibit-51. That, even answers given by accused while facing questions under Section 313 of the Code of Criminal Procedure, more particularly, question Nos.30 and 45, where when admitted by accused in the Trial Court, the guilt of accused ought to have been recorded, but it having failed, he urges to interfere by allowing the appeal.

Lastly, he submitted that even sanction was valid and as all essential legal requirements were fulfilled, case of prosecution was proved beyond reasonable doubt and hence, he urges to set aside the impugned judgment and order as according to him it is perverse and not sustainable in the eyes of law.

Learned Counsel for respondent/accused would justify the judgment and order of acquittal as according to him prosecution has miserably failed to establish that there was any demand of any bribe. He pointed to the cross-examination of complainant himself and would submit that when work of complainant was done in the year 2000, there was no question of grant of mutation entry after three years and at such point of time, there was no motive to raise demand. According to him, there is no support to the testimony of complainant from the testimony of independent shadow panch, whose evidence is full of material omissions and contradictions. For all above reasons, he prays not to disturb a well reasoned judgment.

According to prosecution, in the trial Court, demand as well as acceptance was proved. Testimony of prosecution witnesses, more particularly, P.W.3 complainant and P.W.1 shadow panch to be consistent.

Re-appreciated the entire evidence in the light of the submissions raised before this Court. It is noticed that according to complainant, when he approached Talathi at his residence, while he was in the company of his uncle Kailash, that time accused allegedly told him that Rs.5,000/- to Rs.7,000/- would be required and on deliberation, amount was brought down to Rs.1200/-. As pointed out by learned Counsel for respondent/accused when exactly complainant went to Talathi has not been stated by him in his substantive evidence or in the complaint. As regards the second demand at the time of the main trap, the complainant has deposed that he, along with the shadow panch, approached the Talathi at his house in the Sambhajinagar area, and that his relative, Baban, was also present at that time. According to him, the accused asked whether the amount had been brought and, after he answered in the affirmative, he claims that he paid the amount on the Ota, i.e. the raised platform, after the accused came out of his house. The accused accepted the amount, which was followed by the relay of the signal.

In paragraph No.6 of complainant’s cross-examination, he has admitted that he cannot state when he met accused for the first time. He has further admitted that he has not stated in his complaint that accused initially demanded Rs.5,000/- to Rs.7,000/-. In paragraph No.7 of his cross-examination, he admitted that when they approached house of accused, at that time 5 to 6 agriculturists were already present with accused and after accused asked whether he brought amount in presence of other persons, he admitted that he did not feel it comfortable to transact money in presence of those persons and therefore, he called accused outside.

Now, if we visit the testimony of shadow panch P.W.1, in paragraph No.4 of his examination-in-chief, he has stated that he, complainant and Baban approached accused at his house and at that time two-three persons were sitting beside him. According to him complainant initially asked accused what happened about his mutation. Such is not the narrative of complainant himself. Be it so, according to this shadow panch, at that time, accused rose, came out of the room and he himself and complainant followed and accused then asked complainant whether he has brought the amount and after complainant affirmed saying that he brought the amount, then he took the currency notes and offered to accused, who accepted it, after which signal was relayed. However, in examination-in-chief itself, he has stated that after accepting the money accused had entered his room, while complainant relayed the signal. In paragraph No.8 of his cross-examination, he has admitted that amount was paid to the accused in the Varanda.

Therefore, the events narrated by this witness goes to show that he is deposing contrary to complainant. His evidence shows that payment was made in the Varanda and it is contrary to what is stated by complainant himself about paying amount on the Ota outside the room and not in the Varanda. Even this witness admitted that accused was caught while he was inside the room. But in paragraph No.7 of his cross-examination, complainant has admitted that accused was caught while he was on the Ota itself.

Moreover, as pointed out, complainant himself has admitted that earlier itself he had applied for mutation in the year 2000 and in September, 2003, mutation entry was already sanctioned. Therefore, doubt arises as to what was the occasion for complainant to again approach accused, but it becomes more clear from his own cross-examination, wherein he has admitted in paragraph No.4 that his previous applications Exhibits 39 and 40 were pertaining to mutation of all heirs of his father. In paragraph No.5 of his cross-examination, he has candidly answered that he was desiring that entire land in the name of his father should come to him alone and not to other heirs. Therefore, there was reason to hold that complainant was keen in seeing that he alone stands beneficiary of the entire land and he himself has admitted that accused has denied deletion of other heirs. Therefore, there is motive for implication.

There is one more witness, who was a party to the above trap and is a relative of the complainant, namely, P.W.4 Baban. However, he has given a very different story. According to him, when they went to the residence of accused, only accused and complainant went outside the residence. He does not speak of shadow panch or he himself also following them outside house, where actually transaction took place. This witness in examination-in-chief itself has stated that he does not know what happened thereafter. Consequently, for above reasons, witnesses cannot be said to be consistent on the point of main trap of demand and acceptance.

Though the prosecution has taken pains to examine P.W.2 Tahsildar, who stated that, after seeing the entries in the heirship register and mutation register, it was revealed that the report dated 19.03.2003 was misleading and that the mutation entries had been sanctioned way back in the year 2000, the Talathi had not given information to that effect in the report, and there was suppression of this fact. However, this is a statement recorded by the Investigating Officer while the investigation was in progress and, therefore, as rightly held by the learned Trial Court, such statement by the witness is hit by Section 162 of the Code of Criminal Procedure and cannot be taken recourse to or relied upon.

Perused the judgment under challenge. It is noted that in paragraph No.24, learned Trial Court has dealt with the demand and acceptance and had made a comparative study of evidence of complainant P.W.3, shadow panch P.W1 and also evidence of P.W.4 Baban, who was relative of complainant and consequently, in paragraph Nos.25, 26, 27, 28 and 29, the learned Trial Court rightly noted that evidence cannot be said to be consistent so as to accept it and further hold accused guilty. Therefore, in the considered opinion of this Court, upon going through the judgment and order, the entire evidence adduced by the prosecution has been correctly appreciated, and thereafter, the findings and conclusions have been recorded. This Court does not find any perversity in the above judgment and order so as to interfere. Hence, the following order is passed :-

. Criminal Appeal stands dismissed.