Bombay High Court
Suresh Prasad S/O Shri Vallabh Vyas vs Dy. Supdtt. Of Police, C.B.I on 27 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 Apeal476-09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.476/2009
...
Suresh Prasad s/o Shri Vallabh Vyas,
Aged 64 years, R/o 9/10 Rambagh
Colony, Near Medical Chowk,
Nagpur. .. APPELLANT
.. Versus ..
The Dy. Superintendent of Police,
Central Bureau of Investigation
ACB Sleuth, Nagpur. .. RESPONDENT
Mr. Avinash Gupta, Senior Advocate with Mr. Aakash Gupta,
Advocate for Appellant.
Mrs. Mugdha R. Chandurkar, Advocate for Respondent
....
CORAM : MANISH PITALE, J.
DATED : JULY 27, 2018.
ORAL JUDGMENT
1. The appellant herein has challenged judgment and order dated 01.10.2009 passed by the Special Court (CBI) Nagpur (trial Court) in Special Case No. 32 of 2003 (Old No. 1 of 1997), whereby the trial Court has convicted the appellant for offence punishable under Sections 7 and 13(1)(d) read with ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 2 Apeal476-09.odt 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs.3,000/- on both counts.
2. According to the prosecution case, the appellant was working as Sub Divisional Engineer (Telecom) at Nagpur. The complainant Kamlesh Shaha (PW2) had submitted an application for shifting of his telephone connection from one place to the other. According to him, he was not getting favourable response to the said application and for that reason he had met the appellant on 19.04.1996 with a request for appropriate action on his application. According to the prosecution, the appellant demanded illegal gratification of Rs.500/- from the complainant PW2 in that regard. When the complainant PW2 again met the appellant on 24.04.1996, the said demand of illegal gratification was allegedly repeated by the appellant and, therefore, on 25.04.1996 a written complaint was submitted by the complainant PW2 to the Superintendent of Police, Central Bureau of Investigation (CBI) Nagpur, as he was not willing to pay the bribe amount to the appellant. On the basis of the said written complaint submitted by the complainant PW2, concerned officer of the CBI i.e. Sunil Kelkar PW4 made preparation for execution of a trap against ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 3 Apeal476-09.odt the appellant. Two panch witnesses were called and currency notes smeared with phenolphthalein powder were prepared in order to execute the trap. A pre-trap panchanama was prepared and the team went along with the complainant PW2 for execution of the trap.
3. On 25.04.1996 itself, the complainant PW2 along with panch no.1 (shadow witness) i.e. PW3 Ravindra Wansurtre reached the office of the appellant at about 11.30 a.m. where the appellant was found busy attending to number of persons. According to the prosecution case, the appellant informed the complainant PW2 that he was to proceed on leave on the next day and he repeated the demand of illegal gratification. The appellant allegedly directed the complainant PW2 to go to a tea stall in a building at short distance from the office. Accordingly, the complainant PW2 along with shadow witness PW3 went to the tea stall and on the way they informed the CBI Officer PW4 that the appellant would be joining them. At the tea stall, the appellant demanded money from the complainant PW2, which was handed over to him, and he kept the same in the pocket of his pant. This allegedly happened in the presence of the shadow witness PW3 and upon pre-decided signal being given, the trap laying officer of the CBI i.e. PW4 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 4 Apeal476-09.odt reached the spot and apprehended the appellant. A post trap panchanama was prepared after sodium carbonate solution was poured on the hands, currency notes and the pocket of the pant of the appellant. On the basis of the said material, first information report (FIR) was registered against the appellant and he was charged with having committed offences under the said Act.
4. In support of its case, the prosecution examined four witnesses. PW1 was the sanctioning authority as the appellant was a public servant, PW2 was the complainant, PW3 was the shadow witness and PW4 was the aforesaid officer of the CBI. It is significant that the prosecution failed to examine the investigating officer in the present case who was one Mr. Jaini. No explanation has been given as to why the said Officer was not examined by the prosecution.
5. On the basis of the evidence and material on record, the trial Court found that there was sufficient material to prove that the appellant had demanded illegal gratification and accepted the same, thereby committing offences under the provisions of the said Act. On this basis, the trial Court convicted and sentenced the appellant in the aforesaid ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 5 Apeal476-09.odt manner.
6. Mr. Avinash Gupta, learned senior counsel with Mr. Aakash Gupta, learned counsel appearing on behalf of the appellant, submitted that the evidence and material produced on record by the prosecution was not sufficient to convict the appellant under the provisions of the said Act. It was pointed out that the evidence of the complainant in such cases was essentially that of an accomplice and that, therefore, corroboration was necessary to prove the case of the prosecution. It is pointed out that the perusal of the evidence of the complainant PW2 and the shadow witness PW3 demonstrated that there were glaring discrepancies and that there was lack of evidence to prove demand of illegal gratification by the appellant. It was further submitted that the shadow witness PW3 had conceded in cross-examination that before deposing in the Court, he had been called to the office of the CBI where the statement was shown to him and interpreted because he did not have much knowledge of the English. It was submitted that when the said witness had refreshed his memory by reading his statement in the office of the CBI, his evidence was rendered unreliable and it was necessary to discard the same. It was further submitted that ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 6 Apeal476-09.odt non-examination of the investigating officer had created serious prejudice for the appellant because the complainant PW2 had emphatically stated in his cross-examination that after the trap was executed, his statement was not recorded by the CBI Officer and that even on 15.08.1996 his statement was not recorded. If the investigating officer had been examined, this aspect could have been put to him. It was submitted that the evidence of the CBI Officer PW4 was not sufficient to prove the prosecution case because he was not the Officer who recorded the statements of witnesses after registration of FIR and that in any case, he was only a member of the team that executed the trap.
7. It was further submitted that the sanction granted in the present case for prosecuting the appellant was also bad in law as there was material to show that there was total non- application of mind by the sanctioning authority PW1. It was pointed out that a perusal of the evidence of the said witness and the sanction order at Exh.31 clearly demonstrated that the sanction order was not based on sufficient material being placed before the sanctioning authority and upon due application of mind. On this basis, the learned senior counsel submitted that the prosecution case was not made out. ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 :::
7 Apeal476-09.odt Reliance was placed on judgments of the Hon'ble Supreme Court in the case of Panalal Damodhar Rathi .vs. State of Maharashtra - (1979) 4 Supreme Court Cases 526, Major S.K. Kale .vs. State of Maharashtra - (1977) 2 Supreme Court Cases 394 and judgment of this Court in the case of Sham Ashokkumar Mahodaya .vs. the State of Maharashtra -Criminal Appeal No.157/2002.
8. Per contra, Mrs. Mugdha R. Chandurkar, learned counsel appearing on behalf of the respondent, submitted that the evidence of the complainant PW2 and shadow witness PW3, read together, was sufficient to prove demand as well as acceptance of illegal gratification by the appellant. It was submitted that even if the investigating officer was not examined, no prejudice was caused to the appellant because PW4, the CBI Officer, who had executed the trap was examined. It was submitted that he was the Officer who had proved the post trap panchanama and other documents on record. It was further submitted that a perusal of the post trap panchanama and the chemical analysis report proved the fact that the tainted currency notes were recovered from the possession of the appellant and that, therefore, no fault could be found with the impugned judgment and order passed by the ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 8 Apeal476-09.odt trail Court.
9. Heard counsel for the parties. A perusal of the evidence and material on record shows that in order to prove the fact of demand and acceptance of illegal gratification by the appellant, a perusal of the evidence of the complainant PW2 and the shadow witness PW3 is necessary. The evidence of complainant PW2 shows that he has stated regarding demand of illegal gratification of Rs.500/- made by the appellant initially on 19.04.1996 for shifting of telephone connection, which was repeated on 24.04.1996. According to this witness, when the trap was executed the appellant had asked him to go to a nearby tea stall, where the appellant joined him as also the shadow witness PW3 and that at the tea stall, specific demand for illegal gratification was made and that the bribe amount was handed over to the appellant at the tea stall in the presence of shadow witness PW3. In the cross- examination, the said witness stuck to his version, except that he stated that the CBI Officer did not record his statement after the trap was executed. He also clearly stated that his statement was not recorded by the CBI Officer on 15.08.1996. This is surprising because he was the star witness for the prosecution. It has come on record that the investigating officer ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 9 Apeal476-09.odt in the present case was Mr. Jaini, who for some reason was never examined by the prosecution. Therefore, there is substance in the submission made on behalf of the appellant that non-examination of the investigating officer has been prejudicial to the appellant.
10. A perusal of the evidence of the shadow witness PW3 shows that although in the examination-in-chief he supported the version given by the complainant PW2, in cross- examination this witness was completely discredited. He stated that there was no talk of shifting of telephone at the tea stall with the appellant and that there was no specific reference to money in the conversation at the tea stall. In fact, he has also stated that the appellant stated that the work would be done but besides that there was no other talk between the appellant and the complainant PW2. These statements made in the cross-examination have completely demolished what the said shadow witness stated in examination-in-chief. Therefore, it cannot be said that the evidence of this witness has corroborated the evidence of the complainant PW2.
11. As a result, considering the nature of the evidence on record, it becomes evident that the claim made by the ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 10 Apeal476-09.odt complainant PW2 in his evidence before the trial Court has remained uncorroborated. In this context, the learned senior counsel appearing for the appellant is justified in relying upon the judgment of the Hon'ble Supreme Court in the case of Pannalal Damodhar Rathi (supra), where it has been laid down that corroboration of evidence of the complainant in such cases is necessary because the complainant is in the nature of an accomplice.
12. But, a further negative aspect of the evidence of the shadow witness PW3 is that in cross-examination he has specifically admitted that before he deposed in the Court, he was called to the office of the CBI where his statement was shown to him and it was interpreted for him. It was required to be interpreted because he stated that he did not know much English. Therefore, it becomes evident that this witness was read over his statement and he was told the interpretation of the same in the CBI office prior to recording of his evidence in the Court. This has rendered the evidence of this witness unreliable. In this context, reliance placed by the learned senior counsel on the judgment of this Court in the case of Sham Ashokkumar Mahodaya .vs. State of Maharashtra (supra) is appropriate because in that case even when the trial ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 11 Apeal476-09.odt Judge had permitted the prosecution witness to refresh his memory on the basis of his statement under Section 161 of the Cr.P.C., it was held that such a witness was to be treated as a tutored witness and that his evidence was required to be discarded. Reliance had been placed in the said judgment on the judgment of the Privy Council in the case of Zahiruddin .vs. Emperor, Privy Council reported in AIR (34) 1947 Privy Council 75. In this context, a Division Bench judgment of this Court has held in the case of Suresh Purushottam Astankar .vs. State of Maharashtra- 2015 (3) Mh.L.J. (Cri.) 424 as follows:-
"30. In the cross-examination, Sharyu (PW-1) 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."
31. 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.
32. In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PW-1) 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 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 12 Apeal476-09.odt 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 PW-2 Prabhakar taken by learned counsel for the appellant is valid." (emphasis is supplied by us).
We approve the dictum of the learned Single Judge in that behalf"
13. Applying the aforesaid position of law to the facts of the present case, it becomes obvious that the entire evidence of the shadow witness PW3 is rendered unreliable and it is required to be discarded. Therefore, the version of the complainant PW2 in the present case has remained uncorroborated.
14. There was another submission sought to be raised on behalf of the appellant that at the time of seizure, an order slip dated 20.04.1996 was recovered from the appellant showing that order of shifting of telephone connection had been already issued by the appellant and that it had been given to a lineman. On this basis, it was submitted that when the order pertaining to shifting of telephone connection had been already passed by the appellant, there was no question of demand of ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 13 Apeal476-09.odt illegal gratification on this ground. But, there was no material to show that the complainant PW2 was aware of such an order having been passed by the appellant. Therefore, aforesaid submission raised on behalf of the appellant, cannot be accepted.
15. But, the analysis of the evidence of the complainant PW2 and shadow witness PW3 shows that there is no worthwhile corroboration of the claims made by the complainant PW2 regarding demand of illegal gratification by the appellant. The emphasis placed on behalf of the respondent on the evidence regarding acceptance of tainted currency notes by the appellant on the basis of the post trap panchanama and the chemical analysis report, would not take the case of the prosecution any further because mere acceptance of tainted currency notes would not be sufficient to prove the said offence against the appellant. It is held by the Hon'ble Supreme Court in the case of Mukhtiar Singh .vs. State of Punjab- (2017) 8 Supreme Court Cases 136, in this context, as follows:-
"13. 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, this Court propounded that the ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 14 Apeal476-09.odt 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 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.
14 In P. Satyanarayana Murthy ,this Court took note of its verdict in B. Jayaraj vs. State of A.P. 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 on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder: (SCC p.159, para23) "23. 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, ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 15 Apeal476-09.odt 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." (emphasis supplied)"
16. In the present case, as noted above, there is lack of evidence to prove demand of illegal gratification by the appellant and since proof of demand is a sine qua non for convicting an accused in such cases, in the present case it cannot be said that the prosecution has been successful in proving its case beyond reasonable doubt against the appellant.
17. In these circumstances, it becomes clear that the trial Court committed an error in relying upon the evidence of the complainant PW2 and the shadow witness PW3 in order to hold that the presumption under Section 20 of the said Act operated against the appellant and that the prosecution had been able to prove its case beyond reasonable doubt, while the appellant had failed to rebut such presumption. It is obvious that the ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:04:06 ::: 16 Apeal476-09.odt presumption under Section 20 of the said Act would stand triggered only when the prosecution was able to prove foundational facts pertaining to demand of illegal gratification by the appellant. As there was lack of cogent evidence to prove demand of illegal gratification in the present case, no such presumption stood triggered against the appellant, demonstrating the error committed by the trial Court in convicting the appellant under the provisions of the said Act.
18. As this Court has held against the prosecution on merits of the matter and the impugned order of the trial Court is found to be unsustainable, the submission pertaining to absence of proper sanction in the present case is not being dealt with.
19. In the light of the above, this appeal is allowed. The impugned judgment and order passed by the trial Court is quashed and set aside and the appellant is acquitted of the offences with which he was charged. Since the appellant was on bail, his bail bonds shall stand cancelled.
(Manish Pitale, J. ) ...
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