Bombay High Court
Tryambak Lilaji Binnar vs State Of Maharashtra on 5 March, 2002
Equivalent citations: 2002BOMCR(CRI)~, (2002)2BOMLR798, 2002CRILJ3059, 2002(3)MHLJ293
Author: A.B. Palkar
Bench: A.B. Palkar
JUDGMENT A.B. Palkar, J.
1. The appellant original accused No. 1 in Special Case No. 10/88 on the file of Special Judge, Nasik, has challenged his conviction and consequent sentence of RI for one year and fine of Rs. 600/-, in default of payment of fine further SI for two months under Section 5(1)(d) of Prevention of Corruption Act, 1947 or alternatively under Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988.
2. The prosecution case in brief is as under :-- Appellant was working as Forester, whereas the 2nd accused was working as a Forest Guard.
Complainant Bapu Gavit (PW 1) resident of village Sambarpada had constructed a hut in his land. It was in dilapidated condition and he wanted to repair and practically re-construct the same. He therefore, approached the appellant for permission to reconstruct the hut. The appellant declined to give permission and thereafter complainant again approached him with the same request. Appellant did not grant permission but expressed that if complainant desired to re-construct the hut, he would be required to pay Rs. 600/- to the appellant by way of illegal gratification. However, complainant expressed inability to pay. Thereafter complainant re-constructed the hut and after about 7/8 days the appellant in company of other co-accused noticed the re-constructed hut, He enquired from the complainant as to how the hut was re-constructed and threatened him that in case appellant is not satisfied by him by making payment of gratification amount of Rs. 600/- appellant would drag him to Police station by beating him and would also prosecute him. Complainant told him that he has not made use of forest wood for reconstruction of the hut. He has not committed any theft but the accused did take measurements and warned him that unless the appellant is paid Rs. 600/-, he will have to suffer prosecution. After 2/3 days again the appellant went to the village and called the complainant through village Kotwal. He went in the company of Waghmare to the house of appellant No. 1 wherein co-accused was also present and the appellant again gave him threat that he would be prosecuted unless payment of gratification is made and even suggested that complainant may obtain loan if he has no money and pay him Rs. 600/- as demanded whereupon complainant assured that he would manage some how to collect Rs. 600/- and make the payment on weekly bazar day i.e. Sunday. Thereafter complainant borrowed Rs. 600/- from Adivasi Purest Labour Workers Society and approached Anti Corruption Bureau Office, Nashik. He lodged a complaint on 21-11-1987. Thereafter he was asked by Anti Corruption Bureau officers to come back on the next day i.e. on 22-11-1987 at about 7.00 A.M. According to the prosecution in the meanwhile, the Police Inspector of Anti Corruption Department, Chandrakant Bankar (PW 3) issued request letters to B & C departments for deputing two employees to act as panch witnesses and accordingly (PW 2) Pagare and one A.N. Taru were deputed to act as panch witnesses.
3. On 22-11-1987 complainant went to the A.C.B. Office, Nashik at about 7.00 A.M. Thereafter all the procedure required for trap was followed and pre-trap panchanama was drawn in which the currency notes of Rs. 600/- (5 x Rs. 100 and 2 x Rs. 50) were produced by the complainant. The anthracene powder was then applied to both sides of each of the currency notes and after the entire procedure was over, a panchanama was drawn (pre-trap). Necessary instructions were given to the complainant and the panch witnesses. (PW 2) Ashok Pagare was asked to accompany the accused and other panch witness was directed to remain in company of the raiding party. At about 8.40 A.M. the raiding party reached the village and after parking the jeep at some distance from forest Rest house. Complainant and (PW-2) Ashok Pagare were asked to go ahead and approach appellant and the raiding party followed them. The appellant saw complainant Bapu Gavit (PW 1), both the accused came out from their office. Appellant intimated the complainant by gesture to proceed towards Bazar in the company of Ashok Pagare (PW 2). Appellant then instructed him to stop under the mango tree and when complainant and Pagare were sitting under the mango tree, the appellant and the co-accused reached there. Appellant enquired from complainant whether he has brought money as decided. The appellant told him that the price of the wood used by the complainant was worth Rs. 8000/- and so he should in fact pay Rs. 8000/- or at least Rs. 4000/- to the Government. At this juncture complainant requested the appellant not to impose such exorbitant amount as fine and appellant then asked him how much complainant was ready to pay him by way of gratification, complainant replied that he has already brought Rs. 600/- as demanded. He then tendered the currency notes by right hand which were accepted by the appellant in his right hand. Appellant counted the notes by both the hands and kept them in the pocket of his shirt. In the meanwhile, co-accused reached there and expressed that receipt was required to be issued whereupon the appellant stated that he would pass the receipt for Rs. 100/- or Rs. 200/-. However, complainant gave the decided signal and the raiding party reached there. They caught hold of both the hands of the appellant-accused and (PW 3) Bankar introduced himself and thereafter search of the appellant was taken. The currency notes were in the pocket of the appellant. The currency notes were taken out from his pocket by (PW 2) Pagare. The notes were examined and the hands of the appellant were also examined under ultraviolet light. Pink blue shining was noticed. The notes were seized. Shirt of the appellant was seized and a detailed panchanama was drawn. Statements of the appellant and the other accused were recorded and search of the appellant's office was taken. During search, Registers, receipt-book, FIR book and other articles were seized and the search of the complainant was also taken, Police Inspector Bankar (PW 3) then registered offence on the basis of FIR signed by him containing the entire story narrated and forwarded his FIR to Surgana Police station. Offence was registered at the police station on the basis of this FIR and further investigation was conducted by PI Bankar (PW 3) himself. The sanction was obtained from Deputy Conservator of Forests, Nashik, and after sanction appellant was charge sheeted. Charge was framed under Section 7 as well as under Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988, although charge should have been under Section 5(1)(d) r/w 5(2) of Prevention of Corruption Act 1947. The learned Judge found that charge under Section 7 of the Prevention of Corruption Act was uncalled for and the wording of Section 5(1)(d) r/w 5(2) being similar to Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988. There was no prejudice to the accused. The prosecution examined 3 witnesses viz. the complainant Bapu Gavit (PW 1). Ashok Pagare (PW 2) and Chandrakani Bankar, Police Inspector (PW 3).
4. The defence of the appellant/accused is principally of denial. He however, contended that he has not accepted any gratification. He never demanded gratification. On the date of trap when Rs. 600/- were paid to him, receipt was demanded by the complainant. He was also about to issue receipt but before he could act and issue receipt, the raiding party reached. The currency notes were forcibly put in his pocket by the complainant and were not accepted by him and while taking out the notes the powder may have touched his fingers.
5. The learned Special Judge accepted the prosecution case. On scrutiny of the entire evidence and after considering the legal aspect of the matter, came to the conclusion that the offence under Section 5(1)(d) r/w 5(2) of Prevention of Corruption Act 1947 [or under Section 13(1)(d) r/w. 13(2) of Prevention of Corruption Act, 1988 as is charged] is proved and passed the impugned order sentencing the appellant/accused.
6. In this Court Shri V.T. Tulpule, learned Advocate for the appellant contended that entire prosecution case appears to be concocted. The material on record shows that even before the complainant approached Anti Corruption Authority, there was a full fledged plan prepared and intimated to PI Bankar (PW 3). There is no evidence of demand prior to the trap. The evidence of complainant alone in that respect is not reliable specially because the other witness who was admittedly present is not examined. During the trap, the complainant himself demanded receipt to the appellant after handing over Rs. 600/-, which conduct shows that he was conscious of the fact that he was not paying bribe. Once the evidence of earlier demand is not proved then the entire trap becomes illegal. The evidence of acceptance of gratification money in the trap is also not trustworthy in view of the assertion of the complainant himself, it cannot be said to be payment of gratification and if the payment is not by way of gratification, no question of presumption under Section 4 of the Prevention of Corruption Act 1947 arises. As against this, learned APP stated that merely because one of the witness present at the time of demand, is not examined, the prosecution case should not be disbelieved. The evidence of acceptance of money by the appellant during the trap is borne out by finding of the powder on both the hands which is in consonance with the prosecution case as the appellant has counted the notes in presence of the complainant and panch witness and therefore, presumption under Section 4 arises which the appellant has failed to rebut and the conviction is therefore, legal.
7. In view of the limited controversy raised before me, it would be sufficient to refer to certain material aspects of the matter which go to the root and falsify the entire case of the prosecution.
8. The appellant was obviously not having any authority to grant permission to the complainant to re-construct his hut. In the face of the fact that even according to the complainant when permission was refused by the authority, he did construct the hut, the complainant was eager to see that the forest officer does not take any action for having used forest wood in the re-construction of the hut. The complainant was therefore, highly interested in involving somebody from the department.
9. The complainant claims to have brought the amount of Rs. 600/- by raising loan from the Society. If it was so, then documentary evidence to that effect was available and the Investigating Officer could have secured that evidence. However, that important piece of evidence has not been collected for the reasons best known to him.
10. This apart, admittedly according to the prosecution at the time of the earlier demand, 2 witnesses were present and one of whom viz., Kotwal is living. The prosecution has chosen not only not to examine him but it appears that even his statement was not recorded during the course of investigation and no attempt was made by the Investigating Officer to get himself satisfied regarding the complainant's assertion of demand having come from the appellant for illegal gratification. While considering the evidence of prosecution it is necessary to bear in mind the importance of evidence of prior demand which if trustworthy makes the trap a legitimate to eradicate corruption otherwise it could be an illegitimate trap.
11. In this connection, it would be worthwhile to refer to the Judgment of the Apex Court reported in Ramjanam Singh v. The State of Bihar, 1956 SC 643. The Apex Court has observed in paragraph-37 at page-651 as under :--
"Now, whatever the truth of this tale may be, it is evident from the prosecution case that this was not a case of laying a trap, in the usual way, for a man who was demanding a bribe but of deliberately tempting a man to his own undoing after his suggestion about breaking the law had been finally and conclusively rejected with considerable emphasis and decision.
Whatever the criminal tendencies of a man may be, he has a right to expect that he will not be deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law: and more particularly by those who are the guardians and keepers of the law. However regrettable the necessity of employing agents provocatures may be (and we realise to the full that this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.
The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve: not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside. This is the type of case to which the strictures of this Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, (A) apply."
12. Complainant Bapu Gavit (PW 1) has deposed as per his complaint, substance of which is already narrated in the earlier paragraphs. What is material to be pointed out from his evidence is that at the time of all the earlier demands, witness Motiram Kotwal was present, one Waghmare was specially called by him but unfortunately, Waghmare is no more. However, Motiram Kotwal is not examined not only in Court but even during investigation, Investigating officer did not make any attempt to record his statement. In this respect, I did ask the learned APP as to why at no stage, he was not examined. His reply was since Motiram Kotwal was not a prosecution witness, the non examination of Motiram Kotwal is not a lacuna. The question is not whether he is cited as a witness, the question that arises is that when at the investigation stage, prosecution had to rely solely on the evidence of interested witness Bapu Gavit and there was available one witness, then had Investigating Officer a genuine desire to find out what is the truth, he ought to have recorded statement of Motiram Kotwal. As he is not cited as a witness, then 2 inferences are possible, first is that he was not at all examined and the other is that he was examined but the statement was not favourable to the prosecution. In either of the case that makes the prosecution case suspect. I do not intend to say that in all cases the prosecution must examine all the witnesses but in cases of this type, where there is available one witness who could be said to be un-connected with the trap, then atleast reasonable explanation should come from the prosecution as to why his evidence is not recorded and attempt was not made to find out from him as to what actually happened at the earlier occasion when the complainant alleges that appellant demanded illegal gratification from him and even threatened him that if no payment is made, he will be prosecuted by the appellant.
13. In this connection, learned Advocate for the appellant placed reliance on a case reported in Ram Prakash Arora v. The State of Punjab, , wherein Supreme Court has laid down some guidelines regarding appreciation of evidence of trap witness. In paragraph-8 the Supreme Court made a reference to the case in State of Bihar v. Basawan Singh, 1959 SCR 195 equal to and pointed out that Joginder Singh and Dalbir Singh PWs were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the Court may look for independent corroboration before convicting the accused person.
14. Learned Advocate for the appellant also drew my attention to Panalal Damodar Rathi v. State of Maharashtra , in which 2 persons were prosecuted. The appellant before the Supreme Court was a Police Prosecutor, the other co-accused was a Constable and the prosecution case was that demand was from the appellant whereas in the trap incident, money was accepted by the Constable who was already acquitted when the matter went to the Supreme Court. In that case the panch witness (PW 3) did not make a mention about the appellant asking the complainant whether he had brought money and the complainant replying in the affirmative and asking the complainant to pay money to the 2nd accused. This omission by (PW 3) to mention the applicant's name was considered and there was no corroboration to testimony of complainant regarding the demand of money by the appellant. It was held that evidence of complainant on this aspect cannot be relied on. It is therefore, necessary to minutely scrutinise the evidence of the complainant and the panch witness. In the examination-in-chief, itself the complainant while narrating the incident of trap stated that when he went in company of Pagare (PW 2) and they sat down under the tree, the appellant who had gone for answering nature's call at some distance, came with co-accused and enquired from him as to whether he had come fully prepared as decided and again asked whether he had brought money. On reply being given in the affirmative, he expressed that the hut is worth Rs. 8000/- where upon, he told the appellant that he has brought Rs. 600/- as per the say of accused and promising him not to worry, Appellant asked him to pay the money and he paid the currency notes to the appellant. On getting the currency notes and counting them with both the hands, appellant told him that it was O.K. and kept the currency notes in the shirt pocket and thereafter a very material statement is made by the complainant that he asked the accused/appellant to issue him receipt and appellant explained how he could issue receipt as it was bribe and thereafter signal was given. If complainant was fully conscious of the fact that appellant was demanding bribe and although he had no money, he has borrowed money in order to see that his hut is not demolished and he had to grease the palms of appellant due to which he approached the A.C.B. office in order to trap him, it is not at all possible that complainant would demand receipt. This is in examination-in-chief and is further borne out even in his cross-examination wherein he deposed that he stated even in statement before the police that he demanded receipt of Rs. 600/- but appellant replied how can receipt be issued. However, he is unable to explain why it does not find place in police station. He is therefore, firm on the statement that he demanded a receipt. In my view, this is a very crucial part of his evidence which has not been properly appreciated by the trial court. In case the complainant was consciously tendering the amount of bribe, that also in an arranged trap, there was no question of demanding receipt to the appellant/accused and it is obvious that he was tendering it under some pretext or the other even though not demanded by the appellant in order that the trap should succeed and therefore, on handing over money, he immediately put the question to the appellant/accused demanding receipt. If he was paying that amount under some guise, of fine or deposit or price of the forest wood used by him, then alone he would demand receipt and therefore, prosecution case that even during the trap appellant demanded bribe is totally unreliable.
This apart, the story of firewood worth Rs. 8000/- having been utilised by the complainant is not stated anywhere in the complaint and finds place for the first time when the complainant entered the witness box which is the cause for the appellant to demand Rs. 600/-. Even panch witness Pagare (PW 2) categorically stated in his examination-in-chief that after the accused put the currency notes in his shirt pocket, he expressed that he would issues receipt of Rs. 100 or Rs. 200/- and even the acquitted accused expressed that receipt was required to be issued. This reinforces the earlier inference that there was talk of receipt during the trap incident and that leads to an inference that the appellant was not demanding it as a bribe. He did not accept it as a bribe. He was accepting some amount for which he has to issue receipt and therefore, when it came in evidence of the complainant, an attempt was made to improve upon it through the panch witness by stating that the appellant was expressing that he would issue receipt of a lesser amount.
15. The suspicion created in such a situation in the entire case of prosecution is further reinforced by the evidence of Investigating Officer PI Chandrakant Bankar. Admittedly according to the prosecution the complaint was lodged on 21-11-1987 and the trap was arranged on 22-11-1987. It is not the prosecution case that prior to 21-11-1987, complainant had approached any authority of the Anti Corruption Department. In the circumstances, it is surprising that at the very beginning of his evidence, (PW 3) stated that on 17-11-1987 i.e. 4 days prior to lodging of a complaint with the Anti Corruption Department, Mr. Tore, Addl. Superintendent, Anti Corruption, Nashik, told him that the complainant Bapu was expected to come to ACB Office on 21-11-1987, Addl. Superintendent is thus a man who knows the things well in advance before the incidents takes place. On 17-11-1987 nobody could imagine that on 21-11-1987 complainant is to come to Anti Corruption office for lodging complaint and if on 17-11-1987 Add. Superintendent has given instructions then somebody had already approached the higher officers of Anti Corruption Department to arrange for a trap even before complaint was lodged. It was thus already decided to trap and it was known well in advance to Inspector Bankar and his Superiors that on 21-11-1987 complainant is to approach Anti Corruption Office for lodging complaint. This is not a slip of tongue. Even the letter to the Executive Engineer to depute panchas was given on 19-11-1987 i.e. 2 days in advance before the complainant approached the Inspector. It clearly shows that entire arrangement was made earlier of laying a trap and thereafter the complainant approached Anti Corruption Inspector for lodging a complaint. When questioned about this, the learned APP had no reply as no explanation could probably be given to the same from the record. The entire complaint and evidence of complainant is thus highly suspicious. The complainant has been used by some other person who had some grudge against the appellant for his actions in the capacity of the public servant and employee of the forest department, who by the nature of his duties is required to take action against number of persons. It was suggested in cross-examination of Bankar (PW 3) that one Mr. Gavit MLA and his followers had met Addl. Superintendent Tore and requested him that the appellant should be implicated in some (false) case as he was a strict officer and police officers always used to please MLAs and therefore, entire investigation is highly prejudiced and biased. Unless something had happened behind the curtain, it is not at all probable that on 17-11-1987, Addl. Superintendent Tore would instruct the Inspector that on 21-11-1987 complainant would approach Anti Corruption Department and on 19-11-1987 itself letter would not be sent to the concerned officer of another Department for deputing panch witness on 21-11-1987. The panch witness has also stated that on 20-11-1987 his superior Executive Engineer asked him and another employee to remain present in the ACB office at 5.00 P.M. and therefore, they went on ACB office on 20-11-1987 by 5.00 P.M. that is even before the complainant approached the ACB Inspector for lodging complaint. On that day itself they introduced themselves to PI Bankar and then Bankar asked them to come on 22-11-1987. When normally the decision to arrange a trap would be taken after the complainant approached ACB, but here the decision was taken even earlier of lodging of complaint.
16. Another aspect of the matter is in such a situation the entire investigation is conducted by the same Inspector who arranged the trap and lodged the FIR. Normally, investigation is not to be conducted by the person who lodges a complaint because he is interested in the success of his complaint. In the case of Megha Singh v. State of Haryana reported in 7995 AIR SCW 3477, in paragraph-4 of the Judgment the Supreme Court has observed that:--
"We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Criminal Procedure Code. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
It is unfortunate that all these material aspects of the evidence have not been properly considered and given significance to by the learned trial Judge.
17. This is the reason why the Investigating Officer did not find it necessary to get himself satisfied whether the complainant had really taken loan from the Society when documents of the same would have corroborated the statement of the complainant to that effect. For all these reasons, I find that the learned trial Judge has been swayed by the fact that hands were powdered and he came to the conclusion it was acceptance of gratification by the appellant the burden was on him to show that it was not gratification or was a legal remuneration. According to me, the very fact that the complainant himself immediately demanded receipt from the appellant after handing over money, is an indication of the fact that he was conscious that it was being paid as legal remuneration and not as a bribe.
In view of this, I find that the Appeal must succeed and the conviction of the appellant must be quashed and set aside.
18. Appeal is allowed. Conviction of the appellant under Section 5(1)(d) of Prevention of Corruption Act i.e. [under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act. 1988 as is charged] and the consequent sentences are set aside. Appellant/accused is acquitted of all the charges-levelled against him. His bail bonds shall stand cancelled.