Bombay High Court
Jitendra Kumar Jain vs Cental Bureau Of Investigation And Anr on 3 December, 2014
Author: Abhay M.Thipsay
Bench: Abhay M. Thipsay
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1146 OF 2012
JITENDRA KUMAR JAIN
Aged 45 yrs, Occupation Joint
Director, Delhi,
Residing at Flat No.7,
Gr.floor, Delhi Administration
Officer Flats, 33, Rajpur Road,
Civil Lines, Delhi 54 .. APPELLANT
Versus
1 CENTRAL BUREAU OF INVESTIGATION,
Anveshan Bhawan, C.G.O Complex,
New Delhi 3.
Through Union of India, having
their office at Aayakar Bhavan,
New Marine Line, Mumbai-20
2 STATE OF MAHARASHTRA .. RESPONDENTS
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Mr.Sushil K. Gupta i/b Mr.Y.R. Mishra, Advocate for the appellant.
Mr.Rajesh Desai, Advocate for respondent CBI.
Mrs.M.R.Tidke, APP for the Respondent State.
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CORAM : ABHAY M. THIPSAY, J.
ORDER RESERVED : 14th AUGUST 2014
ORDER PRONOUNCED : 3rd DECEMBER 2014
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ORAL ORDER :-
1 This Appeal is directed against the judgment and order dated 21st September 2012 delivered by the Special Judge, Silvassa, in Special Case No.1 of 2009, convicting the appellant who was the accused in the said case of offences punishable under sections 7 and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. By the said judgment and order, the learned Special Judge sentenced the appellant to suffer Rigorous Imprisonment for three years, and to pay a fine of Rs.5,000/-, in default to suffer Rigorous Imprisonment for three months in respect of the offence punishable under section 7 of the Prevention of Corruption Act (hereinafter referred to as 'the P.C. Act'); and to suffer Rigorous Imprisonment for three years and to pay a fine of Rs.10,000/-, in default to suffer Rigorous Imprisonment for six months in respect of the offence punishable under section 13(2) read with section 13(1)(d) of the P.C. Act.
The learned Judge directed that the substantive sentences would run concurrently.
2 The prosecution case, as put forth before the trial court may be stated as under :-
::: Downloaded on - 03/12/2014 23:47:40 :::Tilak 3/40 APPEAL-1146-12(J).sxw Amrutbhai Patel (PW 1), a resident of Baldevi, had entered into an agreement to purchase a certain piece and parcel of land situate at Silli, Dadra and Nagar Haveli, from one Satish Chandra Tamboli for Rs.1,25,000/- per acre. The said land was agricultural land, and therefore, for purchasing the same, permission from the Collector was required under the provisions of Dadra and Nagar Haveli Land Reforms Regulations and Rules.
Amrutbhai Patel and Satish Tamboli had therefore, filed an application seeking such permission for execution of the sale deed.
The said application was pending and the file was lying in the office of the appellant who was then the Resident Deputy Collector (RDC) Silvassa, for inquiry. Amrutbhai Patel had approached the appellant on 16th November 2006 and had made inquiries about his pending file when the appellant had assured him that he would look into the file.
That, on 29th December 2006, Amrutbhai Patel received a telephone call from Vijay Matera (PW 4) Talathi of Kilvani Panchayat. Vijay Matera informed Amrutbhai Patel that the appellant had asked him (Amrutbhai) to see the appellant.
Amrutbhai's son was not well and was hospitalized at that time, ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 4/40 APPEAL-1146-12(J).sxw and that therefore, Amrutbhai informed Vijay Matera (PW 4) that he was unable to meet the appellant on that date, but that he would approach the appellant after his son would be discharged from the hospital. That, on 2nd January 2007, Amrutbhai contacted the appellant in his office at Silvassa at about 5.00 p.m and that at that time, the appellant told him that he had gone through the file. The appellant told Amrutbhai that he (appellant) used to charge an amount of Rs.15,000/- per acre for granting permissions in respect of sale or purchase of the land. The appellant demanded an amount of Rs.60,000/- from Amrutbhai as a consideration for granting permission to purchase the land. The appellant also told Amrutbhai that he should pay the amount immediately, otherwise his file would be lying there for six months, and that he would not get permission. Amrutbhai requested the appellant to grant some time.
That, on 4th January 2007, Vijay Matera again made a telephone call to Amrutbhai on Amrutbhai's mobile telephone, and informed him that the appellant had called him (Amrutbhai).
Amrutbhai did not want to pay the bribe amount as had been demanded by the appellant, (hereinafter referred to as 'the accused') and therefore, on 5th January 2007, he went to the office ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 5/40 APPEAL-1146-12(J).sxw of CBI, ACB, Mumbai and approached the Superintendent of Police, CBI ACB - one Shri Saxena. Amrutbhai submitted his complaint in writing, on the basis of which the First Information Report came to be registered, and the matter was entrusted to Shri Badenkal (PW 3) - Inspector of Police, CBI, ACB. Shri Badenkal then made enquiry with Amrutbhai, whereupon Amrutbhai narrated his grievance to Shri Badenkal. Badenkal wanted to verify the correctness of the allegations made by Amrutbhai, and therefore, called two panchas - Sawant (PW 2) and Unawane. In the presence of the panchas, he asked Amrutbhai to make a telephone call to the accused on the official landline number of the accused, and made arrangements for recording the conversation that would take place between Amrutbhai and the accused. Amrutbhai then made a telephone call to the accused which was attended by Mrs.Maria (PW 5) - P.A of the accused, who informed Amrutbhai that the accused was not present in his office, and that Amrutbhai should call again after some time. Amrutbhai made another telephone call to the accused as per the directions of Shri Badenkal, and this time, Mrs.Maria transferred the call to the accused. The conversation that took place between Amrutbhai and accused came to be recorded in the cassette. Since on the basis of the conversation that had taken ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 6/40 APPEAL-1146-12(J).sxw place, the correctness of the allegation of demand of bribe by the accused could not be verified, Badenkal decided to verify the correctness of the allegations in the complaint on the next working day i.e. 8th January 2007. He asked Amrutbhai Patel to see him at Bhilad Check Post on 8th January 2007.
On 8th January 2007, Badenkal, panchas and members of the police party went to Bhilad check post at about 12 noon as pre-decided, and Amrutbhai also came there. Badenkal instructed Amrutbhai to see the accused in his office. Amrutbhai was given a tape-recorder, and was asked to record the conversation that would take place between him and the accused. Amrutbhai then went to the accused in his office, had conversation with the accused and that, at that time, the accused told Amrutbhai to pay the amount to Vijay Matera (Talathi). Amrutbhai then requested the accused to inform Vijay Matera in that regard by making a telephone call to him. The accused then said that he did not know the telephone number of Vijay Matera, but that Amrutbhai should bring Vijay Matera to him. Amrutbhai then went back to Bhilad check post. It was then decided by Shri Badenkal to lay a trap against the accused. An amount of Rs.60,000/- was collected from Amrutbhai, and the usual procedure that is adopted for laying ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 7/40 APPEAL-1146-12(J).sxw down a trap i.e. of applying phenolphthalein powder to the notes produced by Amrutbhai, and of noting down the numbers of the said notes, etc. was followed. The bundle of notes was kept in the shirt pocket of Amrutbhai. The tape-recorder, with a microphone attached to, was also concealed on the person of Amrutbhai.
Amrutbhai and panchas were explained the characteristics of the phenolphthalein powder. Amrutbhai was then asked to make a telephone call to Vijay Matera. Accordingly, Amrutbhai made a call and asked Vijay Matera to come with him while he would be approaching the accused. Amrutbhai went to Mamlatdar office, Silvassa, by his car as Vijay Matera was to meet him there, and the panchas and raiding party followed him in another vehicle. From the Mamletdar office, Amrutbhai and Vijay Matera both went towards the office of the RDC situate in the Collectorate, Silvassa.
They both entered inside the cabin of the accused. The accused was, at that time, dictating some matter to Mrs.Maria. After the dictation was over, Mrs.Maria left the cabin of the accused and went towards her cabin, whereafter there was conversation between the accused and Amrutbhai regarding the bribe amount and the work of Amrutbhai. The accused demanded the amount of Rs.60,000/-, and asked Amrutbhai to pay the same to Vijay Matera. Vijay Matera and Amrutbhai came out of the chamber of ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 8/40 APPEAL-1146-12(J).sxw the accused, but when Amrutbhai was giving the amount to Vijay Matera, he refused to accept the same. He told Amrutbhai to pay the amount to the accused himself. Amrutbhai then told Vijay Matera, that, in that case, he should inform the accused accordingly. Vijay Matera went in the chamber of the accused, and informed him that he was not ready to accept the amount.
The accused then called Amrutbhai in his chamber, and on being told by Amrutbhai that Vijay Matera was not accepting the amount stated, "Alright, give it to me" ( fBd gS] eq>s ns fnft;s). When Amrutbhai was intending to take out the amount from his shirt pocket, the accused asked him to put the amount in a paper, and wrap the notes in the paper. Amrutbhai went out, collected a paper from a clerk working in a nearby room, wrapped the amount in a paper, and thereafter kept the said bundle of notes in the left side of his shirt pocket. Amrutbhai entered in the chamber of the accused, and paid the amount to the accused. The accused accepted the bundle of notes by his right hand, and kept it in the shelf of one iron rack which was in his chamber. Amrutbhai then went out of the room and gave the pre-determined signal to the CBI officials, where-after the raiding party and panchas entered the chamber of the accused, and caught him. The tainted notes were collected from the shelf of the rack in the cabin. Two glasses ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 9/40 APPEAL-1146-12(J).sxw of water containing sodium carbonate were brought and the accused was made to dip the fingers of both his hands, in each glass, separately. The right hand-wash of the accused turned pink, but that of the left hand did not show any change in the colour.
Similarly, solution of sodium carbonate was applied to the notes also, and thereupon, a portion of the notes also turned pink. The file of Amrutbhai Patel was found in the chamber, which was also seized. The cassette in which the conversation between Amrutbhai Patel and accused had been recorded was heard, and thereafter sealed. Mr.Badenkal, (PW 3) then arrested the accused.
He also seized certain other documents.
In the course of further investigation which was carried out by Shri B.M. Chonkar, Inspector of Police (PW 8), the specimen voice of the accused was recorded and sent for comparison with the voice in the recorded cassettes to the Central Forensic Science Laboratory (CFSL) at New Delhi. The statements of Amrutbhai and Vijay Matera were recorded under the provisions of section 164 of the Code also. On completion of investigation, sanction under section 19 of the Prevention of Corruption Act (for short 'the P.C.Act') was sought for, from the competent authority.
On receiving the same, a charge-sheet came to be filed against the accused.
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3 The accused pleaded not guilty to the charge of the
said offences that came to be framed against him. The defence of the accused is of false implication. According to him, Amrutbhai had some grudge against him as the accused had recorded some findings in an inquiry in the matter of escape of some prisoners from Silvassa jail, which findings were not liked by Amrutbhai.
According to the accused, Vijay Matera had also some grudge against the accused, as the accused had given a memo to him. The accused had also suggested that he had, on assuming the charge of RDC Silvassa, issued a circular which provided for a better and proper scrutiny of the proposals for sale and purchase of agricultural lands,seeking permission of the collector, and has suggested this might not have been liked by Amrutbhai.
4 The prosecution examined 8 witnesses in the course of the trial, six of whom have already been referred to earlier. The other two are Jitendra Kumar Singh(PW 6), Desk Officer, who had signed the sanction order and Ms.Ranjmati B. Bhagle (PW 7),a Lower Division Clerk working in the Mamletdar office, Silvassa.
The accused examined one Mrs.Kotian, who was, at the material time, working as P.A to Collector,Silvassa in his defence. In addition to the oral evidence of these witnesses, several documents were tendered in evidence, marked and exhibited.
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5 After considering the evidence adduced during the
trial, the learned Special Judge convicted and sentenced the accused, as aforesaid.
6 I have heard Mr.Sushil Gupta, learned counsel for the accused. I have heard Mr.Rajesh Desai, learned counsel for the CBI. I have heard Mrs.M.R. Tidke, learned APP for the State.
Apart from the oral arguments advanced by them, the learned counsel for the accused and the learned counsel for the CBI have also filed written submissions in the matter. They have also relied upon authoritative pronouncements of the Supreme Court of India in support of their respective contentions.
7 With the assistance of the learned counsel for the accused and the learned counsel for the CBI, I have gone through the evidence adduced during the trial. I have carefully gone through the impugned judgment.
8 It is contented by Mr.Sushil Gupta, learned counsel for the accused that the order of conviction as recorded by the learned Special Judge is contrary to law. He contended that the ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 12/40 APPEAL-1146-12(J).sxw prosecution had failed to establish the case against the accused.
He contended that the trial court has not at all taken into consideration the contentions advanced before it on behalf of the accused. Mr.Rajesh Desai, learned counsel for the CBI, on the other hand, contended that there was sufficient and satisfactory evidence to prove the guilt of the accused beyond reasonable doubt, and that the impugned judgment and order is proper, legal and in accordance with law.
9 The first contention advanced by the learned counsel for the accused is that in the present case, the alleged demand of illegal gratification itself has not been proved. He also submitted that the cassettes and the transcripts of the recorded conversations had wrongly been admitted in evidence. He also submitted that the theory that the accused wanted Vijay Matera to act as a middle man, is not logical in the facts and circumstances of the case, and is not supported by the evidence on record. He also contended that the receipt of the tainted money by the accused had also not been proved. He emphasized that the money was not recovered from the person of the accused, but from an iron rack inside the chamber of the accused.
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10 It would be proper to first examine the evidence in
respect of the demand of gratification, allegedly made by the accused.
11 According to Amrutbhai, on 29th December 2006, he received a telephone call on his mobile phone from Vijay Matera (Talathi), and that Vijay Matera told him that the accused had called him (Amrutbhai). Amrutbhai thereafter, visited the office of the accused on 2nd January 2007. It is at that time that the demand of illegal gratification of Rs.60,000/- was, for the first time, conveyed by the accused to Amrutbhai.
12 As per the version of Amrutbhai, he again received a call from Vijay Matera on 4th January 2007, but Amrutbhai did not approach the accused on that day. Instead, on 5 th January 2007, he went to the CBI office.
13 It is contended that as regards the demand made by the accused on 2nd January 2007, there is no evidence except the uncorroborated testimony of Amrutbhai himself. It is submitted that looking to the character of Amrutbhai, it was unsafe to accept his uncorroborated testimony.
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14 Indeed, in the cross-examination of Amrutbhai, it has
been revealed that he has been convicted of an offence punishable under section 302 of the IPC. Appeal filed by him against the said conviction is pending. It is also revealed that a case in respect of an offence punishable under section 307 of the IPC is pending against him in the Sessions Court at Silvassa. He has also admitted that about 7 to 8 criminal cases had been filed against him, and that preventive action in respect of anti social activities had also been taken against him on three occasions. Amrutbhai claimed to be a social worker. He had contested Parliamentary elections in the year 1998. It is also revealed that he has frequently changed the political parties. He is a member of the bar, practicing on the criminal side. He had, in the past also, filed complaints of corruption against public servants. Indeed, considering all these aspects, the evidence of Amrutbhai needs to be carefully scrutinized and cannot be safely accepted without a thorough and proper scrutiny.
15 There is certainly no rule that uncorroborated testimony of an interested or partisan witness can never be accepted as sufficient for establishing a fact. This would be so, ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 15/40 APPEAL-1146-12(J).sxw even if a doubt is cast on the character of such witness. Such uncorroborated testimony, however, has to very carefully scrutinized, and the appreciation of such evidence would be required to be done consistently with the principles which govern the appreciation of evidence in general. While appreciating such uncorroborated testimony, 'whether corroboration thereto could have been obtained and that, still it has not been obtained', would be a relevant factor. In the instant case, Amrutbhai is said to have received a telephonic message from Vijay Matera on 29th December 2006, pursuant to which he went to the office of the on 2 nd January 2007 and met him. Amrutbhai had received a telephone call from Vijay Matera on his mobile telephone, and as such, it was quite easy to prove that, by production of Call Data Records in that regard. No Call Data Records were produced to support the theory of Vijay Matera having told Amrutbhai to meet the accused as per the message allegedly given by the accused. Amrutbhai again received a call from Vijay Matera on 4 th January 2007 - this time also on the mobile telephone of Amrutbhai. However, there is no record in respect of this telephone call also. What is further significant is that Vijay Matera, in his evidence, does not make any mention of the telephone call supposedly made by him to Amrutbhai on 4th January 2007. It is after this call - according to ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 16/40 APPEAL-1146-12(J).sxw Amrutbhai - that Amrutbhai decided to go to the CBI and lodge a complaint. In this case, the necessity of establishing the fact of initial demand in a satisfactory manner was more than usual, as the tainted money had not been recovered from the person of the accused. Ordinarily, therefore, one would expect the Investigating Agency to have collected record in respect of the telephone calls received by Amrutbhai from Vijay Matera, which could easily be procured. Interesting, PI Badenkal speaks of having collected the call records of the calls made and received by Amrutbhai on 29 th December 2006, but no such records were produced before the Court. Had the CDRs reflected telephonic contacts between Vijay Matera and Amrutbhai on 29th December 2006, that would have lent some assurance to the claim of Amrutbhai. There is no explanation why the CDRs were not produced before the Court.
The Investigating Officer did not collect any CDRs in respect of the telephonic contact between Vijay Matera and Amrutbhai on 4 th January 2007. According to him, he had collected the CDRs in respect of the calls made on 29 th December 2006 only. Now, why CDRs in respect of the other calls were not procured, is difficult to understand and PI Badenkal in his evidence has stated that he could not assign any reason for not obtaining the call details for th the period after 29 December 2006.
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16 Amrutbhai went to the office of CBI on 5 th January
2007 and lodged a complaint. It may be recalled that for
verification of the complaint, Amrutbhai was made to speak to the accused on telephone, and when the second call was made by Amrutbhai, on that day, he could contact the accused. The conversation that took place was recorded. The transcript thereof was tendered in evidence. The conversation which is reflected in the transcript panchnama (Exhibit-54) reads as under :-
Amrut Patel Sir, eSa oks Amrut Patel cksy jgk gaqA J.K. Jain gkaA Amrut Patel ueLdkj lkgsc A J.K. Jain gkaA Amrut Patel vkidks disturb dj jgk gaqA igys Hkh phone fd;k FkkA J.K.Jain cksyks Amrut Patel Vijay Talathi lkgc us crk;k Fkk] ysfdu esjk cPPkk fcekj gSA J.K. Jain Amrut Patel Hallo -Hallo - Hallo 17 It is interesting to note that in this conversation Amrutbhai refers to the message of Vijay Matera, (supposed to th have been given on 29 December 2006), but does not refer to his nd alleged meeting with the accused on 2 January 2007.
He also is heard saying that he had previously also 'made a telephone call' (igys Hkh Qksu fd;k Fkk ). If Amrutbhai had met the accused on 2 nd ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 18/40 APPEAL-1146-12(J).sxw January 2007 pursuant to the message received by him from Vijay Matera on 29th December 2006, he would have, in all probability, referred to the meeting that had taken place on 2 nd January 2007, and not only to the message received by him from Vijay Matera.
He mentions about his having made a telephone call to the accused even before, but not about his having met the accused before. Thus, the conversation that is alleged to have taken place th on 5 January 2007 does not lend any support to the theory that a meeting between the accused and Amrutbhai had taken place on nd 2 January 2007. Rather, it creates a doubt about such meeting having taken place.
18 The complaint lodged by Amrutbhai was sought to be verified by the Investigating Officer Mr.Badenkal, and it was for that purpose, that Amrutbhai was made to talk to the accused on telephone on 5th January 2007. However, the conversation that took place did not afford any verification with respect to the alleged demand of bribe made by the accused from Amrutbhai.
Not only this is clear from the record of the conversation itself, but has also been admitted by the Investigating Officer PI Badenkal (PW 3) in his examination-in-chief itself. According to him, since the verification of the demand of bribe could not be done on 5th ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 19/40 APPEAL-1146-12(J).sxw January 2007, he had decided 'to continue the process of verification on the next working day i.e. 8th January 2007'.
However, though according to him, the verification was to be done, actually he made all the arrangements for laying a trap. He along with panchas, came to Bhilad check post and asked Amrutbhai to be present there on that date without doing any verification in respect of the complaint of demand of illegal gratification.
19 The record of conversation that took place between the accused and Amrutbhai on 8th January 2007, also does not provide any corroboration to the theory of the accused having made a demand of illegal gratification. According to Amrutbhai, on 8th January 2007, as pre-decided, he went to the accused. As decided, the conversation that took place between him and the accused was recorded by him. The transcript of the conversation forms a part of panchnama (Exhibit-54) This conversation also does not support the theory of the accused and Amrutbhai having nd met on 2 January 2007 . In fact, the conversation suggests that the accused had not identified Amrutbhai at all. True, according to Amrutbhai, the accused deliberately pretended that he did not know Amrutbhai, but the possibility of this claim of Amrutbhai ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 20/40 APPEAL-1146-12(J).sxw being an attempt to overcome the failure to establish the demand by recording the conversation, also needs to be kept in mind. The transcript of the conversation not only does not support the theory of a demand having been made previously by the accused, but on the contrary, creates a further doubt about this aspect of the matter. The conversation indicates that when Amrutbhai opened the subject of 'giving', the accused said that he had not identified him. Amrutbhai was required to refer to 'Vijay Matera', 'sale permission in respect of the land at Silli' etc, whereupon the accused seems to have been made aware of the subject. Since the conversation is not fully audible, no definite conclusion can be arrived at, but the least that can be said is that the conversation fails to indicate that any demand of illegal gratification was made by the accused.
20 However, that is not the most crucial aspect of the matter. It may be recalled that according to the prosecution case, th Viay Matera and Amrutbhai on 8 January 2007 went inside the chamber of the accused when discussion regarding money took place, and the accused is said to have, in this meeting, told Amrutbhai to hand over the money to Vijay Matera, in Vijay Matera's presence. That, thereafter, Amrutbhai and Vijay Matera ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 21/40 APPEAL-1146-12(J).sxw both came out, and when Amrutbhai attempted to give money to Vijay Matera, he refused to accept it. Apart from the fact that his refusal to accept the money does not fit in properly with the prosecution case which is to the effect that Vijay Matera was to act as a middle man, why did Vijay Matera not tell the accused in his chamber itself that he will not accept the money, and why would he, after going out of the chamber, tell Amrutbhai that he would not accept the money, is difficult to comprehend. This is more so because the record of the conversation as per the transcript thereof does not support that any utterance to the effect that money should be paid to Vijay Matera, was made by the accused.
According to Amrutbhai, accused said " fBd gS] mls ns nks ". However, the transcript of the recorded conversation shows that what the accused supposedly said is " vki mls dj fnth;s ok" . It is therefore, clear that this conversation does not support the claim of Amrutbhai. Rather it is in conflict with the claim made.
21 However, even that is not the crucial aspect of the matter. When Amrutbhai attempted to give the money to Vijay Matera,Vijay Matera refused to accept the amount and asked Amrutbhai that it should be paid to the accused only. It has already been observed that this does not fit in with the theory of Vijay ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 22/40 APPEAL-1146-12(J).sxw Matera having been selected by the accused to act as a middle man, but what is important is, when Amrutbhai thereafter went alone inside the chamber of the accused, he did not record the conversation. This was the most crucial conversation in which the accused is supposed to have said " fBd gS]eq>s ns fnft;s " (money) .
Amrutbhai ought to have been aware that the conversation which would take place between him and the accused after his re-
entering the chamber of the accused, and directly offering money to him would be crucial, and therefore, that he did not record the conversation that took place in spite of having made full preparations to record the same and having been provided with a tape-recorder, is suspicious. There was no reason for him not to again start the recording before entering inside the chamber of the accused. It may be observed in this context that there was no reason for him to stop the recording in the first place, while talking to Vijay Matera, as, since Vijay Matera was to accept the money on behalf of the accused, that conversation :- i.e. the one between Amrutbhai and Vijay Matera would also be very material.
22 It is difficult to place reliance on the evidence of Amrutbhai. In the context of his failure to record the most crucial conversation that is supposed to have taken place between him ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 23/40 APPEAL-1146-12(J).sxw and the accused, it may also be observed that as per the initial plan, Amrutbhai was supposed to take a panch with him when he was to visit the office of the accused on 8th January 2007 for the first time (first visit). When Badenkal told Amrutbhai to take the panch with him, Amrutbhai did not allow it to happen by telling Badenkal that 'the accused was of a suspicious nature', and that 'he would not talk about the bribe in the presence of a third person'.
Significantly, no verification of the demand of bribe had been made by that time, and though preparations for laying a trap had already been made, according to Badenkal, the verification was yet to be done. Thus, at that crucial stage also, Amrutbhai did not keep any witness with him, and preferred to be alone. It has already been observed that the conversation that took place in the said meeting (which came to be recorded), does not support the theory of accused having made a demand for bribe earlier, or even during the said meeting. Thus, Amrutbhai created situations preventing collection of corroborative evidence, firstly by keeping the panch out of it while going to the office of the accused on 8 th January 2007 (first visit), and then by not recording the conversation between him and the accused when he re-entered the chamber of the accused after Vijay Matera had refused to accept the money.
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23 It is well settled that the demand of gratification is the
foundation of the 'trap cases'. It has been laid down in several pronouncements of the Apex Court that unless the evidence of the initial demand is satisfactory, the whole evidence obtained by laying a trap, is required to be viewed cautiously. The argument that it would not be necessary for the prosecution to prove 'demand', and it would be sufficient to establish that the accused had 'obtained' illegal gratification for proving the charge of an offence punishable under section 7 of the P.C. Act, has been often rejected by the Superior Courts and by the Apex Court. In State of Himachal Pradesh Vs. Tej Ram (1990) Cr.L.J. 995, it was observed that if such an argument is accepted, the result would be catastrophic and anyone may come forward to level an allegation of corruption or bribery against a public servant by just pushing money into his pocket, or throwing the same at his table. It was held that the word 'obtains' has been intentionally used by the legislature, and has a definite meaning. Therefore, before anyone can be proceeded against on the allegations of having taken illegal gratification, it would be necessary to prove that it was as a result of 'demand' that the money was passed on. Passing of money is a consequence of the demand. Thus, where there is no satisfactory evidence with respect to the demand of gratification, the entire ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 25/40 APPEAL-1146-12(J).sxw prosecution case would be seriously affected. Undoubtedly, evidence of acceptance of money would also amount to circumstantial evidence of a previous demand in appropriate cases.
Inference of there having had a previous demand of illegal gratification can be properly drawn from the fact of acceptance of the money in appropriate cases, where the evidence of acceptance of money is of a sterling quality and the facts of the case are such as would justify such inference.
24 Even the evidence with respect to acceptance of bribe by the accused is not satisfactory. Needless to say that this has to be viewed in the light of the fact the weaknesses in the evidence in respect of the initial demand made by the accused, and that the trap was laid without verification of the aspect of a demand for bribe. In this context, that Amrutbhai did not record the conversation that took place between him and the accused immediately before the bribe amount was allegedly handed over to the accused by him, is significant and is, by itself, sufficient to create a reasonable doubt about the claim of Amrutbhai that he paid the tainted amount to the accused which was accepted by the accused. This is more so because the amount was recovered from an iron rack in the chamber of the accused, and not from the ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 26/40 APPEAL-1146-12(J).sxw person of the accused. The possibility of the amount having been planted there, cannot altogether be ruled out if the entire evidence that has been adduced during trial, is kept in mind.
25 Undoubtedly, some suspicion against the accused does arise because the hand wash of the accused turned pink. This would indicate that the accused had come in contact with the phenolphthalein powder that was applied to the currency notes, and this in turn would indicate that he had received and handled the amount. However, this evidence cannot be viewed in isolation.
Moreover, there are some curious aspects which have remained unexplained, and therefore, require careful thinking as to the weight that should be given to this piece of evidence. Firstly, the prosecution is unable to explain as to how it could happen when the amount had been wrapped in a plain white paper. The amount was found by the raiding party in the same condition i.e. being wrapped in a white paper. Now, the surface of the white paper would not have any phenolphthalein powder over it, and therefore, going by the facts as stated by the witnesses, there was no reason for the hand wash of the accused turning pink, even if he had accepted the packet containing currency notes from Amrutbhai. Secondly - and quite interestingly - the report from ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 27/40 APPEAL-1146-12(J).sxw the Central Forensic Science Laboratory shows that traces of phenolphthalein were found in the hand wash solution of the left hand of the accused also, though it is nobody's case that the amount was taken by the accused also by using his left hand.
Even if that phenolphthalein powder could not have come in contact with the hand of the accused because the currency notes had been wrapped in a white paper, is ignored, the fact remains that the presence of phenolphthalein powder on the left hand wash solution, remains unexplained.
26 It is true that these factors viz:- 'the hand wash of the accused turning pink, though the tainted amount had been wrapped in a plain white paper to which phenolphthalein powder had not been applied', and 'though the accused is said to have accepted the packet containing tainted money by his right hand, presence of phenolphthalein powder in his left hand solution, was also found' - by themselves would not be of great significance, and certainly would not be fatal for the prosecution. It is because there would be a number of possible explanation as to how it could have happened. What, however, cannot be overlooked is that there would be a number of possible explanations the other way also - i.e. consistent with the defence that the accused had ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 28/40 APPEAL-1146-12(J).sxw never received or accepted the tainted amount. Therefore, when the demand of bribe is not satisfactorily established, and when Amrutbhai appears to have kept the witness away, and also not recorded the conversation wherein the demand took place, it would be hazardous to hold the acceptance of bribe by the accused as proved only on the basis of the evidence of the hand wash of the accused turning pink. The theory of acceptance of bribe cannot be believed merely on the basis of the hand wash turning pink.
27 In this regard, the learned counsel for the accused has placed reliance on a decision of the Supreme Court of India. From the observations made by the Supreme Court of India in the case of P. Parshuram Reddy Vs. State of Andhra Pradesh, 2012 SCC Cr.552, it appears that when there would be no satisfactory evidence regarding the demand of bribe, and when independent witnesses had not heard the conversation between the complainant and the accused, the evidence of phenolphthalein powder would not be sufficient to convict an accused. In the instant case, in the light of the weaknesses in the prosecution case, not only with respect to the demand of bribe, but also with respect to its acceptance, it would not be possible to hold the accused ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 29/40 APPEAL-1146-12(J).sxw guilty only on the basis of the evidence of the hand wash of the accused turning pink.
28 The prosecution has relied upon the record of the conversations that took place between Amrutbhai and the accused in support of the alleged demand of money made by the accused.
The learned counsel for the accused advanced a number of contentions with regard to the admissibility of such material in the evidence. It does appear that the evidence of the tape-recorded conversation has not been properly admitted. The instructions given in the Criminal Manual issued by the High Court of Judicature at Bombay for the guidance of sub-ordinate criminal courts in that regard, have not been complied with by the learned Special Judge before admitting the evidence of the tape-recorded conversation.
29 However, in the view that I am taking, it is not necessary to go deeper into this aspect of the matter, but what needs to be observed is that the conversation is clearly - and admittedly - inaudible at several places. Moreover, the record of the conversation is not such, as can be safely accepted as supporting the oral account of the conversation, as is given by ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 30/40 APPEAL-1146-12(J).sxw Amrutbhai. In the record of the conversation in which the accused is said to have asked Amrutbhai to give the amount to Vijay Matera, there are references to 'LRO' and 'legal value'. The accused is also heard referring to the figure '67' (thousand). Going by the version of Amrutbhai, there would be no occasion to make a mention of '67 (thousand)', and the mention of LRO and 'legal value' also is clearly out of place. All these factors, coupled with the fact that even the conversation does not spell out any specific demand, the suspicion felt because of the mention of some amount being made by the accused, and that too, at the instance of Amrutbhai, is not sufficient to hold that the accused had indeed demanded illegal gratification from Amrutbhai. On the contrary, the transcript of the conversation gives an impression that Amrutbhai is trying to put some words in the mouth of the accused. The possibility of the reference to '60' and/or '67' being in the context of some other transaction cannot be ruled out.
Rather, such possibility appears to be quite likely. Not much reliance, therefore, can be placed on the evidence of the tape recorded conversations, even if the question of its admissibility into evidence, is kept aside.
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30 It does, however, appear that the accused, in all
probability, attempted to raise a false defence by showing that he had already written some matter by pencil, which was lying in the drawer of the table in his chamber, which would make it impossible for him to have demanded any gratification from Amrutbhai. It is difficult to place reliance on these writings (Exh -
61 colly). It also appears that he approached Amrutbhai and got some writings from him which would exonerate the accused from this case. However, these acts of the accused by themselves, would not indicate that he was guilty of the alleged offences. It might have been a thoughtless action of the accused generated by the fear caused due to his apprehension in this case. It is well settled that the burden of proving the guilt of an accused always rests on the prosecution. The prosecution is required to prove the guilt of an accused beyond reasonable doubt. The falsity of defence would be a circumstance adding strength to the prosecution case, but the falsity of defence can never take place of evidence that would be necessary for proving the guilt of an accused. When the prosecution is unable to establish its case on the basis of the evidence adduced by it, it cannot gain any advantage by pointing out the falsity of the defence. If the facts and circumstances of this case are kept in mind, it cannot be ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 32/40 APPEAL-1146-12(J).sxw helped observing that the well recognized principle 'that the prosecution must stand or fall on its own legs and will not derive any strength from the falsity of defence', cannot be better applied in any other case.
31 There are a number of suspicious features in this case which create a reasonable doubt of the truth of the prosecution case. They may be summarized as below :-
(a) There is absolutely no corroboration to the evidence of the initial demand made by the accused on 2 nd January 2007 except the oral testimony of the complainant Amrutbhai Patel (PW No. 2).
(b) Corroboration could have been obtained to some extent by producing the entry in the mobile telephone records of Amrutbhai showing that he had received a telephone call from Vijay Matera on 29th December 2006. This could have been done even by producing the CDRs in respect of Amrutbhai's mobile telephone. Interestingly, the Investigating Officer claims to have collected such records, but the same were not produced before the Court during evidence with no plausible explanation therefor.::: Downloaded on - 03/12/2014 23:47:40 :::
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(c) The aspect of the demand for bribe (made on 2 nd
January 2009) was to be verified and for verification thereof, the telephonic conversation that took place between the accused and Amrutbhai was recorded on 5th January 2007. The transcript of the recorded conversation, however, does not provide any 'verification' and does not even make any reference to the meeting that allegedly took place between the accused and Amrutbhai on 2nd January 2007. This is significant. Thus, the trap was laid without the verification of the demand of bribe being done.
(d) Even on 8th January 2007, the verification did not take place as the conversation that took place in the first meeting between the accused and Amrutbhai on that day, as reflected from the relevant transcript, does not lend any support to the theory of demand. In fact, it appears that the accused did not even identify Amrutbhai. The conversation which Amrutbhai made, does not refer to any previous meeting having been taken place between him and the accused.
(e) The recorded conversation is not audible at several places, but it does appear that some discussion regarding amount ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 34/40 APPEAL-1146-12(J).sxw finds place in the conversation recorded on 8 th January 2007.
However, the conversation is insufficient to show that the accused asked any amount to be paid to Vijay Matera. The claim of Amrutbhai that accused said ' mls ns nks ', is not found to be incorrect from the record of the conversation as reflected in the transcript thereof. According to Amrutbhai, the accused had made a categorical and clear demand of bribe from him on 2 nd January 2007, but the subsequent conversations that took place between the accused and Amrutbhai i.e on 5th January 2007 and 8th January 2007, do not spell out any such demand.
(f) Amrutbhai avoided being accompanied by a panch when the verification of the demand made by the accused was to be done, by saying that 'the accused was of a suspicious nature', and 'would not make the demand in the presence of a third person'. Similarly, Amrutbhai did not record the crucial conversation that allegedly took place when he re-entered the chamber of the accused after Vijay Matera had refused to accept the amount of bribe. Thus, when the crucial things are said to have happened, i.e the demand of bribe on 2nd January 2007, and the actual demand and acceptance of bribe by the accused on 8 th January 2007, Amrutbhai is the only person who was present. At ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 35/40 APPEAL-1146-12(J).sxw the cost of repetition, it may be mentioned that there is no plausible reason for Amrutbhai not having recorded the conversation that took place between him and the accused at that time, despite the fact that a tape recorder had been provided to him for recording the same.
(g) The theory of accused having selected Vijay Matera to act as a middle man, is difficult to understand in the light of the fact that the accused had issued a memo to him and also the fact that the accused did not even know his telephone number.
(h) The accused had been posted at Silvassa as the Resident Deputy Collector only a few days before the incident. On the contrary, Amrutbhai and Vijay Matera knew each other since a number of years. Vijay Matera has stated that he knew Amrutbhai since 10 years.
(i) The tainted amount was not recovered from the person of the accused. It was recovered from a shelf in the iron rack in the cabin of the accused situated at about 10 feet away from the chair of the accused.
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(j) The hand wash of the accused turned pink, but bow
could it happen when the notes had been wrapped in a white paper on the surface of which there could not be any phenolphthalein powder, is not clear. This is more mysterious because the hand wash of even the left hand showed traces of phenolphthalein powder as per the report from the CSFL.
32There is no clarity with regard to the role of Vijay Matera. His evidence does not show that there was any understanding between him and the accused, or that he knew that the demand of the accused was to be conveyed to Amrutbhai.
Whether he was acting at the instance of Amrutbhai (to trap the accused), or whether he was acting at the instance of the accused (to obtain illegal gratification), is certainly doubtful. Amrutbhai never attempted to record the conversation between him and Vijay Matera. It may be recalled that on 8 th January 2007, Amrutbhai met Vijay Matera at the Mamletdar office, and that then they both went to the office of the accused. Amrutbhai was having a tape recorder with him, and had been instructed to record the conversation that would take place between him and the accused.
Since Vijay Matera was thought to, and believed to be acting at the ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 37/40 APPEAL-1146-12(J).sxw instance of the accused, the conversation between Vijay Matera and Amrutbhai would be extremely relevant. However, Amrutbhai chose not to record the conversation which took place between him and Vijay Matera. This, indeed, creates a doubt about the truth of the prosecution version. This doubt is strengthened if these aspects are viewed along with the fact that the CDRs in respect of the telephonic contacts between Amrutbhai and Vijay Matera were not collected during investigation, and that, no explanation for collecting the same could be given by the Investigating Officer. It may be recalled that in spite of claiming that the CDRs in respect of the calls made and received by Amrutbhai on 29th December 2006 were collected in the course of investigation, the same were not tendered in evidence.
33 In my opinion, these aspects when considered together, create a reasonable doubt about the truth of the prosecution version.
34 I have carefully gone through the impugned judgment. The learned Special Judge has not realized these weaknesses in the prosecution case, and has not appreciated the evidence in proper perspective. He has observed that the evidence ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 38/40 APPEAL-1146-12(J).sxw of Amrutbhai was 'corroborated by the evidence of other witnesses' without realizing that the corroboration was not with respect to the aspect of demand of bribe, and acceptance thereof. The learned Special Judge failed to understand that in cases of this nature, even if a false complaint is intended to be made and is, in fact made, the facts of 'reporting to the Investigating Agency about the demand, the calling of the panchas, the lodging of the complaint, the laying of trap', would be the same and the evidence, so far as these aspects are concerned, would be the same whether the allegation of demand of bribe is true or false. If the evidence of witnesses with respect to these facts corroborates the evidence of one another, that would be quite immaterial.
35 The corroboration referred to by the learned Special Judge is to the other aspects i.e. of Amrutbhai reporting the matter to the CBI, of his telephoning to the accused, of the trap laying officer calling the panchas, of the police party and panchas proceeding to Bhilad check post, of Amrutbhai contacting Vijay Matera, etc. These facts are in no way inconsistent with the theory of Amrutbhai intending to falsely implicate the accused with the help of Vijay Matera. What was necessary for the learned Special Judge to have seen was that whether there is any corroboration to ::: Downloaded on - 03/12/2014 23:47:40 ::: Tilak 39/40 APPEAL-1146-12(J).sxw nd the demand of bribe allegedly made by the accused on 2 January 2007. The Special Judge also should have considered whether there was any corroboration to the demand made by the accused on 8 th January 2007 by saying that ' fBd gS] eq>s ns nk s'. Obviously, there was no such corroboration. In fact, neither the telephone call made on 5th January 2007, nor the conversation that took place in the first visit made by Amrutbhai with Vijay Matera to the chamber of the accused, provided any such corroboration. This should have been viewed in the context that corroboration could have been obtained by recording the conversation that took place between him and the accused immediately before the bribe amount was allegedly handed over. After keeping in mind that there is no corroboration to the testimony of Amrutbhai on the aforesaid two important aspects of the matter, the learned Judge should have considered whether the case against the accused could be held to be proved beyond reasonable doubt on the basis of such uncorroborated testimony.
36 In my opinion, the appreciation of evidence as done by the learned Special Judge, and the approach adopted by him, was not in accordance with law.
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37 This was a case where there existed a reasonable
doubt about the guilt of the accused. The accused was entitled to have the benefit of such doubt and to be acquitted.
38 The Appeal is allowed.
39 The impugned judgment and order is set aside.
40 The applicant stands acquitted.
41 His bail bonds are discharged.
42Find, if paid, be refunded.
43 Appeal is disposed of in the aforesaid terms.
(ABHAY M.THIPSAY, J) ::: Downloaded on - 03/12/2014 23:47:40 :::