Bombay High Court
Pratap Mahadev Moon vs Union Of India Through Cbi U. T. Of Dadra ... on 16 October, 2020
Equivalent citations: AIRONLINE 2020 BOM 3064
Author: Prakash D. Naik
Bench: Prakash D. Naik
rpa 1/52 cr.apeal-44-13,j..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.44 OF 2013
Pratap Mahadev Moon .. Appellant
Versus
(1) Union of India
Through CBI, UT of Dadra and
Nagar Haveli, Silvassa;
(2) State of Maharashtra;
(Through Shri Ashokkumar
Vinodkumar Chouksey,
Age - 47 years,
R/at. Silvassa, Dadra and
Nagar Haveli, Silvassa .. Respondents
......
Mr.Ramesh Ramamurthy with Mr.Saikumar Ramamurthy and
Ms.Jayashree Pillai, Advocate for the Appellant.
Ms.Ameeta Kuttikrishnan, Advocate for Respondent No.1 CBI,
ACB.
Mr.A.R. Patil, APP for the Respondent - State.
......
CORAM : PRAKASH D. NAIK, J.
JUDGMENT RESERVED ON : SEPTEMBER 09, 2020
JUDGMENT DELIVERED ON : OCTOBER 16, 2020
JUDGMENT :
Digitally signed by The appellant was prosecuted for the ofence RajeP. RajeP. Aher Date: punishable under Section 7, 13(2) read with 13(1)(d) of Aher 2020.10.16 14:43:16 +0530 Prevention of Corruption Act, 1988 ("PC Act", for short).
rpa 2/52 cr.apeal-44-13,j..doc 2 Brief facts of the prosecution case are as under:
(a) In the year 2009, complainant was serving in Sterlite Industries Limited, Silvassa. In November 2009, he was intending to apply for the post of Coast Guard in Navy, for which he was in need of attested copies of his certifcates of SSC, HSC examination and caste certifcate.
(b) On 18th November, 2009, the complainant went to District Panchayat ofice, Silvasa with documents for attestation. He made inquiry in the ofice as to who is verifying and attesting the copies. It was disclosed that the accused who was serving as Veterinary Oficer used to verify and attest the documents. He was gazetted oficer.
(c) The complainant approached accused and told him that he is in need of attested copies of documents and requested him to attest xerox copies tendered by him. The accused agreed to attest the copies and demanded Rs.50/-, for that purpose. The complainant was not desiring to pay the bribe. He contacted CBI ACB Mumbai on phone and rpa 3/52 cr.apeal-44-13,j..doc narrated his grievances. He was assured by ACB that cognizance of his complaint would be taken and a team of oficials would be sent to Silvassa.
(d) On 20th November, 2009, the oficers of CBI ACB Mumbai came to Silvassa and they camped at hotel Woodland. They called the complainant and panchas. The grievance of the complainant was heard in presence of panchas. The oficer decided to verify the correctness and genuineness of complainant by sending complainant and panchas along with recording devie and Micro SD card to the accused to record conversation between the complainant and the accused.
(e) Complainant alongwith panch went to the ofice of accused twice, but, he was not present. They returned back. On 3rd occasion they met accused. The complainant spoke to him about attestation of copies of certifcates. The accused demanded amount of Rs.50/-, from complainant for attesting copies of documents. The complainant returned back from the ofice of accused under the pretext that he has to prepare one more set of documents for attestation.
rpa 4/52 cr.apeal-44-13,j..doc He returned back to hotel and narrated the incident to members of raiding party.
(f) It was decided to lay trap against the accused. Amount of Rs.50/-, was collected from complainant. Phenolphthalein powder was applied to amount of Rs.50/- containing fve currency notes having denomination of Rs.10/- each, produced by the complainant. Necessary instructions were given to complainant, panchas and members of raiding party. Digital voice recorder along with micro SD card was concealed on the person of complainant. Panchas and complainant went to the ofice of accused. He was not present in the ofice. Hence, they returned back to hotel.
(g) The raiding party along with complainant again went to the ofice of accused. He was sitting on his chair and Joseph Pias was sitting on another chair in front of him. Complainant had a talk with the accused about work. Accused agreed to attest documents. The person sitting in front of accused was told to afix his stamp on xerox copies of documents. He put his signature on the documents. The accused then asked the complainant by gesture as to how rpa 5/52 cr.apeal-44-13,j..doc much amount he has brought. The complainant replied in afirmative and told him that he has brought amount of Rs.50/-. The accused told him to put the amount on the chair kept in the front side corner of the room. The amount was kept on the chair.
(h) The complainant went out of the room and gave signal to raiding party. The members of raiding party came there. The accused was apprehended. The tainted amount was collected. It was tallied and verifed. Inquiry were made with the person who was sitting in front of the accused. He disclosed his name as Joseph. The Micro SD card was removed from recorder and inserted in Laptop. The conversation recorded was in confrmation with the events narrated by the complainant. Documents were collected. Panchanama was recorded . Statement of the complainant was recorded. The conversation was heard. The conversation was transcribed in CD. The accused was arrested. The voice specimen was sent to CFSL for analysis. On completing of investigation, papers were forwarded with draft sanction order to the Administrator, DNH Silvassa on 14th June, 2010. sanction was granted.
rpa 6/52 cr.apeal-44-13,j..doc
Charge - sheet was fled against the accused.
3 Charge was framed against the accused vide Exhibit -
8 on 23rd April, 2012, for the ofence punishable under Section 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. 4 Prosecution examined seven witnesses. P.W.1 Ashish Kumar Chouksey is complainant, P.W.2 Yogesh Sataram Chauhan is panch witness, Hasmukhbhai Raghubhai Varli is LDC working in Rural Development Agency, District Panchayat Silvassa who identifed voice of accused, P.W.4 Joseph Pias, was present in the ofice of accused at the time of incident, P.W.5 Lalit Vishwanath Doifode, ACB Oficer, P.W.6 Ramakant Gajanand Sarangdhar, investigating oficer and P.W.7 Satyagopal Shivkumar Sinha, sanctioning authority.
5 Trial Court by judgment and order dated 21 st December, 2012, convicted the appellant for the ofence punishable under Section 7 of P.C. Act and sentenced to sufer rigorous imprisonment for one year and to pay fne of Rs.1000/-. He was also convicted for the ofence punishable under Section 13(2) read with 13(1)(d) of P.C. Act and sentenced to sufer rpa 7/52 cr.apeal-44-13,j..doc rigorous imprisonment for one year and to pay fne of Rs.2000/-. 6 The aforesaid judgment and order of conviction is under challenge in this Appeal. I have gone through the evidence on record. To ascertain whether the prosecution has established the charge against the accused, it would be necessary to analytically examine the evidence on record. 7 P.W.1 Ashishkumar Vinodkumar Chowksi is the complainant. As per his evidence, he was serving in a company at Silvassa. He was intending to apply for the post of Coast Guard in Indian Navy. He was in need of attested copies of certifcates. On 18th November, 2009, he went to Panchatyat ofice at Silvassa along-with documents. On inquiry, he learnt that the accused is attesting and certifying the documents. He approached the accused. He was Veterinary doctor. He explained the accused the purpose of visit and requested him to verify the documents. The accused demanded Rs.50/-, for work. He was not interested in giving bribe to accused. He came down on the ground foor of the building and noticed the board displayed therein mentioning the mobile number of ACB, CBI, Mumbai. He contacted the ofice and narrated the incident. On 29th November, 2009, call was received by complainant from CBI ACB, Mumbai. He was informed that the rpa 8/52 cr.apeal-44-13,j..doc oficers are coming to Silvassa and called him at hotel Woodland. Accordingly, he went to hotel Woodland. He met Doiphode and other CBI Oficer. He explained them his grievance. Complaint was handed over to them in writing. The complaint was faxed to CBI ACB ofice, Mumbai. Written complaint is marked as Exhibit -
16. Correctness and truthfulness of the complaint was verifed. Digital voice recorder was brought. The complainant then proceeded to Panchayat Ofice along with panchas and oficers of ACB. Digital voice recorder was concealed in the pocket of the complainant. Panchas and the oficer waited on the ground foor. The complainant entered in the ofice of the accused who was not present. The peon from the ofice told him that the accused has left ofice for lunch. They returned back to hotel Woodland. At about 2:30 p.m., the complainant and others again visited Panchayat ofice. The complainant entered the ofice of the accused. He was not present. They returned back to hotel Woodland. At about 3:10 p.m., they again proceeded to ofice of the accused. The panch and the oficer was waiting on the ground foor. The complainant entered the ofice. Accused was present. The complainant requested him for attestation of documents. The accused demanded Rs.50/-. The complainant told him that he wants to prepare one more set of documents and rpa 9/52 cr.apeal-44-13,j..doc went out of the ofice. The digital voice recorder was switched of and removed by the oficer. They returned to hotel Woodland. The DVR was played and the conversation was heard. Demand was confrmed. Trap was arranged. Phenolpthalein powder was applied to the currency notes. Five notes of Rs.10/- were used for trap. At about 4:10 p.m. they again went to the ofice of the accused. The complainant was carrying digital voice recorder in the left chest side pocket of his shirt. He entered the ofice of the accused. The panchas and oficers kept watch by keeping safe distance. Accused was not present. They returned to hotel Woodland. At 4:45 p.m., they again went to the Panchayat ofice. The complainant entered in the ofice of the accused. He was present. One person was sitting in-front of him. The complainant requested accused to attest the documents. The accused stated that he has no time and that he had approached him after long time. The accused told him that it was not possible for him to attest copies and told him to get it attested from the ground foor. The complainant told him that no oficer is present and requested to attest the documents. He agreed to do so. The accused person asked the person sitting in front of him to afix a stamp on the documents. The documents were attested and signed by the accused. The accused asked about the money by gesture and how rpa 10/52 cr.apeal-44-13,j..doc much amount he has paid. The complainant told him that he brought Rs.50/-. He told complainant to keep the amount on chair. The amount was kept on the chair. The accused also handed over paper weight for keeping it on currancy notes. The complainant gave signal to raiding party. They visited the ofice of the accused. The amount was collected and it was verifed. On applying Sodium Carbonate to the currency notes, the colour of the notes turned into pink. The amount was sealed. Inquiry was made with person siting in-front of the accused. Statement was recorded on 4th March, 2010. P.W.6 produced C.D. It was inserted in P.C. and played. There were fve fles in C.D. Complainant identifed his voice. Voice of one more person was recorded. One of the person present identifed his voice. Transcription was recorded. Complainant identifed voice of accused. Two veterinary doctors, who were present had identifed voice of accused. The voice of the accused was identifed. Voice of Joseph was also identifed by accused. In cross-examination, he stated that several Government ofices are situated at road leading from Kilwani Naka to Bus Station of Silvassa. The complainant was residing at Kilwani Naka, Silvassa. Three diferent ofices of District Planning Oficer, District Panchayat Engineer and ofice of staf of District Panchayt are situated to rpa 11/52 cr.apeal-44-13,j..doc the left side of the passage leading towards staircase. The ofice of the accused was not visible from the place where the steps of the staircase starts. The height of the panchayat wall of the passage of the frst foor or the building was about 4 feet. He had stated before the CBI oficials while recording his statement that he contacted CBI on mobile phone number, which was displayed on the board afixed in the ofice of District Panchayat, Silvasa. This fact is not mentioned in his statement. He do not remember whether the accused objected for presence of Dr.Dumralia, who was called for transcription of conversation recorded in CD on the ground that there was dispute amongst them about their seniority.
8 P.W.2 Yogesh Chavan was serving at BSNL Silvassa. He stated that he was called at hotel Woodland by CBI ACB along with Jignesh Patel, who is also serving in BSNL Silvassa. Complainant was present. The complaint was faxed to CBI ACB Mumbai. It was decided to verify the correctness of complaint. Digital voice recorder was kept with complainant. All of them left with complainant towards Panchayat ofice. He stood at some distance from the ofice of accused. The complainant had conversation with the person in the ofice. They returned back to rpa 12/52 cr.apeal-44-13,j..doc hotel. They again went to the ofice of Panchayat at 2:30 p.m. P.W.1 went toward ofice of accused. When he reached near the ofice of accused, he had a talk with somebody. He returned back. They returned back to hotel Woodland. At 3:00 p.m. they again went to ofice of Panchayat. The complainant went towards ofice of accused on the frst foor. He followed him by keeping some distance. The complainant entered the ofice of the accused and came out within fve minutes. They returned to hotel Woodland. Conversation was heard. Trap was arranged. They visited ofice of accused. The complainant went on the frst foor of the building towards ofice of accused. P.W.2 followed him by keeping distance. Complainant had a talk with some person and he returned on the ground foor. P.W.1 informed that accused was not present in the ofice. They returned back to hotel Woodland. They again went to the ofice of Panchayat. P.W.2 followed the complainant with safe distance. Other pancha and CBI Oficials kept watch by keeping safe distance. Complainant entered in the ofice of accused and came out within 5 to 6 minutes. He gave signal. The raiding party entered into the ofice of the accused. Complainant pointed towards accused and stated tht he demanded and accepted bribe of Rs.50/-, from him. Currency notes were found on the chair. It was verifed to be a tainted rpa 13/52 cr.apeal-44-13,j..doc notes. Panchanama was prepared in their presence. On 4th March, 2010, P.W.6 called him and other panch in ofice of Registrar, District and Sessions Court, Silvassa. Accused was present. P.W.6 produced S.D. Card. Data from S.D. Card was copied in three blank C.D's. Panchanama was prepared (Exhibit -
24). On 5th March, 2010, P.W. 2 was called by CBI Oficer in the conference hall of executive engineer. P.W.6, Dr.Parmar, Dr.Dumralia, one peon and complainant were present. It was played in a computer. There were fve fles in it. Transcription of conversation recorded therein was prepared. The frst fle contained voice of P.W.1. He identifed his voice. The second fle had conversation between P.W.1 and peon. They identifed their voices. The third fle was conversation between P.W.1 and accused. P.W.1 identifed his voice and voice of accused. The fourth fle had conversation between P.W. 1 and peon. They identifed their voices. P.W.1 identifed his voice in conversation contained in ffth fle. The peon, Dr.Parmar, Dr.Dumralia identifed voice of accused in that fle. The transcription was marked as Annexure-A to E. Panchanama (Exhibit-25) prepared on 6th March, 2010. P.W.2 was called by CBI Oficer. P.W. 6 and accused were present. Accused was told to read passage. Voice of accused was recorded in S.D. Card. Panchanama (Exhibit-26) prepared.
rpa 14/52 cr.apeal-44-13,j..doc In cross-examination, he deposed that he had reached hotel Woodland on 20th November, 2009 at about 12:15 noon. The complaint was faxed to ACB Mumbai. The complaint might have been faxed before 12:30 noon. Shri Doifode was directed to make inquiry in the complaint. He was not knowing how many ofices are situated in the ofice of District Panchayat, Silvassa. The ofice of District Panchayat is situated in a crowded locality. He had climbed half portion of staircase when he went along with P.W.1 for the frst time and he had climbed staircase and entered on the frst foor on the last occasion when the complainant entered ofice of accused. The ofice of accused was not visible from the starting point of staircase. Shri.Doifode has not reduced into writing the conversation heard by him, which is recorded in Micro SD card at the time of preparing pre trap panchanama and trap panchanama. Signature of the peon was not taken on the panchanama, who was present at the time of recording transcription of the conversation.
9 P.W.3 Shri Hasmukh Varli was working as a clerk in the Rural Development Agency, District Panchayat, Silvassa. He deposed that his ofice was situated at frst foor of district panchayat Silvassa. He deposed that his ofice was situated at rpa 15/52 cr.apeal-44-13,j..doc frst foor of District Panchayat ofice, Silvassa and it was adjacent to Veterinary ofice. The accused was serving as Veterinary Oficer. On 20th November, 2009, at about 1:30 p.m., the accused was not present in the ofice. Inquiry was made by one boy whether accused was present in the ofice. He informed him that he was not present and he would return at about 3:00 p.m. On 5 th March, 2010, he was called by CBI Oficials in conference room. The conversation recorded in Micro SD card was played in his presence. He heard it and identifed the voice recorded therein. He identifed voice of accused recorded in conversation. Transcription of the conversation was made in his presence. In cross-examination, he stated that Rural Development Agency is an independent agency of Government of India and its ofice was situated in the building of District Panchayat, Silvassa. Accused was not his superior and he had no oficial concern with him. He has no occasion to talk with him on phone. He had no occasion to talk with him. His statement recorded on 6th March, 2010. He had not stated before CBI oficials about presence of accused in the conference room on 5th March, 2010.
10 P.W.4 Joseph Pias has deposed that he knows accused. He went to the Veterinary Ofice situated at District Panchayat, rpa 16/52 cr.apeal-44-13,j..doc Silvassa to meet accused on 20th November, 2009 at 01:30 p.m. Accused was sitting in ofice. One boy came there and requested to attest the true copies of certifcates. Accused told him to go on the ground foor of the building and get the copies attested from some other oficials. The boy left the ofice. He again approached accused. He told him that oficer is not present at the ground foor and requested for attestation. Accused told him to afix stamp on certifcates. Therefore he afixed the same on the xerox copies of certifcates produced by the boy. Accused put his signature on those copies. Accused left the chamber. The oficer came there. The accused did not tell the boy to pay the amount and to keep the amount on the seat of the chair. Prosecution sought permission to cross-examine the witness on the ground that he did not support proseuction case. In the cross- examination by learned PP, he stated that his statement was recorded on 21st November, 2009. He had not stated in his statement that the accused had asked the complainant to pay an amount. He had not stated before CBI that the accused told the complainant to keep the amount on the chair and handed over a glass paper weight to him to put it on the notes. He had not stated before CBI oficials that the complainant put the amount on the chair and kept paper weight over it. He used to visit the rpa 17/52 cr.apeal-44-13,j..doc ofice of the accused to claim compensation to be paid to the farm owners on account of death of pigs due to swine fue. He further stated that the accused did not demand the amount from complainant in his presence and told him to put the amount on the chair with glass paper weight over it. He had cordial relations with accused. In cross conducted by the advocate for the accused, he stated that Dr.Dumralia and Dr.Parmar were also serving as Veterinary oficers. Dr.Dumralia was incharge of Veterinary Department within SMC. The rural area other than the area under SMC come under jurisdiction of accused. 11 P.W.5 Shri Lalit Doifode was serving as poilce inspector, CBI, ACB, Mumbai. He was directed to proceed to Silvassa with CBI Team in connection with complaint of P.W.1. He proceeded Silvassa on 20th November, 2009 and checked in hotel Woodland at Silvassa. He spoke to complainant and told him to meet him at hotel Woodland. Written complaint was given by complainant. The complaint was faxed to the ofice of ACB at Mumbai. Panch witnesses were called. Demand was verifed. Conversation was recorded in DVR. Trap was arranged. Instructions were given to complainant and panchas. On the signal given by the complainant, the raiding party entered the rpa 18/52 cr.apeal-44-13,j..doc ofice of accused. He was provided tainted notes of Rs.50/-, which were recovered from the chair laying in the ofice of accused. Statement of witnesses were recorded. Conversation was transcribed into the CD. Investigation was completed and charge- sheet was fled. In cross-examination, it was stated that he left Mumbai for Silvassa on 20th November, 2009. There was no talk between the complainant and panchas before he faxed the copy of the complaint to CBI ACB, Mumbai. He received a fax order from DIG ACB CBI Mumbai within fve minutes. There was no written communication between him and his ofice since he received the fax direction, which is at Exhibit-21. He did not contact superior oficer on phone after receiving the direction from Superior by fax. He had not obtained certifcate from any expert regarding accuracy and sensitivity of DVR used in the trap. He tested its accuracy and sensitivity in the presence of panchas who verifed it after recording their voice. He noted transcription of the conversation recorded in the cassette whenever he heard it in the presence of pancha on rough paper. He had not obtained the signatures of panchas on that rough note of transcription. He had not included rough transcription in the investigation papers. Raiding team followed complainant, pancha Yogesh Chauhan and Shri. D.V. Shinde till the entrance of the rpa 19/52 cr.apeal-44-13,j..doc building, but, as soon as they entered on the frst foor of the building they used stand in the open space of the building, from where the ofice of the accused was visible. Shri D.B. Shinde used to accompany P.W.1 and P.W.2 upto the ofice of accused. The distance between the door of the cabin of the accused and the staircase was 7 to 8 feet. Shri D.B. Shinde and P.W.2 used to stand there, whenever P.W.1 used to enter in the ofice of accused. The person with whom P.W.1 had talked outside cabin of the accused, was not visible to them. After completion of conversation of P.W.1 with third person Shri Shinde used to switch of the recorder immediately and threreafter they used to come on ground foor of the building.Nobody entered in the ofice of the accused when the complainant entered in his ofice at the time of trap. The conversation between accused and the complainant had been recorded only in Micro SD cassette at the time of trap. In panchanama Exhibit-22, it is not mentioned that the complainant requested him not to send panch Yogesh Chauhan along with him when he enter the ofice of the accused. In panchanama it is mentioned that after dipping the fngers of accused in solution containing sodium carbonate, he asked P.W.1 as to where, accused kept the tainted notes.
rpa 20/52 cr.apeal-44-13,j..doc 12 P.W.6 Ramakant Sarangdhar was serving as PI with
CBI ACB Mumbai. He was entrusted with investigation on 8 th February, 2010. He obtained permission of the Court for getting the conversation recorded in micro SD card in to CD. On 4 th March, 2010, he produced sealed envelope containing micro SD card before Shri Bora, Superintendent, panchas and accused. Conversation was copied in three CD's. The conversation between the accused and the complainant was heard on 5th March, 2010. P.W.2, Jignesh Patel and P.W.1 were present. He called Dr.Dumralia and Shri Vijaykumar. P.W.1 identifed his voice and voice of accused. Dr.Dumralia and Varli identifed voice of accused. On 6th March, 2010, P.W.2 and Jignesh Patel and accused were called at Circuit house. Voice specimen of accused was obtained. He prepared the transcription. Complainant identifed his voice. CD in which conversation was copied and the micro SD card in which voice specimen of the accused was recorded were sent to CFSL for examination. Draft sanction order was forwarded to Shri Satyagopal, competent authority. Sanction order was received. Charge-sheet was fled. In cross-examination, it was deposed that he had not sent CD in which conversation between complainant, accused and others was recorded to sanctioning authority along with other papers. Complainant rpa 21/52 cr.apeal-44-13,j..doc identifed Hasmukh Varli on 5th March, 2010. Panchanama Exhibit-25, was prepared in presence of Hasmukh Varli, Dr.Dumralia, Dr.Parmar, but their signatures were not obtained on panchanama Exhibit-25. Signature of Hasmukh Varli was obtained on Annexure-B, signatures of Hasmukh Varli, Dr.Dumralia and Dr.Parmar were obtained on Annexures-C and E. Dr.Dumralia made endorsement on Annexure-C and E stating that he identifed voice of accused. Others had not made any endorsement. He had not obtained signature of accused on voice specimen panchanama Exhibit-26. In the conversation recorded in micro SD cassette, sounds of diferent vehicles were recorded for 2-3 minutes before starting the conversation. In the transcription Exhibit-A, there is a voice of one third person to whom accused asked to stand outside the cabin. He prepared the transcription of conversation recorded in micro SD cassette in his own handwriting, after hearing conversation. Thereafter, he called Dr.Dumralia, Dr.Parmar and Mr.Hasmukh Varli and played conversation in their presence. It was not disclosed to him during investigation that witnesses Yogesh Chavan and Jignesh Patel had occasion to talk with accused previously on phone.
13 P.W.7 is the sanctioning authority. According to him, rpa 22/52 cr.apeal-44-13,j..doc
he received letter dated 21st June, 2010 from DIG CBI ACB, Mumbai along with police papers with a request to accord sanction to prosecute accused. On receiving documents, he went through the documents on record carefully and found that the accused has accepted illegal gratifcation from the complainant. He was satisfed that there was suficient material on record for granting sanction to prosecute accused. He passed sanction order dated 16th July, 2010. The sanction order was marked as Exhibit-
47. In cross-examination, he stated that draft sanction order was received by him. He received 69 pages and the booklet i.e. CBI Report. In the sanction order, it is mentioned that he has perused all material produced before him. He received transcription-cum- voice identifcation panchanama and eight attested copies of certifcate, complaint, documents regarding posting of accused. He produced the draft sanction order supplied to him. He denied that attestation of documents is not part of the duty of a Gazetted Oficer. However, he was unable to state at present about Notifcation, if any, issued by Government of India or the Administration of Dadra and Nagar Haveli, authorizing the Gazetted oficer for attesting the documents. If a Gazetted oficer refuses to attest the copies of documents, in his oficial capacity, according to him, it is a misconduct.
rpa 23/52 cr.apeal-44-13,j..doc
14 learned advocate for the appellant submitted as
follows:
(i) The prosecution has not established demand as well
as acceptance of bribe;
(ii) The recording of conversation between the accused
and the complainant is faulty. Voice is not clear;
(iii) The recording do not spell out the alleged demand of bribe made by the accused to complainant;
(iv) There is no independent evidence to support the prosecution case;
(v) P.W. 2 has not heard the conversation between P.W.1 and accused;
(vi) P.W.2 did not hear the demand of bribe during verifcation and alleged trap;
(vii) The version of P.W.1 is not corroborated by independent evidence;
(viii) P.W.4 has not supported case of prosecution. His evidence supports the defence of the accused;
(ix) The evidence of P.W.3 cannot be relied upon to establish the identity of the voice of the appellant. In rpa 24/52 cr.apeal-44-13,j..doc his evidence, it is clearly mentioned that he had no occasion to talk with accused;
(x) The evidence of complainant speaks volumes of doubt.
It is apparent that he was bent upon implicating the accused in the crime. The demand of bribe attributed to the accused is uncorroborated testimony of P.W.1. Although, the complainant had declined to attest the documents by directing the complainant to approach the oficer from ground foor, the complainant insisted that the accused should attest the documents. Although, the accused was not available in the ofice repeated attempts were made to see that the accused is implicated in the crime;
(xi) The bribe amount was not found in possession of the accused. It was allegedly recovered from the chair in the ofice of the accused. It is surprising that no other staf members were present in the ofice at the time when bribe was demanded and the same was kept on the chair. The investigating machinery has conveniently showed them absent at the time of demand and acceptance of bribe;
(xii) There are serious discrepancies in the evidence of rpa 25/52 cr.apeal-44-13,j..doc witnesses. P.W.2 allegedly remained outside ofice of accused at the time of trap. He did not hear the conversation between the accused and the complainant;
(xiii) Section 20 of P.C. Act cannot be invoked against the appellant as the very foundation of demand has not been established;
(xiv) The attestation of documents cannot be termed as public duty and hence the provisions of Section 7 of P.C. Act, would not be attracted. The authentication of documents as true copy by gazetted oficer in the Government is not a part of duty attached to the post.
(xv) Accurate voice identifcation is much more dificult than visual identifcation. It is prone to tampering. In support of submission, learned advocate relied upon decision in the case of Nilesh Paradkar Vs. State of Maharashtra1 15 Learned counsel for Respondent No.1 advanced following submissions:
(a) There is clear evidence of demand and
1 (2011) 4 SCC 143
rpa 26/52 cr.apeal-44-13,j..doc
acceptance;
(b) Trial Court has analysed the evidence on record and gave fnding of guilt;
(c) The demand is proved from the evidence of P.W.1, P.W.2 and the recorded conversation;
(d) The amount was accepted by the accused. The evidence of P.W.1 establishes that the accused demanded Rs.50/- for attestation of documents and he instructed the complainant to keep the bribe amount on the chair with a glass paper weight to be kept on the currency notes. This conversation is corroborated by the recording in the DVR;
(e) There are no discrepancies in the recording of conversation;
(f) Voice of accused was identifed by P.W.1 and P.W.3. There is forensic evidence on record, rpa 27/52 cr.apeal-44-13,j..doc which establishes that conversation between the accused and the complainant contains voice of accused;
(g) The fact that the accused had informed the complainant to keep the bribe amount on the chair with paper weight thereon is recorded in DVR;
(h) The sanctioning oficer has categorically stated that refusal by gazetted oficer to attest the documents amounts to misconduct. Attestation of documents is part of duty of accused;
(i) P.W.5 and P.W.6 has given detailed account of the recording of complaint, recording pre trap and trap panchanama, recovery of bribe amount, recording of conversation, transcription of conversation and converting it into a CD. The word public duty is refected in Section 2 of the PC Act. Attestation, thus, amounts to be duty for which the accused cannot demand bribe.
rpa 28/52 cr.apeal-44-13,j..doc 16 On perusal of the evidence of witnesses, documentary
evidence on record, I fnd that the case of the prosecution sufers from inherent discrepancies. The case proceeds on the complaint of P.W.1. He wanted to attest certain documents as he intended to apply for job. The accused was veterinary doctor. He was posted at Animal Husbandry section in the ofice of District Panchayat at Silvassa. The District Panchayat ofice had several other ofices. There were other gazetted oficers in ofice of Gram Panchayat Silvassa. There were several other Government ofices in the said building.
17 P.W.1 (complainant) approached accused on 18 th November, 2019 for attestation of documents. Accused consented for the same. He demanded Rs.50/-, for attesting documents. P.W.1 was not interested in giving bribe, hence, he gave call to ACB CBI, Mumbai on the phone number displayed on board displayed below the building of District Panchayat. On 20 th November, 2009, he was called by oficers of ACB, Mumbai at hotel Woodland at Silvassa. Complaint was sent to ACB, Mumbai by fax and on obtaining directions, it was decided to proceed with rpa 29/52 cr.apeal-44-13,j..doc verifcation of complaint. DVR was given to P.W.1. At 1:15 p.m. P.W.1, P.W.2 (pancha), oficer D.B. Shinde left hotel Woodland. P.W.1 alone went to frst foor, where the ofice of accused is situated. P.W.2 and Mr.Shinde waited on ground foor. Accused was not present in ofice. The same process was repeated at 2:30 p.m. Accused was not present in ofice. At 3:10 p.m. they again went to ofice of accused. P.W.1 entered ofice of accused. P.W.2 and Mr.Shinde waited on ground foor. Accused was present. P.W.1 told him about need of attestation of documents. Accused told him that he will attest documents, but P.W.1 will have to pay him Rs.50/-. P.W.1, however, under pretext of preparing one more set of documents left the ofice. It is alleged that conversation was recorded. It is pertinent to note that, according to P.W.1, he had approached the accused on 18th November, 2009 for attestation of documents and also explained purpose of his visit and at that time, accused demanded Rs.50/-, for attestation. The question of again explaining the purpose of visit, demand of bribe amount and complainant leaving ofice for another set of documents does not arise. The conversation mentioned by P.W.1 allegedly occurred on 20th November, 2009, indicate as if it was his frst visit. The conduct of complainant is suspicious.
Thereafter, trap was arranged. At 4:10 p.m., P.W.1, P.W.2 and rpa 30/52 cr.apeal-44-13,j..doc
Mr.Shinde proceeded to ofice of Panchayat. P.W.1 went to ofice of accused. However, accused was not present. At 4:45 p.m., they again went to Panchayat ofice. Accused was present. P.W.1 requested for attestation of documents. Accused told him that he had no time and it was not possible for him to attest copies and he should get it attested from ofice situated on ground foor. P.W.1 persuaded him to attest the documents. It is alleged that demand was made by accused and amount of Rs.50/-, was accepted. Conversation was recorded. It is apparent from evidence of P.W.1 that inspite of alleged demand P.W.1 was bent upon getting work done from accused. The documents were attested by accused. Although accused was not present in ofice on 20th November, 2009, on the frst visit of P.W.1 and P.W.2, they again visited him at 2:30 p.m. Since accused was not found, there was third visit. Although, accused showed disinclination to attest documents, P.W.1 insisted for attestation. Other oficers and Gazetted oficers were apparently available in Panchayat ofice. There were various other Government ofices from the place of residence to Panchayat ofice. When the complainant frst visited ofice of accused on 18th November, 2009, he did not assign any reason for not attesting documents on that day and left the ofice and allegedly made telephonic complaint.
rpa 31/52 cr.apeal-44-13,j..doc 18 From evidence of P.W.1, it is clear that on all the
occasion, he had alone entered the ofice of accused. P.W.2 and D.B. Shinde did not enter ofice. They did not hear the conversation between P.W.1 and accused. Thus, theory of demand and acceptance is propounded by P.W.1.
19 D.B. Shinde had accompanied P.W.1 and P.W.2 upto ofice of Panchayat. P.W.2 and raiding party were at distance on 20th November, 2009. The role assigned to Mr.Shinde was to switch on the button of recorder before P.W.1 enters into cabin of accused and to switch it of after P.W.1 returns on ground foor. 20 The accused was not visible from staircase where the panchas were standing keeping safe distance and the pancha witness had not entered in the ofice of the accused. The complainant had not met any other person except accused and peon in the ofice of District Panchayat. He did not show the peon to CBI Oficer. It is dificult to believe that no other staf members were present in the ofice at the time when demand and acceptance took place. From the evidence of P.W.2, it can be seen that he accompanied complainant. However, he was at the safe rpa 32/52 cr.apeal-44-13,j..doc distance. From panchanama Exhibit-23 dated 20th November, 2009, it can be seen that at the time of alleged trap, P.W.1 went inside ofice of accused and after about 5 - 6 minutes he came out and gave signal to raiding party. Thus, P.W.2 or any other member did not see or hear what had happened inside cabin between P.W.1 and accused. It is also dificult to believe that within 5 to6 minutes, all the documents were attested and bribe was paid by P.W.1 and he came out. From his evidence, it cannot be said that he had heard the conversation between the appellant and the complainant. Thus, the evidence of P.W.3 does not corroborate the case of demand and acceptance spelt out in the evidence of P.W.1. The other panch witness and the raiding party were away from the ofice of accused. The amount was allegedly kept on the chair on the instructions of accused. Thus, the bribe amount was not found on the person of the accused.
21 P.W.4 Joseph was in the ofice of accused on 20 th November, 2009. He stated that one boy came to ofice for attestation of documents. He was asked to go on ground foor for attestation from some other oficer. He left the ofice and again returned to ofice of accused and stated that no oficer is available on ground foor and requested accused to attest rpa 33/52 cr.apeal-44-13,j..doc documents. He afixed stamp on documents. Accused signed documents. Accused left the ofice. Accused did not demand amount and told the boy to keep money on chair with paper weight on it. P.W.4 was the independent person examined by prosecution. He has not corroborated version of other witnesses. He was cross examined by prosecutor which was futile. He also stated that Dr.Dumralia and Dr.Parmar were serving as Veterinary oficers.
22 The prosecution case is that on all the occasion, DVR was ftted on the person of complainant and the conversation was recorded. The recording was verifed by playing S.D. Card on Laptop. P.W.1 has stated that after the trap S.D.Card was played on Laptop in presence of all the persons. It was heard and dept in envelope. P.W.6 called panchas, P.W.2 Jignesh Patel and accused on 4th March, 2010, in the ofice of Registrar at Silvassa. He produced sealed envelope containing micro S.D.Card. It was played on Laptop and fve fles from it were copies in three CD's. Panchanama Exhibit - 24 was prepared. On 5 th March,2010, P.W.2 and Jignesh Patel were called for transcription of conversation recorded in CD. P.W.6 produced C.D. of conversation. It was heard and transcription was prepared. In the transcriptions a voice of rpa 34/52 cr.apeal-44-13,j..doc complainant was recorded. He identifed his voice. Annexure "B" was conversation between P.W.1 and peon (P.W.3). Both identifed their voice. Annexure "C" had voice of P.W.1 and accused. P.W.1 identifed his voice and voice of accused. Dr.Dumralia who was also called identifed voice of accused. P.W.3Hasmukh Varli identifed voice of accused. Annexure "D" had voice of P.W.1. He identifed it. Annexure "E" was containing voice of P.W.1 and accused. P.W.1 identifed his voice and voice of accused. Dr.Dumralia, Dr.Parmar, Hasmukh Varli (P.W.3) identifed voice of accused in that conversation. P.W.1 identifed voice of Joseph (P.W.4) recorded in conversation. Panchanama of transcription cum voice identifcation was prepared (Exhibit-25). it is pertinent to note that this entire process was conducted in the absence of accused and witness Joseph. On 4th March, 2010, P.W.6 had completed process of copying conversation recorded in Micro SD Card to C.D. Accused was allegedly present on that day. It is not clear why the activity performed on 5 th March,2010 was not undertaken on 4th March, 2010. Why accused was not present on 5th March, 2010. The appellant had attributed motive to Dr.Dumralia for falsely implicating him which is apparent from suggestions given in evidence and his defense under Section 313 of Cr.P.C. The manner in which investigation conducted creates rpa 35/52 cr.apeal-44-13,j..doc doubt about prosecution case.
23 In paragraph 37 of evidence of P.W.1, it is stated that, CBI oficial recorded the conversation in micro S.D. on a paper when it is played in the Laptop on every occasion. It had not been reduced into writing at that time. Apparently, the witness is suppressing vital facts.
24 P.W.6 did not sent C.D. in which the conversation between P.W.1, accused and others was recorded to sanctioning authority. Although panchanama was prepared in presence of Hasmukh Varli, Dr.Dumralia, Dr.Pamar, their signatures were not obtained on panchanama Exhibit-25. However, according to P.W.6, their signatures were obtained on annexures. It is pertinent to note that Dr.Dumraliya and Dr.Parmar were not examined as witness. P.W.3 Hasmukh Varli who had identifed his voice and voice of accused had deposed in evidence that, accused was not his superior. He is serving in Rural Development agency, District Panchayat, which is an independent agency of Government of India. He has no oficial concern with accused. He had no occasion to talk with him on phone. He had no occasion to talk with him. His statement was recorded on 6th March, 2010. He rpa 36/52 cr.apeal-44-13,j..doc had not stated before CBI Oficial about presence of accused in conference hall on 5th March,2010. With this admissions, no reliance can be placed on evidence of this witness qua identifcation of voice of accused.
25 I have perused the transcription relied by prosecution. Annexure - A File 1 is alleged convesation between voice of P.W.1 and another person standing outside ofice on 20 th November, 2009. P.W.1 identifed his voice. Accused is not involved in this conversation. This document is part of Exhibit - 25 panchanama. Nothing is mentioned about voice of second person. Annexure-B File No.2 contains conversation between P.W.1 another person. It is indicated that P.W.1 identifed his voice. Nothing is stated about other person. In both these conversation, after the last sentence of P.W.1 there was no clear voice for 20 and 30 seconds, respectively. Annexure-C is File No.3. It is alleged conversation between P.W.1 and accused. After last sentence of P.W.1 refected therein there is no clear voice for about 20 seconds. P.W.1 identifed his voice and voice of accused. In beginning and in between conversation there was no voice for one minute and 20 seconds, respectively. The conversation refers to request for attestation. The complainant states that on rpa 37/52 cr.apeal-44-13,j..doc previous date the accused did not attest documents and thereafter he did not get time. Accused states that once having rejected, how he came again. The conversation is contrary to evidence of P.W.1 before the Court. Third person is also involved in conversation. It also mentions that the complainant is asking how much and the accused replied as keep Rs.50/-. There was no clear voice on several occasions. As per prosecution case this was alleged conversation during verifcation of complaint at 3:15 p.m. on 20th November, 2019. The evidence of P.W.1 do not depict this conversation. It would also indicate that there was no specifc demand of bribe by accused for doing oficial work. The Annexure D is fle No.4. There is no clear voice for one minutes 38 seconds. P.W.1 identifed his voice. There is no conversation of accused. Annexure-E relates to File No.5. It is alleged conversation regarding acceptance of bribe. P.W.1 identifed his voice and voice of accused. In between there is no clear voice for 30 seconds. P.W.1 identifed voice of third person sitting near accused. Fourth person is also present. His identity is not disclosed. There was no clear voice of P.W.1 for 40 seconds. Conversation do not refer to demand of bribe by accused. The accused allegedly stated that keep it on chair. Complainant has allegedly stated that he has kept Rs.50/-. Voice of complainant rpa 38/52 cr.apeal-44-13,j..doc and accused is not clear on some occasions. The manner in which data was transferred to C.D., transcripts were prepared and lack of clarity in recorded conversation speaks volumes of doubt about genuineness of such material and the accused cannot be convicted on the basis of such evidence. P.W.5 Mr.Doifode has stated that he did not obtain certifcate from any expert regarding accuracy and sensitivity of DVR used in trap. He noted transcription of conversation recorded in the cassette. Whenever he heard it in presence of pancha in rough paper. He had not obtained signature of panchas on rough note of transcription. He had not included rough transcription in investigtion papers. D.B. Shinde who was allegedly installing DVR on the person of accused, and than switch it on and of at relevant time by accompanying P.W.1 and P.W.2 has not been examined. 26 The prosecution has also relied on voice specimen of accused and report of CFSL Exhibits 41 and 42. On 6 th March, 2010, accused was asked to read passage prepared by P.W.6. It was recorded in micro S.D. Card. Panchanama was prepared. P.W.6 has admitted that he had not obtained signature of accused on voice specimen panchnama and passage attached to it. He did not feel it necessary to mention that the words regarding rpa 39/52 cr.apeal-44-13,j..doc demand and acceptance in the passage to be read by the accused while recording his voice specimen. In the conversation recorded in micro cassette. The sounds of vehicles were recorded 2 to 3 minutes before starting conversation. For lack of transparency, no weightage can be given to such evidence.
27 The accused was veterinary doctor and he was posted at District Panchayat ofice. Learned counsel for the appellant submitted that the authentication of documents as true copy by gazetted oficer in the Government is not part of duty attached to his post. Article 77(2) of the Constitution of India prescribes that the President of India shall make rules for authentication and certifcation of documents. The President of India has formulated the authentication and certifcation of documents. The said rules deals with only public documents. "Public Documents" are defned under Section 74 of Indian Evidence Act. The Rules of 2002, do not deal with private documents. The authentication of mark sheet or passing certifcate of university is certifcation of private documents. There is no order for certifcation or authentication or authentication or attestation of private documents. The appellant's duty as a Veterinary doctor, does not include attestation of documents of a private nature. There are no rpa 40/52 cr.apeal-44-13,j..doc orders in that behalf issued by Union Territory of Dadra and Nagar Haveli and Silvassa at the relevant time for authentiction or attestation of private documents. To substantiate his submission, learned counsel placed for consideration order passed by Central Information Commission in a case where an application was fled under the Right to Information Act, 2005 seeking information on following questions:
(1) Is it a statutory duty for a gazetted oficer to attest any true copy of certifcate, testimonial. (2) Can a gazetted oficer refuses to attest true copy of the certifcate/testimonial?
(3) Is it the responsibility of a gazetted oficer to attest any true copy of certifcates, testimonial. (4) What is the procedure followed by a gazetted oficer to attest any true copy of certifcate, testimonial etc. (5) Is there any penal or administrative provision against a gazetted oficer, if he refuses to attest true copies of certifcates, testimonials? (6) Can a gazetted oficer be approached at his residence for attestation.
rpa 41/52 cr.apeal-44-13,j..doc
(7) Can a gazetted oficer demand money for
attestation.
(8) Can a gazetted oficer refuse to attest documents
on the ground that he has not been given
seal/stamp.
(9) Can a Doctor (Government Servant) demand
money for attestation?
(10) Whether any circular has been issued by
Government while any person approaches him for attestation or witness/attest his signature. (11) Whether the above rules is applicable for state level gazetted oficer.
(12) Any other information so gazetted oficer do not refuse to attest the document to any citizen.
The commission in its order dated 10 th August, 2015, observed that CSMOP does not provide specifc duties of the persons holding a Gazetted Post. There are no separate guidelines regarding attestation of documents by a gazetted oficer.learend advocate for respondent submitted that gazetted oficer is required to attest documents. He cannot refuse attestation. Refusal amounts to misconduct. Acceptance of money by oficer rpa 42/52 cr.apeal-44-13,j..doc also amounts to misconduct. She relied upon note from Website regarding aspects of getting documents attested. It refers to who is gazetted oficer. It is submitted that appellant is a gazetted oficer. She further submitted that performance of attestation is public duty towards public. She relied on defnition of "Public duty",, incorporated under Section 2(b) of P.C. Act. It is submitted that public duty means a duty in discharge of which the state in public or community at large has interest.
28 Article 77 of the Constitution of India relates to conduct of Government business. It stipulates that orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specifed in Rules to be made by the President, and the validity of an order or instruments, which is so authenticate shall not be called in question on the ground that it is not an order or instruments made or executed by the President. The rules of 2002 for authentication and certifcation of documents deal with public documents. The documents, which were sought to be attested by the complainant in present case were private documents. The appellant is charged for the ofences punishable under Sections 7, 13(2) read with 13(1)(D) of P.C. Act. It is the rpa 43/52 cr.apeal-44-13,j..doc case of the prosecution that the appellant accused had demanded and accepted illegal gratifcation other than legal remuneration of Rs.50/-, from the complainant for discharging oficial duties i.e. for attesting photocopies of certifcates. Section 7 of P.C. Act, relates to the ofence of public servant taking gratifcation other than legal remuneration in respect of an oficial act. The prosecution has presumed that the attestation of documents of complainant was an oficial act of the accused. However, nothing was produced on record to substantiate that the act of attestation of private documents is oficial duty, as contemplated under Section 7 of the P.C. Act. The sanction order is also silent as to how the attestation of documents was oficial duty of the accused. While granting sanction, the sanctioning authority has apparently not applied his mind to this aspect. In the cross-examination, P.W.7 has denied that attestation of documents is not part of a duty of a gazetted oficer. He also stated that refusal to attest the documents in oficial capacity amounts to misconduct. He also denied that the government servant is not under obligation to attest copies of documents, as his oficial duty. However, he was unable to state about Notifcation, if any, issued by the Government of India or the Administration of Dadra and Nagar Haveli authorizing the Gazetted oficer for attesting the rpa 44/52 cr.apeal-44-13,j..doc documents. Thus, except the oral denial, there was no material before the trial Court to substantiate that attestation of private document is a part of oficial duty. The Act defnes public duty as stated above. The said defnition is incorporated as the defnition of "Public Servant", mentions that any person holds an ofice by virtue of which he is authorized or required to perform any public duty, is covered by the defnition of public servant. The note from the Website produced by learned counsel for the respondent do not refer to any Notifcation. The prosecution has not produced any documents to indicate the duties to be performed by the veterinary doctor, as gazetted oficer. The applicant was also charged under Section 13(2) read with 13(1)(d) of the P.C. Act. The said provisions relates to Criminal misconduct, if he by a public servant. As per Section 13(1)(d), a public servant is said to commit the ofice of criminal misconduct. If he by corrupt or illegal means, obtain for himself or for any other person any valuable thing or pecuniary advantage, or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or, while holding ofice as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
However, in the present case, evidence adduced by the rpa 45/52 cr.apeal-44-13,j..doc
prosecution does not inspire confdence and sufering from several infrmities. The prosecution has not established the demand and acceptance of bribe beyond all reasonable doubt. In the absence of cogent evidence, appellant cannot be convicted for misconduct enumerated under Section 13(2) read with 13(1)(d) of P.C. Act. Even, assuming that it is accepted that attestation of documents is oficial duty, for the reasons stated herein-above on account of the inherent discrepancies, resulting in failure to establish demand and acceptance of bribe, the accused/appellant cannot be convicted either under Section 7 or Section 13(2) read with 13(1)(d) of P.C. Act.
29 The defence of the accused, which is evident from explanation tendered by him in his statement under Section 313 of Cr.P.C. and the cross-examination of witness is that :
"On 20th November, 2009, I was sitting in my ofice alongwith Joseph Pias at about 1.30 p.m. At that time an unknown boy entered in my ofice and asked me to attest the copies of the certifcates. I asked him to go on ground foor of the building and to get the copies attested there. Thereafter I left the ofice and went to the school to collect my son. Joseph had also left my ofice. At 4.30 p.m. I was sitting in my ofice. After rpa 46/52 cr.apeal-44-13,j..doc some time Joseph came there and he sat in a chair in front of me. After some time the unknown boy who visited my ofice came there and asked me to attest the copies. I asked him to stand in the door of the room and told him that Dy.Engineer, DPO was sitting on the ground foor. I told him that Mamlatdar Ofice and Labour Ofice are sitting near a chock. I asked him to get attested the copies from any one of the ofices. But that boy again and again requested me to attest the copies. Therefore, I called him and asked Joseph to afix the stamp. Joseph afixed the stamps on the copies produced by the boy. Thereafter I put my signatures. Thereafter I went to toilet to make a water. When I reached near toilet I saw that number of persons entered in my ofice and other ofices. After some time one of the unknown person came near me and made inquiry with me and asked my name. I narrated my name to him. I made inquiry with him about his identity. He told me that he was CBI oficer. He directed me to return to my ofice. Thereafter, I went to my ofice. He asked me to sit in one of the chairs kept in front of my table. Accordingly I sat in the chair. Thereafter they prepared solution in glasses and asked me to dip my right hand fngers frst in the glass and left hand fngers in another glass, but colour of the solution had not changed. Thereafter I produced my belongings possessed by me before them. Thereafter I sat in adjoining room. At 9.30 p.m. I saw tht Dr. Durmalia and Shri Doifode discussing something in the rpa 47/52 cr.apeal-44-13,j..doc ofice. In between 9.30 to 10.30 p.m. a dinner had been called there. Its costs of Rs.5000/- had been paid by Dr.Dumralia. On the next day Dr.Durmalia provided oficial vehicle to CBI oficials to carry me to Sessions Court Palghar.
On 4/3/2010 I was visited District Court Silvassa and that time Dr.Dumraila was present in the District Court with his friend. I objected about his presence before Shri Mukesh Kumar and that time Dr.Dumralia left the premises of District Court, Silvassa. On 6/3/2010 Dr.Dumralia was present in the Circuit house. I raised objection about presence of Dr.Dumralia before CBI oficial and that time CBI oficial asked me to leave circuit house and therefore, I left circuit house. I had not demanded and accepted bribe from the complainant and I had not been caught red handed. CBI has pre-planned the plan and involved me in the false case to afect my career."
The appellant in addition to the aforementioned explanation had fled documents Exhibit-50 viz. Copy of Miscellaneous Application No.479 of 2008 in Original Application No.433 of 2007, fled by the appellant before the Central Administrative Tribunal prior to the alleged trap. The averments in the said application would indicate that the appellant had fled Original Application challenging order dated 13th July, 2007, whereby his rpa 48/52 cr.apeal-44-13,j..doc representation fled against seniority list of Veterinary Oficer cum Dairy Administrator were rejected by the Administration of Dadra and Nagar Haveli and Silvassa. The Original Application was fled challenging the seniority of Veterinary oficer cum Diary Administration, wherein seniority list appellant's name was wrongly shown as being junior to Dr.D.M.Dumraliya, even though the appellant was recommended by UPSC in the selection conducted by them and the Resolution had been published in the Employment News on 24th February, 1996 and that the appellant had received letter from UPSC dated 5 th January, 1996. The appellant had also contended that even though Dr.Dumralia has been appointed two years after he has been appointed to the post of Veterinary oficer, he was shown as senior to the appellant. Due to unnecessary favour shown to Dr.Dumralia, he has been forced to work under his junior and Dr.Dumralia is shown as the frst rank oficer and the appellant was shown as second rank oficer. It was also contended that due to his name being shown wrongly in the seniority list, he was deprived of the benefts, the said application was fled. The appellant produced before the trial Court. Application was fled before Central Administrative Tribunal on 31st July, 2008. From the cross-examination of the witnesses, it was suggested at the instance of the accused that rpa 49/52 cr.apeal-44-13,j..doc Dr.Dumralia had enimous against the appellant. It is pertinent to note that the case of the prosecution is that Dr.Dumralia had identifed the voice of the appellant in the conversation recorded in DVR.
30 In the light of the serious discrepancies in the evidence of the prosecution, the accused is entitled for beneft of doubt. The demand of bribe is not established by clinching evidence. Acceptance of bribe sufers from serious doubt. In Sujit Biswas Vs. State of Assam2, it was held that Suspicion, however grave it may be, cannot take the place of proof and the prosecution cannot aford to rests its case in the realm "may be"
true but has to upgrade it in the domain of "may be", in order to steer clear of any possible surmise or conjuncture. Court must ensure that miscarriage of justice are avoided and if in the facts and circumstances, two views are possible then, the beneft of doubt must be given to the accused. Applying the legal principle as above, the material on record, leave note manner of doubt that the prosecution in the present case, has failed to prove unequivocally the demand of illegal gratifcation and even its acceptance. In the case of P.Satyanarayna Murthy Vs. District Inspector of Police, State of Andhra Pradesh & Anr. 3. It was 2 2013(12)SCC 406 3 (2015) 10 SCC 152 rpa 50/52 cr.apeal-44-13,j..doc held that the proof of demand of illegal gratifcation is gravamen of ofence under Sections 7 and 13(1)(d)(i) and (ii) of the P.C. Act and in the absence thereof mistakably the charge therefor, would fail. Mere acceptance of any amount by way of illegal gratifcation or recovery thereof, dehors the proof of demand, ipso facto, would not be suficient to prove home the charge under these sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratifcation would be fatal and mere recovery of the amount from the person accused of the ofence under Sections 7 or 13 of the Act would not entail his conviction thereunder. In the case of B. Jayaraj v. State of Andhra Pradesh4. It was held that the presumption under Section 20 of the P.C. Act can be drawn on proof of acceptance of illegal gratifcation was received for doing or forbearing to do any oficial act. Proof of acceptance of illegal gratifcation can follow only if there is proof of demand. In catena of decisions, the Apex Court has held that mere possession of recovery of currency note from an accused without proof of demand would not establish an ofence under Section 7 as well as Section 13(1)(d), 13(2) of the P.C. Act. It has been propounded that in absence of proof of demand of any illegal gratifcation, the use of corrupt or illegal means or abuse of position as a public servant to obtain any 4 (2014) 13 SCC page 55 rpa 51/52 cr.apeal-44-13,j..doc valuable thing or pecuniary advantage, cannot be held to be proved. The proof of demand has been held to be an indispensable essentiality to prove the ofence. In the present case, the demand as well as acceptance is under shadow of doubt and has not been established beyond reasonable doubt.
31 Considering the discrepancies in the evidence of the prosecution witnesses, I fnd that the evidence adduced against the accused by prosecution sufers from doubt. In the circumstances, the evidence relating to demand and acceptance cannot be believed. The accused is entitled for beneft of doubt and deserves to be acquitted.
32 Hence, I pass the following order:
:: O R D E R ::
(i) Criminal Appeal No.44 of 2013, is allowed;
(ii) The impugned judgment and order dated 21 st December, 2012, passed by Special Judge, Dadra and Nagar Haveli, Silvassa in Special Case No. 1 of 2010, is quashed and set aside and the appellant is acquitted;
rpa 52/52 cr.apeal-44-13,j..doc
(iii) Criminal Appeal stands disposed of accordingly.
(PRAKASH D. NAIK, J.)