Bombay High Court
Suryabhan vs State Of Maharshtra on 8 September, 1994
Equivalent citations: 1996(1)BOMCR46, 1995CRILJ107
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT
1. The accused-appellant Suryabhan Shrawan Sawaitul, Patwari, who has been convicted of the offence punishable under sections 7 and 13(c)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short "the P.C. Act") has filed the present appeal dissatisfied with the judgment of the Special Judge, Nagpur, passed on 28-2-1990 in Special Case No. 7 of 1987 State of Maharashtra v. Suryabhan. By the said judgment the Special Judge, Nagpur, on convicting of the accused-appellant for the aforesaid offences, has sentenced him to suffer R.I. for one year and to pay fine of Rs. 50/- and in default of payment of fine to suffer S.I. for 15 days on each count. The substantive sentence has been ordered to run concurrently by the Special Judge, Nagpur.
2. The demand of Rs. 200/- by the accused-appellant from Madhukar Khushalrao Ingole who was offered for and on behalf of Shankar Pandurang Ingole as bribe for effecting mutation in the revenue record in favour of the said Shankar Pandurang Ingole, put the accused-appellant for trial for the offences under Sections 7 and 13(c)(d) read with Section 13(2) of the P.C. Act corresponding to section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for short "the Old P.C. Act"). The accused-appellant was charged to the effect that he being a Patwari of village Malewada in Bhiwapur Tahsil, District Nagpur, i.e. a public servant, demanded and accepted Rs. 200/- on 16-5-1986 at about 4.45 p.m. at Bhiwapur from Madhukar Khushalrao Ingole as gratification other than legal remuneration as a motive or reward for doing an official act, which he was otherwise and legally entitled for making entries in the mutation register in favour of Shankar Pandurang Ingole and his brother in respect of the field survey Nos. 199/1, 199/2, 199/3 of Malewada, which stood in the name of their mother as per the will made by the father of Shankar Pandurang Ingole and, thereby committed an offence punishable under section 7 of the P.C. Act corresponding to Section 161 of Indian Penal Code. The accused appellant was also charged to the effect that he being the Patwari of the said village i.e. the public servant, on 16-5-1986 at about 4.45 p.m. at Bhiwapur obtained for himself pecuniary advantage of Rs. 200/- from Madhukar Khushalrao Ingole by abusing his legal position as a public servant by corrupt or illegal means or otherwise, and thereby committed and offence punishable under section 13(c)(d) read with section 13(2) of the P.C. Act corresponding to Section 5(1)(d) read with section 5(2) of the old P.C. Act.
3. The prosecution case is that on 16-5-1986 Madhukar Khushalrao Ingole (P.W. 1) lodged a complaint (Exh. 14) in Anti-Corruption Bureau, Nagpur. It is alleged in the said complaint that he resides at Malewada and carries on agricultural operations. Shankar Pandurang Ingole happens to be his cousin and he is posted at Nagpur. He supervises the agricultural land of Shankar Ingole situated at Malewada and manages the affairs in connection thereof. The father of Shankar, Pandurang Zibal Ingole, bequeathed his agricultural land to Bhigirathibai i.e. the mother of Shankar Ingole, who also died somewhere in the year 1983 and after her death the said land was to be mutated in favour of Shankar Ingole and his three brothers. Shankar Ingole came to Malewada and asked them to request the Patwari of Malewada for taking steps in effecting the mutation of the said agricultural lands in his name. In the month of March 1986 Shankar again came to Malewada and he and the complainant went to the accused-appellant and both of them met the accused-appellant. At that time Shankar Ingole requested the accused to effect mutation in his name and the name of his two brothers after the death of his mother Bhagirathibai. The will of Smt. Bhagirathiabi had already been handed over to the appellant-accused by the complainant prior to that. According to the complainant, the accused-appellant told him and Shankar that the mutation cannot be effected free of cost and demanded the bribe of Rs. 200/- and said that if the said amount was not paid to him, he would not carry on the mutation. Both of them returned and Shankar told the complainant that he should keep in touch with the accused and get the work done. On 13-5-1986 when the accused came to Malewada, the complainant met him and requested him to do the mutation work of Shankar and on that the accused reminded him of Rs. 200/- for effecting the work. Then the complainant told the accused that Rs. 200/- was a big amount, but the accused-appellant insisted that he would not accept even one paisa less than Rs. 200/-. He then told him that he would bring the amount within a day or two after meeting Shankar. The accused-appellant told him that he would not come to Malewada now, and if he has to get the work done, then he has to pay the amount at Tahsil Office or at his residence. The complainant then alleged that he assured him that he would bring and pay the said amount till noon of 16-5-1986. He met his cousin Shankar Ingole and told him the aforesaid facts. He and Shankar then both decided that a complaint be lodged with the Anti-Corruption Department instead of giving the amount of Rs. 200/- to the accused-appellant as a bribe. In this view, Rs. 200/- was deposited with the Anti-Corruption Department by Madhukar Ingole.
4. Thereafter a trap was laid by Abdul Razzak (P.W. 12), Police Inspector, Anti-Corruption Bureau, Nagpur. According to the prosecution, after making full preparation for the trap the raiding party reached Bhiwapur at about 4.00 p.m. The complainant Madhukar and Daulat Lanjewar (P.W. 2) went to the house of the accused and the raiding party concealed itself at some distance. On getting a signal from the complainant, the raiding party went to the house of the accused and P.W. 12 Abdul Razzak, P.I., Anti-Corruption Bureau introduced himself to the accused and showed his identity card. P.W. 12 interogated the accused and then directed the Police Constable Ashok to prepare the solution of sodium carbonate, which he accordingly prepared in a glass. Except the complainant Madhukar, all the members of the raiding party were asked to dip their fingers in that glass. The solution had not changed its colour and it was thrown away. A fresh solution of sodium carbonate was prepared through the Police Constable Ashok and then the accused was asked to deep the fingers of his right hand in the solution of sodium carbonate and the solution changed its colour and became purple. Again the fresh solution of sodium carbonate was prepared through the Police Constable Ashok and the accused was asked to deep the fingers of his left hand in the said solution. This time also the solution turned purple. Then different bottles were prepared from the said solution and sealed in presence of the panchas. The accused was asked to produce tainted notes which he had accepted from the complainant Madhukar (P.W. 1) and on that, he produced the said notes. The numbers of the said tainted notes tallied with the number of notes recorded in the Panchanama. The fresh solution of sodium carbonate was prepared though Police Constable Ashok and that was sprinkled on the tainted notes on both the sides and purple dots appeared on the tainted notes. The tainted notes were kept in the envelope and sealed in the presence of panchas. Then on personal search on the accused a dairy, handkerchief, key and sum of Rs. 22.20 were found. The dairy was seized and rest of the articles were returned. The accused at that time was wearing Paijama, which was got changed, and the Paijama which he was wearing at the time of raid was seized and sodium carbonate solution was sprinkled on the right side pocket of Paijama where the accused had kept the tainted notes and purple dots also appeared on the said pocket also. A seizurememo of that Paijama was also prepared. Then the fingers of the complainant Madhukar (P.W. 1) were also got deeped in the fresh solution of sodium carbonate and the said solution also became purple. The said solution was kept in a bottle and sealed. The sodium carbonate solution was also sprinkled on the left hand chest pocket of the shirt of the complainant from the inner side and the purple dots also appeared on the pocket. The spot was measured and the rough sketch of the same (Exh. 65) was prepared. Then P.W. 12 Abdul Razzak prepared a report for lodging the same in the police station and the said report was sent to the Police Station, Bhiwapur, though Police Constable Ashok and the first information report lodged at the Police Station Bhiwapur is Exh. 30. The investigating officer proceeded with the investigation. Certified copies of relevant revenue records were collected by the Investigating Officer and so also the statement of witnesses were recorded during investigation. The bottles and other seized articles were sent for Chemical Analyser's report and the Chemical Analyser's report was obtained. According to the prosecution, the appointing authority of the accused happened to be the Sub-Divisional Officer, Umrer and, therefore, the investigating officer went all requisite papers to Mr. Mohan Adtani, Sub-Divisional Officer, Umrer, for his sanction to prosecute the accused. On receipt of the sanction order (Exh. 26), the investigating officer prepared the chargesheet and submitted the same to the Special Judge, Nagpur.
5. The prosecution examined in the trial Madhukar Khushalrao Ingole-complainant (P.W. 1), Daulat Mahadeo Lanjewar (P.W. 2), Mohan Adtani, Sub-Divisional Officer, Hinganghat (P.W. 3), Grijashankar Baliramji Totade (P.W. 4), Bhaurao Ramuji Thawade (P.W. 5), Purshottam Ramchandra Patil (P.W. 6), Dayaram Pandurang Ingole (P.W. 7), Kulinchandra Navinchandra Bhatt (P.W. 8), Bhaiya Yeshwantrao Ingole (P.W. 9), Sheikh Anwar Abdul Raheman (P.W. 10), Shankar Pandurang Ingole (P.W. 11), Abdul Razzak (P.W. 12) and Babarao Dadarao Patil (P.W. 13). Other documentary evidence referred to hereinabove was also produced.
6. The trial Court recorded the statement of the accused under Section 313 of the Cr.P.C. and he denied the allegations against him. He submitted that he has been falsely implicated. His defence was that he was working at Malewada from 1982 to 5-7-1986. On 31-12-1986 Shankar Ingole had given him a will and he told Shankar that that according to the will the mutation can be done and asked him to pay the land revenue of the current year. On 1-1-1986 Shankar paid the land revenue and the accused gave him the receipt. On 2-1-1986 the mutation was effected in accordance with the will. The accused further stated in his statement under section 313 of the Cr.P.C. that there was a tour of the Revenue Inspector on 31-1-186 and therefore he got the summons served on the cultivators through the Kotwal, and on 31-1-1986 when the Revenue Inspector had come to Malewada, he had certified the mutation recorded by him in favour of Shankar Ingole and Shriram Ingole, brother of Shankar Ingole. By explaining why the accused has been falsely implicated, he further stated that a civil suit is going on between Shriram Ingole, Haribhau, Tukaram Dhanvijay and himself over a way since 1 1/2 months prior to the date of incident. When he was a Malewada, Shriram Ingole had taken a photograph of the spot for publication in the newspaper. When the accused came about this he asked Shriram as to why he had taken the photograph of the disputed site, Shriram quarrelled with him saying that he had seen many Patwaris like him and threatened that he would see him and then went away. Yet another reason for his false implication has been given by the accused by stating that Ishwar Tanba obstructed the way going to the filed of Shankar Ingole, his uncle Shamrao Ingole, bother Murlidhar, Tukaram Ingole, Bhaiya, Yeshwant etc. Against this Shamrao Ingole and others has filed a civil suit for temporary injunction and he had supplied the copies of documents to Shamrao Ingole and Ishwar Raut. The complainant Ingoles developed a grudge against him that though he had supplied the copies of documents to their rivals, but the same have not been supplied to them. Yet another explanation put forward by the accused for his false implication is that due to non-supply of documents the complainant party was defeated in the suit. The accused has also stated in his statement under section 313 of the Cr.P.C. that the land which had come in partition to Bhaiya Dnyaneshwar and others has been sold by registered sale-deed as regards their share on 5-5-1986. According to the accused, 15 days prior to the incident he had demanded Rs. 200/- as loan from Madhukar at Malewada and he had agreed to bring that amount and give him at Bhiwapur Madhukar was the worker of Agricultural Sanstha. Taking advantage of this fact, Madhukar got the trap laid and falsely implicated him. In his defence the accused also produced Abdul Gaffar (D.W. 1), Purshottam Ramchandra Patil (D.W. 2), Haribhau Ishwar Raut (D.W. 3) and Lalu Ishwar Raut (D.W. 4). The accused-appellant also produced the certified copy of Exh. 5 i.e. the application filed by plaintiffs i.e. Shamrao Zibaji Ingole and others against Ishwar Raut and others regarding grant of temporary injunction on 14-1-1986 and the order dated 5-2-1986 (Exh. 85), xerox copy of the plaint map showing the fields of the plaintiffs and defendants at Exh. 86, true copy of Bandobast Khasra dated 24-1-1986 at Exh. 88, true copy of Wajibul application dated 13-5-1986 at Exh. 89, xerox copy of map of Mouza Malewada at Exh. 90 and 91, extract of Gav Namuna No. 7, 7A and 12 dated 24-1-1986 at Exh. 92 xerox copy of extract of Gav Namuna No. 7, 7-A and 12 dated 8-2-1986 at Exh. 93, xerox copy of extract of Gav Namuna No. 7, 7-A and 12 dated 8-2-1986 at Exh. 94, and xerox copy of registered sale-deed dated 5-5-1986 whereby Bhaiyya Yeshwantrao Ingole (P.W. 9) sold his share of agricultural land which was mutated in his favour on 2-1-1986 by the deed dated 5-5-1986 at Exh. 98.
7. The Special Judge, Nagpur, heard the learned counsel for the parties and vide his judgment dated 28-2-1990 found the accused-appellant guilty of the offences punishable under sections 7 and 13(c)(d) read with Section 13(2) of the P.C. Act and sentenced the accused-appellant to suffer R.I. for one year and to pay fine of Rs. 50/- and in default of payment of fine to suffer S.I. for 15 days on each count.
8. Mr. S. V. Manohar, learned counsel for the accused-appellant, has contended in this appeal that the accused has been falsely implicated because the accused-appellant had supplied copies of documents to Ishwar Raut against whom the complainant had filed one suit. The grudge of the complainant and his brothers was that though the accused-appellant had supplied the copies of the revenue records to their opponent Ishwar Raut but the same have not been supplied to them. Shri Manohar strenuously urged before me that the prosecution case that the accused-appellant demanded the bribe of Rs. 200/- from Madhukar (P.W. 1) for and on behalf of Shankar for effecting the mutation in the mutation register on 16-5-1986 at about 4.45 p.m. at Bhiwapur, is totally false and cannot be believed because the mutation in favour of Shankar Ingole (P.W. 11) and his brother Bhaiya Ingole (P.W. 9) had already been effected on 2-1-1986 and the said mutation was already certified by the Revenue Inspector on 31-1-1986 in their presence and, therefore, the demand of the alleged bribe by the accused appellant for effecting mutation cannot be conceived, much less believed. Mr. Manohar also submitted that when no such demand for bribe was made by the accused-appellant, the question of his having pecuniary advantage of Rs. 200/- by corrupt or illegal means or otherwise did not arise. The learned counsel also submitted that after the mutation was effected on 2-1-1986 and duly certified on 31-1-1986, the partition took place between Shankar and his brothers, and the bothers of Shankar sold their share by registered sale-deed dated 5-5-1986 and therefore the prosecutions story of the demand of bribe by the accused-appellant is unbelievable Mr. Manohar relied on the decision in Trilokchand Jain v. State of Delhi, .
9. The learned A.P.P. on the other hand has urged that the complainant Madhukar (P.W. 1) or Shankar Ingole (P.W. 11) or any of his brothers had no knowledge that the mutation has been effected by the accused-appellant on 2-1-1986 and has been certified by the Revenue Inspector on 31-1-1986. The said Shankar Ingole was on duty on 31-1-1986 at Nagpur and therefore his presence has been wrongly recorded by the Revenue Inspector while certifying the mutation on 31-1-1986. According to the learned A.P.P., the prosecution has proved beyond reasonable doubt the guilt of the accused for the offence punishable under section 7 of the P.C. Act and Section 13(c)(d) read with Section 13(2) of the P.C. Act. In support of his argument, the learned A.P.P. has relied on the statements of P.W. 7 Dayaram, P.W. 9 Bhaiya and P.W. 11 Shankar Ingole to show that none of them had any knowledge about the mutation having been effected by the accused on 2-1-1986 or having been certified by the Revenue Inspector on 31-1-1986. The learned A.P.P. submitted that the trial Court has properly appreciated the entire evidence on record and has come to the correct conclusion convicting the accused-appellant for the offence under sections 7 and 13(c)(d) read with Section 13(2) of the P.C. Act, and the judgment impugned in this appeal does not call for any interference by this Court.
10. The principal question which is required to be determined in this appeal is whether the accused-appellant received Rs. 200/- from Madhukar Ingole (P.W. 1) as gratification as a motive or reward for effecting entries in the mutation register in favour of Shankar Ingole and his brothers, or in other words, the question is, could it be reasonably said in the facts and circumstances of the present case that the money of Rs. 200/- was handed over to the accused-appellant or received by him as a motive or reward for effecting entries in the mutation register in favour of Shankar and his brothers. The accused-appellant has been charged that he being the Patwari of Malewada in Bhiwapur Tahsil, District Nagpur, i.e. a public servant, demanded and accepted Rs. 200/- on 16-5-1986 from Madhukar Khushalrao Ingole as gratification other than legal remuneration as a motive or reward for doing an official act, which be has otherwise or legally duty bound for making entries in the mutation register in favour of Shankar Ingole and his brothers in respect of the filed survey Nos. 199/1, 199/2 and 199/3 and also that he by corrupt or illegal means or otherwise by abusing his position as a public servant obtained for himself a pecuniary advantage of Rs. 200/- from Madhukar Ingole.
11. Section 20 of the new P.C. Act provides for presumption in the trial for the offences under section 7 (old Section 161 of the I.P.C.) or section 11 or clause (i) or clause (ii) of sub-section (1) of section 13 where the public servant accepts gratification other than legal remuneration. Section 20 of the new P.C. Act (equivalent to Section 4 of the old P.C. Act) reads as under :
"20. Presumption where public servant accepts gratification other than legal remuneration. - (1) Wherein, in any trial of an offence punishable under section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be as a motive or reward such as is mentioned in Section 7, or, as the case may be without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."
12. The Apex Court had an occasion to consider the then Section 4 of the old P.C. Act of 1947 (equivalent to Section 20 of the new P.C. Act) in Trilokchand's case (1977 Cri LJ 254) (cited Supra) and the Supreme Court has held that the sole purpose of presumption under section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offence under section 161 of the I.P.C. (equivalent to Section 7 of the new P.C. Act). The Supreme Court has further observed that the presumption therefore can be used in furtherance of prosecution case and not in derogation of it. Thus the Apex Court held (Para 12) :
"One of the essential ingredients of the offence under section 161, I.P.C. with which the appellant stands charged is, that the gratification must have been received by the accused as "a motive or reward" for committing an act or omission in connection with his official functions. It must be shown that there was an understanding that the bribe was given in consideration of some official act or conduct. It is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favour or disfavour in the exercise of his official functions. The question as to whether the Government servant receiving the money had the requisite incriminatory motive is one of the fact. Could it be reasonably said in the circumstances of the instant case that the money was handed over to the appellant or received by him as a motive or reward such as mentioned in Section 161, Penal Code ?"
13. Now adverting to the evidence of Madhukar Ingole (P.W. 1), it would be seen that he has deposed before the Court that when he met the accused for effecting mutation in the revenue register in favour of Shankar Ingole and his brothers after the death of their mother Bhagirathibai for doing this work the accused demanded the bribe of Rs. 200/-. At that time Shankar Ingole (P.W. 11) was also with him. He has further deposed that on 13-5-1986 when the accused came to Malewada and he requested him to do the mutation work of Shankar Ingole, the accused reminded him that he has already told him that the said work would only be done, provided he pays Rs. 200/- to him. P.W. 11 Shankar Ingole has deposed that after the death of his mother, the name of their mother continued in the revenue records and since it was required to be corrected he asked his brother Madhukar Ingole (P.W. 1) to get the mutation effected in his name and in the name of his brothers. He further deposed that the copy was handed over to the Patwari and the map got prepared from the D.L.R. to the Patwari for effecting mutation. This took place in the year 1985. Madhukar had told him so, and in March 1986 Madhukar and Shankar Ingole went personally to the Patwari and met him for getting the name mutated. At that time the accused told them that the work cannot be done free of cost and the accused demanded Rs. 200/- for getting the mutation done P.W. 11 Shankar has stated in his testimony that on 31-1-1986 he was in his office at Nagpur. He further stated that the entry dated 31-1-1986 was noticed in the register when the Police Inspector Abdul Razzak (P.W. 12) inspected the mutation register. He also admitted that a copy of the will was found in the office of the Land Revenue Inspector. P.W. 9 Bhaiya Ingole, one of the brothers of Shankar, has deposed before the Court that he was working as a Clerk in United Commercial Bank, Mahakali Branch, Chandrapur. He stated about his ignorance of moving the application to the Revenue authorities for mutation of the fields after the death of his grand-mother. He also deposed that on 31-1-1986 he did not appear before the Revenue Inspector. However, in cross-examination, he has admitted that the field which had come to his share has been sold by him to Ishwar Bajirao Raut on 5-5-1986 by the registered sale-deed. P.W. 7 Dayaram Ingole, brother of Shankar, has testified that he was a Government servant and during the period from December 1985 of February 1986 he was on commuted leave and during this period he had no occasion to go to Malewada. He also testified that after the death of their mother, his brother Shankar had applied for mutation of the fields in their names in terms of the will. Confronted in the cross-examination as to whether he received any notice from the Patwari to appear before the Revenue Inspector on 31-1-1986, he stated that it was not true. In cross-examination he has admitted that the filed mentioned in the will has been partitioned since February 1986 and since that date he was in possession of the share which was allotted to him in the partition. If the evidence of P.W. 1 Madhukar Ingole, P.W. 11 Shankar Ingole, P.W. 9 Bhaiya Ingole ad P.W. 7 Dayaram Ingole is seen in the light of the revenue records and documentary evidence, it cannot be said that the testimoney of P.W. 1 Madhukar, P.W. 11 Shankar, P.W. 9 Bhaiya and P.W. 7 Dayaram inspires confidence. The copy of extract of the mutation register (Exh. 67) shows that the mutation has been effected in the mutation register on 2-1-1986 itself. The said mutation was made on 2-1-1986 and it is recorded that the concerned persons were intimated on 2-1-1986. It is further apparent from the said document that the mutation, which was effected in the names of Shankar Ingole (P.W. 11), Dayaram Ingole (P.W. 7) and Bhaiya Ingole (P.W. 9) was certified by the Revenue Inspector on 31-1-1986. Shankar Ingole (P.W. 11) as well his brothers Bhaiya Ingole (P.W. 9) and Dayaram (P.W. 7) are shown to be present at the time of vertification and certification by the Revenue Inspector. It is recorded in the said register that the persons named Bhaiya (P.W. 9), Dayaram (P.W. 7) and Shankar (P.W. 11) were present and on verification of the will deed, they admitted that Bhagirathibai has died. On that the mutation which was effected on 2-1-1986 by the accused was certified on 31-1-1986. When the mutation was effected on 2-1-1986 by the accused-appellant and it was duly certified by the Revenue Inspector on 31-1-1986 in the presence of Shankar Ingole (P.W. 11), Dayaram (P.W. 7) and Bhaiya Ingole (P.W. 9), it becomes unbelievable and in any case highly doubtful that the accused demanded the sum of Rs. 200/- in the month of May 1986. It will be further seen from the statement of P.W. 7 Dayaram Ingole that the agricultural field was partitioned amongst the brothers, namely, Dayaram (P.W. 7), Bhaiya (P.W. 9) and Shankar (P.W. 11) in the month of February 1986. It is thus clear that after the mutation was effected on 2-1-1986 and duly certified on 31-1-1986, the partition of agricultural land took place between the three brothers and thus it can be inferred that Shankar Ingole (P.W. 11), Bhaiya Ingole (P.W. 9) and Dayaram Ingole (P.W. 7) had knowledge that the mutation was effected on 2-1-1986 and was duly certified on 31-1-1986 by the Revenue Inspector. The statements of these three brothers, namely, P.W. 7 Dayaram, P.W. Bhaiya and P.W. 11. Shankar to the contrary that they were not present on 31-1-1986 before the Revenue Inspector cannot be believed. This is further fortified from the fact that on 5-5-1986 one of the brothers Bhaiya (P.W. 9) has sold his share of agricultural land to Ishwar Raut by the registered sale-deed (EXh. 98). If the mutation had not been effected on 2-1-1986 and certified on 31-1-1986 and was not in the knowledge of these three brothers as alleged, Bhaiya could not have sold his share on 5-5-1986 much before the date of incident on 16-5-1986. From this evidence, it can be inferred that the prosecution case that Rupees 200/- was demanded by the accused-appellant from Madhukar Ingole (P.W. 1) as gratification as a motive or reward for effecting the entries in the mutation register in favour of Shankar and his brothers does not inspire confidence and cannot be believed. On the face of the facts that the mutation was already effected by the accused-appellant on 2-1-1986, which was certified by the Revenue Inspector on 31-1-1986 and the post conduct of Shankar Ingole and his brothers of partition of their respective shares in the month of February 1986 and the sale of share by one of the brothers Bhaiya (P.W. 9), the prosecution story about the demand of Rs. 200/- by the accused-appellant from Madhukar Ingole (P.W. 1) as gratification as a motive or reward for effecting entries in the mutation register in favour of Shankar and his brothers becomes highly improbable and can be said to be suffering from inherent improbabilities. There is no reason to doubt correctness and genuineness of the entries recorded in the mutation register on 2-1-1986 and 31-1986 respectively. I find myself unable to agree with the reasoning of the trial Court that the absence of Shankar and his brothers on 31-1-1986 in the said document is proved by the testimony of Shankar and his brothers before the Court and Ex. 52, 55 and 56 that they were not available on 31-1-1986. It may be also observed that in the statement under section 313 of the Code of Criminal Procedure, the accused has stated that on 31-12-1986 Shankar Ingole (P.W. 11) had given him the will and he told him that on the basis of the will mutation can be done and asked them to deposit the land revenue of the current year and on 1-1-1986 Shankar paid the land revenue and the receipts were given. The fact of deposit of land revenue by Shankar on 1-1-1986 not disputed. This leads to the credence to the defence that on 2-1-1986 the mutation was effected by the accused appellant in the knowledge of Shankar and his brothers and that was certified and approved by the Revenue Inspector on 31-1-1986. There is no independent evidence about the demand of bribe by the the accused-appellant from P.W. 1 Madhukar and P.W. 11 Shankar. In this view of the matter even after drawing the presumption under section 20 of the new P.C. Act (Section 4 of the old P.C. Act) in favour of the prosecution for the offence under section 7 of the new P.C. Act (equivalent to section 161 of the I.P.C), the evidence referred to hereinabove sufficiently dislodges and displaces the said presumption. Taking the entire facts and circumstances into consideration, I am of the view that one of the essential ingredients of Section 7 of the new P.C. Act (equivalent to Section 161 of the I.P.C.) that Rs. 200/- was received by the accused-appellant from Madhukar Ingole (P.W. 1) as gratification as a motive or reward for effecting entries in the mutation register in favour of Shankar and his brothers, has not been proved beyond reasonable doubt and the presumption drawn in favour of the prosecution has been rebutted, dislodged and displaced by the accused-appellant. Therefore, the conviction of the accused-appellant for the offence under Section 7 of the new P.C. Act (equivalent to Section 161 of the I.P.C. as it then was) cannot to be sustained. From the evidence which has been discussed above, it could also be not reasonably held that the accused-appellant has obtained the money of Rs. 200/- from Madhukar Ingole by using some corrupt or illegal means or otherwise abusing his official position as a public servant and the charge against the accused appellant that he by corrupt or illegal means on 16-5-1986 at 16.45 hours demanded and accepted Rs. 200/- as Patwari from Madhukar Khushalrao Ingole by abusing his position as public servant and obtained for himself a pecuniary advantage of Rs. 200/- cannot be sustained. The offence under section 13(c)(d) read w ith Section 13(2) of the new P.C. Act corresponding to old Section 5(1)(d) read with Section 5(2) is also not proved and the conviction of the accused under the said section also cannot be sustained.
14. Consequently, this criminal appeal is allowed and the judgment of conviction and sentence passed by the Special Judge, Nagpur, in Special Case No. 7 of 1987 State of Maharashtra v. Suryabhan on 28-2-1990 is set aside. The conviction of the accused-appellant under sections 7 and 13(c)(d) read with Section 13(2) of the P.C. Act, 1988 and the sentence awarded to the accused-appellant for the said offences are also set aside. The bail bonds are discharged and the accused-appellant is acquitted of the offences under sections 7 and 13(c)(d) read with Section 13(2) of the P.C. Act, 1988 in Special Case No. 7 of 1987 State of Maharashtra v. Suryabhan. Order accordingly.
15. Appeal allowed.