Bombay High Court
Dattatraya Udaji Warkad vs The State Of Maharashtra on 7 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
apeal319.2000.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.319 OF 2000
Dattatraya s/o Udaji Warkad,
Aged about 53 years,
Occupation: Patwari,
R/o Halka N.25, Village Veni,
Taluka Lonar, Dist. Buldhana. ....... APPELLANT
...V E R S U S...
State of Maharashtra, through
A.C.B. Office, Buldhana,
Taluka and District Buldhana. ....... RESPONDENT
-------------------------------------------------------------------------------------------
Ms. A. Sarkar, Advocate holding for Shri S.V. Sirpurkar,
Advocate for Appellant.
Shri A.V. Palshikar, APP for Respondent/State.
-------------------------------------------------------------------------------------------
CORAM: ROHIT B. DEO, J.
DATE: th
7 SEPTEMBER, 2017.
ORAL JUDGMENT
1] Challenge is to the judgment and order dated 23.10.2000 in Special Anti Corruption Case 092/1992 delivered by the Judge, Special Court, Buldhana, by and under which, the appellant is convicted of offence punishable under sections 7, 13 (1)(d) read with section 13(2) of the of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "Act") and is ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 2 sentenced to suffer rigorous imprisonment for a period of one year and to pay fine of Rs.1000/-.
2] The gist of the prosecution case is that the appellant (hereinafter referred to as "the accused") allegedly demanded a bribe from the complainant one Ramkisan Laxman Dange to effect mutation of the name of the complainant and other legal heirs of late Laxman Ashru Dange in the agricultural land recorded in the name of late Laxman Ashru Dange in revenue record. The complainant has two brothers and three sisters. The agricultural land situated in village Mohotkhed, which is recorded in the name of the late father of the complainant, is managed by the complainant and his mother. The complainant and his brothers were desirous of selling the land to one Laxman Sathe and accordingly entered into an agreement of sale with the said Laxman Sathe. In order to give effect to the agreement, it was necessary to obtain updated 7/12 extract and the heirship certificate from the Patwari. The complainant approached the Patwari-accused on 25.04.1992 and was told by the accused that since the land is recorded in the name of the father of the complainant, it would take at least one year to effect changes in the revenue record. The accused demanded Rs.500/- from the ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 3 complainant to expedite the work. The accused expressed inability to pay Rs.500/- and the demand was reduced to Rs.400/-. The complainant met the accused on 27.04.1992 and was informed by the accused that the documents are ready and asked the complainant whether he had brought Rs.400/-. The complainant answered in the negative and was then asked by the accused to come with the amount on the next day and take the document. The complainant was unwilling to pay the bribe and lodged report with the Anti Corruption Bureau, Buldhana (ACB). The ACB made elaborate preparation to trap the accused, panchas were summoned, necessary instructions were issued to the complainant and the panchas and the demonstration of the phenolphthalein powder and the sodium carbonate solution test was given.
3] The prosecution case is that the trap was successfully executed on 28.04.1992. The complainant and the shadow panch met the accused at the residence of the accused. The accused was sitting on a carpet, three persons were already there, who left after 10 to 15 minutes. The complainant asked the accused if the work is done and then the accused asked the complainant whether he has brought the form. The complainant said to the ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 4 accused that the form is not brought assuming that the complainant will do the complete work. The accused filled the form and handed over the 7/12 extract to the complainant. The complainant received the 7/12 extract, kept the same in his pocket and was about to leave when the accused demanded the illegal gratification by a gesture. The complainant paid the amount, the accused accepted the same and kept the tainted currency note under his right hip. The complainant came out of the residence of the accused, gave the predetermined signal, the raiding party rushed to the spot and apprehended the accused. The right hand fingers of the accused were subjected to the phenolphthalein test which was positive. The currency notes were recovered from the carpet. The ACB completed the investigation, sought and obtained the statutory sanction and presented the charge-sheet. The accused pleaded not guilty and claimed to be tried. The prosecution examined five witnesses including the sanctioning authority (P.W.1), the complainant Ramkisan Dange (P.W.2), Head Constable Dhondu s/o Kisan Karutle who registered the offence (P.W.3), shadow panch-panch 1 Ashok s/o Gajanan Dalal (P.W.4) and Deputy Superintendent of Police, Deshmukh the Investigating Officer (P.W.5). The defence is of total denial and false implication.
::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 5 4] Ms. Sarkar, the learned counsel would contend that the prosecution has miserably failed to prove, much less prove beyond reasonable doubt that the accused demanded illegal gratification. She would contend that both the complainant and the shadow panch are in unison in claiming that the demand was by gesture. She would contend that the testimony of the complainant (P.W.2) and the testimony of the shadow panch (P.W.4), is inconsistent and marred by inter se contradiction on the aspect of the gesture allegedly made by the accused. She would then contend, that even if the version that certain gestures were made is to be believed, the prosecution has not established a conclusive demand. The learned counsel would contend that the finding of the learned Special Judge that the gesture constitutes demand is manifestly erroneous and borders on perversity.
5] Ms. Sarkar would invite my attention to the judgments of the Hon'ble Supreme Court in Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702 and P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4 SCC 39 and B. Jayaraj vs. State of A.P. 2014 All SCR 1619 to contend that irrefutable proof of decisive demand is a condition ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 6 precedent for bringing home charge under the provisions of the Act and that neither possession nor recovery of currency notes without proof of demand can constitute offence under the Act. 6] Ms. A. Sarkar would then contend that after the introduction of section 165-A in the Indian Penal Code, the complainant is an accomplice since a bribe giver is equally guilty as an abettor. She would contend that, even otherwise, the evidence of the complainant and the panch must be closely evaluated and tested on the touchstone of caution since the complainant and the panch are partisan witnesses who are vitally interested in the success of the trap. She would rely on the judgment of the Hon'ble Supreme Court in Pannalal Damodar Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121. Ms. Sarkar would further urge that a person who is accused of an offence punishable under sections 7 and 13(1)(d) read with section 13 (2) of the Act is entitled to the same treatment as a person accused of any other penal offence. The submission is, that the presumption that an accused is innocent till the guilt is established beyond reasonable doubt applies with equal vigour to prosecution under the act. She would submit that the accused must be presumed to be innocent till the demand and acceptance ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 7 of illegal gratification is proved beyond reasonable doubt and in support of the said submission the learned counsel would rely on A. Subair vs. State of Kerala (2009) SCC Vol.6 587. 7] The learned A.P.P. would urge that the prosecution has conclusively established demand for illegal gratification. He would submit that there is no infirmity in the finding of the learned Sessions Judge that the gesture of the accused constitutes demand. The evidence on demand, according to learned A.P.P., is corroborated by the recovery of the tainted currency notes. The learned A.P.P. would submit that there is no infirmity in the judgment impugned.
8] The evidence of P.W.1 on initial demand is absolutely uncorroborated. The evidence on demand on the date of the trap is that he asked the accused if the work is done, the accused asked the complainant whether the form is brought and upon the complainant replying in the negative, the accused prepared the 7/12 extract and handed over the same to the complainant. The complainant states that he kept the 7/12 extract in pocket and then signed the register at the instance of the accused. It was only when the complainant was getting up that the accused made ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 8 a demand by making gesture by his right hand. The complainant states that the accused kept the notes below the shirt cloth. The shadow panch who is examined as P.W.4 states that when he and the complainant got up to leave, the complainant made gesture by his finger demanding the amount. The complainant handed over the currency note which the accused accepted and kept under his right leg.
9] Concededly, there was no demand before the preparation and handed over of the 7/12 extract. The 7/12 extract was prepared, handed over to the complainant and the signature of the complainant was taken in the register. The complainant and the shadow panch both state that it is thereafter, when they got up to leave, that the amount was demanded through gesture. In view of the settled legal position that a conclusive and definite demand must be proved beyond any reasonable doubt for constituting offence punishable under the act, I am not inclined to agree with the contention of the learned A.P.P. that the alleged gestures, which pertinently are not described with any particularity, constitute demand. The prosecution case has too many grey areas and doubtful facets for this court to uphold the finding that a conclusive and definite ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 9 demand is proved beyond reasonable doubt. It is axiomatic, that in absence of such a demand, the alleged acceptance of the currency note or the recovery of the note from the accused, pales into insignificance, I may also note that the recovery of the currency note is also not free from doubt. The notes are allegedly recovered from below the carpet by panch 2, who incidentally is not examined. The recovery from the currency note from under the carpet is inconsistent with the testimony of both the complainant and the shadow panch. The complainant P.W.2 states that the currency notes were kept by the accused below the shirt cloth while the shadow panch states that the notes were kept under right leg (hip). I need not dwelve in great detail on the evidence of the prosecution on the aspect of the acceptance and recovery of currency notes since I have recorded a finding that the demand, which constitutes the sine quo non for constituting the offence under the act, is not establish beyond reasonable doubt. 10] In the light of the discussion and findings recorded supra, the appeal is allowed. The judgment impugned delivered by the Special Judge, Buldhana on 23.10.2000 in Special Anti Corruption Case 092/1992 is set aside. The appellant is acquitted of the offences punishable under sections 7, 13(1)(d) r/w 13(2) of ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 ::: apeal319.2000.J.odt 10 the Prevention of Corruption Act, 1988. His bail bond shall stand discharged. Fine paid, if any, by the appellant shall be refunded to him.
The appeal is disposed of accordingly.
JUDGE NSN ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:51:12 :::