Bombay High Court
Deorao Marotrao Bhagatkar vs Central Bureau Of Investigation Thr. ... on 14 August, 2018
Equivalent citations: AIRONLINE 2018 BOM 828
Author: Manish Pitale
Bench: Manish Pitale
APEAL406.04-Judgment 1/40
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 406 OF 2004
APPELLANT :- Deorao son of Marotrao Bhagatkar, aged
Org.Accused about 53 years, Occupation - Nil,
resident of 26, Griha Laxmi Layout,
Manav Seva Nagar, Seminary Hills,
Nagpur, Taluka & District - Nagpur.
...VERSUS...
RESPONDENT :- Central Bureau of Investigation, through
Org.Complainant Police Inspector, C.B.I./S.P.E.A.C.B.,
Nagpur, Taluka & District - Nagpur.
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Mr. M. P. Khajanchi, counsel for the appellant.
Mrs.Mugdha Chandurkar, counsel for the respondent.
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CORAM : MANISH PITALE, J.
DATE OF RESERVING THE JUDGMENT: 06.08.2018.
DATE OF PRONOUNCING THE JUDGMENT: 14.08.2018.
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APEAL406.04-Judgment 2/40
J U D G M E N T
By the impugned judgment and order dated 14- 20/05/2004, the Court of Special Judge, Chandrapur (Trial Court) in Special Case No.4 of 1994, has convicted the appellant, who was then serving as Principal of Kendriya Vidyalaya, Chandrapur, under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and sentenced him to suffer simple imprisonment for a period 3 years and 2 years on the said two counts along with direction to pay fine. The sentences were directed to run concurrently. The allegation against the appellant was that he had demanded and accepted bribe of Rs.1,000/- from complainant Pradip Pilliwar (PW-1) for giving admission to his daughter in the first standard in Kendriya Vidyalaya, Chandrapur.
2. According to the complainant PW-1, he had met the appellant, who was working as Principal of Kendriya Vidyalaya, Chandrapur, on 24/04/1993 in connection with admission of his daughter in the said school. The appellant had asked the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 3/40 complainant PW-1 to submit admission form on or before 27/04/1993. Accordingly, the complainant PW-1 had submitted the form on 26/04/1993 along with Gram Panchayat Certificate dated 13/07/1988 (Exhibit-22) showing date of birth of his daughter as 03/08/1986. The daughter of the complainant PW-1 was called for interview on 03/05/1993, but since there was marriage ceremony in the house of the complainant PW-1, he met the appellant on 29/04/1993 and requested that his daughter be interviewed before the said date. Accordingly, the appellant asked the daughter to be brought for interview on 01/05/1993. But thereafter, when the select list was displayed on the notice board, against the name of the daughter of the complainant PW-1 the remark "overage" was made.
3. On 05/05/1993, the complainant PW-1 met the appellant and requested that his daughter be given admission, upon which the appellant told him that children above the age of 7 years could not be admitted in first standard in the school. Since the age of the daughter of the complainant PW-1 exceeded 7 years by about a month, the appellant asked the complainant PW-1 to bring an age certificate showing lesser age of his ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 4/40 daughter and that thereafter, he would look into the matter. According to the complainant PW-1, since the date of birth of his daughter was actually 03/08/1987, he swore an affidavit to that effect and obtained age certificate from the Gram Panchayat dated 22/06/1993 showing date of birth of the daughter as 03/08/1987. This document was marked as Article "B"
4. Thereafter, on 28/06/1993 the complainant PW-1 again met the appellant and told him about the said birth certificate obtained from the Gram Panchayat, when the appellant asked him to meet in the school on 29/06/1993 when the school was to reopen. On the said date, the appellant asked the complainant PW-1 to meet on 02/07/1993. When the complainant PW-1 went to meet the appellant on 02/07/1993 and showed him the said birth certificate obtained from the Gram Panchayat, the appellant said that it would be difficult to grant admission to the daughter and demanded amount of Rs.1,000/- for granting such admission. On the request of the complainant PW-1 to reduce the amount, the appellant did not agree and insisted on payment of said amount. When the complainant PW-1 went again on 05/07/1993 to request for reduction of the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 5/40 amount, the appellant said that the demand would not be reduced and that a further time of only one day was given to the complainant PW-1 to pay the aforesaid bribe amount.
5. According to the complainant PW-1, on 06/07/1993 he went to the office of the Anti Corruption Bureau, Chandrapur and submitted complaint (Exhibit-20) against the appellant, as he did not wish to pay the bribe amount. On the basis of the said complaint, the Investigating Officer Mr. Nilkanth Zalke PW-5 made preparations for execution of trap against the appellant. Two panch witnesses were summoned and currency notes constituting the bribe amount were smeared with phenolphthalein powder and the whole process of execution of trap was explained to the complainant PW-1 and the panch witnesses.
6. Thereafter, the complainant PW-1 and the panch witness No.1 i.e. the shadow witness Mansajan Uke (PW-2) went to the school of the appellant and entered the cabin where the appellant was sitting. The appellant enquired from the complainant PW-1 as to who was PW-2, to which the complainant PW-1 told that he was a friend, who had been recently transferred ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 6/40 and that he also wanted his children to be admitted in the school. But, the appellant asked the shadow witness PW-2 to wait outside, upon which the shadow witness PW-2 went out of the cabin. According to the complainant, thereafter, the appellant asked whether he had brought the amount and the birth certificate of the daughter obtained from the Gram Panchayat. Upon the birth certificate being produced by the complainant PW-1, the appellant took out a form for admission (Exhibit-21), which was filled by the complainant PW-1 and also the appellant and both of them put signatures thereon. The appellant then handed over the form to the complainant PW-1 and asked him to go to the clerk Vinaykumar Choudhari PW-3 to complete the process of admission. At this stage, the appellant said that the admission was done and that the amount should be paid to him. The complainant PW-1 took out the bribe amount and gave it to the appellant, who accepted the same and after counting the notes with both hands, he kept the amount in the left hand side pocket of his pant. The complainant PW-1 thereafter went to the clerk PW-3 with the form and deposited the amount. Thereafter, he went back to the chamber of the appellant and told him that admission process was completed and then came out and gave the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 7/40 pre-decided signal to the raiding party led by the Investigating Officer PW-5.
7. On receiving the signal, the raiding party rushed to the chamber of the appellant and apprehended him. The bribe amount was taken out from the pocket of the appellant and further process of pouring sodium carbonate solution on the currency notes, hands of the appellant and his pant pocket was undertaken and samples were collected for being sent for chemical analysis. On the basis of the said raid conducted against the appellant, First Information Report (FIR) was registered against him for having committed offences under the provisions of the aforesaid Act.
8. The post trap panchanama was prepared in which details of the raid were recorded. A map of the place of execution of the trap was also prepared. The investigation was later transferred to the Central Bureau of Investigation (C.B.I). The officer of the C.B.I. Mr. Satish Joshi (PW-6) took up further investigation and seized papers on 08/10/1993 and 09/10/1993 as part of the investigation. These papers pertained to the claim ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 8/40 of the appellant that the said amount was received by him towards donation sent by Samata Bauddha Mandal purportedly through the complainant PW-1. Extensive documentary evidence was collected during the course of investigation and placed on record of the Trial Court.
9. The prosecution examined 7 witnesses in support of its case. PW-1 Pradip Pilliwar was the complainant, PW-2 Mansajan Uke was the shadow witness, PW-3 Vinaykumar Choudhari was the clerk in the school, PW-4 Lizzie Jacob was the Commissioner of Kendriya Vidyalaya Sanghathan, the sanctioning authority, PW-5 was the investigating officer Mr.Nilkanth Zalke, PW-6 was the C.B.I. Officer Mr. Satish Joshi and PW-7 Krushnakumar Jha was the then Assistant Commissioner of Kendriya Vidyalaya Sanghatan to whom certain communications were sent by the appellant. The appellant examined one defence witness Yashwant Dhatrak, a Peon working in the said school.
10. On the basis of the oral and documentary evidence on record, the Trial Court found that the prosecution had proved its case beyond reasonable doubt against the appellant. It was held ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 9/40 that the defence of the accused that he had received the said amount of Rs.1,000/- towards donation from Samata Bauddha Mandal was not a probable defence and that the appellant had failed to rebut the presumption that arose against him under section 20 of the said Act. On this basis, the Trial Court convicted and sentenced the appellant.
11. Mr. M. P. Khajanchi, learned counsel appearing on behalf of the appellant, submitted that a perusal of the impugned judgment and order, demonstrated that the Trial Court had wrongly placed very heavy burden on the appellant to prove his defence and to rebut the presumption that arose under section 20 of the said Act. It was submitted that when the prosecution in the present case had failed to prove foundational facts of demand and acceptance of the said amount towards illegal gratification, the presumption itself did not arise in the present case. It was submitted that the Trial Court had wrongly placed a heavy burden on the appellant while failing to appreciate that the prosecution had failed to prove basic facts of demand and acceptance of illegal gratification, beyond reasonable doubt, against the appellant. ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 10/40
12. It was submitted that in the present case, the evidence on record demonstrated that only the complainant PW-1 was the witness, who directly supported the claim of demand and acceptance of illegal gratification by the appellant. It was submitted that the shadow witness PW-2 was outside the cabin of the appellant and his evidence was of no value in the present case. It was submitted that such uncorroborated evidence of the complainant PW-1 could not have been relied upon by the Trial Court to convict the appellant. It was further contended that the shadow witness PW-2 had admitted in his cross-examination that since it was his first case wherein he was acting as a panch witness, he had studied all the papers and he had further stated that he knew that if there were discrepancies in his evidence, he may be put in trouble. On this basis, it was contended that the said witness was a tutored witness and that his entire testimony was rendered unreliable and further that it was liable to be discarded.
13. It was further submitted that initial demand, said to have been made by the appellant on 02/07/1993 when the complainant PW-1 approached him for admission, was not ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 11/40 corroborated by any supporting evidence on record. Failure to prove the initial demand was fatal to the facts of the prosecution case, which the Trial Court failed to appreciate. It was pointed out that the appellant had placed on record sufficient material in the form of donation letter Exhibit-68 sent by the said Samata Bauddha Mandal, receipt towards acceptance of donation amount Exhibit-59, letter dated 06-07/07/1993 sent by the appellant to the Assistant Commissioner Exhibit-78 and letter dated 22/03/1993 Exhibit-77 sent to the Chairman seeking permission to accept donation amount from the said Samata Bauddha Mandal, to prove his defence, that the aforesaid amount of Rs.1,000/- was accepted by the appellant under the bona fide impression that it was towards donation from the said Mandal. It was submitted that such evidence on record was sufficient to rebut the presumption, if any, on the touchstone of preponderance of probabilities. The Trial Court failed to appreciate that the appellant was not required to prove his defence beyond reasonable doubt and a wholly unjustified heavy burden was placed upon the appellant by the Trial Court to rebut the presumption. It was also submitted that the sanction order issued by the Sanctioning Authority PW-4 in the present case suffered ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 12/40 from non-application of mind and that therefore, on that count also the conviction and sentence imposed upon him was required to be set aside. In support of the case of the appellant, the learned counsel relied upon the following judgments -
in the case of State of Kerala and another v. C.P.Rao, reported in (2011) 6 SCC 450, Khaleel Ahmed v. State of Karnataka, reported in (2015) 16 SCC 350, C.M.Girish Babu v. CBI, Cochin, High Court of Kerala, reported in (2009) 3 SCC 779, A. Subair v. State of Kerala, reported in (2009) 6 SCC 587, B. Jayaraj v. State of Andhra Pradesh, reported in (2014) 3 SCC 55, Mukhtiar Singh (since deceased) Through His Legal Representative v. State of Punjab, reported in (2017) 8 SCC 136, Kashinath Vikramji Thorat v. State of Maharashtra, reported in 2018 ALL MR (Cri) 2456, Mansukhlal Vitthaldas Chauhan v. State of Gujarat, reported in (1997) 7 SCC 622, T. K. Ramesh Kumar v. State Through Police Inspector, Bangalore, reported in (2015) 15 SCC 629, Bhagwan Mahadeo Sathe v. State & Anr., reported in 2011 ALL MR (Cri) 1221, Popat Shankar Sonawane v. State of Maharashtra, reported in 1993(1) Mh.L.J. 359 and State of Karnataka v. Ameerjan, reported in (2007) 11 SCC 273.
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14. Per contra, Mrs. Mugdha Chandurkar, learned counsel appearing for the respondent-CBI, submitted that there was ample evidence on record in the present case proving demand and acceptance of illegal gratification by the appellant and that therefore, no error could be found in the conviction and sentence imposed by the Trial Court in the present case. It was submitted that the oral evidence of the complainant PW-1 and the shadow witness PW-2, read with the documentary evidence on record clearly demonstrated that the appellant misused his position as Principal of the school to demand and accept illegal gratification from the complainant to grant admission to his daughter. It was submitted that the evidence of the complainant PW-1 was not discredited in cross-examination. Although the shadow witness PW-2 was asked to leave the cabin by the appellant, it did not adversely affect the quality of his evidence and that it sufficiently corroborated the testimony of the complainant PW-1. It was submitted that the admission given in cross-examination by the said witness that he had studied the papers of the case since it was his first occasion as a panch witness, could not lead to the conclusion that he was a tutored witness. It was further submitted that the chemical analysis report in the present case conclusively ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 14/40 proved the fact that the appellant had accepted smeared currency notes towards illegal gratification and that presumption against the appellant in the present case under section 20 of the said Act operated in full force.
15. It was further submitted that although the appellant was entitled to rebut the presumption on the touchstone of preponderance of probabilities, in the present case, the appellant had failed to rebut the presumption as the defence raised by him was not even probable. It was submitted that the whole story about acceptance of the said amount towards donation from the Samata Bauddha Mandal was a concocted story and the documents relied upon by the appellant in that context, did not lead to rendering his defence even probable. The Trial Court in the present case had examined the said defence raised on behalf of the appellant, but, it had correctly found that there were missing links and that the appellant could not be said to have rebutted the presumption that arose against him. The learned counsel for the respondent placed reliance on judgments of the Hon'ble Supreme Court in the case of C.M.Sharma v. State of Andhra Pradesh, reported in (2010) 15 SCC 1, M. Narsinga Rao ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 15/40 v. State of A.P., reported in (2001) 1 SCC 691, State of Assam v. Krishna Rao, reported in (1973) 3 SCC 227 and unreported judgment of Hon'ble Supreme Court in the case of The State of Gujarat v. Navinbhai Chandrakant Joshi Etc. in Criminal Appeal Nos.895-896 of 2018.
16. Heard counsel for the parties. In the present case, the grievance of the complainant PW-1 was that the appellant as Principal of Kendriya Vidyalaya, Chandrapur, had sought illegal gratification to grant admission to his daughter in the first standard, although initially she was not granted admission for the reason of being overage. In the complaint Exhibit-20 dated 06/07/1993 submitted by the complainant PW-1, he categorically stated that when his daughter was not granted admission in the said school for being overage, he met the appellant, who advised him to bring a birth certificate of lower age and stated that then he would see about granting admission. Thereafter, according to the complainant PW-1, when he got a birth certificate prepared from the Gram Panchayat on 22/06/1993 and then approached the appellant, a demand of illegal gratification of Rs.1,000/- was ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 16/40 made by the appellant on 02/07/1993 for grant of admission to the daughter of the complainant PW-1. The earlier birth certificate dated 13/07/1988 showing the date of birth of the daughter of the complainant PW-1 as 03/08/1986 was at Exhibit-22 while the subsequent birth certificate showing the date of birth as 03/08/1987 was at Article "B". The initial form dated 24/04/1993 filled by the complainant PW-1 for admission of his daughter in the said school was on record at Exhibit-19.
17. In his deposition before the Court, the complainant PW-1 deposed consistent with his complaint at Exhibit-20, in the examination-in-chief. He further described in detail how he approached the office of Anti Corruption Bureau by submitting the said complaint Exhibit-20 and the manner in which the Investigating Officer PW-5 made preparation for examination of trap against the appellant. The events that took place at the time of execution of the trap were also stated in detail by the complainant PW-1, including the fact that the appellant demanded the amount towards illegal gratification at the time of execution of the trap. The narration of events is supported by the document at Exhibit-21, which is application for admission in the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 17/40 school. The said application was partly filled by the complainant PW-1 and partly by the appellant. This document at Exhibit-21 shows that on 06/07/1993 when the trap was executed, the appellant got details of the daughter of the complainant PW-1 filled from him and then in the column meant for official use, he filled the details and put his signature for grant of admission to the daughter of the complainant PW-1. This is consistent with the evidence of the complainant PW-1 regarding the manner in which the events unfolded on the date when the trap was executed on 06/07/1993.
18. In the cross-examination of the complainant PW-1, his version regarding demand and acceptance of illegal gratification by the appellant is not discredited. The complainant PW-1 has denied the suggestion that he was a member of the said Samata Mandal and that office bearers of the said Mandal had asked him to pay donation amount of Rs.1,000/- to the school. In fact, in cross-examination, it was stated by the complainant PW-1 that the appellant had stated to him that admission to his daughter could not be granted on the basis of birth certificate showing her date of birth as 03/08/1986. This gives credence to the claim of the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 18/40 complainant PW-1 that admission form was got filled on 06/07/1993 by the appellant and it was also signed by the appellant, only after the subsequent date of birth certificate was produced and the amount towards illegal gratification was given to the appellant.
19. The evidence of shadow witness PW-2 shows that although the appellant asked him to leave the cabin when he had accompanied the complainant PW-1 for execution of trap, he stood outside the cabin and he could see the events as they unfolded inside the cabin of the appellant. He deposed in respect of the demand and acceptance of illegal gratification by the appellant and further about the complainant PW-1 having deposited admission fee with the clerk PW-3. This witness also deposed in detail about the manner in which the appellant was apprehended when the complainant PW-1 gave the pre-decided signal and the recovery of the currency notes from the pant pocket of the appellant, as also the manner in which the sodium carbonate solution was poured on the currency notes, the fingers of the appellant and the pant pocket, after which the solution that had changed colour was collected and sealed.
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20. Much emphasis has been placed on behalf of the appellant on the fact that the said shadow witness PW-2 was asked to leave the cabin by the appellant and that he could not have witnessed the actual events as they unfolded inside the cabin. In this regard reliance was placed on map at Exhibit-85 to show that the shadow witness PW-2 could not have seen the events that occurred inside the cabin of the Principal from the place where he claimed to have been standing outside the cabin. In this regard the appellant also examined in defence one witness, who was a peon working in the said school. Even if, the contention of the appellant in this regard was to be accepted, the evidence of the shadow witness PW-2 about having accompanied the complainant PW-1 at the time of the trap and about events pertaining to the currency notes being recovered from the pant pocket of the appellant and subsequent events up to preparation of the post trap panchanama, cannot be disregarded. Such evidence does show that the amount towards illegal gratification was recovered from the appellant and the entire evidence of the shadow witness PW-2 could not have been disregarded. The other attack launched on the said shadow witness PW-2 was that he had conceded in cross-examination that he had studied the papers of ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 20/40 the case as it was his first occasion to be panch witness, thereby showing that he was a tutored witness. Much emphasis was placed on his statement that he had prepared for the case because he knew that if there were discrepancies in his evidence, he may be put to be in trouble. On this basis, it was contended that the shadow witness PW-2 had deposed under fear and apprehension, thereby rendering his evidence unreliable. But, the emphasis placed on the said admission of the shadow witness PW-2 appears to be misplaced. All that the said witness has said is that he had studied the case papers, in order to ensure that there were no discrepancies in his evidence. This ipso facto would not lead to the conclusion that he was a tutored witness and the apprehension expressed by him could only be said to be his concern to give proper and truthful evidence in the Court. It would be stretching things too far to hold that the entire evidence of the said shadow witness PW-2 was liable to be discarded for such a statement made in cross-examination.
21. Thus, perusal of the evidence of the complainant PW-1 and shadow witness PW-2 does support the prosecution case regarding demand and acceptance of illegal gratification by the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 21/40 appellant. A presumption contemplated under section 20 of the said Act is thus triggered in the present case. The said provision reads as follows:-
"20 Where, in any trial of an offence publishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant, or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11.''
22. A perusal of the said provision shows that once facts pertaining to acceptance of illegal gratification by the accused are proved, it shall be presumed that the accused accepted such gratification as a motive or reward for doing or forbearing from doing an official act, unless the contrary stood proved. The Hon'ble Supreme Court considered the manner in which such ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 22/40 presumption under section 20 of the said Act would operate, in its judgment in the case of M. Narsinga Rao v. State of A.P. (supra). In this judgment, the Hon'ble Supreme Court analyzed the concept of presumption, based on factual aspects proved against the accused charged with offences under the provisions of the said act. The relevant portion of the said judgment reads as follows:-
"13. Before proceeding further, we may point out that the expressions ''may presume'' and ''shall presume'' are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as ''factual presumptions'' or ''discretionary presumptions'' and those falling under the latter as ''legal presumptions'' or ''compulsory presumptions''. When the expression "shall be presumed"
is employed in Section 20(1)of the Act it must have the same import of compulsion.
14. When the sub-section deals with legal presumption it is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 23/40 that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
15. The word "proof" need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins vs. Powells Tillery Steam Coal Company, Ltd. observed like this:
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"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion".
16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.
17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 25/40 burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled."
23. In a recent unreported judgment in the case of The State of Gujarat v. Navinbhai Chandrakant Joshi Etc. (supra), in the context of presumption under section 20 of the said Act, the Hon'ble Supreme Court held that once it was established that the accused was possessing the bribe money, it was for him to explain as to how the bribe money had been received by him and if he failed to offer any satisfactory explanation, it would be presumed that he had accepted the bribe.
24. Before analyzing further as to whether in the present case oral and documentary evidence was sufficient to raise the aforesaid presumption under section 20 of the said Act against the appellant, it would be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of C.M.Sharma v. State of Andhra Pradesh (supra) where the Court was faced with a similar situation wherein the shadow witness had been asked by the accused to leave the cabin when the trap was actually executed. It ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 26/40 was contended in the said case that since the shadow witness was not present when the complainant gave the bribe amount to the accused, the evidence of the complainant was uncorroborated and in such situation, the prosecution case could not be said to have been proved. In support of such contention raised before the Hon'ble Supreme Court, reliance was placed on the judgment in the case of Pannalal Damodar Rathi v. State of Maharashtra, reported in (1979) 4 SCC 526, wherein it was held that in such cases concerning offences under the aforesaid Act, the complainant was to be treated as an accomplice. While dealing with such a contention, the Hon'ble Supreme Court in the case of C.M.Sharma v. State of Andhra Pradesh (supra) held as follows:-
"18. Further, corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 27/40 evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe. As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribe-taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation.
19. In our opinion it is not necessary that the evidence of a reliable witness is necessarily to be corroborated by another witness. Not only this corroboration of the evidence of a witness can be found from the other materials on record. Here in the present case there does not seem any reason to reject the evidence of the contractor PW 1, M. Venka Reddy. His evidence is further corroborated by the evidence of the shadow witness PW 2, G.T. Kumar. The shadow witness has stated in his evidence that when he entered into the chamber, the appellant was asked by the Inspector as to whether he had received any amount from the contractor, he denied and then removed the currency notes from his trouser pocket and threw the same. He had further stated that sodium carbonate test was conducted in which the solution turned pink when the appellant's fingers and the right side trouser pocket were rinsed. From ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:33 ::: APEAL406.04-Judgment 28/40 the aforesaid one can safely infer that the evidence of the contractor is corroborated in material particulars by the shadow witness.
20. In Panalal Damodar Rathi relied on by the appellant, the version of the complainant was not supported by the panch witnesses and in the face thereof this Court gave the accused the benefit of doubt, which is not the situation in the present case. Similarly in Meena, faced with contradictory evidence and plea of the accused this Court found corroboration necessary to uphold conviction."
21. .......
22. ......
23. .......
24. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the contractor as he had passed his bills. There is further evidence that when the contractor went along with the shadow witness on the date told by the appellant for payment of the bribe, the appellant asked the shadow witness to leave the chamber and thereafter the demand for payment of illegal gratification was made and paid. The positive sodium carbonate test vis-à-vis the fingers and right trouser pocket of the appellant go to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof."
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25. The evidence in the present case needs to be appreciated in the light of the aforesaid position of law elucidated by the Hon'ble Supreme Court. In the present case, as noted above, the complainant PW-1 entered the witness box and fully supported his case as manifested in complaint at exhibit-20. It was his specific case that the appellant had advised him to get a corrected date of birth certificate prepared for his daughter for seeking admission in the school, as she was overage. Upon such certificate being prepared, the complainant PW-1 approached the appellant when the demand of illegal gratification was made. There are two certificates of dates of birth on record, which support the said claim of the complainant PW-1. The initial admission form dated 24/04/1993 Exhibit-19 shows that the complainant PW-1 had indeed applied for admission of his daughter in the school. The date of birth of the child in the said form shows clear overwriting and change has been made from the date 03/08/1986 to 03/08/1987, both in figures as well as in words. The application form at Exhibit-21 dated 06/07/1993 shows that the date of birth of the child is written as 03/08/1987 and the said form is filled in the column for official use by the appellant as the Principal and he has signed the said form. This ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 30/40 shows that on the date when the trap was executed i.e. 06/07/1993, the appellant did fill the application form for admission of the daughter of the complainant PW-1 and he signed it so as to grant admission to her, thereby giving credence to the case of the complainant PW-1 that when he brought the corrected date of birth certificate and agreed to pay illegal gratification to the appellant, steps were taken by the appellant to grant admission to the daughter of the complainant PW-1.
26. The oral evidence of the shadow witness PW-2, even if he was asked to leave the cabin of the Principal, cannot be disregarded, in the light of the law laid down by the Hon'ble Supreme Court in the case of C.M.Sharma v. State of Andhra Pradesh (supra). The said witness has deposed in respect of the demand and acceptance of illegal gratification by the appellant in the cabin as he could observe the events by standing outside the cabin. Even if that portion is not taken into consideration, the evidence of the said witness does show that he had accompanied the complainant PW-1 at the time of execution of the trap and the amount of illegal gratification was indeed accepted by the appellant, which stood proved by sodium carbonate test on the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 31/40 fingers and pant pocket of the appellant. The evidence of the two witnesses i.e. the complainant PW-1 and shadow witness PW-2 clinchingly proved that the appellant was in possession of the illegal gratification which he had accepted. As a consequence, the presumption under section 20 of the said Act operated against the appellant and it was for him to rebut the presumption. The oral evidence of the said two witnesses and the documentary evidence on record, particularly application for admission at Exhibit-21 signed by the appellant, the post trap panchanama Exhibit-36 and the C.A.Report Exhibit-59 conclusively proved the aspects of demand and acceptance of illegal gratification by the appellant.
27. There can be no quarrel with the proposition that such a presumption that arose under section 20 of the said Act was rebuttable on the touchstone of preponderance of probabilities. The appellant could rebut the presumption by raising a probable defence by discrediting the prosecution witnesses or by raising positive defence along with oral and documentary evidence in support of such defence raised by him. In fact, judgments relied upon by the learned counsel for the appellant are mainly on this proposition. Learned counsel has ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 32/40 placed much reliance on the aforementioned judgments to contend that proof of demand and acceptance is a sine quo non for proving offences under the said Act. It is pointed out that even if demand of money by the accused is proved, unless it is shown that such demand of money pertained to an illegal gratification, merely because demand of money was made, it could not be said that the accused had committed offence under the said Act. It was claimed when there was proof that the amount in question was proved to have been accepted by the accused towards illegal gratification, only then could offence under the said Act be said to have been proved. All the judgments relied upon by the learned counsel for the appellant pertain to the said propositions and therefore, it will have to be examined whether the appellant rebutted presumption against him by raising a probable defence and whether there was material to show that he had accepted the amount in question for some other reason and not towards illegal gratification.
28. In this context, the appellant has relied upon documents that according to him, indicated that donation was sought to be given by the aforesaid Samata Bauddha Mandal for ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 33/40 which regular permission was already sought by the appellant from the Competent Authority and that such donation amount was sent by the said Samata Mandal through the complainant PW-1. Further that the appellant had accepted the said amount under the impression and on the basis of that donation was being given by the said Samata Mandal. On this basis, it was contended that even if there was proof of acceptance of the currency notes in the present case, the same were not accepted towards illegal gratification and that therefore, the presumption in the present case stood rebutted.
29. In order to support the said defence raised by the appellant, reliance was placed on letter dated 22/03/1993 Exhibit-77, whereby the appellant had sought permission from the Competent Authority to accord permission for accepting donation amount of Rs.1,000/- from Samata Bouddha Mandal towards promotion of sports in the school, letter dated 05/07/1993 issued by the President of Samata Bouddha Mandal titled as 'Donation Letter' Exhibit-68 wherein it was stated that the said Mandal was hereby donating Rs.1,000/-, receipt dated 06/07/1993 Exhibit-59 issued by the appellant showing receipt of the amount of ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 34/40 Rs.1,000/- and letter dated 06-07/07/1993 Exhibit-78 sent by the appellant to the Assistant Commissioner, Kendriya Vidyalaya Sanghatana stating that the complainant PW-1 had come to his office and produced said letter dated 05/07/1993 issued by the said Samata Mandal for depositing donation amount and that by a conspiracy, it was shown as if the appellant had accepted the illegal gratification. It has come on record that the aforesaid documents at Exhibits-59, 68, 77 and 78 were seized on 08/10/1993 and 09/10/1993. The letters at Exhibits-77, 78 and 68 were produced by the appellant and they were seized. On the basis of the said documents, it was claimed by the appellant that sufficient material was on record to show that a probable defence had been raised by him and that therefore, the presumption in the present case stood fully rebutted. On this basis, it was claimed that the appellant could not have been convicted under the provisions of the aforesaid Act.
30. A perusal of letter dated 22/03/1993 Exhibit-77 shows that the appellant had sought permission from the Competent Authority to accept donation of Rs.1,000/- from the said Samata Mandal. The letter at Exhibit-68 dated 05/07/1993 ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 35/40 shows that the President of the said Samata Mandal had written to the appellant i.e. Principal of the said school that the said Samata Mandal was hereby donating Rs.1,000/- to the school. The receipt at Exhibit-59 dated 06/07/1993 shows that amount of Rs.1,000/- was received from Samata Mandal. It bears the signature only above the word "Principal" while there is no signature of the party, who has given the donation. The letter dated 06-07/07/1993 Exhibit-78 sent by the appellant to the Assistant Commissioner after the trap was executed on the subject of illegal seizure of cash and record, claims that a conspiracy might have been hatched by the President of the Samata Bauddha Mandal and the complainant PW-1, while handing over the said amount of Rs.1,000/-, which was accepted by the appellant towards donation.
31. A proper analysis of the said document shows that although Exhibit-77 (letter dated 22/03/1993) does show that permission was sought by the appellant for accepting donation from Samata Bauddha Mandal, but there was nothing on record to show that any such permission was ever granted by the Competent Authority. The letter dated 05/07/1993 purportedly ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 36/40 sent by the Samata Bauddha Mandal and produced by the complainant PW-1 on 06/07/1993, stated that Samata Bauddha Mandal was hereby donating Rs.1,000/- to the school. But, it does not state that the Mandal was sending cash amount with the complainant PW-1. There is nothing to show that the complainant PW-1 was in any manner connected with the said Samata Bauddha Mandal. It is also strange that such donation was claimed by the appellant to have been sent by the said Samata Mandal in cash. The receipt at Exhibit-59 shows that there is no signature of the party, who purportedly donated the said amount. Even the signature of the "Principal" on the receipt when compared with the signature of the appellant at Exhibit-21 (application for admission), does not match. The letter dated 06/07/1993 sent by the appellant to the Assistant Commissioner claiming that a conspiracy was hatched against him, shows that photocopies of the letter purportedly sent by the said Samata Mandal and the aforesaid receipt were enclosed.
32. The nature of the said documents and the contents of the said letter dated 06-07/07/1993 Exhibit-78 sent by the appellant to the Assistant Commissioner, show that after the trap ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 37/40 was executed and the appellant was caught red handed accepting bribe, he created such documents in order to show a semblance of explanation on his part. The said documents do not show that the defence of the appellant could be said to be even probable. This is because there was nothing to show that the Competent Authority had indeed granted permission for acceptance of donation from Samata Bauddha Mandal. The donation letter at Exhibit-68 does not mention that donation amount of Rs.1,000/- was being sent in cash and further that it was being sent with the complainant PW-1. There is nothing on record to show that the complainant PW-1 was in any manner connected with the said Samata Mandal. The receipt at Exhibit-59 is also not believable as the purported signature of the appellant as Principal of the school is remarkably different from his signature on the document at Exhibit-21, apart from the fact that there is no signature on behalf of Samata Bauddha Mandal, who gave the donation. In such a situation, if the appellant claimed that he accepted the amount under the impression that it was a donation from Samata Bauddha Mandal, it was incumbent upon him to have examined a member or office bearer of the Samata Bauddha Mandal to prove that the donation letter at Exhibit-68 and the donation amount in cash had indeed ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 38/40 been sent by the Samata Bauddha Mandal.
33. The Trial Court has correctly analyzed the aforesaid documentary evidence sought to be relied upon by the appellant. It has been correctly held that the defence raised by the appellant on the basis of the said document is not even probable. Much emphasis has been placed by the learned counsel for the appellant on the fact that the documents in support of his defence were produced on behalf of the appellant and admitted by the prosecution. Even if, the said documents at Exhibit-59 (receipt), Exhibit-68 (donation letter dated 05/07/1993), Exhibit-77 (letter dated 22/03/1993) and Exhibit-78 (letter dated 06-07/07/1993 are taken into consideration, the defence of the appellant clearly comes out as an afterthought and it cannot be said to be even a probable defence.
34. In this situation, it cannot be said that the appellant had rebutted presumption that operated against him. In any case, as noted above, the prosecution in the present case successfully proved both demand and acceptance of illegal gratification by the appellant from the complainant PW-1, on the basis of the oral and ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 39/40 documentary evidence placed on record. The appellant, as Principal of the school, demanded illegal gratification and accepted the same in order to grant admission to the daughter of the complainant PW-1.
35. A submission sought to be raised on behalf of the appellant that a person mentioned in the post trap panchanama, said to have been present at the time of execution of trap and his non-examination was fatal to the prosecution case, is without any substance because it has come in the evidence that the said person was another parent, who was seeking to meet the appellant for admission of his child in the school. Non-examination of such a witness would be of no consequence and it would not benefit to the appellant. The submission made on behalf of the appellant that sanction order in the present case was vitiated due to non- application of mind is also without any substance because a perusal of the sanction order dated 21/03/1994 Exhibit-50 shows that all relevant material was placed before the Sanctioning Authority and it was taken into consideration in the correct perspective by the Authority while granting sanction. The oral evidence of the Sanctioning Authority PW-4 shows that the ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 ::: APEAL406.04-Judgment 40/40 relevant papers were placed before the Authority and that the order was passed upon application of mind. Only because a draft order had been forwarded on behalf of the respondent to the Sanctioning Authority, would not lead to the conclusion that there was non-application of mind on behalf of the Sanctioning Authority. Therefore, the judgments relied upon by the learned counsel for the appellant in this context would not take the case of the appellant any further on the question of validity of the sanction order.
36. In the light of the above, it becomes evident that the conviction imposed by the Trial Court against the appellant cannot be said to be erroneous. The conviction and sentence imposed by the Trial Court on the appellant was clearly justified in the facts and circumstances of the present case. Accordingly, this appeal is found to be without merit and it is dismissed. Consequently, the appellant shall surrender within a period of four weeks to serve out the remaining part of the sentence imposed by the Trial Court.
JUDGE KHUNTE ::: Uploaded on - 14/08/2018 ::: Downloaded on - 15/08/2018 01:54:34 :::