Bombay High Court
Ramesh S/O Bhaiyyaji Pimple vs State Thr.Central Bureau Of ... on 10 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 Apeal181-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.181 of 2003
...
Ramesh s/o Bhaiyyaji Pimple,
Aged about 47 years,
Occupation: Service,
R/o Plot No.27, Mahatma Gandhi
Nagar, Hudkeshwar Road,
Nagpur. .. APPELLANT
.. Versus ..
State through Central Bureau
of Investigation, Nagpur. .. RESPONDENT
Mr. S.A. Brahme, Advocate with Mr. M.M. Pathak, Advocate for
Appellant.
Mrs. Mugdha R. Chandurkar, Advocate for Respondent
....
CORAM : MANISH PITALE, J.
DATED : JULY 10, 2018.
ORAL JUDGMENT
1. The appellant herein has challenged judgment and order dated 28.02.2003 passed by the Special Court, Nagpur (trial Court) in Special Case No. 63 of 2003 (Old No. 11 of ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 2 Apeal181-03.odt 2001), whereby the trial Court convicted the appellant under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 and he stood sentenced to suffer rigorous imprisonment for 18 months on both counts and also to pay fine of Rs.1500/- on both counts.
2. The prosecution case in brief was that the appellant was working as Head Clerk at Loco Running Section in the office of Divisional Railway Manager (Personnel), Central Railway, Nagpur. The complainants were ex-servicemen who had taken employment after retirement in the Department of Railways and both of them were posted at the Ajni Depot of Central Railway. The complainants received information from another ex-serviceman Mr. Khandate that they were entitled for exemption from payment of professional tax. In this connection, the complainants had approached the appellant seeking details of the circular on the basis of which they were entitled for such exemption. It was their case that this was in the year 2000.
3. Thereafter, it was the case of the complainants that in December, 2000, professional tax from their salaries was not deducted and that, therefore, they approached the appellant in ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 3 Apeal181-03.odt order to seek arrears of professional tax, which had been erroneously deducted from their salaries till November, 2000. Complainant Vijay Wankhede (PW2) claimed that he had visited the office on 16.02.2001 at about 10.15 a.m. to meet the appellant in connection with arrears of professional tax, when the appellant demanded bribe of Rs.1300/- and he stated that if such bribe amount was not paid, the application of the said complainant for arrears of professional tax would not be processed. Similarly complainant Abhay Kulkarni (PW1) claimed that he also visited the appellant on the same day i.e. 16.02.2001 in the office for similar request when the appellant made demand of bribe of Rs.1300/-. The said complainant PW1 claimed that he had visited the office at 1.30 p.m. and that he could not go with the other complainant (PW2) because he had some personal difficulty. It was further claimed that when the complainant PW1 stated that it was difficult for him to arrange an amount of Rs.1300/-, the appellant agreed for a reduced bribe amount of Rs.900/-. On the basis of their interaction with the appellant on 16.02.2001, since both the complainants did not wish to give the bribe amount to the appellant, on 19.02.2001 both the complainants submitted written complaints before the Superintendent of Police, Central Bureau of Investigation (CBI), Nagpur, in respect of the aforesaid ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 4 Apeal181-03.odt demand of bribe made by the appellant and they sought appropriate action to be taken against him.
4. On the basis of the complaints submitted by the aforesaid complainants, the Investigating Officer PW6 arranged for a trap to be executed against the appellant on 19.02.2001. As per the prosecution case, the complainants went along with shadow witness PW5 Vasant Bedekar on 19.02.2001 in the office of the appellant at about 1 p.m. It was claimed that when the appellant saw the complainants in his office, he had asked them to accompany him to have tea in the canteen of the South Eastern Railway. In the canteen, the appellant specifically asked as to whether the complainants had brought the amount, upon which the complainants paid him tainted currency notes towards the bribe amount of Rs.900/- and Rs.1300/-. After the appellant had accepted the said amount, complainant PW1 gave pre-decided signal upon which the raiding party reached the spot and apprehended the appellant. Thereafter, the process of pouring sodium carbonate solution on the hands, currency notes and the shirt of the appellant was undertaken and post trap panchanama was prepared. On the basis of execution of the aforesaid trap and the evidence and material collected from the same, a first ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 5 Apeal181-03.odt information report (FIR) was registered against the appellant under the provisions of the said Act and the appellant was charged with having committed offences under the said Act.
5. The prosecution examined seven witnesses in support of its case, while the appellant examined three witnesses in support of his defence. PW1 Abhay Kulkarni and PW2 Vijay Wankhede were the complainants, PW3 was the Assistant Personal Officer at Central Railway, Nagpur, who deposed as a prosecution witness in respect of the nature of work of the appellant and he was also examined as DW3 by the appellant in order to prove his defence of alibi that on 16.02.2001 when the first demand of illegal gratification was allegedly made by him, he was on leave, PW4 Anand Pandharkar was the Sanctioning Authority who granted sanction for prosecution of the appellant as he was a public servant, PW5 Vasant Bedekar was the shadow witness who accompanied the complainants at the time of the execution of trap, PW6 Subhashchandra Jiani was the Investigating Officer and PW7 Digvijay Bahadursingh, was the Deputy Superintendent of Police of CBI. DW1 Kalpana was the niece of the appellant whose daughter's marriage took place on 16.02.2001, DW2 Kishore Kshirsagar was the Assistant Electrical Engineer, ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 6 Apeal181-03.odt Central Railway, Nagpur who deposed about the schedule of work of the complainant PW1 Abhay Kulkarni on 16.02.2001.
6. On the basis of the evidence and material on record, the trial Court found that the prosecution had proved its case beyond reasonable doubt against the appellant and that both the aspects of the offence i.e. demand as well as acceptance of illegal gratification stood proved against the appellant. The trial Court found that the defence of alibi raised by the appellant in respect of his absence from the office on 16.02.2001, as he was on leave, was not proved on record and that the evidence of the defence witnesses did not support the theory of defence raised on behalf of the appellant. As regards the evidence pertaining to execution of trap and the fact that the appellant had indeed demanded and accepted illegal gratification on 19.02.2001, it was found to have been proved on the basis of the evidence of the two complainants, the shadow witness and the Investigating Officer. On this basis, by the impugned judgment and order, the trial Court convicted and sentenced the appellant in the aforesaid manner.
7. Mr. S.A. Brahme, learned counsel appearing on behalf of the appellant, submitted that the prosecution had miserably ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 7 Apeal181-03.odt failed to prove the first demand of illegal gratification alleged to have been made by the appellant on 16.02.2001 in his office. It was submitted that there was sufficient material placed on record on behalf of the appellant to show that he was not in the office on 16.02.2001 when the alleged demand was made by him to the two complainants. It was contended that there was material to demonstrate that complainant PW1 Abhay Kulkarni was on duty at Godhani and that he could not have been in the office of the appellant on 16.02.2001, thereby completely falsifying the very basis of the complaint submitted by him before the CBI. It was further submitted that a perusal of the written complaint of complainant PW1 Abhay Kulkarni when read with his evidence before the Court demonstrated material contradictions and omissions, thereby falsifying the complaint made by him. It was submitted that the prosecution failed to prove the initial demand said to have been made by the appellant as the appellant had placed on record material to show his defence on the touchstone of preponderance of probabilities and the entire basis of the prosecution story crumbled. Therefore, the trial Court had committed a grave error in convicting and sentencing the appellant.
8. Per contra, Mrs. Mugdha Chandurkar, learned counsel ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 8 Apeal181-03.odt appearing on behalf of the respondent -CBI, submitted that the trial Court had appreciated the entire evidence and material on record in the correct perspective and it had correctly discarded the theory raised on behalf of the appellant that he was not present in his office on 16.02.2001 when the initial demand of illegal gratification was made by him to the two complainants. It was submitted that the appellant had failed to prove his defence of alibi, which required a high degree of proof and, therefore, no fault can be found with the impugned judgment and order of the trial Court. It was submitted that the evidence and material on record regarding execution of the trap was absolutely flawless and, therefore, there was no substance in the present appeal.
9. Having heard counsel for the parties, it becomes evident that the main thrust of the arguments of the learned counsel for the appellant is on the serious doubt created about the initial demand said to have been made by the appellant to the complainants on 16.02.2001. According to the learned counsel for the appellant, there was sufficient material on record which created a doubt about the very presence of the appellant in the office on 16.02.2001 and that, therefore, the initial demand was not proved by the prosecution in the ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 9 Apeal181-03.odt present case. It was contended that the appellant was on leave on 16.02.2001 because he had to his credit, what was called "credit rest" which he had availed on 16.02.2001. It was also contended that the evidence of DW1 Kalpana, niece of the appellant, proved the fact that marriage of her daughter was solemnized on 16.02.2001 for which the appellant, as the maternal uncle, was present in the marriage hall throughout the day. The marriage invitation card was on record to prove the said fact. It was also pointed out that the work schedule of the complainant PW1 Abhay Kulkarni demonstrated that he was on duty at Godhani on 16.02.2001 and that he could not have met the appellant in his office at about 1.30 p.m. on the said date. On this basis, it was submitted that there was sufficient material on record to create a serious doubt about the alleged meeting between the complainants PW1 and PW2 with the appellant on 16.02.2001 in his office when the alleged initial demand of illegal gratification was made. According to the learned counsel, the trial Court failed to appreciate the material evidence in the proper perspective and the approach was erroneous because the appellant was asked to prove his defence rather than the prosecution proving its case.
10. In order to examine the aforesaid contentions raised ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 10 Apeal181-03.odt on behalf of the appellant, it would be necessary to peruse the evidence of the complainant PW1, complainant PW2 and the defence witnesses. According to the complainant PW2, he visited the office of the appellant on 16.02.2001 at about 10.15 a.m. when the initial demand of illegal gratification was made. The complainant PW1 stated in his evidence that he visited the office of the appellant and met him at about 1.30 p.m. on 16.02.2001 when a similar demand was made. The defence of the appellant is that of an alibi on the ground that he was on leave on 16.02.2001 and further that throughout the day he was attending the marriage of the daughter of his niece DW1 Kalpana. A perusal of the evidence of DW1 Kalpana shows that she has indeed deposed about marriage of her daughter solemnized on 16.02.2001 and that the appellant had attended the wedding and further that he never left the marriage hall on that day. The marriage invitation card was also placed on record at Exh.58. In cross-examination, this witness has stated that there were no photographs of the wedding and further that no photographs were clicked because of the financial difficulties of DW1. But, it also came on record in the cross- examination that the marriage hall in which the said marriage took place was taken on rent for Rs.10,000/- per day. It also came on record that the meal timings in the invitation card ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 11 Apeal181-03.odt were originally 10 a.m. to 1 p.m. but the figure "1" was over- written with the figure "3". The tenor of the evidence of this witness, particularly statements made in the cross-examination shows that the claim of the appellant of having been in the marriage hall on 16.02.2001 throughout the day is not supported by the evidence of the said witness.
11. The evidence of DW3 Suresh Bhumkar, the Assistant Personnel Officer, Central Railway, does show that as per the relevant record, there was an entry of "C R" i.e. credit rest as against the name of the appellant for the date 16.02.2001. It was also stated by this witness that on the day when there was a credit rest, the employee was not required to work. But in cross-examination, this witness admitted that the month of February was a month when there was rush of work as income tax returns were to be submitted and that although the appellant had not met him on 16.02.2001, he might have attended the office. This witness further stated in cross- examination that the employees were supposed to submit an application for availing of the facility of credit rest. He also stated that the muster rolls were placed before him every Monday when he used to sign them. This demonstrates that the said witness did not sign in the muster roll on the specific ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 12 Apeal181-03.odt date of 16.02.2001 on which the appellant was supposed to have availed of credit rest. The trial Court has also noticed the fact that although the employees were supposed to submit an application for availing of such a credit rest, no such application of the appellant in respect of 16.02.2001 was brought on record.
12. DW2 Kishore Kshirsagar was the Assistant Electrical Engineer , who deposed in respect of the schedule of work allotted to complainant PW1 Abhay Kulkarni on 16.02.2001. This witness stated that the said complainant was on duty at Godhani and that he had left Ajni at 9 a.m. to reach Godhani at 10.15 a.m. It was further deposed that the said complainant reached Ajni from Godhani in the evening at 7.50 p.m. On this basis, it was argued on behalf of the appellant that when the said complainant was on duty at Godhani, he could not have been in the office of the appellant on 16.02.2001. But, cross- examination of the said witness shows that the distance between Godhani and the office of the appellant was not significant and that it could be traversed in about 30 minutes. It was also brought in cross-examination that there were no fixed lunch hours and that it was at the discretion of employees like the complainant PW1. It has also come on record that the ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 13 Apeal181-03.odt distance between Ajni and Godhani was about 10 to 12 kms. All this material on record did not convincingly show that the complainant PW1 could not have been in the office of the appellant on 16.02.2001. In any case, insofar as complainant PW2 Vijay Wankhede was concerned, there was no such material brought on record and, therefore, the presence of the said complainant was not even challenged by any such material on behalf the appellant.
13. The evidence of the defence witnesses when read with the evidence of the two complainants PW1 and PW2 falls short of supporting the theory of alibi raised on behalf of the appellant. Although there cannot be any quarrel with the proposition that it was for the prosecution to prove its case beyond reasonable doubt and that the accused had to support his defence on the touchstone of preponderance of probabilities, but when a positive defence of alibi was raised by the accused, the onus was definitely upon him to demonstrate with convincing material that his theory of alibi was believable. The fact that the defence has only to show on probability that its assertions would be believable, does not absolve an accused like the appellant to place cogent material on record to prove the theory of alibi.
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14 Apeal181-03.odt
14. The material on record, when appreciated in the correct perspective, demonstrates that the findings rendered by the trial Court in this regard cannot be faulted. Although, the trial Court may have gone a bit far in stating that primary evidence in the form of application for availing credit rest ought to have been brought on record by the appellant, but overall appreciation of the evidence and material on record by the trial Court is in the correct perspective and no error can be attributed to the findings that the initial demand made by the appellant on 16.02.2001 stood proved.
15. Once the initial demand raised by the appellant in the present case is held to be proved, the subsequent evidence pertaining to the pre-trap panchanama and post trap panchanama and the oral and documentary evidence as regards the execution of the trap, is supported by the evidence and material on record. The fact that the appellant demanded illegal gratification on 19.02.2001 and he accepted the same when the trap was executed, has been proved by the evidence of the complainant PW1 Abhay Kulkarni, complainant PW2 Vijay Wankhede , PW5 Vasant Bedekar - shadow witness and the Officers of the CBI PW6 and PW7. The trial Court has taken into ::: Uploaded on - 13/07/2018 ::: Downloaded on - 14/07/2018 01:19:32 ::: 15 Apeal181-03.odt consideration the aforesaid evidence of the witnesses, as also the documentary evidence on record in the form of panchanamas and the report of the chemical analysis. The learned counsel for the appellant was unable to demonstrate any error in the findings of the trial Court in that regard.
16. In the light of the above, there is no merit in the present appeal and it is, therefore, dismissed. The impugned judgment and order passed by the trial Court is confirmed. Consequently, the appellant shall surrender within a period of two weeks to serve out the remaining part of the sentence.
(Manish Pitale, J. ) ...
halwai/p.s.
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