Bombay High Court
Yashwant Nanubhai Pingle vs The State Of Maharashtra (Cbi) on 24 November, 1998
Equivalent citations: 1999(5)BOMCR876, 1999CRILJ1270
Author: D.G. Deshpande
Bench: D.G. Deshpande
ORDER D.G. Deshpande, J.
1. Heard Mr. Nalawade, Advocate for the appellant, Mr. Mehta, Advocate for C.B.I. and A.P.P. for the State. This is an appeal by the accused, who was Customs Officer, against his conviction by Special Judge (R.S. Dalvi) under section 5(1)(d) punishable under section 5(2) of the Prevention of Corruption Act by which he was sentenced to suffer R.I. for one year on each counts. The prosecution case in brief was that the present accused, who was the Customs Officer, had demanded Rs. 600/- as illegal gratification from one Ramdev Prasad, who was working at Gate Way of India as a photographer, for allowing him and his five colleagues to carry on their business of photography at Gate Way of India and for giving them licence in that regard.
2. As per the prosecution case, this demand was made from Ramdev Prasad by the present accused as well as the acquitted accused Mohammed Noor Khan, and Ramdev Prasad filed a complaint against both of them on 16-1-1986. Accordingly, trap was arranged and carried out on 20-1-1986 in presence of panchas and amount of Rs. 600/- was recovered from the present accused.
3. After investigation and obtaining sanction, a charge-sheet was filed against the present accused and acquitted accused under the provisions of Prevention of Corruption Act and under section 120-B of the Indian Penal Code. However, these accused were acquitted of the offences under section 120-B of the Indian Penal Code, but convicted under the Prevention of Corruption Act.
4. It was contended by Mr. Nalawade that the trial Court convicted the accused mainly on the basis of evidence of P.W. No. 1 Ramdev Prasad and his two companions the other photographers P.W. No. 2 and 3. According to Mr. Nalawade this Ramdev Prasad was totally unreliable witness having no integrity at all and his evidence was totally liable to be rejected on that ground. Secondly according to him, P.W. Nos. 2 and 3 did not make any corroboration to the testimony of P.W. No. 1 on the material particulars. Thirdly, the F.I.R. lodged by Ramdev was vague as much as no date and time of the trap was fixed. Further, according to him, there were material lapses in the prosecution case. According to P.W. No. 1 and the trap witnesses currency notes bearing phenolphthalein powder were found on chair and not on the hip pocket of the present accused. Lastly, it was contended that sanction authority did not apply its mind before giving sanction and therefore, for all these reasons the accused was entitled for acquittal.
5. On the other hand it was contended by Mr. Mehta for the C.B.I. that the character of the complainant which was tried to be assailed by the defence is irrelevant in criminal case and even if the complaint was falsely implicated some other officers in some other cases under the Corruption Act that could not be the ground to reject his testimony. He further contended that P.W. Nos. 2 and 3, the other photographers, doing their business along with the present complainant had fully corroborated the prosecution case. Further according to him, recovery of currency notes with the powder from the accused was proved beyond doubt by the prosecution and there was no specific explanation from the accused how the powdered currency notes were found in his possession. So far as sanction is concerned, he contended that firstly, P.W. No. 6 has given sanction after scrutinising the papers, and secondly, he contended that it was not open to the accused to have grievance about non-application of mind by P.W. No. 6 on the ground that P.W. No. 6 did not scrutinise the evidence which was sent to him. According to Mr. Mehta it was for the accused to examine the witness on this aspect and find out whether she had given all the relevant papers which included evidence collected by C.B.I. against the present accused.
6. From the aforesaid submission it has to be seen whether the accused succeeds in assailing the judgment of the trial Court and proving inherent lacuna and defects in the prosecution case and in the evidence for which he claims to be entitled for acquittal.
7. At the outset it is necessary to point out that P.W. No. 1 in this case i.e. Ramdev Prasad, the complainant who has lodged F.I.R. against the present accused is a most unreliable witness. From the manner in which he gave his evidence in Court in the cross-examination and from the admissions which he gave in the cross-examination he has to be labelled as liar of the first degree.
8. This witness was confronted with number of previous statements and with his evidence recorded in the earlier cases and to all those questions he pleaded total ignorance, but when he was confronted and was also to be con-
fronted with his earlier statements he was compelled to give admission in that regard showing thereby that the witness had no regard for truth.
9. In fact, on number of points witness was confronted but all the part of his evidence cannot be reproduced here. However, some important part of his evidence is required to be quoted. During cross-examination this witness was asked about the anti corruption case started against one Puranik, the licensing inspector with B.M.C. in 1987, and also about the case lodged at his instance by ACB against two constables of Colaba Police Station. Now every man does not go to anti corruption against Government servants or public officers and every man does not go a dozen of times to anti corruption department for lodging such complaint, therefore, if couple of complaints were lodged at the instance of a person it is not a matter which he can easily forgot and for which he can plead ignorance. However, this witness pleaded ignorance to all those questions put to him initially in the cross-examination. He stated "I do not remember in how many cases I have deposed as a witness before the Court. I do not remember whether I have lodged any complaint with the ACB against one Puranik, licensing inspector with B.M.C. in 1987. I am not sure whether I gave the evidence in the case against Puranik. As quite some time had passed, I do not remember whether I attended the Court of former Judge Nandapurkar in Spl. Case No. 56 of 1987. I do not remember whether I had lodged a complaint against two constables of Colaba Police Station with ACB, Maharashtra State. I do not remember, whether I gave evidence in the said case on Special Case No. 11/ 86 before the Court of Judge Nandapurkar (This evidence was given by him on 4-8-1995). However, his cross-examination subsequently continued on 8-8-1995 and when he was being confronted with the evidence in the aforesaid special case he admitted and stated in paragraph No. 7 of his deposition that I now remember that I had lodged a complaint with ACB against Mr. Puranik, licensing inspector with B.M.C. He also admitted to have lodged a complaint with ACB against two constables of Colaba Police Station. He also remembered that this complaint against the police constables was for their demand for bribe from the photographers at Gate Way of India.
10. The matter does not end here. At least more than 50 instances can be quoted here from his evidence where he initially denied certain facts but subsequently had to admit the same when confronted with the documents or when confronted with circumstances. More than half dozen of times he has found pleaded ignorance as to what he has stated in his evidence earlier. For example, he states in paragraph No. 9, page 69 of his cross-examination. If it is stated in my evidence that in 1984-85, the police were having very strict watch on us, it is true. Similarly, he states, "If it is recorded in my evidence in Special Case No. 11/86 that on my own I handed over one or two receipts to Mr. Patil, Investigating Officer, then it is correct." (The sentence immediately preceding in this admission, the witness has denied the suggestion of the defence in that regard).
11. Apart from this vital and material contradictions, the following facts are revealed from his cross-examination that this witness P.W. No. 1 was doing business of photography at Gate Way of India and was also selling garments at Fashion Street and was doing both these business without any licence for a number of years. He was prosecuted by the police a number of times for doing business without licence and was convicted. That he had purchased camera for his business from foreigner at Rs. 700/- (This fact was also initially denied by him). That he was charged by Colaba Police Station and he was arrested and prosecuted by the police a number of times for doing business without Municipal licence and was fined also. He has also admitted that in the year 1984-85 the police had strict watch on him (This appears to be in the back ground of suspect of the police that this witness was forcibly and without consent of the foreigners taking photographs and making them to pay heavy amount and for purchasing imported goods from the foreigners). He also admitted that though he had imported camera and cassettes with him, he did not have any receipt with him in that regard. He pleaded ignorance as to whether his camera is of Indian made or is of foreign made. Further apart from this, serious strictures have been passed about this witness in the two earlier anti corruption cases initiated against Puranik, Licensing Inspector with B.M.C and two constables of Colaba Police Station. In Criminal Case No. 56/87 wherein accused Puranik was convicted and appeal was preferred by him to this Court and same was disposed of by Justice Bhairavia on 25-6-1997. In paragraph No. 5 Justice Bhairavia observed that having gone through the record and proceedings of this case, evidence of P.W. No. 1 (Ramdev Prasad) does not inspire any confidence. From his own evidence it is seen that the complainant's character found doubtful. He also involved in many criminal cases and in the habit of filing false cases against the Government officers, and therefore, no reliance can be placed on the evidence of such a witness. It was further observed that the complainant did not come with clean hands before this Court. It was an admitted fact that the complainant was used to pay hapta to the officers for carrying out his business without licence. The Court cannot encourage such persons by accepting their evidence ..... Similarly in Special Case No. 11/86, filed against two constables and decided by Special Judge D.V. Nandapurkar, the Judge in paragraph 45 has observed that in these circumstances and having regard to the unreliable nature of evidence of the complainant (Ramdev, Prasad) I feel that it is very difficult to accept the prosecution story ..... So far as these observations by two courts are concerned, it was contended by Mr. Mehta that each case had to be considered and decided separately and observations in one case regarding reliability of the witness cannot be used against the witness in other case. On the face of it this proposition cannot be rejected. However, considering overall evidence of this witness and the fact that he is giving false evidence and misleading the Court by his evidence then the comments passed on his evidence by two courts earlier are required to be taken into consideration. It is further pertinent to note that Justice Bhairavia did not disbelieve this witness in the criminal case because of certain inherent defects in his evidence, but Justice Bhairavia rejected the evidence on the ground that his character itself was doubtful and that he was involved in many criminal cases and was a man doing a business by paying hapta and consequently was a man of no character, at least for the purpose of case before Justice Bhairavia.
12. It will be very clear that Justice Bhairavia and Judge Nandapurkar rejected the evidence of this witness because of suspicion that was created in their mind about the integrity of this man. If in the instant case the accused had relied upon only two observations of Justice Bhairavia and Judge Nandapurkar and had not brought anything on record then those two observations in themselves would not have been helpful to the defence. However, in the cross examination of this witness, he has been falsified on all material particulars in respect of vital and important part of his evidence (some of which I have quoted for instance).
13. Very object of the cross examination is to test veracity of the witness and to shake his credit by injuring his character. The defence has fully succeeded in testing the veracity of this witness and shaking his credit by his cross examination. It has to be concluded that this witness gave false evidence on number of vital and important aspect, pleaded ignorance of the matters where he was directly and personally involved but subsequently admitted them under the pressure of circumstances.
14. Evidence of a witness has to be scrutinised to find out whether it inspires confidence in the Court. If after appreciation of the evidence, the courts come to the conclusion that the evidence does not inspire the confidence, then in such a case pressing reliance on a testimony of such a witness for the purpose of convicting the accused would be totally wrong.
15. Apart from this aspect of integrity and honesty of this witness, there are inherent defects in his evidence and also in the prosecution case. For example, the F.I.R. given by this P.W. No. 1 is at Exhibit 28, page 230 of the paper book, therein, the witness states that for last two weeks Shri Pingle, the Customs Officer posted at Gateway has been harassing him and has threatened him that he should be paid Rs. 50/- per week per photographer, and therefore, he was demanding Rs. 300/- per week on behalf of six of us. Though this F.I.R. was lodged on 16-1-1986 it does not show what was the actual date on which the demand was made by the present accused. It does not show that when P.W. No. 1 agreed to fulfil the demand and how much amount was agreed to be given to him. The F.I.R. does not give any indication as to when trap was going to be made pursuant to the specific demand on specific day, date, time & place.
16. From the evidence it is tried to be impressed by the prosecution that Rs. 50/- per week per photographer were to be collected by P.W. No. 1 from his colleagues and in all an amount of Rs. 300/- was to be given per week to the present accused. F.I.R. does not show that on 16-1-1986 this P.W. No. 1 has collected Rs. 300/- from his colleagues. If the evidence of P.W, No. 2 & 3 is considered in the background of case, that is made out in the F.I.R., what appears is that P.W. No. 2 has categorically admitted that actually P.W. No 1 and photographer colleagues had decided not to pay any money to the accused. P.W. No. 2 has stated that they had discussed with Ramdev Prasad and Ramdev Prasad told them not to pay any money. However, in the last week of December 1985 Ramdev collected Rs. 100/- for two weeks from P.W. No. 2. This part of the evidence of P.W. No. 2 contradicts Ramdev Prasad because, according to him, he collected money from P.W. Nos. 2 and 3 on 19-1-1986 i.e. a day before trap. P.W. No. 3 states that Ramdev told him not to pay money to the accused but on 17-1-1986 Ramdev told him to pay Rs. 100/- for two weeks to be given to the accused. It is pertinent to note that this witness does not specifically and categorically say that he handed over Rs. 100/- to Ramdev (Though in the cross examination he has stated that Rs. 100/- was given to Ramdev on 17-1-1986). According to P.W. No. 1 this demand was made in the month of December 1985 and P.W. No. 1 states that he collected amount of Rs. 600/- from his photographer colleagues on 19-1-1986.
17. A particular portion of evidence of P.W. No. 1, which on the face of it appears insignificant, was pointed out to me by Mr. Nalawade. It is on page 51 of the paper book. P.W. No. 1 has stated that after lodging report on 16-1-1986 he was asked by P.I. Mane to take one Uparkaran to accompany with P.W. No. 1 to the office of the present accused to listen the conversation that is going on between them and when P.W. No. 1 and said witness Uparkaran entered the chowky and met Mr. Pingle, the Customs Officer- the present accused Mr. Pingle asked him i.e. P.W. No. 1 that where he was for such a long time and why he did not meet. P.W. No. 1 told Mr. Pingle that he has been coming every day but did not meet. The questions and answers in other circumstances can be of no significance being in formal exchange of words between Mr. Pingle and P.W. No. 1. However, from the evidence of P.W. No. 1 it is clear that he lodged F.I.R. on 16-1-1986, after meeting Mr. Pingle on that very day and after lodging F.I.R. goes to the office of the accused alongwith Uparkaran and in that background Pingle questioned as to where the witness was for such a long time and why he did not see Mr. Pingle, creates a doubt about the case of P.W. No. 1 that he met Mr. Pingle on 16-1-1986 and that demand of bribe was made by him. It is pertinent to note that in the F.I.R. page 230, this P.W. No. 1 has not given any specific date of his meeting to Mr. Pingle and demand of bribe by Pingle on any specific or particular day.
18. From the discussion of aforesaid evidence of P.W. Nos. 1, 2 and 3 the only question that can be drawn is that the evidence of P.W. Nos. 1, 2 and 3 does not at all inspire confidence . As such the case of the prosecution that the accused demanded amount of Rs. 300/- or Rs. 600/- or Rs. 50/- per week per photographer to enable the P.W. No. 1 and his colleagues to do their business near Gate Way of India cannot at all be accepted.
19. The learned trial Court has not at all considered the effect of the aforesaid contradictions in the evidence of P.W. No. 1 and that part of the cross examination where the witness is falsified on material aspect has been totally neglected by the trial Court.
20. It is true that so far as evidence of trap is concerned, panch witnesses and the evidence of P.I. is consistent without much dedication. If the evidence of P.W. Nos. 1, 2 and 3 is rejected regarding demand of bribe by the accused then evidence of trap and finding of powdered currency notes cannot be considered as a circumstance pointing to the guilt of the accused under the Prevention of Corruption Act.
21. The second aspect that was assailed by Mr. Nalawade was regarding sanction. He drew my attention to the evidence of P.W. No. 6, the Sanctioning Authority, page No. 208, wherein he has stated that C.B.I. report and other documents were sent to him for obtaining sanction to prosecute Mr. Pingle and Khan. In cross-examination the witness stated that whatever papers were received were in connection with the C.B.I. report. The other papers were a list of witnesses, and calender events. These are the only two other documents I received. Mr. Nalawade relied upon the Judgements of Supreme Court Jaswant Singh v. State of Punjab, and 1984(2) S.C.C. 204 R.S. Nayak v. A.K. Antulay. In the aforesaid first case the Supreme Court has held that sanction should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of the circumstances of the case sanctioned the prosecution. In the other case of R.S. Nayak v. A. R. Antulay, the emphasis that is lays down is that the sanctioning authority must grant sanction on the basis of the facts and evidence that is placed before it. Mr. Nalawade contended that from the deposition of P.W. No. 6 it could not be said that in the papers sent to him the investigating agency had forwarded evidence collected. Therefore he claims that the prosecution was liable to be rejected on that count.
22. Mr. Mehta, however, contended that what was sent to P.W. No. 6 was C.B.I. report and other documents and these other documents included evidence collected. He also contended that there was no cross-examination of P.W. No. 6 as to whether evidence collected was sent to her or not. The accused could not raise this point in appeal. ! am unable to agree with this submission because it for the prosecution to prove that the sanctioning authority had applied its mind to all the facts and circumstances of the case and for doing so had gone through the evidence that was collected by the investigating agency. It might be possible that the C.B.I. report and other documents sent to P.W. No. 6 included evidence collected but the Court cannot proceed on the basis of possibility. There has to be specific evidence in this regard. In fact, P.W. No. 6 was cross-examined regarding the documents sent to her. She could have capitalised that opportunity and could have explained that the other documents sent to her or C.B.I. report sent to her included evidence collected. But she did not avail of this opportunity and on the contrary stated that other papers were the list of witnesses and calender of events. These are the only two other documents I received. It might be for calling of repetitions I say that list of witnesses and calender of events were in addition to whatever sent to P.W. No. 6, but no conclusion can be drawn that evidence collected was sent to P.W. No. 6 the Sanctioning Authority.
23. Therefore, on these counts i.e. for failure of the prosecution to prove the story of demand and its fulfilment and on the point of sanction the accused succeeds. The trial Court while considering this part of evidence of P.W. No. 6 observed that these are the documents and copies of the original documents. However, I do not find any support to these observations in the evidence recorded. The findings of the trial Court are, therefore, required to be set aside and quashed. Consequently the order:
ORDER The appeal is allowed.
Conviction of the accused under section 5(1)(d) of the Prevention of Corruption Act punishable under section 5(2) of the said Act and sentence imposed upon him is set aside. His conviction under section 161 of the Indian Penal Code and his sentence thereunder is set aside. The appellant/ accused is acquitted. If the accused paid fine, same shall be returned to him. His bail bond stands cancelled.
24. Appeal allowed.