Bombay High Court
Mehendra Kumar S/O Vinaychand Kakani vs State Of Maharashtra on 24 September, 1979
JUDGMENT M.R. Waikar, J.
1. The appellant (original accused No. 1) having been convicted by the learned Special Judge, Nagpur for the offence punishable under section 161 read with section 165-A of the Indian Penal Code and sentenced to under go rigorous imprisonment for one year and to pay fine of Rs. 5,000/- or in default to undergo rigorous imprisonment for six months has preferred this appeal.
2. There were two more accused who were tried along with this appellant, but they have been acquitted by the learned Special Judge.
3. The complainant Shri Suradkar was Sub Divisional Police Officer, Wardha in the month of July, 1973, while Shri Shende was Police Sub Inspector attached to the Police Station, Selu, (district Wardha). The appellant, who is from Bombay is a dealer and manufacturer of fertilizers. On 19-7-1973, truck No. MHG 2992, carrying 140 bags of Urea was stopped by Suradkar and Shende at Selu, suspecting that the goods were either stolen property or were being illegally transported out of Wardha District. The voucher produced by the driver showed that the Forest Labour Society, Ashti was the sender of those bags. The goods were being sent through Sharma Goods Garage, Wardha and the name of the consignee mentioned was Dattu Hamal, C/o. Shakti Transport, Godown No. 10, Wadi Naka, Nagpur. On suspicion these bags were seized. The appellant came down to Wardha and approached the Superintendent of Police, Wardha for release of these bags. The Supdt. of Police directed release of the bags and accordingly they were released on 24-7-1973 on Supartnama and handed over to the appellant.
4. Mr. Suradkar and Shende made enquiries with Nandlal the Proprietor of Sharma Goods Agency at Wardha about Bilty books concerning these goods but they were told that the same were taken away by this appellant. The next day, i.e. on 25-7-1973 Suradkar accompanied by Shende came to Nagpur, made enquiries with Dattu Hamal at Wadi godown and seized from him an exercise book at Article A, in which details of the goods loaded and unloaded were mentioned and also the Registration numbers of the trucks. So also some chits at Articles B-1 to B-14 found with him were also seized. They then went to the office of Shakti Transport Company at Nagpur. Sayadulla (original accused no. 3), the Proprietor of that Transport Company, who was there, told them that the concerned papers were taken away by Indrakumar (original accused no. 2), next day i.e. on 26-7-1973, Suradkar and Shende again Visited Shakti Transport Company but they could not contact any one there. All these facts are wellnight established on record and there is no serious dispute about them.
5. According to the prosecution at about 2.15 p.m. on 26-7-1973 when Suradkar and Shende were near the Tahsil Police Station, Nagpur proceeding in a jeep car, this appellant by waving his hand requested them to stop. As they stopped the jeep and got down, the appellant, it is said took Suradkar aside. The accused Nos. 2 and 3 were also with this appellant. The appellant said to Suradkar taking him aside, "Why are you after us ?", and told him that he had given Rs. 2,000/- to Police Sub Inspector Kulkarni, Wardha and in addition a sum of Rs. 2,000/- to be paid to him (Suradkar), for not pursuing this matter any further. The appellant then beseeched Suradkar to accept to Rs. 10,000/- as gratification to stop any enquiry into the matter. Suradkar told him that, he would let him know his decision at about 4-00 p.m. whereupon the appellant gave one telephone number to Suradkar.
6. Suradkar and Shende then went to D.I.G. Office, Nagpur, where Suradkar contacted Kasbekar Deputy Inspector General of Police and narrated this incident. Kasbekar called Dy. S.P. Shri Deshpande (Anti Corruption Bureau) and it was decided to arrange a trap. The trap was to be arranged in the quarter where Suradkar's uncle was residing at Ravi Nagar. The complaint of Suradkar was reduced to writing and accordingly he informed this appellant on phone to come to the said quarter at 8.00 p.m. A tape recorder was installed in the front room of the quarter No. B-4/2 which was not visible. At the appointed time this appellant accompanied by the accused Nos. 2 and 3 came there. Shende, Suradkar and panch witness Deshmukh were in the front room. As soon as the appellant and his two companions entered, the tape recorder was switched on by Suradkar and the conversation which laster for about 45 minutes was duly recorded. At the close of the talk, Suradkar enquired from the appellant whether the amount was brought whereafter the appellant opened his brief case, took out a bundle of Rs. 100 notes each of the denomination of Rs. 100/- and handed over the same to Suradkar, whereafter, the agreed signal was given and the raiding party which was in the hind room of that quarter came. The amount of Rs. 10,000/- was seized from Suradkar. The tape recorder was replayed in the presence of the panchas and the cassette was duly sealed. A brief case as well as all the documents, which it contained were seized from the appellant. After, necessary investigation the appellant and the two more accused came to be prosecuted for the aforesaid offences.
7. The defence of the appellant was that the seizure of the fertilizer bags was wrongful and illegal. On receiving a message from the accused No. 2 on 26-7-1973 that Suradkar and Shende were waiting for him in the Tahsil Police Station, he went there at about 11-00 a.m. Shri Suradkar took him of the Police Station while Shende remained inside this Police Station. Suradkar tried to explain that he had committed a serious offence under the Fertilizer (Movement Control) Order, 1973. He told him that he had not exported any fertilizer bags out of Maharashtra State. He then asked him, if he could accommodate him by giving a hand loan of Rs. 10,000/- as he had to purchase a flat at Nagpur and told him that he had applied for a loan from the Government but the loan was not yet sanctioned. He, however, promised that he would repay the same. The appellant told him that as he came from Bombay, he will have to procure the same from the local merchants. Suradkar said that he would contact him at 4-00 p.m. and asked for the telephone number which he gave. In the mean time Shende came out of the Police Station and both Suradkar and Shende then took him to Telengkhedi Garden, where again Suradkar tried to impress upon him that he had committed a serious offence and he would come in hot waters which had perturbed the appellant. At 4-00 O'clock, Mr. Suradkar contacted him on the given phone number and gave his uncle's address which was in Ravi Nagar, asking him to come there at 8.00 p.m. Thus appellant collected the amount from one Maganbhai and visited the said quarter at Ravi Nagar at 8-00 p.m. accompanied by accused Nos. 2 and 3. After he had borrowed the amount from Maganbhai, he had scribbled on the piece of paper (Article C) to that effect. Thus, according to him, he was falsely involved by Shri Suradkar and by his subordinate Shri Shende.
8. Thus, in short according to the appellant he had a meeting with Suradkar near the Tahsil Police Station but not at 2-15 p.m. as per the prosecution version but in the morning at 11-00 a.m. Again, he was alone and not accompanied by the accused Nos. 2 and 3. When Suradkar talked to him Shende was also not there, but he was in the police station. He never offered any gratification, but Suradkar tried to impress upon him near the Tahsil Police Station and also at the Telengkhedi Garden at 2-00 p.m. that he was likely to be involved in serious offences regarding the transport of fertilizers and then Suradkar requested him to advance a loan of Rs. 10,000/- to which he had agree. Again, according to him at 4-00 p.m. Suradkar had a direct telephonic talk with him and no message was sent to him through accused No. 2 as alleged by the prosecution.
9. The learned Special Judge observed that Suradkar was not only the Sub Divisional Police Officer but was also a District Vigilance Officer and if upon receiving information that fertilizer bags allotted to Wardha District where being illegally transported out of the State, he went to Selu and caused seizure of those bags there through Shinde who was the Police Sub-inspector of Selu. It would not be said that the seizure was illegal, even though Selu fell outside his jurisdiction as Sub-Divisional Police Officer. As the District Vigilence Officer, he could seize the bags could supervise the investigation and also carry out enquiry by visiting Nagpur, where fertilizer bags were transported out of States in contravention of the provisions of the Fertilizer (Movement Control) Order, 1973 which was in force that time. He also observed that he was not called upon to judge the vires of the enquiry conducted by Suradkar. This finding of the learned Special Judge was not very seriously questioned by Shri Oka appearing for the appellant.
10. Shri Oka submitted that the exercise book at Article A and the chits at Article B-1, B-14 seized from Dattu did not disclosed any thing about the transport of bags of fertilizer out of Maharashtra State. So also the enquiries made by Suradkar and Shende at a Sharma Goods Agency, Wardha or Shakti Transport Company, Nagpur did not disclosed that the appellant was really engaged in illegal movement of fertilizer bags from Maharashtra State to Andhra Pradesh. Shende had visited the border of Maharashtra State, in order to find out whether the bags were transported to Andhra Pradesh. It is also submitted that in respect of the seizure of the bags in question an offence at Crime No. 92/73 was registered by Shende on 28-7-1973 i.e. after the trap but till this day no charge sheet against the appellant could be filed for any offence.
11. No, it may be true that Suradkar and Shende could not collect any material or evidence for prosecuting this appellant for any particular offence, so far as those bags were concerned nor were they successful in unearthing a racket carrying on unlawful transport of fertilizer bags from this State to Andhra Pradesh in which this appellant was involved. A detector of crimes, however efficient and alert, more often than not is hoodwinked and beguiled by the intrigues employed by the culprits or by the ignenious ways in which crimes are committed. It can not, however, be said that Suradkar and Shende acted illegally in seizing the bags and making enquiries at Wardha and at Nagpur. In the given circumstances of the present case, a reasonable suspicion about the movement of the fertilizer bags could arise in the mind of these police officers and that is enough for the purpose of this matter in hand.
12. As regards the actual incident, it is duly proved that Suradkar approached the Deputy Inspector General of Police Shri Kasbekar (P. W. No. 3) and told him that the appellant wanted to give him bribe of Rs. 10,000/-, Shri R.Y. Deshpande Dy. S.P. (Anti Corruption Bureau) (P.W.No. 7) was called there and the complaint of Suradkar was recorded at Exh. 37, Quarter No. B-4/2, Ravi Nagar where the uncle of Suradkar was residing was fixed as the venue for the trap. Intimation on phone was given to the appellant at 4.00 p.m. informing him of this place. Where he was directed to come at 8.00 p.m. with the amount. According to him the appellant accompanied by accused Nos. 2 and 3 came there. Seated in the front room were (1) Suradkar (2) Shinde (3) Panch Witness Deshmukh who was a friend of Suradkar's father. Shri Deshpande Dy. S.P. and two Inspectors namely Kavi and Vaidhya were sitting in the inner room of the quarter. A tape recorder was already installed in the front room which was not easily visible. After the appellant and his two companions came there, there was a long conversation which continued for about 40 minutes and at the end Suradkar uttered the words "Have you brought (Layekka)", whereupon, the appellant took out his brief case and taking out a bundle from the same handed over Rs. 10,000/- to Suradkar and after the agreed signal was given the raiding party appeared from the inner room, seized the currency notes of Rs. 10,000/- from Suradkar. The tape was replayed there and the cassette was duly sealed. The appellant had a brief case which contained several papers and those papers were also seized on the spot.
13. Now, it cannot be gain said that once the fact of payment of gratification is proved a presumption under section 4(2) of the Prevention of Corruption Act would arise in a trial of an offence punishable under section 165-A of the Indian Penal Code, unless the contrary is proved that the appellant gave this gratification as a motive or reward for dissuading Suradkar from proceeding with the enquiry of transport of fertilizers out of the State of Maharashtra.
14. It appears that though the appellant hailed from Bombay, he was not a total stranger. Shende admitted that he had met the appellant earlier also and that he was known to him. Suradkar also admitted that the appellant was brother-in-law of one Jogendra Lathiwala of Arvi (district Wardha), who was with him in college. It may also be pointed out here that Suradkar admitted during cross-examination that in the month of April or May 1973, he had applied to the Government for a loan of Rs. 50,000/- for construction of a flat at Nagpur and his application was pending consideration when this incident took place.
15. Shri Oka submitted that the actual payment of this gratification at Ravi Nagar at night according to the prosecution was proceeded by a talk between Suradkar and the appellant near Tahsil Police Station at about 2.00 p.m. when the appellant is said to have offered without any higgling a sum of Rs. 10,000/- as bribe. It is submitted by him that neither in his talk to Deputy Inspector General of Police Shri Kasbekar nor in his written complaint at Exh. 37 which was recorded the same day nor in his two statements recorded under section 161 of the Criminal Procedure Code, Suradkar ever stated that Shende was with him when this offer of Rs. 10,000/- was made by the appellant or that the appellant was accompanied by the accused Nos. 2 and 3 . An improvement, he argued, was made during trial by Suradkar that this talk was witnessed by Shende also, only in his anxiety to seek corroboration to his testimony from his own subordinate. He also tried to rope in accused Nos. 2 and 3 during trial when he had never referred to their presence along with the appellant near the Tahsil police Station. Thus, according to him, this evidence of Suradkar is highly tainted and incredible and the evidence of Shende who was his subordinate was created subsequently in order to lend corroboration to the lone interested version of Suradkar about the alleged offer. He then, submitted that though a tape recorder was planted in the room with the sole object of eliciting from the appellant something regarding the offer of bribe of Rs. 10,000/- there is no reference to be found to the same in that long conversation. The appellant may have referred during the course of that conversation that he possessed number two money or about his unethical tricks of his trade, but they are extraneous, irrelevant matters. There is no reason, he submitted why Suradkar himself did not refer to the fact that he had ultimately agreed to accept the bribe as offered by him when he had already sought a shelter by lodging a complaint. It was at the fag end of that long conversation of 40 minutes that he uttered the words, "Have you brought?" which was an equivocal utterance not necessarily consistent with the prosecution version of offer of bribe, but also consistent with the defence version that it was in respect of the loan amount which was asked for. Since there was really talk about the offer of any bribe. Mr. Suradkar must not have hazarded broaching that topic in conversation, Mr. Oka submitted.
16. Relying upon Pannalal Damodar Rathi v. State of Maharashtra, , he submitted that after the introduction of section 165-A of the India Penal Code making the person who offered bribe guilty of abetement of bribery, the complainant cannot be placed on any better footing than that of an accomplice, a corroboration in material particulars connecting accused with crimes has to be insisted upon. Shende's testimony, he submitted, itself was highly dubious and deliberate vain. Attempt was made by the prosecution at a later stage to invent a corroboration to the version of Suradkar regarding offer of bribe by the appellant through this witness, who was his subordinate and who was ever ready to oblige him. The presumption under section 4 of the Prevention of Corruption Act, according to Shri Oka has been amply rebutted by the appellant by documentary evidence produced by the prosecution itself. All the papers contained in the brief case of the appellant were seized, soon after the trap. They were not produced along with the charge sheet. At the request of the appellant these papers were produced during trial through Shri Badhe P.S.I. (C.I.D.) on 19-8-74 when the investigating Officer Shri Deshpande Dy. S.P. (P.W. No. 7) was under cross-examination on that day. One paper that was so produced contained a writing in the hand-writing of the appellant to this effect, "Rs. 10,000/- received from Maganbhai for hand-loan to Suradkar", Maganbhai, it was submitted was also interrogated during investigation. This jotting on this paper was made by the appellant even before the trap and it could not be said that he would have made such false jotting to prepare a defence in criminal prosecution against him that might be launched. Though this paper was throughout in the custody of the prosecution, to which the appellant had no access, Mr. Suradkar who was then further re-examined on 20-8-1974, came to depose that this writing never existed on this paper when it was attached, thereby vainly trying to suggest that the appellant must have managed to have access to these papers while in the custody of the investigating agency and must have made this entry to prepare a false defence for this case. This Mr. Oka submitted was a ludiorous explanation offered by Suradkar. Lastly, relying upon Man Singh v. Delhi Administration, , Mr. Oka submitted that the presumption under section 4 of the Prevention of Corruption Act, must be deemed to have been rebutted, inasmuch as the accused is not required to prove his defence by strict standard of proof of reasonable doubt, but it is sufficient if he offers an explanation or defence which is probable and once it is done, presumption under section 4 must stand rebutted.
17. Now, according to prosecution the offer of bribe of Rs. 10,000/- was first made by the appellant at about 2.15 p.m. to Suradkar near the Tahsil Police Station. Both Suradkar and Shende deposed that the appellant was accompanied by the accused Nos. 2 and 3 when the offer was made. The names of the accused Nos. 2 and 3 admittedly were not mentioned by Suradkar in the first information report at Exh. 37 which he had lodged immediately thereafter. Not only that, in his two statements recorded during investigation on 27-7-1973 and 31-7-73 he again never stated that the accused Nos. 2 and 3 were present, when such an offer was made by the appellant, Shende also had never referred to the presence of the accused Nos. 2 and 3 in his statement under section 161 of the Criminal Procedure Code and it was for the first time during trial he referred to their names as being present along with the appellant at the time of the offer. The learned Special Judge rightly found the testimony of both these witnesses as untrustworthy, so far as the implication of accused Nos. 2 and 3 was concerned and held that the accused Nos. 2 and 3 must not be present along with the appellant, near Tahsil Police Station at the time of this offer.
18. Now it is true that accused Nos. 2 and 3 have ultimately been acquitted, but this evidence clearly shows that as the accused Nos. 2 and 3 happened to be present with the appellant at the time of the trap at Ravi Nagar quarter, they were tried to be roped in falsely by stating that they were also present earlier when the offer was made by the appellant. This part of the evidence of Suradkar (P.W. 2) and Shende certainly reflects a blameworthy tendency of these witnesses.
19. It is pertinent to note that even about the presence of Shende, there is no reference to be found in the first information report (Exh. 37) lodged by Suradkar. It may be that Suradkar and Shende had both come together from Wardha to Nagpur. It is also true that Shende was with Suradkar when he visited Tahsil Police Station, Whether Shende was present within a hearing distance when the appellant had made the alleged offer is the question ? Not only that there was no reference to Shende's presence in the first information report at Exh. 37 but his name was also never referred to by Suradkar even in his statement recorded on 27-7-1973 as being present near him when the alleged offer was made. That he forgot to refer to the name of Shende in the first information report in his statement under section 161 is the only explanation offered by Shri Suradkar, but he admitted that he was fully aware of the fact that in such cases offer of gratification has to be strictly proved and the presence of Shende at the time when the appellant made an offer to refer was of some importance. Thus the explanation of Suradkar that he forgot to refer to the presence of Shende in the first information report and in the police statement is too rough and ready to be accepted. Though it is not necessary that first information report should always contain names of witnesses, in this particular case this omission in the first information report which is persisted and even in the later statement was certainly a material one. The relevant portion of the first information report at Exh. 37 extracted below also seems to indicate that Shende must not have present when the alleged offer was made :
"While I was going back to the Police Station from there, Mahendra Kumar called me and told me that he wanted to talk something with me. In order that he might feel up confident about me, I took him aside and made query from him. Thereupon he told me that I should go to his house where he was alone and that the talk would take place there. Thereupon, I told him to produce vouchers etc. which he took away and then say what he wanted to say. Thereupon he said, "Saheb : Why are you troubling me? This is my black (market) business........"
20. Now Shende was the only person present near Suradkar that time and if Suradkar says he took the appellant aside in order to gain his confidence which obviously means he was taken away from Shende. The recitals further show that the appellant wanted Suradkar to come to his house, where he could tell him something in utter confidence, when he would be alone. These recitals, thus show that the appellant was very cautious and that he was keen to have some secret and confidential talk with Suradkar. This version to be found in the first information report certainly does not accord well with the evidence adduced during trial that on the road the appellant without any reservation and hesitation offered a bribe of Rs. 10,000/- to Suradkar in the presence of or within the hearing of Shende who was his subordinate police officer. This shows that Shende though present must not have heard any talk. The first information report in fact explains that he was not a witness to this talk. There is, therefore, every reason to believe that the introduction of the name of Shende as a witness to this talk was a deliberate improvement made subsequently so as to lend corroboration to the version of Suradkar. The learned Special Judge was not justified in holding that Suradkar made a bona fide mistake in not disclosing the name of Shende at the time of the talk earlier in the first information report and in his statement during investigation. As observed above an attempt in fact was made in the first information report to exclude the presence of any third person and it was a belated awakening of intelligence at the state of trial to make Shende an eye-witness to corroborate complainants version about offer of bride. Disagreeing, therefore, with the observations of the learned trial Judge, that a bona fide mistake was committed by Suradkar, I would rather say that the prosecution did not come with very clean hands.
21. The version of Suradkar has also been disbelieved by the learned Special Judge on the point that he had contacted the accused No. 2 Indra Kumar on phone at 4-00 p.m. and that message through him was given to this appellant to come at 8-00 p.m. to Ravi Nagar quarter. The appellant stated that he himself was contacted on phone and the accused No. 2 had also denied that Suradkar had any talk with him on phone. Nothing really turns as to who was contacted by Suradkar on phone since in response to that phone talk a meeting at Ravi Nagar at 8-00 p.m. did take place. But here again the testimony of Suradkar does suffer from some blemish, if really, he got Indrakumar (accused No. 2) and not this appellant on phone, through whom he had sent a message for the appellant, there is no reason why, he should have positively stated in the first information report at Exh. 37 which in fact was being scribed, as this phone message was given and in his statement recorded twice once on 27-7-1973 and then on 31-7-1973, that he had a talk directly with the appellant. Probabilities of the case also show that Suradkar must have directly contacted the appellant and no message through the accused No. 2 must have been sent . Now according to Suradkar though the appellant had made an offer to him of Rs, 10,000/-, he told him that he would proceed with his enquiry. He never accepted the offer and never assured him that he would oblige him by dropping the investigation .An idea ,however, struck him that since the appellant wanted to bribe him he should be taught a lesson and should be trapped. So, he told the appellant that he would let him know at 4-00 p.m. and took the phone number given by the appellant. Now, in this back ground, if Suradkar had only sent the massage to the appellant though the accused No. 2 ordinarily, he would have asked the appellant when he came to Ravi Nagar quarter at 8-00 p.m. whether he had duly received the message or not and if he had come with the amount. Since , he makes no such enquiries and after a conversation of 40 minutes makes a demand, it means that what the appellant says must be correct, namely, that Suradkar talked to him on phone giving him place and time and had agreed to his offer.
22. Now, as regards the actual offer the conversation that took place is reproduced by the tape at Exh. 41 (transcript) and the appellant had admitted that the conversation that took place is duly recorded in this tape. The tape was replayed during the hearing of this appeal before me. I find that most of the conversation is either irrelevant or extraneous. The appellant during conversation no doubt stated that export of Urea bags from Maharashtra to Andhra Pradesh used to yield profit of Rs. 50/- per bag. What is important to note is that there is no conversation, touching the bags in question that were seized and later on released and there is again no reference, whatsoever, to the alleged offer of bribe of Rs. 10,000/- about which there was a talk earlier. The impression that one gets after hearing the tape is that it was the appellant who seemed to dominate the conversation. He narrated boast-fully about his encounters with certain authorities at Calcutta and elsewhere, in respect of his dealings. He refers to his No. 2 money in his business. Referring to Kulkarni P.S.I. of Wardha he stated that he had paid him Rs. 100/- only but never stated that he had paid Rs. 2,000/- to him and in addition had paid Rs. 2,000/- for Suradkar. In short, this long drawn conversation for about 40 minutes does not refer to the alleged earlier offer of bribe of Rs. 10,000/-. It is really, surprising that Suradkar who was a Senior Police Officer and who had an upper hands, did not and could not dominate the conversation and failed to elicit from the appellant any incriminating statements, concerning this crime in question, when the tape recorder was secretly installed specifically for that purpose. It was the fag end of the conversation that he merely uttered the words, "Have you brought ? (Layekya)." The tape conversation, thus is of no real assistance in this case to the prosecution, except that, it only shows that the appellant is an unscruplous businessman.
23. Now, the fact that the appellant had paid Rs. 10,000/- to Suradkar in that meeting is not disputed. It is also evident that Suradkar was moving about making enquiries whether any racket was in operation indulging in unlawful transportation of fertilizer bags out of the State of Maharashtra. When Suradkar asked, if they would like to have tea, the appellant said, Now I want to take you away, after finishing this, we will go outside to celebrate. No doubt this seems to support the prosecution story, but as stated there is no reference either to the earlier talk of offer of bribe or that the amount was being paid as a bribe, in this conversation. Whether the payment was a bribe, or advance of loan, the appellant knew that Suradkar who was now amenable and tractable would not pursue his activity with any rigour and would soft poddle and in that context, again, he could express in this manner too. Whether the appellant rebutted the presumption, which arises under section 4(2) of the Prevention of Corruption Act, is then the question ? As observed in cited above, it is sufficient if accused offers probable explanation of defence and strict standard of proof is not necessary.
24. According to the appellant Suradkar accompanied by Shende met him near Tahsil Police Station at about 11.30 a.m. and not at 2.15 p.m. and then he was taken to Telengkhedi Garden. All the time Suradkar was trying to impress upon him that he had committed a serious offence of exporting fertilizer bags out of Maharashtra State. During the course of such conversation Suradkar asked for a loan of Rs. 10,000/- as he needed the amount for purchase of a flat at Nagpur and his application was pending consideration. He told him that he had not brought any cash from Bombay and he would try to collect the amount from some local businessman and would let him know on phone. He therefore, gave the phone number of the accused No. 2. At about 4-00 p.m., when Suradkar contacted shim on phone, he told him that the amount could be collected, Suradkar gave address of the said quarter of Ravi Nagar and hence at 8.00 p.m. he went there with accused Nos. 2 and 3 to pay him the amount of loan as demanded by Suradkar. It is further, submitted that Suradkar was due for his next promotion. The release of 140 bags by Supdt. of Police Wardha which Suradkar had seized must have upset him. He suspected that Kulkarni, P.S.I. Wardha had some hand in obliging this accused. He, therefore, made a scape goat of this appellant in order to brighten his own chances in the service. It was further, stated that the defence version is corroborated by a contemporary document namely the Article C, which was made by the appellant in the ordinary course stating that the amount was borrowed from one Maganbhai to be advanced as hand-loan to Suradkar when the appellant had no idea that he would be involved in such a crime, and particularly when this document, "Article C" along with other papers seized from the brief case were through out in the custody of the prosecution.
25. After the trap, the amount was seized from Suradkar, and the brief case containing several papers, from the appellant vide Exh. 57. These papers remained with the police and they were produced on 19-8-1974 through P.S.I. Badhe (C.I.D.) during the cross-examination of Dy. S.P. Deshpande (P.W. 7). One of the papers was found to contain the following writing.
"Rs. 10,000/- received from Maganbhai for hand-loan to Suradkar."
26. According to the appellant, this jotting was made after we had borrowed this amount from Maganbhai for his own recollection. Shri Deshpande and Shri Suradkar no doubt stated that this writing was not there when the seizure was made, thereby suggesting that the appellant must have managed some- how to have an access to these papers, while they were with the investigating agency and the writing must have been made by him to support a false defence. To say the least, it is a self condemnatory explanation and a sad commentary on the investigating agency. The learned Special Judge observed and this is what was also argued by Shri Garud Additional Govt. Pleader that if the writing had existed when this paper was seized, the appellant should have in the first place asked for production of these documents earlier and secondly some suggestion regarding this writing should have been put to Suradkar when he was under cross-examination and before he was discharged. Now suggestion was put to Suradkar that what was offered to him was a hand-loan and not a bribe. Suradkar was only a complainant in the case. It was Dy. S.P. Deshpande who had seized cash from Suradkar and these papers from this appellant. Ordinarily these papers so seized would have been with Dy .S.P. Deshpande who was incharge of the investigation of this offence and not with Suradkar. It was in the fitness of things, that the production of these documents was asked for when this Investigating Officer Deshpande was in the box and on the production of the same his attention was drawn to this writing. It would be a fanciful inference to draw without any basis that while these papers were in the custody of the investigating agency the accused must have managed to lay his hands on the same and must have managed surreptitiously to make the above writing on this paper. Shri Garud, Additional Government Pleader, submitted that one Executive Dairy containing some accounts was amongst the documents seized and the appellant ordinarily would not have made this entry in this paper, but in the said dairy which contained his accounts. Now if all the papers were accessible to the appellant even after the seizure, as suggested by the prosecution the appellant could have made this entry in this dairy and not on this paper. Merely, because the writing is made on a paper and not in the dairy, it can not be said that this writing must have been made some time during the trial of this case by fraudulent means. We can not take it for granted, as if there is a presumption that papers and documents seized by the Anti Corruption Officials during the trap are always easily accessible to the accused. Disagreeing, therefore, with the finding of the learned Special Judge, I find that this writing on the Article C, must have been made by the appellant, before it was seized from him in that trap. This document with such a writing on the same, though is self surviving piece of evidence, certainly lands a valuable corroboration to the defence version. In this connection, it is pertinent to note that Deshpande (P. W. 7), stated that on 30-7-1973, i.e. only 4 days after the trap, he had recorded the statement of Maganbhai. His account books were verified and extract copy of an entry dated 26-7-1973, showing that he had lent Rs. 10,000/- to the accused was also taken. This means that the amount must have really been borrowed by the accused from this businessman and this fact again lends support to the writing of the Article C, which bears a reference to the name of Maganbhai.
27. The appellant examined Abhyankar (D.W. 3) and Narottam (D.W. 2) who deposed that while Shende was under examination they happened to meet him on 8-8-1974 near Ajit Bakery and had some talk regarding this case. Shende said, it was not proper to talk on the road and he would let them know the real facts at his residence. Shende was under cross-examination on 12-8-1974 and it was to be resumed the next day. In the evening of 12-8-1974 these witnesses met Shende in the Court premises when Shende asked them to come to his house in the night for knowing real facts. Accordingly, these witnesses along with one Sharma went to the house of Shende. Before going Abhyankar fixed tape-recorder on his waist. It is then said that Shende during the course of his talk with Abhyankar which took place outside Shende's premises near the car told him that (1) Suradkar had a talk with the appellant near Tahsil Police Station at about 11.30 to 12.00 noon (2) That they had visited Telengkhedi Garden that day when again there was some talk. (3) He had to adjust and modulate his own version so as to corroborate the version of Suradkar.
28. The whole conversation between Abhyankar and Shende was duly tape recorded and while parting Shende was told that his conversation was tape-recorded by them, obviously with the object that he should not Court, and should stick to what was revealed to them during that conversation. Now, Shende admits that on the night of 12-8-1974 Abhyankar and Narottam (D. W. 2) and one person had come to his house, but he had denied that he had any conversation with them regarding this case and he stated that he drove them away. He also stated that he was threatened that, they had prepared a fake tape in which his voice was simulated. The next morning, he had lodged a report about the visit of these persons to his house.
29. If the evidence of Abhyankar and Narottam is accepted that they had gone that night with a concealed taperecorder and the conversation of Shende was recorded with the avowed object of eliciting something from him favourable to the accused (who was their friend) in his unguarded moment and to hold out a threat to him, that if he tried to prevaricate in the Court, he would be exposed, the question is whether the evidence would be admissible ? The learned Special Judge rightly said, relying upon, R.M. Malkani v. State of Maharashtra, and Magraj Patodia v. K. Birla, , that the evidence though illegally procured would be admissible, if duly proved. No doubt the conduct of Abhyankar and Narottam was highly reapprehensible and despicable. They in fact, tried to interfere with the administration of justice and tried to deflect its course. All the same if it is duly proved that Shende had such conversation with these persons that night, then, Shende, obviously subscribed to these facts. (1) That the talk between Suradkar and the appellant took place at Tahsil Police Station in the noon and then at Telengkhedi Garden (2) That he was surprised to see how suddenly Suradkar thought of rushing to the D.I.G. and lay a trap. (3) That the father of Suradkar had probably his hand to a great extent in the matter of lying of a trap. (4) That in order to corroborate the statement of Suradkar he had to make false statement in the Court.
30. So, if it is proved that the tape conversation (Exh. 73) is the truthful re-production of the conversation which Shende did have with these persons that night, it not only renders the defence version probable, but very seriously effects the veracity of the oath of Shende. The specimen voice at Article 4 of Shende was tape-recorded by the learned Special Judge and he observed that the voice in the tape (Exh. 73) is very much akin to the specimen voice of Shende recorded by him. Now, what is suggested and argued is that a mimic was attending the Court when Shende was in the witness box and this fake conversation was prepared with the help of that mimic, who must have simulated the voice of Shende. Both Abhyankar and Narottam repelled the suggestion that any mimic was present in the Court. It is pertinent to note that Abhyankar was no stranger, but Shende was well known to him. In the impugned tape conversation, there is some reference to Janmashtami festival, at the house of Shende, a Alsation dog of his neighbour and to the fact that Shende was suffering from piles. It was argued before the learned Special Judge and before me also that these things could be known to Abhyankar and he must have (cunning as he was), purposefully, introduce these things, in this conversation, so as to give it a semblance of a genuine conversation. The learned Special Judge observed that all these things could be within the knowledge of Abhyankar and could be deliberately introduced in a fake taped conversation.
31. Now, Shende's cross-examination was resumed on 13-8-1974 and he stated that the previous night Abhyankar and Narottam had come to his house and threatened him that they possessed some tape similar to his voice which they would produce in the Court. He, further stated that he drove them away and reported the matter to Inspector Shri Joshi (A.C.B.) on phone. He was put some relevant portions from that conversation, but he denied having had any such conversation that night with these persons. He was then asked whether he was suffering from piles and he first admitted the fact, but immediately prevaricated and resiled. This is how, he reacted.
"I am suffering from piles since 4-5 years, (the witness then makes a quarry what pile means. He is told in vernacular the disease pile) am not suffering from piles."
32. It is pertinent to note that till this time the tape was neither played in the Court nor was he referred to that part of the conversation which had reference to this ailment of piles. In fact, reference to piles in the said tape conversation seems to have occurred just casually in this way.
"A :---"And are you a vegetarian ?"
Shende :---"No, I am a non-vegetarian".
A :---"You are non-vegetarian.
I thought you to be a vegetarian".
N :---"He does not eat even a betel nut then what of mutton ?"
Shende :---"I have fancy for only one thing which I want daily........."
A :---"Mutton".
Shende :---"Mutton, hen, fish, eggs, fish, No but I am suffering from piles".
33. This tape was then played during the cross-examination of Shende and he heard the same. The next day i.e. on 14-8-1974 at the fag end of his cross-examination, he admitted that he understood the meaning of piles and when he was confronted with one entry dated 15-4-1974 in the Station Diary in his own hand, he had to admit that, he had taken treatment for piles, and had obtained a medical certificate to that effect and that on 15-4-1974 without handing over charge, he proceeded on leave, making an entry that he was proceeding on leave due to his ailment of piles. Does this not reflect the conduct of a guilty person or rather the shrewdness of Shende ? Why should he have hastened to deny that he never suffered from piles ? It is not a loathosome ailment like vernereal disease. Ultimately, he had to admit the fact. Though this ailment may be insignificant and not of much relevance, the significance of this is that he had probable an ink-ling. That question has some relevance to the same conversation which he had with Abhyankar, in which he had referred to this ailment. He, therefore, first feigned ignorance as to what the ailment means and then denied that he suffered from it. This conduct of Shende itself in my opinion established a genuineness of that taped conversation at Exh. 73. Abhyankar affirms that Shende did say as above in that conversation. Now is Shende had really such a conversation with Abhyankar, it means that he had tried to mould his evidence, so as to corroborate the testimony of Suradkar, that Suradkar had a meeting and talk with the appellant at Telengkhedi Garden which lends support to the defence version. It is true that, in that conversation, there is no reference that the amount was paid to Suradkar not as a bribe but as a loan. All the same, it renders the testimony of Shende all the more dubious and lends support to the defence version that Suradkar tried to impress upon him at Telengkhedi Garden, that he had committed a serious offence that he all of a sudden thought of rushing to the D.I.G. that for lying of this trap his father had some hand and that Shende was required to twist and modulate his version so as to corroborate the version his superior officer Suradkar.
33. An argument, it appears was advanced before the learned Special Judge, though not before me, that even an advancement of the loan to Suradkar without interest, particularly, when an enquiry about illegal transport of fertilizer bags was pending against this appellant, would also amount to a illegal gratification .The learned Special Judge observed that it was not necessary to consider this argument. It is true that in a given case advance of loan without interest could be a gratification or reward or a motive for doing or forbearing to do any official act. In the absence of any proper charge in the instant case the accused however, could not be held guilty of the offence under section 165-A of the Indian Penal Code, holding that Suradkar was paid not a bribe but handloan as illegal gratification.
34. To conclude, therefore, I find that Suradkar's evidence that the appellant offered to pay him bribe of Rs. 10,000/ -for not probing into the matter is not corroborated by any evidence. On the other hand an ugly attempt was made during trial that the said talk was witnessed by Shende so as to furnish a corroboration to the testimony of Suradkar. There is reason to believe that Shende who was subordinate to Suradkar was required to twist and adjust his evidence in the Court, so as to corroborate the evidence of Suradkar. Suradkar had caused seizure of the bags at Selu through Shende on 19-7-1973 and though the voucher seized from the driver had raised some suspicion in his mind, no immediate enquiries were made by him with Sharma Goods Garage to which that truck belonged , when the Head Quarter of Suradkar was Wardha itself. On 24-7-1973, the goods were ordered to be released by the Supdt. of police Wardha and then on 25-7-1973 when enquiries for the first time were made by Suradkar and Shende with Sharma Goods Garage, Wardha, they learnt that the concerned papers were taken away by the appellant. They ran down to Nagpur on 25-7-1973, seized an exercise book and same chits from Dattu Hamal, but again no documents were found with Shakti Transport Company, Nagpur as they were also removed by the appellant. Suradkar came to know through the appellant at Nagpur on 25-7-1973 that P.S.I. Kulkarni, Wardha had obliged him. It is, therefore, likely that Suradkar must have felt hurt by the release of goods by S.P. Wardha and frustrated, as he could not lay his hands on any tangible evidence.
35. The accused Nos. 2 and 3 were never present when the appellant had a talk with Suradkar near Tahsil Police Station and even so, they were falsely involved simply because they were with the appellant at Ravi Nagar quarter when the amount was paid. Suradkar, therefore, falsely tried to improve upon his earlier version and deposed that the accused Nos. 2 and 3 were also present when an offer for bribe was made. Thus, it is difficult to say that an offer of bribe was made by the appellant at the Tahsil Police Station. The tape-recorded conversion which preceded the payment at Ravi Nagar Quarter no doubt shows that the appellant was an unscrupulous businessman, that he was including in unlawful transport of fertilizers out of Maharashtra State and that he had destroyed the documents concerning these goods, but there is no reference to the earlier talk of offer of bribe. Now, according to Suradkar he had not accepted the offer of bribe that was held out by the appellant and had only told him that he would convey to him his demand at 4.00 p.m. His further version is that 4.00 p.m. he could not contact the appellant directly on phone but a message was given through the accused No. 2 giving him the address. In this background the conduct of Suradkar when appellant appeared at Ravi Nagar quarter appears unnatural, inasmuch as he made no enquiry with him, when he came, whether the amount was brought or not. It was after a long conversation of 40 minutes that he only guardedly uttered the words, "Have you brought ?"
36. On the other hand the defence version that what was demanded was a loan amount is corroborated by the fact that Suradkar had applied to the Government for loan, as he wanted to purchase a flat. The writing on paper Article C, that he had borrowed the amount from Maganbhai to be paid as hand-loan to Suradkar is another strong corroborative piece of evidence. Disagreeing, therefore, with the finding of the learned Special Judge, I hold that the prosecution failed to prove that what was paid by the appellant was a bribe amount or an illegal gratification. The matter, certainly is not free from doubt, the benefit of which must go to the accused. The presumption under section 4 of the Prevention of Corruption Act, in my opinion stands rebutted, under the facts and the circumstances of the presence case. The conviction of the appellant, therefore, under section 165-A has to be set aside and the appeal must be allowed.
37. In the result, appeal is allowed. The conviction and sentence passed by the learned Special Judge against this appellant is hereby set aside. The rule on sentence discharged. The order regarding confiscation of the amount of Rs. 10,000/- is hereby set aside and the amount shall be returned to the appellant, but only after the appeal period is over. The rest of the property shall be kept in sealed cover. The bail bond of the appellant shall stand cancelled. The amount of fine if paid shall be refunded to him.