Bombay High Court
Dattatraya Rajaram Thaokar vs State Of Maharashtra on 29 August, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
apeal21.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.21 OF 2002
Dattatraya s/o Rajaram Thaokar,
Aged about 66 years, Occ: Retired
Government Servant, R/o Jawahar
Nagar, Manewada Road, Nagpur. ....... APPELLANT
...V E R S U S...
The State of Maharashtra. ....... RESPONDENT
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Shri Prafulla S. Khubalkar, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 10.08.2017 DATE OF PRONOUNCING THE JUDGMENT : .08.2017 1] The appellant is challenging the judgment and order
dated 18.12.2001 delivered by Special Judge, Nagpur in Special Case 25/1991, by and under which, the appellant is convicted of offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "Act") and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.3000/- for offence under section 7 and to suffer rigorous imprisonment for ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:17 ::: apeal21.02.J.odt 2 one year and to pay a fine of Rs.3000/- for offence punishable under section 13(1)(d) read with section 13(2) of the Act. 2] The prosecution case is that the accused was working as an Accounts Officer and at the relevant time was attached to the office of Superintending Engineer, 400 K.V. Transmission Lines, Construction Circle, Nagpur. The complainant Padgilwar lodged a complaint with the Anti Corruption Bureau, Nagpur (A.C.B.) at 10:05 hrs. on 23.07.1990. The gist of the complaint is that the complainant is a contractor and two bills in respect of the work of Pandharkawada and Wani were pending with the then Maharashtra State Electricity Board (M.S.E.B.). The bill of work of Wani was a final bill of Rs.19,000/- and odd and the bill for the Pandharkawada work was Rs.28,000/-. Shri Padgilwar did some extra work for head loading in respect of location 417, Mahur and the bill for the said extra work was Rs.11,000/- which was pending since last 6 to 8 months. The complainant learnt that the bill of extra work was forwarded to Nagpur Circle Office in March, 1990, and therefore, contacted the Executive Engineer one Mr. Nikhar who informed that the bill is forwarded to the Division Office, Chandrapur. The complainant contacted the Division Office, Chandrapur and learnt from the Assistant Engineer, one ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:17 ::: apeal21.02.J.odt 3 Mr. Kholkute that after making corrections, the bill is sent back to the Nagpur Office. The complainant then contacted the Nagpur Office in June, 1990 and was told by Mr. Nikhar that the bill was sent back to the Chandrapur again for some more corrections. The complainant contacted Mr. Kholkute again and was informed that the bill is forwarded to Circle Office at Nagpur on 27.06.1990.
3] It is further the case of the prosecution that the complainant contacted the Circle Office at Nagpur on 13.07.1990 and learnt from Mr. Nikhar that the bill is forwarded to the Accounts Officer, Mr. Thaokar (accused) of the Audit Section. The complainant contacted the accused, who was not available. The complainant went to the Circle Office on 18.07.2000 and was able to meet the accused. The complainant requested the accused to audit the bill as early as possible and at that time the accused told him that besides the bill of extra item of Rs.11,000/-, the audit section has received one more bill of Rs.19,000/- and odd. The accused told the complainant that as and when he gets the time he would scrutinize and send the bills and that if the complainant is in a hurry he will have to bear the expenditure. It is then, that the complainant asked the accused how much ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:17 ::: apeal21.02.J.odt 4 expenditure he will have to incur and in response the accused demanded Rs.3000/-. The complainant expressed inability to pay Rs.3000/- and the accused then scaled down the demand to Rs.2500/-. The complainant was not ready to pay Rs.2500/- and ultimately the amount agreed to be paid to the accused was settled at Rs.2000/-.
4] The prosecution case is that the complainant was asked by the accused to come with the amount of Rs.2000/- preferably on 23.07.1990. The complainant lodged a report with the A.C.B. on 23.07.1990. The A.C.B. summoned two panch witnesses, made elaborate preparations to lay the trap, explained the standard operating protocol to the panch witnesses and gave the usual demonstration. The trap party then went to the office of the accused in Jeep along with panch 2. The complainant and the shadow panch went ahead on Scooter. The complainant and the shadow panch entered their name in the visitors book in the office of the accused and both of them went upstairs to meet the accused, who was not available in his cabin. The complainant and the shadow panch came down and saw the accused talking on telephone on the ground floor. After the accused finished the telephonic conversation, he approached the complainant and the ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:17 ::: apeal21.02.J.odt 5 shadow panch and all of them took the staircase to reach the upper floor. On the way, on the staircase, the complainant asked the accused as to what has been done regarding his pending bills and the response of the accused was "whether the complainant has brought?" The complainant answered in affirmative. The complainant, the shadow panch and accused came near the cabin of the accused. Accused entered his cabin, he was followed by the complainant and the shadow panch was about to enter the cabin when the accused stopped him and did not allow him to enter the cabin. The shadow panch was required to wait outside the cabin. In the cabin, the accused again asked "whether the complainant has brought the amount?" The complainant tendered the tainted currency notes, the accused counted the amount and kept it in the pocket of his shirt. The complainant came out of the cabin, gave the predetermined signal, the trap party arrived at the spot and apprehended the accused. The fingers of both the hands of the accused were dipped in the solution of sodium carbonate and the solution changed colour to purple. The investigation ensued and after obtaining the statutory sanction the charge-sheet was presented in the Designated Court.
5] The Special Judge framed charge under sections 7, ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:17 ::: apeal21.02.J.odt 6 13(1)(d) read with section 13(2) of the Act, 1988 at Exh.11. The accused pleaded not guilty and claimed to be tried. The defence of the accused is of total denial and thrusting. The defence is also that he could not have sanctioned the bill and therefore, there was no occasion much less motive for accepting alleged illegal gratification.
6] Heard Shri P.S. Khubalkar, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the State.
7] The learned counsel for the accused would urge that the judgment of conviction is liable to be set aside on the short ground that even if the evidence is taken at face value, the demand is not proved. He would urge, inviting my attention to the testimony of the complainant who is examined as P.W.1, that there is absolutely no evidence on record to establish the initial demand allegedly made on 18.07.1990. The only evidence is the uncorroborated testimony of the complainant. Shri Khubalkar would urge, that it is a settled position of law that the testimony of complainant is not on better footing than that of an accomplice. Relying on the judgment of the Hon'ble Apex Court in Pannalal ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 7 Damodar Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121, the learned counsel would urge that after the introduction of section 165-A of the Indian Penal Code, a bribe giver is guilty of abetment and is an accomplice. The uncorroborated testimony of the complainant cannot be the basis for recording a finding that the initial demand stands proved.
8] Shri Khubalkar, the learned counsel would further urge that even the second demand allegedly made by the accused on 23.07.1990 is not proved. The learned counsel would submit that even if the entire evidence is taken at face value, the words attributed to the accused while the accused, the complainant and the shadow panch were climbing the staircase to go to the cabin of the accused situated on the first floor by the complainant and the shadow panch (P.W.2) are P.W.1:- "He asked me whether I had brought"
P.W.2:- "Thaokar said whether money is brought"
9] Shri Khubalkar invites my attention to the observations of P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 in ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 8 paragraph 24, which read thus :
24. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW 1 S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to what he had brought the amount which he directed him to bring on the previous day, **(underlining mine) whereupon the complainant took out Rs 500 from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the Stat to co-relate this statement of PW 1 S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW 1 S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming.
According to the prosecution, the demand hand in fact been made on 3-10-1996 by the appellant to the complainant and on his complaint, the trap was laid down on the next date i.e. 4-10-1996. However, the testimony of PW 1 S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 9 under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act against the appellant has been proved beyond reasonable doubt. (emphasis supplied) Shri Khubalkar further invites my attention to the following observations of the Hon'ble Supreme Court in Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702 in paragraphs 14, 15 and 25, which read thus :
"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 10 obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.
25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre- requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 11 demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act."
(emphasis supplied) 10] Shri Khubalkar contends that if the word attributed to the accused is tested on the anvil of the observations of the Hon'ble Supreme Court in P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another and Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702, the alleged demand on the staircase, is no demand in the eyes of law. Shri Khubalkar further contends that it is an admitted position that the shadow panch was not in the cabin when the accused allegedly demanded illegal gratification. Even otherwise, even if the version of the complainant as to what transpired in the cabin is taken at face ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 12 value, the only word attributed to the accused is again, "whether the money is brought". The learned counsel would contend that not only is the version of the complainant as to what transpired in the cabin uncorroborated, even if the version is taken as gospel truth, the demand is not established.
11] Per contra, Shri Jawade, the learned Additional Public Prosecutor would submit, relying on the judgment of the Hon'ble Supreme Court in C.M. Sharma vs. State of A.P. that the shadow panch was unable to accompany the accused and the complainant inside the cabin as he was denied entry by the accused. The learned A.P.P. contends that since it was the accused who prevented the shadow panch from entering the cabin, the defence cannot take advantage of the absence of the shadow panch who could have otherwise corroborated the testimony of the complainant. In rebuttal, Shri Khubalkar would urge that the facts which fell for consideration of the Hon'ble Supreme Court in C.M. Sharma vs. State of Andhra Pradhesh were glaringly different. The accused in C.M. Sharma asked the shadow panch to leave the chamber. The shadow panch left the chamber. The complainant however, brought the shadow panch back in the chamber and represented to the accused that he was his financer. Despite an ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 13 attempt made by the complainant and the shadow panch to be secure entry in the chamber, the accused did not relent and sent the shadow panch out of the chamber. Shri Khubalkar invites my attention to the inconsistent versions of the complainant and the shadow panch as to what transpired at the door of the cabin of the accused. While the shadow panch speaks of a signal given by the accused to keep away the complainant contends that the accused asked the shadow panch not to enter the cabin.
12] The submission of Shri Khubalkar is not without substance. It is pertinent to note that despite categorical instructions to the shadow panch to be with the complainant and to listen to the conversation, no serious attempt was made either by the complainant or the shadow panch to be together in the cabin with the accused. I need not dwelve on this aspect in great detail, as I am inclined to accept the submission of the defence that in the light of the law laid down by the Hon'ble Supreme Court in P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 and Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702 the words attributed to the accused did not decisively and conclusively prove demand for illegal ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 14 gratification.
13] It is too well settled that the proof of demand for bribe money is sine qua non to constitute an offence under Sections 7, 13(1)(d) and 13(2) of the Act and that mere recovery of the currency ipso facto would not prove the charge against the accused in the absence of irrefutable evidence to prove the demand. It would be apposite to make a reference to a relatively recent judgment of the Hon'ble Apex Court in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108. The relevant paragraphs 35, 36 and 37 read thus :
"35. It is well-settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) o the PC Act. The same legal principle has been held by this Court in B. Jayaraj, A. Subair and P. Satyanarayan Murthy upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.
36. The relevant para 7 from B. Jayaraj case reads thus : (SCC p.58).
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 15 position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.and C.M. Girish Babu v. CBI."
(emphasis supplied)
37. In P. Satyanarayana Murthy, it was held by this Court as under: (SCC p.159, paras 21-23) "21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 16
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)
(d) (i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied) 14] The Hon'ble Supreme Court in A. Subair vs. State of Kerala (2009) 6 SCC 587 was pleased to propound that an offence under section 7 and 13(1)(d) of the Act is no different than other criminal offence and that the prosecution has to prove the charge thereunder beyond reasonable doubt. The accused should be considered to be innocent till its established otherwise by proper proof of demand and acceptance of illegal gratification, which proof is sine quo non for the constituting the said offence. In B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55, the Hon'ble Supreme Court emphasized that mere possession and recovery of tainted notes from an accused without proof of demand would not establish an offence under section 7, 13(1)(d)
(i) and (ii) of the Act.
::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 17 15] Shri Khubalkar, the learned counsel also contends that there is no evidence to establish that the accused had an occasion or much less motive to demand illegal gratification for settling the two bills referred to in the report. The bill for Rs.11,099/- for extra item (Exh.27) was already rejected vide Exh.24 dated 20.06.1990. The rejection was 28 days prior to the alleged first demand. The bill for Rs.19,775/- was a final bill, but then, the technical scrutiny thereof was not done as on 20.07.1990 as is evident from Exh.43 which records an endorsement that technical scrutiny be arranged and the final bill be sent for audit. The learned counsel would further invite my attention to the fact that the bill was seized not from the accused but from the table of P.W.8 Mr. Nikhar as is evident from the testimony of P.W.8 Mr. Nikhare. The learned counsel would further invite my attention to the testimony of P.W.6 the Superintending Engineer which reveals that there was a penalty of Rs.1,00,000/- imposed on the complainant which was not waived by the department. The endevaour of the learned counsel is to suggest that it is highly unlikely and indeed inconceivable that and illegal gratification would be demanded from an experienced contractor to do somethings which was not within the province of the accused. I am persuaded to agree with the said submission ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 ::: apeal21.02.J.odt 18 that the version of the accused having demanded illegal gratification become suspect, and is an additional circumstance to hold that the prosecution has not proved it's case beyond reasonable doubt.
16] On holistic consideration of the evidence on record, I would set aside the judgment impugned and acquit the accused of offence punishable under section 7, 13(1)(d) read with section 13(2) of the Act.
17] The judgment impugned delivered by the learned Special Judge, Nagpur on 18.12.2001 in Special Case 25/1991 is unsustainable in law and is set aside. The appellant is acquitted of the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. His bail bond shall stand discharged. Fine paid, if any, by the appellant shall be refunded to him.
The appeal is disposed of accordingly.
JUDGE NSN ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:36:18 :::