Bombay High Court
Madhukar S/O Gangaramji Paturde vs State Of Maharashtra on 24 July, 2017
Author: V. M. Deshpande
Bench: V. M. Deshpande
1 apeal65.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.65/2003
Madhukar s/o Gangaramji Paturde,
aged 52 years, Occ. PSI under suspension,
r/o Mangrulpir, Dist. Washim. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Anti Corruption Bureau,
Dist. Akola. ...RESPONDENT
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Mr. Sumit Joshi, Advocate for appellant.
Mr. R. S. Nayak, A.P.P. for respondent-State
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CORAM:- V. M. DESHPANDE, J.
DATED :- 24.07.2017
ORAL JUDGMENT
1. This appeal takes exception to the judgment and order of conviction passed by the learned Judge of the Special Court at Washim dated 13.01.2003 in Special Case No.2/1998. By the impugned order of conviction, the appellant is convicted for the offence punishable under Section 7, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act and directed to suffer rigorous imprisonment of one year and to pay a fine of Rs.2000/- on both counts, in default to suffer further simple imprisonment for three months.
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2. The prosecution case is as under:-
Dadarao Kurhade is the complainant. He lodged complaint Exh.-38 with Anti Corruption Bureau, Akola on 27.01.1997.
As per the complaint, Dadarao resides at Pangri (Mahadeo) falling under the jurisdiction of Police Station, Pinjar, Tq. Mangrul Pir, Dist. Akola. Dadarao owns 3 Acres agricultural land. Apart from his 2 brothers, he is having 2 sisters. His brothers reside separately.
His elder sister Sarubai was married with one Maroti Shinde of village Mardi. Maroti Shinde left the village Mardi and came at Pangri. Maroti and Sarubai own 4 Acres land at Pangri. The said couple used to visit Mumbai intermittently for labour works and used to come back to the village Pangri.
The complaint further states that on 30.09.1997 i.e. 13 days prior to Dashera festival, Sarubai and her husband Maroti came to Pangri from Mumbai. On the next day, they both had been to Mangrul Pir to meet their daughter Mangala w/o Sukhdeo Fulare. From there, they both had gone to market at Selu Bazar. That time, the complainant was also at Selu Bazar for marketing. There he had a meeting with Sarubai and her husband. After ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 3 apeal65.03.odt marketing, the complainant returned to the village. At 6 O'clock in the evening, his sister Sarubai returned alone to the village. She asked the complainant as to whether her husband had returned. Upon that the complainant replied that her husband had not returned. At that time, Sarubai disclosed that her husband had consumed liquor and she could not notice as to whether he had gone from the market. Therefore they made wait for him but in vain. On the next day i.e. on 02.09.1997 at 2.30 in the afternoon, a person sent by Police Patil of Pedgaon informed that a dead body is found floating in a well situated in a field at Pedgaon Shivar. He inquired as to whether someone is missing from the village. Since the complainant's brother in law has not returned home from Shelu Bazar, the complainant and his sister Sarubai along with the said person went to the well situated in Pedgaon. He identified the body which was floating in the well as that of his brother in law Maroti. This fact was disclosed to Madhu, Police Patil of Pedgaon. Thereafter, the complainant along with Police Patil went to Police Chowki at Shelu Bazar. The Police Patil lodged a report. Thereafter the complainant along with Police Constable attached to Police Chowki went to Police Station, Mangrul Pir. There they met Police Station Incharge, Madhukar ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 4 apeal65.03.odt Paturde (appellant). He made inquiries with the complainant. As per his direction, tractor was arranged on the next day and body was taken after execution of the panchanama. After post mortem, last rites were performed on the dead body at Mangrul Pir.
The complaint further states that while returning after last rites, the Polie chowki Incharge met the complainant at the square and told him that he is residing there and if needed, he should contact him there only. Thereafter the Head Constable attached Police Chowki, Selu Bazar recorded his statement as well as the statements of his relatives.
The complaint further states that 8 days prior to the lodging of the complaint with Anti Corruption Bureau, one Motilal Wadar informed the complainant that he was called by the appellant at Mangrul Pir. Hence, on the same day the complainant went to Police Station. The appellant was sitting there in the Police Station and he asked him to bring his sister for recording of her statement. He told that her statement was already recorded and that she had left for Mumbai. On that the appellant took the appellant aside and asked him to go to Mumbai and bring her back and come with money. The complaint further asserts that the appellant disclosed that he was suspecting that the complainant ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 5 apeal65.03.odt and his sister has murdered his brother in law. He therefore asked for money otherwise he would file case against them. On that, the complainant requested that he would come on Saturday with his sister and arrange some money. Then he went to Mumbai and came back along with his sister and narrated her the facts as stated by the appellant and also told that the appellant was demanding money for not filing the case. On 27th in the morning, he along with his sister Sarubai came back to Akola from Mumbai by Vidarbha Express. At about 7.30 a.m. he reached to the room of the appellant and gave a call from outside. The appellant came out and then he asked the complainant to come inside by leaving his sister outside. The complainant went inside the room and he asked his sister to wait outside. The appellant asked as to why he got late. On that the complainant replied that as he could not make the arrangement of money, he did not come. He inquired as to whether he had brought the money. On that the complainant replied that he could not make arrangement of money. On that the appellant stated that if the complainant fails to give money, a case of murder would be lodged against the complainant and his sister. The complainant requested the appellant not to file a case against them. As per the complainant, the appellant asked as to ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 6 apeal65.03.odt how much money would be required to be paid. On that, the appellant demanded Rs.10,000/-. The complainant shown his inability to make payment of such a huge amount and requested for reduction in the same. However, the appellant did not agree for reduction. Therefore, the complainant informed him that he will give Rs.2,000/- by selling cotton and would give remaining amount of Rs.8,000/- within 15 days. The appellant agreed for it. With these allegations, the complaint was lodged.
3. Subhash Dhok (PW3) at the relevant time was serving as Police Inspector in Anti Corruption Bureau, Akola. He reduced into writing the oral report lodged by Dadarao (PW1). Subhash Dhok obtained his signature. He also asked Dadarao to visit the Anti Corruption Bureau's office on 28.11.1997 at 7.00 a.m. Subhash Dhok (PW3) decided to lay a trap on the appellant. He gave letter to the Executive Engineer, Minor Irrigation Department, Akola and requested for sending 2 employees from his department to the Anti Corruption Bureau, Akola vide Exh.-53. Accordingly, Dhananjay Deshmukh (PW2) and Sunil Chinchmalatpure attended the office of Anti Corruption Bureau on 27.11.1997 at 4.20 p.m. They were asked to visit office of the Anti ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 7 apeal65.03.odt Corruption Office again on 28.11.1997 at 7.00 a.m. On 28.11.1997, Subhash Dhok (PW3) introduced Dadarao to the pancha witnesses. Both extended consent to act as pancha witnesses. They got ascertained the report from the complainant. They also put their signatures on Exh.-38 after their due verification. Thereafter Subhash Dhok (PW3) obtained 2 currency notes of denomination of Rs.500/- each and 10 currency notes of Rs.100/- each for Dadarao (PW1) for the purpose of trap. The numbers were noted down. Use of phenolphthalein was also demonstrated. The proceedings of all this was reduced into writing by preparing the pre-trap panchanama Exh.-40. The prosecution case further states that thereafter they proceeded for Mangrul Pir at 11.45 a.m. on 28.11.1997. The Anti Corruption Bureau personnel stopped their jeep near the by-pass. Dhananjay (PW2) was asked by the Investigating Officer Dhok to remain with the complainant Dadarao and to listen the talks between the appellant and the complainant. The complainant was also asked that on demand alone, the money should be paid to the appellant and thereafter he should give a signal.
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4. The prosecution case further states that at 12.25 p.m. the raiding party received per-arranged signal therefore Subhash Dhok along with the raiding party rushed to the place of trap. Hands of the appellant were caught. Subhash Dhok (PW3) introduced himself and his staff to the accused. Subhash Dhok (PW3) thereafter tested the fingers of both the hands of the appellant however the colour did not change. The tainted amount was found in the right side pocket of the shirt of the appellant. The notes were seized under seizure panchanama Exh.-41. The detailed panchanama was drawn and was recorded vide Exh.-46. Thereafter, Subhash Dhok filed his complaint with Police Station, Mangrul Pir. The printed FIR is at Exh.-56. On the basis of the complaint Exh.-55, an offence punishable under Section 7, 13 (i)
(d) read with Section 13 (2) of the Prevention of Corruption Act was registered against the appellant vide Crime No.112/1997. The Investigating Officer thereafter sent the proposal for obtaining the sanction. The sanction was received vide Exh.-71.
5. Charge was framed against the appellant by the learned Special Judge. The appellant denied the charge and claimed for his trial. In order to bring home the guilt, the prosecution has ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 9 apeal65.03.odt examined 4 witnesses namely; Dadarao (PW1), Dhananjay Deshmukh (PW2), Subhash Dhok (PW3) and Rahul Gopal (PW4). The defence of the appellant was that of false implication and that the tainted amount is thrust in his pocket. The learned Judge of the Court below, after appreciating the evidence as brought on record, found that the prosecution was successful in proving its case against the appellant and as observed in the opening paragraph, the appellant was sentenced.
6. I have heard Mr. Sumit Joshi, learned counsel for the appellant and Mr. R. S. Nayak, learned A.P.P. for the respondent- State in extenso. Both the learned counsel submitted in detail their respective cases. Learned counsel for the appellant also relied on the decisions of the Hon'ble Apex Court and also of this Court.
7. The record shows that the currency notes smeared with phenolphthalein powder were found in the right side pocket of the appellant's safari shirt.
8. Merely because the currency notes smeared with phenolphthalein or anthracene powder are found that itself is not ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 10 apeal65.03.odt sufficient to hold the accused guilty for the offence punishable under the provisions of the Prevention of Corruption Act. The law is well crystalized on the said aspect as it could be seen from the authoritative pronouncement of the Hon'ble Apex Court in State of Punjab vs. Madan Mohan Lal Verma, 2014 (4) Crimes 41 (SC), so also decision of the Larger Bench of the Hon'ble Apex Court in B. Jayraj vs. State of Andhra Pradesh; (2014) 13 SCC
55. From the law as laid down to constitute an offence under the Prevention of Corruption Act, demand of bribe is sine qua non. Mere possession or receipt of the tainted amount is not sufficient. Though there is statutory presumption under Section 20 of the Act, it is always open for the accused to rebut the said statutory presumption. The Apex Court also ruled that for rebutting the said presumption, proof of reasonable doubt is not required. The Court is required to consider preponderance of probabilities.
9. On the touchstone of the aforesaid, let us examine the evidence as brought on record to see as to whether the prosecution has successfully proved its case against the appellant beyond reasonable doubts.
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10. While in the witness box, Dadarao (PW1) has stated that after visiting to Mangrul Pir along with his sister Sarubai, the appellant demanded Rs.10,000/- from him. That time, as per the version of the complainant, he disclosed that he is not having Rs.10,000/- and after negotiations, the amount was reduced to Rs.8,000/-. It would be useful to refer the deposition from that point as is appearing in the examination in chief of Dadarao. It reads thus:
"After negotiation the accused reduced the amount to Rs.8,000/-. Accordingly after 2/3 days thereafter I went to accused Madhukar on Manora road in front of Police Station, Mangrul Pir and paid Rs.2,000/- to him."
This crucial aspect in respect of reduction of the bribe amount from Rs.10,000/- to Rs.8,000/- and payment of Rs.2,000/- to the appellant is not at all mentioned in the report lodged at the Anti Corruption Bureau.
Exh.-38 report to the Anti Corruption Bureau was lodged on 27.11.1997. On the said day, Dadarao had already parted with the amount of Rs.2,000/- from his pocket and the amount was paid to the appellant. Non mentioning of this crucial ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 12 apeal65.03.odt aspect of payment of Rs.2,000/- to the appellant in the complaint appears unnatural.
11. Further, in the complaint Exh.-38, the complainant asserts that though he pleaded for reduction of the bribe amount, his request was flatly turned down by the appellant and the appellant stuck to his demand of Rs.10,000/-. However, as noticed in the deposition, the complainant himself is stating that the bribe amount was scaled down from Rs.10,000/- to Rs.8,000/- and prior to 2-3 days of the alleged report he paid Rs.2,000/- and he was called by the appellant along with remaining amount. Thus, there is total variance in the complaint Exh.-38 and the evidence as noticed hereinabove. In my view, that casts serious doubt about the truthfulness of the version of the complainant.
12. It is to be noted that the bribe amount was demanded by the appellant from the complainant on the count that if the bribe amount is not paid then in that event he will be implicated in the murder of his brother in law.
An accidental death proceeding vide AD No.46/1997 was already registered under Section 174 of the Code of Criminal ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 13 apeal65.03.odt Procedure with Police Station, Mangrul Pir. Statements of the complainant and his sister Sarubai were already recorded by the investigating officer namely; the appellant. Those accidental death proceeding papers were already seized under Exh.-43 in the Anti Corruption Bureau case. Those were already sent to Mr. Rahul Gopal (PW4).
13. As per the complainant and the evidence of Dhananjay Deshmukh (PW2), the amount of bribe was kept in the pocket of the shirt of the appellant as per his direction. However, closer scrutiny of their evidence shows that they are changing the place where the amount was placed in the pocket. Dadarao (PW1) states in his evidence as under:
"Accused asked me to hand over Rs.2,000/- to a lady present in a tea-canteen near P.S. Mangrulpir. I refused to do so. Then we and accused came on Manora road. Accused by making sign asked me to keep the money in his shirt pocket."
However, Dhananjay Deshmukh (PW2) deposed as under:
"After taking tea we again went to P.S. Mangrulpir. Complainant Dadarao shown me accused Madhukar who was standing in the open site in the premises of P.S. ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 :::
14 apeal65.03.odt Mangrulpir. We both met accused Madhukar in the police station Mangrulpir just near the gate of the P.S. Complainant Dadarao offered Namaskar to accused. Thereafter accused Madhukar asked complainant Dadarao as to whether he has brought the money. Complainant Dadarao told to accused that he has brought Rs.2,000/-. Accused Madhukar asked complainant Dadarao to pay Rs. 2,000/- to a lady standing in a tea canteen near P.S. Mangrulpir. Complainant Dadarao refused to do so. Thereafter accused Madhukar by making sign asked the complainant Dadarao to put the amount of Rs. 2,000/- in his shirt pocket. Accordingly complainant Dadarao took out tainted amount of Rs. 2,000/- from his left side shirt pocket by his right hand and put the tainted amount of Rs. 2,000/- into the right pocket of Safari short of the accused and at that time we were standing just near the gate of P. S. Mangrulpir."
Thus, there is variance in between the version of complainant and pancha witness in respect of the place. Not only that, the pancha witness further states that after accepting the amount, the appellant Madhukar offered them tea and to have tea, he along with complainant proceeded towards the hotel and on the way of the hotel, Dadarao transmitted the prearranged signal. This fact is totally absent from the evidence of Dadarao (PW1). ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 :::
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14. In this behalf, the defence of the appellant is that of thrusting. The learned counsel for the appellant has invited my attention to the cross-examination of Dhananjay Deshmukh (PW2) to point out that at the time of accosting the appellant by the investigating officer, the appellant gave his explanation in writing to Subhash Dhok (PW3) in respect of the seizure of the tainted amount, though Subhash Dhok (PW3) states that now he is unable to remember the explanation given by the appellant. Even Subhash Dhok (PW3) in the examination in chief stated as under:
"Upon inquiry about the bribe money, accused Madhukar told us that the complainant Dadarao has kept the bribe money in his right side safari shirt pocket."
While in the cross-examination, Subhash Dhok (PW3) has stated as under:
"At the time of trap accused had submitted his written explanation regarding the tainted amount found with him to me. I have not submitted said written explanation of accused along with charge-sheet."
Thus, it is crystal clear from the aforesaid evidence of Subhash Dhok (PW3) that at the time of arrest itself the appellant gave his written explanation about the tainted amount. Thus, it is ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 16 apeal65.03.odt clear that the defence of thrusting as taken up by the appellant did not crop up at the eleventh hour during trial. It was right from the beginning and not only that the written explanation was also given which was not filed by the investigating officer along with the charge-sheet.
15. In that behalf, in my view, the learned counsel for the appellant has rightly relied on T. Subramanian vs. State of Tamil Nadu; 2006 ALL MR (Cri) 620 (SC) and Bismillakha s/o Salarkha Pathan vs. State of Maharashtra; 2004 AL MR (Cri) 1341.
In T. Subramanian (supra) the Apex Court found that when the High Court had not considered explanation offered by the appellant about receipt of money which was immediately given after the incident, explains all the circumstances and raises not only a reasonable but very serious doubt about the amount having been received by him as illegal gratification.
In Bismillakha s/o Salarkha Pathan (supra), this Court in paragraph 9 observed thus:
".....However, there is one more important circumstance and i.e. the statement to be found in the post trap panchanama to the effect that immediately after the ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 17 apeal65.03.odt trap was sprung, both the accused were asked by P.I. Dhok and they gave their version regarding acceptance of money. It is the express prosecution case which can be found in the panchanama that the version given by accused was reduced to writing and signed by the panchas as well as P.I.Dhok. The contents of what was mentioned in these two writings was not found in the panchanama as those were separate documents. However, for the reasons best known to the prosecution, these documents have not been brought before the Court in the trial. The panchas examined as well as P.W.7 Dhok but do not utter a single word about this first version given by the two accused in writing immediately after the trap was sprank. This circumstances of suppressing the first version as given by two accused, according to him, is very important circumstance which raised a shadow of doubt about the veracity of the prosecution case. The duty of the prosecution is to bring the entire truth as found before the Court. It appears to me that these two vital documents have been kept back from the trial. In my view, in such circumstances, these writings were evidence which could be produced and which were in the hands of the investigating agency and which could have been produced as evidence in the Court but was not produced. By virtue of Section 114 of the Indian Evidence Act, the Court would be entitled to presume that had these documents been produced, they would not have favoured the prosecution which had ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 18 apeal65.03.odt withheld these documents. Useful reference can be made to illustration (g) of Section 114 of the Indian Evidence Act, in this regard."
16. In view of the written explanation right at the time of trap which is not filed on record by the investigating officer there is no hesitation in my mind to reach to the conclusion that the appellant has rebutted the statutory presumption under Section 20 of the Act.
17. Section 19 of the Act deals with sanction. The law in that behalf is now well settled. The order granting sanction is an empty formality. Before according sanction, it is the duty of the sanctioning authority to ensure that the frivolous complaints are not entertained.
In the present case, Mr. Rahul Gopal (PW4), at the relevant time was Special Inspector General, Amravati Range, Amravati was the sanctioning authority. He admitted in his cross- examination that the case papers in respect of death of Maroti vide AD No.46/97 were received by him. The availability of the accidental death papers before the sanctioning authority would have given clear picture to the sanctioning authority before ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 ::: 19 apeal65.03.odt according sanction. But one fact is also to be noted in the present case is that the complainant is in habit of making complaints against the police personnel. He has admitted that in the year 1986 also he lodged a complaint against one police officer and since 1986 he was knowing the Anti Corruption Bureau office and was knowing as to how to lodge the complaint against the public servants with the Anti Corruption Bureau.
18. Be that as it may, it is clear that there is variance in the evidence of the complainant and his complaint in respect of the actual amount of the bribe, payment of bribe and the amount to be paid on the day of trap so also there is a variance in between the place in respect of putting of the tainted notes in the shirt pocket of the appellant in the evidence of the complainant and in the evidence of pancha witnesses.
Further, right from the first moment, the explanation given by the appellant though it was reduced into writing, was deliberately not produced on record.
The cumulative effect of the aforesaid leads me to pass the following order.
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20 apeal65.03.odt ORDER
(i) Criminal Appeal No. 65/2003 is allowed.
(ii) Judgment and order dated 13.01.2003 passed by Judge, Special Court, Washim in Special Case No.2/1998, is set aside. The appellant-Madhukar s/o Gangaramji Paturde is acquitted of an offence punishable under Section 7, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act.
(iii) Bail Bonds of the appellant stands cancelled.
(iv) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.
JUDGE kahale ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:27:35 :::